                                                                  [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                          FILED
                                                               U.S. COURT OF APPEAL
                                                                ELEVENTH CIRCUIT
                            _____________
                                                                  APRIL 16, 2013
                              No. 09-11718                          JOHN LEY
                            _____________
                                                                     CLERK
                  D. C. Docket No. 08-80254-CV-DTKH

TIARA CONDOMINIUM ASSOCIATION, INC.,
A Florida non-profit corporation,
In its own name and as agent for all owners
of record of all individual condominium
parcels with the Tiara Condominium,

                                                     Plaintiff-Appellant,

                                  versus

MARSH & MCLENNAN COMPANIES, INC.,
a Delaware Corporation,
MARSH, INC.,
MARSH, USA, INC.,

                                                     Defendants-Appellees.

                             ______________

                Appeal from the United States District Court
                    for the Southern District of Florida
                             ______________


                              (April 16, 2013)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD, *
District Judge.

DUBINA, Chief Judge:

        As we stated in our earlier opinion recorded at Tiara Condominium

Association, Inc., v. Marsh & McClennan Companies, Inc., 607 F.3d 742 (11th Cir.

2010), this appeal arises from a contract between an insurance broker and the

association responsible for managing the condominium tower located on Singer

Island, Florida. The tower suffered extensive wind damage from two hurricanes in

September 2004. The condominium association claimed that the broker caused

part of its losses by failing to procure an adequate insurance policy for the

condominium. In our earlier opinion, we were able to resolve the issues raised on

appeal with respect to the association’s claims for breach of contract, breach of the

implied covenant of good faith and fair dealing, and negligent misrepresentation.

We affirmed the district court’s grant of summary judgment on all of those claims.

Concerning the claims for negligence and breach of fiduciary duty, because we

concluded that Florida law was unclear, we certified the following question to the

Supreme Court of Florida concerning Florida’s application of the economic loss

rule:



        *
        Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
                                             2
      CERTIFICATION FROM THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT

OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE

SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

      DOES AN INSURANCE BROKER PROVIDE A “PROFESSIONAL

SERVICE” SUCH THAT THE INSURANCE BROKER IS UNABLE TO

SUCCESSFULLY ASSERT THE ECONOMIC LOSS RULE AS A BAR TO

TORT CLAIMS SEEKING ECONOMIC DAMAGES THAT ARISE FROM THE

CONTRACTUAL RELATIONSHIP BETWEEN THE INSURANCE BROKER

AND THE INSURED?

      In certifying our question, we noted that the Supreme Court of Florida

retains the discretion to restate the issue and to answer the question in the manner it

chooses. See Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904 (11th Cir. 2007).

The Supreme Court of Florida did precisely that. It restated the certified question

as follows:

      DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT

AGAINST AN INSUANCE BROKER WHERE THE PARTIES ARE IN

CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES

SOUGHT ARE SOLELY FOR ECONOMIC LOSSES?

                                          3
      The Supreme Court of Florida answered its question in the negative and held

that the application of the economic loss rule was limited to products liability

cases. Accordingly, based on the opinion the Supreme Court of Florida filed with

the Eleventh Circuit Court of Appeals on March 11, 2013, and attached hereto as

“Appendix I,” we vacate the district court’s grant of summary judgment in favor

of Marsh on Tiara’s claims for negligence and breach of fiduciary duty and remand

those claims for the district court to reconsider them in light of the Supreme Court

of Florida’s opinion.

      VACATED and REMANDED.




                                          4
                                   APPENDIX I


           Supreme Court of Florida
                                    No. SC 10-1022


             TIARA CONDOMINIUM ASSOCIATION, INC., etc.,
                            Appellant,

                                          vs.

           MARSH & MCLENNAN COMPANIES, INC., etc., et a!.
                          Appellees.

                                   [March 7, 2013]

LABARGA, J.

      This case is before the Court for review of a question of Florida law certified

by the United States Court of Appeals for the Eleventh Circuit that is determinative

of a cause pending in that court and for which there appears to be no controlling

precedent. We have jurisdiction.      art. V, § 3(bX6), Fla. Const. In Tiara

Condominium Ass'n, Inc. v. Marsh & McLennan Co., Inc., 607 F.3d 742, 749

     Cir. 2010), the Eleventh Circuit certified the following question to this Court:

     DOES AN INSURANCE BROKER PROVIDE A "PROFESSIONAL
     SERVICE" SUCH THAT THE INSURANCE BROKER IS
     UNABLE TO SUCCESSFULLY ASSERT THE ECONOMIC LOSS
     RULE AS A BAR TO TORT CLAIMS SEEKING ECONOMIC
     DAMAGES THAT ARISE FROM THE CONTRACTUAL
        RELATIONSHIP BETWEEN THE INSURANCE BROKER AND
        THE INSURED?

 Because the question as certified by the Eleventh Circuit is premised on the

 continued applicability of the economic loss rule in cases involving contractual

 privity, we restate the certified question as follows:

        DOES THE ECONOMIC LOSS RULE BAR AN INSURED'S SUIT
        AGAINST AN INSURANCE BROKER WHERE THE PARTIES
        ARE IN CONTRACTUAL PRIVITY WITH ONE ANOTHER AND
        THE DAMAGES SOUGHT ARE SOLELY FOR ECONOMIC
        LOSSES?

 We answer this question in the negative and hold that the application of the

 economic loss rule is limited to products liability cases. Therefore, we recede from

 prior case law to the extent that it is inconsistent with this holding. We begin by

discussing the facts and procedural background of this case. We then turn to our

analysis.

                 FACTS AND PROCEDURAL BACKGROUND

       The facts of this case are set forth in the Eleventh Circuit Court of Appeals'

opinion in Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Co.. Inc., 607

F.3d 742 (11th Cir. 2010). We summarize the facts here. Tiara Condominium

Association (Tiara) retained Marsh & McLennan (Marsh) as its insurance broker.

One of Marsh's responsibilities was to secure condominium insurance coverage.

Marsh secured windstorm coverage through Citizens Property Insurance

Coiporation (Citizens), which issued a policy that contained a loss limit in an
  amount close to 50 million. In September 2004, Tiara's condominiu
                                                                    m sustained
  significant damage caused by hurricanes Frances and Jeanne. Tiara began
                                                                               the
  process of loss remediation. After being assured by Marsh that the loss
                                                                            limits
 coverage was per occurrence (meaning that Tiara would be entitled to
                                                                          almost $100
 million rather than coverage in the aggregate, which would be half of
                                                                         that amount),
 Tiara proceeded with more expensive remediation efforts. However, when
                                                                               Tiara
 sought payment from Citizens, Citizens claimed that the loss limit was
                                                                          $50 million
 in the aggregate, not per occurrence. Eventually, Tiara and Citizens settle
                                                                             d for
 approximately $89 million, but that amount was less than the more than
                                                                            $100
 million spent by Tiara.

