The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
AND RELATED COUNTERCLAIMS
Prior to reading the closing instructions to the jury in this matter, the Court considered the parties' proposed instructions, written objections to the propose instructions, and the arguments of counsel. On June 23, 2010, the Court made its oral ruling on the parties objections. One of the rulings included allowing the Plaintiff's, O Bar Cattle Company, claim of negligence to go before the jury over the Defendant's, Owyhee Feeders Incorporated, objection. The Court indicated that it would issue a memorandum regarding this ruling. This written order is the Court's decision regarding the O Bar's negligence claim.
In its proposed instructions, O Bar submitted instructions on its negligence claim for recovery of damages in this matter. (Docket No. 140). Owyhee Feeders filed a response to the Court's proposed jury instructions which included an objection to the negligence claim on the grounds that it was precluded by the economic loss rule. (Docket No. 169). O Bar filed a reply arguing the negligence claim as to the damages for the deceased cattle was not precluded by the economic loss rule citing primarily to Oppenheimer Indus. v. Johnson Cattle Co., 732 P.2d 661 (Idaho 1986). Owyhee Feeders countered by citing to Aardema v. United States Dairy Systems, Inc., 215 P.3d 505 (Idaho 2009) and Ramerth v. Hart, 983 P.2d 848 (Idaho 1999) in support of its position. The Court has considered whether the negligence claim is barred as a matter of law by the economic loss rule and finds as follows.
"Unless an exception applies, the economic loss rule prohibits recovery of purely economic losses in a negligence action because there is no duty to prevent economic loss to another." Blahd v. Richard B. Smith, Inc., 108 P.3d 996, 1000 (Idaho 2005) (citing Duffin v. Idaho Crop Improvement Association, 895 P.2d 1195, 1200 (Idaho 1995)). "Economic loss includes costs of repair and replacement of defective property which is the subject of the transaction, as well as commercial loss for inadequate value and consequent loss of profits or use." Ramerth, 983 P.2d at 850 (citation omitted); see also Blahd, 108 P.3d at 1000. Such economic loss is distinguished from property damage which is recoverable in tort. Id. "Property damages encompasses damage to property other than that which is the subject of the transaction." Id. (quoting Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 544 P.2d 306, 309 (Idaho 1975)). For purposes of the economic loss rule, "transaction" does not mean a business deal; rather, it means the subject of the litigation. Blahd, 108 P.3d at 1000.*fn1
Thus, generally "a plaintiff may not recover in tort where the sole allegation is that the defendant prevented the plaintiff from gaining a purely economic advantage." Aardema, 215 P.3d at 510 (citation omitted). The "economic loss rule" operates to segregate damage claims between the tort law and the contract law in a manner that the legislature has deemed to be the most efficient for the resolution of disputes. See Duffin, 895 P.2d at 1200 (finding that economic losses cannot be recovered on a negligence theory because "a contrary holding would undermine the comprehensive structure of the Uniform Commercial Code, and that the economic expectations of parties have traditionally not been protected by the tort law.") (citing Clark v. International Harvester Co., 581 P.2d 784, 793 (Idaho 1978). The Idaho Supreme Court has chosen to draw the line between these two potentially overlapping systems of law on the basis of (1) whether the loss claimed relates to the subject matter of the transaction and (2) whether the loss claimed includes property damage. If the damages are purely economic and pertain to the subject matter of the transaction, there can be no recovery under a negligence theory. Aardema, 215 P.3d at 510 ("Without any physical damage to separate property, the loss is merely the product's failure to meet [the plaintiff's] expectations.").
1. Subject of the Transaction
The Idaho Supreme Court has "implicitly defined the 'subject of the transaction' by the subject matter of the contract." Aardema, 732 P.2d at 511 n. 2 (discussing Blahd, 108 P.2d at 1000). Applying this definition here, the underlying contract is a bailment agreement whereby Owyhee Feeders would keep, care for, feed, water and medicate O Bar's cattle in return for consideration. As such, the "subject of the transaction" is the bailment agreement. Therefore, the deceased cattle are property other than that which is the subject of the transaction and damages incurred to those cattle are property losses, not purely economic damages.*fn2 Accordingly, the O Bar's negligence claim is appropriate in this case. That being said, O Bar's negligence damages are limited to recovery of the cattle that died as discussed below.
Even if the loss claimed relates to the subject matter of the transaction, a plaintiff may still recover damages under a negligence theory if they have suffered property damage. Aardema,215 P.3d at 511 ("Economic loss is distinguishable from property damage, which would be recoverable under a tort claim."). In order to distinguish between the two types of damage the Idaho Supreme Court has offered the following guidance: "Economic loss has been defined as, but not limited to, costs of repair and replacement of defective property which is the subject of the transaction, as well as commercial loss for inadequate value and consequent loss of profits or use." Id. at 510 (quoting Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 544 P.2d 306, 309 (Idaho 1975) rev'd on other grounds (internal quotations omitted). The Court will examine the loss claimed by O Bar and determine whether it is merely the lost economic expectation, which would not be recoverable, or if it constitutes property damage.
O Bar relies on Oppenheimer to support its claim that the death loss of cattle at Owyhee Feeders is property damage. In that case, the negligence of the State Brand Inspector caused the plaintiff's cattle to be stolen. Id. at 662. The court found that "it is a long held maxim that animals are tangible property." Id. at 664. Reasoning from this proposition the court concluded that "a cause of action in negligence is available for one whose chattel is lost or destroyed through the negligence of another." Id. The court had to reconcile this apparent finding with the earlier decision in Clark, which established the separation of the tort and contract doctrines along the economic loss fault line. In order to do this the court held that "Unlike the plaintiff in Clark [the plaintiff] is not still in possession of defective goods. Rather, [the plaintiff] has suffered the loss of its property (i.e. the cattle) due to the negligence of [the defendant]." Id. (emphasis in original). The court in Oppenheimer drew a distinction between property that had been reduced in value and property that had been destroyed. In this case, because O Bar is only seeking the death loss of its cattle through its negligence claim, it is not precluded by the economic loss rule.
Owyhee Feeders contends that the Idaho Supreme Court's recent decision in Aardema overturns the language in Oppenheimer. This is not the case. The plaintiff in Aardema was seeking damages for the negligent design, installation and maintenance of an automated milking system that had caused "decreased milk production, quality, and damage to the cows." Aardema, 215 P.3d at 508. The court concluded that "if the only damage that is produced is in the form of lost milk production, quality and profits and not actual physical damage to the cows then this is purely economic loss; that is, the failure of the milking equipment to produce the products and profits anticipated by Aardema dairy." Id. at 511-12. Owyhee Feeders would be correct in asserting that the economic loss rule prevents O Bar from claiming any damages under negligence for a weight gain by the cattle that was below industry standards. This is properly characterized as O Bar's expectation from the contract, but it is not what O Bar is claiming under a negligence theory. O Bar seeks only the damages deriving from the death loss of its cattle, a claim sanctioned by the court in Aardema.
O Bar's position is supported by Idaho case law. In Duffin, the plaintiff attempted to recover for blighted seeds. The court, relying on Oppenheimer, held that plaintiff "remained in possession of the defective seed which they sold and from which they suffered a loss of profits, not property." Duffin, 895 P.2d at 1200 n.25. Similarly, the court in Ramerth, held that a plaintiff could not recover subsequent costs associated with the improper service to an aircraft engine. It is clear that the Idaho courts have drawn a clear distinction between property damage and economic loss based around the ...