MARYLAND CASUALTY COMPANY v. JOHNSON SERVICES, LLC. et al, No. 1:2012cv03613 - Document 79 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 11/12/2014. (drw)
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MARYLAND CASUALTY COMPANY v. JOHNSON SERVICES, LLC. et al Doc. 79 1 U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF N EW JERSEY ___________________________ Maryland Casualty Com pany, : Plaintiff, : : J ohnson Services, LLC, et al, Civil Action No. 12-0 3613 : v. Hon. J oseph H. Rodriguez OPIN ION Defendants. : ______________________________ J ohnson Specialized Transportation, Inc., et al, : : Third Party Plaintiff s, : v. : Brian Piccolo, et al, : Third Party Defendants. : ______________________________ This m atter com es before the Court on Third Party Defendants’ m otion for judgm ent on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the m otion will be denied. I. Backgro u n d The following facts are taken from the Plaintiff’s Com plaint, and, as such, the Court accepts them as true for the purposes of this Motion. On or about 20 0 6-20 0 7, Third Party Defendant Brian J . Piccolo an d his insurance com pany, Third Party Defendant Insurance Coverage Specialists, LLC, began writing policies for Third Party Plaintiffs, J ohnson Specialized Transportation, Inc. and J ohnson Services, LLC. (Com pl. 1 Dockets.Justia.com 2 ¶ 5.) In or about 20 0 9, the State of New J ersey requested proof from Third Party Plaintiffs of Workm an’s Com pensation Insurance. (Com pl. ¶ 7.) Accordingly, Third Party Defendants provided such proof to the State of New J ersey that there was coverage. (Com pl. ¶ 8 .) The docum ents produced by Third Party Defendants were “part of the ongoing responsibility to procure and place insurance” for Third Party Plaintiffs “in accordance with the agreem ent between the parties.” (Com pl. ¶ 9.) On or about J anuary 31, 20 12, Ford Marshall was injured at the prem ises of Third Party Plaintiff’s J ohnson’s Services an d J ohnson Specialized Transportation, Inc. (Com pl. ¶ 6.) Third Party Plaintiffs’ counsel filed the Third Party Com plaint against Third Party Defendants on October 7, 20 13. (Dkt. No. 39.) In Count One of the Third Party Com plaint, Third Party Plaintiffs claim that Third Party Defen dants were negligent in obtaining the coverage, and/ or failed to m aintain the proper coverage, and/ or failed to notify Third Party Plaintiffs that the coverage had been term in ated or did not exist. (Com pl. ¶ 11.) Third Party Plaintiffs further claim that Third Party Defendants were negligent in that they failed to provide insurance that properly covered all em ployees of Third Party Plaintiffs, thus exposing them to liability. (Com pl. ¶ 13.) As a result, Third Party Plaintiffs were left without insurance and with a substantial claim pending for injuries sustain ed by em ployee Ford Marshall. (Com pl. ¶ 14.) Count Two of the Third Party Com plaint claim s that Third Party Plaintiffs have suffered dam ages as a result of m isrepresentation, om ission of fact, and affirm ative m isrepresentation, and dem ands a J udgm ent against Third Party Defendants accordingly. (Com pl. ¶ 19.) Third Party Defen dants’ counsel then filed their Answer on Novem ber 20 , 20 13. (Dkt. No. 42.) After the Answer was filed, Third Party Plaintiffs had, at m ost, 120 days, or until March 20 , 20 14, to provide the requisite Affidavit of Merit. Third Party Plaintiffs 2 3 failed to file the Affidavit of Merit by March 20 , 20 14. During a March 28, 20 14 telephonic case m anagem ent conferen ce with Magistrate J udge Ann Marie Donio, counsel for Third Party Defendants indicated that they would be filing a m otion to dism iss the Third Party Com plaint for failure to produce the required Affidavit of Merit during the allotted period of tim e. (Def. Br. Mot. Dism iss, Certification of Counsel ¶ 5.) However, Third Party Defendants’ counsel filed an Affidavit of Merit for Carl Thom as on April 15, 20 14, twenty-six days past the last possible due date. (Dkt. No. 50 .) II. Stan d ard Federal Rule of Civil Procedure 12(c) governs a m otion for judgm ent on the pleadings. Fed. R. Civ. P. 12(c). Under Rule 12(c), judgm ent is proper when the m ovant clearly shows “that no m aterial issue of fact rem ains to be resolved and that he is entitled to judgm ent as a m atter of law.” Rosenau v. Uniford Corp., 539 F.3d 218, 221 (3d Cir. 20 0 8) (citing J ablonski v. Pan Am . World Airways, Inc., 8 63 F.2d 289, 290 -91 (3d Cir. 1988)). When a m otion under Rule 12(c) is based on a plaintiff’s failure to state a claim upon which relief can be granted, it is reviewed under the sam e standard as a 12(b)(6) m otion to dism iss. Turbe v. Governm ent of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). In order to survive a m otion to dism iss, a com plaint m ust allege facts that raise a right to relief above the speculative level. Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 555 (20 0 7); see also Fed. R. Civ. P. 8 (a)(2). While a court m ust accept as true all allegations in the plaintiff's com plaint, and view them in the light m ost favorable to the plaintiff, a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Phillips v. County of 3 4 Allegheny, 515 F.3d 224, 231 (3d Cir. 20 0 8); Morse v. Lower Merion Sch. Dist., 132 F.3d 90 2, 90 6 (3d Cir. 1997). The com plaint m ust state sufficient facts to show that the legal allegations are not sim ply possible, but plausible. Phillips, 515 F.3d at 234. