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08/10/89 Tolona Pizza Products v. Davy Mckee Corporation Et

August 10, 1989

TOLONA PIZZA PRODUCTS CORPORATION, PLAINTIFF-APPELLANT

v.

DAVY MCKEE CORPORATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

543 N.E.2d 225, 187 Ill. App. 3d 365, 134 Ill. Dec. 942 1989.IL.1231

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, Tolona Pizza Products Corporation, an Illinois corporation, appeals from an order of the circuit court of Cook County dismissing two counts of its complaint against defendants, Davy McKee Corporation, a Delaware corporation, and James Edgar, its employee, for failure to state a claim for which relief could be granted. (Ill. Rev. Stat. 1987, ch. 110, par. 2-615.) The sole issue presented for review is whether the trial court erred, as a matter of law, in ruling that a professional malpractice action cannot be sustained under Illinois law if plaintiff seeks damages for economic loss due to defeated commercial expectations.

We affirm.

For purposes of review, we will accept plaintiff's allegations as true. (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 148.) Plaintiff is engaged in the business of manufacturing and selling pizza crusts and related products and supplies. Defendant Davy McKee Corporation (hereinafter McKee) is an international concern engaged in furnishing engineering and architectural services to industry. Defendant Edgar, a registered professional engineer, was an employee of McKee.

Plaintiff retained McKee to conduct a preliminary study into the feasibility of automating its pizza crust line. Plaintiff speculated that automation of its manufacturing system would reduce costs and increase output, thereby improving its position in the marketplace. Edgar was assigned by McKee to conduct the study. Based upon Edgar's recommendations, McKee was hired to design, procure, and supervise the installation of an automated pizza crust line that would achieve plaintiff's objectives.

The line was installed in August 1985. Plaintiff alleged that the system failed to function at the outset due to numerous deficiencies in design by defendants. Plaintiff alleges that damages were sustained in the amount of $1.7 million as a result of defendants' negligence.

On April 6, 1987, plaintiff filed a complaint against defendants. AMF Union Machinery, Inc., and Dunbar Systems, Inc., were also named as defendants, but they are not parties in this appeal. Counts I through IV were directed against defendants. Counts I and IV sought damages for professional malpractice against McKee and Edgar, respectively. Count II was directed against McKee for breach of contract. Count III was directed against McKee for negligent misrepresentation.

Defendants moved pursuant to the Illinois Code of Civil Procedure, section 2-615, to dismiss plaintiff's complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2-615.) Plaintiff's counts against McKee for breach of contract and for negligent misrepresentation are currently pending. The court found that economic loss occasioned by negligent misrepresentation states a possible cause of action in tort as an exception to the bar against recovery for economic losses as set forth in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88-89, and reaffirmed in Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 153-54.

The trial court granted defendants' motion to dismiss counts I and IV relying on Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, which held that there can be no recovery in tort for economic loss due to defeated commercial expectations regardless of plaintiff's inability to recover under an action in contract. No just reason was found to delay appeal from the rulings on these counts. (107 Ill. 2d R. 304.) This appeal followed.

Plaintiff contends the trial court erred in finding that, pursuant to Anderson, a cause of action could not be maintained in tort for economic loss due to defeated commercial expectations. Plaintiff argues that the case at bar is distinguishable on three grounds: (1) Anderson did not involve an action for malpractice; (2) defendants supplied professional services while defendant in Anderson was the manufacturer of the product in question; and (3) plaintiff's economic loss was occasioned by defendants' professional malpractice which, pursuant to Rosos Litho Supply Corp. v. ...


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