specially concurring:
The question presented in this case is whether the allegations of malpractice and negligent representation as set forth in counts V and VI of plaintiffs’ complaint were legally sufficient to state a cause of action against defendant PriceWaterhouse Coopers, LLP (PWC).
In dismissing count V of plaintiffs’ complaint, the trial court held that “as a threshold matter, plaintiffs must allege the existence of a relationship between the parties that gives rise to a duty.” The court then went on to state that, in effect, because plaintiffs did not allege that PWC’s “primary intent” was to benefit or influence plaintiffs, they “failed to establish that PWC owed a duty to plaintiffs.” Essentially, the court equated “primary intent” with “duty,” finding that if plaintiffs failed to sufficiently allege primary intent, they then failed to establish duty. The trial court then went on to consider count VI of plaintiffs’ complaint and, based on the above reasoning, concluded that plaintiffs failed to “adequately” allege that defendant had a duty to protect the financial interests of plaintiffs.
To determine whether the trial court properly granted PWC’s motion to dismiss, we must ultimately consider whether it was necessary for plaintiffs to allege in their complaint that the “primary intent” of the Lipper Funds was for PWC’s services to “benefit or influence” plaintiffs. I respectfully agree with Presiding Justice Hoffman that this question must be answered in the negative. In order to state a common law cause of action for malpractice and/or negligent misrepresentation, plaintiffs must allege duty, breach of duty and injury proximately caused by the breach. Plaintiffs are not required to plead “primary intent.” As stated by Presiding Justice Hoffman, “primary intent,” is properly pled as an affirmative defense provided fay section 30.1 of the Illinois Public Accounting Act (225 ILCS 450/ 30.1 (West 2002)). I concur in the result reached by Justice South and join in the reasoning characterizing section 30.1 as an affirmative defense as set out by Presiding Justice Hoffman.