observing that evidence of damages must be sufficient to allow the trier of fact to estimate the amount with a reasonable degree of certainty and exactness
How later courts described this case
- observing that evidence of damages must be sufficient to allow the trier of fact to estimate the amount with a reasonable degree of certainty and exactness
- a void contract has no legal effect and is equivalent to no contract existing at all
- affirming the trial court’s award of damages where the damages were supported by calculations submitted by the plaintiff
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring and concurring in result
I fully concur with regard to Parts I and III. I concur in result as to Part IL.
With respect to the latter, I am troubled by the trial court's Conclusion 6 in connection with the majority's reliance upon the valid legal principle that constructive fraud may be founded upon omissions as well as upon affirmative misrepresentations. Conclusion 6 states that even if Marathon's failure to disclose were merely negligent, instead of intentional, such would constitute constructive fraud for which damages may be awarded.
However, my reading of Darst v. Illinois Farmers Insurance Co. (1999) Ind. App., 716 N.E.2d 579 , relied upon by the majority, convinces me that the concept of negligent misrepresentation is very limited and will not be extended beyond the holding of Eby v. York Division, Borg-Warner (1983) Ind.App., 455 N.E.2d 628 .
Eby involved an affirmative misrepresentation, but the negligent misrepresentation concept, as opposed to an intentional misrepresentation, was extended to an employer-employee relationship. Darst did indeed indicate that, as in FWby, we may apply a negligent misrepresentation principle beyond a setting involving a "professional," 6 but it clearly stated: "... we decline to extend the [constructive fraud] tort's application beyond the specific facts of Eby." 716 N.E.2d at 584 . In this regard it should be noted that Eby did not involve an omission to disclose where a duty to disclose existed.
I would hold that Conclusion 6 is in error, to the extent that it permits recovery for an unintentional failure to disclose under these facts, but that the judgment is supported by evidence which permits a conclusion that the failure to disclose the soil contamination here was in fact intentional.
. The Eby court acknowledged that in applying the principle to the giving of a professional opinion, the application might well create substantial confusion in attempting to delineate between "professional opinion (malpractice) [and] simple misrepresentations made in the course of one's professional activities." 455 N.E.2d at 629 .