                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4139-13T3

HILL INTERNATIONAL, INC.,

      Plaintiff-Respondent,            APPROVED FOR PUBLICATION

                                          December 30, 2014
v.
                                         APPELLATE DIVISION
ATLANTIC CITY BOARD OF EDUCATION,

     Defendant-Respondent.
_________________________________

COBRA CONSTRUCTION COMPANY, INC.,

      Plaintiff-Respondent,

v.

ATLANTIC CITY BOARD OF EDUCATION,

      Defendant-Respondent,

and

SOSH ARCHITECTS and PATRICK J.
GALLAGHER,

      Defendants/Third-Party
      Plaintiffs-Appellants,

v.

CZAR ENGINEERING,

      Third-Party Defendant/
      Fourth-Party Plaintiff-
      Respondent,

and
ARTHUR W. PONZIO CO. & ASSOCIATES,
INC.,

     Third-Party Defendant/
     Fourth-Party Plaintiff,

v.

CRAIG TEST BORING CO., INC., and
CRAIG TESTING LABORATORIES, INC.,

     Fourth-Party Defendants.
________________________________________

         Argued November 10, 2014 – Decided December 30, 2014

         Before   Judges   Sabatino,   Simonelli,   and
         Leone.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Atlantic County,
         Docket No. L-7252-12 and L-582-13.

         Gary C. Chiumento argued the cause for
         appellants SOSH Architects and Patrick J.
         Gallagher    (Chiumento  McNally,  L.L.C.,
         attorneys; Mr. Chiumento and Ashley H.
         Buono, on the briefs).

         Robert   Hedinger  argued  the   cause  for
         respondent Cobra Construction Company, Inc.
         (Hedinger & Lawless, L.L.C., attorneys; Mr.
         Hedinger and Richard E. Wenger, on the
         briefs).

         Kevin M. Bothwell argued the cause for
         respondent Czar Engineering (Thompson Becker
         & Bothwell, L.L.C., attorneys; Mr. Bothwell,
         of counsel and on the brief).

         Richard W. Gaeckle argued the cause for
         amicus curiae AIA New Jersey, The New Jersey
         Society of Architects and The New Jersey
         Society of Professional Engineers (Hoagland,
         Longo,   Moran,  Dunst  &   Doukas,  L.L.P.,
         attorneys; Lawrence P. Powers, of counsel;



                               2                          A-4139-13T3
              Andrew J. Carlowicz, Jr., and Mr. Gaeckle,
              of counsel and on the brief).

       The opinion of the court was delivered by

SABATINO, P.J.A.D.

       This interlocutory appeal in a professional liability case

poses    more       unsettled    questions      of    law   arising      under      the

Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.

       Specifically, the appeal concerns whether an affidavit of

merit ("AOM") issued by a licensed engineer, which criticizes

both    the     construction       contract      administration         and    design

services provided by a licensed New Jersey architect and his

licensed      architectural       firm,       qualifies       as   an    acceptable

supporting AOM from an "appropriate licensed person" within the

intended meaning of N.J.S.A. 2A:53A-27, even though the affiant

is not also a licensed architect.                    More broadly, the appeal

concerns whether, as defendants and amicus curiae argue, the

statute should be construed to require a supporting AOM from a

"like-licensed" professional in all malpractice or negligence

cases within the scope of the statute.

       For    the    reasons    that   follow,   we    hold    that,    to    support

claims of malpractice or negligence liability, the AOM must be

issued by an affiant who is licensed within the same profession

as the defendant.         That like-licensed requirement applies even

where, as is the case here in matters involving architects and



                                          3                                   A-4139-13T3
engineers, the relevant professional licensure laws overlap to

some degree.    An affidavit from such a like-licensed expert is

not, however, required in circumstances where the plaintiff's

claims are confined to theories of vicarious liability or agency

and do not assert or implicate deviations from the defendant's

professional standards of care.

    Guided     by   this    interpretation         of   the   AOM     statute,    we

conclude the trial court erred in ruling that an AOM issued by

plaintiff's affiant, a licensed engineer, sufficed to support

claims that alleged deviations of the professional standards of

care by the defendant architect and his architectural firm.

    Because our published opinion today on this novel issue

might not have been readily predicted, and also because the

trial court did not hold the required conference at which the

claimed   deficiency       of    the    engineer's      AOM   could    have   been

identified before the statutory 120-day maximum deadline for a

proper AOM expired, we grant leave to plaintiff to submit, on

remand,   a   substitute        AOM    from   a   licensed    architect.         The

substitute AOM shall be furnished within a reasonable period of

time to be specified by the trial court.

    After discovery is completed, the trial court shall also

consider, in the first instance, whether plaintiff's claims of

intentional     misrepresentation             sufficiently      implicate        the




                                          4                               A-4139-13T3
standards of care of an architect to require an architect's

supporting AOM.

                                     I.

                                     A.

    We begin with an overview of the key provisions within the

AOM statute, which was first adopted in 1995 and was amended in

2004.   In enacting this law, the Legislature aimed to strike "a

fair balance between preserving a person's right to sue and

controlling      nuisance    suits        [against   certain    licensed

professionals] that drive up the cost of doing business in New

Jersey."      L. 1995, c. 139, Statement of Governor Whitman on

Signing S. 1493 (June 29, 1995).

    Section 26 of the AOM statute, as amended and currently

codified,     enumerates    various       professions,   including   both

architects and engineers, who are covered by its requirements:

            "Licensed person" defined

            As used in this act [N.J.S.A. 2A:53A-26
            through -29], "licensed person" means any
            person who is licensed as:

            a. an accountant pursuant to [N.J.S.A.
               45:2B-42 to -75];

            b. an architect pursuant to [N.J.S.A. 45:3-1
               to -46];

            c. an attorney admitted to practice law in
               New Jersey;




                                      5                          A-4139-13T3
d. a dentist pursuant to [N.J.S.A. 45:6-1
   to -73];

e. an engineer pursuant to [N.J.S.A.
   45:8-27 to -60];

f. a physician in the practice of medicine
   or surgery pursuant to [N.J.S.A. 45:9-1
   to -58];

g. a podiatrist pursuant to [N.J.S.A. 45:5-1
   to -20];

h. a chiropractor pursuant to [N.J.S.A.
   45:9-41.17 to -32];

i. a registered professional nurse pursuant
   to [N.J.S.A. 45:11-23 to -67];

j. a health care facility as defined in
   [N.J.S.A. 26:2H-2];

k. a physical therapist pursuant to
   [N.J.S.A. 45:9-37.11 to -37.34f];

l. a land surveyor pursuant to [N.J.S.A.
   45:8-27 to -60];

m. a registered pharmacist pursuant to
   [N.J.S.A. 45:14-40 to -82];

n. a veterinarian pursuant to [N.J.S.A.
   45:16-1 to -18];

o. an insurance producer pursuant to
   [N.J.S.A. 17:22A-26 to -57]; and

p. a certified midwife, certified
   professional midwife, or certified nurse
   midwife pursuant to [N.J.S.A. 45:10-1
   to -22].

