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Zarwin Baum Attorneys Obtain Dismissal of Insurance Producer Malpractice Claim

July 25, 2018

Zarwin Baum attorneys Lisa Z. Slotkin and Eitan D. Blanc successfully obtained the dismissal of an insurance producer malpractice claim in the Superior Court of New Jersey, Law Division, Somerset County. The dismissal was obtained through the filing of a motion to dismiss Plaintiffs’ complaint for failure to serve an affidavit of merit. The dismissed complaint was filed against Slotkin and Blanc’s clients, an insurance producer firm and its agent, by a business and business owner who contended they suffered damage in Hurricane Sandy. Plaintiffs alleged the defendants failed to procure sufficient insurance coverage which was as comprehensive as provided by their prior insurance policy. Plaintiffs alleged that, as a result, their losses from Hurricane Sandy were not completely covered by insurance. Slotkin and Blanc argued to the court that the complaint should be dismissed because Plaintiffs did not file an affidavit of merit, as required by statute. The Plaintiffs argued an affidavit of merit was not required due to the “common knowledge” exception to the statutory requirement. Slotkin and Blanc successfully defeated Plaintiffs’ arguments before both the trial court and appellate division, resulting in the dismissal of the Plaintiffs’ claims. 
Cases involving affidavits of merit continue to be addressed by the Appellate Courts, and should be analyzed and handled pursuant to the facts of each case.  Recently, the New Jersey Supreme Court, in A.T. v. Cohen, 2017 N.J. LEXIS 1383 (N.J. 2017) ordered the court system to become proactive in notifying litigants of their affidavit of merit requirements and scheduling  Ferreira conferences through the electronic case management system.  In A.T., no Ferreira conference was held, and three days after expiration of the statutory affidavit of merit period, a motion for summary judgment was filed for lack of an affidavit of merit.  An affidavit of merit was then filed by the plaintiff. The Court noted that the plaintiff’s initial counsel had become confused by timelines.  The Supreme Court held that extraordinary circumstances existed which required equitable relief to plaintiff in the form of permitting plaintiff’s claims to proceed.  However, the Court reiterated that reliance on the scheduling of a Ferreira conference to avoid the strictures of the affidavit of merit statute is “entirely unwarranted and will not serve to toll the statutory timeframes.”  The Court put all counsel on notice that disregarding the scheduling of the Ferreira conference, or waiving the conference, will not provide a basis for relief from affidavit of merit obligations. 

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