       In October 2007, Tiara filed suit against Marsh, alleging (1) breach of

contract, (2) negligent misrepresentation, (3) breach of the implied coven
                                                                            ant of
good faith and fair dealing, (4) negligence, and (5) breach of fiduciary
                                                                         duty. The
trial court granted summary judgment in favor of Marsh on all claims
                                                                       and Tiara
appealed to the Eleventh Circuit. The appeals court concluded that summ
                                                                            ary
judgment was proper as to the breach of contract, negligent misreprese
                                                                         ntation, and
breach of implied covenant of good faith and fair dealing claims.' Howe
                                                                        ver, the
appeals court did not affirm the summary judgment granted by the trial
                                                                         court on


       1. The Eleventh Circuit concluded that Marsh correctly interpreted the
policy as containing a peroccurrence limit of liability. $ Tiara, 603
                                                                       F.3d at 747,
  the negligence and breach of fiduciary duty claims, which were based
                                                                                on Tiara's
  allegations that Marsh was either negligent or breached its fiduciary
                                                                            duty by failing
 to advise Tiara of its complete insurance needs and by failing to advis
                                                                                e Tiara of its
 belief that Tiara was underinsured. As to these two claims, the appe
                                                                            als court
 certified a question to this Court to determine whether the economic
                                                                            loss rule
 prohibits recovery, or whether an insurance broker falls within the
                                                                          professional
 services exception that would allow Tiara to proceed with the claim
                                                                          s. We turn
 now to a discussion of the economic loss rule.

                                       ANALYSIS

                   Origin and Development of the Economic Loss Rule

        "The exact origin of the economic loss rule is subject to some deba
                                                                                   te and its
application and parameters are somewhat ill-defined." Moransais
                                                                         v. Heathman,
744 So. 2d 973, 979 (Fla. 1999). In its simplest form, we noted, the
                                                                           rule appeared
initially in both state and federal courts in products liability type cases
                                                                            .       at 979.
A historical review of the doctrine reveals that it was introduced to
                                                                         address
attempts to apply tort remedies to traditional contract law damages.
                                                                          In Casa Clara
Condominium Ass'n, Inc. v. Chancy Toppino and Sons, Inc., 620
                                                                        So. 2d 1244
(Fla. 1993), we recognized the economic loss rule as "the fundament
                                                                          al boundary
between contract law, which is designed to enforce the expectancy
                                                                        interests of the
parties, and tort law, which imposes a duty of reasonable care and
                                                                        thereby
  encourages citizens to avoid causing physical harm to others." j4
                                                                         at 1246 (quoting
  Sidney R. Barrett, Jr., Recovery of Economic Loss in Tort for Cons
                                                                    truction
  Defects: A Critical Analysis, 40 S.C.L. Rev, 891. 894 (1989)). We
                                                                    have defined
 economic loss as "damages for inadequate value, costs of repair and
                                                                           replacement
 of the defective product, or consequent loss of profits-without any
                                                                          claim of
 personal injury or damage to other property." Casa Clara, 620 So.
                                                                         2d at 1246
 (quoting Note, Economic Loss in Products Liability Jurisprudence,
                                                                         66 Colum, L.
 Rev. 917, 918 (1966)). We further explained that economic loss

       includes "the diminution in the value of the product because
       it is inferior in quality and does not work for the general purposes
       for which it was manufactured and sold." Comment, Manufacturers'
       Liability to Remote Purchasers for "Economic Loss" Damages-Tort
       or Contract?, 114 U. Pa. L. Rev. 539, 541 (1966). In other words,
       economic losses are "disappointed economic expectations," which
       are protected by contract law, rather than tort law. Sensenbrenner
       v. Rust, Orling & Neale Architects, Inc., 236 Va. 419, 374 S.E. 2d
                                                                            55,
       58 (1988); Stuart v. CoIdwell Banker Commercial Group, Inc., 109
       Wash. 2d 406, 745 P.2d 1284 (1987).

Casa Clara, 620 So. 2d at 1246.

       Simply put, the economic loss rule is a judicially created doctrine that
                                                                                sets
forth the circumstances under which a tort action is prohibited if the
                                                                         only damages
suffered are economic losses. Indem. Ins. Co. of N, Am. v. Am. Avia
                                                                    tion,      Inc.,
891 So. 2d 532, 536 (Fla. 2004). The      Ic has its roots in the products liability
arena, and was primarily intended to limit actions in the products liabil
                                                                           ity context,
        Despite its underpinnings in the products liability context, the economic loss

 rule has also been applied to circumstances when the parties are in contractual

 privity and one party seeks to recover damages in tort for matters arising from
                                                                                    the
 contract.

                      Contractual Privity Economic Loss Rule

        "The prohibition against tort actions to recover solely economic damages for

 those in contractual privily is designed to prevent parties to a contract from

 circumventing the allocation of losses set forth in the contract by bringing an

 action for economic loss in tort." Am. Aviation, 891 So. 2d at 536 (citing

 Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490,494 (Fla. 3d DCA 1994)

("Where damages sought in tort are the same as those for breach of contract a

plaintiff may not circumvent the contractual relationship by bringing an action
                                                                                    in
tort.")). When the parties are in privity, contract principles are generally more

appropriate for determining remedies for consequential damages that the parties

have, or could have, addressed through their contractual agreement. Accordingly
                                                                                     ,
courts have held that a tort action is barred where a defendant has not committed
                                                                                         a
breach of duty apart from a breach of contract. Am, Aviation, 891 So, 2d at 536-

37); Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 103 (Fla. 4th DCA

1969) ("[Nb cause of action in tort can arise from a breach of a duty existing by

virtue of contrac
         The contractual privity application of the economic oss rule is best

  exemplified by our derision in AFM Corp. v, Southern Bell Telephone
                                                                               &
 Telegraph Co., 515 So, 2d 180 (Fla. 1987),2 There, AFM entered into
                                                                     an
 agreement with Southern Bell that included placing AFM's advertisin
                                                                             g in the
 yellow pages. See id. at 180. However, Southern Bell listed an incor
                                                                      rect phone
 number for AFM, causing AFM economic damages.                    In asserting a claim
                                                              I
 for economic losses, AFM chose to proceed solely on a negligence
                                                                        theory in the
 trial court below rather than base its theory of recovery on any agreement
                                                                                 between
 the parties.     jç at 181. Tn determining that AFM could not recover economic

 losses based on a tort theory, this Court noted that AFM's contract with
                                                                          Southern
 Bell "defined the limitation of liability through bargaining, risk accep
                                                                         tance, and
compensation." jç     Because AFM had not proved that Southern Bell committed a

tort independent of the breach of contract, this Court concluded that
                                                                        AFM had no
basis for recovery in negligence. $

       Subsequently, in American Aviation, we recognized that despite the
                                                                          gener         al
prohibition against a recovery in tort for economic damages for partie
                                                                            s in privity ol
contract, we have allowed it in torts committed independently of the
                                                                        contract
breach, such as fraud in the inducement.        891 So. 2d at 537. For example, in

      2. We later receded from AFM to the extent that it was unnecessarily
expansive in its reliance on the economic loss rule as opposed to funda
                                                                        mental
contractual principles. $ American Aviation, 891 So. 2d at 542.
  HTP, Ltd. v. Lineas Aereas Costarricences, S.A. 685 So. 2d 1238 (Fla.
                                                                        1996), we
  stated:

        The economic loss rule has not eliminated causes of action based
        upon torts independent of the contractual breach even though there
        exists a breach of contract action. Where a contract exists, a tort
        action will lie for either intentional or negligent acts considered to
        be independent from the acts that breached the contract. Fraudulent
        inducement is an independent tort in that it requires proof of facts
        separate and distinct from the breach of contract.

