Filed: Apr. 16, 2013
Latest Update: Mar. 28, 2017
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEAL ELEVENTH CIRCUIT _ APRIL 16, 2013 No. 09-11718 JOHN LEY _ CLERK D. C. Docket No. 08-80254-CV-DTKH TIARA CONDOMINIUM ASSOCIATION, INC., A Florida non-profit corporation, In its own name and as agent for all owners of record of all individual condominium parcels with the Tiara Condominium, Plaintiff-Appellant, versus MARSH & MCLENNAN COMPANIES, INC., a Delaware Corporation, MARSH, INC., MARSH, USA,
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEAL ELEVENTH CIRCUIT _ APRIL 16, 2013 No. 09-11718 JOHN LEY _ CLERK D. C. Docket No. 08-80254-CV-DTKH TIARA CONDOMINIUM ASSOCIATION, INC., A Florida non-profit corporation, In its own name and as agent for all owners of record of all individual condominium parcels with the Tiara Condominium, Plaintiff-Appellant, versus MARSH & MCLENNAN COMPANIES, INC., a Delaware Corporation, MARSH, INC., MARSH, USA, I..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEAL
ELEVENTH CIRCUIT
_____________
APRIL 16, 2013
No. 09-11718 JOHN LEY
_____________
CLERK
D. C. Docket No. 08-80254-CV-DTKH
TIARA CONDOMINIUM ASSOCIATION, INC.,
A Florida non-profit corporation,
In its own name and as agent for all owners
of record of all individual condominium
parcels with the Tiara Condominium,
Plaintiff-Appellant,
versus
MARSH & MCLENNAN COMPANIES, INC.,
a Delaware Corporation,
MARSH, INC.,
MARSH, USA, INC.,
Defendants-Appellees.
______________
Appeal from the United States District Court
for the Southern District of Florida
______________
(April 16, 2013)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD, *
District Judge.
DUBINA, Chief Judge:
As we stated in our earlier opinion recorded at Tiara Condominium
Association, Inc., v. Marsh & McClennan Companies, Inc., 607 F.3d 742 (11th Cir.
2010), this appeal arises from a contract between an insurance broker and the
association responsible for managing the condominium tower located on Singer
Island, Florida. The tower suffered extensive wind damage from two hurricanes in
September 2004. The condominium association claimed that the broker caused
part of its losses by failing to procure an adequate insurance policy for the
condominium. In our earlier opinion, we were able to resolve the issues raised on
appeal with respect to the association’s claims for breach of contract, breach of the
implied covenant of good faith and fair dealing, and negligent misrepresentation.
We affirmed the district court’s grant of summary judgment on all of those claims.
Concerning the claims for negligence and breach of fiduciary duty, because we
concluded that Florida law was unclear, we certified the following question to the
Supreme Court of Florida concerning Florida’s application of the economic loss
rule:
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
2
CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT
OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE
SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:
DOES AN INSURANCE BROKER PROVIDE A “PROFESSIONAL
SERVICE” SUCH THAT THE INSURANCE BROKER IS UNABLE TO
SUCCESSFULLY ASSERT THE ECONOMIC LOSS RULE AS A BAR TO
TORT CLAIMS SEEKING ECONOMIC DAMAGES THAT ARISE FROM THE
CONTRACTUAL RELATIONSHIP BETWEEN THE INSURANCE BROKER
AND THE INSURED?
In certifying our question, we noted that the Supreme Court of Florida
retains the discretion to restate the issue and to answer the question in the manner it
chooses. See Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904 (11th Cir. 2007).
The Supreme Court of Florida did precisely that. It restated the certified question
as follows:
DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT
AGAINST AN INSUANCE BROKER WHERE THE PARTIES ARE IN
CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES
SOUGHT ARE SOLELY FOR ECONOMIC LOSSES?
3
The Supreme Court of Florida answered its question in the negative and held
that the application of the economic loss rule was limited to products liability
cases. Accordingly, based on the opinion the Supreme Court of Florida filed with
the Eleventh Circuit Court of Appeals on March 11, 2013, and attached hereto as
“Appendix I,” we vacate the district court’s grant of summary judgment in favor
of Marsh on Tiara’s claims for negligence and breach of fiduciary duty and remand
those claims for the district court to reconsider them in light of the Supreme Court
of Florida’s opinion.
VACATED and REMANDED.
4
APPENDIX I
Supreme Court of Florida
No. SC 10-1022
TIARA CONDOMINIUM ASSOCIATION, INC., etc.,
Appellant,
vs.
MARSH & MCLENNAN COMPANIES, INC., etc., et a!.
Appellees.
[March 7, 2013]
LABARGA, J.
This case is before the Court for review of a question of Florida law certified
by the United States Court of Appeals for the Eleventh Circuit that is determinative
of a cause pending in that court and for which there appears to be no controlling
precedent. We have jurisdiction. art. V, § 3(bX6), Fla. Const. In Tiara
Condominium Ass'n, Inc. v. Marsh & McLennan Co., Inc., 607 F.3d 742, 749
Cir. 2010), the Eleventh Circuit certified the following question to this Court:
DOES AN INSURANCE BROKER PROVIDE A "PROFESSIONAL
SERVICE" SUCH THAT THE INSURANCE BROKER IS
UNABLE TO SUCCESSFULLY ASSERT THE ECONOMIC LOSS
RULE AS A BAR TO TORT CLAIMS SEEKING ECONOMIC
DAMAGES THAT ARISE FROM THE CONTRACTUAL
RELATIONSHIP BETWEEN THE INSURANCE BROKER AND
THE INSURED?
Because the question as certified by the Eleventh Circuit is premised on the
continued applicability of the economic loss rule in cases involving contractual
privity, we restate the certified question as follows:
DOES THE ECONOMIC LOSS RULE BAR AN INSURED'S SUIT
AGAINST AN INSURANCE BROKER WHERE THE PARTIES
ARE IN CONTRACTUAL PRIVITY WITH ONE ANOTHER AND
THE DAMAGES SOUGHT ARE SOLELY FOR ECONOMIC
LOSSES?
We answer this question in the negative and hold that the application of the
economic loss rule is limited to products liability cases. Therefore, we recede from
prior case law to the extent that it is inconsistent with this holding. We begin by
discussing the facts and procedural background of this case. We then turn to our
analysis.
