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AMERICAN TOWERS OWNERS v. CCI MECHANICAL12/20/1996
ah.Ct.App. 1994), "to the extent they bar tort claims for the recovery of foreseeable economic losses in this context." Because these are questions of law, we do not grant the district court's ruling any deference. Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993).
In Maack, the court of appeals explained:
The "economic loss rule" is the majority position that one may not recover "economic" losses under a theory of non-intentional tort. East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866-75, 106 S.Ct. 2295, 2300-04, 90 L.Ed.2d 865 (1986); accord Lempke v. Dagenais, 130 N.H. 782, 547 A.2d 290, 296 (1988) ("It is clear that the majority of courts do not allow economic loss recovery in tort, but that economic loss is recoverable in contract."). Economic loss is defined as:
" amages 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 . . . as well as '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.' "
Maack, 875 P.2d at 579-80 (quoting 2314 Lincoln Park W. Condominium v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill.2d 302, 144 Ill.Dec. 227, 229, 555 N.E.2d 346, 348 (1990) (other citations omitted)). In other words, economic damages are not recoverable in negligence absent physical property damage or bodily injury . Sandarac Ass'n v. W.R. Frizzell Architects, Inc., 609 So.2d 1349, 1352 (Fla. Dist. Ct. App. 1992).
In Maack, a builder sold a home to a buyer. Soon thereafter, the buyer resold the home to a second buyer. When the home developed water leaks, the second buyer sued the home builder for negligent design and construction. 875 P.2d at 573. The court of appeals upheld the trial court's grant of summary judgment for the home builder, noting the "intrinsic differences between tort and contract law." Id. at 580. The court concluded that recovery for deficiencies in the quality of construction " 'must be defined by reference to that which the parties have agreed upon.' " Id. (quoting Crowder v. Vandendeale, 564 S.W.2d 879, 882 (Mo. 1978)). Under similar facts in Schafir, 879 P.2d at 1388, the court of appeals again held that a plaintiff "cannot recover . . . economic losses under a theory of negligent construction."
The Association argues that these court of appeals decisions conflict with this court's plurality opinion in W.R.H., Inc. v. Economy Builders Supply, 633 P.2d 42 (Utah 1981). In that case, a purchaser of plywood siding sued the manufacturer when the siding delaminated following installation. The plaintiff alleged that the "negligent manufacture" of the siding resulted in damages to him. Id. at 43. The lead opinion determined that the plaintiff had stated a cause of action: " he statement that 'purely economic interests are not entitled to protection against mere negligence' . . . is inapplicable in situations such as the present where the alleged defective manufacture results in the deterioration of the product." Id. at 44 (emphasis added).
W.R.H. has not been followed in subsequent cases. Instead, it has been distinguished as a case that addressed only the negligent manufacturing of a product. See Paul Mueller Co. v. Cache Valley Dairy Ass'n, 657 P.2d 1279, 1286 (Utah 1982) (limiting W.R.H. to negligent manufacturing of product); Maack, 875 P.2d at 581 (W.R.H.
"not controlling" because it involved "negligent manufacture" of product rather than "negligent construction" of building); Schafir, 879 P.2d at 1388 (same); see also Perry v. Pioneer
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