[N.J.S.A. 2A:53A-26 (emphasis added).]




                     6                         A-4139-13T3
    When such a licensed professional is sued for deviating

from the standards of care applicable to his or her field of

endeavor,    the   following   requirements   in   Section   27   of    the

statute apply:

                 In any action for damages for personal
            injuries, wrongful death or property damage
            resulting from an alleged act of malpractice
            or negligence by a licensed person in his
            profession or occupation, the plaintiff
            shall, within 60 days following the date of
            filing of the answer to the complaint by the
            defendant, provide each defendant with an
            affidavit of an appropriate licensed person
            that there exists a reasonable probability
            that the care, skill or knowledge exercised
            or exhibited in the treatment, practice or
            work that is the subject of the complaint,
            fell outside acceptable professional or
            occupational    standards     or    treatment
            practices. The court may grant no more than
            one additional period, not to exceed 60
            days, to file the affidavit pursuant to this
            section, upon a finding of good cause.

                 In the case of an action for medical
            malpractice,   the    person    executing    the
            affidavit shall meet the requirements of a
            person who provides expert testimony or
            executes an affidavit as set forth in
            [N.J.S.A.] 2A:53A-41.     In all other cases,
            the person executing the affidavit shall be
            licensed in this or any other state; have
            particular expertise in the general area or
            specialty   involved    in   the    action,   as
            evidenced by board certification or by
            devotion    of     the     person's     practice
            substantially   to    the   general    area   or
            specialty involved in the action for a
            period of at least five years.       The person
            shall have no financial interest in the
            outcome of the case under review, but this




                                   7                              A-4139-13T3
              prohibition shall not exclude the person
              from being an expert witness in the case.

              [N.J.S.A. 2A:53A-27 (emphasis added).]

By    its   terms,     the   AOM   statute      "applies    to    all   actions    for

damages based on professional malpractice."                  Ryan v. Renny, 203

N.J. 37, 50-51 (2010) (citing Charles A. Manganaro Consulting

Eng'rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.

Super. 343, 347 (App. Div. 2001)).

       As Section 27 prescribes, the plaintiff pursuing such a

malpractice case must file an affidavit from an "appropriate

licensed person," stating with "reasonable probability" that the

defendant's     conduct      "fell      outside    acceptable      professional     or

occupational         standards     or     treatment     practices."         N.J.S.A.

2A:53A-27.      The plaintiff must do so within sixty days of the

defendant's filing of an answer, and may receive an additional

sixty-day extension only upon a showing of good cause.                          Ibid.

Failure to file a suitable affidavit within the time period is

generally deemed a failure to state a cause of action, subject

to certain mitigating principles that have been recognized by

the Supreme Court.           See, e.g., Galik v. Clara Maass Med. Ctr.,

167    N.J.    341,      350-59      (2000)     (applying        the    doctrine    of

"substantial     compliance"         to   excuse    a   plaintiff's      failure    to

submit a timely AOM, where plaintiff had served the defendants'

insurers      with    unsworn      supporting      expert   reports      before    the



                                            8                                A-4139-13T3
complaint was filed, and where plaintiff had taken a series of

steps endeavoring to comply with the statute).

      By requiring in Section 27 a supporting affidavit from "an

appropriate    licensed         person"   who      attests    to     a   "reasonable

probability"       that   the    defendant's       conduct    deviated        from   the

relevant    professional        standards     of   care,     the   AOM   statute      is

designed to thwart baseless lawsuits against professionals who

practice in the categories of licensure listed in Section 26.

Conversely, the statute permits cases to proceed if they have

been duly screened by an eligible affiant who vouches that they

have sufficient indicia of merit.                  See Burns v. Belafsky, 166

N.J. 466, 474 (2001) (citing Peter G. Verniero, Chief Counsel to

the Governor, Report to the Governor on the Subject of Tort

Reform (Sept. 13, 1994)).

      The statute does not specify in a comprehensive or precise

manner the qualifications of an "appropriate licensed person"

who is eligible to submit an AOM, except for the more stringent

specialization       requirements      imposed      for    affiants      in    medical

malpractice cases in N.J.S.A. 2A:53A-41.                   Section 27, as noted

above, does indicate that the affiant must be "licensed in this

or   any   other    state,"     and   have    "particular      expertise        in   the

general area or specialty involved in the action."                            N.J.S.A.

2A:53A-27; see also L. 1995, c. 13, § 2.                           The affiant may




                                          9                                    A-4139-13T3
establish    such       expertise     either     by     a    "certification"            from      a

board, or by a showing of a "devotion of the person's practice

substantially to the general area or specialty involved in the

action for a period of at least five years."                        Ibid.

                                           B.

       The   specific       question      raised        before       us    is        whether      a

licensed engineer, such as the one who was retained here by

plaintiff, may qualify as such an "appropriate licensed person"

in     issuing     an    AOM    against       an      architect           or     a     licensed

architectural firm, at least as to alleged deviations that fall

within    the     zone    of   what    the      trial       court     described            as    an

"overlap" in the licensure laws pertaining to architects and

engineers.       That legal issue arose here in the following factual

and procedural context.

       The School Construction Project and the Parties

       In early 2008, representatives of defendant-appellant SOSH

Architects ("SOSH") and the Atlantic City Board of Education

(the     "School        Board"),      engaged         in      discussions             for        the

construction of two new primary schools in Atlantic City.                                       SOSH

thereafter submitted to the School Board a "proposal for design

services     for    these      projects."          To       achieve       that       end,       SOSH

proposed     to     contract       with      several         other        firms       as    sub-

consultants.       Those firms included third-party defendants Arthur




                                           10                                          A-4139-13T3
W. Ponzio & Associates ("Ponzio"), which agreed to provide civil

engineering       services,       and   Czar      Engineering      ("Czar"),       which

agreed    to     provide      structural        engineering     services.           SOSH

indicated to the School Board that its proposal "encompasse[d]

all     phases     of     work     from     Concept/Site        Planning       through

Construction Administration."

       In the fall of 2009, the School Board and SOSH entered into

a    contract    for    the   design      of    the     Richmond    Avenue    School.1

Section 2.1.1 of that contract provided that "[t]he Architect's

Basic    Services       consist    of     those    described       in   Sections    2.2

through 2.6 and any other services identified in Article 12 as

part     of     Basic    Services,        and     include     normal     structural,

mechanical       and    electrical        engineering       services."       (emphasis

added).        Among other things, the contract obligated SOSH to

provide schematic design documents, schematic design studies,

design development documents, construction documents (consisting

of    drawings    and    specifications),         and    "administration       of   the

[c]ontract for construction in cooperation with the Construction

Manager."2


1
  The record on appeal does not contain a contract for the design
of the second potential school building.
2
  The contract listed Hill International, Inc. ("Hill") as the
project's Construction Manager.   Hill is the plaintiff in a
related separate lawsuit against the School Board consolidated
                                                    (continued)


                                           11                                 A-4139-13T3
       Defendant-appellant Patrick J. Gallagher is an architect

employed by SOSH who participated in the project.                  SOSH and

Gallagher assert in their post-oral argument brief that they

both are "registered architects" in New Jersey.3

       The SOSH contract with the School Board further provided

that "[t]he project shall be publicly-bid for a single-prime

contractor."     In     early   2010,     the   School     Board   solicited

construction bids for the construction of the Richmond Avenue

School (the "Project").       Plaintiff-respondent Cobra Construction

Company, Inc. ("Cobra"), a general contractor, won that bid.

