Dean v. Barrett Homes, Inc.

8 A.3d 766, 204 N.J. 286, 2010 N.J. LEXIS 1219
CourtSupreme Court of New Jersey
DecidedNovember 15, 2010
DocketA-15 September Term 2009
StatusPublished
Cited by31 cases

This text of 8 A.3d 766 (Dean v. Barrett Homes, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. Barrett Homes, Inc., 8 A.3d 766, 204 N.J. 286, 2010 N.J. LEXIS 1219 (N.J. 2010).

Opinions

Justice HOENS

delivered the opinion of the Court.

The Products Liability Act, N.J.S.A. 2A:58C-1 to -11, established a unified theory of recovery for harm caused by products. In enacting that statute, our Legislature carefully defined the kinds of harm needed to support a recovery, specifically embracing a long standing common law theory known as the economic loss rule. N.J.S.A. 2A:58C-l(b)(2). In this appeal, we consider the continuing viability of the economic loss rule and its applica[289]*289tion to a claim arising out of the purchase of a residence, from its original owners, which had been constructed with an allegedly defective exterior finishing system. That context sets this case apart from our existing jurisprudence, in which we considered the remedies available to direct purchasers of products. This dispute, by distinguishing secondary purchasers from those with clearly available contract remedies against the manufacturer of the allegedly defective product, thus presents the question of whether, and in what circumstances, those remote purchasers should be permitted to pursue a tort remedy against that manufacturer.

This appeal also calls upon the Court to consider whether we will adopt the integrated product doctrine, devised in the federal courts, as a corollary to the economic loss rule. Were we to do so, and were we to conclude that the exterior finishing system is indeed integrated into the home itself, the effect would be to preclude these plaintiffs, and any other similarly situated home purchaser, from pursuing products liability relief against the manufacturer of an allegedly defective product affixed or adhered to the outside of the home for damage done by the product to the home.

Our consideration of these questions, and of the policies expressed by our Legislature in the governing statute, compels us to conclude that the integrated product doctrine does not apply to the facts before this Court, but that the economic loss rule limits plaintiffs’ recovery to damage to the structure other than that sustained by the exterior finishing system itself. We therefore reverse and remand this matter to the Law Division for further proceedings.

I.

Many of the facts relevant to this appeal are contained in the Appellate Division’s published majority and concurring opinions, see Dean v. Barrett Homes, Inc., 406 N.J.Super. 453, 968 A.2d 192 (App.Div.2009), as a result of which we will set forth only those facts necessary to explain our decision. Plaintiffs Robert, Jenni[290]*290fer, and Mary Sue Dean purchased a home in 2002 from its original owners. Id. at 455, 968 A.2d 192. The home had been built in 1995 by defendant Barrett Homes, Inc., with an Exterior Insulation and Finish System (EIFS), which was designed and manufactured by defendant Sto Corporation (Sto). Ibid. Traditional EIFS, the kind featured on the Deans’ home, is sometimes called synthetic stucco. It consists of an adhesive, an expanded polystyrene board, a ground coating with reinforcing fiberglass fabric, a primer, and a synthetic plaster finish coating. Id. at 457, 968 A.2d 192. When it is affixed to the exterior of a building, EIFS operates as a combined insulation and wall finish system.

Prior to the closing, plaintiffs hired defendant HouseMaster, Inc. to perform a home inspection. Id. at 456, 968 A.2d 192. The inspection report raised questions concerning the EIFS and recommended that plaintiffs follow up with an expert or the product’s manufacturer before proceeding with their purchase. Id. at 456-57, 968 A.2d 192. Plaintiffs, however, did not read the report prepared by HouseMaster and did not make the inquiries that report suggested. Ibid. At about the same time, plaintiffs learned that their insurer would not transfer their existing homeowner’s policy to the new property, purportedly because the insurer would not cover a stucco exterior. Id. at 456, 968 A.2d 192. Undeterred, and without any further investigation of the EIFS, plaintiffs obtained insurance from another carrier, proceeded with the purchase, and moved into the home in May 2002. Id. at 457, 968 A.2d 192.

Plaintiffs assert that approximately one year after moving in, they first noticed black lines on the exterior of their home and thought that there might be a problem with the home’s finishing system. Ibid. Plaintiffs assert that they then began to investigate and learned that if moisture penetrates through the EIFS, it has no means of escape. Id. at 457-58, 968 A.2d 192. Moisture penetrating the EIFS therefore becomes trapped behind it and eventually causes the underlying structure to rot or to develop mold. Id. at 458, 968 A.2d 192. They further assert that they [291]*291hired an industrial hygienist, who inspected their home and found toxic mold that he blamed on leaks in the EIFS. Ibid. Although plaintiffs have never claimed that they sustained any personal injuries caused by the mold, they eventually had all of the EIFS removed and replaced. Ibid.

Plaintiffs believe that EIFS is defective because it lacks a “secondary weather protection behind the cladding to protect the underlying moisture sensitive substrate” and has “no means of drainage of water which may penetrate the wall assembly.” Ibid. Moreover, they assert that it is virtually inevitable that water will penetrate the EIFS because moisture can enter through any break in the EIFS, including window cracks, holes created during cable installation, or failed sealing joints.

In May 2004, plaintiffs filed their complaint, in which they asserted claims against several defendants sounding in negligence, breach of express and implied warranties, breach of contract, Consumer Fraud Act violations, common law fraud, and strict products liability. Id. at 459, 968 A.2d 192. Eventually, plaintiffs resolved their claims against all of the defendants except Sto.

Following discovery, defendant Sto moved for summary judgment. Ibid. In granting that motion, the motion court rejected plaintiffs’ products liability claim against defendant Sto, because plaintiffs were seeking damages for purely economic losses. Ibid. That is, the motion court reasoned that although plaintiffs claimed that the EIFS was defective, they sought to recover the cost of replacing it, resulting in a claim that was statutorily barred. Ibid. Because neither plaintiffs nor anyone else had sustained an injury attributable to the product’s claimed defect, the court concluded that there was no basis to support any tort theory of recovery. Ibid.

Plaintiffs appealed, arguing that the trial court erred by invoking the economic loss rule and asserting that their products liability claim should be permitted to proceed because they had no alternate contract remedy available. Ibid. The Appellate Division affirmed the trial court’s grant of summary judgment, rejecting [292]*292that argument, along with another statutory claim plaintiffs had raised, which is not germane to this appeal. See id. at 455, 968 A.2d 192.

Concerning the products liability claim, Judge Carehman, writing for the appellate panel, concluded that the economic loss rule precluded recovery because plaintiffs’ claim for damages was focused on the cost of replacing the defective product itself. Id. at 467, 472, 968 A.2d 192.

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Cite This Page — Counsel Stack

Bluebook (online)
8 A.3d 766, 204 N.J. 286, 2010 N.J. LEXIS 1219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-barrett-homes-inc-nj-2010.