FACTS AND PROCEDURAL BACKGROUND
The facts of this case are set forth in the Eleventh Circuit Court of Appeals'
opinion in Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Co.. Inc., 607
F.3d 742 (11th Cir. 2010). We summarize the facts here. Tiara Condominium
Association (Tiara) retained Marsh & McLennan (Marsh) as its insurance broker.
One of Marsh's responsibilities was to secure condominium insurance coverage.
Marsh secured windstorm coverage through Citizens Property Insurance
Coiporation (Citizens), which issued a policy that contained a loss limit in an
amount close to 50 million. In September 2004, Tiara's condominiu
m sustained
significant damage caused by hurricanes Frances and Jeanne. Tiara began
the
process of loss remediation. After being assured by Marsh that the loss
limits
coverage was per occurrence (meaning that Tiara would be entitled to
almost $100
million rather than coverage in the aggregate, which would be half of
that amount),
Tiara proceeded with more expensive remediation efforts. However, when
Tiara
sought payment from Citizens, Citizens claimed that the loss limit was
$50 million
in the aggregate, not per occurrence. Eventually, Tiara and Citizens settle
d for
approximately $89 million, but that amount was less than the more than
$100
million spent by Tiara.
In October 2007, Tiara filed suit against Marsh, alleging (1) breach of
contract, (2) negligent misrepresentation, (3) breach of the implied coven
ant of
good faith and fair dealing, (4) negligence, and (5) breach of fiduciary
duty. The
trial court granted summary judgment in favor of Marsh on all claims
and Tiara
appealed to the Eleventh Circuit. The appeals court concluded that summ
ary
judgment was proper as to the breach of contract, negligent misreprese
ntation, and
breach of implied covenant of good faith and fair dealing claims.' Howe
ver, the
appeals court did not affirm the summary judgment granted by the trial
court on
1. The Eleventh Circuit concluded that Marsh correctly interpreted the
policy as containing a peroccurrence limit of liability. $ Tiara, 603
F.3d at 747,
the negligence and breach of fiduciary duty claims, which were based
on Tiara's
allegations that Marsh was either negligent or breached its fiduciary
duty by failing
to advise Tiara of its complete insurance needs and by failing to advis
e Tiara of its
belief that Tiara was underinsured. As to these two claims, the appe
als court
certified a question to this Court to determine whether the economic
loss rule
prohibits recovery, or whether an insurance broker falls within the
professional
services exception that would allow Tiara to proceed with the claim
s. We turn
now to a discussion of the economic loss rule.
ANALYSIS
Origin and Development of the Economic Loss Rule
"The exact origin of the economic loss rule is subject to some deba
te and its
application and parameters are somewhat ill-defined." Moransais
v. Heathman,
744 So. 2d 973, 979 (Fla. 1999). In its simplest form, we noted, the
rule appeared
initially in both state and federal courts in products liability type cases
. at 979.
A historical review of the doctrine reveals that it was introduced to
address
attempts to apply tort remedies to traditional contract law damages.
In Casa Clara
Condominium Ass'n, Inc. v. Chancy Toppino and Sons, Inc., 620
So. 2d 1244
(Fla. 1993), we recognized the economic loss rule as "the fundament
al boundary
between contract law, which is designed to enforce the expectancy
interests of the
parties, and tort law, which imposes a duty of reasonable care and
thereby
encourages citizens to avoid causing physical harm to others." j4
at 1246 (quoting
Sidney R. Barrett, Jr., Recovery of Economic Loss in Tort for Cons
truction
Defects: A Critical Analysis, 40 S.C.L. Rev, 891. 894 (1989)). We
have defined
economic loss as "damages for inadequate value, costs of repair and
replacement
of the defective product, or consequent loss of profits-without any
claim of
personal injury or damage to other property." Casa Clara, 620 So.
2d at 1246
(quoting Note, Economic Loss in Products Liability Jurisprudence,
66 Colum, L.
Rev. 917, 918 (1966)). We further explained that economic loss
includes "the diminution in the value of the product because
it is inferior in quality and does not work for the general purposes
for which it was manufactured and sold." Comment, Manufacturers'
Liability to Remote Purchasers for "Economic Loss" Damages-Tort
or Contract?, 114 U. Pa. L. Rev. 539, 541 (1966). In other words,
economic losses are "disappointed economic expectations," which
are protected by contract law, rather than tort law. Sensenbrenner
v. Rust, Orling & Neale Architects, Inc., 236 Va. 419,
374 S.E.2d
55,
58 (1988); Stuart v. CoIdwell Banker Commercial Group, Inc., 109
Wash. 2d 406,
745 P.2d 1284 (1987).
Casa Clara,
620 So. 2d at 1246.
Simply put, the economic loss rule is a judicially created doctrine that
sets
forth the circumstances under which a tort action is prohibited if the
only damages
suffered are economic losses. Indem. Ins. Co. of N, Am. v. Am. Avia
tion, Inc.,
891 So. 2d 532, 536 (Fla. 2004). The Ic has its roots in the products liability
arena, and was primarily intended to limit actions in the products liabil
ity context,
Despite its underpinnings in the products liability context, the economic loss
rule has also been applied to circumstances when the parties are in contractual
privity and one party seeks to recover damages in tort for matters arising from
the
contract.
Contractual Privity Economic Loss Rule
"The prohibition against tort actions to recover solely economic damages for
those in contractual privily is designed to prevent parties to a contract from
circumventing the allocation of losses set forth in the contract by bringing an
action for economic loss in tort." Am. Aviation, 891 So. 2d at 536 (citing
Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490,494 (Fla. 3d DCA 1994)
("Where damages sought in tort are the same as those for breach of contract a
plaintiff may not circumvent the contractual relationship by bringing an action
in
tort.")). When the parties are in privity, contract principles are generally more
appropriate for determining remedies for consequential damages that the parties
have, or could have, addressed through their contractual agreement. Accordingly
,
courts have held that a tort action is barred where a defendant has not committed
a
breach of duty apart from a breach of contract. Am, Aviation, 891 So, 2d at 536-
37); Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 103 (Fla. 4th DCA
1969) ("[Nb cause of action in tort can arise from a breach of a duty existing by
virtue of contrac
The contractual privity application of the economic oss rule is best
exemplified by our derision in AFM Corp. v, Southern Bell Telephone
&
Telegraph Co., 515 So, 2d 180 (Fla. 1987),2 There, AFM entered into
an
agreement with Southern Bell that included placing AFM's advertisin
g in the
yellow pages. See id. at 180. However, Southern Bell listed an incor
rect phone
number for AFM, causing AFM economic damages. In asserting a claim
I
for economic losses, AFM chose to proceed solely on a negligence
theory in the
trial court below rather than base its theory of recovery on any agreement
between
the parties. jç at 181. Tn determining that AFM could not recover economic
losses based on a tort theory, this Court noted that AFM's contract with
Southern
Bell "defined the limitation of liability through bargaining, risk accep
tance, and
compensation." jç Because AFM had not proved that Southern Bell committed a
tort independent of the breach of contract, this Court concluded that
AFM had no
basis for recovery in negligence. $
Subsequently, in American Aviation, we recognized that despite the
gener al
prohibition against a recovery in tort for economic damages for partie
s in privity ol
contract, we have allowed it in torts committed independently of the
contract
breach, such as fraud in the inducement. 891 So. 2d at 537. For example, in
2. We later receded from AFM to the extent that it was unnecessarily
expansive in its reliance on the economic loss rule as opposed to funda
mental
contractual principles. $ American Aviation, 891 So. 2d at 542.
