Corvias Military Living, LLC v. Ventamatic, LTD. ( 2017 )


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  •                                          No. 116,307
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    CORVIAS MILITARY LIVING, LLC,
    and
    CORVIAS MILITARY CONSTRUCTION, LLC,
    Appellants,
    v.
    VENTAMATIC, LTD., and JAKEL, INC.,
    Appellees.
    SYLLABUS BY THE COURT
    1.
    The Kansas Product Liability Act, K.S.A. 60-3301 et seq., governs all product
    liability actions, consolidating them into one basis for liability regardless of theory.
    2.
    The economic loss doctrine—which is judicially created—bars a purchaser of an
    allegedly defective product from recovering from a manufacturer under a tort theory for
    damages that are solely economic.
    3.
    Originally, the economic loss doctrine only applied to prevent recovery for
    damages to the product itself. Over the years, the application of the economic loss
    doctrine has been expanded to other circumstances.
    1
    4.
    Kansas courts have adopted the integrated systems approach. If a component part
    or component product is considered to be part of the integrated system, the damage to
    that property is considered to be damage to the product itself.
    5.
    In determining whether a component part and the damaged property are an
    integrated system, courts must determine whether the component part is integral to the
    functioning of or indistinguishable from the damaged property.
    Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed June 2, 2017.
    Reversed and remanded.
    Charles L. Philbrick, of Rathje & Woodward, LLC, of Wheaton, Illinois, and William J. Bahr, of
    Arthur-Green, LLP, of Manhattan, for appellants.
    James P. Nordstrom and Seth A. Lowry, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka,
    for appellee Ventamatic, Ltd.
    David E. Rogers and Daniel J. Buller, of Foulston Siefkin LLP, of Wichita, for appellee Jakel
    Motors Inc.
    Before BRUNS, P.J., HILL and SCHROEDER, JJ.
    BRUNS, J.: Corvias Military Living, LLC, and Corvias Military Construction,
    LLC, (collectively referred to as "Corvias") appeal a summary judgment granted in favor
    of Ventamatic, Ltd., and Jakel, Inc., by the district court. Corvias originally filed this
    lawsuit against multiple defendants, alleging that bathroom exhaust fans installed in
    private housing units constructed for the families of military personnel stationed at Fort
    Riley were defective. Corvias claimed that a defective motor in the exhaust fans caused
    2
    two fires and widespread malfunctions. Ventamatic manufactured the exhaust fans, and
    Jakel made the electrical motors used in the fans.
    Prior to the entry of summary judgment, Corvias voluntarily dismissed all of the
    defendants except for Ventamatic and Jakel. In granting summary judgment to
    Ventamatic and Jakel, the district court found that the economic loss doctrine barred
    recovery. Specifically, the district court found that the bathroom exhaust fans and the
    housing units were integrated systems. In addition, the district court determined that
    Corvias could not recover under an implied warranty theory because bathroom exhaust
    fans are not inherently dangerous.
    Because we find that the bathroom exhaust fans and the housing units are not part
    of an integrated system, we conclude that the district court erred in finding that the
    economic loss doctrine barred Corvias from proceeding on its product liability claim
    against Ventamatic and Jakel. In light of this conclusion, we do not reach the issue of
    whether the exhaust fans were inherently dangerous. Accordingly, we reverse and
    remand this case for further proceedings.
    FACTS
    Corvias built, owns, and manages the Fort Riley Privatized Family Housing
    Project. Over the past 10 years, Corvias has constructed a substantial number of private
    housing units—including houses and townhouses—for the families of military personnel
    stationed at Fort Riley. Through its subcontractors, Corvias purchased 3,785 "NuVent"
    bathroom exhaust fans manufactured by Ventamatic. Although the exact number is
    unclear from the record, electrical motors made by Jakel powered at least some of the
    exhaust fans. It is undisputed that Corvias is not in privity with either Ventamatic or
    Jakel.
