James G. Lowe, M.D. v. Bernard Audet

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4093-23

JAMES G. LOWE, M.D.,

Plaintiff-Appellant,

v.

BERNARD AUDET,

RICHARD LAVER, and

THE CREATIVE FINANCIAL

GROUP, LTD.,

Defendants-Respondents.

___________________________

Argued February 4, 2025 – Decided June 24, 2025

Before Judges Gooden Brown and Vanek.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Camden County,

Docket No. L-0633-24.

Stephen J. DeFeo argued the cause for appellant

(Brown & Connery, LLP, attorneys; Stephen J. DeFeo,

Kathleen E. Dohn, and Taylor L. Johnson, on the

briefs).

Jared K. Levy argued the cause for respondent Richard

Laver (Wood, Smith, Henning & Berman, LLP,

attorneys; Jared K. Levy, on the brief).

Barry R. Temkin argued the cause for respondents

Bernard Audet and The Creative Financial Group, Ltd.

(Mound Cotton Wollan & Greengrass LLP, attorneys;

Katharine Anne Lechleitner, Barry R. Temkin, and

Kate E. DiGeronimo, on the brief).

Robert H. Solomon argued the cause for amicus curiae

New Jersey Association for Justice (Nagel Rice, LLP,

attorneys; Bruce H. Nagel, on the brief).

PER CURIAM

By leave granted, plaintiff James G. Lowe, M.D., appeals from Law

Division orders entered on July 19, 2024, granting motions to dismiss his claims

under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, against

defendant insurance brokers Richard Laver and Bernard Audet and defendant

The Creative Financial Group, Ltd. (CFG) (collectively defendants). We

granted the New Jersey Association for Justice's (NJAJ) application to

participate as amicus in support of plaintiff's position. Having considered the

record and the governing principles, we affirm the dismissal of plaintiff's CFA

claims.

A-4093-23

2

I.

We glean these facts from plaintiff's complaint, accepting as true the facts

alleged therein. Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255,

263 (1997). Through defendants, plaintiff, a neurosurgeon, procured four

MetLife insurance policies: (1) an individual disability income (IDI) policy

providing a $10,000 monthly benefit until age sixty-five, effective December 1,

2003; (2) another IDI policy providing a $10,000 monthly benefit until age

sixty-seven, effective June 1, 2016; (3) a business overhead expense (BOE)

policy with a $30,000 monthly benefit and a twenty-four-month maximum

benefit period, effective February 17, 2009; and (4) another BOE policy with a

$20,000 monthly benefit and a twelve-month maximum benefit period, also

effective February 17, 2009.

The IDI policies covered plaintiff individually, while the BOE policies

covered his surgical practice, Lowe Greenwood Zerbo Spinal Associates, P.A.

(LGZ), of which he was a fifty-percent co-owner. Plaintiff alleged all four

policies "contain[ed] a waiver of premiums benefit, which states 'we will waive

any premium that becomes due while you remain disabled' and 'your policy and

its benefits will continue as if the premium had been paid.'"1

1

The insurance policies are not part of the record.

A-4093-23

3

In purchasing the policies, plaintiff alleged that he relied on his two-

decades-long "special relationship" with defendants. Plaintiff's business

relationship with CFG commenced in 2002. Audet and Laver, described as "a

disability insurance expert," worked at CFG as insurance brokers, producers,

and agents. Over the years, defendants marketed, sold, and procured insurance

and financial products for plaintiff and his practice, including the four policies

at issue in this case.

Specifically, plaintiff alleged that from 2003 to 2021, he met with Audet

"at least [fifty-one] times" and provided him and Laver with "comprehensive

information" regarding plaintiff's individual and business needs. In particular,

plaintiff discussed his "need for insurance coverage" to cover "LGZ business

expenses" and "to replace his income in the event he suffered a disability that

prevented him from performing neurosurgery." In response, Audet represented

that plaintiff would receive "maximum benefits for the maximum policy

periods[] and premium payments would be waived" under the policies

"regardless of any other factors." Plaintiff alleged that although Audet was

aware of plaintiff's "medical-legal consulting business, which dated back to

2011," at "no time did Audet explain to [plaintiff] that MetLife would consider

A-4093-23

4

income or expenses from any business interest unrelated to LGZ in reviewing a

claim for benefits."