Soon   thereafter,    Cobra   and   the   School   Board   entered   into     a




(continued)
with Cobra's present action.    Hill was apparently procured by
the School Board "for developing the project schedule and
construction budgets and providing cost estimating throughout
the development of these projects."    Hill is not involved in
SOSH's present interlocutory appeal.
3
  While Gallagher is a licensed architect in New Jersey, it is
unclear from the record on appeal whether SOSH is a licensed
architecture firm. In New Jersey, qualified architecture firms
may obtain licenses from the State Board of Architecture,
although they are not required to do so.    See N.J.S.A. 45:3-17
to -19. In any event, it is undisputed that an AOM is needed to
support plaintiff's malpractice allegations against SOSH as well
as Gallagher. The dispute instead centers on the qualifications
of the engineer that plaintiff chose to tender that affidavit.




                                     12                              A-4139-13T3
construction contract for the Project on March 16, 2010, with a

scheduled "substantial[] complet[ion]" date of August 24, 2011.4

      Problems          apparently        arose     during        the       course       of

construction.        In particular, Cobra has alleged that the School

Board, SOSH, and Gallagher "impeded and interfered" with its

ability to complete the Project on schedule.                        These impediments

allegedly included, among other things, "errors and omissions

and     lack    of   coordination     and        direction     in     the    plans      and

specifications; failures to timely secure permits and approvals

for the Project; failures to timely process Cobra's applications

for payment; and failures to timely grant proper change order

and time extension requests."

      The      School    Board,    SOSH,     and    Gallagher        all    deny     these

allegations.         SOSH and Gallagher assert that the project delays

were instead caused by Cobra, in not "commit[ting] sufficient

men and material to the [P]roject, [and in failing] to schedule

subcontractors        and   to    build    the     [P]roject      according        to   the

approved plans and specifications."

      In early 2012, SOSH and the School Board asserted that

Cobra     had    fallen     significantly          behind    in      the    course       of




4
  The actual contract between Cobra and the School Board has not
been supplied in the record on appeal.



                                           13                                   A-4139-13T3
construction.        Thereafter, the School Board terminated Cobra's

construction contract in a resolution dated April 13, 2012.

    Cobra's Complaint and Defendants' Answers

    In   January       2013,   Cobra    filed        a    complaint     in    the   Law

Division against the School Board, SOSH, and Gallagher.                             The

complaint alleged that the School Board breached the terms of

its agreement with Cobra in removing Cobra from the Project.

The complaint further alleged that SOSH and Gallagher wrongfully

interfered     and     induced   the     School          Board   to     breach      the

construction    contract.        It    also    alleged       that     the    architect

defendants   negligently       deviated       from       professional       standards,

both in the design of the Project and in the administration and

oversight of the construction contract.

    In relevant part, Cobra's complaint alleged in Count Five

that:

          51. [The School Board] entered into a
          contract with SOSH whereby SOSH undertook to
          provide for the benefit of the Project and
          the contractor, here Cobra, certain design
          and oversight obligations.

                 . . . .

          53. The aforesaid failures of SOSH on the
          Project,   upon   information  and  belief,
          constituted a breach of its contractual
          undertaking to the Board and to [the] third
          party beneficiary, Cobra.

          [(Emphasis added).]




                                        14                                    A-4139-13T3
    Count Six alleged that:

         57. SOSH owed a duty to Cobra to discharge
         its responsibilities in accordance with
         those standards of care generally recognized
         in the industry.

                 . . . .

         59. SOSH     negligently    and  carelessly
         performed its duties, responsibilities, and
         obligations to the Project.

         60. A foreseeable result of such negligence
         and carelessness was that Cobra would be
         damaged, and Cobra has been so damaged as a
         direct and proximate result of same.

         [(Emphasis added).]

    Count Seven repeated the allegations against SOSH contained

in Count Six, this time against Gallagher, individually:

         63.   Gallagher owed a duty to Cobra as the
         Project    contractor  to   discharge   his
         responsibilities in accordance with those
         standards of care generally recognized in
         the industry.

                 . . . .

         65. Gallagher negligently and carelessly
         performed his duties, responsibilities and
         obligations to the Project.

         66. A foreseeable result of such negligence
         and carelessness was that Cobra would be
         damaged, and Cobra has been so damaged as a
         direct and proximate result of same.

         [(Emphasis added).]

    In   Count     Eight,   Cobra    accused   SOSH   of   intentional

misrepresentations, alleging that:



                                    15                        A-4139-13T3
            69. SOSH also knew or should have known
            that   the   project  design   documents it
            prepared were deficient as they contained
            numerous errors and omissions and further
            that its on-site administration services
            were being inadequately performed.

            70. To deflect responsibility from itself
            for   such   deficiencies   and    inadequate
            performance,   SOSH  by   and   through   its
            representatives,    undertook     to     make
            misrepresentations to [the School Board]
            concerning Cobra's performance and to engage
            in a systematic pattern of conduct to
            orchestrate Cobra's termination, in part, by
            permitting its on-site representative to
            execute   a   certification   that    falsely
            represented that sufficient cause existed
            for [the School Board] to terminate Cobra's
            contract.

            71. The aforesaid actions by SOSH                         were
            deliberate   and    intentional    and                    were
            calculated to cause harm to Cobra.

            72. A     foreseeable    result    of  such
            intentional actions was that Cobra would be
            damaged, and Cobra has been so damaged as a
            direct and proximate result of same.

            [(Emphasis added).]

Count      Nine        repeated     these        allegations     of     intentional

misrepresentation          against     SOSH       from   Count     Eight     against

Gallagher, individually.

    In their joint answer, SOSH and Gallagher denied Cobra's

allegations       of    their     culpability.       They   also      interposed    an

affirmative defense that plaintiff had not complied with the AOM

statute.      They further requested that the case be reassigned




                                            16                               A-4139-13T3
from    the    Track    II    negligence       case    track     to    a    Track    III

professional malpractice case.                 The court instead reclassified

the case to Track IV, which is for certain complex matters, and

extended the discovery period accordingly.

       Engineer Beach's Affidavit of Merit

       On    March    18,    2013,    a   week       after    SOSH    and     Gallagher

answered, Cobra filed and served a two-page Affidavit5 of Merit

from James R. Beach, P.E. (the "first Beach AOM").

