In this interlocutory appeal, the court considers whether a licensed home inspector home inspector is a "learned professional" and therefore excluded from liability under Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210.
Considering the CFA's remedial purpose and applying well-established canons of statutory construction, the court concludes that the judicially created learned professional exception must be narrowly construed to exempt liability only as to those professionals who have historically been recognized as "learned" based on the requirement of extensive learning or erudition. To the extent this court's prior decisions, including Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned professional exception to "semi-professionals" who are regulated by a separate regulatory scheme, we are constrained to depart from that reasoning as inconsistent with the Supreme Court's decision in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the Court explicitly held in Lemelledo, the existence of a separate regulatory scheme will "overcome the presumption that the CFA applies to a covered activity" only when "a direct and unavoidable conflict exists between application of the CFA and application of the other regulatory scheme or schemes." 150 N.J. at 270. The court's decision today comports with the amicus curiae Attorney General's persuasive interpretation of the CFA and addresses the Attorney General's policy concern that an expansive interpretation of the learned professional exception unduly curtails the authority of the Attorney General and the Division of Consumer Affairs to protect New Jersey consumers and limits the redress available to private litigants.
Accordingly, because home inspectors are not historically recognized learned professionals and because no direct and unavoidable conflict exists between the CFA and the regulations governing home inspectors, the court concludes that the CFA applies to the activities of licensed home inspectors and reverses the trial court's summary judgment dismissal of the CFA claim against defendants.
Judge Sabatino filed a concurring opinion.
