[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
___________________ ELEVENTH CIRCUIT
February 8, 2005
No. 02-14828 THOMAS K. KAHN
CLERK
___________________
D. C. Docket No. 02-00850-CV-8-T-17TGW
INDEMNITY INSURANCE COMPANY OF NORTH AMERCIA,
Plaintiff-Appellant,
versus
AMERICAN AVIATION, INC.,
Defendant-Appellee.
___________________
No. 02-14830
___________________
D. C. Docket No. 02-00851-CV-8-T-17TBM
PROFILE AVIATION SERVICES, INC.,
Plaintiff-Appellant,
versus
AMERICAN AVIATION, INC.,
Defendant-Appellee.
_________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(February 8, 2005)
Before ANDERSON and BIRCH, Circuit Judges, and PROPST*, District Judge.
PER CURIAM
The procedural history, facts and issues in this case are summarized in our
previous opinion in which we certified dispositive questions of state law to the
Supreme Court of Florida. Indemnity Insurance Company of North America v.
American Aviation, Inc., 344 F.3d 1136 (11th Cir. 2003). We have received the
answer of the Supreme Court of Florida. Indemnity Insurance Company of North
America, et. al., v. American Aviation, Inc., 2004 WL 2973861
(Fla. 2004).
We certified five questions to the Supreme Court of Florida. The court
combined and rephrased our first two questions to read as follows:
WHETHER THE ECONOMIC LOSS DOCTRINE BARS A
NEGLIGENCE ACTION TO RECOVER PURELY ECONOMIC
LOSS IN A CASE WHERE THE DEFENDANT IS NEITHER A
MANUFACTURER NOR DISTRIBUTOR OF A PRODUCT AND
*
Honorable Robert B. Propst, United States District Judge for the Northern District of
Alabama, sitting by designation.
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THERE IS NO PRIVITY OF CONTRACT.
Id. at *1.
The court then answered the rephrased question in the negative. The court
stated:
We conclude that the "economic loss doctrine" or "economic loss
rule" bars a negligence action to recover solely economic damages
only in circumstances where the parties are either in contractual
privity or the defendant is a manufacturer or distributor of a product,
and no established exception to the application of the rule applies.
Because the defendant in this case is neither a manufacturer nor
distributor of a product, and the parties are not in privity of contract,
this negligence action is not barred by the economic loss rule. The
remaining certified questions concerning exceptions to the economic
loss doctrine are moot in light of our determination that the economic
loss rule does not apply to this case.
Id.
The answer of the Supreme Court of Florida being inconsistent with the
judgments of the district court dismissing the tort claims, we reverse as to those
claims and remand the cases for further proceedings consistent with this opinion
and the opinion of the Supreme Court of Florida. There has been no appeal as to
the dismissal of the breach of warranty claims and we affirm the judgments as to
those claims.
AFFIRMED IN PART AND REVERSED IN PART AND REMANDED
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