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

Thu Mar 20 08:02:00 PDT 2014

Recall that generally speaking contract damages are for "the benefit of the bargain" as well as according to the express reservations against certain damages in the contract.  Tort damages are "but for" as in "but for the negligence the damages would not have been incurred." Sometimes this helps break down the analysis.
I blame myself for the quagmire- I had always asked for a Tiara, and now I have one. Prefer one of Princess Di's though.

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Whelan, Ed
Sent: Wednesday, March 19, 2014 8:58 PM
To: Sean A. Mickley
Cc: clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Tiara Condominium - Economic Loss Rule and Independent Tort

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.
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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

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

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