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The Third DCA Applies Tiara?

By W. Aaron Daniel
Last week, in West Kendall Holdings, LLC v. Downrite Engineering Corp., No. 3D12-781 (Fla. 3d DCA April 24, 2013), the Third District Court of Appeal dodged an economic loss rule issue in one of the first cases to address the doctrine since the Florida Supreme Court seemingly banished it from all non-product liability jurisprudence in Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

This is what the Third had to say on the economic loss rule:

The third and final asserted basis for dismissal is the economic loss rule. It would appear that this might limit damages on West Kendall’s negligence count (count III).3 However, a plaintiff is entitled to amend a complaint once as of right before a responsive pleading is filed. Boca Burger, Inc. v. Forum, 912 So. 2d 561, 566-67 (Fla. 2005). The dismissal motion in this case is not a responsive pleading. Id. Therefore, West Kendall should have been given an opportunity to amend before facing the dismissal of count III.

3 But see Tiara Condo. Ass’n v. Marsh & McLennan Cos., 38 Fla. L. Weekly S151 (Fla. Mar. 7, 2013).

The Third did not expound on what type of negligence claim was made by West Kendall Holdings. This appeal arose out of a construction contract dispute, so perhaps the claim was grounded in product liability such that the ELR would bar the claim under the Supreme Court’s decision in Tiara.

But it looks like we will have to wait for a more direct challenge to the economic loss rule before the Third enlightens us on the limits of Tiara and the boundaries of the ELR.


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