plaintiffs alleged injury from polyurethane foam insulation not recoverable under strict liability or negligence theory
How later courts described this case
- plaintiffs alleged injury from polyurethane foam insulation not recoverable under strict liability or negligence theory
- not an abuse of discretion to refuse to vacate judgment on claims which had already been decided on the merits
- no abuse of discretion to retain pendent claims after "considerable time" of nine months
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge
(concurring):
I concur in the foregoing opinion. It is necessary, however, to observe that this circuit has not in all instances denied recovery for an economic loss in actions based on negligence. See Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974). Judge Renfrew, however, in this case was correct in holding that the injury set forth in Counts Two and Three is the failure of the insulation purchased by the plaintiffs to meet their expectations in terms of performance. 391 F.Supp. at 971-72. Compensation for such an injury requires the existence of an undertaking by the seller that his goods will meet such expectations. A cause of action based on such an undertaking sounds in contract, not tort.