Opinion Information Sheet

			

Elcon Const., Inc. v. E. Wash. Univ.

                                         No. 83690-6

       MADSEN, C.J. (concurring) -- We took review of this case to address the issue 

whether the plaintiff is restricted to contract remedies or may also assert tort claims.  I 

agree with the majority that we need not reach this issue because each of the tort claims 

asserted by Elcon Construction, Inc., fails for want of sufficient evidence of an essential 

element of the claim.  This being the case, the majority should refrain from any 

discussion of the so-called "independent duty rule" because it has no bearing on the 

disposition of this case.  We should, in this case, follow the same principle we have often 

applied, that is, we should decline to address issues where it is unnecessary to do so.  See 

e.g., Wash. Farm Bureau Fed'n v. Gregoire, 162 Wn.2d 284, 297 n.20, 174 P.3d 1142 

(2007); Alejandre v. Bull, 159 Wn.2d 674, 690 n.6, 153 P.3d 864 (2007); In re Marriage 

of Langham & Kolde, 153 Wn.2d 553, 569, 106 P.3d 212 (2005).

       The wisdom of doing so is demonstrated by the majority's mistaken statement that 

the "independent duty rule" was formerly known as the "economic loss rule," as if the 

two are and have been the same.  Majority at 1. This is not the case, and it will only add  

No. 83690-6

to the confusion engendered by this new rule.  The economic loss rule is unlike the 

"independent duty rule" that has been described in recent opinions.  E.g., Affiliated FM 

Ins. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d 442, 243 P.3d 521 (2010) (plurality); 

Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 241 P.3d 1256 (2010) 

(plurality).  The economic loss rule defaults to contract remedies where both are 

available.  The "independent duty rule" defaults to tort remedies.  

       The economic loss rule rests on the principle that contracting parties should be 

limited to their contract remedies when loss potentially implicates both tort and contract 

relief.  It is a "device used to classify damages for which a remedy in tort or contract is 

deemed permissible, but are more properly remediable only in contract. . . .  '[E]conomic

loss describes those damages falling on the contract side of "the line between tort and 

contract".'"  Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 

822, 881 P.2d 986 (1994) (quoting Wash. Water Power Co. v. Graybar Elec. Co., 112 

Wn.2d 847, 861 n.10, 774 P.2d 1199, 779 P.2d 697 (1989) (quoting Pa. Glass Sand 

Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir. 1981))).

       Thus, the economic loss rule presumes that both contract and tort remedies may be 

available, and then the rule is used to help determine whether the loss is the type that is 

remedial under the terms of the parties' written agreement.

       However, according to the majority's dicta in this case (it has nothing to do with 

the disposition of the case), the policy considerations used to determine whether an 

independent tort duty exists are considerations of common sense, justice, policy, and 

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precedent.  Majority at 8; see Affiliated FM, 170 Wn.2d at 449-50 (plurality) (also 
including "logic"); Eastwood, 170 Wn.2d at 389 (plurality) (also including "logic").1  

These are exactly the same considerations that are always used to determine whether a 

tort duty is owed or liability attaches (the court has long recognized the 

interconnectedness of legal causation and duty).  See, e.g., Simonetta v. Viad Corp., 165 

Wn.2d 341, 349, 197 P.3d 127 (2008) (whether a duty of ordinary care to warn of 

hazards involved in use of a manufacturer's product "depends on mixed considerations of 

logic, common sense, justice, policy, and precedent"); Christensen v. Royal Sch. Dist. 

No. 160, 156 Wn.2d 62, 66-67, 124 P.3d 283 (2005) (where negligence claim is 

concerned, "existence of a legal duty is a question of law and '"depends on mixed 

considerations of 'logic, common sense, justice, policy, and precedent'"'" (quoting 

Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001) 

(quoting Lords v. N. Auto. Corp., 75 Wn. App. 589, 596, 881 P.2d 256 (1994) (quoting 

Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985))))); Stalter v. State, 151 Wn.2d 

148, 155, 86 P.3d 1159 (2004) (same); Halverson v. Skagit County, 139 Wn.2d 1, 8, 983 

P.2d 643 (1999) (whether legal liability attaches to acts is a policy question for the court 

and is determined based upon "'mixed considerations of logic, common sense, justice, 

policy, and precedent'" (quoting Phillips v. King County, 136 Wn.2d 946, 965, 968 P.2d 

871 (1998))); Hartley, 103 Wn.2d at 779-80 (same, and noting that "the question of 

1 The majority cites to a concurrence for its description of the "independent duty rule."  Majority 
at 8-9.  If the rule did not garner a majority of the court in prior decisions of this court, those 
decisions have no precedential value.  If it did, then more is needed in the way of citation to show 
that the rule represents the conclusion of a majority of this court.
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'whether liability should attach is essentially another aspect of the policy decision which 

we confronted in deciding whether the duty exists'" (quoting Harbeson v. Parke-Davis, 

Inc., 98 Wn.2d 460, 476, 656 P.2d 483 (1983))).

       The analysis to determine whether the independent duty exists is no different from 

the analysis used in any case to decide whether a tort duty exists.  There is nothing that 

analytically differentiates the situation from any other case where a contracting party 

argues that a tort claim may be brought.  Therefore, although the "independent duty rule" 

is described as a tool used to preserve the boundary between torts and contract, majority 

at 8, it does no such thing. Nothing about the rule preserves the value of agreement to the 

remedies that will exist if the contract is breached.

       Rather, this rule appears to mean that if a tort duty is cognizable in the 

circumstances, the tort claim will be allowed.  See id.  The "independent duty" theory is 

not an effective tool to determine whether a party will be restricted to agreed-upon 

contract remedies in the event both contract and tort remedies are available because under 

the "independent duty rule" once a tort duty is recognized, the party can assert the tort 

claim.  Indeed, the "independent duty rule" does not ask what limitations on remedy are 

imposed or contemplated by the contract.

       All that is required for a contracting party to completely bypass the contract 

remedies for which the parties expressly bargained is that the court acknowledge that a 

tort claim in fact exists.  Since the whole point of the exercise, ostensibly, is to provide a 

framework for deciding when a party may assert a tort claim despite existence of contract 

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remedies, the analysis simply ends with the recognition that the tort remedies potentially 

exist.

       Unlike the economic loss rule, which is designed to determine when a party should 

be held to agreed-upon remedies, the "independent duty rule" is not defined in a way that 

provides an effective tool for this determination.  I continue to believe that the new 

"independent duty rule" is not reasonably grounded or defined.  See Affiliated FM, 170 

Wn.2d at 463-75) (Madsen, C.J., concurring/dissenting).  Rather than attempting to 

explain this new rule in this case, where it unquestionably does not apply, I would wait 

for a case that actually presents the issue.  Perhaps when this court applies the 

"independent duty rule" it will make sense.  In the abstract it does not.  

       I am concerned, too, that the majority refers to the decisions of the trial court and 

the Court of Appeals as if they had employed the "independent duty rule." Both of the 

courts' rulings predate the unanticipated appearance of the "independent duty rule," and 

these courts actually decided this case under the economic loss rule. This blurring of 

historical fact is apt to add to the confusion about the new rule.

       In conclusion, although I agree with the majority that the tort claims would fail in 

this case in any event, I believe it is a mistake to discuss the "independent duty rule."  I 

concur in the result.

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No. 83690-6

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:

                                                         Justice Charles K. Wiggins

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