HTP, Ltd. v. Lineas Aereas Costarricences, S.A.
685 So. 2d 1238 (Fla.
1996), we
stated:
The economic loss rule has not eliminated causes of action based
upon torts independent of the contractual breach even though there
exists a breach of contract action. Where a contract exists, a tort
action will lie for either intentional or negligent acts considered to
be independent from the acts that breached the contract. Fraudulent
inducement is an independent tort in that it requires proof of facts
separate and distinct from the breach of contract.
Am. Aviation, 891 So. 2d at 537 (quoting HTP, Ltd., 685 So. 2d at 1239
(citations
omitted)), See also PK Ventures, Inc. v. Raymond James & Assocs., 690
So. 2d
1296 (Fla. 1997) (economic loss rule did not preclude a cause of action
by the
buyer of commercial property against the seller's broker for negligent
misrepresentation).3
Another situation in which this Court has determined that public policy
dictates that liability not be limited to the terms of the contract involves
cases such
as those alleging neglect in providing professional services. See, e.g.,
Moransais,
744 So. 2d at 983 ("While provisions of a contract may impact a legal
dispute,
3. In Moransais, in describing our refusal to apply our past liberal
application of the economic loss rule in PK Ventures and HTP, Ltd., we
made the
following observation: "More recently this Court has recognized the dange
r in an
unprincipled extension of the rule, and we have declined to extend the
economic
loss rule to actions based on fraudulent inducement and negligent
misrepresentation." 744 So. 2d at 981.
including an action for professional services, the mere existence of such
a contract
should not serve per se to bar an action for professional malpractice.").
Products Liability Economic Loss Rule
Although the economic loss rule has, over time, been extended to the
contractual privity context, the roots of the rule may be found in the produ
cts
liability context. The products liability economic loss rule developed to
protect
manufacturers from liability for economic damages caused by a defective
product
beyond those damages provided by warranty law. Am. Aviation, 891
So. 2d at
537-38. As the theory of strict liability replaced the theory of impli
ed warra nties
with regard to actions based on defective products that resulted in perso
nal injury,
the issue arose as to whether the courts should permit a cause of action
in tort by
one who suffered purely economic loss due to a defective product. jj
at 539. For
those who were in contractual privity, actions based on breach of warra
nty
continued as the viable method if the only damages were economic in
nature. jj
But for those who were not in contractual privity and who sustained econo
mic
losses as a result of defective products, the question became what theor
y of
recovery would be proper. j,
The development of Florida's products liability economic loss rule can
be
traced to two cases: Seely v. White Motor Co., 403 P,2d 145, 149
(Cal. 1965), and
East River Steamship Corp. v. TransamericaDelaval, Inc., 476 U.S. 858,
871
(1986). In Seely, the California Supreme Court held that the doctrine of strict
liability in tort had not supplanted causes of action for breach of express warranty.
The court was confronted with a situation in which a plaintiff sought recovery
for
economic loss resulting from his purchase of a truck that failed to perform
according to expectations. $ j at 149. The California Supreme Court agreed
with the trial court that the defendant could recover the money he paid on the
purchase price of the truck and for his lost profits on the basis of breach of expres
s
warranty, see id. at 148, but rejected the argument that warranty law had been
superseded by the doctrine of strict liability. j at 149. The court concluded
that the strict liability doctrine was not intended to undermine the warranty
provisions of sales or contract law, but was designed to govern the wholly separa
te
and distinct problem of physical injuries caused by defective products. j4. at
149-50.
The California Supreme Court recognized that the rules of warranty
continued to function well in a commercial setting, allowing the manufacturer
to
determine the quality of the product and the scope of its liability if the product
failed to perform. The court reasoned that a manufacturer's liability under that
theory would extend to all subsequent purchasers regardless of whether the
manufacturer's promise regarding the fitness of the product was ever
communicated to those purchasers. If the manufacturer were strictly liable for
economic losses resulting from the failure of its product to perform as promised
by
the warranty, it would be liable not only to the initial purchaser, but to every
consumer who subsequently obtained possession of the product. . at 150.
In East River, the United States Supreme Court adopted the reasoning in
Seely when it considered the issue of economic loss resulting from defective
products in the context of admiralty. According to the Supreme Court, when the
damage is to the product itself, "the injury suffered-the failure of the product to
function properly-is the essence of a warranty action, through which a
contracting party can seek to recoup the benefit of its bargain." East River,
476 U.S. at 868 (emphasis supplied). The Court stated:
Contract law, and the law of warranty in particular, is well
suited to commercial controversies of the sort involved in this case
because the parties may set the terms of their own agreements.
Th
manufacturer can restrict its liability, within limits, by disclaiming
warranties or limiting remedies. In exchange, the purchaser pays less
for the product.
at 872-73 (emphasis supplied) (footnote and citation omitted). Recognizing
that extending strict products liability to cover economic damage would result in
"contract law. . . drown{ing] in a sea of tort," id. at 866, the Supreme Court held
that "a manufacturer in a commercial relationship has no duty under either a
negligence or strict products-liability theory to prevent a product from injuring
itself," Id. at 871. Thus, from the outset, the focus of the economic loss rule was
directed to damages resulting from defects in the product itself.
