dissenting
I respectfully dissent.
Contrary to the statement of the majority, Dutton does not claim that Hoefling is the agent of Harvester. Dutton claims only that there is a genuine issue of fact as to whether that relationship exists.
As correctly noted by the majority in footnote 2, the mere provision in the Agreement which purports to disavow an agency relationship is not determinative. If the record reflects any fact which might demonstrate the degree of control essential to an agency relationship, summary judgment as to agency and therefore implied warranty is erroneous. Although Dutton prof-erred no factual assertion as to actual control, I find demonstration present in Specification 24 of the contract, which at least dilutes the seeming absolutism of the agency disclaimer provision of the same contract.1 I therefore conclude that it was error for the trial court to determine, solely by reference to the disclaimer provision, that as a matter of law there was not an agency relationship.
Except for sheer surmise, the record contains no showing that Dutton received the usual written provision in sales transactions which purports to limit the manufacturer’s warranty to free repairs or replacements for the one-year period (as extended by the subsequent June 25 letter). I, therefore, do not conclude that Harvester has insulated itself against the implied warranties of merchantability and fitness.
It may well be, as contended by Harvester, that a franchise dealer is not always an agent, at least insofar as a franchise agreement creates the relationship. It may also be true, however, that a franchisee in certain instances may be an agent because of the degree of control exercised or exercisable by the manufacturer. In the case before us, we simply do not know. For this reason I need not rely upon rationale such as enunciated by Judge Ratliff dissenting in Lane v. Barringer (1980) 1st Dist.Ind.App., 407 N.E.2d 1173, 1176-1178 (privity should not be required between purchaser and manufacturer). In any event, it is my conclusion that the summary judgment was inappropriate with regard to the allegations of implied warranty.
With respect to Dutton’s argument that the court erroneously granted summary judgment upon the strict liability theory, I agree with the majority to the extent that Dutton’s damage, if any, was not to emble-ments, i.e., to an otherwise healthy, growing crop. Dutton’s damage in this regard *320was indeed occasioned by an alleged inability to properly seed the crop so as to give it opportunity to grow and prosper.
I do not, however, agree that such damage is solely related to a loss of labor. Although perhaps minimal, Dutton has undoubtedly sustained property damage in the loss of the seed, fertilizer, etc. used in attempting to produce a crop which because of product defect had little or no real chance for harvest.
To the extent that such property damage was not fairly within the issues framed and that Dutton did limit his claim to matters of purely economic loss, I do concur in the decision of the majority.
With respect to the fraud allegations made by Dutton, I do not agree that the initial failure to meet the specificity requirements of T.R. 9(B) justified a summary judgment upon the issue. The pleading defect is subject to a dismissal pursuant to T.R. 12(B). However, the defect may be cured by amendment. In the case before us, the proferred amended complaint was not significantly more specific than the original. For this reason I agree that the trial court correctly dismissed the amended complaint. The summary judgment ruling was therefore harmless error.
For all of the foregoing reasons, I would reverse the judgment and remand for further proceedings.
. The agency disclaimer provision of the Agreement is as follows:
"The Dealer is not the company’s agent in any respect and is not authorized to incur any obligations or make any promises or representations on its behalf.”
Specification 24 of the Agreement provides:
"24. To ensure that an acceptable quality of dealer performance is maintained, the Company will periodically review with the Dealer the degree to which the Dealer has satisfied the performance and operating requirements established in the agreement. The Dealer agrees to cooperate with the Company by making available to it, at such time as may be mutually convenient for such review, those sales, service and financial records which shall be necessary to adequately analyze the operation of the Dealer’s business and by assuring, upon the occasion of such review, the presence of those dealership personnel whose attendance would contribute to the overall value of the review_”