In addition, prior to procuring the IDI policies, Audet allegedly reviewed

plaintiff's "existing disability policy, which was an 'own occupation' policy that

provided coverage if [plaintiff] became injured and was unable to perform

neurosurgery but would allow him to earn income in other vocations while still

receiving disability benefits." After reviewing the policy, Audet advised

plaintiff that the 2003 MetLife IDI policy "'compared favorably' to [plaintiff's]

existing own occupation disability policy."

Plaintiff subsequently developed bilateral maculopathy, a progressive

condition affecting the retina. As a result, plaintiff was unable to perform

surgery and did not operate after September 14, 2021. He was also forced to

"divest his ownership interests in and involvement with LGZ." On November

6, 2021, plaintiff had a teleconference with Laver. This was the "first time" he

"dealt directly with Laver." During the conversation, Laver allegedly informed

plaintiff that "Audet's statements about the coverage provided under the IDI

[p]olicies were false," and that plaintiff "would probably only be covered under

the residual disability benefit provision of the IDI [p]olicies."

A-4093-23

5

In December of 2021, plaintiff filed claims with MetLife under all four

policies. MetLife denied the claims under the BOE policies and only paid partial

benefits under the IDI policies, "claiming benefits are only payable . . . pursuant

to the residual disability provision." Although "MetLife has acknowledged that

[plaintiff] is permanently unable to perform neurosurgery," it claims plaintiff's

"medical-legal consulting business prevents him from being considered totally

disabled under the terms of the IDI . . . and BOE [p]olicies" because "its

definition of [plaintiff's] 'regular occupation' includes revenues and expenses

from his medical-legal consulting business."

Plaintiff alleged that "[t]he first time anyone raised [his] medical-legal

consulting business . . . and related income or expenses as a potential bar to

receiving maximum benefits" under the policies was during his conversation

with Laver "after he suffered his disability and made claims for benefits from

MetLife." Plaintiff continued to talk with Audet and Laver about "advocat[ing]

on his behalf to support his claims for benefits." However, after MetLife denied

his claims for "maximum benefits," Audet and Laver became "less responsive"

and "ceased all communication by the summer of 2023."

On February 27, 2024, plaintiff filed a nine-count complaint seeking

damages and asserting, among other things, that defendants committed fraud and

A-4093-23

6

professional negligence, breached their fiduciary duties, and violated the CFA.

Contemporaneously, pursuant to N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-

26(o), plaintiff filed an affidavit of merit prepared by a licensed New Jersey

insurance producer averring that based on his review of the complaint,

defendants' conduct "deviated from the acceptable professional standards . . . of

the insurance industry."

Defendants moved to dismiss certain counts in the complaint, including

the CFA count (count seven), for failure to state a claim pursuant to Rule

4:6‑2(e). Defendants argued that our decision in Plemmons v. Blue Chip

Insurance Services, Inc., 387 N.J. Super. 551, 556 (App. Div. 2006), which held

that insurance brokers enjoyed "learned professional" immunity and were

therefore exempt from CFA liability as "semi-professionals," was still good law.

Plaintiff countered that our subsequent holding in Shaw v. Shand, 460 N.J.

Super. 592 (App. Div. 2019), as well as the Attorney General's interpretation of

the CFA noted in that opinion, overruled Plemmons. Shaw excluded from the

"learned professional" exemption licensed semi-professionals like the home

inspectors involved in that case, reserving that exemption only for "those

professionals who have historically been recognized as 'learned' based on the

requirement of extensive learning or erudition." 460 N.J. Super. at 599.

A-4093-23

7

Following oral argument, the judge granted defendants' motions,

dismissing the CFA count with prejudice. In an oral opinion, the judge posited

that "the real question [was] whether [d]efendants as insurance brokers [were]

exempt from liability under the [CFA]." The judge determined he was bound

by Plemmons, explaining:

In [Plemmons], the Appellate Division

specifically concluded that insurance brokers, w[hom]

they described as semi-professionals regulated by [a]

separate statutory scheme[,] were not subject to claims

under the [CFA]. Plaintiff relies upon the Appellate

Division decision in [Shaw], which backed off the

Plemmons decision in dealing with home inspectors,

noting . . . [they were] not historically recognized as

learned professionals.