 Am. Aviation, 891 So. 2d at 537 (quoting HTP, Ltd., 685 So. 2d at 1239
                                                                        (citations
 omitted)), See also PK Ventures, Inc. v. Raymond James & Assocs., 690
                                                                                 So. 2d
 1296 (Fla. 1997) (economic loss rule did not preclude a cause of action
                                                                               by the
 buyer of commercial property against the seller's broker for negligent

 misrepresentation).3

       Another situation in which this Court has determined that public policy

dictates that liability not be limited to the terms of the contract involves
                                                                               cases such
as those alleging neglect in providing professional services. See, e.g.,
                                                                           Moransais,
744 So. 2d at 983 ("While provisions of a contract may impact a legal
                                                                           dispute,




       3. In Moransais, in describing our refusal to apply our past liberal
application of the economic loss rule in PK Ventures and HTP, Ltd., we
                                                                         made the
following observation: "More recently this Court has recognized the dange
                                                                           r in an
unprincipled extension of the rule, and we have declined to extend the
                                                                       economic
loss rule to actions based on fraudulent inducement and negligent
misrepresentation." 744 So. 2d at 981.
  including an action for professional services, the mere existence of such
                                                                              a contract
  should not serve per se to bar an action for professional malpractice.").

                       Products Liability Economic Loss Rule

        Although the economic loss rule has, over time, been extended to the

 contractual privity context, the roots of the rule may be found in the produ
                                                                               cts
 liability context. The products liability economic loss rule developed to
                                                                           protect
 manufacturers from liability for economic damages caused by a defective
                                                                              product
 beyond those damages provided by warranty law. Am. Aviation, 891
                                                                           So. 2d at
 537-38. As the theory of strict liability replaced the theory of impli
                                                                        ed warra  nties
 with regard to actions based on defective products that resulted in perso
                                                                           nal injury,
the issue arose as to whether the courts should permit a cause of action
                                                                           in tort by
one who suffered purely economic loss due to a defective product. jj
                                                                           at 539. For
those who were in contractual privity, actions based on breach of warra
                                                                           nty
continued as the viable method if the only damages were economic in
                                                                           nature. jj
But for those who were not in contractual privity and who sustained econo
                                                                              mic
losses as a result of defective products, the question became what theor
                                                                           y of
recovery would be proper. j,

       The development of Florida's products liability economic loss rule can
                                                                                     be
traced to two cases: Seely v. White Motor Co., 403 P,2d 145, 149
                                                                 (Cal. 1965), and
East River Steamship Corp. v. TransamericaDelaval, Inc., 476 U.S. 858,
                                                                       871
  (1986). In Seely, the California Supreme Court held that the doctrine of strict

  liability in tort had not supplanted causes of action for breach of express warranty.

 The court was confronted with a situation in which a plaintiff sought recovery
                                                                                     for
 economic loss resulting from his purchase of a truck that failed to perform

 according to expectations. $      j   at 149. The California Supreme Court agreed

 with the trial court that the defendant could recover the money he paid on the

 purchase price of the truck and for his lost profits on the basis of breach of expres
                                                                                           s
 warranty, see id. at 148, but rejected the argument that warranty law had been

 superseded by the doctrine of strict liability.    j   at 149. The court concluded
 that the strict liability doctrine was not intended to undermine the warranty

provisions of sales or contract law, but was designed to govern the wholly separa
                                                                                          te
and distinct problem of physical injuries caused by defective products.          j4. at
149-50.

       The California Supreme Court recognized that the rules of warranty

continued to function well in a commercial setting, allowing the manufacturer
                                                                              to
determine the quality of the product and the scope of its liability if the product

failed to perform. The court reasoned that a manufacturer's liability under that

theory would extend to all subsequent purchasers regardless of whether the

manufacturer's promise regarding the fitness of the product was ever

communicated to those purchasers. If the manufacturer were strictly liable for
  economic losses resulting from the failure of its product to perform as promised
                                                                                         by
  the warranty, it would be liable not only to the initial purchaser, but to every

 consumer who subsequently obtained possession of the product.               . at 150.
        In East River, the United States Supreme Court adopted the reasoning in

 Seely when it considered the issue of economic loss resulting from defective

 products in the context of admiralty. According to the Supreme Court, when the

 damage is to the product itself, "the injury suffered-the failure of the product to

 function properly-is the essence of a warranty action, through which a

 contracting party can seek to recoup the benefit of its bargain."      East River,
 476 U.S. at 868 (emphasis supplied). The Court stated:

              Contract law, and the law of warranty in particular, is well
       suited to commercial controversies of the sort involved in this case
       because the parties may set the terms of their own agreements.
                                                                           Th
       manufacturer can restrict its liability, within limits, by disclaiming
       warranties or limiting remedies. In exchange, the purchaser pays less
       for the product.

    at 872-73 (emphasis supplied) (footnote and citation omitted). Recognizing

that extending strict products liability to cover economic damage would result in

"contract law. . . drown{ing] in a sea of tort," id. at 866, the Supreme Court held

that "a manufacturer in a commercial relationship has no duty under either a

negligence or strict products-liability theory to prevent a product from injuring

itself," Id. at 871. Thus, from the outset, the focus of the economic loss rule was

directed to damages resulting from defects in the product itself.
        Relying on the reasoning in Seely and East River, this Court adopted the

 products liability economic loss rule, precluding recovery of economic damages in

 tort where there is no property damage or personal injury, in Florida Power &

 Light Co. v. Westinghouse Elec. Corp, 510 So. 2d 899 (Fla. 1987), our seminal

 case on the applicability of the economic loss rule. Florida Power & Light (FPL)

 entered into contracts with Westinghouse in which Westinghouse agreed to design,

 manufacture, and furnish two nuclear steam supply systems, including six steam

 generators. FPL discovered leaks in all six generators. FPL brought suit, alleging

that Westinghouse was liable for breach of express warranties in the contracts and

for negligence, and sought damages for the cost of repair, revision, and inspection

of the steam generators. Ick at 900.

