JODI SHAW VS. BRIAN SHAND (L-0408-16, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5686-17T1

JODI SHAW and THOMAS SHAW,

APPROVED FOR PUBLICATION

Plaintiffs-Appellants,

August 15, 2019

v. APPELLATE DIVISION

BRIAN SHAND and ALL POINTS

HOME INSPECTION AND

SERVICES,

Respondents-Defendants.

_______________________________

Argued January 14, 2019 – Decided August 15, 2019

Before Judges Sabatino, Haas and Mitterhoff

(Judge Sabatino, concurring).

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Sussex County,

Docket No. L-0408-16.

Linda A. Peoples argued the cause for appellants

(Horlacher & Peoples, LLP, attorneys; Linda A.

Peoples, of counsel and on the briefs).

Wendy B. Shepps argued the cause for respondents

(Mound, Cotton, Wollan & Greengrass LLP,

attorneys; Wendy B. Shepps, on the briefs).

Jeffrey A. Koziar, Deputy Attorney General, argued

the cause for amicus curiae Office of the Attorney

General (Gurbir S. Grewal, Attorney General,

attorney; Jason W. Rockwell, Assistant Attorney

General, of counsel; Jeffrey A. Koziar, on the brief).

The opinion of the court was delivered by

MITTERHOFF, J.S.C. (temporarily assigned).

This interlocutory appeal arises from the trial court's June 11, 2018 order

entering partial summary judgment dismissing plaintiffs Jodi and Thomas

Shaw's claims under the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -

210. Plaintiffs challenge the court's finding that home inspectors are "learned

professionals" and therefore excluded from CFA liability.

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.

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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 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, upon further review, 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.

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

A-5686-17T1

3

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. Therefore,

we reverse the trial court's summary judgment dismissal of the CFA claim

against defendants and remand for further proceedings.

I.

A.

In April or May of 2015, plaintiff Thomas Shaw contracted to purchase a

property located on Overlook Court in Hampton Township. Prior to

purchasing the home, plaintiffs hired defendant 1 to conduct an inspection of

the property. Karen Kleinman, plaintiffs' real estate broker, contacted

defendant and requested he conduct a home inspection of plaintiffs' property.

In response, defendant had Thomas Shaw sign a one-page pre-inspection

agreement setting forth the terms of the inspection. That same day, defend ant

1

Defendant Brian Shand is the sole owner of co-defendant All Points Home

Inspection and Services. We refer to Shand and All Points as "defendant."

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inspected the property, and on May 13, 2015, he emailed his report to Jodi

Shaw. Plaintiffs paid defendant $350 for the inspection.

Defendant's report concluded that "[t]his structure appears to be very

well built utilizing quality materials and professional workmanship. It is in

need of only typical maintenance and upgrading." In June 2015, plaintiffs

proceeded with the purchase of the property, allegedly in reliance upon

defendant's report, for the sum of $318,000. Plaintiffs allege that "[u]pon

occupying the [p]roperty in June 2015, the Shaws quickly learned that the

house was in fact in poor condition, requiring a great deal of major repairs."

These allegedly required repairs include: "replacement of the roof that leaked

and was at the end of its useful life, the repair of their front deck/porch which

collapsed when they moved in, the replacement of the driveway and

replacement of windows and sliding glass doors to address leaks, drafts and rot

from the leaks." Plaintiffs allege they have "been forced to expend tens of

thousands of dollars" on repairs and "must still, at a minimum," spend an

estimated tens of thousands of dollars on a mold issue in the home.

At his deposition, defendant acknowledged that he had observed some

problems with the home that he did not include in his report.

Defendant testified at his deposition that he became licensed as a home

inspector in January 2015. In order to become licensed, defendant had to

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attend "hours of schooling," though he did not recall how many offh and.

Defendant also did not recall the name of the school he attended. In addition,

defendant had to serve forty hours of apprenticeship with a licensed home

inspector. Finally, in order to become licensed, defendant had to take a State-

mandated test. After successfully completing the schooling and apprenticeship

and passing the test, defendant became a licensed home inspector. Defendant's

inspection of plaintiffs' home was his first assignment as a licensed inspector.

Defendant allowed his home-inspector license to expire in April 2017; he now

works as a painter, which does not require a license. 2

In their July 2016 complaint against defendant, plaintiffs alleged claims

sounding in negligence, violations of the CFA, common law fraud, and breach

of contract. After the parties filed cross-motions for summary judgment, the

trial court issued two orders supported by a written statement of reasons. The

first order, which granted, in part, defendant's motion for summary judgment

2

Defendant also holds a license issued by the Department of Labor in 1982 as

a carpenter. In order to receive his carpenter's license, he underwent an

apprenticeship and on-the-job training. That license, unlike the home

inspector's license, does not need to be renewed.

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by dismissing with prejudice plaintiffs' CFA claims, is the only order at issue

in this appeal.3

In dismissing the CFA claims against defendant, the trial court noted

that "[t]here is no binding authority specifically addressing whether home

inspectors should be considered semi-professionals exempt from the CFA."

The court observed that two unreported Law Division decisions 4 reasoned that

"they should be [considered learned professionals] because they are regulated

under N.J.A.C. 13:40[-1] et seq." The court found that our decision in Herner

v. Housemaster of America, Inc., 349 N.J. Super. 89 (App. Div. 2002), which

held that a home inspector was liable under the CFA, did not compel a

conclusion in this case that the "learned professionals" exclusion does not

apply. First, the court found Herner was factually distinguishable because in

that case the inspector's reports were deliberately skewed in order to please the

3

The order under review also dismissed plaintiffs' common law negligence

claims. That finding is not at issue in this interlocutory appeal. Nor are the

issues addressed in the second order before us.

4

We do not cite and will not discuss those non-precedential opinions. See R.

1:36-3.

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realtor, avoid "killing deals," and have real estate agents continue to

recommend the home inspector. 5

Second, the trial court found that Herner did not address the semi-

professional exception issue. The court reasoned,

Although the Home Inspection Licensing Act

(N.J.S.A. 45:8-61 through 76), became effective July

8, 1998, the regulations implementing N.J.S.A. 45:8-

61 et seq. were not implemented until 2006, after the

decision in Herner. See 33 N.J.R. 1318(a) N.J.A.C.

13:40 et seq. These code sections highly regulate the

home inspection profession, such as further specifying

the requirements for initial licensure as a home

inspector, including an approved course of study of

180 hours, as prescribed by the Board, 40 hours of

unpaid field-based inspections in the presence of and

under the direct supervision of a licensed home

inspector, maintaining an errors and omissions policy

in the minimum amount of $500,000 per occurrence,

passing the Home Inspector Examination, and an

application fee. N.J.A.C. 13:40-15.6. These are the

regulations that [the unpublished opinions] cite to

show that home inspectors are semi-professionals.