The Shaw [c]ourt concluded that a different test

would apply than that considered by the Plemmons

[c]ourt . . . .

The [Shaw c]ourt concluded home inspectors and

other licensed semi-professionals are not learned

professionals merely because they're regulated, but

rather they're only exempt from [CFA] claims when

there is a finding . . . [of] a direct and unavoidable

conflict between the regulatory scheme and the [CFA].

The [c]ourt in Shaw never reversed, nor could it

reverse[,] the decision in Plemmons that insurance

brokers were semi-professionals subject to testing,

licensing, and regulation under the statutory provisions

and excluded from liability under the [CFA] for

performance of brokered services.

A-4093-23

8

The concurring opinion in Shaw of Judge

Sabatino, who was also on the Plemmons panel, notes

that he changes his mind on the approach to the

analysis, but he does not go as far as to indicate that

with respect to the exemption of insurance brokers . . .

Plemmons was wrong. And specifically, Judge

Sabatino notes that their licensure requirements and

associated fiduciary duties are more stringent than

those governing home inspectors. . . .

[This court] therefore is at least arguably faced

with two competing Appellate Division decisions

which [it] finds are . . . not necessarily inconsistent on

this issue[. B]ut I find that given these factors that I've

discussed, . . . [I am] bound to follow . . . Plemmons

....

The judge entered memorializing orders on July 19, 2024, and this appeal

followed.

On appeal, plaintiff reprises the arguments rejected by the judge, arguing

that consistent with Shaw, "the 'learned professional' exemption does not extend

to insurance producers[] like [d]efendants." NJAJ supports plaintiff's position,

urging us to reverse the dismissal of the CFA count. On the other hand, Audet

and CFG urge us to uphold the judge's decision under either the standard

articulated in Plemmons or Shaw, and Laver argues plaintiff's reliance on Shaw

is misplaced because "nowhere in the Shaw decision does the [c]ourt specifically

opine upon the applicability of the CFA to insurance producers."

A-4093-23

9

II.

"Because this interlocutory appeal arises from the Law Division's

dismissal of plaintiff's CFA claim for failure to state a claim upon which relief

can be granted, we review the legal issues at stake on the assumption that the

facts, as alleged by plaintiff, are true." Lemelledo, 150 N.J. at 263. We

"review[] de novo the trial court's determination of the motion to dismiss under

Rule 4:6-2(e)" and "owe[] no deference to the trial court's legal conclusions."

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C.,

237 N.J. 91, 108 (2019).

"The CFA was enacted to 'provide[ ] relief to consumers from "fraudulent

practices in the market[place]."'" Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50

(2017) (first alteration in original) (quoting Lee v. Carter-Reed Co., L.L.C., 203

N.J. 496, 521 (2010)).

The CFA vests the Attorney General with

jurisdiction to enforce its provisions through a variety

of mechanisms, N.J.S.A. 56:8-3 to -8, -11, -15 to -18,

‑20, but it also provides individual consumers with a

cause of action to recover refunds, N.J.S.A. 56:8-2.11

to -2.12, and treble damages for violations, whether in

good faith or otherwise, N.J.S.A. 56:8-19. The

Attorney General enforces the CFA through the

Division of Consumer Affairs. N.J.A.C. 13:45-1.1 to

‑5.6.

[Lemelledo, 150 N.J. at 264 (citation reformatted).]

A-4093-23

10

The CFA is "applied broadly in order to accomplish its remedial purpose,

namely, to root out consumer fraud." Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 121 (2014) (quoting Gonzalez v. Wilshire Credit Corp., 207 N.J. 557,

576 (2011)). To that end, the CFA prohibits

[t]he act, use or employment by any person of any

unconscionable commercial practice, deception, fraud,

false pretense, false promise, misrepresentation, or the

knowing[] concealment, suppression, or omission of

any material fact with intent that others rely upon such

concealment, suppression or omission, in connection

with the sale or advertisement of any merchandise or

real estate, or with the subsequent performance of such

person as aforesaid, whether or not any person has in

fact been misled, deceived or damaged thereby.

[N.J.S.A. 56:8-2 (1976) (emphasis added).]

