                IN THE SUPREME COURT OF IOWA
                               No. 15–0164

                        Filed December 23, 2016


DINSDALE CONSTRUCTION, LLC,
     Appellee,

vs.

LUMBER SPECIALTIES, LTD.,
    Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Grundy County, Kellyann

Lekar, Judge.



      A construction materials manufacturer and provider of engineering

services seeks further review of a court of appeals decision affirming the

district court’s denial of its motion for judgment notwithstanding the

verdict finding liability for negligent misrepresentation.   DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND CASE REMANDED.



      Michael A. Carmoney and Allison J. Frederick of Carmoney Law

Firm, PLLC, Des Moines, for appellant.



      Chad A. Swanson and Nathan J. Schroeder of Dutton, Braun,

Staack & Hellman, P.L.C., Waterloo, for appellee.
                                          2

CADY, Chief Justice.

       In this case, we must decide if an employee of a business that sells

building materials and services who supplied false information to a

builder about the structural integrity of a building under construction

had a duty to use reasonable care in supplying the information when it

was done as a courtesy to the builder and for the general goodwill of the

business.        Following     a   jury       trial   on   claims        for    negligent

misrepresentation and breach of contract, the jury returned a verdict

against the business on the negligent misrepresentation claim and the

district court denied a motion for judgment notwithstanding the verdict.

The business appealed, and we transferred the case to the court of

appeals, who affirmed the decision of the district court.                      On further

review, we vacate the decision of the court of appeals and reverse the

decision of the district court. We conclude the business owed no duty of

care in supplying the information to the plaintiff.                 We reverse the

judgment of the district court and remand for the case to be dismissed.

       I. Factual Background and Proceedings.

       In 2012, Phelps Implement (Phelps) hired Moeller & Walter, LTC, a

lumberyard,     to   provide    building       materials   and      to    oversee     the

construction of an addition to its existing implement dealership. Moeller

& Walter subcontracted with Lumber Specialties to provide the truss 1

package, headers and columns for the doors, and connections and hold

downs, in addition to certain engineering services.                 The engineering

services included structural building design, 2 a structural site visit,3



       1Aroof truss is an assemblage of beams arranged in a triangle to form a rigid
framework that supports the ceiling, insulation, roof, steel, and snow load.
       2This project, due to its size, required a permanent bracing plan that would
ensure the building would not collapse once in use.
                                            3

retaining wall engineering, 4 and an existing building truss review.5

Finally, Lumber Specialties provided an industry standard temporary

bracing plan. 6      The contract did not provide for engineering services

pertaining to the temporary bracing of the trusses and did not require

Lumber Specialties to evaluate the temporary bracing during the course

of the construction. 7      In all, Lumber Specialties contracted to provide

$33,247 worth of tangible building materials and approximately $4150

worth of engineering services. Phelps also hired Dinsdale Construction

to supply the labor and building materials for the project.

       On June 28, the owner of Moeller & Walter, Lynn Trask, visited the

Phelps site and met with Kirk Dinsdale, the owner of Dinsdale

Construction. By this time, the construction was underway, with some

of the smaller trusses placed and supported by temporary bracing.

Trask and Dinsdale agreed the construction should be evaluated to

ensure the chosen method of temporary bracing was sufficient, especially

considering the larger trusses would be going up soon. Later that day,

_________________________
       3Steve Kennedy, an engineer who works with Lumber Specialties, was to do a
postconstruction site visit assessing the permanent bracing, connections, and hold
downs. Lynn Trask of Moeller & Walter acknowledged that the “site visit” item referred
to a postconstruction, not midconstruction, assessment.
       4Phelps requested a concrete retaining wall to separate the project from a

neighboring residential area.
       5Once the addition was attached to an existing Phelps building, additional

engineering services would be needed to ensure the structure could handle the extra
load.
       6The    BCSI-B1 Summary Sheet, published by the Structural Building
Components Association and Truss Plate Institute, is provided with the sale of every
truss by Lumber Specialties. Steve Kennedy testified that engineers could, though none
did prior to the collapse, draft a site-specific temporary bracing plan. He also testified
the BCSI-B1 was a conservative approach that would be sufficient in most structures
and that less bracing would be sufficient in others.
       7Although   invoices from Select Structural Engineering, another subcontractor
on the project, referenced temporary bracing design assisted by Lumber Specialties,
these were for services rendered after the cause of action arose.
                                      4