       In determining whether Florida law permitted FPL to recover the economic

losses in tort without a claim for personal injury or separate property damage, this

Court considered the policy issues supporting the application of a rule that limits

tort recovery for economic losses when a product damages itself. j      Concluding
that warranty law was more appropriate than tort law for resolving economic losses

in this context, the Court adopted the holding in East River that "a manufacturer in

a commercial relationship has no duty under either a negligence or strict products

liability theory to prevent a product from injuring itself," Florida Power, 510 So.
  2d at 901 (quoting East River, 476 U.S. at 871). Thus, as we reaffi
                                                                         rmed in
 American Aviation:

                 The economic loss rule adopted in Florida Power represents this
         Court's pronouncement that, notwithstanding the theory of strict
         liability adopted in West,[41 strict liability has not replaced warra
                                                                               nty
         law as the remedy for frustrated economic expectations in the sale
                                                                                of
        goods. In exchange for eliminating the privity requirements of
        warranty law and expanding the tort liability for manufacturers of
        defective products which cause personal injury, we expressly limite
                                                                                 d
        tort liability with respect to defective products to injury caused to
        persons or damage caused to property other than the defective produ
                                                                                  ct
        itself.

 Am. Aviation, 891 So. 2d at 541. We also noted that "the products
                                                                         liability
 economic loss rule articulated in Seely and East River, and adopted
                                                                         by this Court
 in Florida Power, applies even in the absence of privity of contract."
                                                                           jc (citing
Airport Rent-ACar, Inc. v. Prevost Car, Inc., 660 So. 2d 628, 631
                                                                       (Fla. 1995)
(holding cause of action for negligence against manufacturer of defec
                                                                          tive buses
was barred by the economic loss rule notwithstanding absence of
                                                                      privity)); see also
Casa Clara, 620 So. 2d at 1248 (holding cause of action against manu
                                                                           facturer of
defective concrete was barred by the economic loss rule notwithstan
                                                                    ding      absence
of privity).

       Simply stated, "[t]he essence of the early holdings discussing the
                                                                          rule is    to
prohibit a party from suing in tort for purely economic losses to a
                                                                      product or object

      4. In West v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla, 1976
                                                                          ), we
adopted the theory of strict products liability in Florida.
 provided to another for consideration, the rationale being that in those cases

  'contract principles [are] more appropriate than tort principles for resolving

 economic loss without an accompanying physical injury or property damage.'"

 Moransais, 744 So. 2d at 980 (citing Florida Power, 510 So. 2d at 902). Such was

 the reasoning in East River, Seely, and ultimately, Florida Power,

          An examination of the application of the economic loss rule in Florida from

 its inception to our ruling in Florida Power, reveals that this Court adhered strictl
                                                                                      y
 to the reasoning of East River and Seely. Subsequent to our ruling in Florida

 Power, however, we issued a number of rulings which, as aptly stated in Moran
                                                                                    sais,
"appeared to expand the application of the rule beyond its principled origins and

have contributed to applications of the rule by trial and appellate courts to

situations well beyond our original intent," Moransais, 744 So. 2d at 980. For

example, in AFM, as previously discussed, we extended the economic loss rule
                                                                                   to
preclude a negligence claim arising from breach of a service contract in a

nonprofessional service context, See AFM, 515 So. 2d at 181. We also noted
                                                                           in
Moransais, that "[w]hile we continue to believe the outcome of [AFM] is sound
                                                                             ,
we may have been unnecessarily over-expansive in our reliance on the economic

loss rule as opposed to fundamental contractual principles." Moransais, 744 So.
                                                                                2d
at 981.
        In Casa Clara, we held that the economic loss rule barred a cause of action in

  tort for providing defective concrete where there was no personal injury or damag
                                                                                        e
 to property other than to the product itself.5 Casa Clara, 620 So. 2d at 1248. In

 Airport Rent-A-Car, we followed the reasoning in Casa Clara in holding the

 economic loss rule barred a cause of action for negligence against the manufacture
                                                                                            r
 of defective buses where the only damage alleged was to the buses themselves.

 Airport Rent-A-Car, 660 So. 2d at 630-31.

        In American Aviation, in recognizing our history of unprincipled extension

 of the rule, we concluded that the economic loss rule should be expressly limite
                                                                                  d to
 the original rationale and intent of Seely, East River, and Florida Power, and held

 that a manufacturer or distributor in a commercial relationship has no duty beyon
                                                                                     d
that arising from its contract to prevent a product from malfunctioning or

damaging itself. Am. Aviation, 891 So. 2d at 542. "In other words, we reaffir
                                                                              m
our recognition of the products liability economic loss rule." j    at 543. Despite
this recognition, we expressly noted that the "other property" exception to the

products liability economic loss rule remained viable.       In addition to the "other


      5. Our opinion, however, was not unanimous, especially as to our
characterization of "other property." We stated that tort law was designed to
protect the interest of society as a whole by imposing a duty of reasonable care
                                                                                 to
prevent property damage or physical harm to others, whereas contract law operat
                                                                                   es
to protect the economic expectations of the contracting parties when a "product"
                                                                                   is
the object of the contract, Casa Clara, 620 So. 2d at 1246.


                                          15 -
 property" exception, we also reaffirmed that in cases involving either privity of

 contract or products liability, the other exceptions to the economic loss rule that we

 have developed, such as for professional malpractice,6 fraudulent inducement,7 and

 negligent misrepresentation,8 or free-standing statutory causes of action still

 apply.9 Am. Aviation, 891 So. 2d at 543. We expressly emphasized, "[tjhese

 exceptions remain untouched by our ruling today."

       Thus, despite our effort to roll back the economic loss rule to its products

liability roots, we left untouched a number of exceptions which continue to extend

the application of the rule beyond our original limited intent.

                         A Legacy of Unprincipled Expansion

      For some time, as reflected by the foregoing discussion, this Court has been

concerned with what it perceived as an over-expansion of the economic loss rule.

We began expressing this concern in Moransais, where we noted our refusal to

extend its application to actions based on fraudulent inducement and negligent

representation cases.      at 981 (citing PK Ventures (negligent misrepresentation);

HTP (fraudulent inducement)). We observed,

      6. See Moransais, 744 So. 2d at 983.
      7. See HTP. Ltd., 685 So. 2d at 1239.

         See PK Ventures, 690 So. 2d at 1297.

               cmptech Int'l, Inc. v. Milam Commerce Park, Ltd., 753 So. 2d
1219, 1221 (Fla. 1999)
        the [economic loss] rule was primarily intended to limit actions in the
        product liability context, and its application should generally be
        limited to those contexts or situations where the policy considerations
        are substantially identical to those underlying the product liability-
        type analysis. We hesitate to speculate further on situations not
        actually before us. The rule, in any case, should not be invoked to bar
        well-established causes of actions in tort, such as professional
        malpractice.