The CFA defines the term "merchandise" to include "objects, wares,

goods, commodities, services or anything offered, directly or indirectly to the

public for sale." N.J.S.A. 56:8-1(c) (emphasis added). In turn, "services" has

been broadly construed "to cover a wide variety of practices." Lemelledo, 150

N.J. at 264; see, e.g., Shaw, 460 N.J. Super. at 607 ("The services of a home

inspector fall squarely within the [CFA's] definition of merchandise . . . .");

Quigley v. Esquire Deposition Servs., LLC, 400 N.J. Super. 494, 505 (App. Div.

2008) (holding the same for reporting services and deposition transcript sales).

A-4093-23

11

Still, "the CFA's reach is not unbounded," and "[c]ourts have 'recognized

a need to place reasonable limits upon the operation of the [CFA] "despite broad

statutory language, so that its enforcement properly reflects legislative intent,

however ascertained."'" Lee v. First Union Nat'l Bank, 199 N.J. 251, 262-63

(2009) (second alteration in original) (quoting DiBernardo v. Mosley, 206 N.J.

Super. 371, 375 (App. Div. 1986)). One such limitation is the "learned

professionals exception," "a judicially crafted rule, whereby certain transactions

fall outside the CFA's purview because they involve services provided by

learned professionals in their professional capacity." Id. at 263; see, e.g.,

Macedo v. Dello Russo, 178 N.J. 340, 346 (2004) (recognizing physicians'

services as insulated from the CFA); Vort v. Hollander, 257 N.J. Super. 56, 62

(App. Div. 1992) (holding the same for attorneys' services).

Our Supreme Court formally recognized the exception in Macedo,

explaining:

Certainly no one would argue that a member of

any of the learned professions is subject to the

provisions of the [CFA] despite the fact that he [or she]

renders "services" to the public. And although the

literal language may be construed to include

professional services, it would be ludicrous to construe

the legislation with that broad a sweep in view of the

fact that the nature of the services does not fall into the

category of consumerism.

A-4093-23

12

[178 N.J. at 344 (quoting Neveroski v. Blair, 141 N.J.

Super. 365, 379 (App. Div. 1976)).]

In Lee, the Court expounded that "[t]he rationale underlying the learned

professionals exception is that uniform regulation of an occupation, where such

regulation exists, could conflict with regulation under the CFA." 199 N.J. at

264.

The Macedo Court pointed out that the Legislature had never amended the

CFA to expressly include professionals and abrogate the judicial exemption,

despite earlier case law articulating the exception. 178 N.J. at 345-46.

In fact, the only major substantive change concerning

the scope of the CFA came in 1976, when the Act was

amended to include the sale of real estate in the

definition of "merchandise."

Contemporaneous with that amendment, the first

judicial opinion addressing the applicability of the CFA

to professionals was rendered, coincidently relating to

the sale of real estate. In [Neveroski], the Appellate

Division was faced with the question of whether a real

estate broker who deliberately concealed the termite

infestation of a home from potential buyers was subject

to CFA liability. In ruling that it was not, the court

relied on two basic premises. The first was that the

CFA had been amended after the acts complained of

specifically to include the sale of real estate, thus

indicating that the prior version did not encompass that

subject. Second, the court stated:

A real estate broker is in a far different

category from the purveyors of products or

A-4093-23

13

services or other activities. He is in a semi-

professional status subject to testing,

licensing, regulations, and penalties

through other legislative provisions. See

N.J.S.A. 45:15-1[ to -42]. Although not on

the same plane as other professionals such

as lawyers, physicians, dentists,

accountants or engineers, the nature of his

activity is recognized as something beyond

the ordinary commercial seller of goods or

services—an activity beyond the pale of

the act under consideration.

[Macedo, 178 N.J. at 344 (emphasis added) (quoting

Neveroski, 141 N.J. Super. at 379).]

The Macedo Court also determined that Lemelledo did not suggest a

contrary conclusion regarding the applicability of the CFA to learned

professionals. The Court explained:

[In Lemelledo,] in addressing loan-packing, we held

that the mere existence of an alternative regulatory

scheme by the Department of Banking and Insurance[]

did not automatically eliminate the applicability of the

CFA. Instead, we held that a direct conflict between

the schemes would be required in order to conclude that

the Legislature did not intend the CFA to apply.

