G&M Farms v. Funk Irrigation Co.

FARMS, partnership, G&M

Plaintiff-Appellant, COMPANY, Lind

FUNK IRRIGATION

say Manufacturing Company, and De Inc., Agresearch, corporations,

Kalb

Defendants-Respondents. COMPANY,

FUNK IRRIGATION

Counterclaimant, FARMS, partnership,

G&M

Counterdefendant.

No. 18136. Idaho,

Supreme Court

Boise, February 1990 Term. 19, 1991.

March Kerl, Pocatello,

Green, Service, Gasser & Green, B. James plaintiff-appellant. Pocatello, argued. Boise,

Elam, Boyd, for defen- Burke & dants-respondents Lindsay and DeKalb. Dominick, Boise, argued. K. Bobbi Hull, Boise, Quane, Smith, Howard & Allyn Irr. L. defendant-respondent Boise, argued. Sweeney, BOYLE, Justice. entry partial of a appeal from

In this upon are called judgment, we correctly the trial court determine whether to establish a failed ruled that for intention- the claims prima facie case on negligent misrepresentation. al and Farms, M the amount plaintiff-appellant, G & hold the defendants liable for agriculture irrigation purchaser paid irrigation system, of an for the for economic manufactured the defendant-re- damages resulting crop loss loss and Manufacturing Company spondent Lindsay relating for incidental losses to the defi- by Lindsay’s co-defendant- and distributed irrigation system. ciencies of the G & respondent, Irrigation. According to Funk damages Farms bases its claims for on record, began negotiat- & M Farms contract, G theories of breach of of breach Irri- ing in the summer of 1984 with Funk warranties, express negligent implied and gation Lindsay Manufacturing and for the manufacture, design and and intentional purchase Lindsay a II Zim- of Generation negligent misrepresentation.1 and Funk three-quarter mile lateral move matic wide Irrigation counterclaimed for the balance 1984, pipeline irrigation system. July In purchase price. of the prepared by Funk purchase a order was granted partial The trial court a summa- Irrigation, signed by ei- but it was never ry judgment in on favor of the defendants party. August, 1984 James O’Cil- ther negligent misrepresen- and intentional ka, M Lindsay representative, visited G & negligent design tation claims and the and property inspect lay Farms’ manufacture claim. The trial court’s basis suitability land to determine the granting partial summary judgment M use. particular system for G & Farms’ manufacturing negligent on the claim was rep- The record demonstrates that O’Cilka prohibited that a from recover- M Farms that the machine resented to G & ing purely products losses in a economic proposed suitable for the site and that par- The liability sounding action tort. particular terrain. it would work on that summary judgments on the intentional tial Subsequent meeting, relying to this and on negligent misrepresentation claims O’Cilka, M representations G & M granted on the basis that G & were agreed purchase Farms and install prima facie case Farms failed to establish Lindsay system. II A second Generation convincing by clear and evi- supported prepared signed by purchase order was appeals M from the dence. & Farms G 17, 1984 and a G & Farms October entry court’s order, modify purchase third intended to negligent claims for against it on the prepared in Decem- price, the contract misrepresentation. These is- intentional ber, 1984, signed. but was never pursuant as final sues were certified in- Lindsay irrigation system was The 54(b) appealable. and are thus I.R.C.P. June, 1985, operational by how- stalled and 112 County, Idaho v. Shoshone Walker throughout M Farms asserts that (1987). ever G & 991, P.2d 290 739 crop repeatedly season it malfunc- the 1985 ap- presented in this primary issue tioned, stopped operating, broke down and the trial court erred peal is whether repairs and modifica- requiring numerous respondents’ motion for sum- granting the alleged that these numer- tions. Plaintiff negligent mary judgment on the claims resulted in an insufficient ous malfunctions misrepresentation. and intentional crops causing supply to G & M’s water crop losses. I. 7, 1985, M Farms noti- On October G & Review Standard of Irrigation revoking Funk that it was fied It is established well Lindsay irrigation system “[A] acceptance of the be ren summary judgment shall motion for following January filed this action and the pleadings, deposi if the Irrigation, dered forthwith against for economic loss file, tions, together with admissions on Agre- Manufacturing and DeKalb affidavits, there is no any, if show that Inc., Lindsay the search, parent corporation of fact and as to material genuine issue Manufacturing. M Farms seeks to G & plaintiffs alleged sought ty damage is not complaint alleges loss as economic 1. Plaintiffs however, complaint. proper- crop yield, a result of reduced

