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Kietzer v. O'Lakes2/19/2002
he continuing validity of Hapka. ZumBerge v. N. States Power Co., 481 N.W.2d 103, 107 n.2 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). In 2000, the legislature further clarified the economic loss doctrine by enacting section 604.101. This section, however, does not apply to the facts of the case. See Minn. Stat. § 604.101, subd. 6 (stating that section only applies to sales or leases that occur on or after August 1, 2000).
With the enactment of Minn. Stat. § 604.10, courts and litigants are prevented from presuming that the applicability of the U.C.C. to a contract automatically precludes recovery in tort. Indeed, the Eighth Circuit Court of Appeals has interpreted section 604.10 as not applying to hybrid contracts. AKA Distrib. Co. v. Whirlpool Corp., 137 F.3d 1083, 1086 n.3 (8th Cir. 1998) (" hat statute is limited to the sales of goods, whereas we deal here with a different type of Article 2 contract."). Although it may be persuasive authority, Minnesota courts are not required to follow AKA Distrib. Co..
The effect and applicability of section 604.10 was not raised in the district court. We therefore remand this matter to the district court for consideration of the effect and applicability of the statute, which may require further development of the record. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (stating that role of court of appeals is to correct errors, not to find facts); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts will generally not consider matters not argued and considered in court below). The district court's order granting summary judgment in favor of Land O'Lakes is reversed, and the matter is remanded to the district court for consideration of the effect and applicability of section 604.10.
Affirmed in part, reversed in part, and remanded.
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