Elcon Const., Inc. v. E. Wash. Univ.
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
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
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
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.
‘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
remedies, the analysis simply ends with the recognition that the tort remedies potentially
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.
Chief Justice Barbara A. Madsen
Justice Charles K. Wiggins