Jarmco, Inc. v. Polygard, Inc.

668 So. 2d 300, 1996 WL 71251
CourtDistrict Court of Appeal of Florida
DecidedFebruary 21, 1996
Docket95-0427
StatusPublished
Cited by14 cases

This text of 668 So. 2d 300 (Jarmco, Inc. v. Polygard, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarmco, Inc. v. Polygard, Inc., 668 So. 2d 300, 1996 WL 71251 (Fla. Ct. App. 1996).

Opinion

668 So.2d 300 (1996)

JARMCO, INC., a Florida Corporation d/b/a Joe's Auto-Marine Supply, Appellant,
v.
POLYGARD, INC., a Florida Corporation, and MacLean Sinclair, Appellees.

No. 95-0427.

District Court of Appeal of Florida, Fourth District.

February 21, 1996.

*301 Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and David J. Chestnut of David J. Chestnut, P.A., Stuart, for appellant.

Enola T. Brown of Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, for appellees.

FARMER, Judge.

As we did in TGI Development, Inc. v. CV Reit, Inc., 665 So.2d 366 (Fla. 4th DCA 1996), we conclude that the economic loss rule (ELR) does not bar a common law fraud in the inducement claim seeking to recover only economic losses. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 661 So.2d 1221 (Fla. 3d DCA 1995); contra Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995) (common law fraud in the inducement claim seeking only economic losses is barred by economic loss rule.)[1] Consequently the trial court's summary judgment dismissing Jarmco's fraud in the inducement claim against Polygard is in error and is reversed.

*302 We address two additional issues. Jarmco also argues that its non-fraud claims are not barred by the ELR because the facts here involve an "other" property exception in Casa Clara Condo. Ass'n v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla.1993), and because a contractual exclusion of warranties provision is inconsistent with a limitation of remedies provision in the same contract. We do not agree.

The facts in this case begin with a suit by a boat builder for damages arising from defective resin sold by Jarmco [dealer] and used by the builder in the construction of a boat. Dealer has, in turn, filed a third party complaint against Polygard [distributor], who is the distributor of the resin, seeking indemnification and contribution on theories of fraud in the inducement (by falsely representing that the resin was suitable for boat builders even though Polygard knew that it was non-standard and off-specification resin unsuitable for that purpose), negligent misrepresentation, deceptive and unfair trade practices and negligence. The trial court granted a summary judgment in favor of the distributor on the negligence counts as well as the fraud count on the basis of the ELR in Casa Clara.

The supreme court granted review in Casa Clara to resolve conflicts among a number of cases, one of which was our own decision in Adobe Bldg. Centers, Inc. v. Reynolds, 403 So.2d 1033 (Fla. 4th DCA), rev. dismissed, 411 So.2d 380 (Fla.1981). Adobe concerned defective masonry cement used by the purchasers and others in privity with a purchaser in the construction of residences. Casa Clara concerned defective concrete sold by a distributor and used by the purchaser in the construction of residences. Except for the fact that those cases involved the sale of concrete or cement for use in the construction of residences, while this one involves the sale of resin for use in the construction of a boat, we are unable to find any meaningful differences among the three cases.

Casa Clara rejected the "other" property exception and explicitly disapproved Adobe. The court said:

"The homeowners also argue that Toppino's concrete damaged `other' property because the individual components and items of building material, not the homes themselves, are the products they purchased. We disagree. The character of a loss determines the appropriate remedies, and, to determine the character of a loss, one must look to the product purchased by the plaintiff, not the product sold by the defendant. King v. Hilton-Davis, 855 F.2d 1047 (3d Cir.1988). Generally, house buyers have little or no interest in how or where the individual components of a house are obtained. They are content to let the builder produce the finished product, i.e., a house. These homeowners bought finished products—dwellings—not the individual components of those dwellings. They bargained for the finished products, not their various components. The concrete became an integral part of the finished product and, thus, did not injure `other' property."

620 So.2d at 1247.

It is suggested that, for purposes of an other property exception, Adobe is distinguishable from this case on the grounds that the aggrieved purchasers there bought stucco rather than masonry cement from the distributor. Dealer argues that it bought a finished product, resin, from distributor and sold it to a boat builder for use in the construction of the boat which is unusable as a boat because of the defective resin. The claimants in Adobe were the builders and plasterers, not the home buyers, who bought defective masonry cement from a distributor for use in their construction of a residence. When those builders and plasterers received complaints from their buyers of the homes for defective stucco, the builders/plasterers sued the distributor.

Adobe`s facts show that the only product purchased by the developers/plasterers was cement. The purchasers in turn used the cement to make an exterior building finish, called stucco. That stucco finish later turned out to be defective. In this case, the claimant is Dealer who was a retail seller of resin that it purchased from a distributor for resale to customers like the boat builder. The dealer then sold that resin to the boat builder who used it to make a finish on a boat which later turned out to be defective. It is thus *303 obvious that, for purposes of applying an other property exception, the facts in this case simply cannot be distinguished on any principled basis from those in Adobe.

The supreme court's disapproval of Adobe in Casa Clara was unequivocal. That obviously means that the court found the ELR fully applicable to bar a negligence claim by claimants in the circumstances shared by the purchasers-developers in Adobe and the home owners in Casa Clara. The question is whether the court would have applied the rule to the resin dealer in this case. We conclude that the court intended the rule to have broad application.

The essence of Casa Clara is that purchasers of defective products are limited by law to those damages that were or could have been provided by contract between the purchaser and his immediate seller. The ELR requires that party to make use of traditional contract remedies for redress. Correspondingly, it bars the use of tort remedies to make society as a whole pay for the failure of the purchaser to protect his own interests by bargaining for appropriate provisions in his own contract. The ELR does not apply to personal injury claims or to property damage claims for property unrelated and unconnected in any way to the product sold.

In other words, whether we are addressing the other property exception as regards the developers/plasterers in Adobe, or the homebuyers in Casa Clara, or the resin dealer in this case, the ELR bars suits against the seller of a defective product for economic damages. Because the rule was applied to the consumer purchasers, i.e. the home owners in Casa Clara, it surely applies to commercial contractual relationships, as here, between retailers and their distributors.[2]

It is suggested that E.I. Du Pont de Nemours & Co. v. Finks Farms Inc., 656 So.2d 171 (Fla.

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668 So. 2d 300, 1996 WL 71251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarmco-inc-v-polygard-inc-fladistctapp-1996.