517 required plaintiff at trial clear and moving party judg is entitled to evidence, 56(c); urged to of law.” have been ment as matter I.R.C.P. we Freeman, 117 v. 791 adopt require Idaho P.2d Olson which would a standard (1990); v. United Steelwork Rawson quality quanti- 1285 take trial courts to Am., P.2d ers 726 742 ruling ty of into when evidence account Waco, & Truck v. (1986); Boise Car posi- summary judgment. The motions for v. (1985); P.2d 818 Idaho an by respondents is based on urged tion Schaefer Sales, Elswood Idaho Trailer adopted in def- extension of the standard (1973). Upon motion for sum Rankin, cases Weimer amation facts mary judgment, all controverted are liberally in favor the non-mov construed Liberty Lobby, Anderson v. U.S. Enters, Coffin, Tusch ing party. 91 L.Ed.2d 202 S.Ct. 37, Doe v. (1987); Idaho 740 P.2d 1022 convincing evi- defamation cases clear and Durtschi, 466, Idaho 716 P.2d 1238 110 required question dence at and the is trial Clinton, 116, Kline v. (1986); 103 Idaho summary judgment the is whether Likewise, (1982). P.2d all reason 645 350 jury record evidence such that a discloses made able inferences which can be convincing applying the clear and standard in the record shall be made favor the reasonably plaintiff. for the could find Enters, party resisting the motion. Tusch id.; Lobby, Liberty Anderson v. Weimer 37, Coffin, v. Idaho P.2d 113 740 1022 Rankin, v. id. Durtschi, 466, (1987); Doe v. 110 Idaho 716 Steer, 409, Nelson v. Idaho 797 118 Bowling Meridian (1986); P.2d 1238 alleged an P.2d 117 action Lanes, Ass’n, Inc. Meridian Inc. v. Athlete and interference with contract breach 509, (1983); 105 Idaho 670 P.2d 1294 Anderson Liber v. fiduciary duty, we cited 658, Ethington, v. Anderson 103 Idaho 651 ty summary Lobby for the well-established Clinton, v. (1982); Kline 923 103 P.2d Ida not judgment principles that it is the trial 116, (1982). ho 645 P.2d 350 The burden at evidence, weigh court’s to but function prove is to upon moving party all times is a genuine to determine whether there genuine the absence of a issue of material issue There is no issue for trial for trial. v. River Petricevich Salmon Canal fact. favoring unless there is sufficient evidence Company, 92 Idaho 865, 452 P.2d 362 non-moving party jury return (1969). However, plaintiffs case must summary party, and that verdict for something specu be anchored in more than granted should be if the evidence lation and mere scintilla evidence is not opposition in merely motion is color- Id. See enough to create a issue. significantly probative. not 118 able is Steer, 409, also Nelson v. 118 Idaho 797 410, 117, 409, Idaho 797 P.2d As will (1990). If the P.2d 117 record contains below, be discussed the evidence submitted conflicting inferences or reasonable minds by opposition respon G M Farms in & conclusions, might reach different a sum summary judgment is dents’ motions v. mary judgment must be denied. Kline colorable, signifi merely not but rather is Clinton, 116, Idaho P.2d 103 645 350 cantly probative and is sufficient to with (1982); Farmer’s Ins. Idaho v. Co. of entry summary judgment particu stand Brown, 380, (1976). 97 544 Idaho P.2d 1150 larly in the record is where evidence against All doubts are to be resolved under nor considered a clear applied moving party, and the must be de motion convincing evidence standard. conflicting if the nied evidence such that therefrom, if inferences be drawn Liberty Our citation to Anderson v. Lob might people reasonable reach different by Nelson v. Steer in intended for the Durtschi, conclusions. Doe v. Idaho relating judg purpose summary those (1986); Ashby v. Hub 716 P.2d 1238 Nelson. principles By ment discussed bard, (1979). 593 P.2d Liberty Lobby Nelson v. our citation to Steer, However, adopt did not intend therein as the we cases such action, proof convincing clear and evidence standard instant where standard judgment proceedings person by all cases acted on and in the manner (6) proof reasonably contemplated; the hear- where burden (7) er’s of its his re- ignorance falsity; evidence. clear truth; (8) rely right on the his liance Therefore, for reasons set forth and dis thereon; (9) prox- consequent hereinafter, cussed we decline to extend injury. imate the elevated burden of 37, 41, Coffin, Tusch v. 113 Idaho Enters. v. proof established Rankin and Weimer (1987); 740 P.2d Faw v. Green Lobby Liberty Anderson defamation wood, (1980); 101 Idaho summary judgment proceed to the cases King, Smith v. 100 Idaho 597 P.2d presented in ings legal on the theories (1979); Siqueiros, Mitchell v. 99 Idaho Rather, appeal. I.R. instant traditional party alleging 56(c) summary judgment principles C.P. support fraud each must existence of govern granting and standards of sum elements of the cause of action mary judgment issues of on the fraud pleading fraud particularity misrepresentation. intentional constituting factual fraud. circumstances 9(b); Robins, I.R.C.P. Theriault A.H. II. 303, 307, Intentional Dismissal (1985); Galaxy Advertising Outdoor Misrepresentation Transp. Dep’t, Idaho Idaho Claim (1985); Jones, 111 see Witt v. (1986). Idaho 722 P.2d 474 Further complaint appellant In & its G M Farms more, alleging fraud party the an action for alleges misrepresentation by de intentional ele proving has the burden of all these Manufacturing Lindsay De fendants and ments clear evi at trial and M Agresearch, Kalb Inc. G & Farms as Greenwood, dence. 101 Idaho Faw v. De Lindsay Manufacturing serts that and (1980); King, Smith v. Inc., Agresearch, falsely represented Kalb (1979); Gneiting 597 P.2d system II possessed that the Generation Clement, capacity operational capability the and general special meet the and needs of G & M Farms and failed to disclose facts known order, memorandum and its decision exclusively by concerning the defendants did parties the court observed that the trial expected problematic performance of Lindsay’s representative dispute that appellant particular system. this bas alleged made four to be statements es its claim four statements made the misrepresentations, each analyzed and then Lindsay Manufacturing. representatives of separately to whether statement determine (1) representations These include that a sufficient ba- statement demonstrated work”; (2) irrigation system there “would Upon fraud. review we proof sis for were “thousands these machines defen- must determine whether the also (3) around”; Lindsay experienced had provide for a the basis dants’ statements irrigation “great system success” with misrepresentation, claim intentional Lindsay received com and that had “no supports record whether (4) plaints”; and & M Farms “the G were no there are court’s determination that having problems.” ones of material and that genuine issues fact as a respondents judgment entitled to were fraud, To actionable also establish matter law. misrepresenta intentional referred tion, following prove must a Lindsay By A. Made Representations elements: Irrigation That The Representation (2) (3) (1) representation; falsity; its a System “Would Work.” (4) speaker’s its knowl- materiality; in Au that M Farms contends

