In Recent Sandy Dispute, Court Affirms Dismissal of Professional Liability Complaint after Plaintiffs Failed to Timely File Affidavit of Merit

In Kehoe v. B&B Coverage, Ltd., a recent New Jersey Superior Court case, the plaintiffs appealed from the dismissal of their professional liability complaint based on their failure to timely file the affidavit of merit (“AOM”), which plaintiffs are required to file in actions for damages based on professional malpractice under New Jersey law. Plaintiffs had previously retained defendant as a professional insurance broker. Approximately a year after two homes owned by the plaintiffs were allegedly damaged during Hurricane Sandy, plaintiffs filed a complaint against defendant alleging professional negligence and breach of contract. Specifically, plaintiffs claimed that defendant provided them with a “materially-deficient insurance policy” that did not provide sufficient coverage for damage sustained by the properties.

Defendant filed a motion to dismiss based on plaintiffs’ failure to file an AOM within the statutory 120-day period following the date of filing of the complaint. As such, the trial court dismissed the complaint with prejudice, and plaintiffs appealed, arguing that their late filing should be excused due to “extraordinary circumstances.” However, plaintiffs conceded that any extraordinary circumstances alleged occurred after the expiration of the statutory 120-day period. Accordingly, plaintiffs could not show that any extraordinary circumstances prevented them from filing the AOM within the required time period, and the appellate panel affirmed dismissal of the complaint.