 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hayden Business Center Condominiums Association v. Pegasus Development Corp.1/25/2005
s a party from circumventing contract remedies by recasting a contract claim as a tort. See Apollo Group, Inc. v. Avnet, Inc., 58 F.3d 477, 481 (9th Cir. 1995) (applying Arizona law and holding that the economic loss rule barred the plaintiff from recasting a U.C.C. breach of warranty claim as a "common law" tort-based breach of warranty claim). The economic loss rule thus bars the Association from recovering any economic losses under a tort theory. See id.
The proposed amended complaint attempts to skirt this issue by adding claims for personal injury and harm to personal property. The Association, however, cannot assert a personal injury claim on behalf of the buyers because such claims are generally not assignable. See Botma v. Huser, 202 Ariz. 14, 17, 11, 39 P.3d 538, 541 (App. 2002). The Association informed the trial court during the summary judgment briefing that "the bulk of the damages are to correct work improperly done" and therefore the Association's "only viable cause of action" was for breach of the implied warranty of good workmanship. This admission justifies the denial of leave to amend.
Moreover, the Association did not disclose any harm to personal property or personal injury . Its Rule 26.1 disclosure statement lists $70,518.65 in damages for performing soil testing, consulting, flooring removal, environmental testing, re-carpeting, sealing the footings, installing the drainage system, and landscape repair. All of these items relate to the structure itself and qualify as repair costs. See Carstens v. City of Phoenix, 206 Ariz. 123, 128, 21, 75 P.3d 1081, 1086 (App. 2003)(holding that losses incurred for shutdown, start-up, testing and/or lost profits stemming from equipment failure were economic in nature).
Moreover, carpeting and landscaping are not considered personal property separate from the property. Carpeting is a fixture and part of the building's structure. See In re Bernhardt, 186 B.R. 889, 891 (Bankr. E.D. Pa. 1995)(wall-to-wall carpeting is generally considered a fixture). Re-carpeting and re-landscaping are all part of remedying defective work. While the cost of that work may be consequential harm recoverable in a contract action, it does not support a separate tort claim. See Colsant v. Goldschmidt, 421 N.E.2d 1073, 1077 (Ill. Ct. App. 1981)(holding that the cost of replacing carpet was a cost of remedying a construction defect).
CONCLUSION
We affirm the trial court's rulings in all respects. In addition, we grant Pegasus its reasonable attorneys' fees in accordance with Arizona Revised Statutes (A.R.S.) section 12-341.01(A) subject to its compliance with Rule 21(c) of the Arizona Rules of Civil Appellate Procedure.
JON W. THOMPSON, Presiding Judge
CONCURRING:
JOHN C. GEMMILL, Judge
PATRICK IRVINE, Judge
The above-entitled matter was duly submitted to the Court. The Court has this day rendered its Opinion.
IT IS ORDERED that the be filed by the Clerk.
IT IS FURTHER ORDERED that a copy of this order together with a copy of the opinion be sent to each party appearing herein or the attorney for such party and to The Honorable Paul A. Katz, Judge.
DATED this day of January, 2005.
JON W. THOMPSON, Presiding Judge
Page 1 2 3 4 5 Arizona Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|