    3
    On June 12, 2012, a fire occurred in one of the housing units at Fort Riley built by
    Corvias. It is alleged that a defective electrical motor in a NuVent bathroom exhaust fan
    that had been installed in the unit caused the fire. Several months later, on February 5,
    2013, a fire occurred in another housing unit constructed by Corvias. Once again, Corvias
    alleged that a defective electrical motor in a NuVent bathroom exhaust fan caused the
    fire. Shortly after the second fire, Corvias disconnected and removed all of the remaining
    NuVent bathroom exhaust fans that had been installed in the housing units at Fort Riley.
    Corvias then replaced the NuVent fans with bathroom exhaust fans built by a different
    company.
    Moreover, Corvias retained an expert who opined that the Jakel motor is defective
    because it has a coil wrapped with a material that is susceptible to catching fire.
    Similarly, the expert opined that the NuVent fan is defective in its design because the
    motor coil is exposed to airborne dust that can lead to a fire. Corvias' expert concluded
    that these defects caused the fires in the two housing units at Fort Riley. In addition, the
    expert concluded the defects would exist in all of the NuVent bathroom exhaust fans that
    utilized electrical motors made by Jakel.
    On June 11, 2014, Corvias filed an action in Geary County District Court against
    Ventamatic, Jakel, and several other defendants. Subsequently, Corvias filed an amended
    petition in which it asserted a product liability claim, claims for breach of express and
    implied warranties, a quantum meruit claim, and a claim under the Magnuson-Moss
    Warranty Act, 15 U.S.C. § 2301 (2012). Additionally, Corvias asserted a breach of
    contract claim against two subcontractors involved in the purchase and installation of the
    NuVent bathroom exhaust fans. Ultimately, Corvias voluntarily dismissed its claims
    against all of the defendants except Ventamatic and Jakel.
    Ventamatic and Jakel filed motions for summary judgment contending, among
    other things, that the economic loss doctrine precluded Corvias from recovering damages
    4
    from them. Ventamatic and Jakel also asserted that Corvias could not pursue an implied
    warranty claim because bathroom exhaust fans are not inherently dangerous. The district
    court agreed and granted summary judgment to both Ventamatic and Jakel. Thereafter,
    Corvias filed a notice of appeal.
    ANALYSIS
    Standard of Review
    On appeal, Corvias contends that the district court erred in granting summary
    judgment to Ventamatic and Jakel. Corvias argues that the district court erred in finding
    that its claim for damages against Ventamatic and Jakel was barred by the economic loss
    doctrine. In addition, Corvias argues that the district court erred in finding that it could
    not recover damages from Ventamatic under an implied warranty theory.
    The well-known standard of review relating to summary judgments was recently
    summarized in Apodaca v. Willmore, 306 Kan. ___, 
    392 P.3d 529
    (2017):
    "'When the pleadings, depositions, answers to interrogatories, and admissions on
    file, together with the affidavits, show that there is no genuine issue as to any material
    fact and that the moving party is entitled to judgment as a matter of law, summary
    judgment is appropriate. The district court is required to resolve all facts and inferences
    that may reasonably be drawn from the evidence in favor of the party against whom the
    ruling is sought. When opposing a motion for summary judgment, an adverse party must
    come forward with evidence to establish a dispute as to a material fact. In order to
    preclude summary judgment, the facts subject to the dispute must be material to the
    conclusive issues in the case. On appeal, we apply the same rules as the district 
    court.'" 392 P.3d at 533
    (quoting Apodaca v. Willmore, 
    51 Kan. App. 2d 534
    , 538, 
    349 P.3d 481
           [2015]).
    See also K.S.A. 2016 Supp. 60-256(c)(2).
    5
    Furthermore, determining whether the economic loss doctrine applies in a case is
    an issue of law subject to unlimited appellate review. Rinehart v. Morton Buildings, Inc.,
    
    297 Kan. 926
    , 931, 
    305 P.3d 622
    (2013); see also David v. Hett, 
    293 Kan. 679
    , 682-83,
    
    270 P.3d 1102
    (2011); Koss Construction v. Caterpillar, Inc., 
    25 Kan. App. 2d 200
    , 201,
    
    960 P.2d 255
    , rev. denied 
    265 Kan. 885
    (1998).