edge falsity ignorance its of its G & O’Cilka, repre- Lindsay truth; (5) gust, it James intent that should be his agree- indemnity first sentative, property to referred to G M Farms’ visited & three-quarter-mile two lay applied of the land and determine ment inspect irriga- II had ordered suitability of the Generation machines which been wide In his purposes. G M’s & M system tion for & farm located next to G the Behrend Funk, partner in Gary G & deposition, deposition Farms. Toevs stated Farms, if the that he asked O’Cilka stated Lindsay sell the machines to would not the neces- cover irrigation would indemnity Irrigation Funk without ground supply sufficient water. sary agreement Lindsay was concerned because Mr. it reply “yes was will work.” O’Cilka’s experience with it did not have sufficient Funk stated that he relied O’Cilka’s irrigation three-quarter mile ma- wide rep- factory he was the because deposition in his chines. Toevs also stated O’Cilkastated resentative and because signed indemni- that at the time he the first machines, of these they had “thousands” agreement, understanding ty he was success,” “great they and were were agreement that this was “blanket" complaints. operating no customer with Irriga- any over-length system that Funk subsequently purchase would representations tion As evidence that these false, Lindsay. had respondents were knowledge falsity, M Farms of their G & indemnity en- agreement The second indemnity agree- placed into the record two Irri- Lindsay tered into between Funk Lindsay into Manu- ments entered between (contained gation January, as At- facturing Irrigation. addition opin- B in to this tachment the addendum deposition indemnity agreements, to the ion). indemnity agreement pertained This testimony regarding mechanical failures sold to G & M Farms to the actual machine II systems other Generation expressly did not stated presented to the trial court. system, was not recommend indemnity agreement presented first length three-quarter the designed for mile M into G & Farms was entered between Funk, length may its requested by and that Lindsay August Funk system misalign shut cause the pertained purchase Lindsay the of two agreement stated that down. This also three-quarter-mile II lateral Generation system if Lindsay only sell the Funk would irrigation systems. indemnity This move agreed indemnify Irrigation and hold agreement was entered into after G & Lindsay from claims for dam- harmless negotiations its Funk Farms started with ages. purchase irrigation system, for the the at & M Farms asserts that no time did G prior but more than a month to G & M representative Lindsay inform G & M October, signing purchase the Farms system the II was Farms that Generation agreement Lindsay. in- order with This three-quarter designed the mile not (contained demnity agreement as Attach- system certain length possessed or that the opinion) A the addendum to this ment may af- operational characteristics Lindsay Generation II was stated that operating its under normal operation fect length required by designed for the not & M Farms contends that it conditions. G Irrigation existed cer- Funk there Lindsay personnel aware that was not operational characteristics of tain sys- on this be unavailable work would had not corrected equipment which been Lindsay operate knew tem which would cause the to misa- and which argues Farms properly. function G & M indemnity lign agree- down. The and shut indemnity clear- agreements two that these stated, willing to “Lindsay is ment further negoti- at time the sale ly established only upon condition sell the same to Funk purchase con- at time the ations and harmless indemnify and hold Lindsay signed that knew that tract was damages that any claim of from operational. G & M system was not above ...” Gordon

may result Lindsay inten- argues that Toevs, Farms further manager Irrigation, for Funk stated misrepresented failed to dis- tionally deposition machines two regarding misrepresentation material information close held that an intentional analyzed only fact. or fraud claim should not be reference recited in with elements regard With to O’Cilka’s statement Greenwood, 101 Idaho Faw Gary Funk that the Generation II three- P.2d 1338 We stated Tusch quarter length irrigation system mile catego- the facts of that case fell within work,” “would the trial court held: ry misrepresentation on the basis disputed are of fact con- issues [TJhere 41-42, nondisclosure. 113 Idaho cerning misrep- some of the elements of P.2d at 1026-27. The Tusch example, resentation. For there is evi- Enterprises purchaser was a of several representa- dence in the record duplexes and the defendants were the re- made, tion was that it was material to spective duplex- builder and vendor of the plaintiff’s purchase decision to buildings es. The vendor stated that the irrigation system, and that it was made “good quality were of construction.” It with the intent that it should acted buildings later shown that had was upon by plaintiff. the in- Likewise been constructed on fill dirt which even- agreement demnification Lind- between tually settled and caused the foundations say Irrigation January and Funk dated Enterprises and walls to crack. Tusch sub- indicating 1985 contained statements proof fill mitted that it was not told of the sys- that the defendants knew that the possible problems dirt conditions or of tem would not work and that their state- the foundations. We held that the vendor contrary ments to the were false. fill dirt should have disclosed the latent short, there are issues of fact which problems Enterprises and that Tusch would, circumstances, pre- under most rely upon represen- entitled to vendor’s granting summary judg- clude the dwellings were well con- tation that However, ment. the weakness of the entry structed. The trial court’s of sum- plaintiff’s representation claim is that judgment against Enterprises Tusch mary existing if it to an actionable relates claim, reversed on the fraud and the past fact. The courts have consistent- case was remanded for trial. ly representation consisting held “that a would of a stances of event will not serve as a basis for had it related to an even fact.” Idaho promise though 113, give Sharp 505 knowledge and belief which rise to or statement as to a future it was made under circum- v. Idaho Inv. ^[504] an action P.2d 386 existing for fraud Corp., fraud, past 95 was not of to disclose to a neath the conjunction with the seepage into the basement an unsealed P.2d 698 Bethlahmy garage of the house waterproof irrigation purchaser fact Bechtel, a home builder failed construction, ditch that the during the basement running presence which, the caused irri- be- Enters, held in that gation Bethlahmy season. We Citing Coffin, Tusch v. 113 Ida major defects the failure to disclose these (1987), 37, ho 740 P.2d 1022 G & M Farms were known to the defendants which representation that that concede O’Cilka’s plaintiffs, the and not discover- unknown to pertains part system the “would work” inspection, supported upon reasonable able future, argues represen but to the finding fraud. a past existing tations also touch on & M Farms contend facts and events. G purposes In instant of creat- the to disclose known facts the failure ing genuine issues sufficient to withstand design the concerning problematic the indemnity agree- summary judgment, malfunctioning irrigation sys likely Lindsay Man- support the claim that ments category intentional tem falls within the ufacturing of defects with was aware based on nondis misrepresentation cases selling to G & M irrigation system it was agree. information. We closure of material indemnity first Although the Farms. Enters, 37, prior into to agreement, which was entered Idaho Coffin, v. 113 Tusch irrigation system to G & M 41, 1022, the sale 1026 this Court