Unlike Herner, which was decided before the 2006

regulations, both of the unpublished cases were

decided after the 2006 regulations implementing

N.J.S.A. 45:8-61 et seq. Although the unpublished

cases are not binding on the court and are not cited as

authority by the court, because home inspectors have

5

We do not find this factual distinction, which speaks only to the degree of

the CFA violation in Herner as compared to this case, relevant to the issue

whether home inspectors are learned professionals. Presumably learned

professionals are exempt from CFA liability irrespective of the relative

egregiousness of their alleged conduct.

A-5686-17T1

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become regulated since the Herner decision, they

should be treated as semi-professionals exempt from

the Consumer Fraud Act. [6]

Citing our decision in Plemmons, the court concluded that defendant's

status as a semi-professional exempts him from liability under the CFA.

Accordingly, the court granted defendant's motion for summary judgment

dismissing plaintiffs' CFA claims with prejudice.

Thereafter, we granted plaintiffs' motion for interlocutory review,

limited to the issue whether home inspectors are "learned professionals"

exempt from CFA liability. As we have noted, the Attorney General accepted

our invitation to participate in this appeal as amicus curiae.

B.

On appeal, plaintiffs contend the trial court erred in finding that home

inspectors are learned professionals. In that regard, plaintiffs primarily rely on

Herner, which they assert is directly on point. Alternatively, plaintiffs urge us

to find that because a home inspection is a service that is rendered in

connection with the sale of real estate, defendant's liability is supported by the

1976 amendment to the CFA adding 'the sale or advertisement of . . . real

6

We agree with the Attorney General that the trial court's reliance on the fact

that the home inspector regulations were promulgated after Herner is

unpersuasive, as the Home Inspection Professional Licensing Act became

effective in 1998, four years before the Herner decision.

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estate" to the provision of N.J.S.A. 56:8-2. See Papergraphics Intern., Inc. v.

Correa, 389 N.J. Super. 8, 12 n.1 (App. Div. 2006) ("The holding in Neveroski

was abrogated by the 1976 statutory amendment adding 'the sale or

advertisement of . . . real estate' to the provision of N.J.S.A. 56:8 -2."

(alteration in original)); Arroyo v. Arnold-Baker & Assocs., Inc., 206 N.J.

Super. 294, 296-97 (Law Div. 1985) (holding that the amendment to add the

sale or advertisement of real estate to the CFA made real estate brokers, agents

and salespersons subject to the CFA).

Defendant argues that the trial court correctly analyzed and applied our

decision in Plemmons and correctly concluded that home inspectors are

"learned professionals" exempt from CFA liability because they are subject to

regulation by the Home Inspector Advisory Committee. 7

The Attorney General urges us to reject the extension of the so-called

"learned professional" exception to encompass "semi-professionals" such as

home inspectors. The Attorney General notes that the unwarranted expansion

of the "learned professional" exception to semi-professionals lacks any support

in the plain text or purpose of the CFA. To adopt the trial court's reasoning,

the Attorney General argues, would unduly limit the CFA, which the

7

Defendant also raises a number of alleged procedural deficiencies and

substantive arguments that are not pertinent to the issue before us and

therefore will not be addressed.

A-5686-17T1

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Legislature intended to be one of the nation's strongest consumer protection

laws. The trial court's broad interpretation of the exception, the Attorney

General argues, significantly curtails the authority of the Attorney General and

the Division of Consumer Affairs ("Division") to protect New Jersey

consumers and limits the redress available to private litigants.

Contrary to the decision below, the Attorney General argues that the fact

that home inspectors are subject to other statutory and regulatory requirements,

which are enforced by a professional board located within the Division, does

not excuse them from compliance with the CFA. In that regard, the Attorney

General notes that the Legislature made clear that the rights, remedies and

prohibitions of the CFA are "cumulative of any other statutory right, remedy or

prohibition." N.J.S.A. 56:8-2.13. The Attorney General argues that as the

Supreme Court held in Lemelledo, another statutory scheme will displace the

CFA only when "a direct and unavoidable conflict exists between the

application of the CFA and application of the other regulatory scheme or

schemes." 150 N.J. at 270. In this case, the Attorney General avers that

because there is no "direct and unavoidable conflict" between the CFA and the

statutes and regulations specific to home inspectors, the trial court erred in

concluding that the home inspector regulations preclude the application of the

CFA to home inspectors.

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The trial court reached its result, the Attorney General asserts, by

expanding the judicially created "learned professional" exception to the CFA

well beyond the narrow parameters in Macedo v. Dello Russo, 178 N.J. 340

(2004). The expansion of the "learned professional" exception to home

inspectors – who are not even required to have a college degree – stretches the

exception far beyond its limited origin. 8 The Attorney General argues that the

exception (which itself lacks a basis in the statutory text) should be limited to

the narrow class of professionals identified in Macedo as exempt from the

CFA for historical reasons: physicians, attorneys, and similar learned

professionals who were not permitted to advertise at all when the Legislature

enacted the 1960 precursor to the CFA, creating liability for fraud in

advertising. Nothing in Macedo, the Attorney General argues, requires or even

supports a CFA exemption for home inspectors on the ground that a licensure

regime for home inspectors was established decades later.

II.

A.

Whether licensed semi-professionals such as home inspectors are

entitled to the judicially created "learned professional" immunity turns on the

8

With respect to educational requirements, an individual need have only a

high school degree or its equivalent to become a licensed home inspector.

N.J.S.A. 45:8-68(b).

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statutory interpretation of two statutes: the CFA and the Home Inspection

Professional Licensing Act ("HIPLA"), N.J.S.A. 45:8-61 to -81. We review

these issues of statutory construction de novo. Cashin v. Bello, 223 N.J. 328,

335 (2015). In considering whether the Legislature intended to exempt home

inspectors and other "semi-professionals" from liability under the CFA, we

adhere to well-established principles of statutory interpretation.

"The Legislature's intent is the paramount goal when interpreting a

statute and, generally, the best indicator of that intent is the statutory

language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). In considering the

statutory language, "an appellate court must read words 'with[in] their context'

and give them 'their generally accepted meaning.'" Cashin, 223 N.J. at 335

(alteration in original) (quoting N.J.S.A. 1:1-1); see also DiProspero, 183 N.J.

at 492 ("We ascribe to the statutory words their ordinary meaning and

significance, and read them in context with related provisions so as to give

sense to the legislation as a whole." (citations omitted)).