       Beach received a Bachelor of Science degree from the United

States Coast Guard Academy in 1970, a B.S.C.E.                          (Bachelor of

Science in Civil Engineering) from the University of Illinois in

1974, an M.S.C.E. (Master of Science in Civil Engineering) from

Columbia       University     in     1977,     and    an     M.B.A.    from     Rutgers

University in 1984.           He is a registered professional engineer

licensed to practice as an engineer in the State of New Jersey,

as well as in the states of Washington, New Hampshire, and New

York.       Beach is not, however, a licensed architect in New Jersey

or in any other state.

       Beach is affiliated with the Society of American Military

Engineers,      the    American      Association       of    Cost     Engineers,     the


5
  Although the first Beach AOM is in the form of a certification,
defendants do not contend that form is improper.     See R. 1:4-
4(b).




                                          17                                   A-4139-13T3
Project      Management         Institute,          the      American      Arbitration

Association       (as     an   Arbitration         Panelist),      and   the     American

Society     of    Civil    Engineers.         From    1988    to   1995,    he      was     an

Adjunct Professor at the School of Architecture of the New York

Institute of Technology, teaching undergraduate courses "related

to     structural         design       and        construction      management            and

supervision."

       His curriculum vitae represents that Beach has extensive

experience in construction claims evaluation and in the review

and analysis of contractor schedules.                     He previously has been

retained as an expert in litigation involving "delay claims,

loss   of    productivity       claims,        project    administration,            damage

calculations and project planning and scheduling."                       He has given

numerous         lectures      on      construction          claims,       construction

scheduling,        and    project      administration         before     the        Project

Management        Institute      and     the       American      Society       of      Civil

Engineers, among others.

       With respect to the merits of Cobra's claims against SOSH

and Gallagher, Beach attested in his first AOM that:

             It is my opinion that there exists a
             reasonable probability that the skill and
             care exercised and exhibited in the work of
             SOSH and Gallagher with respect to certain
             design issues for the construction of the
             Richmond Avenue School Project and with
             respect to their conduct in their contract




                                             18                                     A-4139-13T3
            administration     responsibilities,     fell
            outside acceptable professional standards.

            [(Emphasis added).]

      Defendants' Motion To Dismiss

      As   we    have     noted,    the    AOM     statute      requires     that        the

supporting affidavit be filed by a plaintiff within sixty days

after the filing of a defendant's answer, subject to obtaining a

court-approved extension of an additional sixty days.                          N.J.S.A.

2A:53A-27.       In this case, because SOSH and Gallagher filed their

answer on March 11, 2013, the total 120-day maximum statutory

period ended on July 9, 2013.

      Notably,      for    reasons     that       are     not    disclosed      in       the

appellate       record,    the     trial   court     did       not   conduct    a    case

management      conference       before    the    AOM     period     expired,       as    is

required by Ferreira v. Rancocas Orthopedic Assocs., 178 N.J.

144, 154-55 (2003).         Ferreira mandates such conferences with the

court in professional malpractice cases in order to remind a

plaintiff's counsel of the need to provide a timely AOM, or, if

an AOM has already been provided, to ascertain whether defense

counsel have any objections to it.                Ibid.

      Fourteen days after the 120-day maximum period for an AOM

had   passed,     SOSH    and    Gallagher       moved    to    dismiss   plaintiff's

claims against them, on the basis that the first Beach AOM did

not comply with the statute.                 Specifically, they argued that



                                           19                                   A-4139-13T3
Beach was an improper affiant because he was a civil engineer by

training.     They asserted that Cobra instead needed to file an

AOM from a licensed architect, and that it was too late to do

so.

       In   opposing   the   dismissal   motion,   Cobra   argued   that

engineers and architects in New Jersey have overlapping areas of

expertise and training, and, in some instances, are authorized

to perform the same tasks.      Given that overlap, Cobra maintained

that Beach held the requisite credentials as a licensed engineer

—— one with considerable experience in matters of design and

construction contract administration —— to provide an AOM in

support of its claims against SOSH and Gallagher.

       To buttress its position, Cobra provided a second affidavit6

from Beach (the "second Beach AOM") on August 14, 2013.             That

second AOM was accompanied by Beach's seventy-eight page expert

report,7 which, according to Cobra, substantiates the adequacy of



6
    Again, the second AOM was in the form of a certification.
7
   The report, which is entitled "Schedule Review & Delay
Analysis," was originally prepared "for settlement purposes
only" and focused largely on cost issues.   Although the report
is lengthy, much of it concerns an analysis of the delays
associated with the construction on the Project, and the causes
and impact of those delays. We make no comment on whether the
opinions expressed in the report would be admissible under
N.J.R.E. 702 against any of the named defendants at trial.
Moreover, Cobra indicated at oral argument on appeal that it
                                                    (continued)


                                   20                          A-4139-13T3
his first AOM.    In his second AOM, Beach clarified the scope of

his review of the case as an expert:

         5. After Cobra's contract was terminated by
         [the School Board] by Resolution dated April
         16, 2012, I was retained by Cobra's attorney
         to review the circumstances surrounding the
         termination, to perform a schedule review
         and delay analysis and to determine what
         damages Cobra incurred as a result of the
         termination.

                 . . . .

         7.   As can be seen from my report, I       am
         critical of SOSH Architects and Patrick     J.
         Gallagher for their actions with regard     to
         their administration of the construction    on
         the project.

         8.   Specifically, Section III of my report,
         from pages 5 through 14, discusses the role
         of SOSH and Gallagher in causing [the School
         Board]   to   wrongfully  terminate   Cobra's
         contract.   All this discussion involves the
         services provided by SOSH and Gallagher in
         their administration of the construction.

         9.   On pages 7 to 10 [of my report], I
         discuss delay impacts and events that are
         related to or which emanate from project
         design errors or deficiencies and delayed
         performance by the architect.

         10.   However, each and every item that I
         identify in that section of my report
         includes design issues that are engineering
         related and that are not just purely
         architectural.    Engineers and architects



(continued)
anticipated securing another or an amplified expert report for
purposes of discovery and trial.



                                21                        A-4139-13T3
             each can perform the design of structural
             and mechanical elements of a project.

             11. By way of example, Impact #2 on page 8
             involves design changes that were made to
             the door hardware and Impact #4 involves
             design errors for the installation of brick
             and CMU where steel beams were not shown on
             the structural drawings.

                 . . . .

             22.   The claims against SOSH and Gallagher
             that involve design issues all involve
             either issues with the structural design or
             mechanical design and are within the purview
             of the practice of engineering.

             [(Emphasis added).]

     In   addition,   Peter     J.    DiBlasi,     Cobra's   Vice   President,

filed his own certification in opposition to defendants' motion,

asserting that Cobra's allegations "arise out of the performance

by   these    defendants   of        their    construction     administration

responsibilities under SOSH's contract with [the School Board]

and/or engineering services that were within the scope of SOSH's

contract[.]"      DiBlasi added that Cobra's allegations "do not

involve   any   claims   against       SOSH   or   Gallagher    that   involve

services that were purely 'architectural.'"

