holding that the gist of the action doctrine did not apply to plaintiff’s negligence claim that was not based on defendant’s alleged failure to meet its contractual obligations under its insurance policy with plaintiffs “to investigate whether mold was present, and also to pay for all property damage caused by mold,” but rather, was premised on allegations that defendant, “during the course of fulfilling these obligations . . . , acted in a negligent manner by making false assurances regarding the toxicity of the mold and affirmatively recommending to [plaintiffs] that they continue their renovation efforts, which caused them to suffer physical harm”
How later courts described this case
- holding that the gist of the action doctrine did not apply to plaintiff’s negligence claim that was not based on defendant’s alleged failure to meet its contractual obligations under its insurance policy with plaintiffs “to investigate whether mold was present, and also to pay for all property damage caused by mold,” but rather, was premised on allegations that defendant, “during the course of fulfilling these obligations . . . , acted in a negligent manner by making false assurances regarding the toxicity of the mold and affirmatively recommending to [plaintiffs] that they continue their renovation efforts, which caused them to suffer physical harm”
- explaining that, “[A] negligence claim[, i.e., a claim alleging the breach of a broader social duty arising independently of a contract,] based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.”
- holding, “[i]f the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract—i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract—then the claim is to be viewed as one for breach of contract,” and therefore the gist of the action doctrine applies (citations omitted)
- explaining that the gist of the action doctrine “provides that an alleged tort claim against a party to a contract, based on the party’s actions undertaken in the course of carrying out a contractual agreement, is barred when the gist or gravamen of the cause of action stated in the complaint, although sounding in tort, is, in actuality, a claim against the party for breach of its contractual obligations”
Written by the judges who cited it.
The opinion
*124 Justice EAKIN,
concurring.
I agree in full with the majority’s analysis concerning a certifícate of merit. I also agree the “gist of the action” doctrine does not bar the present action because statements concerning toxicity are outside the scope of the insurance policy, but I write separately to caution against what I deem troublesome language. To the extent the majority is perceived to “paint with a broad brush,” suggesting any negligence claim based on a contracting party’s manner of performance does not arise from the underlying contract, see Majority Op., at 114, 106 A.3d at 69-70, I must disagree. In some cases, such as here, that may be the case. However, synthesizing case law to stand for such a broad pronouncement does not comport with the “gist of the action” doctrine — an inherently circumstantial analysis. See eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 17 (Pa.Super.2002) (“[Wjhether [a] claim [is] actually barred by the doctrine appears to vary based on the individual circumstances and allegations^]”).
Chief Justice CASTILLE joins this concurring opinion.