When a statute's plain language lends to only one interpretation, a court

should not consider "extrinsic interpretative aids." DiProspero, 183 N.J. at 492

(quoting Lozano v. Frank DeLuca Const., 178 N.J. 513, 522 (2004)). "On the

other hand, if there is ambiguity in the statutory language that leads to more

than one plausible interpretation, we may turn to extrinsic evidence, 'including

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legislative history, committee reports, and contemporaneous construction.'"

Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75

(2004)).

B.

The Attorney General argues that there is nothing in the text or the

purpose of the CFA that would support a blanket exception for semi-

professionals based solely on the existence of a separate regulatory scheme

that also regulates the subject industry. We agree.

At the outset, the CFA does not explicitly provide an exception for or

even mention learned professionals. Moreover, the CFA is designed to

prohibit unlawful conduct or practices, defined as:

The 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.]

The stated purpose of the act is "to prevent deception, fraud, or falsity,

whether by acts of commission or omission, in connection with the sale or

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advertisement of merchandise and real estate." Fenwick v. Kay American

Jeep, Inc., 72 N.J. 372, 376-77 (1977). The CFA defines "merchandise" as

"any 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). The

services of a home inspector fall squarely within the definition of merchandise

under the act.

The CFA

has three main purposes: to compensate the victim for

his or her actual loss; to punish the wrongdoer through

the award of treble damages; and by way of the

counsel fee provision, to attract competent counsel to

counteract the community scourge of fraud by

providing an incentive for an attorney to take a case

involving a minor loss to the individual.

[Real v. Radir Wheels Inc., 198 N.J. 511, 520-21

(2009) (quoting Lettenmaier v. Lake Constr., Inc., 162

N.J. 134, 139 (1999)).]

"Although initially designed to combat 'sharp practices and dealings' that

lured customers into purchases through fraudulent or deceptive means, the

CFA is no longer aimed solely at 'shifty, fast-talking and deceptive

merchant[s].'" Suarez v. Eastern Int'l Coll., 428 N.J. Super. 10, 31 (App. Div.

2012) (alteration in original) (quoting Cox v. Sears Roebuck & Co., 138 N.J.

2, 16 (1994)). The CFA's remedial goal "is to establish 'a broad business

ethic,' promoting a standard of conduct that contemplates 'good faith, honesty

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in fact and observance of fair dealing.'" Ibid. (quoting Mechinsky v. Nichols

Yacht Sales, Inc. 110 N.J. 464, 472 (1988)). Accordingly, liability under the

act will lie even if the prohibited conduct is committed in good faith. Ibid.

As originally enacted, the Attorney General had exclusive authority to

enforce the CFA. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234,

245 (2005). In 1971, however, the Legislature amended the CFA to provide

for a private cause of action to "[a]ny person who suffers any ascertainable

loss of moneys or property, real or personal," as a result of a deceptive

practice. N.J.S.A. 56:8-19. If successful, the private litigant can recover

treble damages, attorney's fees, and costs. Ibid. The Legislature has expressly

provided that the "rights, remedies and prohibitions" created by the CFA are

"in addition to and cumulative of any other right, remedy or prohibition

accorded by the common law or statutes of this State." N.J.S.A. 56:8-2.13.

The CFA "evinces a clear legislative intent that its provisions be applied

broadly in order to accomplish its remedial purpose, namely, to root out

consumer fraud." Lemelledo, 150 N.J. at 264; see also Czar, Inc. v. Heath, 198

N.J. 195, 208-09 (2009) (rejecting "crabbed" approach to the CFA in favor of a

faithful adherence to the CFA's broad remedial purposes); Cox, 138 N.J. at 15

(holding that the CFA must be construed liberally in favor of consumers).

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Furthermore, it is well-established that "where the purpose of legislation

is remedial and humanitarian, any exemption must be narrowly construed,

giving due regard to the plain meaning of the language and the legislative

intent." Serv. Armament Co. v. Hyland, 70 N.J. 550, 559 (1976) (citing

Phillips v. Walling, 324 U.S. 490, 493 (1945)); see also Nini v. Mercer Cty.

Cmty. Coll., 202 N.J. 98, 112 (2010) ("[A]n interpretation that throws contract

employees into the over-seventy exception at once narrows what should be the

expansive coverage of remedial legislation like the [New Jersey Law Against

Discrimination], and expands an exception in contravention of applicable

principles of statutory construction."); Young v. Schering Corp., 141 N.J. 16,

29 (1995) ("As an exception to the general remedial scheme of [the New

Jersey Conscientious Employee Protection Act], the waiver provision must b e

construed narrowly."); Marx v. Friendly Ice Cream Corp., 380 N.J. Super. 302,

310 (App. Div. 2005) ("Based upon the Legislature's remedial purpose in

enacting a minimum wage law, we have held that all exemptions to N.J.S.A.

34:11-56a4 should be construed narrowly and that the employer has the

obligation to prove that an employee meets the criteria for exemption."). As

the United States Supreme Court has explained, "[t]o extend an exemption to

other than those plainly and unmistakably within its terms and spirit is to abuse

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the interpretative process and to frustrate the announced will of the people."

Phillips, 324 U.S. at 493.

Thus, broadly construing the reach of the CFA as a remedial statute, and

narrowly construing any exceptions to the CFA, we agree with the Attorney

General that there is nothing in the text or the purpose of the CFA that

supports an exemption for fraudulent or unconscionable activities of semi -

professionals such as home inspectors.

C.

In 1997, the Supreme Court in Lemelledo specifically addressed the

issue of whether a comprehensive statutory scheme regulating a class of

individuals or entities would place that class beyond the reach of the CFA.

150 N.J. at 266. Lemelledo was a class action brought against a commercial

lender who engaged in the practice of "loan packing," which increases the

principal amount of the loan with loan-related services, such as credit

insurance, that the borrower does not want. Id. at 259-60. The trial court

dismissed the complaint for failure to state a claim under which relief can be

granted. Id. at 262. The Supreme Court disagreed and reinstated the plaintiff's

CFA claims. Id. at 275.

The Court observed that although the CFA "vests the Attorney General

with jurisdiction to enforce its provisions through a variety of mechanisms,

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N.J.S.A. 56:8-3 to -8, -11, -15 to -18 & -20," the Act also expressly "provides

individual consumers with a private cause of action to recover refunds, 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." Id. at 264. In that regard, the Court observed

that the plain language of the CFA declares that "[t]he rights, remedies and

prohibitions accorded by the provisions of this act are hereby declared to be in

addition to and cumulative of any other right, remedy or prohibition accorded

by the common law or statutes of this State." Ibid. (quoting N.J.S.A. 56:8-

2.13)

The Court rejected the defendant's argument that no CFA liability could

attach because neither the CFA nor its implementing regulations had

specifically included sales of insurance, reasoning that "the CFA could not

possibly enumerate all, or even most, of the areas and practices that it covers

without severely retarding its broad remedial power to root out fraud in its

myriad, nefarious manifestations." Id. at 265. The Court concluded that

"[b]ecause the broad language of the CFA appears to include both lending and

insurance-sales practices, . . . its terms also include the sale of insurance in

conjunction with lending, that is, loan packing." Id. at 266.

