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Midwest Diesel3/18/2003
inspection, and maintenance of the system[.]" Id. at 525. The circuit court ruled that the case involved the sale of goods under the UCC, and, thus, the tort claims were barred by the economic loss doctrine. Id.
The Home Ins panel reversed and stated in pertinent part:
Plaintiffs also argue that the circuit court erred in granting summary disposition to defendant arising out of defendant's postinstallation activities (additional servicing, including during the November 1986 investigation into the accidental discharge). Defendant counters that its actions were incidental to the original purchase and installation contract and gave rise to no additional duties.
We find that the circuit court incorrectly limited defendant's duty on the basis of its findings that there was no oral or implied contract between defendant and plaintiff Crown for work or for maintenance to be performed on the system after its installation. An issue of material fact remains regarding whether defendant owed Crown a duty of care upon which tort claims could be based.
When defendant serviced the system after installation was complete it knew, or should have known, that plaintiff Crown was relying on defendant to make the system operable upon completion of service. [Id. at 528-529.]
Here, we likewise find that there is an issue of fact regarding whether a duty to warn or disclose, based in tort law and apart from the sale of the heating unit and any related contractual obligations, arose out of Thornton's visit to Midwest. First, there is conflicting documentary evidence regarding the nature and extent of Thornton's visit to Midwest; therefore, it is appropriate for the trier of fact to resolve the factual conflict. Resolution of that underlying factual issue is necessary to determine whether a duty in tort to warn arose from the visit. If the trier of fact determines that Thornton's visit was sufficient to support a finding that he knew, or should have known, that the installation was improper and dangerous, there may be liability for a failure to warn or disclose. Regardless, the UCC is not applicable. As defendant itself maintains, defendant was not contractually obligated to perform any services with respect to repairs or maintenance of the heating units they sold; defendant is purely a manufacturing company that sells its products through independent distributors. " ase law expressly provides that an action in tort may not be maintained where a contractual agreement exists, unless a duty, separate and distinct from the contractual obligation, is established." Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 52; 649 NW2d 783 (2002). Here, there was no contractual obligation or duty on the part of defendant to install, inspect, and service the heating unit arising out of the sale of the heater to Midwest. Therefore, no claim for failure to properly inspect and warn could have arisen out of the contractual sale of the heater. However, a legal duty in tort to properly inspect the heater and warn of any dangers may have arisen solely from defendant's action in visiting Midwest. Moreover, the visit to Midwest by Thornton twenty-two months after the sale cannot be deemed the rendition of services incidental to the sale of the heating unit as envisioned by the Neibarger Court because the discussion in Neibarger related to services rendered before or at the time of the sale.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Jessica R. Cooper
William B. Murphy
Kirsten Frank Kelly
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