Trask emailed Ryan Callaway, a sales representative for Lumber

Specialties.   Trask wanted Callaway to visit the site to “take a look at

what [Dinsdale Construction] ha[s] done” and advise “[i]f there is any

bracing that [is] missing.” Email from Lynn Trask, Moeller & Walter LTC

to Ryan Callaway, Lumber Specialties (June 28, 2012, 11:35 a.m.).

Callaway felt comfortable performing this visit, and he did so that

afternoon. He also believed Trask and Dinsdale should have been able to

rely on his opinion.

      Callaway had prepared the quote for the Phelps project. He had

also worked in construction for approximately twenty years.       Prior to

working with Lumber Specialties, Callaway studied architectural and

construction drafting at a community college for one year.        He then

worked in residential remodeling before accepting a job with Plumb

Building Systems (Plumb), another truss manufacturer.           At Plumb,

Callaway worked in truss design, using software to design project-

specific trusses. After three years, he left Plumb and worked a brief stint

at a factory before accepting a position with Lumber Specialties, again

working in truss design.      After another four years, he transitioned to

sales, where he has been for approximately ten years. In his capacity as

sales representative, he no longer does building designs, nor does he

install trusses.       His primary job responsibilities involve customer

relations and preparing bids.

      Callaway characterized the visit to Phelps as a courtesy to his

customer, Trask.       When he arrived at the Phelps site, Dinsdale was

working with his crew on the roof. Callaway looked around, introduced

himself, left some promotional pencils, and said something to the effect

of, “Everything looks great. Keep doing what you’re doing.” Dinsdale did

not know Callaway was a sales representative; he only knew Callaway
                                           5

was from Lumber Specialties.            Callaway was on-site for only a short

time. 8 The next day Callaway emailed Trask:

             I stopped by the Phelps site yesterday. They were still
      installing purlins[ 9] and bracing on the trusses that they had
      set. Steve Kennedy will be doing the final inspection on the
      building which will include inspecting the bracing.           If
      needed, recommendation will [be] made at that time. Please
      give Steve at least three day[’s] lead time to schedule the
      final inspection on the building. Thank you.

      Ryan Callaway

      Outside Sales

Email from Ryan Callaway, Lumber Specialties to Lynn Trask, Moeller &

Walter LTC (June 29, 2012, 06:18 a.m.). Trask replied:

               Thanks Ryan,
            I am aware Steve will be doing the inspection when
      done. Just thought it would be good to have you stop and
      check progress [to] see if there are any obvious things that
      you see that could create more stability during the set stage.
      Thanks for stopping.       Let me know if you have any
      suggestions or saw anything that I need to be aware of.
               Thanks, Lynn
               Lynn Trask
               Moeller & Walter LTC

Email from Lynn Trask, Moeller & Walter LTC to Ryan Callaway, Lumber

Specialties (June 29, 2012, 09:56 a.m.). Callaway replied:
            Nothing “jumped” out at me that needed more
      temporary bracing. I thought everything looked good on
      what they had completed.
Email from Ryan Callaway, Lumber Specialties to Lynn Trask, Moeller &

Walter LTC (June 29, 2012, 10:05 a.m.).                     Trask concluded the

conversation:


      8While   Dinsdale estimates Callaway was on-site for approximately thirty
minutes, Callaway himself believes it was only around ten.
      9Purlins   are horizontal beams along the length of the roof providing structural
support.
                                        6
               That’s what I was really asking for.

            I have a lot of confidence in you[r] experience and
      opinion.

               Thanks, Lynn

Email from Lynn Trask, Moeller & Walter LTC to Ryan Callaway, Lumber

Specialties (June 29, 2012, 11:39 a.m.).

      Nine days later, the structure collapsed. There was no personal

injury or property damage, but the parties incurred substantial costs in

rebuilding the structure.       A postcollapse investigation revealed the

collapse was due to inadequate temporary bracing of the trusses.