Relying on the reasoning in Seely and East River, this Court adopted the
products liability economic loss rule, precluding recovery of economic damages in
tort where there is no property damage or personal injury, in Florida Power &
Light Co. v. Westinghouse Elec. Corp, 510 So. 2d 899 (Fla. 1987), our seminal
case on the applicability of the economic loss rule. Florida Power & Light (FPL)
entered into contracts with Westinghouse in which Westinghouse agreed to design,
manufacture, and furnish two nuclear steam supply systems, including six steam
generators. FPL discovered leaks in all six generators. FPL brought suit, alleging
that Westinghouse was liable for breach of express warranties in the contracts and
for negligence, and sought damages for the cost of repair, revision, and inspection
of the steam generators. Ick at 900.
In determining whether Florida law permitted FPL to recover the economic
losses in tort without a claim for personal injury or separate property damage, this
Court considered the policy issues supporting the application of a rule that limits
tort recovery for economic losses when a product damages itself. j Concluding
that warranty law was more appropriate than tort law for resolving economic losses
in this context, the Court adopted the holding in East River that "a manufacturer in
a commercial relationship has no duty under either a negligence or strict products
liability theory to prevent a product from injuring itself," Florida Power, 510 So.
2d at 901 (quoting East River, 476 U.S. at 871). Thus, as we reaffi
rmed in
American Aviation:
The economic loss rule adopted in Florida Power represents this
Court's pronouncement that, notwithstanding the theory of strict
liability adopted in West,[41 strict liability has not replaced warra
nty
law as the remedy for frustrated economic expectations in the sale
of
goods. In exchange for eliminating the privity requirements of
warranty law and expanding the tort liability for manufacturers of
defective products which cause personal injury, we expressly limite
d
tort liability with respect to defective products to injury caused to
persons or damage caused to property other than the defective produ
ct
itself.
Am. Aviation, 891 So. 2d at 541. We also noted that "the products
liability
economic loss rule articulated in Seely and East River, and adopted
by this Court
in Florida Power, applies even in the absence of privity of contract."
jc (citing
Airport Rent-ACar, Inc. v. Prevost Car, Inc., 660 So. 2d 628, 631
(Fla. 1995)
(holding cause of action for negligence against manufacturer of defec
tive buses
was barred by the economic loss rule notwithstanding absence of
privity)); see also
Casa Clara, 620 So. 2d at 1248 (holding cause of action against manu
facturer of
defective concrete was barred by the economic loss rule notwithstan
ding absence
of privity).
Simply stated, "[t]he essence of the early holdings discussing the
rule is to
prohibit a party from suing in tort for purely economic losses to a
product or object
4. In West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla, 1976
), we
adopted the theory of strict products liability in Florida.
provided to another for consideration, the rationale being that in those cases
'contract principles [are] more appropriate than tort principles for resolving
economic loss without an accompanying physical injury or property damage.'"
Moransais, 744 So. 2d at 980 (citing Florida Power,
510 So. 2d at 902). Such was
the reasoning in East River, Seely, and ultimately, Florida Power,
An examination of the application of the economic loss rule in Florida from
its inception to our ruling in Florida Power, reveals that this Court adhered strictl
y
to the reasoning of East River and Seely. Subsequent to our ruling in Florida
Power, however, we issued a number of rulings which, as aptly stated in Moran
sais,
"appeared to expand the application of the rule beyond its principled origins and
have contributed to applications of the rule by trial and appellate courts to
situations well beyond our original intent," Moransais, 744 So. 2d at 980. For
example, in AFM, as previously discussed, we extended the economic loss rule
to
preclude a negligence claim arising from breach of a service contract in a
nonprofessional service context, See AFM, 515 So. 2d at 181. We also noted
in
Moransais, that "[w]hile we continue to believe the outcome of [AFM] is sound
,
we may have been unnecessarily over-expansive in our reliance on the economic
loss rule as opposed to fundamental contractual principles." Moransais, 744 So.
2d
at 981.
In Casa Clara, we held that the economic loss rule barred a cause of action in
tort for providing defective concrete where there was no personal injury or damag
e
to property other than to the product itself.5 Casa Clara, 620 So. 2d at 1248. In
Airport Rent-A-Car, we followed the reasoning in Casa Clara in holding the
economic loss rule barred a cause of action for negligence against the manufacture
r
of defective buses where the only damage alleged was to the buses themselves.
Airport Rent-A-Car, 660 So. 2d at 630-31.
In American Aviation, in recognizing our history of unprincipled extension
of the rule, we concluded that the economic loss rule should be expressly limite
d to
the original rationale and intent of Seely, East River, and Florida Power, and held
that a manufacturer or distributor in a commercial relationship has no duty beyon
d
that arising from its contract to prevent a product from malfunctioning or
damaging itself. Am. Aviation, 891 So. 2d at 542. "In other words, we reaffir
m
our recognition of the products liability economic loss rule." j at 543. Despite
this recognition, we expressly noted that the "other property" exception to the
products liability economic loss rule remained viable. In addition to the "other
5. Our opinion, however, was not unanimous, especially as to our
characterization of "other property." We stated that tort law was designed to
protect the interest of society as a whole by imposing a duty of reasonable care
to
prevent property damage or physical harm to others, whereas contract law operat
es
to protect the economic expectations of the contracting parties when a "product"
is
the object of the contract, Casa Clara, 620 So. 2d at 1246.
15 -
property" exception, we also reaffirmed that in cases involving either privity of
contract or products liability, the other exceptions to the economic loss rule that we
have developed, such as for professional malpractice,6 fraudulent inducement,7 and
negligent misrepresentation,8 or free-standing statutory causes of action still
apply.9 Am. Aviation, 891 So. 2d at 543. We expressly emphasized, "[tjhese
exceptions remain untouched by our ruling today."
Thus, despite our effort to roll back the economic loss rule to its products
liability roots, we left untouched a number of exceptions which continue to extend
the application of the rule beyond our original limited intent.
A Legacy of Unprincipled Expansion
For some time, as reflected by the foregoing discussion, this Court has been
concerned with what it perceived as an over-expansion of the economic loss rule.
We began expressing this concern in Moransais, where we noted our refusal to
extend its application to actions based on fraudulent inducement and negligent
representation cases. at 981 (citing PK Ventures (negligent misrepresentation);
HTP (fraudulent inducement)). We observed,
6. See Moransais, 744 So. 2d at 983.
7. See HTP. Ltd., 685 So. 2d at 1239.
See PK Ventures, 690 So. 2d at 1297.
cmptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So. 2d
1219, 1221 (Fla. 1999)
the [economic loss] rule was primarily intended to limit actions in the
product liability context, and its application should generally be
limited to those contexts or situations where the policy considerations
are substantially identical to those underlying the product liability-
type analysis. We hesitate to speculate further on situations not
actually before us. The rule, in any case, should not be invoked to bar
well-established causes of actions in tort, such as professional
malpractice.
