“A Post-Tiara and Chinese Drywall Approach to Florida’s ELR,” Florida Justice Association Journal

By Greg Weiss, Diana L. Martin, and Brad R. Sohn

For decades Florida courts have imposed a murky Economic Loss Rule (the “ELR”) upon cases in which the plaintiff is in “privity” or has a contractual relationship with the defendant. See, e.g., Fla. Power & Light Co. v. Westinghouse Elec. Corp., 510 So. 2d 899, 902 (Fla. 1987) (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871 (1921), for the proposition that “contract principles are more appropriate than tort principles for resolving economic loss claims”). The ELR, as traditionally understood, restricted litigants’ ability to assert tort claims in the presence of any type of “economic bargain” or “meeting of the minds.” Such a “bargain” normally took the form of an express contract, but it could equally frustrate putative tort claims cognized via implied warranty. Compare Airport Rent-A-Car v. Prevost Car, 660 So. 2d 628 (Fla. 1995) (reviewing express contract or the “contract-ELR”) with Casa Clara Condo. Ass’n v. Charley Toppino & Sons, 620 So. 2d 1244 (Fla. 1993) (reviewing implied warranty or the “product-liability ELR”).

The full article can be read here.