521 design defects was operational and Farms, ma- these not refer to the actual does Lindsay only and discoverable Farms, known to pertain M & does chine sold to G purchase and M Farms after G & system sold machine and the same model to irrigation sys- extensive installation indemnity first & M Farms. to G infer- these circumstances tem. Under January, 1985 well as the agreement, as Farms that G M can be drawn & ence expressly states agreement, dealing equal terms. Lindsay were not for the three- designed is not the machine purposes of our review Consequently, for are length, there quarter mile duty Lindsay had judgment, likely operational which are characteristics system not de- was to disclose that to malfunction. the machine to cause by G M length required & signed for the characteristics operational These to system likely and that the Farms constitute, purposes design limitations under normal or shut down malfunction hidden summary judgment proceedings, information Such operating conditions. in nature to or defects similar conditions M decision to material to G & Farms’ presented Enterprises those Tusch irrigation system. “Materiali- purchase the Bethlahmy. importance misrepre- ty refers to the may by si established Fraud be plaintiff’s in determining the sentation duty had to lence the defendant where Motors, Inc. v. course of action.” Edmark States, v. 445 speak. Chiarella United 846, 111 727 Toyota, Idaho Twin Cities 348 S.Ct. 63 L.Ed.2d U.S. 100 information, (Ct.App.1986). This P.2d (1980); Coffin, Enters. v. see also Tusch Farms, may M well have if known G & (1987) (failure 113 Idaho P.2d 1022 Farms refrain from induced G M & may misrepresenta amount to a to disclose would have the machine which purchasing Bechtel, tion); Bethlahmy v. $425,000.00 Lindsay losing resulted (failure (1966) may P.2d disclose Instead, Lindsay representatives as- sale. misrepresentation); amount to Jones would & Farms sured G (Ct. Majestas, 108 Idaho right rely & M Farms had the work. G (fraud App.1985) established representation that on the manufacturer’s conveyed where information to be silence perform job machine would possession party). already of other evidence of purchased. it was As duty speak A in situations where arises reliance, Gary deposition in his Funk stated equal parties do not deal on terms or he had received bid from another conveyed is not where information to be Lockwood, dealer, approximately that was already possession party. of the other $50,000.00 $20,000.00 expensive less Maestas, P.2d 108 Idaho Jones Irrigation Notwith- the Funk bid. than (Ct.App.1985); also Sorenson v. see bid, supports standing the record lower Adams, (1977) accepted & M Farms inference that G an (silence prospec where a in circumstances Irrigation’s it had bid because been purchaser might led to harmful tive representatives that by Lindsay assured “representation”). a form conclusion is three-quarter system mile would linear work, Lockwood not make whereas would agree- indemnity In the instant case the guarantee. similar record Lind- ments in the demonstrate that say II machine knew that Generation facts A of the con- liberal construction designed record, M not drawing ordered G & Farms was all in the rea- tained length re- three-quarter mile M favor of G & inferences sonable indemnity The quired by non-moving party, & Farms. demon- G Farms as the Lindsay genuine that issues of agreements also indicate the existence strates grant- three-quarter II Generation fact sufficient withstand knew that the material op- Lindsay’s fail- system summary judgment. irrigation possessed mile certain not cause that the machine was might ure to disclose erational characteristics length required and it designed for the or down under nor- it to malfunction shut operational characteristics which Knowledge possessed operating mal conditions. had not been corrected and which would disagree. Although We likely down, cause machine to shut are general regards talk,” rule with to “trade latent defects and material to a decision to talk,” “puffing,” “dealer’s and “seller’s purchase Clearly, true, the machine. if talk,” is that such statements do not duty had a divulge this informa amount misrepresentation, to actionable prior tion to G & M entering Farms to it this rule is applicable not where parties into a agreement pur contractual for the to the transaction do not equal stand on Enters, chase of such machine. Tusch footing equal or have knowing means of Coffin, (1987); 113 Idaho 740 P.2d 1022 Jukich, the truth. Weitzel v. 73 Idaho Bechtel, see also Bethlahmy v. (1952). 251 P.2d 542 represented O’Cilka The indemnity to G & M Farms that there were thousands agreements in the record demonstrate of the machines in being use like the one Lindsay’s knowledge of those latent de However, sold them. appears it Hence, fects. there exist issues of our review of the record that there were preclude material facts which granting of only twenty-five thirty, or if it was Genera summary judgment on the intentional mis tion II being machines that were referred representation against claim Lindsay Man to, or as irrigation few as four systems if DeKalb, ufacturing and Inc. applied the reference three-quarter to the mile machine. There is a substantial dif Representation That There Were ference representation between a “Thousands of These Machines thousands of these machines exist versus Around.” reality of somewhere between four and August, 1984 when in O’Cilka thirty systems of the in operation. Such a spected farm, clearly record reveals statement, purposes summary judg represented that he Gary Funk that proceedings, ment does not constitute mere there were “thousands of these machines puffing sales talk or may give rise to Gary around.” depo testified in his damages. an award representation sition that he understood this to mean lin thousands these machines exist and, ear being machines assured O’Cilka may also have been taken as an indication many there were of these machines in quality reliability machine’s operative, use and made him comfortable which is material to pur the decision to purchasing about Lindsay system. $450,000.00 irrigation system. chase However, only after the Based on our review of the entire record installed experiencing substantial me conclude, and the facts this case we chanical failures did Funk learn that there summary judgment purposes, that rep only were twenty-five thirty linear ma resentation “there are thousands of these operation chines in five three- puffing machines around” is not mere machines, quarter including mile the one sales talk be the basis for a claim installed on property. G & M Farms’ misrepresentation. for intentional order, its memorandum decision and governing The well-established standards the trial court held that M Farms G & had require motions for presented establishing evidence that all reasonable inferences drawn from representation that there were “thou- the statements be construed favor of the sands of these machines around” was false Enters, nonmoving party. Tusch speaker and that the falsity. knew of its Cof (1987); fin, addition, 740 P.2d 1022 the trial court held that Durtschi, Doe v. Idaho evidence did not establish that this state- (1986); Lanes, to, Bowling Meridian ment was material M that G & Farms Ass’n, Inc., upon Inc. v. Meridian Athlete had relied the truth of this statement (1983). Thus, deciding purchase Lindsay system. to nonmoving The trial court when construed in favor of the stated that the statement simply “puffing” party reasonably can best be viewed as we infer that O’Cilka’s “sales talk” and therefore not actionable. statement referred to the Generation II coun- there were dealer period of time Irrigation System. In con- this Move Lateral of which was rep- meetings, the focus cil other statements with the junction machine, Lindsay defendants, apprising II we by the Generation made resentations partic- problems with this are thou- extensive field “there the statement hold that system. a irrigation around” creates machines ular of these sands MG & supports fact and issue of that Gary deposition in his Funk testified misrepresenta- of intentional Farms’ claim and visit- personally traveled to Arizona he entry of sum- sufficient to withstand tion he that Clayton’s farm. Funk stated ed mary judgment. Clay- working a on with foreman talked ma- who told him about the ton’s farm System That The Representation and the many mechanical failures chine’s And That A “Great Success” Was keeping the they problems encountered Complaints." Been “No There Have systems running. also tes- irrigation that Lind M Farms contends G & irrigation sys- an that he talked with tified falsity repre of this say was aware of in Arizona commented that dealer who tem complaints of other due to sentation was somewhat Clayton installation M Farms dealers. G & purchasers and experimental to see how an situation II maintains that the Generation further tes- perform. Funk II’s would Generation ma experimental linear machine was an spoke that he deposition in his tified chine, technology, and that proven not irrigation system other Arizona several M obligation to inform G & Lindsay had an they experi- him had who told that dealers support prior to the sale. Farms of problems with the Genera- numerous enced claim, heavily G M Farms relies of its & II another Arizona system, tion and that experienced with the Gen problems similar Lindsay Genera- told him that his farmer by system II an Arizona farmer eration adequately I had worked but tion However, Clayton. Raymond named significant prob- experienced had that he single that instance of trial court held “a II linear machine. lems with the Generation irrigation systems with linear problems deposition he in his that Funk also testified in ultimately resolved and which were Lindsay past president of the spoke with provide problems not volved different does him of a former who told Dealers Council showing Lindsay repre basis quit he because employee of DeKalb who representations that their sentatives knew he farming equipment sell be- not would false, particularly when such knowl were work. Funk testified lieved not would edge by clear and convinc must shown Hennesy the Genera- by he was told claim, As for its G support evidence.” just as had II machines California tion & Farms cites deposition M to statements experienced by G many as those problems Jr., Hennesy, Lindsay by made Pat manu Lindsay should have and that & Farms representative, concerning facturer’s thoroughly its machine more researched systems II irrigation nine sold Generation Funk, According to marketing it. before Clayton. Hennesy testified Arizona Hennesy also told him Clayton originally had contracted problems keep the with the Gen- trying to but, purchase Generation I machines quiet there was interest II because eration Lindsay’s urging, Clayton agreed result of from consumers South in the machines II machines. Henne accept Generation Australia. Africa and deposition the nine sy states testimony foregoing deposition mid-1983, Clayton in were machines sold to demonstrate the extensive trou is cited to systems sold and the first Generation II irrigation II history of the Generation bled numerous following installation there were contained in record. system which was so the machines which were problems with regard Funk with The statements require repair and mainte severe as him various individuals told to what was at all times order personnel nance site hearsay and Hennesy employed by defendants is running. keep the machines falsity prove the during inadmissable to therefore deposition that also testified in his of the statements that irrigation sys- light most favorable to plaintiffs, we “great tems were a success” with “no com- genuine hold that issues of material fact plaints”. However, Pat Hennesy, Jr.’s exist as to whether the defendants knew regarding statements the Generation II representations their regarding irriga- machines Clayton’s installed on farm are tion were false. admissible evidence. Based on the evi- known, problems dence of extensive set Summary B. Judgment Should Not record, disagree forth in the we with the Have Been Granted On Intentional single court’s conclusion that “a in- Misrepresen ta tion problems stance of irrigation with linear Although the standard for summa systems Clayton’s on [machines farm] ry judgment previously discussed which were ultimately resolved in- I, Part presented issues in this action problems volved different provide does not warrant further If showing a basis for discussion. uncontro Lindsay repre- verted facts exist which representations sentatives knew their lead to a definite were disposition law, false.” as a matter of is appropriate. Kline v. Clin At the equipment time the Generation II ton, 116, (1982); 103 Idaho 645 P.2d 350 farm, Clayton’s installed on Arizona Sales, Inc., v. Smith Boise Kenworth the record irrigation indicates that his nine 63, (1981). 625 P.2d 417 Controvert systems were the II ma- Generation ed facts are party viewed favor of the chines existence. Thus is axiomatic resisting the motion summary judg that G & M Farms heavily relies on the Enters, ment. Coffin, Tusch 113 Idaho problems experienced by Clayton to demon- 37, (1987); Durtschi, 740 P.2d 1022 Doe v. Lindsay’s knowledge strate of the mechani- 466, (1986). 110 Idaho 716 P.2d 1238 It is cal failures associated with Generation II non-moving well established that the party Although machines. the mechanical fail- every is entitled to the benefit reason experienced by Clayton ures were not iden- able inference that can be drawn from the Farms, tical experienced by to those MG & evidentiary facts. Ethington, Anderson v. problems sufficiently encountered were 658, (1982); 103 Idaho 651 P.2d 923 Kline equally similar and as severe. Like MG & Clinton, 103 Idaho Farms, Clayton’s problems were so severe (1982); Choules, Taylor v. 102 Idaho require repair personnel as to on the farm (1981). P.2d 1056 “The burden of the just keep at all times oper- the machines when faced a motion for sum ating. The record before us leads to the mary judgment, is persuade not to inference that Lindsay was aware of these judge that an issue will be decided problems mechanical since it was often Rather, simply favor at trial. he must Lindsay’s personnel making repairs present sufficient materials to show that Clayton’s machinery. Furthermore, Lind- there is Cryovac, a triable issue.” Earl v. say operational was aware problems Grace, a Div. W.R. 115 Idaho as a result of the meetings dealer council (Ct.App.1989), 772 P.2d cit provided input from various manu- Moore, Wicker, Taggart 6 J. W. & J. representatives facturer’s concerning the 56.11(3), pp. Moore’s Federal Practice problematic performance § of the Generation (2d 1988) (emphasis original). 56-243 ed. II machines. fact that mechanical “A triable issue exists whenever reason problems Clayton’s machines were ulti- disagree able minds could as to the materi mately repaired is irrelevant. What is rele- vant, however, al facts or the inferences to be drawn from Lindsay’s knowledge pri- to, E.g., those facts. of, Cryovac, Earl v. a Div. and at the time the G & Farms Grace, 115 Idaho 772 P.2d problems transaction that W.R. existed and until (Ct.App.1989); they repaired, irrigation system 725 Petricevich v. Salmon were Co., River going properly machine was not to work Canal risking Summary judgment improp and as a result G & M Farms was crop damage. Viewing erly granted in a where issue of this evidence

