Vermont Supreme Court Reaffirms Strict Adherence to the Economic Loss Rule
And Takes It Even Further?
Walsh v. Cluba and Good Stuff, Inc., 2015 VT 2 (Feb. 13, 2015)
I have previously reported on the Vermont Supreme Court’s strict adherence to the Economic Loss Rule (ELR), and noted that some observers might find this surprising, since the Vermont Supreme Court is generally regarded as “liberal” and sympathetic to claimants/victims/plaintiffs. Yet the Court has repeatedly denied tort-based recovery to claimants, citing the ELR. The Court’s adoption and adherence to the ELR goes back as far as 1998. In Paquette v. Deere & Co., 168 Vt. 258, 719 A.2d 410 (1998), the Court rejected the negligence claim of owners of a defective motor home. The plaintiffs there had not suffered any physical injury, but claimed that they had suffered economic damages – recoverable in tort, according to them – because of the defective and unsafe nature of their mobile home. The Court held that allowing a negligence claim in such circumstances would vastly expand tort liability and completely subsume warranty law into tort law. And that adherence continues unabated in a series of decisions up to 2012. In Long Trail House Condominium Assoc. v. Engelberth Construction, Inc., 2012 VT 80 (Sept. 28, 2012) the Court affirmed the complete dismissal of a condominium owners association’s defective construction claims against the building contractor, because their only claim was a negligence claim, which the Court found to be barred by the rule.
Now, in Walsh v. Cluba, the Court has arguably taken the ELR even further. In Walsh, the Court applied the rule to bar the plaintiff’s negligence claim even though the claim involved physical damage to real property. Walsh was a commercial landlord. Cluba was his tenant. After signing the lease, Cluba formed the corporation Good Stuff, Inc., a retail company, and turned over possession of the leased premises to Good Stuff. But Walsh never formalized the lease arrangement with Good Stuff – Cluba remained the tenant on the lease. After Cluba and Good Stuff vacated the premises, Walsh sued Cluba under the lease (i.e., in contract) for unpaid rent, attorneys’ fees, and physical damage to the premises. Walsh also sued Good Stuff in negligence (as noted, there was no lease/contract with Good Stuff) for the unpaid rent and for damaging the premises. At the close of Walsh’s case at trial, the court granted Good Stuff’s motion for judgment as a matter of law, on the grounds that the Economic Loss Rule precluded Walsh’s tort claims against Good Stuff because the parties’ dispute was completely covered by Walsh’s and Cluba’s contractual relationship (i.e., the lease), which required Cluba to leave the premises in the same condition in which he took them. Walsh argued that the ELR should not bar his negligence claims against Good Stuff because there was more than purely economic harm at issue – there was real physical damage to Walsh’s property. The trial court was unpersuaded by this argument. Walsh appealed.
The Vermont Supreme Court was similarly unmoved by Walsh’s argument. The Economic Loss Rule generally bars tort claims where the parties have a contractual relationship. Even though Walsh had no lease (contract) with Good Stuff, the Vermont Supreme Court found that his claim for damages to the premises was governed exclusively by his lease with Cluba. As he had below, Walsh argued that the ELR does not apply because there was physical damage. The Vermont Supreme Court was unpersuaded and affirmed the trial court’s grant of judgment as a matter of law to Good Stuff. The Court reasoned that the well-recognized “other property” exception to the ELR does not apply where there is a contract (i.e., the lease) that touches upon the “other property.” In other words, the provision in the lease that required Cluba to return the premises to Walsh in the same condition as when they were leased, barred a separate negligence claim by Walsh for damage to his property.
A vigorous dissent argued that the existence of a lease (contract) between Walsh (the landlord) and Cluba (the tenant) should not preclude a tort claim by Walsh against a stranger to the contractual relationship (Good Stuff) where Good Stuff caused real physical damage to Walsh’s property. Indeed, the dissent’s position seems to be that Walsh should have a tort claim not only against Good Stuff, but against Cluba, where Cluba and Good Stuff caused physical damage to Walsh’s property.
As the dissent argued, this decision by the Vermont Supreme Court is arguably much more than merely a reaffirmation of the Economic Loss Rule. It is arguably a broad expansion of the rule; essentially a holding that the existence of a contract between A and B negates any independent tort duty by B not to damage A’s property.
This is an interesting decision from the Vermont Supreme Court given that other state supreme courts have recently cut back on the application of the ELR.