Dinsdale had not followed the industry standard temporary bracing plan.

      Dinsdale Construction brought suit against Lumber Specialties on

breach    of   contract   (as   a   third-party   beneficiary)   and   negligent

misrepresentation theories.         Lumber Specialties moved for summary

judgment, arguing, among other things, it had no duty to use reasonable

care in providing Callaway’s interim assessment of the adequacy of the

temporary bracing erected by Dinsdale Construction. It argued it was a

product manufacturer that should be categorically excluded from owing

a duty under existing Iowa law. The district court denied the motion,

finding negligent misrepresentation was a question for the jury.           After

Dinsdale Construction presented its evidence at trial, Lumber Specialties

moved for directed verdict, again arguing the negligent misrepresentation

claim should not be submitted to the jury. The district court denied the

motion.   The jury returned a verdict for Dinsdale Construction on the

negligent misrepresentation claim, but found no breach of contract.

Lumber Specialties moved for judgment notwithstanding the verdict,

reiterating that it owed no duty to Dinsdale Construction under Iowa

negligent misrepresentation law.        The district court again denied the
                                    7

motion, finding the court had already ruled on the issue and that

whether Lumber Specialties was in the business of supplying information

was a fact question the court appropriately submitted to the jury.

Lumber Specialties appealed. The court of appeals affirmed, holding the

question was for the court, but finding that Lumber Specialties had a

duty of care because it was in the business of supplying information at

the time of the misrepresentation. We granted further review.

      II. Standard of Review.

      “We review the denial of a motion for judgment notwithstanding

the verdict for correction of errors at law.”   Van Sickle Constr. Co. v.

Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010).

Whether the defendant owed a legal duty is “always a question of law for

the court.” Fry v. Mount, 554 N.W.2d 263, 265 (Iowa 1996). We review

the evidence in the light most favorable to the nonmoving party.      See

Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224

(Iowa 1998).

      III. Analysis.

      The Restatement states,

      One who, in the course of his business, profession or
      employment, or in any other transaction in which he has a
      pecuniary interest, supplies false information for the
      guidance of others in their business transactions, is subject
      to liability for pecuniary loss caused to them by their
      justifiable reliance upon the information, if he fails to
      exercise reasonable care or competence in obtaining or
      communicating the information.

Restatement (Second) of Torts § 552, at 126–27 (Am. Law Inst. 1977)

[hereinafter Restatement].   We first recognized and adopted the tort of

negligent misrepresentation in providing information in Ryan v. Kanne,

rejecting the narrow approach of the common law rule at the time,

represented by cases such as Ultramares Corp. v. Touche, 174 N.E. 441
                                      8

(N.Y. 1931). See Ryan v. Kanne, 170 N.W.2d 395, 401–03 (Iowa 1969).

We instead followed the path paved by the Restatement, then in its draft

form. See id. at 402–03 (citing Restatement (Second) of Torts § 552 (Am.

Law. Inst., Tentative Draft No. 11, 1965)).

      Two decades after adopting the tort, we began to narrow our

approach, finding the “duty . . . is generally not applicable to a retailer in

the business of selling and servicing his merchandise.”        Meier v. Alfa-

Laval, Inc., 454 N.W.2d 576, 581 (Iowa 1990); see also Greatbatch v.

Metro. Fed. Bank, 534 N.W.2d 115, 117 (Iowa Ct. App. 1995) (“Although

the language of the Restatement (Second) of Torts supports a broad view

of the types of businesses covered by the tort, our appellate cases reflect

a rather narrow scope.”      (Footnote omitted.)).    We later affirmed this

position, stating, “Where the defendant is not in the business of

supplying information, and the parties deal at arm’s length in a

commercial transaction, our courts have refused to recognize a duty

arising under section 552.”     Fry, 554 N.W.2d at 265–66 (Iowa 1996)

(citing Freeman v. Ernst & Young, 516 N.W.2d 835, 838 (Iowa 1994);

Haupt v. Miller, 514 N.W.2d 905, 910 (Iowa 1994); Meier, 454 N.W.2d at

581–82; Greatbatch, 534 N.W.2d at 118).              Thus, under Iowa law,

normally only those in the business of supplying information to others

owe a duty to ensure that information is correct, accurate, and thorough.

See Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 123 (Iowa

2001) (noting restrictions on the tort are due to the “fear that liability for

misinformation could be virtually unlimited . . . under the traditional

foreseeability limitation applicable to negligence claims”).           Other

jurisdictions follow similar approaches. See, e.g., Rankow v. First Chi.

Corp., 870 F.2d 356, 360 (7th Cir. 1989) (applying Illinois law) (“Illinois

law only allows recovery for purely economic losses under a negligent
                                      9

misrepresentation theory when the defendant is ‘in the business of

supplying information for the guidance of others . . . .’ ” (quoting Rankow

v. First Chi. Corp., 678 F. Supp. 202, 205 (N.D. Ill. 1988))); Millsboro Fire

Co. v. Constr. Mgmt. Serv., Inc., C.A. No. 05C-06-137 MMJ, 2006 WL

1867705, at *3 (Del. Super. June 7, 2006) (“In Delaware, only . . . those

expressly in the business of supplying information . . . can be liable in

tort for purely economic losses.”).

      In our effort to distinguish those circumstances when a person has

a duty to use reasonable care in supplying information from those

circumstances when there is no duty, we have articulated various

considerations derived from the framework of the Restatement rule. We

seek to distinguish advisory relationships from relationships that are

adversarial and at arm’s length. See Pitts v. Farm Bureau Life Ins. Co.,

818 N.W.2d 91, 111 (Iowa 2012).           We seek to distinguish the sale of

information as a product from information given incidentally as part of

another transaction. Id. at 112. We distinguish professional purveyors

of information from those who work in another capacity. Id. Finally, we

seek to capture the concept of foreseeability within those circumstances

that impose a duty of care. Id. at 111–12.

      These considerations are principles of law that help frame the

parameters of the tort and express its rationale more than they are

factors to weigh in determining the existence of a duty. In each instance,

we must only impose a duty on persons who, “in the course of [their]

business, profession or employment, or in any other transaction in which

[they have] a pecuniary interest,” supply information to others in their

business transactions. Restatement § 552(1), at 126. The distinctions

we have observed exist to help in the application of this rule and are

often aligned with the presence or absence of a pecuniary interest in
                                      10

giving the information. See Sain, 626 N.W.2d at 124–25; Molo Oil Co.,

578 N.W.2d at 227 (“[I]f the transaction at issue took place at arm’s

length, the plaintiff’s cause of action must fail.”); Fry, 554 N.W.2d at 266

(noting allowing recovery for negligent misrepresentation in adversarial

relationships would allow “recover[y] in tort on the same factual grounds

on which the law would deny . . . recovery in contract”); Meier, 454

N.W.2d at 581 (noting in an arm’s length transaction “the law of contract

and    warranty    may    provide   the    more   appropriate   remedies   for

misstatements”).    Compare Pitts, 818 N.W.2d at 113 (“The advisory

nature of the principal–agent relationship supports allowing a claim of

negligent misrepresentation.”), and Sain, 626 N.W.2d at 126 (“The

counselor and student have a relationship which extends beyond a

relationship found in an arm’s length transaction.”), with Jensen v.

Sattler, 696 N.W.2d 582, 588 (Iowa 2005) (denying recovery where

relationship was between seller and buyer of a home); Haupt, 514 N.W.2d

at 906, 910 (accord, between banker and consumer in loan guarantee

transaction).

       In this case, Lumber Specialties is in the business of providing a

variety of products and services, some of them information and others

not.   See Greatbatch, 534 N.W.2d at 117 (noting “[n]o clear guideline

exists” and many businesses “fall[] somewhere in the middle of the

spectrum”); see also Hartford Fire Ins. Co. v. Henry Bros. Constr. Mgmt.

