SCOW Summary: The Economic Loss Rule Still Causing Trouble

I’ll have more analysis later today or tomorrow (my brother is visiting from Portland!) but for those of you who need/want the latest Washington Supreme Court news, the Court today one again addressed the much-maligned economic loss rule.

The majority opinion in Elcon Construction, Inc. v. Eastern Washington University (Wash., March 29, 2012), takes another stab at explaining what exactly the economic loss rule is, when it applies, and its relationship with the independent duty doctrine.  The Court states that the ELR and the IDD are essentially the same and that the IDD was “formerly referred to as the [ELR].”

In a concurring opinion, Chief Justice Madsen thinks the Court has further muddled the ELR and shouldn’t have touched the issue in the first place, since it was unnecessary to the Court’s disposition of the appeal.  Chief Justice Madsen despairs at the Court’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.  This is not the case, and it will only add to the confusion engendered by this new rule.”

I’ll have more to write on this later, since the economic loss rule and its… cousin? twin? long-lost brother? the independent duty rule have caused all sorts of trouble for Washington civil litigators.  So stay tuned!