07-3-1264 LC Constr. Co. LLC v. Greenwich Twp., Law Div. (Gloucester Cnty.) (Geiger, J.S.C.) (7 pp.) In this complex business litigation involving the alleged improper design and construction of a public improvement project, defendant/third-party plaintiff Greenwich Township filed a motion for leave to amend its counterclaim and third-party complaint to assert a design defect claim against third-party defendant/counterclaimant Remington & Vernick Engineers Inc. The court rejected Remington’s contention that the amendment would be futile because it would be barred by the applicable six-year statute of limitations and could not relate back to the township’s original pleading, declining to conduct the fact-sensitive, detailed analysis required to determine whether the amendment would relate back under Rule 4:9-3 or be barred by the applicable statute of limitations. Instead, it preserved the issue and said that Remington could raise it subsequently by way of a motion to dismiss pursuant to Rule 4:6-2(e) or a motion for summary judgment. The court also rejected Remington’s contentions that the amendment would add an entirely new claim based on alleged design deficiencies that had not previously been asserted and that allowing the amendment would prejudice the parties. The court found that the new claim was not a surprise to Remington or LC; the need for any additional discovery could be addressed through reopening and extending discovery for a sufficient time period for obtaining additional expert reports, conducting expert depositions and any other necessary additional discovery; and that a further discovery extension was contemplated by the last case management order. Noting that amendments were to be liberally granted in the interest of justice, the court granted Greenwich’s motion. [Filed Sept. 1, 2016]
11-2-1243 Jacowitz v. Lozito, N.J. Super. App. Div. (per curiam) (20 pp.) Defendant, a chiropractor, entered into an oral agreement with plaintiff, a cardiologist, under which plaintiff conducted studies of imaging scans, mostly echocardiograms and carotid artery ultrasounds, for defendants’ out-of-network patients. Compensation was to be determined at a later date. After disputes regarding plaintiff’s compensation for past services remained unresolved, plaintiff filed suit asserting claims for breach of contract, fraud, tortious interference, violation of the covenant of good faith and fair dealing, and for an accounting. Defendant appealed the judgment of $73,298 plus interest and costs, entered in favor of plaintiff. The panel affirmed, substantially for the reasons expressed below. It added that there was no error in the trial judge’s finding that there was an outward manifestation of intent through words and conduct to pay plaintiff for services performed, despite not specifying the compensation rate. The panel also said that the trial court did not abuse its discretion by finding that, as the finder of fact, it did not need the assistance of an expert to determine the compensation structure between the parties or in considering plaintiff’s testimony on the issue of damages as plaintiff did not offer expert testimony but rather, testimony based on his knowledge as a cardiologist of Medicare and insurance carrier’s reimbursement rates regarding the usual and customary value of echocardiograms and carotid ultrasounds in his geographic area. Finally, the panel said the trial court’s determination of damages was reasonable and fair given defendants’ failure to properly bill for plaintiff’s services.