Moransais, 744 So. 2d at 983 (footnote omitted). Five years later, in American
Aviation, we reaffirmed our concern with the over-expansion of the rule and again
noted that the economic loss rule should be expressly limited. We emphasized
this
concern with the following statement:
Several justices on this Court have supported expressly limiting
the economic loss rule to its principled origins. In Moransais, Justice
Wells stated "directly that it is [his] view that the economic loss rule
should be limited to cases involving a product which damages itself
by reason of a defect in the product." Moransais, 744 So. 2d at 984
(Wells, J., concurring). Two justices subsequently joined Justice
Wells when he reiterated this position in Comptech International, Inc.
v. Milam Commerce Park, Ltd., 753 So. 2d 1219 (Fla. 1999). Seeid.
at 1227 (Wells, J., concurring with an opinion in which Justices Lewis
and Pariente joined).
Am. Aviation, 891 So. 2d at 542. Thus, in Moransais, Comptech, and American
Aviation, this Court clearly expressed its desire to return the economic loss rule
to
its intended purpose-to limit actions in the products liability context, In each
instance, however, we left intact a number of exceptions that continue the rule's
unprincipled expansion. We simply did not go far enough.
Having reviewed the origin and original purpose of the economic loss rule,
and what has been described as the unprincipled extension of the rule, we now
take
this final step and hold that the economic loss rule applies only in the products
liability context. We thus recede from our prior rulings to the extent that they
have
applied the economic loss rule to cases other than products liability. The Court
will depart from precedent as it does here "when such departure is 'necessary to
vindicate other principles of law or to remedy continued injustice.' " Allstate
Indem. Co. v. Ruiz, 899 So. 2d 1121, 1131 (Fla. 2005) (quoting Haag v. State,
591
So. 2d 614, 618 (Fla. 1992)). Stare decisis will also yield when an established
rule
has proven unacceptable or unworkable in practice. Westgate Miami Beach,
Ltd. v. Newport Operating Corp., 55 So. 3d 576, 574 (Fla. 2010). Our experience
with the economic loss rule over time, which led to the creation of the exceptions
to the rule, now demonstrates that expansion of the rule beyond its origins was
unwise and unworkable in practice. Thus, today we return the economic loss rule
to its origin in products liability.
CONCLUSION
Because we now limit the application of the economic loss le to cases
involving products liability, it is not necessary for us to decide whether the
economic loss ru e excep ion for professionals applies to insurance brokers, Based
on the foregoing, we answer the rephrased certified question in the negative and
hold that the application of the economic loss rule is limited to products liabi
y
cases. Having answered the rephrased certified question, we return this case to
the
Eleventh Circuit Court of Appeals.
It is so ordered.
PARIENTE, LEWIS, QUINCE, and PERRY, JJ,, concur.
PARIENTE, J., concurs with an opinion, in which LEWIS and LABARGA,
JJ.
concur.
POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur with the majority's principled conclusion that the economic loss
rule is limited to the products liability context. I write to address Justice Canad
y's
assertion in dissent that the Court's decision represents a "dramatic unsettling of
Florida law," dissenting op. at 33 (Canady, J.), and to explain that the majority's
conclusion is fully consistent with the development of this Court's jurisprudence
on the applicability of the economic loss rule in Florida.
The majority's conclusion that the economic loss rule is limited to the
products liability context is not a departure from precedent, but instead simply
represents the culmination of the Court's measured articulation of the economic
loss rule's original intent, This view has been expressed various times, starting
in
19
Moransais v, Heathman, 744 So. 2d 973 (Ha. 1999), where Justice Wells stated
his
belief that "the economic loss rule should be limited to cases involving a produ
ct
which damages itself by reason of a defect in the product" and that some of the
Court's prior decisions had produced "confusion as to the rule's applicability."
at 984 (Wells, J., concurring). Justice Wells, joined by Justice Lewis and mysel
f,
similarly explained in Comptech International, Inc. v. Milam Commerce Pdc
Ltd., 753 So. 2d 1219, 1227 (Fla. 1999) (Wells, J., concurring), that "in order to
clarify the application of the economic loss rule," the Court should "expressly state
that its application is limited to product claims." Today, the Court has done so.
This decision provides clear guidance to the lower courts as to the meaning of
the
economic loss rule in Florida and is both doctrinally principled and consistent with
the trajectory of our prior precedent.
Our decision is neither a monumental upsetting of Florida law nor an
expansion of tort law at the expense of contract principles. To the contrary, the
majority merely clarifies that the economic loss rule was always intended to apply
only to products liability cases. Indem. Ins. Co. of N. Am. v. Am. Aviation,
Inc., 891 So. 2d 532, 541 (Fla. 2004) ("In exchange for eliminating the pr
requirements of warranty law and expanding the tort liability for manufacturers
of
defective products which cause personal injury [by adopting strict products
liability], we expressly limited tort liability with respect to defective products to
injury caused to persons or damage caused to property other than the defective
product itself."), This is because the rule itself acts merely as a specific
articulation of the proper approach for those products liability cases in which
contract principles, rather than tort principles, are best suited for resolving the
claim. $ Fla. Power & Light Co. v. Westinghouse Elec. Corp., 310 So. 2d 899,
901-02 (Fla. 1987) (citing with approval several district courts of appeal cases
holding that strict liability applies only where the plaintiff has suffered personal
injury or damage to other property and explaining that "contract principles [are]
more appropriate than tort principles for resolving economic loss without an
accompanying physical injury or property damage").
The majority's conclusion that the economic loss rule is limited to the
products liability context does not undermine Florida's contract law or provide
for
an expansion in viable tort claims. Basic common law principles already restric
t
the remedies available to parties who have specifically negotiated for those
remedies, and, contrary to the assertions raised in dissent, our clarification of the
economic loss rule's applicability does nothing to alter these common law
concepts. For example, in order to bring a valid tort claim, a party still must
demonstrate that all of the required elements for the cause of action are satisfied,
including that the tort is independent of any breach of contract claim. Lewis v.
