Florida’s Supreme Court Limits the Economic Loss Rule

Mass Tort and Product Liability   |   Pharmaceuticals and Medical Devices   |   June 27, 2013

The Florida Supreme Court recently limited the application of the economic loss rule to products liability cases. In Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., et al., the Eleventh Circuit certified a question to the Court inquiring about the professional services exception to the economic loss rule. Rather than answering the certified question, the Court took the opportunity to roll back the economic loss rule.

The rule was first applied to prohibit a plaintiff from suing in tort for purely economic losses resulting from a product’s defect.  The rationale was that contract principles are more appropriate for recovering economic losses that occur without any physical injury or property damage. The strict liability doctrine was not intended to undermine the warranty provisions of contract law, but to govern the separate problem of physical injuries caused by defective products.

The economic loss rule, however, was subsequently applied, with certain exceptions, to cases in which parties were in contractual privity and where one party sought to recover damages in tort for matters arising from the contract. The majority in Tiara opined, however, that such applications represented an expansion of the rule beyond its origins that was unwise and unworkable in practice. As a result, the Court limited application of the economic loss rule to products liability cases.

Justice Pariente concurred and argued that the decision did not amount to a “dramatic unsettling of Florida law,” as argued by the dissenting opinions. To bring a valid tort claim, Justice Pariente reasoned, a party still must demonstrate that all the required elements for the cause of action are satisfied. This includes demonstrating that the tort is independent of any breach of contract claim. When parties have negotiated remedies for nonperformance pursuant to a contract, one party may not seek to obtain a better bargain by turning a breach of contract claim into a tort claim. The majority only determined that common law principles of contract, not the economic loss rule, produced this result, which did not, in Justice Pariente’s view, represent an “upsetting of firmly established principles.”

Justice Polston and Justice Canady, however, disagreed. In his dissent, Justice Polston stated, “without justification, the majority greatly expands the use of tort law at a cost to Florida’s contract law.” Justice Canady also dissented, asserting that the majority’s opinion represented a dramatic unsettling of Florida law. Furthermore, Justice Canady asserted that the majority failed to explain why the economic loss rule is workable and wise in the products liability context, but unworkable and unwise in the context of contract-based relationships. He stated, “With today’s decision, we face the prospect of every breach of contract claim being accompanied by a tort claim.”

The effects of this decision remain to be seen. Justice Pariente opined that it will not have a substantial impact, noting it merely altered the means by which a court will dismiss alleged tort claims that arise in a contractual setting.  Justice Polston and Justice Canady, however, appear to believe that the majority eliminated a rule that “prevents contract law from drowning in a sea of tort."


  1. Tiara Condominium Association, Inc., v. Marsh & McLennan Companies, Inc,. et al., 110 So. 3d 399 (Fla. 2013).

©2023 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.

Subscribe to Publications


The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.