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Eighth Circuit sides with paint manufacturer in case over negligent misrepresentation

By Jessica M. Karmasek | Oct 23, 2013

ST. LOUIS (Legal Newsline) -- A federal appeals court, in a ruling Monday, said a district court correctly dismissed a company's negligent misrepresentation complaint.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit sided with Sherwin-Williams Company in a lawsuit filed against it by Dannix Painting LLC.

Dannix, a commercial painting contractor, had used a product manufactured by Sherwin-Williams to paint some buildings at Eglin Air Force Base in Florida, but the finish was defective.

When Dannix sought assistance from Sherwin-Williams, the paint manufacturer recommended an alternative product. When that product proved unacceptable due to noxious odors, a Sherwin-Williams employee suggested a third product.

On the employee's recommendation, Dannix used the third product on both interior and exterior surfaces, complying with all the manufacturer's recommendations. This product also failed.

Dannix alleges that the paint "delaminated," or didn't stick, on both interior and exterior surfaces, causing the company to suffer financial loss when it had to remove the defective paint and redo the work.

Dannix filed a suit against Sherwin-Williams in a Missouri state court in August 2012, claiming negligent misrepresentation in the company's recommendation of the third product.

The suit was transferred to the U.S. District Court for the Eastern District of Missouri. In December, the court dismissed Dannix's complaint.

In its appeal to the Eighth Circuit, Dannix argues that the federal court erroneously concluded it failed to state a claim because Missouri's economic loss doctrine barred its only cause of action.

Chief Judge William Jay Riley, writing for the panel, agreed with the district court.

"Dannix has not cited, and we are unable to find, a Missouri case allowing a commercial buyer of goods under the (Uniform Commercial Code) to maintain a negligent misrepresentation claim against the seller based upon the seller's recommendation as to the fitness or performance of those goods," he wrote in the Eighth Circuit's 12-page opinion.

"Dannix 'seek[s] damages for the loss it suffered when the recommended product proved unsuitable.' This is precisely the type of tort claim by a disappointed commercial buyer that the economic loss doctrine prohibits."

From Legal Newsline: Reach Jessica Karmasek by email at

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