(dissenting) — The majority rejects the Court of Appeals conclusion that Lawyers Title Insurance Corporation’s reliance on the Anderson, Burrows & Galbraith’s (the law firm) alleged misrepresentation was unjustified as a matter of law. Majority at 552. But I find no misrepresentation.
Lawyers Title has no cause of action for negligent misrepresentation because the law firm made no false statements. In a claim for negligent misrepresentation the plaintiff must prove the defendant made a false statement by clear, cogent, and convincing evidence. Trimble v. Wash. State Univ., 140 Wn.2d 88, 97, 993 P.2d 259 (2000). Here Lawyers Title bases its claim on a letter dated July 13, 1992, from defendant Chae to Lawyers Title responding to an inquiry from Lawyers Title, asking whether the Baik estate owed any outstanding taxes on the property in question. Clerk’s Papers (CP) at 631 (Decl. of Sang Chae); CP at 633 (Deck of Roberta Robbins). That reply states in relevant part:
By this letter I am informing you that, based on our tax preparation, no estate taxes are due and owing to the state or federal government. Likewise, to my knowledge, no other taxes are outstanding against the estate.
CP at 224.
Without dispute these representations are literally true. Lawyers Title does not claim Chae failed to prepare his client’s taxes or that according to that tax preparation, taxes were due. Instead, it claims Chae was negligent in the preparation of his client’s taxes with the result that the Baik estate subsequently owed money to the Internal Revenue Service (IRS) for underpayment of taxes. However, this assertion has no basis in a claim of negligent misrep*556resentation. Chae made no representation that the Baik estate had received a certificate of release from the IRS and offered no opinion about the likelihood of an audit. Lawyers Title’s claim for negligent misrepresentation is unsustainable because a plaintiff cannot base a negligent misrepresentation claim on statements a defendant did not make, Trimble, 140 Wn.2d at 98, or on truthful statements it did make.
In Trimble we upheld a summary judgment dismissing the plaintiff’s negligent misrepresentation claim where he alleged the defendant university had failed to inform him that its offer of tenure consideration after three years, instead of the usual six, would present a serious handicap to obtaining tenure. Id. at 97-98. The court held:
The record shows no representation to Trimble about how tenure review after three years, as opposed to six, would play out and there is no evidence that WSU [Washington State University] misled Trimble on this matter. Thus, there was no “false information” supplied to Trimble. Merely not discussing the downsides of various terms of employment in employment negotiations will not create a cause of action for negligent misrepresentation.
Id. (emphasis added). This is precisely the situation here. Chae made no representation about the tax return prepared, beyond the fact the return indicated no taxes were due. This was precisely the information sought by Lawyers Title and precisely the information it received.
The majority overlooks this issue, concluding, “We decline to hold as a matter of law that, contrary to the Restatement [(Second) of Torts], a negligently obtained and ultimately inaccurate opinion could not satisfy the ‘false information’ element of a negligent misrepresentation claim.” Majority at 548. It makes no sense to say the information contained in the letter was “obtained negligently” or was “inaccurate.” Chae spoke from personal experience that the law firm had completed the tax return for the Baik estate and he had found no taxes due—both true statements. The majority concerns itself not with the *557truth of the law firm’s actual representations—the first prong of the test of negligent misrepresentation—but with the wholly distinct allegation regarding alleged negligence in preparing the tax return. But this is an underwriting risk Lawyers Title assumed. It may well have been more cost effective to gamble the law firm was right than to independently audit the tax return, or risk losing business by failing to insure against that contingency. That is the nature of the insurance business.
By conflating the truth of the statements which form the basis of Lawyers Title’s claim for negligent misrepresentation with the latter’s allegations of incompetency, the majority allows Lawyers Title to bring a contribution claim in the guise of a negligent misrepresentation claim. Because such considerations have no place in a claim for negligent misrepresentation, I would affirm the trial court’s order granting defendants’ motion for summary judgment.
