Preserving the Economic Loss Doctrine in Utah for Everyone’s Benefit

The economic loss doctrine is something that most people in the construction industry know little about. However, it has been an essential part of the legal landscape governing claims on construction projects in Utah for many years. Its existence has prevented an insurance crisis for construction companies, design professionals and others working in the construction industry. It has protected both purchasers of improved real estate and construction industry professionals. These problems, among others, have arisen in other states where the economic loss doctrine has been eroded or eliminated.

So, what is the economic loss doctrine? Essentially, the economic loss doctrine is based in the distinction between contract claims (enforcing the standards negotiated and agreed to in contracts and usually applicable only the parties to those contracts) and tort claims (enforcing the standards that have been established by the courts or legislatures governing the behavior of all of us as members of society).

The following questions and answers should help to further clarify some of the major basic issues relating to the economic loss doctrine.

Q: What is the economic loss doctrine?

A: A court-developed legal principle that holds that purely economic damages arising from one party’s failure to perform as agreed by contract cannot be claimed and recovered via legal theory based in tort. Essentially, the economic loss doctrine precludes claims for negligent design or construction except through the contract under which the work was performed.

Q: What are economic damages?

A: “Damages for inadequate value, costs or repair and replacement of the defective product, or consequent loss of profits . . . as well as diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” American Towers Owners v. CCI Mechanical, 930 P.2d 1182, 1191 (Utah 1996). Economic damages are those that arise from poor design or construction. Claims in tort for damages arising from personal injury or physical damage to other property are not barred by the economic loss doctrine because they are not considered to be purely economic damages.

Q: What is the difference between contract and tort?

A: Contract law protects expectancy interests created through contractual agreements between the parties, while tort law protects individuals and their property from physical harm by imposing a duty of reasonable care. Expectancy interests arise from a contract between the parties to that contract and do not exist independently. Tort duties, on the other hand, are independent from any contract or agreement, and arise at law.

Q: Why have Utah courts adopted the economic loss doctrine?

A: The economic loss doctrine exists because of a policy determination that it would not be fair to allow a party to recover for “defective construction,” where the defects are defined by a tort-based legal standard that is higher than, or different from, the original contract between the parties. The contract alone defines the construction standards that will be imposed and any deviation from the agreed upon standards is a breach of the contract, but not a breach of any legal tort duty independent of the contract. Thus, liability for defective construction must be defined by the contract between the parties not by later claims that the builder has been negligent by not adhering to an amorphous standard that was never defined or agreed to by the parties to the contract. As long as the construction does not cause damage to people or property, the parties to a construction contract are free to agree to choose the lowest possible standards of construction. If the economic loss doctrine did not exist, design or construction professionals would remain liable to an indeterminate class of people for an indeterminate amount of time and for an indeterminate amount of money.

Q: Why does any of this matter?

A: If the economic loss doctrine were to be undermined in Utah, designers and builders could expect to regularly be sued by remote purchasers with whom the designer or builder had no legal relationship. These lawsuits would allege that the builder was negligent by not using certain construction techniques or by using certain materials, even though those techniques were not required by the contract, or in some situations would have been a breach of the contract. Such lawsuits would seek to impose standards that the builder never agreed to in the contract. Thus, if the economic loss doctrine were to be eliminated, courts would begin to formulate a “reasonable construction standard” that could be independent of contractual provisions or even building codes. Unfortunately, such a standard would be subjective and flexible, depending on each judge, and the outcome would depend to a certain extent on the effectiveness of the attorneys. This would typically become a problem in the context of homeowners associations suing designers and builders for construction defects throughout a development. Such suits in other states have created a pricing crisis for housing and an insurance crisis for everyone involved in the construction industry.

The economic loss doctrine is a court created rule that can be modified or even eliminated by the courts. In the 2008 general legislative session, the Utah legislature, recognizing recent attacks on the economic loss doctrine by enterprising attorneys, took action to codify the economic loss doctrine by enacting Senate Bill 220. This should insulate the economic loss doctrine from significant modifications or outright elimination by the Utah courts.

Darrell Bostwick is Of Counsel with Rudd Cooper with more than 30 years’ experience in representing clients in complex real estate matters including construction and general litigation, contract negotiation, labor and employment law, and municipal and other governmental legal matters. Mr. Bostwick as extensive litigation experience in state and federal courts, including at the appellate level, and federal and state regulatory agencies. Mr. Bostwick can be reached at (801) 676-5337 or at dbostwick@ ruddfirm.com.