525 by and convinc- its clear v. lish fraud claims fact unresolved. Kline material remains (citation omitted), P.2d 350 Clinton, Idaho evidence Choules, Idaho (1982); Taylor v. summary proof of this elevated standard (1981). record con- If the 628 P.2d 1056 ruling must taken into account be reasonable conflicting inferences or tains mo- summary judgment defendant’s the conclusions, a might different minds reach must be wheth- inquiry The court’s tion. be denied. Kline summary judgment must the discloses evidence such er record Clinton, P.2d 350 103 Idaho v. convincing jury applying a the clear (1982); v. Ins. Co. Farmer’s of find the reasonably could for standard Brown, 380, 544 P.2d 1150 97 Idaho plaintiff. and the A review the entire record of Liberty Lobby, the Unit In Anderson sup- presented the trial court evidence to Supreme held in a def States Court ed II ports an inference Generation involving figure a public amation case was, irrigation system the move as lateral official in actual malice must public which appellant argues, prototype prov- and not convincing clear and proved, be the to Accordingly, proven if technology. en ac proof should taken into standard of be true, duty had to disclose prior judgment to it mo ruling summary information to G & M Farms count Furthermore, purchasing system. adopted We that standard Weim tions. duty had disclose the Lindsay clearly to Rankin, 117 Idaho er irrigation system installed on fact that the (1990), also a defamation case. which was property designed was not G & M Farms’ However, although this elevated standard three-quarter length. for mile In con- eases, applies in the context of defamation in the record most struing the evidence necessary not in fraud or intentional it is Farms, giving to & M it favorable G misrepresentation actions that the clear of all favorable inferences benefit convincing proof required of standard therefrom, there is be drawn as the stan at trial be taken into account ample summary judgment pur- evidence summary ruling on a motion dard poses support prima each element of the judgment. necessary theory in- facie case misrepresentation. In our view tentional Clinton, In Kline v. record, reasonable minds could easi- (1982), required to this Court was ly regarding differ these factual issues. granting partial review We conclude that issues materi- dealing in a case with an oral regarding al exist & M Farms’ fact G claim agreement. of written modification Lindsay Manufacturing and DeKalb granted the defendant’s summa- court trial Agresearch in- failed disclose material judgment motion on the basis that ry regarding formation II lat- Generation clear and were unable show plaintiffs irrigation system prior eral move of the oral convincing evidence terms system by purchase G & M Farms. reversed the trial court’s agreement. We grant We reverse the court’s sum- held, decision and against mary judgment the defendants modification proof of an oral While Lindsay Manufacturing Agre- and DeKalb is the evidence clear and issue and remand for trial. search on this proof the tri- appropriate burden case, court relied In the instant the trial matter, summary judg- at the al of a Liberty Lobby, on the case of Anderson v. stage the function of trial court ment Inc., 106 S.Ct. U.S. weigh try or to is not the evidence granted when L.Ed.2d by whatever standard is factual issues defendant’s motion for merely to the but appropriate misrepresentation claim. on the intentional stated, there exists whether determine Specifically, the trial court any genuine issue material motion, reviewing the defendant’s fact entire record. adduced plaintiff must estab- court notes that the 526 121, (1988); at 103 Idaho 645