 Moransais, 744 So. 2d at 983 (footnote omitted). Five years later, in American

 Aviation, we reaffirmed our concern with the over-expansion of the rule and again

 noted that the economic loss rule should be expressly limited. We emphasized
                                                                              this
 concern with the following statement:

             Several justices on this Court have supported expressly limiting
      the economic loss rule to its principled origins. In Moransais, Justice
      Wells stated "directly that it is [his] view that the economic loss rule
      should be limited to cases involving a product which damages itself
      by reason of a defect in the product." Moransais, 744 So. 2d at 984
      (Wells, J., concurring). Two justices subsequently joined Justice
      Wells when he reiterated this position in Comptech International, Inc.
      v. Milam Commerce Park, Ltd., 753 So. 2d 1219 (Fla. 1999). Seeid.
      at 1227 (Wells, J., concurring with an opinion in which Justices Lewis
      and Pariente joined).

Am. Aviation, 891 So. 2d at 542. Thus, in Moransais, Comptech, and American

Aviation, this Court clearly expressed its desire to return the economic loss rule
                                                                                     to
its intended purpose-to limit actions in the products liability context, In each

instance, however, we left intact a number of exceptions that continue the rule's

unprincipled expansion. We simply did not go far enough.
        Having reviewed the origin and original purpose of the economic loss rule,

 and what has been described as the unprincipled extension of the rule, we now
                                                                                     take
 this final step and hold that the economic loss rule applies only in the products

 liability context. We thus recede from our prior rulings to the extent that they
                                                                                  have
 applied the economic loss rule to cases other than products liability. The Court

 will depart from precedent as it does here "when such departure is 'necessary to

 vindicate other principles of law or to remedy continued injustice.' " Allstate

 Indem. Co. v. Ruiz, 899 So. 2d 1121, 1131 (Fla. 2005) (quoting Haag v. State, 591

 So. 2d 614, 618 (Fla. 1992)). Stare decisis will also yield when an established
                                                                                     rule
has proven unacceptable or unworkable in practice.          Westgate Miami Beach,
Ltd. v. Newport Operating Corp., 55 So. 3d 576, 574 (Fla. 2010). Our experience

with the economic loss rule over time, which led to the creation of the exceptions

to the rule, now demonstrates that expansion of the rule beyond its origins was

unwise and unworkable in practice. Thus, today we return the economic loss rule

to its origin in products liability.

                                       CONCLUSION

       Because we now limit the application of the economic loss       le to cases
involving products liability, it is not necessary for us to decide whether the

economic loss ru e excep ion for professionals applies to insurance brokers, Based

on the foregoing, we answer the rephrased certified question in the negative and
  hold that the application of the economic loss rule is limited to products liabi
                                                                                       y
 cases. Having answered the rephrased certified question, we return this case to
                                                                                 the
 Eleventh Circuit Court of Appeals.

        It is so ordered.

 PARIENTE, LEWIS, QUINCE, and PERRY, JJ,, concur.
 PARIENTE, J., concurs with an opinion, in which LEWIS and LABARGA,
                                                                        JJ.
 concur.
 POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.
 CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.


 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
 IF FILED, DETERMINED.


PARIENTE, J., concurring.

       I concur with the majority's principled conclusion that the economic loss

rule is limited to the products liability context. I write to address Justice Canad
                                                                                     y's
assertion in dissent that the Court's decision represents a "dramatic unsettling of

Florida law," dissenting op. at 33 (Canady, J.), and to explain that the majority's

conclusion is fully consistent with the development of this Court's jurisprudence

on the applicability of the economic loss rule in Florida.

      The majority's conclusion that the economic loss rule is limited to the

products liability context is not a departure from precedent, but instead simply

represents the culmination of the Court's measured articulation of the economic

loss rule's original intent, This view has been expressed various times, starting
                                                                                      in

                                          19
  Moransais v, Heathman, 744 So. 2d 973 (Ha. 1999), where Justice Wells stated
                                                                                          his
 belief that "the economic loss rule should be limited to cases involving a produ
                                                                                 ct
 which damages itself by reason of a defect in the product" and that some of the

 Court's prior decisions had produced "confusion as to the rule's applicability."

 at 984 (Wells, J., concurring). Justice Wells, joined by Justice Lewis and mysel
                                                                                          f,
 similarly explained in Comptech International, Inc. v. Milam Commerce Pdc

 Ltd., 753 So. 2d 1219, 1227 (Fla. 1999) (Wells, J., concurring), that "in order to

 clarify the application of the economic loss rule," the Court should "expressly state

 that its application is limited to product claims." Today, the Court has done so.

 This decision provides clear guidance to the lower courts as to the meaning of
                                                                                        the
economic loss rule in Florida and is both doctrinally principled and consistent with

the trajectory of our prior precedent.

       Our decision is neither a monumental upsetting of Florida law nor an

expansion of tort law at the expense of contract principles. To the contrary, the

majority merely clarifies that the economic loss rule was always intended to apply

only to products liability cases.        Indem. Ins. Co. of N. Am. v. Am. Aviation,

Inc., 891 So. 2d 532, 541 (Fla. 2004) ("In exchange for eliminating the pr

requirements of warranty law and expanding the tort liability for manufacturers
                                                                                        of
defective products which cause personal injury [by adopting strict products

liability], we expressly limited tort liability with respect to defective products to
  injury caused to persons or damage caused to property other than the defective

 product itself."), This is because the rule itself acts merely as a specific

 articulation of the proper approach for those products liability cases in which

 contract principles, rather than tort principles, are best suited for resolving the

 claim. $    Fla. Power & Light Co. v. Westinghouse Elec. Corp., 310 So. 2d 899,

 901-02 (Fla. 1987) (citing with approval several district courts of appeal cases

 holding that strict liability applies only where the plaintiff has suffered personal

 injury or damage to other property and explaining that "contract principles [are]

 more appropriate than tort principles for resolving economic loss without an

 accompanying physical injury or property damage").

       The majority's conclusion that the economic loss rule is limited to the

products liability context does not undermine Florida's contract law or provide
                                                                                       for
an expansion in viable tort claims. Basic common law principles already restric
                                                                                       t
the remedies available to parties who have specifically negotiated for those

remedies, and, contrary to the assertions raised in dissent, our clarification of the

economic loss rule's applicability does nothing to alter these common law

concepts. For example, in order to bring a valid tort claim, a party still must

demonstrate that all of the required elements for the cause of action are satisfied,

including that the tort is independent of any breach of contract claim.         Lewis v.
Guthartz, 428 So. 2d 222, 224 (Fla. 1982) (holding that there must be a tort
 "distinguishable from or independent of [the] breach of contract" in order for a

 party to bring a valid claim in tort based on a breach in a contractual relationship);

 Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel, Co., 482 So. 2d 518, 519 (Fla. 3d DCA

 1986) ("[A] breach of contract, alone, cannot constitute a cause of action in

 tort,,,. It is only when the breach of contract is attended by some additional

 conduct which amounts to an independent tort that such breach can constitute

 negligence." (citations omitted)).

       While the contractual privity form of the economic loss rule has provided a

 simple way to dismiss tort claims interconnected with breach of contract clai       1


is neither a necessary nor a principled mechanism for doing so. Rather, these

claims should be considered and dismissed as appropriate based on basic

contractual principles-a proposition we reaffirmed in American Aviation, where

we stated that "when the parties have negotiated remedies for nonperformance

pursuant to a contract, one party may not seek to obtain a better bargain than it

made by turning a breach of contract into a tort for economic loss." Am. Aviation,

891 So. 2d at 542. The majority's decision does not change this statement of law,

but merely xplains that i     common law principles of contract, rather than the

economic loss rule, that produce this result.

