Opinion
No. CV 08-5020984-S
February 17, 2009
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is a three-count complaint against an engineering firm alleging breach of contract relative to the design of a detention pond, alleging that defendant failed to obtain a necessary environmental permit.
The defendant moves to strike the second count of the plaintiff's complaint, alleging a violation of CUTPA, on the ground that CUTPA does not apply to professional engineering services of the type provided in this case and the complaint is not based on the entrepreneurial or commercial aspects of the defendant's business.
A professional malpractice does not generally give rise to a cause of action under CUTPA. Beverly Hills Concepts, Inc. v. Schatz Schatz, 247 Conn. 48, 79, 717 A.2d 724 (1998). It is well settled that CUTPA claims against attorneys; Beverly Hills Concepts, Inc. v. Schatz Schatz, supra, 247 Conn. 79; and medical practitioners; Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-38, 699 A.2d 964 (1997); must be based on the entrepreneurial aspects of the profession. The Appellate Courts, however, have not addressed whether this rule extends to any other professional categories.
A number of Superior Courts have found that the Haynes exclusion extends to the engineering profession. See Hendriks Associates, LLC v. Old Lyme Marina, Inc., supra, 30 Conn. L. Rptr. 26; Stamford IHOP, Inc. v. Torello, Superior Court, judicial district of New Haven, Docket No. 425893 (January 24, 2001, Thompson, J.); Worldwide Preservation Services, LLC v. IVth Shea, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 167154 (February 1, 2001, Tierney, J.) (29 Conn. L. Rptr. 7); but see Triton Environmental, Inc. v. Dalton Enterprises, Inc. Superior Court, judicial district of New Haven, Docket No. 3482647 (January 10, 2005, Levin, J.).
Like attorneys and health care providers, engineers are extensively regulated by a state agency other than the Department of Consumer Protection . . . The [state board of examiners for professional engineers and land surveyors] has the authority to conduct investigations into complaints about the conduct of engineers and to impose sanctions on engineers, including revocation or suspensions of licenses." Worldwide Preservation Services, LLC v. IVth Shea, supra, 29 Conn. L. Rptr. 10.
It appears that the entrepreneurial rule is broad enough in scope to encompass the engineering profession. Furthermore, both Haynes and Beverly Hills Concepts illustrate this rule in broad strokes, stating that professional malpractice cannot be the basis for a CUTPA claim. Beverly Hills Concepts, Inc. v. Schatz Schatz, supra, 247 Conn. 79; Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 34. Finally, the Appellate Court subsequently extended the rule to clinical psychologists. Rumbin v. Baez, 52 Conn.App. 487, 727 A.2d 744 (1999).
In extending the entrepreneurial rule to the practice of accounting, Judge Aurigemma noted that "[a]ccounting, like law and medicine, is a learned profession that is not interchangeable with other commercial endeavors. Deviations from the standard of care . . . are not the type of actions [CUTPA was] designed to prevent." The Advest Group, Inc v. Arthur Anderson, LLP, Superior Court, Docket No. CV 97-057141 (July 28, 1998, Aurigemma, J.).
If the entrepreneurial exception applies to the engineering field, only the commercial or entrepreneurial aspects of the engineering profession are subject to CUTPA. In this case, the plaintiff has not alleged that the defendant's failures were involved in an entrepreneurial activity.
Motion to strike count two granted.