Servs., LLC, 877 F. Supp. 2d 614, 619–20 (N.D. Ill. 2012) (“[I]t may be

useful to ‘envision a continuum [of enterprises] with pure information

providers at one end and pure tangible good providers at the other[].’ ”

(quoting Tolan & Son, Inc. v. KLLM Architects, Inc., 719 N.E.2d 288, 296

(Ill. App. Ct. 1999))).   Lumber Specialties contracted to provide both

tangible construction materials (trusses, headers and columns, and
                                           11

connections and hold downs) and intangible engineering services

(designs, site visits, reviews).         Thus, Lumber Specialties operates a

“mixed” business. 10 See Rankow, 870 F.2d at 365 (describing “ ‘mixed’

cases, where both goods (or services) and information were exchanged”).

       When a person is in the business, profession, or employment that

both sells products and supplies information for the guidance of others,

it is necessary to look at the specific transaction that gives rise to the

claim of liability.     See Pitts, 818 N.W.2d at 112–13 (noting insurance

agent acting as insurance salesperson would not be a proper defendant

but imposing duty when acting as an agent to the insured). Thus, even

though the tort normally only applies to a person in the business of

supplying information, when a business engages in mixed services, the

specific transaction must be examined to determine if the person had a

pecuniary interest in the transaction. See Restatement § 552 cmt. c, at

129 (“The rule . . . applies only when the defendant has a pecuniary

interest in the transaction in which the information is given.”).

       As explained in Sain, the pecuniary interest that a person has in a

business, profession, or employment that supplies information to others

gives rise to the factors that support the imposition of a duty, such as

the awareness, foreseeability, and justifiable reliance compatible with a

special relationship. 626 N.W.2d at 124–25 (noting those in the business



       10Lumber     Specialties argues we follow Illinois courts who have adopted a strict
ends and aims of the transaction test. See Hartford Fire Ins. Co., 877 F. Supp. 2d at
620 (“[I]f the intended end result of the relationship is for the defendant to create a
product—a tangible thing—then the defendant will not [be in] the ‘business of supplying
information’ . . . .”); see also id. (noting architects and engineers might supply
information, but the end result will be a tangible product (examples include a building
and a water supply system), and thus they are not in the business of supplying
information). Because we resolve this matter using our existing law, we need not reach
whether we should adopt such a test, or whether it would even apply to the facts of this
case.
                                          12

of supplying information are “also in a position to weigh the use for the

information against the magnitude and probability of the loss that might

attend the use of the information if it is incorrect”). Although we have

not yet applied the tort beyond persons in the course of their business or

profession of supplying information, section 552(1) of the Restatement

includes persons who supply false information “in any other transaction

in which [they have] a pecuniary interest.” 11           Restatement § 552(1), at

126. Transactions involving a pecuniary interest share the attributes of

a business, profession, or employment supplying information to others,

as well as the rationale for imposing a duty. The key to the imposition of

a duty to use reasonable care in supplying information necessarily

involves a pecuniary interest in supplying the information. Restatement

§ 552(1) cmt. c, at 129.

       The comments to the Restatement provide examples that give

context to the rule.       When the information is given to others in the

course of a defendant’s business, a pecuniary interest normally exists

even though no consideration may be given at the time. Id. cmt. d. The

operation of the business supports the existence of pecuniary interest.

See also Pitts, 818 N.W.2d at 113. Yet, this basis for imposing a duty is

not conclusive. Restatement § 552(1) cmt. d, at 130. If a defendant who

works in a business or profession that supplies information to others



       11A  tentative draft of the Restatement (Third) of Torts: Liability for Economic
Harm, parallels the current section 552. See Restatement (Third) of Torts: Liab. for
Econ. Harm §§ 5, 6 (Tentative Draft No. 1, 2012). However, it splits the tort into
negligent misrepresentation and negligent performance of services, though “[n]o
substantive differences are intended,” id. § 5 cmt. a, and “[n]othing should depend on
[the] characterization,” id. § 6 cmt. a. The comments to draft-section 5 note the
requirement “serves several purposes,” including “confin[ing] liability to cases where
information is offered in a sufficiently serious spirit to make the plaintiff’s reliance
reasonable” and avoiding the chilling of gratuitous speech. Id. § 5 cmt. c. We note that
both of these concerns are present here.
                                            13

gives information but not in the course of the business or profession and

does not expect or receive compensation or financial remuneration for

the information, no duty arises. The classic illustration of this rule is a

lawyer who gives a “curbstone” opinion. Id.