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reason able inferen ce that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). III. D is cu s s io n Third Party Defendants argue that the failure of Third Party Plaintiffs to provide the requisite Affidavit of Merit within the tim e allotted is tantam ount to the failure to state a cause of action, subjecting the com plaint to dism issal with prejudice. (Def. Br. Mot. Dism iss 1.) Third Party Plaintiffs adm it that an Affidavit of Merit was not tim ely filed but contend that an Affidavit is not needed because the claim s here fall within the com m on knowledge exception to the statute. The Court agrees. In New J ersey 1, an Affidavit of Merit is required by statute for “any action” involving professional m alpractice claim s against “licensed persons.” See N.J .S.A. 2A:53A-27. That statute provides in relevant part: In any action for dam ages for personal injuries, wrongful death or property dam age resulting from an alleged act of m alpractice 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 com plaint 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 1 Federal courts sitting in diversity must apply New Jersey's Affidavit of Merit Statute. Fink v. Ritner, 318 F.Supp.2d 225, 228 (D.N.J. 2004) (citing Chamberlain v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000)). 4 5 exhibited in the treatm ent, practice or work that is the subject of the com plaint, fell outside acceptable professional or occupational standards or treatm ent practices. The court may grant no m ore than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. N.J .S.A. 2A:53A-27 (20 0 4). According to N.J .S.A. 2A:53A-29, “[i]f the plaintiff fails to provide an affidavit or a statem ent in lieu thereof… it shall be deem ed a failure to state a cause of action.” N.J .S.A. 2A:53A-29 (1995). Under the statute, an “insurance producer” constitutes a licensed person. N.J .S.A. 2A:53A-26(o) (20 10 ). To determ ine whether the statute applies to a particular cause of the action, the Court considers the following: (1) whether the action is for “dam ages for personal injuries, wrongful death or property dam age” (nature of injury); (2) whether the action is for “m alpractice or negligence” (cause of action); and (3) whether the “care, skill or knowledge exercised or exhibited in the treatm ent, practice or work that is the subject of the com plaint [ ] fell outside acceptable profession al or occupational standards or treatm ent practices” (standard of care). Couri v. Gardner, 173 N.J . 328, 334 (20 0 2) (quoting N.J .S.A. 2A:53A-27). Subject to certain exceptions, “failure to provide an affidavit results in dism issal of the com plaint.” N.J .S.A. 2A:53A-29 (1995). Additionally, such dism issal is with prejudice subject to certain exceptions. Cornblatt v. Barow, 153 N.J . 218, 242 (1998). One such exception to the statute was recognized by the New J ersey Suprem e Court for “com m on knowledge” cases; cases where a party’s negligence is so apparent that expert testim ony is not needed at trial. Hubbard ex rel. Hubbard v. Reed, 168 N.J . 397, 392 (20 0 1). The com m on knowledge exception is n arrowly construed and applies where jurors’ com m on knowledge as lay persons is sufficient to enable them , “using ordinary understanding and experience,” to determ ine a defen dant's negligence without 5 6 the benefit of the specialized knowledge of experts. Id. at 395 (quoting Estate of Chin v. Saint Barn abas Med. Ctr., 734 A.2d 778, 785 (N.J . 1999)). Therefore, a plaintiff who asserts a com m on knowledge m alpractice claim is not required to proffer expert testim ony to establish the standard of care of a professional. While the statute only addresses actions for m alpractice or negligence, the Suprem e Court of New J ersey provides in Couri, that “[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry.” Couri, 173 N.J . at 340 . “Accordingly, when presented with a tort or contract claim asserted against a professional specified in the statute... courts should determ ine if the claim 's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession. If such proof is required, an affidavit of m erit is required[.]” Id. The Court finds that Third Party Plaintiff’s negligence and m isrepresentation claim s do not involve any special care, skill or knowledge that is reserved to a licen sed professional. Count One of the Third Party Com plaint claim s that Third Party Defendants “were negligent in that they failed to place insuran ce that properly covered all em ployees of [Third Party Plaintiffs] exposing [them ] to liability.” (Com pl. ¶ 13.) Count Two of the Third Party Com plaint claim s that, “[a]s a direct and proxim ate result of the m isrepresentation of Third Party Defendants,” Third Party Plaintiffs suffered dam ages. (Com pl. ¶ 19.) The Third Party Com plaint is predicated upon the fact that Third Party Defendants produced partial insurance docum ents to Third Party Plaintiffs which m isinform ed Third Party Plaintiffs about the status of their insurance, that Third Party 6 7 Plaintiffs relied on those docum ents, and that this reliance was detrim ental. (Com pl. ¶ 16, 17, 18 ). By providing only partial insurance docum ent, Third Party Plaintiffs were unable to assess the status and/ or scope of coverage. Such allegations do not require proof of a deviation from the professional standard of care applicable to an insurance producer. For the reasons stated above, Third Party Defendants Motion to Dism iss with prejudice pursuant to Federal Rule of Civil Procedure 12(c) is denied. An appropriate order shall issue. Dated: Novem ber 12, 20 14 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 7
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