B.L. Jet Sales, Inc. v. Alton Packaging Corp.
| Decision Date | 06 January 1987 |
| Docket Number | No. 51361,51361 |
| Citation | 724 S.W.2d 669 |
| Parties | B.L. JET SALES, INC., Plaintiff-Appellant, v. ALTON PACKAGING CORPORATION and the Garrett Corporation, Defendants- Respondents. |
| Court | Missouri Court of Appeals |
Jay L. Levitch, Peter T. Sadowski, St. Louis, for plaintiff-appellant.
Richard Oertli, St. Louis, for Alton Packaging, Corp.
Reed W. Sugg, Howard B. Becker, St. Louis, for The Garrett Corp.
B.L. Jet Sales, Inc. appeals following its voluntary dismissal of counts I and IV of its amended petition and the trial court's dismissal of counts II and III for failure to state a claim upon which relief can be granted. We reverse and remand as to counts II and III and dismiss the appeal as to counts I and IV.
B.L. alleges a breach of warranty by Alton Packaging Corporation in count I and a breach of warranty by The Garrett Corporation in count IV. Allegations in counts II and III are couched in terms of negligence by Garrett.
Initially, we note that B.L. voluntarily dismissed counts I and IV; Alton and Garrett request that the appeal on these counts be dismissed. We agree with the defendants that, as a result of plaintiff's voluntary dismissal of these counts, we have nothing before us to review. We dismiss the appeal involving counts I and IV.
In count II of its amended petition, B.L. alleges the following facts. In 1977, The Garrett Corporation, doing business as Airesearch Aviation Company, serviced and repaired a two-engine jet aircraft. Subsequently, Alton Packaging Corporation purchased the plane. In 1980, Alton sold the plane to B.L. which resold it to Bronxville Equipment Company. Bronxville, dissatisfied with the plane, filed suit in 1981 in federal district court in New York seeking rescission of the sale and damages. In 1982, B.L. and Bronxville entered into a settlement agreement whereby B.L. paid Bronxville $160,000 for repair expenses incurred by Bronxville and assumed liability of a note used to finance the purchase. Bronxville returned the plane to B.L.
In count II, B.L. also alleges:
3. During the course of performing maintenance and repair work on aircraft, defendant Garrett has been and is under a duty to make entries in the logbooks of such aircraft describing the maintenance and repair work which it performs thereon so that subsequent purchasers and owners of such aircraft may be fully advised respecting the prior history, maintenance and repair record of such aircraft.
4. In about November and December, 1977, ... Garrett made substantial repairs to the wing fuel tanks of [the plane] ... to alleviate severe and extensive corrosion found inside the wing fuel tanks of the plane.
5. In breach of its duty ... Garrett negligently failed to make any entry in the logbooks of the plane describing or making any reference to the ... corrosion found inside the wing fuel tanks of the plane or to the repairs which it made....
6. ... plaintiff, relying on the aforesaid logbooks and the absence of any entries therein describing or making any reference to the aforesaid repairs made by defendant Garrett and without knowledge that such repairs had been made or that the aforesaid corrosion had previously existed, purchased the plane from defendant Alton....
7. During the summer of 1980, plaintiff sold the plane to Bronxville....
8. In about February, 1981, Bronxville discovered severe corrosion in various portions of both wing fuel tanks of the plane [and] caused repairs to be performed ... During such repairs, it was discovered that said corrosion had resulted from corrosion that had previously developed in the plane's wing fuel tanks and from repairs that had been made by defendant Garrett ... to correct that previous corrosion.
Count III of the amended petition incorporates by reference all the allegations of count II and adds this allegation:
2. At the time that defendant Garrett failed to make any entry in the logbooks of the plane describing the aforesaid repairs it had made to the wing fuel tanks of the plane, it knew or should have known: that said repairs had been substantial and had been made to structurally significant portions of the plane; that according to defendant Garrett's own business practices, industry practices and applicable federal regulations, an entry describing such repairs should have been made in the logbooks of the plane; that the fact of the existence of said repairs, and the condition they were meant to correct, would have been, is and will be material to subsequent purchasers and owners of the plane in that the existence of the same adversely affect and diminish the fair market value of the plane; that subsequent purchasers and owners of the plane would rely upon the accuracy of the entries contained in the logbooks of the plane and upon the absence of entries from those logbooks as being a complete history and record of the condition and maintenance of the plane, and therefore, defendant Garrett's conduct as aforesaid, showed complete indifference to or conscious disregard for the rights of plaintiff, as a subsequent purchaser and owner of the plane....