       The comments to the Restatement further identify the source of the

financial interest requirement of the rule when information is given in

the course of a transaction with another. Here, the pecuniary interest

requirement normally comes from the consideration paid or given to the

person who supplies the information as a part of the transaction.                       Id.

This consideration does not necessarily need to be direct. Id. It can also

be indirect.     Id.; see also Sain, 626 N.W.2d at 126.                Thus, corporate

officers who stand to profit from transactions by others in the

corporation have a pecuniary interest in the transaction. Restatement

§ 552(1) cmt. d, at 129. Likewise, agents of a corporation who expect to

receive compensation on sales of information have pecuniary interests,

even though the sale may not ultimately be completed.                           Id.    The

important characteristic of the consideration is the expectation of

compensation of some form at some time for giving the information to

another. 12 See Sain, 626 N.W.2d at 126.

       12The   comments to the tentative draft of the Restatement (Third) of Torts:
Liability for Economic Harm section 5 state, when the defendant made a representation
to a plaintiff with whom the defendant has no direct commercial relationship, “The
important question then is whether speaking will redound to the defendant’s economic
benefit in some reasonably clear way, perhaps because it helps another party with
whom the defendant has a contract.” See Restatement (Third) of Torts: Liab. for Econ.
Harm § 5, cmt. c. To the extent this comment could apply, we do not find it reasonably
clear Callaway’s misrepresentations were intended to redound to his economic benefit.
The comments also discuss the professional who is typically paid to speak but supplies
the information without charge and note liability can turn on the regularity of providing
“free” advice. See id. (“The regularity suggests that providing certain advice for ‘free’ is
part of the defendant’s business, not an isolated favor with unconsidered
implications.”). There is nothing in the record to suggest Callaway provided similar
opinions with any regularity, let alone regularity sufficient for us to conclude it was his
business to do so.
                                        14

       In this case, Lumber Specialties did not contract with Moeller &

Walter    or    Dinsdale    Construction     to    provide        engineering   services

pertaining to the temporary bracing work. It did, however, through its

employee, supply Moeller & Walter and Dinsdale Construction with

information or advice concerning the integrity of the bracing work. This

was done outside the scope of the contract, and the duty question turns

on whether Callaway or Lumber Specialties had a pecuniary interest in

the informational transaction.

       No      evidence    was   presented    at    trial    to    reveal   any   direct

consideration was paid to Lumber Specialties or Callaway for supplying

the interim assessment of the temporary bracing.                      Furthermore, no

evidence was presented at trial to show Callaway received direct

consideration from Lumber Specialties for supplying the temporary

bracing information to Moeller & Walter and Dinsdale Construction. No

information was presented to show Callaway was responsible to supply

the information as a part of his job responsibilities.                 Additionally, no

evidence was presented that Callaway had an expectation that Lumber

Specialties or either Moeller & Walter or Dinsdale Construction would

compensate him for giving the information. Instead, the evidence at trial

showed Callaway supplied the information as a courtesy to a customer in

furtherance of the overall business interests of Lumber Specialties. This

is the evidence Dinsdale Construction asserts supports the imposition of

a duty based on the rule that indirect consideration can be sufficient to

establish a pecuniary interest in supplying information. See Nationwide

Agribus. v. Structural Restoration, Inc., 705 F. Supp. 2d 1070, 1081 (S.D.

Iowa 2010) (finding an indirect financial interest for information provided

“as a ‘sales tool’ ”).
                                     15

        In Nationwide, the defendant was engaged in a business of

inspecting and repairing silos. Id. at 1080. The defendant inspected the

plaintiff’s silo free of charge and wrote a letter to the plaintiff describing

the results of the inspection, which the plaintiff alleged misrepresented

its condition. Id. at 1078. The silo subsequently collapsed. Id. at 1075.

The court found the defendant had an indirect financial interest in the

inspection to support imposing the duty of care because the information

was done as a “sales tool” to procure future repair services for

compensation.     Id. at 1081.   The court found the facts in that case

supporting its conclusion the defendant had an indirect pecuniary

interest analogous to the facts in Sain. Id. (citing Sain, 626 N.W.2d at

126).    Contrary to this observation, we do not find the facts in Sain

analogous.

