concluding that while “fraud and negligent misrepresentation claims ... fell within the misrepresentation exception” to the economic loss rule a claim based on any other tort would have to be encompassed by another exception to the rule to survive dismissal
How later courts described this case
- concluding that while “fraud and negligent misrepresentation claims ... fell within the misrepresentation exception” to the economic loss rule a claim based on any other tort would have to be encompassed by another exception to the rule to survive dismissal
- holding that expenses of litigation cannot be recovered if appellant does not prevail on its underlying substantive claims
- finding that “to the extent that [the plaintiff’s] promissory estoppel claim was predicated on the same alleged representations forming the basis for its fraud and negligent misrepresentation claims,” it failed for the same reasons
- noting that "inconvenience, aggravation, or fright" did not rise to the level of an "accident" within the meaning of the exception
Written by the judges who cited it.
The opinion
MCFADDEN, Judge,
concurring fully and specially.
I concur fully in the majority opinion. I write separately to further explain why the evidence put forward by Home Depot is not sufficient to avoid summary judgment.
Home Depot has focused on evidence that the 33 trailers at issue in this case failed inspections. The fact that trailers failed inspections, however, does not show that those trailers suffered from the specific manufacturing defects that Home Depot must prove to prevail on its misrepresentation claims, namely the lack of an anti-corrosive coating and the use of loose scrap metal as a counterweight in the trailers’ coupling assemblies. Home Depot’s 30 (b) (6) representative testified that Home Depot concluded that these alleged manufacturing defects caused the failed inspections based upon information it received from an engineering firm. Home Depot presented no evidence, however, that the engineering firm actually examined any of the 33 trailers at issue. Moreover, a representative of the engineering firm testified that there could be many different causes for a failed inspection and cautioned that the firm’s analysis would not support statistical inferences about the reasons why trailers failed inspections. Instead, he stressed that the trailers should be considered on a “case by case basis.”
Home Depot did not put forward any other competent evidence to show that the alleged manufacturing defects caused the failed inspections in the 33 trailers. Notably, the evidence that for a brief period of time, loose scrap metal was used as counterbalancing material in the coupling assemblies of trailers manufactured at the Scott County facility (where the 33 trailers were built), is hearsay; Wabash’s 30 (b) (6) representative stated that he had been told this information by another person, whose testimony is not part of the record. Without some evidence connecting the failed inspections of the 33 trailers to the alleged manufacturing defects, the jury would be left merely to speculate as to the cause of those failed inspections. As the majority opinion points out, “[sjummary judgment cannot be avoided based on speculation or conjecture.” (Citation omitted.) *375 Cowart v. Widener, 287 Ga. 622, 633 (3) (c) ( 697 SE2d 779 ) (2010).
Decided February 27, 2012.
Parker, Hudson, Rainer & Dobbs, John W. Mitchell, William J. Holley, King & Spalding, Tracy C. Braintwain, Dwight J. Davis, for appellant.
Fried & Bonder, Scott L. Bonder, for appellee.