Lemelledo, 150 N.J. at 270. Lemelledo would be

dispositive here if the issue presented was whether the

separate regulatory scheme governing physicians

preempts the application of the CFA. It is entirely

irrelevant to the threshold question of whether the CFA

applies to learned professionals in the first instance.

[Macedo, 178 N.J. at 345 (citation reformatted).]

A-4093-23

14

Here, the threshold question is whether insurance brokers fit under the

learned professionals exception to the CFA, categorically exempting them from

liability "in the first instance." Ibid. In Plemmons, a panel of this court

answered that question in the affirmative and concluded that "an insurance

broker is a semi-professional, who is subject to testing, licensing and regulation

under other statutory provisions, and therefore is excluded from liability under

the CFA for the performance of brokerage services." 387 N.J. Super. at 556.

The Plemmons panel rejected the plaintiff's argument that Lemelledo

controlled the case and dictated a contrary outcome as Lemelledo "did not

involve a CFA claim against an insurance broker or other party who could be

characterized as a professional or semi-professional," and Lemelledo "did not

address the legislative intent . . . to exclude licensed professionals from the

provisions of the CFA" recognized in Macedo and Neveroski. Plemmons, 387

N.J. Super. at 563-64 (internal quotation marks omitted) (citing Lemelledo, 150

N.J. at 265-74).

The Plemmons panel underscored that Lemelledo "had no effect upon

th[e] long-standing exclusion" and concluded that

regardless of whether there is an irreconcilable conflict

between the CFA and the statutory provisions under

which professionals are regulated, members of "learned

professions," including those who occupy a "semi-

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15

professional status," engage in "an activity beyond the

pale of the [CFA]." Macedo, 178 N.J. at 344 (quoting

Neveroski, 141 N.J. Super. at 379).

Furthermore, we are satisfied that insurance

brokers are "semi-professional[s]" who are excluded

from liability under the CFA for the services they

render within the scope of their professional licenses.

Under the Insurance Producer Licensing Act, N.J.S.A.

17:22A-26 to -48, a person "shall not sell, solicit or

negotiate insurance in this State unless the person is

licensed for that line of authority," N.J.S.A. 17:22A-29.

A person obtains a license to "sell, solicit or negotiate

insurance" by passing a written examination, N.J.S.A.

17:22A-31, and meeting the application requirements

set forth in N.J.S.A. 17:22A-32. In addition, insurance

brokers must comply with the Insurance Producer

Standards of Conduct promulgated by the Department

of Banking and Insurance. N.J.A.C. 11:17A-1.1 to

17D-2.8. These standards proscribe various "unfair

trade practices," N.J.A.C. 11:17A-2.1 to -2.11,

delineate an insurance producer's fiduciary duties to

insureds, see N.J.A.C. 11:17A-4.1, -4.3, -4.5, -4.10, set

forth requirements regarding commissions, N.J.A.C.

11:17B-2.1, fees, N.J.A.C. 11:17B-3.1 to -3.3, and

management of funds, N.J.A.C. 11:17C-1.1 to -2.6, and

provide penalties for violations, N.J.A.C. 11:17D-1.1 to

-2.8. Therefore, insurance brokers are subject to

testing, licensing and regulation comparable to real

estate brokers, and thus are exempt from liability under

the CFA for the reasons expressed by this court in

Neveroski and reaffirmed by the Supreme Court in

Macedo.

[Plemmons, 387 N.J. Super. at 564-65 (alterations in

original) (citations reformatted).]

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16

Thirteen years later, in Shaw, another panel of this court disagreed that

Macedo "extend[ed] the [learned professional] exception to semi-professionals

or licensed professionals." 460 N.J. Super. at 615 n.13. The Shaw panel wrote:

The narrow issue before us is whether semi-

professionals such as home inspectors should be

deemed to be learned professionals. Because this case

necessarily required us to interpret the scope of the

"learned professional" exception to the CFA, which is

a statute that is enforced by the Attorney General's

office, and also because home inspectors are regulated

by the Attorney General's Division of Consumer

Affairs, we invited that office to participate as amicus

curiae. We issued that invitation in order to discern

both on a narrow basis the agency's view whether home

inspectors should be deemed "learned professionals,"

and on a broader basis how and when the "learned

professional" exception should be applied by courts to

exempt individuals from CFA liability.