     The Motion Judge's Decision

     After hearing oral argument, the trial court denied the

architects' dismissal motion.            In his written decision dated

December 16, 2013, the motion judge concluded that Beach was




                                       22                              A-4139-13T3
qualified to provide an AOM in support of Cobra's professional

malpractice claims against SOSH and Gallagher.                         In reaching that

conclusion, the judge noted that there are overlapping areas of

expertise       between    engineers       and      architects.           Although       not

explicitly finding as such, the judge's decision implied that

Beach's    own    personal      areas   of      expertise    overlapped          with    the

architectural work performed by SOSH and Gallagher in this case.

       The Present Appeal

       SOSH and Gallagher moved for leave to appeal                             the trial

court's    AOM    ruling.       We   granted        that    application.           In    the

interim,    SOSH    and     Gallagher        filed    claims       as    a    third-party

plaintiff against Ponzio and Czar, the engineering firms with

whom     SOSH    had      respectively        contracted          to     provide      civil

engineering and structural engineering services for the Project.

       Given the licensing-related issues germane to this case, we

invited the Attorney General to participate in the appeal as

counsel to the State Board of Architects and the State Board of

Professional       Engineers.        The     Attorney       General          declined    our

invitation.       However, we did grant a joint motion of several

professional groups, including AIA New Jersey, the New Jersey

Society     of     Architects,       and      the     New     Jersey          Society     of

Professional Engineers, to appear through a single law firm as

amicus    curiae.         The   amici   join      with     SOSH    and       Gallagher    in




                                           23                                      A-4139-13T3
advocating reversal of the trial court's decision.                     In addition,

Czar has likewise filed a brief in support of reversal.                    None of

the other parties to the litigation have elected to participate.

       In     now    addressing   these       legal      issues    of     statutory

interpretation, we apply a de novo standard of review, affording

no special deference to the trial court.                 Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

                                      II.

                                         A.

       The novel issues posed before us stem largely from the fact

that   the     AOM   statute   does   not      contain    a   definition     of    an

"appropriate licensed person," as that term is used in Section

27.    Even so, we derive some interpretative guidance from the

text and structure of Section 26.                   That definitional section

enumerates the categories of licensed professionals and other

entities      whom   the   Legislature    has      designated     to   receive    the

protections of the AOM statute.               Notably, Section 26 separately

lists "architects" in N.J.S.A. 2A:53A-26(b) as one category of

professionals, and then "engineers" in N.J.S.A. 2A:53A-26(e) in

their own discrete category.

       This    separate     designation       of   architects      and    engineers

within Section 26, along with the fourteen other distinct listed

categories, is consistent with the profession-specific licensing




                                         24                                A-4139-13T3
laws    that   respectively      govern    those    fields   of   endeavor.

Although the statutes and regulations that respectively govern

architects     and   engineers   do   acknowledge    a   degree   of    common

ground between the two professions, they each have their own

licensure requirements and core areas of practice.

       The practice of architecture is regulated in this State by

statute under N.J.S.A. 45:3-1 to -46, and by regulations set

forth in N.J.A.C. 13:27-1.1 to -9.17.               The licensing statute

defines "architecture" as:

           the art and science of building design and
           particularly the design of any structure for
           human use or habitation.       Architecture,
           further, is the art of applying human values
           and aesthetic principles to the science and
           technology of building methods, materials
           and   engineering  systems,[8] required   to

8
  In this context, the           architect   licensing    statute      defines
"engineering systems" as:

           those systems necessary for the proper
           function of a building and the surrounding
           site, the proper design of which requires
           engineering   knowledge    acquired    through
           engineering   or   architectural    education,
           training, or experience.       These systems
           include but are not limited to structural,
           electrical, heating, lighting, acoustical,
           ventilation,   air   conditioning,    grading,
           plumbing, and drainage. Drainage facilities
           for sites of ten acres or more or involving
           stormwater detention facilities or traversed
           by a water course shall only be designed by
           a professional engineer.

           [Ibid.]



                                      25                               A-4139-13T3
           comprise a total building project with a
           coherent   and    comprehensive unity of
           structure and site.

           [N.J.S.A. 45:3-1.1.]

The   licensure   statute    further      explains   that   the   practice      of

architecture entails:

           the rendering of services in connection with
           the design, construction, enlargement, or
           alteration of a building or a group of
           buildings    and    the    space    within   or
           surrounding those buildings, which have as
           their   principal    purpose   human    use  or
           habitation.     These services include site
           planning,   providing    preliminary   studies,
           architectural         designs,        drawings,
           specifications,          other        technical
           documentation,     and     administration    of
           construction for the purpose of determining
           compliance with drawings and specifications.

           [Ibid.     (emphasis added).]

A distinct professional board, the State Board of Architects,

issues   licenses    to   architects    and   regulates     their   activities

within that profession.       N.J.S.A. 45:3-1.1(d).

      Likewise,     the   practice   of     engineering,    and     of   related

occupations such as land surveyors, is separately regulated by

the State under      N.J.S.A. 45:8-27 to -60, and by regulations

codified at N.J.A.C. 13:40-1.1 to -15.23.               In pertinent part,

the Title 45 statute defines the practice of engineering to

encompass:

           any service or creative work the adequate
           performance of which requires engineering



                                       26                                A-4139-13T3
           education, training, and experience and the
           application of special knowledge of the
           mathematical,    physical   and   engineering
           sciences to such services or creative work
           as consultation, investigation, evaluation,
           planning and design of engineering works and
           systems, planning the use of land and water,
           engineering studies, and the administration
           of   construction    for   the   purpose   of
           determining compliance with drawings and
           specifications; any of which embraces such
           services or work, either public or private,
           in connection with any engineering project
           including:          utilities,    structures,
           buildings, machines, equipment, processes,
           work systems, projects, telecommunications,
           or equipment of a mechanical, electrical,
           hydraulic, pneumatic or thermal nature,
           insofar as they involve safeguarding life,
           health or property, and including such other
           professional services as may be necessary to
           the planning, progress and completion of any
           engineering   services.      The  design   of
           buildings by professional engineers shall be
           consistent with section 7 of the "Building
           Design Services Act." [N.J.S.A. 45:4B-7].

           [N.J.S.A. 45:8-28(b) (emphasis added).]

Notably,    the      engineering    licensure   statute    expressly

acknowledges the separate and distinct laws that regulate the

practice of architecture:

           The provisions of this chapter [concerning
           the licensure of engineers] shall not be
           construed   to   prevent   or   affect   the
           employment of architects in connection with
           engineering projects within the scope of the
           act to regulate the practice of architecture
           and all the amendments and supplements
           thereto.

                  . . . .




                                   27                       A-4139-13T3
                   Nothing herein shall prohibit licensed
              architects   from   providing   or  offering
              services   consistent  with   the  "Building
              Design Services Act,"   [N.J.S.A. 45:4B-1 to
              -14].

              [N.J.S.A. 45:8-28(b) (emphasis added).]

       A     separate     professional             board,    the        State          Board    of

Professional Engineers and Land Surveyors, regulates engineers.