Id. P.2d at 355. Magic Valley Regional Dekker v. added.) (Emphasis Center, 332, Medical 115 Idaho (1988); Beeks, 1213 Badell v. 115 Idaho 789, Cooley, In Collord v. 92 Idaho 451 101, (1988),requires affirming 765 P.2d 126 (1969), P.2d 535 the defendants’ motion for entry partial summary judgment. summary judgment granted. ap- On disagree. peal respondents argued principle We established in summary judgment properly granted progeny simply because Celotex and its establishes plaintiffs had failed to come forward language requires entry of Rule 56 convincing with clear and evidence to es- summary judgment adequate after time tablish the existence of a contract to make discovery against party who fails to Referring respondent’s position, a will. make a showing sufficient to establish stated, “[tjhis argument, the Court how- existence of an element essential to that ever, summary misconstrues the role of a party’s case and in party which that will judgment. upon party The burden is proof bear the burden of at trial. Celotex moving summary judgment re- Catrett, —the 321-25, v. 477 U.S. at 106 S.Ct. spondents here—to there establish that is 2552-53, 91 L.Ed.2d at 272-75. also See genuine (Quot- no issue of material fact. Freeman, 720-21, v. Olsen 117 Idaho at Practice, ing from 6 Moore’s Federal 1299-300, Beeks, 791 P.2d at and Badell v. 56.15[3], (2d 1966), pp. 2335-2336 ed. § 102, 115 Idaho at 765 P.2d at 127. stated, then Court construing the evidence the record most The courts hold the movant to a strict Farms, favorably to giving G & satisfy standard. To his burden mov- the benefit of all favorable inferences showing quite ant must make a that is therefrom, be drawn there is is, clear what the truth and that excludes support evidence to each element of the any real doubt as to the existence of prima necessary theory facie case for the genuine issue of material fact. misrepresentation. of intentional 795, 92 Idaho at 451 P.2d at 541. We therefore conclude that is- In the instant when considered in regarding sues of material fact exist G & light applicable of the traditional standards M Farms’ claim that Manufactur- summary judgment, the record contains Agresearch, Lindsay’s and DeKalb as upon controverted facts which reasonable parent company, failed to disclose material might minds reach different conclusions. regarding information the Generation II A review of the entire record and the evi- irrigation system prior lateral move to the presented light dence to the trial court in purchase system by M Farms. G & support that standard could a conclusion Accordingly, we reverse the irriga- that the Generation II lateral move granted against defendants Lind- was, appellant argues, tion Manufacturing Agre- say and DeKalb prototype proven technology and not search on this issue and remand for trial. designed three-quarter not mile length proven or terrain. If true at be application Although we hold that of the trial, duty Lindsay had a to disclose this evidence standard is clear prior information to G & M Farms to it required in these purchasing system. proceedings, and continue to adhere to the standards, Rule it must traditional