      The economic loss rule is not a long-standing common law rule that has

always existed in our jurisprudence to define the parameters of cognizable contract
  and tort causes of action, but is instead a doctrine that arose in the torts context
                                                                                         to
  serve a specific purpose-to curb potentially unbounded liability following the

 adoption of strict products liability. Indeed, we explicitly noted in American

 Aviation that "[t]he econo        )SS rule adopted in Florida Power represents this

 Court's pronouncement that, notwithstanding the theory of strict liability adopte
                                                                                          d
 in West[v. Caterpillar Tractor Co., 336 So. 2d 80, 92 (Fla. 1 976)}, strict liability

 has not replaced warranty law as the remedy for frustrated economic expectation
                                                                                          s
 in the sale of goods." Am. Aviation, 891 So. 2d at 541. Accordingly, I believe

 that limiting the rule to the specific context from which it developed is principled

 because it prevents unnecessary complexity in the law and restricts the rule's

application to its "genuine, but limited, value in our damages law." Id. at 542

(quoting Moransais, 744 So. 2d at 983). In other words, as we first recognized
                                                                                         in
Moransais, "fundamental contractual principles" already properly delineate the

general boundary between contract law and tort law, Moransais, 744 So. 2d at

981. Application of the economic loss rule to serve this function outside the

products liability context simply allows for the possibility of confusion, overuse,

and the restriction of well-established common law remedies.

       Indeed, this is exactly what has happened since we first adopted the

economic loss rule in Florida. Over time, the rule has been inadvertently extend
                                                                                ed
to cover situations outside the context of products liability.          at 980
  ("Unfortunately, however, our subsequent holdings have appeared to expand the

 application of the rule beyond its principled origins and have contributed to

 applications of the rule by trial and appellate courts to situations well beyond our

 original intent."). Not only has this proved unworkable, as the majority aptly

 notes, but it is outside the original intent of the rule and, indeed, of our prior

 decisions, In my view, Justice Canady's assertion in dissent that the majority's

 conclusion "repudiates our case law," dissenting op. at 28 (Canady, J.), is not

 borne out by a close examination of the history of our economic loss rule cases.

       We have repeatedly explained that the expansion of the economic loss rule

 beyond products liability to cover situations in which the parties are in privity of

contract is best illustrated by AFM Corp. v. Southern Bell Telephone & Telegraph

Co., 515 So. 2d 180, 181 (FIa. 1987), where the Court held that there was "no basis

for recovery in negligence" since the plaintiff could not prove that "a tort

independent of the breach [of contract] itself was committed." The Court

subsequently indicated, however, that its decision in AFM "may have been

unnecessarily over-expansive" in its "reliance on the economic loss rule as

opposed to fundamental contractual principles." Moransais, 744 So. 2d at 981. In

2004, we receded from AFM "to the extent that it relied on the principles adopted

by this Court in Florida Power." Am. Aviation, 891 So. 2d at 542. Therefore,

since we essentially receded in American Aviation from this overexpans ion of the
  rule, we need not specifically overrule any case today in order to explic
                                                                              itly clarify
  that the economic loss rule applies only to products liability cases.

        Justice Canady points most recently to Curd v. Mosaic Fertilizer, LLC,
                                                                                        39
 So. 3d 1216 (Fla. 2010), and American Aviation, as indicating that the
                                                                             contractual
 privity application of the economic loss rule is settled Florida law. While
                                                                             those
 two cases did list this application of the rule in reviewing its history, the

 contractual privity use of the economic loss rule was not at issue in either
                                                                                  of those
 cases. See Curd, 39 So. 3d at 1223; Am. Aviation, 891 So. 2d at 541. Curd
                                                                           simply
 restated general language from American Aviation, and American Aviat
                                                                      ion          used
 AFM, from which it later partially receded, to illustrate how the contractua
                                                                                  l privity
 form of the rule has been applied.

       In the aftermath of American Aviation, which clearly stated an intent to

"expressly limit[}" the economic loss rule, American Aviation, 891 So.
                                                                            2d at 542,
it was no longer clear whether our decisions permitted application of the
                                                                             rule to
situations involving contractual privity. We now eliminate once and for
                                                                        all any
confusion in the application of the economic loss rule remaining since
                                                                            Moransais
and clearly espouse Justice Wells' view that "the economic loss rule shoul
                                                                                 d be
limited to cases involving a product which damages itself by reason of
                                                                       a defec      t in
the product." Moransais, 744 So, 2d at 984 (Wells, J., concurring). Far
                                                                            from
upsetting firmly established principles, therefore, our decision resolves
                                                                            any
  ambiguity remaining from this line of cases and restores the economic loss rule
                                                                                     to
  its principled roots. I concur fully in the majority's well-reasoned decision.

 LEWIS and LABARGA, JJ., concur.

 POLSTON, C.J., disse       ig.

        The Eleventh Circuit certified the following question:

              Does an insurance broker provide a "professional
              service" such that the insurance broker is unable to
              successfully assert the economic loss rule as a bar to tort
              claims seeking economic damages that arise from the
              contractual relationship between the insurance broker and
              the insured?


 No. This Court's controlling precedent clearly answers the certified question in
                                                                                      the
 negative. But without justification, the majority greatly expands the use of tort
                                                                                     law
at a cost to Florida's contract law, Now, there are tort claims and remedies

available to contracting parties in addition to the contractual remedies which,

because of the economic loss rule, were previously the only remedies available.'0



        10. The following examples illustrate the type of cases that are now
 overruled by the majority's opinion and will make available a wide arsenal of tort
 claims previously barred by the economic loss rule. See, e.g., Geico Cas. Co. v.
Arce, 333 Fed. Appx. 396, 398 (11th Cir. 2009) (applying Florida law and barrin
                                                                                     g
civil conspiracy claim alleging failure to abide by contractual duty to defend);
Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Heidrick & Struggles, Inc., 188
Fed. Appx. 966, 969 (11th Cir, 2006) (applying Florida law and barring fraudu
                                                                                   lent
misrepresentation claims alleging failure to provide correct information under the
terms of a CEO search contract); Royal Surplus Lines Ins, Co. v. Coachman
Indus., 184 Fed. Appx. 894, 902 (11th Cir. 2006) (applying Florida law and barrin
                                                                                      g
insurer's tort actions alleging insured's failure to provide information under the

                                        -26 -
        As noted in Indemnity Insurance Co. of North America v. American

  Aviation, Inc, 891 So. 2d 532, 537 (Ha. 2004), tort claims involving professional

  services are not barred by the economic loss rule. But this Court in Pierce v.