N.J.S.A. 45:8-30.          Notably, engineers are prohibited by statute

from    advertising       or   describing          themselves          as   a     provider      of

"architectural services."             See N.J.S.A. 45:4B-12.

       By    likewise    categorizing         architects          in    N.J.S.A.         2A:53A-

26(b)       separately    from       engineers        in     N.J.S.A.            2A:53A-26(e),

Section      26   of     the   AOM     statute        acknowledges               the    distinct

professional identities of licensed architects and of licensed

engineers.        Those distinct professional identities exist even

though,       subject     to        certain        educational          and        examination

requirements,      some     engineers     are        eligible      to       be    additionally

licensed as architects, N.J.S.A. 45:3-5.1, and some architects

are eligible to be additionally licensed as engineers, N.J.S.A.

45:8-35.1.

       Section 27 of the AOM statute fortifies this separation

between the delineated professional categories in Section 26,

insofar      as   Section      27    requires        an     AOM    in       an     action      for

"malpractice or negligence by a licensed person in his [or her]




                                              28                                         A-4139-13T3
profession or occupation."        N.J.S.A. 2A:53A-27 (emphasis added).

Moreover, the affiant must support a "reasonable probability"

that    the    defendant's       conduct     "fell    outside    acceptable

professional or occupational standards[.]"           Ibid.

       These "professional or occupational standards" referred to

in Section 27 are logically the standards of care within the

defendant's own licensed field of endeavor.              The statute does

not say that the defendant may be evaluated under the standards

of another profession, one in which he or she has not secured a

license and for which he or she has not subjected himself or

herself to the oversight of a different licensing board.

       To be sure, there are numerous topical areas of overlap

between the professions and occupations listed in Section 26,

including,    as   the   trial   court    found,   between   architects   and

engineers.9   The existence of such overlap as to certain tasks or


9
  See, e.g., the Building Design Services Act ("BDSA"), N.J.S.A.
45:4B-1 to -14, which recognizes "an area of concurrent practice
between the practice of architecture and the practice of
engineering, specifically in the area of building design."
N.J.S.A. 45:4B-2 (emphasis added).    See also N.J.S.A. 45:4B-7
(authorizing engineers to design certain kinds of buildings and
structures, either fully or partially for specified "incidental
use" categories, such as educational buildings in which an
engineer may design no more than 10% of the building's total
floor area or 2000 square feet, whichever is greater). The BDSA
further provides, with identical language, that both architects
and engineers may perform the "administration of construction
for the purpose of determining compliance with drawings and
specifications." See N.J.S.A. 45:4B-3(h) (as to architects) and
                                                     (continued)


                                     29                             A-4139-13T3
functions      that    can      be    lawfully       performed       by     more    than    one

category of licensed professional does not, however, mean that

an    AOM    from     an       expert     holding         a   different       category       of

professional license will pass muster.

       A few simple examples readily illustrate the point.                                  For

instance, it would be contrary to the text and purposes of the

AOM statute to allow a licensed nurse to serve as a qualified

affiant      against       a     licensed       physician         who,       for     example,

negligently      took      and       recorded        a    patient's        blood    pressure.

Although nurses and physicians are both trained and authorized

to    take   blood     pressure         readings,         they   are   each        still   held

professionally accountable under the standards of care of their

own   individual       professions.             It       would   thwart      the    screening

objectives of the AOM statute to allow a nurse to vouch for a

medical      malpractice        claim     asserted         against     a    physician,      and

vice-versa.10



(continued)
N.J.S.A. 45:4B-3(i) (as to engineers) (emphasis added). Despite
these defined areas of overlap, the BDSA nonetheless declares
the "Legislature's intent to provide for contracting between
architects and engineers without compromising the integrity of
either profession." N.J.S.A. 45:4B-2 (emphasis added).
10
   We reach that conclusion independently of the Legislature's
2004 amendments for affiants in medical malpractice cases. See
N.J.S.A. 2A:53A-41.      Those amendments imposed additional
requirements   regarding   specialization  to   the   licensing
requirement in N.J.S.A. 2A:53A-27.



                                            30                                        A-4139-13T3
      As   a    second        example     involving     professional        overlap,        we

consider       the    fact      that    both    attorneys     and   accountants         may

prepare inheritance tax returns for clients.                        Such tax returns

may     involve       a   variety        of    complex      matters        that   require

professional skill and expertise, such as the valuation of a

business.        An attorney might negligently prepare such a tax

return in a manner that produces errors, causing the client to

sustain penalties or other financial harm.                    In such a situation,

we doubt that the Legislature intended the AOM statute to allow

a non-lawyer accountant to provide the supporting AOM against

that lawyer in the client's legal malpractice suit.                          Instead, we

construe the statute to require an approach of "to each his

own."

      Hence, even though the task of preparing the tax return

could have been done by either a lawyer or an accountant, the

standards of care for lawyers should be applied to the defendant

lawyer.     The legal malpractice claim therefore must be supported

by an AOM from a qualified attorney, not from an accountant who

is subject to his or her profession's own standards of care.

      Construing the AOM statute to require such like-licensed

affiants    is       consistent        with   norms   of   fairness    as     well     as    a

recognition          of   the    reasonable         expectations      of     a    licensed

professional.             A     licensee       practicing    within        his    or    her




                                               31                                 A-4139-13T3
profession or occupation who makes a mistake and harms another

person should reasonably anticipate that he or she can be held

to account for that mistake by the professional board that has

issued him or her a license to practice.                 The board may revoke,

suspend, or otherwise take adverse action against the licensee,

applying the profession-specific laws and regulations that are

administered by that board.               In addition, the licensee must

fairly anticipate that he or she could be sued for malpractice

by the injured party, upon proof that he or she strayed from the

"acceptable . . . standards or treatment practices" within his

or   her    profession    or    occupation.      N.J.S.A.      2A:53A-27.      The

professional has a right to expect that those standards of care

by which his or her conduct will be measured will be defined by

the same profession in which he or she holds a license, and not

by some other profession.

                                         B.

      It is a fundamental canon of statutory construction that

the words of a statute are to be read sensibly and reasonably,

so   as    to   carry   out    the   apparent   intent    of   the   Legislature.

Sussex Commons Assocs., L.L.C. v. Rutgers, 210 N.J. 531, 541

(2012).         "Where a choice must be made between two imperfect

interpretations, the view should be selected which more likely

accords     with    the   probable      legislative      intent."      Cnty.     of




                                         32                              A-4139-13T3
Monmouth v. Wissell, 68 N.J. 35, 43 (1975).                             In keeping with

this   objective,         we   concur        with   defendants      and     the       amici   in

construing       the     AOM    statute       to     require,     subject        to    certain

limitations and caveats that we shall discuss, infra, that the

affiant     be      an    expert       who    possesses     the      same    category          of

professional license as the defendant.                      Minor variations in the

scope or terms of the respective licenses held by the affiant

and the defendant that do not bear upon material issues in the

case    will     not       disqualify         the    affiant,      so     long        as     both

professionals are licensed to practice within the same category

of professionals listed in the sixteen subsections of N.J.S.A.