Respondents urge application must still kept mind that the principles by the first established United Catrett, allegations prove the claims and of fraud Supreme States Court Celotex v. misrepresentation at trial and intentional 2548, 7 U.S. 106 S.Ct. 47 convincing evidence. Tusch by clear and adopted and thereafter L.Ed.2d 265 Enters, 37, 740 Coffin, 113 Idaho P.2d v. Freeman this Court Olsen v. J.A. (1987); Greenwood, 101 Idaho Co., (1990); 1022 Faw v. 117 Idaho 791 P.2d 1285 (1980); King, P.2d 1338 Smith Sparks Regional Medical St. Luke’s (1979); Ltd., Center, P.2d 768 100 Idaho Gneit 115 Idaho 28-2-315. particular purpose under I.C. P.2d Clement, § ing v. Code, such, As the Uniform Commercial v. Inter and this Court’s decision Clark Harvester, national III. liability (1978), precludes products Negligent Dismissal of circum sounding in under these action tort Misrepresentation injury personal is no where there stances Claim Therefore, alleged. damage property or MG & sixth cause of action its court’s affirm the trial dismissal we Manufacturing alleges Lindsay misrepresentation Farms claim. negligent Inc., Co., Agresearch, and/or DeKalb misrepresented that

Irrigation negligently IY. three-quarter mile wide II the Generation possessed capacity Conclusion irrigation system general ability to meet the operational record on our review of the entire Based G & needs of G & M Farms. specific us, in this construing facts before knew M asserts that defendants Farms Farms, we favorably to G & M case most particular known that this should have or partial summary en- judgments reverse the requisite capacity and system lacked the Manufacturing tered in favor ability not meet operational and could Inc., to the Agresearch, as and DeKalb of & M Farms. reasonable needs G misrepresentation. claim for intentional Harvester, 99 summary judgment v. International partial Clark We affirm (1978), this Court Lindsay Manufacturing, DeKalb in favor of purely economic loss Irrigation held in actions on the Agresearch and Funk tangible personal arising the sale of misrepresentation negligent claim. property, the Uniform Commercial pro- for further is remanded case rights “adequately Code define[s] opinion. ceedings with this We consistent judicial in such cases and the parties Costs attorney appeal. fees on award no expansion negligence pure- to cover law appellant. ly losses would add more economic already plagued an confusion in area McDEVITT, JJ., JOHNSON re- conflicting overlapping and theories concur. covery.” 99 Idaho at 581 P.2d at 794. This held in Clark that unless there Court Justice, BAKES, concurring Chief injury persons property specially: product, of a result of the malfunction opinion majority all of the I concur with justifiable expand- reason for there was no small, important, part of fairly but except a purely to cover loss- tort law economic dealing analysis of review the standard es, since such losses are recoverable under convincing plaintiff’s with the clear Commercial Uniform Code. in this case it proof. Since burden you apply whether case, no difference instant G M Farm's makes