Each of the four counts alleges actual damages as follows: (1) $160,000 paid by B.L. to Bronxville to settle Bronxville's suit, (2) B.L.'s attorney fees and costs associated with the Bronxville suit, (3) interest paid on the Bronxville note assumed by B.L., (4) the difference between the actual fair market value of the plane and its value as warranted, and (5) hangar rental, insurance, and maintenance expenses incurred after the Bronxville settlement. The amended petition asks for $334,245.80 actual damages plus incidental damages; count III seeks an additional $1,000,000.00 as punitive damages.
Garrett filed a motion to dismiss for failure to state a claim alleging that the relief sought by B.L. was for economic loss and that economic losses are not recoverable under a negligence claim unless B.L. alleges "personal injury, damage to property other than the alleged defective aircraft, or that the aircraft was rendered useless by some violent occurrence." The court sustained Garrett's motion and dismissed counts II and III of B.L.'s amended petition, and this appeal follows.
An appellate court reviewing the dismissal of a petition for failure to state a claim must determine if the facts pleaded and reasonable inferences drawn therefrom, viewed in the light most favorable to the pleader, demonstrate any basis for relief. We must accept as true all facts averred in the petition and construe all averments liberally and favorably to the pleader. San Luis Trails Association v. E.M. Harris Building Co., 706 S.W.2d 65, 67 (Mo.App.1986). Even if imperfectly or defectively stated, if the pleader's allegations invoke principles of substantive law which might entitle him to relief, a court should deny a motion to dismiss for failure to state a claim. AAA Excavating, Inc. v. Francis Construction, Inc., 678 S.W.2d 889, 893 (Mo.App.1984).
B.L. contends its amended petition states a claim for relief against Garrett for negligent misrepresentation. Negligent misrepresentation was first recognized in Missouri by us in Ligon Specialized Hauler, Inc. v. Inland Container Corp., 581 S.W.2d 906 (Mo.App.1979) where we said that, although Restatement (Second) of Torts § 552 (1977) had not been expressly adopted in Missouri, we considered it a "persuasive frame of reference" for the cause of action stated in that case. Id. at 909. Section 552, entitled "Information Negligently Supplied for the Guidance of Others," provides (1) 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.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply...
To continue reading
Request your trial
-
In re Syngenta AG Mir 162 Corn Litig.
...(rejecting application of the ELD to a claim relating to the provision of professional services); B.L. Jet Sales, Inc. v. Alton Packaging Corp., 724 S.W.2d 669, 673 (Mo.Ct.App.1987) (negligent misrepresentation cases are in a different category from cases in which the ELD has been applied).......
-
In re Rust-Oleum Restore Mktg., Sales Practices & Prods. Liab. Litig.
...at Pine Point Condominium Owners Ass'n v. Peachtree Doors, Inc. , 659 A.2d 267, 270 (Me.1995) ; B.L. Jet Sales, Inc. v. Alton Packaging Corp. , 724 S.W.2d 669, 671 (Ct.App.Mo.1987).34 The present litigation is distinguishable from Pulte Home Corp. v. Parex, Inc. , 174 Md.App. 681, 923 A.2d ......
-
Nestlé Purina Petcare Co. v. Blue Buffalo Co.
...misrepresentation in B.L. Jet Sales . In that case, the plaintiff bought a used airplane plagued by fuel tank corrosion. 724 S.W.2d 669, 670 (Mo.App.E.D.1987). The plaintiff sued the seller and the company that serviced the plane for failing to log or disclose previous fuel tank repairs. Id......
-
Dannix Painting, LLC v. Sherwin-Williams Co.
...Co. of Am. v. Graham, 891 S.W.2d 438, 454 (Mo.Ct.App.1994), and breach of a public duty, see, e.g., B.L. Jet Sales, Inc. v. Alton Packaging Corp., 724 S.W.2d 669, 672–73 (Mo.Ct.App.1987), the district court determined Dannix's claim did “not fall within any of those recognized exceptions.” ......