2A:53A-26.          A    perfect      match    of    credentials        within        the    same

license is not always required.

       Assuming the affiant is such a like-licensed professional,

the    affiant       must      also     satisfy      the    additional       criteria         of

N.J.S.A. 2A:53A-27, requiring that the affiant have "particular

expertise      in    the     general     area       or   specialty      involved        in    the

action," which can be established either by board certification

or the affiant's devotion of a substantial amount of his or her

practice to that relevant general area or specialty within the

past    five        years.            N.J.S.A.       2A:53A-27.11           An        affiant's


11
   In a medical malpractice                    case, the affiant must further
satisfy the more stringent                     specialization requirements for
                                                                    (continued)


                                               33                                      A-4139-13T3
satisfaction         of     the    "particular          expertise"       requirement        in

Section   27      does      not    eliminate      the    need      for   the   affiant     to

possess     the      same      category     of    professional           license    as     the

defendant      who     has     been     sued.          The   "particular         expertise"

requirement       is      an   additional,       not    an    alternative,         essential

qualification.

    We reject plaintiff's argument that Section 27's language

providing the option of supplying an AOM from a person licensed

in "any other state" means that the affiant can be someone who

is licensed in a different profession than the professional who

has been sued.            N.J.S.A. 2A:53A-27.            We recognize, as plaintiff

has pointed out, architects or engineers in some other states

cannot perform certain functions that they are authorized to

perform in New Jersey.                 Conversely, the licensing laws of some

states are less restrictive than our state in some respects, and

allow architects or engineers to undertake professional tasks

that they are not permitted to undertake here.                           But these cross-

border differences do not justify a departure from the central

concept   in      Section         27   requiring       an    AOM    in    an   action      for

"malpractice or negligence by a licensed person in his [or her]

profession or occupation."               N.J.S.A. 2A:53A-27 (emphasis added).


(continued)
physicians and other               health   care       professionals       set     forth    in
N.J.S.A. 2A:53A-41.



                                             34                                     A-4139-13T3
       The out-of-state status of a plaintiff's proposed affiant

should not dilute a New Jersey professional's right to expect

under our statutory scheme that he or she will be judged by the

standards     of     his    or     her    own    profession,         not    some    other

profession.       The plaintiff must find an affiant in New Jersey or

another      state    within       the    defendant's        same     profession,       as

categorized in N.J.S.A. 2A:53A-26, to vouch for the merit of the

lawsuit.

                                           C.

       Our     endorsement         of     the     "like-licensed"           concept     in

interpreting and applying the AOM statute is subject to certain

important limitations and caveats.

                                           1.

       First, as the statute and the case law instruct, no AOM

will   be    required       if    the    defendant     professional's           allegedly

negligent     conduct      did    not    involve     the    exercise       of   functions

within the scope of his or her licensed professional role.                               An

AOM is required only if the alleged act is committed "by a

licensed     person    in    his    [or    her]      profession      or    occupation."

N.J.S.A. 2A:53A-27 (emphasis added).

       We applied that rather obvious principle in Murphy v. New

Road   Construction,        378    N.J.    Super.     238    (App.    Div.),       certif.

denied,     185    N.J.     391    (2005),      in   which    we     vacated       summary




                                           35                                    A-4139-13T3
judgment the trial court had granted to an architectural firm,

Cannon Group, which had been sued by a worker who had fallen off

of a roof that was being repaired at a public school.                           Id. at

241-42.     The construction management firm that was overseeing

the project, New Road, did not have an architectural license.

Id. at 240.        Cannon Group prepared the architectural plans for

New Road without a written contract.                  Ibid.     During the course

of the project, Cannon Group, "ostensibly at New Road's behest

by   way   of   discharging      the    latter's       construction        management

contract responsibilities . . . had sent three retired Union

roofers to perform inspection work" on the roof.                          Id. at 241.

The dispatched roofers were assigned to ensure that a roofing

contractor      had    "performed      its    job     in    compliance      with     its

contract" with the school district.                 Ibid.

      The trial court dismissed the injured plaintiff's claims

against Cannon Group because he had not procured a supporting

AOM from an architect.            Id. at 239.           We vacated that ruling

because    there      were   significant      factual       issues   as   to   whether

Cannon     Group's     involvement     in     the    project     comprised      merely

"separate functions in assisting the construction manager," as

opposed to being part of Cannon Group's "responsibilities as an

architect."      Id. at 242-43.         If they were the former, then no

AOM was required.




                                         36                                    A-4139-13T3
      Murphy thus illustrates the lack of need for an AOM when

the defendant's conduct does not implicate the standards of care

within the defendant's profession.                      In a similar vein, an AOM is

not     required       when        a    plaintiff's         allegations          against       a

professional       are       based      upon     "common      knowledge"        and   do    not

require proof of a deviation from a professional standard of

care.     Triarsi v. BSC Grp. Servs., L.L.C., 422 N.J. Super. 104,

116-17 (App. Div. 2011).

                                                 2.

      A second exception to the general need for an AOM from a

like-licensed         professional          arises      when     a    plaintiff's      claims

against    the     professional             do    not     sound      in    malpractice        or

negligence     but     instead          rest     on   other      discrete       theories      of

liability.12       N.J.S.A. 2A:53A-27 only requires an AOM in civil

actions "for damages for personal injuries, wrongful death or

property damage resulting from an alleged act of malpractice or

negligence       by      a    licensed           person     in       his    profession        or

occupation[.]"           (Emphasis added).                See also Ryan, supra, 203

N.J. at 50-51.

      Hence,     if    a     licensed       professional          deliberately        hurts    a

client    or   patient        in       an   office      fistfight,         or   purposefully


12
   For instance, breach of contract claims may not require an
AOM. Couri v. Gardner, 173 N.J. 328, 334-41 (2002).



                                                 37                                   A-4139-13T3
spreads falsehoods on the Internet about a former client who

refuses   to    pay    the   professional's          bill,       an   AOM    will   not    be

required to support claims against that professional for the

intentional torts of assault and battery or defamation.                                  Such

intentional wrongdoing is outside of the sphere of professional

malpractice      litigation      that    the     AOM    statute         is    designed     to

regulate.         However,       if     the     claim's          "underlying        factual

allegations require proof of a deviation from the professional

standard of care applicable to that specific profession," an AOM

is required for that claim.             Couri, supra, 173 N.J. at 340.

                                          3.

       Third,    the   requirement       of     an   AOM     from      a     like-licensed

professional      will   not     apply    if     the    plaintiff's            claims     are

strictly confined to theories of vicarious liability or agency

that do not implicate the standards of care of the defendant's

profession.       This principle is illustrated by our decision in

Borough of Berlin v. Remington & Vernick Engineers, 337 N.J.