 AALL Insurance Inc., 531 So, 2d 84 (Fla. 1988), held that insurance agents are
                                                                                     not
 considered "professional" for purposes of the professional malpractice statute of

 limitations. Pierce's rationale concerning insurance agents applies with equal force

 to insurance brokers and requires the response to the Eleventh Circuit that

 insurance brokers do not provide professional services that would bar a defense

 under the economic loss rule.'    That response is equally dictated by this Court's


 terms of a cooperation clause); Cessna Aircraft Co. v. Avior Techs., Inc., 990 So.
 2d 532, 538 (Fla. 3d DCA 2008) (barring negligence claim against aircraft repair
 company for failed contracted-for repairs to aircraft); Taylor v. Maness, 941 So.
                                                                                     2d
 559, 564 (Fla. 3d DCA 2006) (barring cause of action alleging fraudulent failure
                                                                                       to
 perform under the contract and sell real property to plaintiffs); Straub Capital Corp
 v. L. Frank Chopin. P.A., 724 So. 2d 577, 579 (Fla. 4th DCA 1998) (barring action
 alleging negligent misrepresentation by a landlord after he failed to timely build
and provide space to tenants under the terms of their contract); Smith v. Bd. of
Regents cx rd. Florida A&M Univ., 701 So. 2d 348, 349 (Fla. 1st DCA 1997)
(barring cause of action brought by university professor alleging negligence by
                                                                                   the
Board of Regents and his bank in potentially breaching their duties under
employment and deposit contracts); Hotels of Key Largo v. RHI Hotels, 694 So,
2d 74, 77 (Fla. 3d DCA 1997) (barring action alleging fraudulent failure to
adequately provide increased reservations and hotel management services under
the contract).

       11. The services of Marsh & McLennan Companies certainly appear
professional to me under the rationale given by Justice McDonald in his dissen
                                                                                ting
opinion in krce: "If the act is one which involves giving advice, using superi
                                                                                or
knowledge and training of a technical nature, or imparting instruction and
recommendations in the learned arts then the act is one of a professional." 531
                                                                                So.

                                        -27 -
  decision in Garden v. Frier, 602 So. 2d 1273, 1273 (Fla, 1992), when we further

 reduced the definition of a "professional" under the professional malpractice

 statute to those "vocation[s} requiring at a minimum a four-year college degree

 before licensing is possible in Florida." It is undisputed by the parties that a four-

 year college degree is not necessary to become licensed as an insurance broker.

        Instead of simply answering the certified question that our cases clearly

 control, the majority obliterates the use of the doctrine when the parties are in

 contractual privity, greatly expanding tort claims and remedies available witho
                                                                                ut
 deference to contract claims. Florida's contract law is seriously undermined by

 this decision.

       Accordingly, I respectfully dissent.

CANADY, J., concurs.

CANADY, J., dissenting.

       For many years, this Court has recognized the vital role of the economic loss

rule in maintaining the boundary between tort law and contract law. With today
                                                                               's
decision, the majority repudiates our case law and sets a new course for the

expansion of tort law at the expense of contract law, I agree with Chief Justice




2d at 88 (McDonald, J., dissenting) (quoting Pierce, 513 So. 2d at 161). But
                                                                             this
definition was expressly rejected by the Court in Pierç.


                                        - 28
 Poiston's view that "Florida's contract law is seriously undermine
                                                                        d by this
 decision," dissenting op. at 28 (Polston, Ci.), and I accordingly disse
                                                                           nt.

       Just two years ago, in Curd v, Mosaic Fertilizer, LLC, 39 So. 3d 1216,
                                                                                      1223
 (Fla. 2010), the same majority that decides today's case joined in
                                                                        an opinion
 stating the general principle that "the economic loss rule in Florid
                                                                      a is applicable"
not only in the products liability context but also "where the partie
                                                                        s are in
contractual privity and one party seeks to recover damages in tort
                                                                        for matters

arising out of the contract." The majority in Curd simply restated
                                                                        Florida law.
       In Indemnity Insurance Co. of North America v. American Aviation,
                                                                                    Inc.,
891 So. 2d 332, 536 (Fla. 2004), we explained that the general "proh
                                                                          ibition against
tort actions to recover solely economic damages for those in contr
                                                                      actual privity is
designed to prevent parties to a contract from circumventing the alloca
                                                                            tion of
losses set forth in the contract by bringing an action for economic
                                                                      loss in tort." We
recognized the rationale for the economic loss rule:

      Underlying this rule is the assumption that the parties to a contract
     have allocated the economic risks of nonperformance through the
     bargaining process. A party to a contract who attempts to circumven
                                                                               t
     the contractual agreement by making a claim for economic loss in
                                                                            tort
     is, in effect, seeking to obtain a better bargain than originally made
                                                                            .
     Thus, when the parties are in privity, contract principles are gener
                                                                          ally
     more appropriate for determining remedies for consequential dama
                                                                           ges
     that the parties have, or could have, addressed through their
     contractual agreement. Accordingly, courts have held that a tort
     action is barred where a defendant has not committed a breach of
                                                                          duty
     apart from a breach of contract.
 Id. at 536-37.

        The holding in American Aviation was based on the negative answer to
                                                                                       this
 Court's rephrased certified question: "Whether the economic loss doctr
                                                                              ine bars a
 negligence action to recover purely economic loss in a case where the defen
                                                                                  dant is
 neither a manufacturer nor distributor of a product and there is no privit
                                                                              y of
 contract."       at 534 (emphasis added). By rephrasing the certified question in this

 manner, this Court emphasized the significance of the existence of privit
                                                                               y of
contract in determining whether the economic loss rule should be applie
                                                                              d to bar a
negligence action. This Court held as follows: "Because the defendant
                                                                          in this case
is neither a manufacturer nor distributor of a product, and the parties are
                                                                              not in
privity of contract, this negligence action is not barred by the economic
                                                                              loss rule."
   (emphasis added).

      Both Curd and American Aviation merely rearticulated the point we had

made earlier in Casa Clara Condominium Ass'n, Inc., v. Charley Topp
                                                                         ino & Sons,
Inc., 620 So. 2d 1244, 1246 (Fla. 1993), concerning the boundary betwe
                                                                            en tort law
and contract law:

      [Ejconomic losses are disappointed economic expectations, which are
      protected by contract law, rather than tort law. This is the basic
      difference between contract law, which protects expectations, and tort
      law, which is determined by the duty owed to an injured party. For
      recovery in tort there must be a showing of harm above and beyond
      disappointed expectations. A buyer's desire to enjoy the benefit of his
      bargain is not an interest that tort law traditionally protects.
  (Citations omitted) (internal quotation marks omitted). And Casa
                                                                          Clara itself
  echoed the reasoning of Florida Power & Light Co. v. Westingho
                                                                       use Electric
  Corp., 510 So. 2d 899 (Fla. 1987), that "contract principles [are]
                                                                       more approp ate
 than tort principles for [resolving] economic loss without an acco
                                                                       mpanying
 physical injury or property damage." Casa Clara, 620 So. 2d at
                                                                     1247 (quoting
 Florida Power, 510 So. 2d at 902).