The Court also found, however, that its conclusion that the CFA's

language encompassed loan packing did "not automatically resolve the issue of

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the CFA as a basis for remedial relief." Id. at 266. "Instead, a court must look

to whether a 'real possibility’ of conflict would exist if the CFA were to apply

to a particular practice, regardless of the number of agencies with regulatory

jurisdiction over that practice." Id. at 268. The Court reasoned that in light of

the "strong and sweeping legislative remedial purpose" of the CFA and the

expectation that consumers will act as private attorneys general, there is a

presumption that the CFA applies to the covered practice at issue. Ibid. To

find that non-consumer statutes and regulations preempt the CFA, a court must

determine that "a direct and unavoidable conflict exists between application of

the CFA and application of the other regulatory scheme or schemes." Id. at

270 (emphasis added). The court "must be convinced that the other source or

sources of regulation deal specifically, concretely, and pervasively with the

particular activity, implying a legislative intent not to subject parties to

multiple regulations that, as applied, will work at cross-purposes." Ibid. The

Court further "stress[ed] that the conflict must be patent and sharp, and must

not simply constitute the mere possibility of incompatibility." Ibid. The Court

explained,

If the hurdle for rebutting the basic assumption of

applicability of the CFA to covered conduct is too

easily overcome, the statute's remedial measures may

be rendered impotent as primary weapons in

combatting clear forms of fraud simply because those

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fraudulent practices happen also to be covered by

some other statute or regulation.

[Ibid.]

III.

A.

With the foregoing statutory and common law background in mind, we

now turn to a review of the origin and evolution of the "learned professional"

exception to CFA liability.

Originally, and historically, the word "profession" was

applied only to law, medicine and theology or

divinity, and these were known as the three "learned

professions," and it has frequently been said that

formerly these were known as "the professions."

[Plaza Bottle Shop, Inc. v. Al Torstrick Insurance

Agency, 712 S.W.2d 349, 351 (Ky. Ct. App. 1986)

(quoting 72 C.J.S. Professions §§ 4-5 (1951)).]

See also Webster's Unabridged Dictionary of the English Language 1095

(2001) (defining "learned profession" as "any of the three professions,

theology, law and medicine, commonly held to require highly advanced

learning"). It is indisputable that a home inspector, who requires only a high

school diploma or its equivalent, is not a learned professional in the historic

sense.

As the Attorney General notes, the learned professional exemption to

CFA liability is an atextual, judicially created doctrine. The seed of the

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judicially created "learned professional" exception to CFA liability was first

planted in Neveroski v. Blair, 141 N.J. Super. 365 (App. Div. 1976). The

central issue in Neveroski was whether real estate sales fell within the CFA's

definition of "merchandise." See id. at 375-76.9 In finding that the CFA's

reference to "merchandise" did not encompass the sale of real estate, we noted

that in 1967 a bill was introduced expanding the definition of "merchandise" to

include "any objects, wares, goods, commodities, real estate, securities,

services, or anything offered directly or indirectly to the public for sale." Id. at

377 (quoting A. 715 (1967)). The bill as adopted, however, was amended to

delete the words "real estate, securities." Ibid. We found the deletion of "real

estate" and "securities" represented a meaningful act on the part of the

Legislature "eliminating these two areas of commercial activity from the

purview of the statute." Id. at 378.10

9

In Neveroski, there was substantial evidence that Blue Ribbon concealed

from the plaintiffs the fact that the home they were purchasing had extensive

termite damage. Id. at 375. Thus, we observed that "[o]ur review of the

record satisfies us that if the act encompasses within its ambit deceptive,

unconscionable or fraudulent acts in connection with the sale of real estate,

there is sufficient credible evidence to sustain a violation thereof by Blue

Ribbon." Id. at 376.

10

We recognized, however, that "a possible alternative construction to the

effect that the deletion was made because of an assumption that the express

words were unnecessary in view of the catch-all phrase 'or anything offered,

directly or indirectly, to the public for sale.'" Ibid. That alternative

(continued)

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[I]t is our considered opinion that the entire thrust of

the Consumer Fraud Act is pointed to goods and

services sold to consumers in the popular sense. Such

consumers purchase products from retail sellers of

merchandise consisting of personal property of all

kinds or contracts for services of various types

brought to their attention by advertising or other sales

techniques. The legislative language throughout the

statute and the evils sought to be eliminated point to

an intent to protect the consumer in the context of the

ordinary meaning of that term in the market place.

[Ibid.]

In addition, under the doctrine of ejusdem generis, 11 we found that real

estate was "wholly foreign to any of the listed examples specifically referred to

in the definition." Id. at 379.

A real estate broker is in a far different category from

the purveyors of products or services or other

activities. He is in a semi-professional status subject

to testing, licensing, regulations and penalties through

other legislative provisions. 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.

(continued)

construction appears to be in line with the Attorney General's position that

pursuant to Lemelledo the CFA presumptively applies.

11

Of the same kind or class. See Black's Law Dictionary 654 (11th ed. 2019).

A-5686-17T1

23

Certainly no one would argue that a member of any of

the learned professions is subject to the provisions of

the Consumer Fraud Act despite the fact that he

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.

Similarly, in the absence of clear and explicit

language in the statute, a broker who negotiates the

sale of real estate and thereby renders "services" is

nevertheless outside the scope of persons sought to be

covered by the Act.

[Id. at 379-80 (emphasis added) (citation omitted).]

Pertinent to the issues before us on this appeal, in Neveroski we

recognized that semi-professionals are not on the same plane as other

professions historically recognized as being "learned professions." Id. at 379.

In addition, our focus in Neveroski was on the "nature of the services," not the

extent to which a particular semi-professional was otherwise regulated. Ibid.

Two months before the Neveroski decision was issued, the Legislature

amended the CFA to include the use of any of the prohibited acts "in

connection with the sale or advertisement of any merchandise or real estate."