    Kansas Product Liability Act
    For more than 35 years, the Kansas Product Liability Act, K.S.A. 60-3301 et seq.,
    has governed all product liability actions, consolidating them into one basis for liability
    regardless of theory. See L. 1981, ch. 231, sec. 7; 
    David, 293 Kan. at 685
    . In particular,
    the provisions of the Act apply to actions based on "strict liability in tort, negligence,
    breach of express or implied warranty, breach of, or failure to, discharge a duty to warn
    or instruct, whether negligent or innocent, misrepresentation, concealment or
    nondisclosure, whether negligent or innocent, or under any other substantive legal
    theory." K.S.A. 60-3302(c). Moreover, "comparative fault applies to all product liability
    claims regardless of the theory of recovery." Jones v. Tanks Plus, No. 108,029, 
    2013 WL 678368
    , at *3 (Kan. App. 2013) (unpublished opinion) (citing K.S.A. 60-258[a];
    Forsythe v. Coats Co., 
    230 Kan. 553
    , Syl. ¶ 1, 
    639 P.2d 43
    [1982]; Kennedy v. City of
    Sawyer, 
    228 Kan. 439
    , 450, 
    618 P.2d 788
    [1980]).
    The Kansas Product Liability Act applies to "any claim or action brought for harm
    caused by the manufacture, production, making, construction, fabrication, design,
    formula, preparation, assembly, installation, testing, warnings, instructions, marketing,
    packaging, storage or labeling of [a] product." (Emphasis added.) K.S.A. 60-3302(c). The
    Act defines the term "harm" to include property damage, personal injuries, and death. It
    also includes "mental anguish or emotional harm attendant to . . . personal physical
    injuries, illness or death." K.S.A. 60-3302(d). However, the definition of the term "harm"
    6
    under the Act does not include "direct or consequential economic loss" caused by a
    defective product. K.S.A. 60-3302(d).
    Economic loss is defined as "loss of use of the defective product, cost of replacing
    the product, loss of profits to plaintiff's business, or damage to plaintiff's business
    reputation from use of the product." Elite Professionals, Inc. v. Carrier Corp., 16 Kan.
    App. 2d 625, 633, 
    827 P.2d 1195
    (1992). Economic loss includes the "loss of the bargain,
    repair, and replacement cost, loss of profits, and/or goodwill, including diminution in
    value." In other words, economic loss is those damages that arise as a "result of the
    failure of the product to perform to the level expected by the buyer, which is the core
    concern of traditional contract law." Northwest Arkansas Masonry, Inc. v. Summit
    Specialty Products, Inc., 
    29 Kan. App. 2d 735
    , 742, 
    31 P.3d 982
    (2001).
    Economic Loss Doctrine
    What has become known as the "economic loss doctrine" was judicially created by
    the California Supreme Court in Seely v. White Motor Co., 
    63 Cal. 2d 9
    , 
    45 Cal. Rptr. 17
    ,
    
    403 P.2d 145
    (1965). Subsequently, the economic loss doctrine was also adopted by the
    United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, 
    476 U.S. 858
    , 
    106 S. Ct. 2295
    , 
    90 L. Ed. 2d 865
    (1986). Twelve years later, this court adopted the
    economic loss doctrine in Koss, 
    25 Kan. App. 2d 200
    . Since that time, the scope of the
    doctrine in Kansas has continued to unfold. See 
    Rinehart, 297 Kan. at 932-36
    ; see also
    
    David, 293 Kan. at 683-95
    ; Breer and Pulikkan, The Economic Loss Rule in Kansas and
    Its Impact on Construction Cases, 74 J.K.B.A. 30 (2005); Treaster, The Confusion
    Continues: The New Dynamic of the Economic Loss Doctrine in Kansas, 
    62 Kan. L
    .
    Rev. 1325 (2014).
