Kaloti Enterprises7/8/2005
levant inquiry, as to that element of the standard articulated above, is whether the fact is material. See id. Any implication to the contrary taken from the concurrence, , would be misplaced.
While we conclude that the allegations made in Kaloti's amended complaint are sufficient to state that Kellogg and Geraci had a duty of disclosure that they failed to meet, we note that Kaloti still must prove all the elements of the claim at trial, including whether the fact in question was material, whether Kellogg or Geraci knew Kaloti was mistaken as to this fact, whether Kaloti should reasonably have been expected to discover the fact, and whether Kaloti's reliance on Kellogg and Geraci's silence was justifiable. See Ollerman, 94 Wis. 2d at 42-43.
D. Economic Loss Doctrine
Kellogg and Geraci also argue that the economic loss doctrine bars Kaloti's intentional misrepresentation claim. The economic loss doctrine is a judicially created rule, introduced in Wisconsin in Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 437 N.W.2d 213 (1989). In Sunnyslope, we held that "a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories, particularly, as here, where the warranty given by the manufacturer specifically precludes the recovery of such damages." Id. at 921; accord, e.g., Cease Elec., 276 Wis. 2d 361, . Since Sunnyslope, Wisconsin courts have further defined the parameters of the economic loss doctrine and referred to it more broadly as "preclud contracting parties from pursuing tort recovery for purely economic or commercial losses associated with the contract relationship." Van Lare v. Vogt, Inc., 2004 WI 110, , 274 Wis. 2d 631, 683 N.W.2d 46 (quoting Tietsworth, 270 Wis. 2d 146, ).
The economic loss doctrine is "'based on an understanding that contract law and the law of warranty, in particular, is better suited than tort law for dealing with purely economic loss in the commercial arena.'" Tietsworth, 270 Wis. 2d 146, (quoting Daanen, 216 Wis. 2d at 403-04). As such, its purpose is to preserve the distinction between contract and tort by requiring transacting parties to pursue only their contractual remedies when asserting an economic loss claim. Cease Elec., 276 Wis. 2d 361, . As we first explained in Daanen and have repeated many times, the economic loss doctrine seeks to further the following policies: "'(1) to maintain the fundamental distinction between tort law and contract law; (2) to protect commercial parties' freedom to allocate economic risk by contract; and (3) to encourage the party best situated to assess the risk economic loss, the commercial purchaser, to assume, allocate, or insure against that risk.'" E.g., Van Lare, 274 Wis. 2d 631, (quoting Daanen, 216 Wis. 2d at 403).
For purposes of the economic loss doctrine, we have defined "economic loss" as "damages resulting from inadequate value because the product is inferior and does not work for the general purposes for which it was manufactured and sold." Daanen, 216 Wis. 2d at 400-01 (quotations and quoted source omitted); accord, e.g., Cease Elec., 276 Wis. 2d 361, . Recovery for "economic loss" refers to recovery as a result of a product failing in its intended use, Daanen, 216 Wis. 2d at 405-06, or failing to live up to a contracting party's expectations, see Tietsworth, 270 Wis. 2d 146, . "Economic loss" does not include personal injury or damage to other property. Daanen, 216 Wis. 2d at 402.
Wisconsin courts have recognized that the economic loss doctrine bars misrepresentation claims based in negligence, Prent Corp. v. Martek Holdings, In
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