Considering the CFA's remedial purpose and

applying well-established canons of statutory

construction, we conclude that the judicially created

learned professional exception must be narrowly

construed to exempt CFA 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 our prior decisions,

including [Plemmons], have applied the learned

professional exception to "semi-professionals" who are

regulated by a separate regulatory scheme, we are

constrained, upon further review, to depart from that

reasoning as inconsistent with the Supreme Court's

decision in [Lemelledo]. As the Court explicitly held

in Lemelledo, the existence of a separate regulatory

scheme will "overcome the presumption that the CFA

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17

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.

Our decision comports with the 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, we conclude that the CFA applies to the

activities of licensed home inspectors.

[Shaw, 460 N.J. Super. at 599-600.]

The Shaw panel noted that "the 'learned professional' exception

recognized in Macedo, like the 'semi-professional' exception in Neveroski,

focused on the 'nature of the services' provided to support its conclusion that

learned professionals are not subject to CFA liability." 460 N.J. Super. at 615.

Because Plemmons "did not apply the 'nature of the services' analysis," but

instead "rested on the existence of a separate regulatory scheme that could

possibly conflict with allegations in a CFA action," the Shaw panel criticized

the standard utilized in Plemmons, reasoning that "once we define a 'learned

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18

professional' as any licensed professional subject to a separate regulatory

scheme, the mere existence of a separate regulatory scheme will automatically

preempt the CFA without any showing of a direct and unavoidable conflict ."

460 N.J. Super. at 616. The Shaw panel explained that such a conclusion could

not "be squared" with Lemelledo.2 460 N.J. Super. at 616.

Further, the Shaw panel was "unpersuaded that the Legislature acquiesced

in all semi-professional CFA immunity." Id. at 619. "Although Macedo relied

in part on legislative acquiescence" to the judicially created learned

professionals exception,

it did not disturb Lemelledo's directive that the CFA

presumptively applies to a covered activity absent a

direct and unavoidable conflict with other regulatory

schemes. Lemelledo, 150 N.J. at 270. To require the

Legislature to amend the CFA each time case law

extends the learned professional exception to a class of

regulated semi-professionals not only unduly expands

Macedo's specific holding, but also unnecessarily

frustrates the Legislature's express, remedial intention

that the CFA provide cumulative remedies.

2

The Shaw panel expounded that the Plemmons standard "paved the way for

subsequent decisions . . . holding that the mere existence of a separate regulatory

scheme would automatically preempt application of the CFA." 460 N.J. Super.

at 616; see, e.g., Atl. Ambulance Corp. v. Cullum, 451 N.J. Super. 247, 257

(App. Div. 2017) (holding that "ambulance service providers" are either

"professionals" or "semi-professionals" "excluded from liability under the CFA

for services rendered consistent with their professional license because they are

regulated by the Department [of Health]").

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19

[Shaw, 460 N.J. Super. at 619.]

Shaw agreed with the Attorney General that the "learned professional

doctrine, as interpreted [in Plemmons], threatens to become the exception that

swallows the rule, in contravention of the canon of statutory interpretation that

requires that exceptions to a remedial statute are to be narrowly construed." 460

N.J. Super. at 618. Therefore, the Shaw panel held that

home inspectors and other licensed semi-professionals

are not learned professionals simply because they are

otherwise regulated, and that they remain subject to

CFA liability absent a finding that "a direct and

unavoidable conflict exists between application of the

CFA and application of the other regulatory scheme or

schemes." [Lemelledo, 150 N.J.] at 270.[3]

[Shaw, 460 N.J. Super. at 620 (emphasis omitted).]

Judge Sabatino issued a concurring opinion in Shaw, noting that he also

sat on the Plemmons panel and had "changed [his] mind" that insurance brokers

were semi-professionals excluded from CFA liability. 460 N.J. Super. at 628

(Sabatino, P.J.A.D., concurring). He explained that "[u]nlike in Plemmons, in

the present case our court has the benefit of the advocacy of the Attorney

3

The Shaw panel went on to "analyze whether anything in [the] plaintiffs'

complaint [gave] rise to a direct and unavoidable conflict with the home

inspector statute or regulations," but found no evidence to support a preemption

defense. 460 N.J. Super. at 620-27.