    In East River, the United States Supreme Court considered a product liability
    case—arising in the context of admiralty law—in which four oil tankers were allegedly
    7
    damaged by defective high-pressure turbines. In considering the issue of whether the
    plaintiff could recover in tort for damage to the tanker caused by the defective turbines,
    the Supreme Court expressed concern that if an injured party was allowed to recover
    purely economic loss in a product liability action, "contract law would drown in a sea of
    
    tort." 476 U.S. at 866
    . The Supreme Court reasoned that "[e]ven when the harm to the
    product itself occurs through an abrupt, accident-like event, the resulting loss due to
    repair costs, decreased value, and lost profits is essentially the failure of the purchaser to
    receive the benefit of its bargain—traditionally the core concern of contract 
    law." 476 U.S. at 870
    (citing E. Farnsworth, Contracts § 12.8, pp. 839-40 [1982]). Thus, the
    Supreme Court unanimously 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." 476 U.S. at 871
    .
    In 1998, this court adopted the economic loss doctrine in the context of a
    commercial product liability action in Koss, 
    25 Kan. App. 2d 200
    . In Koss, the plaintiff
    sued the manufacturer in tort for damage to a vibratory roller—used to compact materials
    in highway construction projects—allegedly caused by defective hydraulic hoses. In
    affirming the district court's granting of summary judgment to the defendant, this court
    found that "East River provides a rule that is straightforward and predictable and that
    establishes a logical demarcation between cases properly pursued as tort actions and
    those which are warranty 
    claims." 25 Kan. App. 2d at 205
    . It noted that this approach was
    consistent with Restatement (Third) of Torts: Products Liability § 21(c) (1998) as well as
    with the rationale articulated in Elite 
    Professionals, 16 Kan. App. 2d at 633
    . 
    Koss, 25 Kan. App. 2d at 205-06
    . Accordingly, this court held that "[u]nder Kansas law, the
    economic loss doctrine applies to a claim for damage to the product itself." 
    25 Kan. App. 2d
    at 207.
    The following year, this court expanded the economic loss doctrine to include
    consumer transactions in Jordan v. Case Corp., 
    26 Kan. App. 2d 742
    , 
    993 P.2d 650
    8
    (1999), rev. denied 
    269 Kan. 933
    (2000). In Jordan, the plaintiff alleged that he
    purchased a combine with a defective engine. The engine subsequently caught on fire,
    destroying the combine as well as some unharvested wheat. On appeal, this court found
    that the engine was a component part of the combine and held "that the rule set forth by
    this court in Koss applies equally to a consumer of defective goods as well as to
    commercial buyers of defective 
    goods." 26 Kan. App. 2d at 744
    .
    In 2001, this court considered the economic loss doctrine in the construction
    context in Northwest Arkansas Masonry, Inc., 
    29 Kan. App. 2d 735
    . In Northwest, the
    plaintiff was hired as a subcontractor to build concrete walls for a new Home Depot store.
    The plaintiff alleged that cement powder it had purchased from the defendant to make
    mortar was defective, causing it to have to tear down and rebuild the walls after 20,000
    concrete blocks had been laid. Although a jury ruled in favor of the plaintiff, the district
    court set aside the verdict. In affirming the district court's decision, this court found that
    the allegedly defective cement powder was used to make mortar and had been
    "integrated" into the final product—the masonry wall—and, as a result, the economic loss
    doctrine barred the recovery of the damages sought by the 
    plaintiff. 29 Kan. App. 2d at 745
    .
    Three years later, in Prendiville v. Contemporary Homes, Inc., 
    32 Kan. App. 2d 435
    , 
    83 P.3d 1257
    , rev. denied 
    278 Kan. 847
    (2004), a panel of this court applied the
    economic loss doctrine in a residential construction case. In 2011, however, the Kansas
    Supreme Court overruled the holding in Prendiville in 
    David, 293 Kan. at 703
    .
    Specifically, our Supreme Court held in David that "[t]he economic loss doctrine should
    not bar claims by homeowners seeking to recover economic damages resulting from
    negligently performed residential construction services." 
    293 Kan. 679
    , Syl. ¶ 2.
    Subsequently, this court applied the holding in David in the case of Coker v. Siler, 
    48 Kan. App. 2d 910
    , 917, 
    304 P.3d 689
    (2013).
