Amended February 24, 2017 Dinsdale Construction, LLC v. Lumber Specialties, LTD. ( 2016 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 15–0164
    Filed December 23, 2016
    Amended February 24, 2017
    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 when
    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, “[t]he
    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 play 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     contracts     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 & Walter, 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 when 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.