Additionally, even if Chae’s letter could be construed as a misrepresentation of the law firm’s competency in the preparation of its client’s tax return, the Court of Appeals correctly concluded Lawyers Title was not justified to rely on it for that purpose. Lawyers Title, 2001 WL 704374, at **2-4. Discussing this prong of the negligent misrepresentation claim, the majority makes much of its rejection of section 552A of the Restatement (Second) of Torts, a provision which is not even discussed by the Court of Appeals, while summarily dismissing the authorities upon which the Court of Appeals actually relied because it makes “no reference to section 552A.” Majority at 554.
The majority claims it must address the applicability of section 552A because “we are reviewing the propriety of the trial court’s summary dismissal of a negligent misrepresentation claim.” Majority at 550. However, section 552A has no application here because Lawyers Title is not entitled to rely on Chae’s alleged misrepresentation as a matter of law.
As the Court of Appeals held, even if there were a misrepresentation Lawyers Title’s claim must fail by reason of *558two established principles of Washington law. First, where a party is peculiarly qualified, by experience and expert knowledge, to evaluate the truth or falsity of a representation, the party has no right to rely on such statements. Beckendorf v. Beckendorf, 76 Wn.2d 457, 464, 457 P.2d 603 (1969). As the Court of Appeals stated, a title insurance company has considerable expertise in the evaluation of the status of titles. Lawyers Title, 2001WL 704374, at *3 (citing Lawyers Title Ins. Corp. v. D.S.C. of Newark Enters., Inc., 544 So. 2d 1070, 1072 (Fla. Dist. Ct. App. 1989)). When Lawyers Title deletes an exception based on its anticipation no taxes are due, it accepts an underwriting risk that taxes are not as inevitable as death.
Inexplicably, the majority holds Lawyers Title may be entitled to rely on Chae’s letter because Lawyers Title’s own internal procedures allow title officers to remove an exception for estate taxes when they are in possession of a letter from an estate’s personal representative or attorney stating that no taxes are due. Majority at 552. Lawyers Title may properly view such a letter as indicative of a reduced risk, but not as a guaranty. The fact that its guidelines authorize such reliance does not alter the law. Cf. Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 911, 784 P.2d 507 (1990) (“[W]here an insured took a calculated business risk that pollution from a sewage plant would contaminate nearby property, we have held that the insured could not look to its insurer to indemnify it for its liability resulting from its failure to prevent the event.”).
Second, the “ ‘right to rely on representations is inseparably connected with the correlative problem of the duty of a representee to use diligence in respect of representations made to him.’ ” Skagit State Bank v. Rasmussen, 109 Wn.2d 377, 384, 745 P.2d 37 (1987) (quoting Williams v. Joslin, 65 Wn.2d 696, 698, 399 P.2d 308 (1965)). As a title insurance company, Lawyers Title has an independent duty “ ‘to make a thorough and competent search of the record title.’ ” *559Lawyers Title, 2001 WL 704374, at *3 (quoting D.S.C. of Newark Enters., 544 So. 2d at 1072); see also Williams, 65 Wn.2d at 698 (reversing a judgment for rescission of contract based on fraud when the plaintiff failed to show any interest in the records that might have contradicted defendants’ representations). Its “right to rely on a representation is inseparably linked to its duty to use diligence in interpreting representations made to it.” Id., 2001 WL 704374, at *3 (citing Puget Sound Nat’l Bank v. McMahon, 53 Wn.2d 51, 52, 330 P.2d 559 (1958)). Lawyers Title is in a position to know lawyers cannot and do not guarantee their view of tax liability will ultimately and necessarily prevail in court.
Lawyers Title’s own guidelines warn of the potential risk attached to properties conveyed as part of an estate:
Any estate tax that is due constitutes a lien at the date of the decedent’s death. Except to the extent that the title insurer is aware of the death, the tax is essentially a hidden lien, there being (in most instances) no recording requirement.