    9
    Also in 2013, the Kansas Supreme Court reexamined the economic loss doctrine
    in Rinehart, 
    297 Kan. 926
    . In Rinehart, the owners of a preengineered building—
    intended to be used for both residential and commercial purposes—sued the builder for
    damages under several theories, including negligent misrepresentation. Our Supreme
    Court held that "negligent misrepresentation claims are not subject to the economic loss
    doctrine because the duty at issue arises by operation of law and the doctrine's purposes
    are not furthered by its application under these 
    circumstances." 297 Kan. at 941
    .
    In summary, it appears that the trend to expand the economic loss doctrine has
    slowed in recent years. As noted by the Kansas Supreme Court,
    "[i]n one sense, the 'economic loss doctrine' or 'economic loss rule' is a well-recognized
    tort concept, but a review of the caselaw across various jurisdictions shows it has proven
    difficult to define because there are a number of permutations. Johnson, The Boundary-
    Line Function of the Economic Loss Rule, 66 Wash. & Lee L. Rev. 523, 524 (Spring
    2009)." 
    David, 293 Kan. at 683
    .
    This case presents one such permutation—the application of the integrated
    systems approach.
    Application of Integrated System Approach
    In granting summary judgment in favor of Ventamatic and Jakel, the district court
    concluded "that the 'integrated systems' rule applies to the bathroom exhaust fans and the
    housing units into which they were installed." It is undisputed that "Kansas has adopted
    the integrated systems approach in which damage by a defective component of an
    integrated system to the system as a whole or any system component is not damage to
    'other property.'" 
    Coker, 48 Kan. App. 2d at 916
    . Thus, we must determine whether the
    integrated systems approach is applicable in this case.
    10
    In Northwest Arkansas Masonry, Inc., this court held "that '[d]amage [caused] by a
    defective component of an integrated system to either the system as a whole or other
    system components is not damage to "other property" which precludes the application of
    the economic loss 
    doctrine.'" 29 Kan. App. 2d at 744
    (quoting Wausau Tile, Inc. v.
    County Concrete Corp., 
    226 Wis. 2d 235
    , 249, 
    593 N.W.2d 445
    [1999]). Accordingly,
    we concluded that "when component materials become indistinguishable parts of a final
    product, and there is harm resulting from a defective component of the product, the
    product itself has caused the harm." (Emphasis 
    added.) 29 Kan. App. 2d at 744
    ; see also
    Restatement (Third) of Torts: Products Liability § 21 (1998).
    Our decision in Northwest Arkansas Masonry, Inc. provides insight to the question
    of when the integrated systems approach is applicable. As noted above, in that case this
    court determined the final product was the masonry wall and that the cement powder used
    to make mortar was an integrated component product necessary or essential to make the
    wall. Moreover, the cement powder used to make mortar to bind the concrete blocks
    together became an indistinguishable part of the wall. Here, even if we assume that the
    final product was the housing units themselves rather than the bathroom exhaust fans, we
    do not find that the fans became an indistinguishable part of the house once they were
    installed. Rather, we would suggest that the bathroom exhaust fans were easily
    distinguishable from the other property that was damaged in the fires.
    As we did in Northwest Arkansas Masonry, Inc., we again look to a Wisconsin
    case for guidance. In State Farm Fire and Cas. Co. v. Hague Quality Water,
    International, 
    345 Wis. 2d 741
    , 
    826 N.W.2d 412
    (2012), aff'd 
    352 Wis. 2d 308
    , 
    841 N.W.2d 819
    (2014), the Wisconsin Court of Appeals considered the issue of whether a
    plaintiff could recover under a tort theory from the manufacturer of an allegedly defective
    water softener unit that caused substantial damage to the drywall and woodwork in a
    house. The trial court granted summary judgment to the manufacturer on the grounds that
    11
    the economic loss doctrine barred recovery. On appeal, the Wisconsin Court of Appeals
    reversed and remanded the case for further proceedings.
