barred. See Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 660 So. 2d 628, 1995 Fla. LEXIS 979, at *13 (Fla. 1995) (in response to a certified question by the United States Court of Appeals for the Eleventh Circuit, finding that the economic-loss doctrine focuses on the nature of the injury and, therefore, that the doctrine precludes recovery in tort for economic loss due to a post-sale failure to warn); Continental Ins. Co. v. Page Engineering Co., 783 P.2d 641, 650 (Wyo. 1989) (denying recovery in tort for a post-sale failure to warn because "the rejection of recovery for pure economic loss under theories of negligence and strict liability, however, has not been because of the absence of culpability, but because of the policy that economic loss is better adjusted by contract rules rather than tort principles.").
The second approach, typified by McConnell v. Caterpillar Tractor Co., 646 F. Supp. 1520 (D.N.J. 1986), emphasizes that information that comes to the knowledge of one of the parties after a transaction is not part of the "bargain" at issue in East River. See McConnell, 646 F. Supp. 1520 at 1526 ("A duty to warn of a product's defects of which the seller becomes aware goes not to the quality of the product that the buyer expects from the bargain, but to the type of conduct which tort law governs as a matter of social and public policy.") (quoting Miller Indus. v. Caterpillar Tractor Co., 733 F.2d 813, 818 (11th Cir. 1984)). This approach sees the intentional character of many post-sale duty to warn claims as distinguishing them from the claims for negligence or strict liability that are usually at issue in economic-loss cases. See McConnell, 646 F. Supp. at 1526 (holding that East River applied only to negligence in the manufacturing process and not to post-sale duties).
Although both approaches carry considerable weight, this court is of the opinion that the Pennsylvania Supreme Court would find, on the present facts, that the economic-loss doctrine applied. The Pennsylvania courts which have held that the economic-loss doctrine is applicable in the Commonwealth have not directly addressed the doctrine's applicability to a cause of action based upon a post-sale duty to warn.
However, in applying the economic-loss doctrine, these courts have relied upon East River and, in particular, on its emphasis on the nature of the harm to the plaintiff. See Lower Lake Dock v. Messinger Bearing, 395 Pa. Super. 456, 577 A.2d 631, 635 (Pa. Super. Ct. 1990) (upholding dismissal of negligence claim where the only harm was economic); N.Y. State Elec. & Gas v. Westinghouse, 387 Pa. Super. 537, 564 A.2d 919, 925-26 (Pa. Super. Ct. 1990) ("Where an allegedly defective product causes damage only to itself, and other consequential damages resulting from the loss of the use of the product, the law of contract is the proper arena for redressing the harm"); REM Coal, 563 A.2d at 134 (holding that a cause of action in tort does not exist "where the only resulting damage is to the product itself.").
In predicting that the Pennsylvania Supreme Court would adhere to the reasoning of East River on a particular set of facts, the United States Court of Appeals for the Third Circuit similarly emphasized the nature of the harm involved, stating: "As we read East River, it is the character of the plaintiff's loss that determines the nature of the available remedies." King v. Hilton-Davis, 855 F.2d 1047, 1051 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 102 L. Ed. 2d 971, 109 S. Ct. 839 (1989). Thus, even though the plaintiffs in King framed their claim as one of failure to warn (although not of the post-sale variety), the court held that the economic-loss doctrine precluded the plaintiffs from recovering in tort because their damages were purely economic. Id. at 1048, 1053; see also PPG Indus., Inc. v. Sundstrand Corp., 681 F. Supp. 287, 288, 290 (W.D. Pa. 1988) (denying tort remedies where plaintiff framed complaint in terms of misrepresentation through failure to disclose); Eagle Traffic, 882 F. Supp. 417 at 419 (stating that Pennsylvania law precludes a plaintiff from recovering in tort where purely economic losses occurred due to, inter alia, negligent misrepresentation).
In the case at bar the harm alleged is purely economic.
Moreover, at least three of the rationales for the Supreme Court's holding in East River are applicable to the present case. (Two of these rationales have also been voiced by the courts of Pennsylvania, and the third was invoked by the Third Circuit in predicting that the Pennsylvania Supreme Court would follow the reasoning of East River.) First, courts should respect the parties' initial, conscious allocations of risk. See East River, 476 U.S. at 872-73 (stating that contract law is well suited for controversies where parties had ability to set their own terms); REM Coal, 563 A.2d at 133 ("Warranty law is suited to economic loss cases because in such cases, the parties have the opportunity to have set the terms of their agreement regarding product value and quality in advance."). In the present case, the parties bargained for the sale and purchase of a roof and a ten-year warranty. Alpha then chose not to renew its warranty, instead relying on insurance in the event of losses. This appears to be a conscious and bargained-for allocation of risks. Second, permitting claims based upon a post-sale duty to warn for purely economic losses would subject manufacturers to liability for "vast sums of money." See East River, 476 U.S. 858 at 874, 90 L. Ed. 2d 865, 106 S. Ct. 2295; REM Coal, 563 A.2d at 133 ("Limitation of liability is an entirely appropriate brake on the manufacturer's liability in a case involving only the loss of the bargained for product.") Third, a rule barring post-sale duty to warn claims in cases of purely economic losses is clear and easily applied, one of the Court's principal concerns in East River. East River, 476 U.S. 858 at 875, 106 S. Ct. 2295, 90 L. Ed. 2d 865; see also Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 119 (3d Cir.) ("[A] murky trudge through sophisticated nuances gives way to an unencumbered flight to basics. Damage to a product means simply that the customer has received 'insufficient product value,' and maintaining value and quality is precisely the purpose of familiar contract concepts . . . .") (quoting East River, 476 U.S. at 872), cert. denied, 484 U.S. 853, 98 L. Ed. 2d 111, 108 S. Ct. 156 (1987).
Thus, this court is of the opinion that the Pennsylvania Supreme Court would not find on these facts that Hartford's claim of a post-sale failure to warn justifies the creation of an exception to the economic-loss doctrine. The plaintiff's motion for reconsideration is therefore denied; an appropriate order follows.
For the reasons set forth in the memorandum filed herewith, it is hereby ORDERED that the Plaintiff's Motion For Reconsideration is DENIED.
December 13, 1995
Louis H. Pollak, J.