Super. 590 (App. Div.), certif. denied, 168 N.J. 294 (2001).                                In

that   case,     the   Borough    sued    Remington          &    Vernick      ("R&V"),      a

corporate       engineering      firm,        because      the        firm    employed       a

hydrogeologist, who was not a licensed engineer and who                                   had

allegedly       and    negligently        failed        to       perform        sufficient

groundwater testing before certain municipal wells were created.




                                          38                                        A-4139-13T3
Id. at 592-93.     The Borough did not sue the hydrogeologist, but

claimed that the engineering firm R&V, as his employer, was

vicariously liable for his negligence.       Id. at 597.

    The trial court dismissed the Borough's complaint because

the Borough had not procured an AOM against R&V from a licensed

engineer.     Id. at 594.    We reversed that determination, to the

extent that the Borough's claims were founded solely upon a

theory of respondeat superior or agency, and not upon R&V's

alleged deviation from the standards of care of the engineering

profession.     Id. at 597-99.       In particular, we delineated in

Berlin this exception to the AOM requirement as follows:

            To protect against engineering malpractice
            claims being pressed against R & V without
            the required engineering affidavit of merit
            having   been  submitted,   we  direct   that
            Berlin's liability claim be limited to
            whether R & V's hydrogeologist negligently
            sited the well in question and whether the
            hydrogeologist at the time was employed by
            or working for R & V.             Because no
            engineering affidavit has been submitted,
            issues such as negligent supervision or
            negligent   hiring,   or  any   other   claim
            relating to the engineering firm's alleged
            breach of its professional standard of care,
            may not be pressed against R & V. Its
            potential liability shall be limited to
            responsibility   under   the   doctrines   of
            respondeat superior or agency.

            [Id. at 599 (emphasis added).]

See also Mortgage Grader, Inc. v. Ward & Olivo, L.L.P., ___ N.J.

Super.   ___,    ___   n.7   (App.   Div.   2014)   (slip   op.   at    15)



                                     39                           A-4139-13T3
(reaffirming        the   exception         from       Berlin     that   "an    AOM    may    be

unnecessary in some vicarious liability contexts.").

     By the same logic, an AOM from a like-licensed architect

would    not   be    necessary         to    support         a    plaintiff's    claim       for

damages   against         an    architect         or    an   architecture       firm     whose

employee or agent had acted negligently if the claim were solely

based upon a theory of vicarious liability or agency.                                 In that

instance, however, the plaintiff would need to obtain an AOM

from an expert with the same kind of professional license as the

negligent      employee        or   agent13   if       he    or    she   individually        was

acting    within     the       scope   of     a    profession         listed    within       the

categories set forth in N.J.S.A. 2A:53A-26.                          See, e.g., Shamrock

Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers,

L.L.P., 416 N.J. Super. 1 (App. Div. 2010) (requiring an AOM by

a licensed attorney in a legal malpractice case brought against

a law firm, in which the plaintiff had claimed that the law firm




13
   Since the issue is not raised in plaintiff's pleadings, we
need not delineate here in what circumstances an independent
contractor that is serving as a sub-consultant to a licensed
professional can trigger the professional's vicarious liability
under agency principles and, if so, whether and what sort of
AOM(s) would be needed to sustain such claims.      See Basil v.
Wolf, 193 N.J. 38, 62-64 (2007) (generally disfavoring such
liability founded upon agency or vicarious principles, but
recognizing an exception for instances where the principal has
exercised significant control over the sub-consultant).



                                              40                                      A-4139-13T3
was vicariously liable for the negligent conduct of an attorney

employed by the firm).

                                        III.

       Applying      these   concepts       to   the    present   case,       we   reach

several conclusions.           Most fundamentally, the trial court erred

in   finding    that    an     AOM   from    a   like-licensed       architect        was

unnecessary to support plaintiff's malpractice and professional

negligence claims against SOSH and Gallagher.

       As our discussion in Part II, supra, has shown, we agree

with   the    trial    court    that    there     is    manifestly      a    degree    of

functional     and      licensure      overlap         between    the       engineering

profession and the architecture profession, including the areas

of   design    and    construction      contract        administration        that    are

cited in the complaint and in Beach's affidavits and report.

Nonetheless, for the reasons that we have already explained,

that overlap does not permit Beach, who is an engineer but not

also an architect, to vouch for the merit of Cobra's malpractice

and professional negligence claims it has levied against these

two architect defendants.

       Nor is there a basis to conclude that SOSH and Gallagher's

actions and inactions here did not involve or implicate their

professional standards within the practice of architecture.                           The

only possible exception may be Cobra's claims of intentional




                                            41                                 A-4139-13T3
misrepresentation in Counts Eight and Nine of the complaint.                         We

remand for the trial court to assess whether they sufficiently

implicate the standards of care of an architect to require an

architect's AOM.         In doing so, the trial court shall consider

the   actual    substance     of     those      allegations       and   the   related

evidence as developed through pertinent discovery, rather than

simply accept the label used for them in Cobra's pleadings.

Couri, supra, 173 N.J. at 340-41.

      Plaintiff's complaint does not allege claims of vicarious

liability      or    agency,14     so    that     narrow      exception       is    not

applicable.         In   addition,      there    is   no   need    to   resolve     the

parties' dispute over whether Beach has sufficient "particular

expertise" in the design or construction contract administration

of school buildings under N.J.S.A. 2A:53A-27, since Beach fails

the   threshold      test   of   being     a    "like-licensed"         professional

architect.

      Despite the absence of an AOM here from a like-licensed

architect, we do not sustain the dismissal of Cobra's claims of

14
   Even if such claims had been pleaded, we recognize that a
licensed architect's professional obligations to serve in
"responsible charge" of certain work performed by engineers or
other professionals might come into play and trigger the need
for an architect's AOM.   See N.J.S.A. 45:4B-3(j) (defining the
concept of "responsible charge"); N.J.S.A. 45:4B-10 (addressing
circumstances where engineering systems are designed or built
under the "responsible charge" of either an architect or an
engineer).



                                          42                                  A-4139-13T3
malpractice and negligence against SOSH and Gallagher.                     Instead

we remand to allow Cobra a reasonable opportunity to procure a

suitable AOM from a qualified architect to substitute for the

AOMs that it improvidently secured from Beach.                    We provide that

opportunity      for   two   equitable    reasons.         For    one   thing,   our

precedential opinion today might not have been readily predicted

by counsel, given the unsettled nature of the "like-licensed"

issue.      See, e.g., Shamrock Lacrosse, supra, 416 N.J. Super. at

28-29 (similarly affording relief to a plaintiff where the law

had been murky about the need for an AOM).                       In addition, the

lack   of    a   Ferreira    conference       may   well   have   contributed     to

Cobra's failure to supply a substitute AOM in a timely fashion.

       We therefore vacate the trial court's order and remand for

further proceedings consistent with this opinion.                        The trial

court shall conduct a case management conference within thirty

days, at which time the court will fix a reasonable deadline for

Cobra to obtain the necessary substitute AOM and also will plan

the completion of any discovery that still needs to be done.

       Vacated and remanded.      We do not retain jurisdiction.




                                         43                                A-4139-13T3