    In reversing the trial court's decision, the Hague court clarified the test applied in
    determining whether a defective product and damaged property are part of an integrated
    
    system. 345 Wis. 2d at 747-48
    . Referring to the Wisconsin Supreme Court's decision in
    Wausau Tile, the Wisconsin Court of Appeals found "that the defective product must be
    an 'integral' part of the larger system that includes the damaged property for the two to
    be considered parts of an integrated system." (Emphasis 
    added.) 345 Wis. 2d at 748
    (citing Wausau 
    Tile, 226 Wis. 2d at 251
    ). "Therefore, a defective product must be
    integral to the function of the damaged property before the defective product and the
    damaged property may be considered part of the same integrated system." (Emphasis
    
    added.) 345 Wis. 2d at 748
    .
    The Hague court went on to point out that the defective component product in
    Wausau Tile was cement that became "integral to the creation" of the damaged final
    product—concrete paving 
    blocks. 345 Wis. 2d at 748-49
    (citing Wausau Tile, 
    226 Wis. 2d
    at 251-52); see also Cincinnati Insurance Co. v. AM International, Inc., 
    224 Wis. 2d 456
    , 463, 
    591 N.W.2d 869
    (1999) (defective component product was a gear that was an
    integral part of a damaged printing press). The Wisconsin Court of Appeals contrasted
    these cases, and others, in concluding that "the water softener at issue in this case was not
    integral to the functioning of [the house's] drywall, flooring, and woodwork." 
    345 Wis. 2d
    at 749. Thus, the court held "that the water softener and damaged drywall, flooring,
    and woodwork [in the house] are not part of an integrated system." 
    345 Wis. 2d
    at 749.
    Like the Wisconsin Court of Appeals, we conclude as a matter of law that a
    defective product must be integral to the function of the damaged property before the
    defective product and the damaged property may be considered part of the same
    integrated system. We note that the word "integral" means "[e]ssential or necessary for
    12
    completeness; constituent." The American Heritage Dictionary 911 (5th ed. 2016).
    Accordingly, in order to be integral, the damaged property must be unable to function
    properly without the allegedly defective product.
    We find this conclusion to be consistent with the holdings in previous Kansas
    product liability cases. Just as the cement powder and mortar was essential for the
    construction of the masonry wall in Northwest Arkansas Masonry, Inc., the hydraulic
    hoses in Koss were essential for the functioning of the vibratory roller. Northwest
    Arkansas Masonry, 
    Inc., 29 Kan. App. 2d at 744
    ; Koss, 
    25 Kan. App. 2d
    at 207.
    Similarly, in Jordan, the engine that caught on fire was essential to the operation of the
    
    combine. 26 Kan. App. 2d at 743-44
    .
    In each of these cases, the allegedly defective product was an integral, necessary,
    essential, or indistinguishable part of the property that was damaged. In contrast, we find
    that the bathroom exhaust fans at issue in this case are not integral, necessary, essential,
    or indispensable to the functioning of the damaged housing units. We, therefore, hold that
    the allegedly defective bathroom exhaust fans and the housing units are not part of an
    integrated system.
    Conclusion
    We find as a matter of law that the bathroom exhaust fans and the housing units
    constructed at Fort Riley were not part of an "integrated system" as that term is defined in
    the context of product liability law. As such, we further find as a matter of law that the
    economic loss doctrine does not preclude Corvias from asserting a product liability claim
    against Ventamatic and Jakel. Thus, we conclude that Corvias may proceed on its claim
    for damages under the Kansas Product Liability Act.
    13
    In light of our conclusion, it is unnecessary for us to address the issue of whether
    the bathroom exhaust fans were inherently dangerous. As the district court correctly
    noted, the Kansas Product Liability Act "consolidates all product liability actions,
    regardless of theory, into one basis for liability." 
    David, 293 Kan. at 685
    ; see also Griffin
    v. Suzuki Motor Corp., 
    280 Kan. 447
    , 461, 
    124 P.3d 57
    (2005); Patton v. Hutchinson Wil-
    Rich Mfg. Co., 
    253 Kan. 741
    , 756, 
    861 P.2d 1299
    (1993). Accordingly, we will not
    consider the implied warranty claim separately.
    Reversed and remanded for further proceedings.
    14