[CLC-Discussion] Tiara Condominium - Economic Loss Rule and Independent Tort

[Sean A. Mickley]

Agreed. But the motions I've received have done nothing more than cite the case and state therefore the negligence must be thrown out. There is not much analysis of the allegations as pled.

I'm seeking any input or analysis from my fine-feathered friends when faced with these motions. Feel free to share off listserv if you'd like.

Sean A. Mickley, Esq.
Gould Cooksey Fennell, P.A.
979 Beachland Blvd.
Vero Beach, FL 32963
772-231-1100

On Mar 19, 2014, at 8:54 PM, "Whelan, Ed" <EWhelan at gunster.com<mailto:EWhelan at gunster.com>> wrote:

The judge is correct -- if the facts don't support a claim beyond a breach of contract then you are contractually limited to the contractual limitations -- tort law does not apply to addressing just a breach of a mutually agreed to contract.
Sent from my iPhone

On Mar 19, 2014, at 7:00 PM, "Sean A. Mickley" <smickley at gouldcooksey.com<mailto:smickley at gouldcooksey.com>> wrote:

How is everyone, if anyone, arguing against motions to dismiss negligence claims in the construction defect context when there is also a breach of contract claim? The obvious position I am getting from opposing counsel on cases is that Justice Pariente is a genius and that an independent tort must be alleged without citing more; however, the Tiara decision does not necessarily stand for that proposition. Arguably, in the construction defect context, a cause of action for negligence could almost always be brought simultaneously with a breach of contract action given the limitations of consequential damages in contract actions. Stated differently, a negligence action could almost be used as a catch-all for purposes of making the plaintiff whole.

I understand that we have plaintiff and defense attorneys alike on this listserv, and we all, at one time or another, represent one or the other. So, if my question is out of line, I apologize. However, I am interested in picking the brains of our talented construction legal community. If you want to discuss offline, feel free to call me.

Thanks in advance.


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Sean A. Mickley, Esq.


Gould Cooksey Fennell

979 Beachland Boulevard

Vero Beach, FL 32963

Telephone  772-231-1100      Fax 772-231-2020

smickley at gouldcooksey.com<mailto:smickley at gouldcooksey.com>

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