Guthartz, 428 So. 2d 222, 224 (Fla. 1982) (holding that there must be a tort
"distinguishable from or independent of [the] breach of contract" in order for a
party to bring a valid claim in tort based on a breach in a contractual relationship);
Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel, Co.,
482 So. 2d 518, 519 (Fla. 3d DCA
1986) ("[A] breach of contract, alone, cannot constitute a cause of action in
tort,,,. It is only when the breach of contract is attended by some additional
conduct which amounts to an independent tort that such breach can constitute
negligence." (citations omitted)).
While the contractual privity form of the economic loss rule has provided a
simple way to dismiss tort claims interconnected with breach of contract clai 1
is neither a necessary nor a principled mechanism for doing so. Rather, these
claims should be considered and dismissed as appropriate based on basic
contractual principles-a proposition we reaffirmed in American Aviation, where
we stated that "when the parties have negotiated remedies for nonperformance
pursuant to a contract, one party may not seek to obtain a better bargain than it
made by turning a breach of contract into a tort for economic loss." Am. Aviation,
891 So. 2d at 542. The majority's decision does not change this statement of law,
but merely xplains that i common law principles of contract, rather than the
economic loss rule, that produce this result.
The economic loss rule is not a long-standing common law rule that has
always existed in our jurisprudence to define the parameters of cognizable contract
and tort causes of action, but is instead a doctrine that arose in the torts context
to
serve a specific purpose-to curb potentially unbounded liability following the
adoption of strict products liability. Indeed, we explicitly noted in American
Aviation that "[t]he econo )SS rule adopted in Florida Power represents this
Court's pronouncement that, notwithstanding the theory of strict liability adopte
d
in West[v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1 976)}, strict liability
has not replaced warranty law as the remedy for frustrated economic expectation
s
in the sale of goods." Am. Aviation, 891 So. 2d at 541. Accordingly, I believe
that limiting the rule to the specific context from which it developed is principled
because it prevents unnecessary complexity in the law and restricts the rule's
application to its "genuine, but limited, value in our damages law." Id. at 542
(quoting Moransais,
744 So. 2d at 983). In other words, as we first recognized
in
Moransais, "fundamental contractual principles" already properly delineate the
general boundary between contract law and tort law, Moransais, 744 So. 2d at
981. Application of the economic loss rule to serve this function outside the
products liability context simply allows for the possibility of confusion, overuse,
and the restriction of well-established common law remedies.
Indeed, this is exactly what has happened since we first adopted the
economic loss rule in Florida. Over time, the rule has been inadvertently extend
ed
to cover situations outside the context of products liability. at 980
("Unfortunately, however, our subsequent holdings have appeared to expand the
application of the rule beyond its principled origins and have contributed to
applications of the rule by trial and appellate courts to situations well beyond our
original intent."). Not only has this proved unworkable, as the majority aptly
notes, but it is outside the original intent of the rule and, indeed, of our prior
decisions, In my view, Justice Canady's assertion in dissent that the majority's
conclusion "repudiates our case law," dissenting op. at 28 (Canady, J.), is not
borne out by a close examination of the history of our economic loss rule cases.
We have repeatedly explained that the expansion of the economic loss rule
beyond products liability to cover situations in which the parties are in privity of
contract is best illustrated by AFM Corp. v. Southern Bell Telephone & Telegraph
Co., 515 So. 2d 180, 181 (FIa. 1987), where the Court held that there was "no basis
for recovery in negligence" since the plaintiff could not prove that "a tort
independent of the breach [of contract] itself was committed." The Court
subsequently indicated, however, that its decision in AFM "may have been
unnecessarily over-expansive" in its "reliance on the economic loss rule as
opposed to fundamental contractual principles." Moransais,
744 So. 2d at 981. In
2004, we receded from AFM "to the extent that it relied on the principles adopted
by this Court in Florida Power." Am. Aviation,
891 So. 2d at 542. Therefore,
since we essentially receded in American Aviation from this overexpans ion of the
rule, we need not specifically overrule any case today in order to explic
itly clarify
that the economic loss rule applies only to products liability cases.
Justice Canady points most recently to Curd v. Mosaic Fertilizer, LLC,
39
So. 3d 1216 (Fla. 2010), and American Aviation, as indicating that the
contractual
privity application of the economic loss rule is settled Florida law. While
those
two cases did list this application of the rule in reviewing its history, the
contractual privity use of the economic loss rule was not at issue in either
of those
cases. See Curd, 39 So. 3d at 1223; Am. Aviation, 891 So. 2d at 541. Curd
simply
restated general language from American Aviation, and American Aviat
ion used
AFM, from which it later partially receded, to illustrate how the contractua
l privity
form of the rule has been applied.
In the aftermath of American Aviation, which clearly stated an intent to
"expressly limit[}" the economic loss rule, American Aviation, 891 So.
2d at 542,
it was no longer clear whether our decisions permitted application of the
rule to
situations involving contractual privity. We now eliminate once and for
all any
confusion in the application of the economic loss rule remaining since
Moransais
and clearly espouse Justice Wells' view that "the economic loss rule shoul
d be
limited to cases involving a product which damages itself by reason of
a defec t in
the product." Moransais, 744 So, 2d at 984 (Wells, J., concurring). Far
from
upsetting firmly established principles, therefore, our decision resolves
any
ambiguity remaining from this line of cases and restores the economic loss rule
to
its principled roots. I concur fully in the majority's well-reasoned decision.
LEWIS and LABARGA, JJ., concur.
POLSTON, C.J., disse ig.
The Eleventh Circuit certified the following question:
Does an insurance broker provide a "professional
service" such that the insurance broker is unable to
successfully assert the economic loss rule as a bar to tort
claims seeking economic damages that arise from the
contractual relationship between the insurance broker and
the insured?
No. This Court's controlling precedent clearly answers the certified question in
the
negative. But without justification, the majority greatly expands the use of tort
law
at a cost to Florida's contract law, Now, there are tort claims and remedies
available to contracting parties in addition to the contractual remedies which,
because of the economic loss rule, were previously the only remedies available.'0
10. The following examples illustrate the type of cases that are now
overruled by the majority's opinion and will make available a wide arsenal of tort
claims previously barred by the economic loss rule. See, e.g., Geico Cas. Co. v.