Id. at 377 n.3. Neveroski acknowledged the statutory amendment in footnote 3

to the opinion. In that footnote, it notes that the Governor issued a statement

in connection with the passage of the bill asserting that the amendment was not

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24

meant to change the law because "real estate was included in the legislation as

it existed prior to the amendment." Ibid. Despite the Legislature's abrogation

of Neveroski's holding, subsequent decisions of this court have seemingly

accorded its semi-professional exemption precedential weight.

In 2004, in Macedo, the New Jersey Supreme Court held in a short per

curiam opinion that the CFA did not apply to a physician's advertisements.

178 N.J. at 346. The Court concluded that the Legislature "obviously" did not

intend the CFA "to encompass advertising by professionals when it enacted the

CFA in 1960 because advertising by physicians because such advertising was

not permitted for another two decades." Id. at 343. The Court explained that

advertising by professionals did not begin in earnest until after 1977, when the

United States Supreme Court ruled that a blanket ban on attorney advertising

violated the First Amendment. Ibid. (citing Bates v. State Bar of Arizona, 433

U.S. 350, 383 (1977)). The Court also noted that the Legislature has not

amended the CFA to include advertising by learned professionals. Id. at 344.12

The Supreme Court thus held that "advertisements by learned professionals in

respect of the rendering of professional services are insulated from the CFA

12

The Court implicitly approved our holding in Vort v. Hollander, 257 N.J.

Super. 56, 62 (App. Div. 1992), that attorney's services are beyond the reach of

the CFA.

A-5686-17T1

25

but subject to comprehensive regulation by the relevant regulatory bodies and

to any common-law remedies that otherwise may apply." Id. at 346.

Far from overruling Lemelledo, however, the Court in Macedo expressly

reaffirmed its prior holding that, absent a direct and unavoidable conflict, a

separate regulatory scheme does not render the CFA inapplicable:

Nothing in Lemelledo suggests a contrary conclusion.

There, 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 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.

[Id. at 345 (citation omitted) (emphasis added).]

Thus, the "learned professional" exception recognized in Macedo, like

the "semi-professional" exception in Neveroksi, focused on the "nature of the

services" provided to support its conclusion that learned professionals are not

A-5686-17T1

26

subject to CFA liability. 13 No Supreme Court decision has revisited the

learned professional doctrine since the Court decided Macedo.14

Thirty years after Neveroski, the issue whether the "learned

professional" immunity recognized in Macedo should be extended to semi-

professionals resurfaced in Plemmons, 387 N.J. Super. at 556. 15 In Plemmons,

we "conclude[d] 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." Ibid.

In so holding, we differentiated that case from Lemelledo, because

Lemelledo "did not include a CFA claim against . . . [a] party who could be

characterized as 'professional' or 'semi-professional.'" Id. at 563. In deciding

insurance brokers were learned professionals, the court noted that they must be

licensed, pass an examination, meet application requirements, comply with

13

Macedo did not, however, extend the exception to semi-professionals or

licensed professionals.

14

The Court has twice commented, in dicta, on the learned professional

exception, but resolved both of those cases on other grounds. See

Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 123-24 (2014); Lee v. First

Union Nat. Bank, 199 N.J. 251, 263-64 (2009).

15

In Plemmons, we addressed a number of issues in addition to whether

insurance brokers were learned professionals. Those separate rulings are not

affected by our decision today.

A-5686-17T1

27

standards of conduct that delineate "unfair trade practices" and other

requirements, and overall are "subject to testing, licensing and regulation

comparable to real estate brokers, and thus are exempt from liability under the

CFA[.]" Id. at 564-65.

Thus, in Plemmons, we did not apply the "nature of the services"

analysis that formed the basis for the "semi-professional" exemption in

Neveroski and the "learned professional" exemption in Macedo. Instead, the

basis of the semi-professional exception in Plemmons rested on the existence

of a separate regulatory scheme that could possibly conflict with allegations in

a CFA action. See ibid. Plemmons thus paved the way for subsequent

decisions, including the trial court's decision in this case, holding that the mere

existence of a separate regulatory scheme would automatically preempt

application of the CFA. See, e.g., Atlantic Ambulance Corp. v. Cullum, 451

N.J. Super. 247, 257-58 (App. Div. 2017) (holding that ambulance service

providers excluded from liability under the CFA for services rendered

consistent with their professional license because they are regulated by the

Department of Health). But see Manahawkin, 217 N.J. at 124 (in which the

Supreme Court expressed "serious doubt" that the nursing home's billing and

collection function, which was at issue in the case, "would qualify for the

learned professionals exception to the CFA").

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28

As the Attorney General points out, however, the standard in Plemmons

cannot be squared, on further reflection, with the Supreme Court's holding in

Lemelledo, a holding that was reaffirmed by the Supreme Court in Macedo.

That Lemelledo did not involve services by a licensed professional is an empty

distinction; once we define a "learned 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. Lemelledo is a Supreme Court

decision that remains the applicable standard for preemption.

Significantly, the Attorney General takes the position that Lemelledo,

and not Plemmons, sets forth the appropriate standard for evaluating whether a

separate regulatory scheme preempts the CFA. The Attorney General notes

that the Plemmons standard unduly hinders the State's effective enforcement of

the CFA and unjustifiably immunizes large categories of the public from their

commission of fraud and other unconscionable conduct.

Although we are not ultimately bound by an agency's statutory

interpretation, "[g]enerally, courts afford substantial deference to an agency's

interpretation of a statute that it is charged with enforcing." Univ. Cottage

Club of Princeton N.J. Corp. v. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007);

see also Merin v. Maglaki, 126 N.J. 430, 436-37 (1992) ("We give substantial

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29

deference to the interpretation of the agency charged with enforcing an act.

The agency's interpretation will prevail provided it is not plainly

unreasonable.").

Accordingly, although we are not bound by the Attorney General's

interpretation of the CFA, "it is nonetheless entitled to a degree of deference,

in recognition of the Attorney General's special role as the sole legal adviser to

most agencies of State Government," including the Division of Consumer

Affairs. Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007) (citing

N.J.S.A. 52:17A-4(e)); see also Peper v. Princeton Univ. Bd. of Trs., 77 N.J.

55, 70 (1978); Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist. v. Bd.

of Educ. of Delran, 361 N.J. Super. 488, 493-94 (App. Div. 2003).

The Division of Consumer Affairs is responsible not only for enforcing

the CFA but, in addition, under the Uniform Enforcement Act ("UEA"),

N.J.S.A. 45:1-14 to -27, the Attorney General and the Director of the Division

of Consumer Affairs are also responsible for ensuring that the HIPLA and its

implementing regulations are enforced in a manner consistent with applicable

law. N.J.S.A. 45:1-17 and -18. Both the CFA and the UEA are remedial

statutes intended to protect the public. See Cox, 138 N.J. at 15 (noting that the

CFA is "remedial legislation"); N.J.S.A. 45:1-14 (providing that the UEA "is

deemed remedial, and the provisions hereof should be afforded a liberal

A-5686-17T1

30

construction"). Because the Attorney General is charged with enforcing both

the CFA and the HIPLA, we find his opinion particularly persuasive in this

case.