        In Florida Power, 510 So. 2d at 902, we rejected the invitation-in
                                                                           the
 products liability context-"to intrude into the parties' allocation
                                                                     of   risk by
 imposing a tort duty and corresponding cost burden on the publi
                                                                      c." In AFM Corp.
 v. Southern Bell Telephone & Telegraph Co., 515 So. 2d 180, 180
                                                                 (Fla. 1987), we
 then applied the reasoning of Florida Power to bar a claim for econ
                                                                        omic losses in
 tort by a purchaser of services where there was no claim for perso
                                                                      nal injury or
property damage.

       Our cases thus have repeatedly recognized the economic loss rule
                                                                              as a rule
that prevents contract law from "drown[ing] in a sea of tort." Casa
                                                                       Clara, 620 So.
2d at 1247 (quoting East River S.S. Corp. v. Transamerica Dela
                                                                    val, Inc., 476 U.S.
858, 866 (1986)), 12 The basis for this rationale-which the Cour
                                                                     t has repeatedly


        12. The Restatement (Third) of Torts: Liability for Economic Harm
(Tentative Draft No. 1) § 3 (April 4, 2012) states the general rule
                                                                    that "there is no
liability in tort for economic loss caused by negligence in the perfo
                                                                      rmance or
negotiation of a contract between the parties." The comments expla
                                                                        ining this rule
observe that "[i]f two parties have a contract, the argument for limit
                                                                       ing tort claims
  elaborated-is not limited to the products liability context. The
                                                                      application of the
  economic loss rule in the context of other relationships based on
                                                                          contract is not
  "unprincipled." Majority op. at 16-18. The goal of preventing
                                                                contract law from
  drowning in a sea of tort is as compelling in the broader context
                                                                       of contract-based
  relationships as it is in the product liability context. The majority
                                                                          articulates no
 explanation of why the economic loss rule is appropriately appli
                                                                      ed in the products
 liability context but is unworkable or unwise in that broader conte
                                                                          xt.
        The best the majority offers is some turgid and obscure dicta from

 Moransais v. Heathman, 744 So. 2d 973 (Fla. 1999), and criticism
                                                                           of the
 exceptions from the economic loss rule recognized in our case
                                                                    law. The fact that
 the economic loss rule is subject to certain recognized exception
                                                                          s-exceptions that
 are based on specific policy considerations-does not undermin
                                                                     e the integrity of
the general rule or obliterate the purpose on which it is based. On
                                                                          the contrary, the

between them is most powerful."        L at cmt. a. The comments explain the
rationale for the rule:

        When a dispute arises, the rule protects the bargain the parties have
        made against disruption by a tort suit. Seen from an earlier point
                                                                             in
       the life of a transaction, the rule allows parties to make dependab
                                                                            le
       allocations of financial risk without fear that tort law will be used
                                                                             to
       undo them later. Viewed in the long run, the rule prevents the erosi
                                                                               on
       of contract doctrines by the use of tort law to work around them
                                                                           . The
       rule also reduces the confusion that can result when a party bring
                                                                            s suit
       on the same facts under contract and tort theories that are largely
       redundant in practical effect.
Id. at cmt.
  exceptions are predicated on the validity of the general rule. In
                                                                       short, the ma )rity
  has failed to justify this dramatic unsettling of Florida law.

        The concurring opinion likewise fails to provide any reasoning to
                                                                               support the
  limitation on the scope of the economic loss rule imposed by today
                                                                          's decision.
 Totally absent from the concurrence is any discussion of how the
                                                                        rationale we have
 articulated for the economic loss rule can be reconciled with limit
                                                                     ing     the operation
 of the rule to products liability cases. Like the majority opinion,
                                                                       the concu         g
 opinion effectively dismisses the reasoning in this Court's prior
                                                                      decisions as
 irrelevant.

       The concurrence correctly recognizes that a minority of this Cour
                                                                              t has
 previously expressed the view concerning the limited scope of the
                                                                        economic loss
 rule that is today adopted by the Court. But a minority of the Cour
                                                                        t does not
articulate the law of Florida. Nothing in those prior minority view
                                                                    s prov    ides a
principled basis for rejecting the general application of the ratio
                                                                   nale articulated in
our prior decisions.

       The concurrence also relies on this Court's statements in American
                                                                                Aviation
concerning our holding in AFM. But the concurrence's reliance
                                                                      on American
Aviation to support departing from our precedent in AFM is unwa
                                                                       rranted. I
readily concede that confusion arose from this Court's declaratio
                                                                      n that it was
receding from AFM "to the extent that it relied on the principles
                                                                      adopted" in
   Westinghouse Electric. Am. Aviation, 891 So. 2d at 542.
                                                           This statement is
  problematic for two salient reasons.

          First, and most important, American Aviation itself pred
                                                                      icated its holding and
  its formulation of the rephrased certified question on the
                                                                significance of the
  existence of privity of contract. At the outset of the opin
                                                               ion, this Court stated: "We
  conclude that the 'economic loss doctrine' . . . bars a negl
                                                                igence action to recover
  solely economic damages only in circumstances where
                                                      the parti       es are either in
 contractual privity or the defendant is a manufacturer or
                                                             distributor of a product,
 and no established exception to the application of the rule
                                                                 applies." 891 So. 2d at
 534 (emphasis added). To the extent that the subseque
                                                       nt      statement concerning
 AFM is understood to suggest a repudiation of the "con
                                                            tractual privity economic
 loss rule," 891 So. 2d at 537, the majority's opinion in Ame
                                                              rican Aviation is self
 repudiating and irredeemably incoherent,

         Second, as the concurrence correctly observes, the facts
                                                                    in American
Aviation did not involve a contractual relationship betw
                                                         een the     parties.
Accordingly, American Aviation did not present a prop
                                                         er occasion for the Court to
    udiate a prior holding, such as AFM, that specifically addr
                                                                   essed the application
of the economic loss rule to facts based on the existence
                                                            of a contractual
relationship. If the statement in American Aviation conc
                                                            erning AFM is anything,
it is dicta.
       With today's decision, we face the prospect of every breach of
                                                                         contract
 claim being accompanied by a tort claim. I strongly dissent from
                                                                    this decis
 Based on the precedents explained in Chief Justice Poiston's disse
                                                                     nt, I would
conclude that an insurance broker does not provide a profession
                                                                  al service and thus
is not precluded from asserting the economic loss rule as a bar
                                                                  to tort claims. I
therefore would answer the certified question in the negative.

POLSTON, C.J., concurs.

Certified Question of Law from the United States Court of Appe
                                                               als for the
Eleventh Circuit - Case No. 09-11718-GG

Mark L. McAlpine of McAlpine & Associates, P.C., Auburn Hills
                                                                    , Michigan,
      for Appellant

Mitchell J. Auslander and Christopher J. St. Jeanos of Willkie,
                                                                Farr & Gallagher,
LLP, New York, New York,

      for Appellees
