Civil Theft Claims Not Barred by Economic Loss Rule
Publisher: American Bar Association
February 12, 2020
Miami-based partner Mark Romance was quoted in an article, "Civil Theft Claims Not Barred by Economic Loss Rule," which appeared in Litigation News, a publication of the American Bar Association, Section of Litigation. The article focuses on a Colorado Supreme Court ruling in Bermel v. BlueRadios, Inc. which found that the economic loss rule does not bar a statutory claim for civil theft, even where the theft also beaches the parties' contract. The ruling points to a continuing trend toward limitations on the rule. "The economic loss rule at one point was very broad but now is becoming more narrow, and the Bermel court's ruling demonstrates the trend toward limiting application of the rule," said Romance, who serves as vice-chair Section of Litigation's Commercial & Business Litigation Committee.
As noted in the article, even in the context of a breached contract, there is also a broader trend of courts recognizing a legislature's ability to decide when a party can recover tort damages. "The Colorado court's ruling reinforces the legislature's power to create causes of action that trump common law claims," Romance commented. The piece also notes that some states still apply the economic loss rule to limit statutory causes of action, and suggests that practitioners exercise caution before disregarding common law principles when determining appropriate relief for tort claims. According to Romance, "The line between torts and contracts has always been blurred. Tort claims are grounded in common law, and that common law shouldn’t be completely ignored simply because the parties have a contract." Further, he noted "When you are pursuing claims on behalf of your clients, you want to look not only to traditional common law claims involving contracts, but also to statutory remedies that may not be popular or often used, but may provide a remedy."
Day Pitney Partner Mark A. Romance and Senior Associate Andrew R. Ingalls authored the article, "Five Important but Often Overlooked Aspects of Consumer Class Actions," for the American Bar Association's Commercial and Business Litigation Committee's Summer Newsletter.