CP at 825 (Lawyers Title Insurance Corporation Underwriting Manual). In the event the company is to insure a title to a property that had been conveyed pursuant to an estate distribution, the agent is first required to determine the approximate size of the estate to determine whether a tax return is required. Id. Nothing in the record indicates Lawyers Title complied with its own requirement. Further, the guidelines suggest various precautions an agent should take including, but not limited to, obtaining a written statement from the personal representative or the attorney for the estate:
In any doubtful case, you should except to the potential estate tax lien or require a bond from a corporate surety or a sum to be held in escrow for an amount sufficient to employ an attorney to file the return and satisfy any potential estate tax liability.
Id. Lawyers Title knew or ought to have known that federal estate tax constituted a lien on the decedent’s property *560until the IRS issued a closing letter or the three-year statute of limitations had run. See CP at 825. It knew the estate had not received a release from the IRS for federal tax liability. CP at 964. Yet it removed the federal estate tax exception nine months after Mr. Baik died intestate without requiring a bond, without a release from the IRS, and without reviewing the tax return for the Baik estate. Thus, Lawyers Title assumed a known risk when it speculated there would be no ultimate tax assessment and clearly abdicated its duty to use diligence to interpret representations made to it. Skagit State Bank, 109 Wn.2d at 384.
Relying on clearly established Washington precedent, the Court of Appeals properly concluded that Lawyers Title’s reliance on Chae’s letter as a guaranty of no ultimate tax liability was not justified because it “failed to comply with its own guidelines by either excepting liability for estate taxes or procuring an indemnification bond, and failed to fulfill its independent duty to investigate.” Lawyers Title, 2001 WL 704374, at *3. This decision is consistent with the principle that a party taking a calculated business risk must accept the cost associated with such risks. Boeing, 113 Wn.2d at 911.
Finally, the majority rejects the approach adopted by the Court of Appeals because it “eliminates the jury’s role in assessing whether Lawyers Title’s reliance on the letter was reasonable under the circumstances.” Majority at 552. However, summary judgment is proper if after the motion is made the nonmoving party fails to establish any facts which would support an essential element of its claim. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Where a plaintiff fails to use diligence to interpret representations made to it, the plaintiff’s fraud claim fails as a matter of law. For example, in McMahon, we affirmed the trial court’s dismissal of the plaintiff’s action for contract rescission based on fraud, holding as a matter of law that because of the plaintiff’s business experience, she “was not *561entitled to rely upon [the defendant’s] representations.” McMahon, 53 Wn.2d at 54. Similarly, in Williams we reversed a judgment of the trial court rescinding the contract based on fraud, when all the evidence pointed to the plaintiff’s complete lack of interest in reviewing the underlying records:
Since the evidence of the actual receipts was before the respondent, he had no right to rely upon any oral representation that contradicted it.
65 Wn.2d at 698. Finally, in Skagit State Bank, we reversed a trial court judgment, voiding the plaintiff’s mortgage and loan agreement on the basis of an innocent misrepresentation, when the plaintiff had not read documents he signed:
“a party whose rights rest upon a written instrument which is plain and unambiguous, and who has read or had the opportunity to read the instrument, cannot claim to have been misled concerning its contents or to be ignorant of what is provided therein.”
109 Wn.2d at 381 (quoting Johnston v. Spokane & I.E.R.R., 104 Wash. 562, 569-70, 177 P. 810 (1919)).
The majority “reject[s] the respondents’ position that, as a matter of law, Lawyers Title should have replicated the work of the Estate’s tax attorneys and thereby created for itself something with which to contradict the Law Firm’s representation regarding taxes.” Majority at 554. However, that is precisely what our law requires. Because the majority’s opinion represents a radical departure from established legal principles, not justified on the facts of the case, I would affirm the Court of Appeals opinion as an alternative ground to uphold the trial court’s decision.
Johnson and Madsen, JJ., concur with Sanders, J.