Westfield Ins. Co. v. Huls Am.6/9/1998
nds that the TROCAL roof was not a product but a fixture. This court finds that the trial court's determination that the TROCAL roof was a fixture is not dispositive of that court's final decision to grant summary judgment in favor of appellee HULS. This court will not, therefore, address appellants' issues regarding the trial court's determination that the roof was a fixture in light of this court's findings, as outlined below, that summary judgment was proper regardless of whether the roof was a fixture or a product.
Assuming, arguendo, that the TROCAL S-60 roof could be properly deemed a "product" within the meaning of R,C. 2307.71 et seq., this court finds that, pursuant to R.C. 2307.71, a "claimant" is a person who asserts a product liability claim; a "claim" is one for compensatory damages for (physical) damage to property; and "economic loss" is direct, incidental, or consequential pecuniary loss (including) nonphysical damage to property. R.C. 2307.71(A), (M), and (B). R.C. 2307.77 permits an action to be brought if a product is defective in that it does not conform to a manufacturer's representations, and R.C. 2307.79 permits compensatory damages for economic loss that proximately resulted from a defective product where compensatory property damages are recoverable.
While the Westfield appellants may be described as claimants under the above statute in that they bring a claim that the TROCAL roof system was defective in manufacture, design, construction, or formulation, this court notes that appellants' damage, as insurers of the tenants, is economic loss not resulting from loss of property but stemming from the tenant's loss of business as a result of the leaking roof.
"Economic loss" is "described as either direct or indirect. `Direct' economic loss includes the loss attributable to the decreased value of the product itself. Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, 43, 537 N.E.2d 624, 629. Westfield has not suffered direct economic loss attributable to a decreased value of the roof. "`Indirect' economic loss includes the consequential losses sustained by the purchaser of the defective productswhich may include lost profits." Id. at 44, 537 N.E.2d at 629. The Chemtrol court held that "an action in strict liability, may be maintained for purely economic loss" by those not in privity with the manufacturer of the defective product. Id. at 49, 537 N.E.2d at 634. However, the court based its holding on cases in which the economic loss was in fact a "direct" loss attributable to the decreased value of the product itself. Id., citing Inglis v. Am. Motors Corp. (1965), 3 Ohio St.2d 132, 32 O.O.2d 136, 209 N.E.2d 583, and Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St.2d 88, 93, 71 O.O.2d 66, 69, 326 N.E.2d 267, 270-271.
In the instant matter, the Westfield tenants are not purchasers of a defective product, and even if they were to be so construed, their alleged injury is indirect economic loss based upon a claim of lost business profits, and not one based upon the loss of the product's value due to the defect alleged. Here, there is "no liability for pecuniary loss of bargain." Inglis at 132, 32 O.O.2d at 136, 209 N.E.2d at 583. See, also, Lapuma v. Collinwood Concrete (Mar. 17, 1994), Cuyahoga App. No. 64882, unreported, 1994 WL 86211. Therefore, the pure economic loss complained of is not of a type that provides a cause of action under R.C. 2307.71 et seq. Chemtrol at 40, 537 N.E.2d at 6286-29; Lawyers Cooperative Publishing Co. v. Muething (1992), 65 Ohio St.3d 273, 276-277, 603 N.E.2d 969, 971-973. See, also, R.C. 2307.71.(M), 2307.72(C), 2307.73(A), and 2307.79.
Further, while R.C. 2307.79 permits a product
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