Arce, 333 Fed. Appx. 396, 398 (11th Cir. 2009) (applying Florida law and barrin
g
civil conspiracy claim alleging failure to abide by contractual duty to defend);
Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Heidrick & Struggles, Inc., 188
Fed. Appx. 966, 969 (11th Cir, 2006) (applying Florida law and barring fraudu
lent
misrepresentation claims alleging failure to provide correct information under the
terms of a CEO search contract); Royal Surplus Lines Ins, Co. v. Coachman
Indus., 184 Fed. Appx. 894, 902 (11th Cir. 2006) (applying Florida law and barrin
g
insurer's tort actions alleging insured's failure to provide information under the
-26 -
As noted in Indemnity Insurance Co. of North America v. American
Aviation, Inc, 891 So. 2d 532, 537 (Ha. 2004), tort claims involving professional
services are not barred by the economic loss rule. But this Court in Pierce v.
AALL Insurance Inc., 531 So, 2d 84 (Fla. 1988), held that insurance agents are
not
considered "professional" for purposes of the professional malpractice statute of
limitations. Pierce's rationale concerning insurance agents applies with equal force
to insurance brokers and requires the response to the Eleventh Circuit that
insurance brokers do not provide professional services that would bar a defense
under the economic loss rule.' That response is equally dictated by this Court's
terms of a cooperation clause); Cessna Aircraft Co. v. Avior Techs., Inc., 990 So.
2d 532, 538 (Fla. 3d DCA 2008) (barring negligence claim against aircraft repair
company for failed contracted-for repairs to aircraft); Taylor v. Maness,
941 So.
2d
559, 564 (Fla. 3d DCA 2006) (barring cause of action alleging fraudulent failure
to
perform under the contract and sell real property to plaintiffs); Straub Capital Corp
v. L. Frank Chopin. P.A., 724 So. 2d 577, 579 (Fla. 4th DCA 1998) (barring action
alleging negligent misrepresentation by a landlord after he failed to timely build
and provide space to tenants under the terms of their contract); Smith v. Bd. of
Regents cx rd. Florida A&M Univ.,
701 So. 2d 348, 349 (Fla. 1st DCA 1997)
(barring cause of action brought by university professor alleging negligence by
the
Board of Regents and his bank in potentially breaching their duties under
employment and deposit contracts); Hotels of Key Largo v. RHI Hotels, 694 So,
2d 74, 77 (Fla. 3d DCA 1997) (barring action alleging fraudulent failure to
adequately provide increased reservations and hotel management services under
the contract).
11. The services of Marsh & McLennan Companies certainly appear
professional to me under the rationale given by Justice McDonald in his dissen
ting
opinion in krce: "If the act is one which involves giving advice, using superi
or
knowledge and training of a technical nature, or imparting instruction and
recommendations in the learned arts then the act is one of a professional." 531
So.
-27 -
decision in Garden v. Frier, 602 So. 2d 1273, 1273 (Fla, 1992), when we further
reduced the definition of a "professional" under the professional malpractice
statute to those "vocation[s} requiring at a minimum a four-year college degree
before licensing is possible in Florida." It is undisputed by the parties that a four-
year college degree is not necessary to become licensed as an insurance broker.
Instead of simply answering the certified question that our cases clearly
control, the majority obliterates the use of the doctrine when the parties are in
contractual privity, greatly expanding tort claims and remedies available witho
ut
deference to contract claims. Florida's contract law is seriously undermined by
this decision.
Accordingly, I respectfully dissent.
CANADY, J., concurs.
CANADY, J., dissenting.
For many years, this Court has recognized the vital role of the economic loss
rule in maintaining the boundary between tort law and contract law. With today
's
decision, the majority repudiates our case law and sets a new course for the
expansion of tort law at the expense of contract law, I agree with Chief Justice
2d at 88 (McDonald, J., dissenting) (quoting Pierce, 513 So. 2d at 161). But
this
definition was expressly rejected by the Court in Pierç.
- 28
Poiston's view that "Florida's contract law is seriously undermine
d by this
decision," dissenting op. at 28 (Polston, Ci.), and I accordingly disse
nt.
Just two years ago, in Curd v, Mosaic Fertilizer, LLC, 39 So. 3d 1216,
1223
(Fla. 2010), the same majority that decides today's case joined in
an opinion
stating the general principle that "the economic loss rule in Florid
a is applicable"
not only in the products liability context but also "where the partie
s are in
contractual privity and one party seeks to recover damages in tort
for matters
arising out of the contract." The majority in Curd simply restated
Florida law.
In Indemnity Insurance Co. of North America v. American Aviation,
Inc.,
891 So. 2d 332, 536 (Fla. 2004), we explained that the general "proh
ibition against
tort actions to recover solely economic damages for those in contr
actual privity is
designed to prevent parties to a contract from circumventing the alloca
tion of
losses set forth in the contract by bringing an action for economic
loss in tort." We
recognized the rationale for the economic loss rule:
Underlying this rule is the assumption that the parties to a contract
have allocated the economic risks of nonperformance through the
bargaining process. A party to a contract who attempts to circumven
t
the contractual agreement by making a claim for economic loss in
tort
is, in effect, seeking to obtain a better bargain than originally made
.
Thus, when the parties are in privity, contract principles are gener
ally
more appropriate for determining remedies for consequential dama
ges
that the parties have, or could have, addressed through their
contractual agreement. Accordingly, courts have held that a tort
action is barred where a defendant has not committed a breach of
duty
apart from a breach of contract.
Id. at 536-37.
The holding in American Aviation was based on the negative answer to
this
Court's rephrased certified question: "Whether the economic loss doctr
ine bars a
negligence action to recover purely economic loss in a case where the defen
dant is
neither a manufacturer nor distributor of a product and there is no privit
y of
contract." at 534 (emphasis added). By rephrasing the certified question in this
manner, this Court emphasized the significance of the existence of privit
y of
contract in determining whether the economic loss rule should be applie
d to bar a
negligence action. This Court held as follows: "Because the defendant
in this case
is neither a manufacturer nor distributor of a product, and the parties are
not in
privity of contract, this negligence action is not barred by the economic
loss rule."
(emphasis added).
Both Curd and American Aviation merely rearticulated the point we had
made earlier in Casa Clara Condominium Ass'n, Inc., v. Charley Topp
ino & Sons,
Inc., 620 So. 2d 1244, 1246 (Fla. 1993), concerning the boundary betwe
en tort law
and contract law:
[Ejconomic losses are disappointed economic expectations, which are
protected by contract law, rather than tort law. This is the basic
difference between contract law, which protects expectations, and tort
law, which is determined by the duty owed to an injured party. For
recovery in tort there must be a showing of harm above and beyond
disappointed expectations. A buyer's desire to enjoy the benefit of his
bargain is not an interest that tort law traditionally protects.