Moreover, unless plainly unreasonable, we defer to both the Attorney

General's and the Division's persuasive interpretation of these laws. See, e.g.,

N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 351 (1997) ("We have

consistently accorded substantial deference to the interpretation of the agency

charged with enforcing an act." (internal quotation marks omitted)); Merin,126

N.J. at 436-37 (giving "substantial deference" to the Insurance Commissioner's

interpretation of an anti-fraud statute); In re Johnny Popper, Inc., 413 N.J.

Super. 580, 589 (App. Div. 2010) (recognizing the expertise of the Division,

which is charged with the responsibility of enforcing the CFA); Degnan v.

Nordmark & Hood Presentations, Inc., 177 N.J. Super. 186, 192 (App. Div.

1981) (giving "due deference" to the Division's interpretation of the Charitable

Fund Razing Act of 1971 and its determination that the defendants were

professional fund raisers within the meaning of the statute).

Finally, we defer to the Attorney General's and the Division's

interpretation of the relevant authorities "[e]ven though this appeal does not

arise from a final agency determination" and the agency's position is instead

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31

set forth in an amicus brief. U.S. Bank, N.A. v. Hough, 210 N.J. 187, 200

(2012).

We agree with the Attorney General that the learned professional

doctrine, as interpreted, 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. We also agree

with the Attorney General's argument that, to the extent the Supreme Court

continues to recognize a "learned professional" doctrine, ideally that doctrine

should be narrowly construed to include only those professions who have

historically been recognized as "learned" based on the requirement of

extensive learning or erudition.

We are unpersuaded that the Legislature acquiesced in all semi-

professional CFA immunity. As the Supreme Court observed in Lemelledo,

Defendant places great significance on the failure of

the CFA and its implementing regulations specifically

to include insurance. That omission, however, is far

from determinative. Given that "[t]he fertility of

human invention in devising new schemes of fraud is

so great . . . . ," Kugler v. Roman 58 N.J. 522, 543 n.4

(1971), the CFA could not possibly enumerate all, or

even most, of the areas and practices that it covers

without severely retarding its broad remedial power to

root out fraud in its myriad, nefarious manifestations.

See Federal Trade Comm'n v. Sperry & Hutchinson

Co., 405 U.S. 233, 240 (1972) ("Even if all known

unfair practices were specifically defined and

prohibited, it would be at once necessary to begin over

A-5686-17T1

32

again[, constituting] . . . an endless task.") (citation

and quotations omitted).

[150 N.J. at 265-66 (alterations in original).]

Although Macedo relied in part on legislative acquiescence to the

judicially created rule that "learned professionals [are] beyond the reach of the

Act so long as they are operating in their professional capacities[,]" 178 N.J. at

346-47, 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. As the Court noted in Lemelledo:

In the modern administrative state, regulation is

frequently complementary, overlapping, and

comprehensive. Absent a nearly irreconcilable

conflict, to allow one remedial statute to preempt

another or to co-opt a broad field of regulatory

concern, simply because the two statutes regulate the

same activity, would defeat the purposes giving rise to

the need for regulation.

[Id. at 271.]

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33

Giving due deference to the Attorney General's concern that a wide-ranging

interpretation of the learned profession exception would unfairly restrict the

ability of private litigants and the Division to seek redress for fraudulent

commercial practices, we find no reason to depart from Lemelledo's distinct

holdings in the context of licensed semi-professionals.

For these reasons, we hold 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." Id. at 270 (emphasis

added).

B.

Of course, pursuant to Lemelledo, any defendant may assert a

preemption defense if the facts so warrant. Lemelledo itself recognized there

may be situations where the allegations in a CFA complaint and compliance

with a separate regulatory scheme may pose an irresolvable conflict. See id. at

274. The issue of any such alleged unavoidable conflict must be determined

on a case-by-case basis, comparing the plaintiff's factual allegations with the

specific statutes and regulations that govern the defendant. In that vein,

although defendant did not identify in this case any specific conflict between

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34

plaintiffs' complaint and the HIPLA, for completeness we will now analyze

whether anything in plaintiffs' complaint gives rise to a direct and unavoidable

conflict with the home inspector statute or regulations.

In that regard, we "must be convinced that the other source or sources of

regulation deal specifically, concretely, and pervasively with the particular

activity, implying a legislative intent not to subject parties to multiple

regulations that, as applied, will work at cross-purposes." Id. at 270. In order

to find preemption, "the conflict must be patent and sharp, and must not simply

constitute the mere possibility of incompatibility." Ibid.

The Legislature passed the HIPLA, N.J.S.A. 45:8-61 to -81, in 1997.

The HIPLA created a Home Inspection Advisory Committee ("Committee")

within the Division, under the State Board of Professional Engineers and Land

Surveyors. N.J.S.A. 45:8-63. The act sets forth, among other things: (1) the

powers and duties of the Committee, N.J.S.A. 45:8-66; (2) the licensure

requirements for home inspectors, N.J.S.A. 45:8-69; and (3) the grounds for

denying, suspending, or revoking a home inspector license, N.J.S.A. 45:8 -74.

The act appears to provide a private right of action, N.J.S.A. 45:8-76.1, but

does not specifically provide for civil penalties, consumer restitution, or

reimbursement of attorneys' fees and costs.

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35

The HIPLA does not provide any enforcement provision, therefore the

Attorney General rests upon the relevant provisions of the UEA, N.J.S.A.

45:1-14 to -27, to provide its enforcement authority. These provisions

empower the Division with uniform investigative and enforcement powers for

home inspectors, N.J.S.A. 45:1-17 and -18, as the Committee is located within

the Division, and provide for civil penalties up to $10,000 for the first

violation and $20,000 for subsequent violations, N.J.S.A. 45:1-22(b) and -

25(a). N.J.S.A. 45:1-22(d) provides for consumer restitution up to the amount

received by the licensee, and N.J.S.A. 45:1-25(d) provides for cost

reimbursement for use of the State, including attorneys' fees. Under the UEA,

the Attorney General retains authority to ensure that all such professional and

occupational boards are acting in a manner consistent with applicable law.

N.J.S.A. 45:1-17(c).