A-4093-23

20

General, who persuasively argues as amicus curiae why the semi-professional

distinction is problematic and appears to clash with legislative intent and the

limited Supreme Court precedent that exists on the subject." 460 N.J. Super. at

628 (Sabatino, P.J.A.D., concurring).

Judge Sabatino added:

Even if, hypothetically, the "semi-professional"

distinction were doctrinally preserved (which we are

not advocating), the licensure requirements for

insurance brokers—and their associated fiduciary

duties—appear to me to be more stringent than those

governing home inspectors. [4] Comparatively, the

grounds for a blanket occupational exemption from the

CFA's anti-fraud provisions are weaker. I say that

without intending to diminish the importance of the

work done by qualified professional home inspectors,

who certainly provide a valuable service to home

buyers and sellers.

....

That said, this case may well present a suitable

opportunity for the [Supreme] Court to provide helpful

updated guidance on the contours of the learned

professional doctrine. In any event, nothing in this

opinion prevents the Legislature from adopting

amendments that clarify the statutory scheme.

4

Indeed, Judge Sabatino's observation is supported by the fact that N.J.S.A.

2A:53A-26(o) identifies an insurance producer as a "licensed person," like

physicians, attorneys, engineers, and architects, to name a few, see N.J.S.A.

2A:53A-26, requiring the submission of an affidavit of merit to maintain a

professional negligence claim pursuant to N.J.S.A. 2A:53A-27.

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[Id. at 628-29.]

Here, like the motion judge, we adhere to Plemmons and conclude that for

purposes of the CFA, insurance brokers are categorically exempt from liability

when performing brokerage services. We reject plaintiff's contention that Shaw

overruled Plemmons. "[W]e are not bound by our earlier decisions because we

do not sit en banc." State v. Harrell, 475 N.J. Super. 545, 564 (App. Div. 2023)

(quoting Liberty Mut. Ins. v. Rodriguez, 458 N.J. Super. 515, 521 (App. Div.

2019)); see also Pressler and Verniero, Current N.J. Court Rules, cmt. 3.3 on R.

1:36-3 (2025) (noting this court's "opinions clearly are binding on all [trial]

courts" but do not bind "other panels of the Appellate Division").

Critically, Shaw did not involve a CFA claim against an insurance broker.

The dispositive issue in Shaw was whether the judicially created exemption to

CFA liability applied to home inspectors. "Dictum is a statement . . . 'not

necessary to the decision then being made . . . .'" Bandler v. Melillo, 443 N.J.

Super. 203, 210 (App. Div. 2015) (quoting Jamouneau v. Div. of Tax Appeals,

2 N.J. 325, 332 (1949)). "[P]ortions of an opinion that are dicta are not binding."

Id. at 210-11 (alteration in original) (quoting Nat'l Mortg. Co. v. Syriaque, 293

N.J. Super. 547, 554 (Ch. Div. 1994)). Because Shaw's limiting dicta was not

necessary to resolve the issue before the court, it is "entitled to due consideration

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but does not invoke the principle of stare decisis." Bandler, 443 N.J. Super. at

210 (italicization omitted) (quoting Jamouneau, 2 N.J. at 332).

As acknowledged in Macedo, our conclusion is bolstered by "[l]egislative

acquiescence." 178 N.J. at 346. "In construing a statute it is to be assumed that

the Legislature is thoroughly conversant with its own legislation and the judicial

construction placed thereon." Ibid. (quoting Quaremba v. Allan, 67 N.J. 1, 14

(1975)). "And the construction of a statute by the courts, supported by long

acquiescence on the part of the Legislature . . . or failure to amend the statute,

is evidence that such construction is in accord with the legislative intent. " Ibid.

(quoting Quaremba, 67 N.J. at 14).

The Legislature has not acted since the Plemmons holding in 2006. If the

Legislature disagreed with this court's extension of the categorical exemption

from CFA liability to insurance brokers, nineteen years was more than enough

time for it to act. See David v. Gov't Emps. Ins. Co., 360 N.J. Super. 127, 143

(App. Div. 2003) (noting that five years was sufficient time for the Legislature

to respond to a decision with which it disagreed). "If we are incorrect in our

assumption, we would expect the legislature to take action to amend the statute."

Macedo, 178 N.J. at 346. Based on our decision, we need not address the

remaining arguments.

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Affirmed.

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