        In Sain, we held that a high school counselor had an indirect

pecuniary interest in supplying information to a student athlete

concerning his eligibility to pay college basketball, even though the

student athlete did not pay any consideration to the counselor.          626

N.W.2d at 120, 126. We found the consideration paid to the counselor

by the school system to provide advice and information to students

constituted sufficient pecuniary interest.     Id.   The indirect pecuniary

interest in Sain was not supplied by the future expectation of direct

consideration for future transactions as in Nationwide.         Compare id.,

with Nationwide, 705 F. Supp. 2d at 1081. The defendant in Nationwide

had inspected the plaintiff’s silos a few years earlier and submitted a bid

at that time to perform restoration services. Nationwide, 705 F. Supp. 2d

at 1073. The inspection and bid did not result in a contract, but it was

viewed as part of a business model that would lead to contracts. See id.

at 1075. The inspection and bid were a common component to the sales
                                        16

transaction. See id. at 773. When the defendant inspected the silos a

second time, it knew the silo owner was concerned about the condition of

one of the silos. Id. at 1074. It also knew the inspection could lead to

the procurement of future restoration-services contract for consideration.

Id. at 1075.       Thus, at least some evidence suggested the gratuitous

inspection was part of an overall sales technique to support a finding of a

financial interest in making the inspection. See id. at 1081.

       Unlike in Nationwide, there is no evidence in this case to support

finding an expectation that the requested inspection done by Callaway

would result in additional or future transactions for the purchase of

building materials or engineering services by Moeller & Walters, Dinsdale

Construction, or any other entity or person. There was also no evidence

that the actions by Callaway in making a cursory inspection of the

trusses was part of a business model or “sales tool” used by Lumber

Specialties to procure future sales or services. Nothing was said during

the course of the transaction and no representations were made about

future sales. 13

       We conclude the district court erred in failing to grant the motion

for judgment notwithstanding the verdict made by Lumber Specialties.
The tort of negligent misrepresentation is not broad enough for the

pecuniary interest in a transaction to come from general goodwill

potentially derived by a business in supplying requested advice or

information to a customer as a courtesy following the sale of a product.

A transaction of this nature is too attenuated and abstract from those

contemplated by the Restatement to impose a duty of care.                Although


       13We note Callaway passed out promotional pencils bearing Lumber Specialties’
name. Even taking the evidence in the light most favorable to Dinsdale Construction,
as we must, we do not find this dispositive.
                                   17

some degree of foreseeability and reliance may result from a gratuitous

opinion, no special relationship is created to impose the duty of care

without a pecuniary interest. In effect, Callaway’s casual observations

requested by Moeller & Walter expressed nothing more than a “curbstone

opinion” excluded from the imposition of duty under the tort.

      IV. Conclusion.

      As one commentator asserts, “Negligent misrepresentation has

become the most facile tort theory available to a construction project

participant who would recover purely economic loss from another

participant.”   See Carl J. Circo, Placing the Commercial and Economic

Loss Problem in the Construction Industry Context, 41 J. Marshall L. Rev.

39, 87 (2007). In Iowa, negligent misrepresentation is not subject to the

economic loss rule. See Van Sickle, 783 N.W.2d at 694. It can, and has,

been applied to a variety of businesses. See Pitts, 818 N.W.2d at 112

(noting tort has been applied in Iowa to “accountants, appraisers, school

guidance counselors and investment brokers”). Yet, the doctrine does

have limits. A duty is normally only imposed on those in the business of

providing information because this is the most common example of those

who are paid for or otherwise have a pecuniary interest in providing the

information that gave rise to the dispute. The duty is imposed because it

is fair to hold these professional purveyors of information to the

foreseeable consequences of their actions. We do not impose a duty on

defendants who do not have a pecuniary interest in the transaction, nor

do we impose a duty where the defendant is not acting in its information-

giving capacity. Callaway’s statements fall in the former category. This

question of duty was for the court to decide, and the district court erred

in denying Lumber Specialties’ motion for judgment notwithstanding the

verdict.
                         18

    DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.