The Home Inspector Regulations, N.J.A.C. 13:40-15.1 to -15.23, were

promulgated by the Division in 2006 pursuant to the HIPLA. The regulations

set forth: (1) the requirements for initial licensure as a home inspector,

N.J.A.C. 13:40-15.6; (2) the insurance requirements for home inspectors,

N.J.A.C. 13:40-15.8; (3) continuing education requirements, N.J.A.C. 13:40-

15.14; (4) pre-inspection agreement requirements, N.J.A.C. 13:40-15.15; (5)

detailed standards of practice for home inspectors including requirements for

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36

the home inspection report, N.J.A.C. 13:40-15.16; (6) requirements of

advertising by home inspectors, N.J.A.C. 13:40-15.18; (7) prohibited practices

by home inspectors, N.J.A.C. 13:40-15.19; and (8) the grounds for suspending,

revoking or refusing to renew a home inspector's license, N.J.A.C. 13:40 -

15.20.

Among the prohibited practices enumerated in N.J.A.C. 13:40-15.19(a)

are:

13. Engage in the use of advertising which contains

any statement, claim or format which is false,

fraudulent, misleading or deceptive;

....

20. Perform any act or omission involving

dishonesty, fraud, or misrepresentation with the intent

to benefit a licensee or other person or with the intent

to substantially injure another person;

21. Perform any act or omission involving

dishonesty, fraud, or misrepresentation in the

performance of a home inspection or the preparation

of a home inspection report;

....

23. Fail or refuse, without good cause, to exercise

due diligence in preparing a home inspection report,

delivering a report to the client, or responding to an

inquiry from the client.

Considering these provisions, we address the issue whether there is a

conflict as defined by Lemelledo. In that regard, the Supreme Court in

A-5686-17T1

37

Lemelledo set forth a stringent standard that is akin to federal preemption of

state laws.

At the outset, there is no express preemption established by either the

CFA or the HIPLA. Cf. Gordon v. United Continental Holding, Inc. 73

F.Supp.3d 472, 479-80 (D.N.J. 2014) (finding that the Airline Deregulation

Act of 1978 by its terms, 49 U.S.C. § 4171(b)(1), expressly preempted the

plaintiffs' CFA claims). To the contrary, the CFA provides that the remedies

under the act are "cumulative of any other statutory right, remedy or

prohibition." N.J.S.A. 56:8-2.13.

In an analogous context, in Union Ink Co. v. AT&T Corp., 352 N.J.

Super. 617, 638-42 (App. Div. 2002), we held that the plain language of the

Communications Act defeated the defendants' CFA preemption argument. The

plaintiffs alleged that AT&T fraudulently misrepresented that it utilized "the

largest digital network in America" and that the quality and reliability of its

service would be as good as their conventional land line service. Id. at 625. In

rejecting the defendants' claim of preemption, we noted that the

Communications Act provided that

no state or local government shall have any authority

to regulate the entry of the rates charged by any

commercial mobile service or any private mobile

service, except that this paragraph shall not prohibit a

State from regulating other terms and conditions of

commercial mobile services.

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38

[Id. at 628 (emphasis added) (quoting 47 U.S.C. § 332

(c)(3)(A)).]

We held that the plaintiffs' claims fell under the "other terms and

conditions" rubric of the statute and were therefore not barred. See id. at 638,

643. Similarly, the CFA contains an express reservation of litigants' rights

under other statutory and common law provisions, N.J.SA. 56:8-2.13, and the

HIPLA contains no provision evincing an intent to fully occupy the field of

home inspector regulation.

Having found no express preemption, we address whether the HIPLA

and its implementing regulations would support implied preemption of

plaintiffs' CFA claim. The question whether a statute is preempted is a fact-

sensitive endeavor. R.F. v. Abbott Labs, 162 N.J. 596, 619 (1999).

Preemption "is not to be lightly presumed." Ibid. (quoting Turner v. First

Union Nat'l Bank, 162 N.J. 75, 87 (1999)). The party asserting preemption

bears the burden of establishing its entitlement to the defense. Id. at 645

(citing Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 615-16 (1999)).

There are three types of implied preemption: (1) field

preemption, "where the scheme of federal law and

regulation is 'so pervasive as to make reasonable the

inference that Congress left no room for the states to

supplement it;'" (2) conflict preemption, where there is

a conflict between federal and state law, rendering

"'compliance with both federal and state regulations

. . . a physical impossibility;'" and (3) preemption

where "state law impedes the achievement of a federal

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39

objective;" in this case, even if federal and state law

are "not mutually exclusive . . . preemption will be

found if state law 'stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.'" As with the three

general types of preemption, these categories are not

perfectly distinct, and in practice often overlap.

[Id. at 620 (alterations in original) (citations omitted).]

Thus, the issues are: (1) whether the HIPLA's regulation of home

inspectors is so pervasive as to render CFA liability inapplicable; (2) whether

there is conflict between the CFA and the HIPLA that renders compliance with

both a physical impossibility; and (3) whether the application of the CFA to

home inspectors would impede the achievement of the HIPLA's objectives.

Daaleman v. Elizabethtown Gas Co., 77 N.J. 267 (1978), is often cited

as a case where the Supreme Court held that a regulatory scheme preempted a

CFA claim. Daaleman was a class action against Elizabethtown Gas Co.

("Elizabethtown"), a privately owned public utility corporation operating under

the jurisdiction of the Board of Public Utility Commissioners of the State of

New Jersey ("PUC") pursuant to the Public Utilities Act. 77 N.J. at 268-70.

Although Elizabethtown's rates were fixed by PUC, an administrative order

allowed utilities such as Elizabethtown to include in its tariff a Purchased Gas

Adjustment Clause allowing it to make automatic adjustments in its customer

billings to account for variations in the cost of purchasing and storing gas. Id.

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40

at 270 (citing N.J.A.C. 14:11-1.13). PUC required Elizabethtown to submit

detailed statements of any cost figures and adjustments to its tariff pursuant to

the order. Ibid. The Daaleman class action alleged Elizabethtown

overcharged customers under the Purchased Gas Adjustment Cause. Ibid.

Under those unique facts, the Supreme Court held that plaintiffs' CFA

action was preempted by the PUC regulations. Id. at 271. In that regard, the

Court reasoned that

a Purchased Gas Adjustment Clause is a tariff

mechanism, permitted under PUC's administrative

order. Application of the clause involves

interpretation of the PUC administrative order and

regulations. Its use is subject to PUC supervision and

control. Misuse of this type of clause, whether

intentional or otherwise, and the remedies therefor are

matters as to which PUC has been vested with

exclusive jurisdiction.

[Ibid. (emphasis added).]

