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Hofstee v. Dow12/20/2001
Concurring: Stephen M. Brown, Dennis J. Sweeney.
In this third appeal of a lawsuit that has yet to come to trial, Hans Hofstee challenges the trial court's dismissal of his claims for negligence and strict liability. The trial court found that Mr. Hofstee's damages, allegedly caused by Alvin Dow's failure to timely test his cows for brucellosis before they were sold to Mr. Hofstee, were solely economic. Consequently, the trial court concluded Mr. Hofstee was limited to recovery under the Uniform Commercial Code and the Consumer Protection Act. Mr. Hofstee contends his damages involve more than economic loss. We disagree, and affirm.
Facts
The facts are not disputed. In October 1981, Mr. Dow agreed to sell Mr. Hofstee 115 head of dairy cattle. WAC 16-86-015 requires that all dairy cattle sold in Washington must test negative for brucellosis within 30 days of transfer. Mr. Dow had the cattle tested for brucellosis on November 9 and 16, 1981. One of the cows 'bled' (blood-tested) on November 9 tested 'suspect' for brucellosis. She was bled again on November 16 and again was labeled suspect. The suspect cow was slaughtered on November 24 and further testing proved she was not infected.
In late November or early December, Mr. Hofstee asked Mr. Dow to deliver the cattle on December 15, just outside the required 30-day testing period. Mr. Dow called the Office of the State Veterinarian and got permission to ship the cattle without further testing. When the acting state veterinarian noted that Mr. Hofstee would need to retest after he took delivery, Mr. Dow asked for and received permission to do the test himself, before the herd was shipped. Mr. Dow's veterinarian made the test samples after confirming with the acting state veterinarian that Mr. Dow had permission to perform the tests. The herd was tested on December 14 and delivered to Mr. Hofstee the next day.
Within a week after Mr. Hofstee took delivery of the cattle, the State reported that one of them now tested suspect for brucellosis. This cow was re-bled in March 1982, and the new blood test showed she was a 'reactor.' When slaughtered and tested again in April, however, the reactor cow was determined to be free of infection. The State quarantined the entire herd on March 26, 1982, and it remained in quarantine for about four months.
In September 1984, Mr. Hofstee sued Mr. Dow and the State for negligence, breach of the implied warranty of fitness for a particular purpose, strict liability, and violation of the Consumer Protection Act. Mr. Dow and the State filed cross-claims. In June 1996, the trial court granted summary judgment dismissal of Mr. Hofstee's complaint because the second cow eventually tested disease-free. Mr. Hofstee appealed and we reversed and remanded for trial, finding that reasonable minds could differ on the questions whether WAC 16-86-015 was violated and whether Mr. Hofstee suffered financial losses as a result of that violation. Hofstee v. Dow, No. 16000-9-III, 1998 WL 229428 (Wash. Ct. App. Apr. 30, 1998).
In February 1999, the trial court granted summary judgment dismissal of Mr. Hofstee's claims against the State. Mr. Hofstee again appealed and we affirmed in a decision filed in February 2000. Hofstee v. Dow, No. 18312-2-III, 2000 WL 199068 (Wash. Ct. App. Feb. 15, 2000). Back at trial court again, Mr. Dow moved for partial dismissal of the claims for negligence and strict liability in December 2000. The motion was granted in February 2001 and this appeal followed.
Economic Loss Rule
Mr. Hofstee contends the economic loss rule does not prevent him from suing for negligence and strict liability. He argues th
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