(Citations omitted) (internal quotation marks omitted). And Casa
Clara itself
echoed the reasoning of Florida Power & Light Co. v. Westingho
use Electric
Corp., 510 So. 2d 899 (Fla. 1987), that "contract principles [are]
more approp ate
than tort principles for [resolving] economic loss without an acco
mpanying
physical injury or property damage." Casa Clara, 620 So. 2d at
1247 (quoting
Florida Power, 510 So. 2d at 902).
In Florida Power, 510 So. 2d at 902, we rejected the invitation-in
the
products liability context-"to intrude into the parties' allocation
of risk by
imposing a tort duty and corresponding cost burden on the publi
c." In AFM Corp.
v. Southern Bell Telephone & Telegraph Co., 515 So. 2d 180, 180
(Fla. 1987), we
then applied the reasoning of Florida Power to bar a claim for econ
omic losses in
tort by a purchaser of services where there was no claim for perso
nal injury or
property damage.
Our cases thus have repeatedly recognized the economic loss rule
as a rule
that prevents contract law from "drown[ing] in a sea of tort." Casa
Clara, 620 So.
2d at 1247 (quoting East River S.S. Corp. v. Transamerica Dela
val, Inc., 476 U.S.
858, 866 (1986)), 12 The basis for this rationale-which the Cour
t has repeatedly
12. The Restatement (Third) of Torts: Liability for Economic Harm
(Tentative Draft No. 1) § 3 (April 4, 2012) states the general rule
that "there is no
liability in tort for economic loss caused by negligence in the perfo
rmance or
negotiation of a contract between the parties." The comments expla
ining this rule
observe that "[i]f two parties have a contract, the argument for limit
ing tort claims
elaborated-is not limited to the products liability context. The
application of the
economic loss rule in the context of other relationships based on
contract is not
"unprincipled." Majority op. at 16-18. The goal of preventing
contract law from
drowning in a sea of tort is as compelling in the broader context
of contract-based
relationships as it is in the product liability context. The majority
articulates no
explanation of why the economic loss rule is appropriately appli
ed in the products
liability context but is unworkable or unwise in that broader conte
xt.
The best the majority offers is some turgid and obscure dicta from
Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), and criticism
of the
exceptions from the economic loss rule recognized in our case
law. The fact that
the economic loss rule is subject to certain recognized exception
s-exceptions that
are based on specific policy considerations-does not undermin
e the integrity of
the general rule or obliterate the purpose on which it is based. On
the contrary, the
between them is most powerful." L at cmt. a. The comments explain the
rationale for the rule:
When a dispute arises, the rule protects the bargain the parties have
made against disruption by a tort suit. Seen from an earlier point
in
the life of a transaction, the rule allows parties to make dependab
le
allocations of financial risk without fear that tort law will be used
to
undo them later. Viewed in the long run, the rule prevents the erosi
on
of contract doctrines by the use of tort law to work around them
. The
rule also reduces the confusion that can result when a party bring
s suit
on the same facts under contract and tort theories that are largely
redundant in practical effect.
Id. at cmt.
exceptions are predicated on the validity of the general rule. In
short, the ma )rity
has failed to justify this dramatic unsettling of Florida law.
The concurring opinion likewise fails to provide any reasoning to
support the
limitation on the scope of the economic loss rule imposed by today
's decision.
Totally absent from the concurrence is any discussion of how the
rationale we have
articulated for the economic loss rule can be reconciled with limit
ing the operation
of the rule to products liability cases. Like the majority opinion,
the concu g
opinion effectively dismisses the reasoning in this Court's prior
decisions as
irrelevant.
The concurrence correctly recognizes that a minority of this Cour
t has
previously expressed the view concerning the limited scope of the
economic loss
rule that is today adopted by the Court. But a minority of the Cour
t does not
articulate the law of Florida. Nothing in those prior minority view
s prov ides a
principled basis for rejecting the general application of the ratio
nale articulated in
our prior decisions.
The concurrence also relies on this Court's statements in American
Aviation
concerning our holding in AFM. But the concurrence's reliance
on American
Aviation to support departing from our precedent in AFM is unwa
rranted. I
readily concede that confusion arose from this Court's declaratio
n that it was
receding from AFM "to the extent that it relied on the principles
adopted" in
Westinghouse Electric. Am. Aviation, 891 So. 2d at 542.
This statement is
problematic for two salient reasons.
First, and most important, American Aviation itself pred
icated its holding and
its formulation of the rephrased certified question on the
significance of the
existence of privity of contract. At the outset of the opin
ion, this Court stated: "We
conclude that the 'economic loss doctrine' . . . bars a negl
igence action to recover
solely economic damages only in circumstances where
the parti es are either in
contractual privity or the defendant is a manufacturer or
distributor of a product,
and no established exception to the application of the rule
applies." 891 So. 2d at
534 (emphasis added). To the extent that the subseque
nt statement concerning
AFM is understood to suggest a repudiation of the "con
tractual privity economic
loss rule," 891 So. 2d at 537, the majority's opinion in Ame
rican Aviation is self
repudiating and irredeemably incoherent,
Second, as the concurrence correctly observes, the facts
in American
Aviation did not involve a contractual relationship betw
een the parties.
Accordingly, American Aviation did not present a prop
er occasion for the Court to
udiate a prior holding, such as AFM, that specifically addr
essed the application
of the economic loss rule to facts based on the existence
of a contractual
relationship. If the statement in American Aviation conc
erning AFM is anything,
it is dicta.
With today's decision, we face the prospect of every breach of
contract
claim being accompanied by a tort claim. I strongly dissent from
this decis
Based on the precedents explained in Chief Justice Poiston's disse
nt, I would
conclude that an insurance broker does not provide a profession
al service and thus
is not precluded from asserting the economic loss rule as a bar
to tort claims. I
therefore would answer the certified question in the negative.
POLSTON, C.J., concurs.
Certified Question of Law from the United States Court of Appe
als for the
Eleventh Circuit - Case No. 09-11718-GG
Mark L. McAlpine of McAlpine & Associates, P.C., Auburn Hills
, Michigan,
for Appellant
Mitchell J. Auslander and Christopher J. St. Jeanos of Willkie,
Farr & Gallagher,
LLP, New York, New York,
for Appellees