The Court held that were Elizabethtown's use of the Purchased Gas

Adjustment Clause be subject to challenge under the CFA, "separate state

agencies would have the right to exercise concurrent jurisdiction and control

over Elizabethtown's billings, with a real possibility of conflicting

determinations, rulings and regulations affecting the identical subject matter."

Id. at 272.

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41

Significantly, Justice Pashman's concurring opinion in Daaleman notes

that Elizabethtown's immunity is limited to matters involving rate setting. Id.

at 274 (Pashman, J., concurring). In that regard, Justice Pashman clarified that

"a regulated utility may nevertheless be covered by [the CFA] when it engages

in commercial activity not governed by the comprehensive scheme of PUC rate

regulation." Ibid.

There is no valid reason why a utility, simply by

reason of the fact that it is subject to regulation of its

rates in the public interest, should be exempt from the

Act if it should commit fraud in connection with the

marketing of merchandise. To take a currently

obvious example, the telephone company's persistent

efforts to convince consumers to purchase

"personalized," custom-designed phones are no

different from the attempts of any other manufacturer

to effectively advertise and sell its products.

Suppliers of fuel will often sell related equipment,

such as oil burners, fuel tanks or gas and electric

ranges in connection with their regulated activity.

Conduct of this type should not be exempt from

N.J.S.A. 56:8-2 merely because of the fortuitous

circumstance that the vendor involved is a utility

subject to PUC regulation on unrelated matters. If a

utility engages in practices of the type proscribed by

the Consumer Fraud Act, N.J.S.A. 56:8-2, it should be

subject to the same penalties as any other vendor.

[Ibid.]

Thus, Daaleman did not accord blanket CFA immunity to Elizabethtown, but

only immunity from claims related to rate-setting.

A-5686-17T1

42

Turning to the facts in this case, plaintiffs allege defendant failed to

disclose in his report significant problems of which he was aware, and that as a

result plaintiffs have sustained substantial economic loss. Although the

allegations essentially mirror the violation enumerated in N.J.A.C. 13:40 -

15.19(a)(21), they cannot be said to conflict with the regulation; rather the

CFA action is supplemental to and in furtherance of the remedies of the

HIPLA, as the Legislature intended. In that regard, as in this case, a violation

of the regulation may permissibly be presented as evidence (although no t

conclusive) that the home inspector also violated the CFA. See Reyes v.

Egner, 404 N.J. Super. 433, 458 (App. Div. 2009) (discussing "established

precedents treating statutory or regulatory violations as non-dispositive proof

of negligence"), aff'd, 201 N.J. 417 (2010).

Moreover, there is no provision in the statute and regulations that

provides the committee with the comprehensive oversight of a home

inspector's conduct, as was the case in public utility rate-setting cases such as

Daaleman. In that regard, home inspectors do not submit documentation of

their work, such as their reports, to the Committee for review. Nor does the

agency inspect home inspectors' work on a routine basis or set their rates.

Beyond this, as the Attorney General notes, the scope of the Home

Inspector Regulations is not as broad as the CFA. For example, while the

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43

Home Inspector Regulations address the advertising of home inspector

services, N.J.A.C. 13:40-15.18 and -15.19(a)(13), they do not expressly cover

the sale of such services. Thus, language in a home inspection contract

requiring the consumer to waive his or her rights under federal or state law

might be found to be unconscionable or deceptive under the CFA with no

similar prohibition in the Home Inspector Regulations.

In addition, as to a private litigant, the CFA provides for greater

potential monetary recovery in the form of treble damages, N.J.S.A. 56:8-19,

as compared with the UEA, which would appear to limit restitution to

reimbursement of the $350 plaintiffs paid for the inspection, N.J.S.A. 45:1-

22(d). Thus, recovery under the CFA would not conflict, but be supplemental

to and complementary to, the remedies afforded to the State under the HIPLA.

In that regard, there is no mechanism under the HIPLA to make plaintiffs

whole. In cases where damages are limited, this would create a disincentive

for attorneys to pursue claims against unscrupulous home inspectors – which is

the precise reason the Legislature amended the statute to create a private cause

of action in the first place.

In short, there is simply no evidence that the HIPLA's regulation of

home inspectors is so pervasive as to render CFA liability inapplicable; no

evidence of a conflict between the CFA and the HIPLA that renders

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compliance with both a physical impossibility; and no evidence that the

application of the CFA to home inspectors would impede the achievement of

the HIPLA's objectives. Thus, we discern no conflict, let alone a direct and

unavoidable conflict, that would bar plaintiffs' claims.

C.

In summary, considering the CFA's remedial intent and that exceptions

to remedial statutes must be narrowly construed, we decline to extend the

learned professional exception to licensed home inspectors simply because

they are regulated by the HIPLA. Giving due deference to the Attorney

General's and Division's authority to enforce the CFA, we discern no reason to

disagree with the Attorney General that the learned professional exception

should be limited only to historically recognized learned professionals, such as

doctors, as recognized in Macedo.

We similarly agree with the Attorney General that Lemelledo sets forth

the appropriate test by which to evaluate whether the existence of a separate

regulatory scheme exempts a class of semi-professionals from the CFA's

sweeping reach. Applying Lemelledo's test in this case, we have uncovered no

direct and unavoidable conflict between the CFA and the HIPLA, and find that

defendant has not overcome the presumption that the CFA applies to his

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services as a licensed home inspector. We thus reverse the trial court's

dismissal of plaintiffs' CFA claims.

Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

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___________________________________

SABATINO, P.J.A.D., concurring.

For the reasons expressed in Judge Mitterhoff's well-crafted opinion, I

join with my colleagues in reversing the trial court's determination that the

defendant home inspector is exempt from liability under the Consumer Fraud

Act ("CFA").

In doing so, I recognize that thirteen years ago I served on the appellate

panel in Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551

(App. Div. 2006), which held that an insurance broker is a regulated "semi-

professional" who is excluded from liability under the CFA.

Unlike in Plemmons, in the present case our court has the benefit of the

advocacy of the Attorney 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. The Attorney General also raises substantial policy considerations

from his unique perspective as both an enforcer of the CFA and as overseer of

the Division that regulates home inspectors.

With all due respect, I've changed my mind. 1

1

See, e.g., Olds v. Donnelly, 150 N.J. 424, 440-42 (1997) (in which Justice

Pollock explained why the Court was departing from an approach of one of its

(continued)

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.

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.

Of course, as the majority opinion points out, if there is a direct clash

between the CFA and the regulatory scheme, limitations of preemption can

pertain. But no such clash has been identified here.

That said, this case may well present a suitable opportunity for the 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.

(continued)

previous decisions "[o]n further consideration," because experience had shown

the approach had not fulfilled expectations).

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