E&O Coverage Law Alerts
New Jersey
By Hillary Fraenkel, Esq. (973.618.4113 or hafraenkel@mdwcg.com)
The Appellate Division held that Correctional Medical Services was not entitled to the protections of the affidavit of merit statute because it failed to confirm its licensure.
Jerald D. Albrecht, Plaintiff-Appellant, v. Correctional Medical Services, Defendant-Respondent, and Dr. George Achebe and Dr. Raymundo Tagle, Defendants; Docket No. A-0605-10T4; Superior Court of New Jersey, Appellate Division; 422 N.J. Super. 265; 27 A.3d 1260; 2011 N.J. Super. Lexis 179; Jun. 6, 2011, argued; Sep. 30, 2011, decided
The issue in this appeal is whether the Correctional Medical Services ("CMS") is an entity entitled to the protection of the Affidavit of Merit statute ("AOM statute"). The plaintiff filed AOM for the individual doctors but not for CMS, and CMS's motion to dismiss based upon the failure of the plaintiff to file an AOM was granted. CMS must demonstrate that it is a "licensed person" in order to invoke the protection of the statute. A "licensed person" is defined as, among other things, "any person who is licensed as . . . a health care facility as defined in section 2 of P.L. 1971, c. 136 (C. 26:2H-2)." N.J.S.A. 2A:53A-26(j). In other words, to be a "licensed person" for the AOM statute, one must do more than practice one of the enumerated professions-one must also hold a valid license as a practitioner of one of those professions. Otherwise, unlicensed persons would be protected by the AOM statute. The plain language of N.J.S.A. 2A:53A-26(j) clearly requires that a "health care facility" be licensed as such, even though the term "licensed health care facility" does not appear in the AOM statute. When CMS failed to produce a license and its licensure was called into question, the Appellate Court found that the judge should have inferred, for the purposes of the motion, that CMS was in fact not licensed, thereby denying the motion under the plain language of the AOM statute.
The second issue in this appeal is whether CMS is entitled to the protections of the AOM Statute as extended by Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1-3, (App. Div. 2010), which discusses entity protection and is inapplicable in this case because the plaintiff filed AOM for the individual doctors, and Nagim v. New Jersey Transit, 369 N.J. Super. 103, 109, 848 A.2d 61 (Law Div. 2003), which held that the AOM statute protected a firm comprised of licensed persons even though it did not qualify as a licensed person itself. Here, though CMS claims that it is "an entity comprised of licensed professionals," it did not provide any evidential support for that claim. As a result, CMS failed to establish that it was entitled to the limited protections available to professional corporations. Summary judgment was improvidently granted to it on this ground. The matter was reversed and remanded for reinstatement of the plaintiff's complaint.
Pennsylvania
By Aaron E. Moore, Esq. (215.575.2899 or aemoore@mdwcg.com)
A Philadelphia County Court of Common Pleas trial court has held that damages for legal malpractice claims sounding in breach of contract are limited to the legal fees the plaintiff paid to his attorney.
Coleman v. Duane Morris, LLP, 2011 Phila. Ct. Com. Pl. LEXIS 309 (Pa. C.P. 2011)
Typically, the measure of damages for breach of contract claims includes consequential damages to the extent such damages were reasonably foreseeable and contemplated by the parties at the time the contract was entered into. The trial court in this matter, however, has concluded that such damages are limited to the legal fees paid by the plaintiff to his attorney and disallowed the recovery of consequential damages. This case has been appealed to the Superior Court of Pennsylvania.