In the & alleg evidence standard negligent misrepresentation clear and claim for judgment proceedings summary these negligently es defendants failed to of the evidence stan- preponderance irrigation system was not disclose that the dard, moot. When probably specific M the issue needs. G & designed for its favorably most to- is viewed the evidence alleges Farms it suffered economic Farms, party opposing A ward G & M crop yield. form of loss in the reduced standard judgment, under either pleadings contained in the review judg- moving entitled to party Farms did not “the [not] record confirms that G & M 56(c), law,” I.R.C.P. matter of remedy for ment as a allege property damage. The remanded case must be damages therefore this falls purely claim for economic Accordingly, I concur for a for a trial. implied warranty of fitness within the However, following viewing the evi- opinion with the reserva- Court’s favorably plaintiff tion. dence most to the G & Farms, applying the clear and and even or not the As to the issue of whether standard, convincing evidence this record evaluate the evidence on trial court should M Farms’ shows that G & summary judgment by the same standard verdict, a directed evidence would survive plaintiff G & M Farms must which the improper and therefore it was for the trial trial, prove at it seems clear under Rule grant summary judgment. Ac- court to 56(c) prior and from our decision Weim cordingly, majority opinion. I concur in the Rankin, er v. should evaluate that the trial court BISTLINE, Justice, concurring part the evidence dissenting part. in which he must evaluate the same standard ruling at trial in on a motion for evidence majority’s to the characterization of As plaintiff verdict. If at trial must directed damages, my crop damage as economic prove by convincing clear and evi its case or vote is to concur but not with conviction ease, dence, in the trial as it must this then by way giving rather enthusiasm —but ruling summary in a motion for court forewarning that future cases involv- some by judgment should evaluate the evidence philosophy urging find that will me Admittedly, the evi the same standard. away denying damage Court to back favorably to dence must be viewed most awards in cases such as this—where recov- conflicting non-moving party, and all very are often the erable economic losses must be resolved evidence and inferences major plaintiff’s total loss. As items a non-moving party. in favor of the How issue, I summary judgment concur to the ever, that is done and when the evi when by the result but am somewhat troubled dence, way, that still demonstrates viewed has written. some of what been verdict would have to be that a directed concurring opinion, spe- specially In his granted against party a at trial because he cifically paragraph, Chief Jus- the second by his case clear and has not established relative today tice Bakes advances his view (if kind of a convincing evidence it is the proceedings that summary judgment convincing requires clear and case which prove by its ease at trial must “[i]f evidence) ought to judgment then evidence, it must in clear and Rankin, supra. granted. Weimer v. case, ruling on a then the trial court Clinton, 103 Idaho Our decision Kline v. for should eval- motion not, 116, (1982), my 645 350 does by the same standard.” uate the evidence view, holding of the hold otherwise. The statement, added.) add (Emphasis To that that, summa in Kline was Court “[A]t just made a few months on this statement the trial ry judgment stage the function of earlier: weigh try is not to the evidence court there is issue for trial unless ‘There is no by issues whatever standard is the factual favoring the non-mov sufficient evidence merely to to the but appropriate jury return a verdict ing party for a exists or not there determine whether Liberty party.’ Anderson as adduced genuine issue of material fact 242, 249-50, Inc., 106 477 Lobby, U.S. 121, 103 at from the entire record.” 2511, 202, 2505, 209 91 L.Ed.2d S.Ct. added). If (emphasis at 355 there 645 P.2d if the facts are disputes, are no factual Steer, Nelson, A.I.A. v. R.G. viewing the facts disputed but nevertheless (1990) (Bakes, C.J. favorably non-moving party the most to the Question: majority). Put writing for the plain record still demonstrates that what together and those two statements is insufficient to survive tiff’s evidence plaintiffs Most Answer: you do have? verdict, standard of Rule directed then the summary judg- out court turned 56(c) moving party has been met and “the proceedings because ment as a matter of is entitled to a failure convincing evidence. display clear and law.” suggest Accordingly, attempt now is the time to In an further avoid confusion day applicability far does regarding it is better Anderson Inc., Liberty two become Lobby, arrive when the statements 477 U.S. 106 S.Ct. inexorably with each other. discus intertwined L.Ed.2d short opinion sion of in order. is Anderson was taken v. Steer that Note Nelson by justice was described one unconvinced may be seen as Bakes inadvertent “Justice like a “opinion as an sounds much [which] ly inflicting great injustice Hebener [a by has cooking treatise someone who about along by defendant the suit with Steer] never has no cooked before and intention Liberty Lobby, his misuse Anderson v. Anderson, starting now.” U.S. Inc., proposition for the that: no ‘[T]here (Rehnquist, dissenting). J. S.Ct. at unless issue there sufficient Indeed, validity questioned Anderson’s party favoring non-moving evidence ” by at the of its dissent time issuance two jury party.’ verdict to return a for that ing opinions, one authored Rehn Justice Nelson, 118 Idaho at P.2d at quist other by and the Justice Brennan.2 (citation (Bistline, dissenting) omitted). J. conclusion, Both dissents same reached the establish misuse To of Anderson Rehnquist but different routes. Justice only necessary part to set out of Jus Justice, writing himself and the Chief in opinion tice Johnson’s v. Ran Wiemer declared that decision to Court’s “[t]he kin, (1990), engraft proof applicable the standard of pointed which was done. out Wiemer governing to a onto the law fact finder clearly concisely that the standard of procedural summary motion for proof applicable summary judg made to a (a judgment always motion that has been proceeding ment in a case defamation regarded raising of question as a law rath evidence, but, convincing clear and as fact), question er than a omit of [citation issue, single namely to the element of ted], great will do with little mischief actual malice. Anderson, 477 corresponding benefit.” Concerned that Chief Justice Bakes 272, 106 (Rehnquist, U.S. at at 2522 J. S.Ct. might day one convert his views into a added). dissenting) (emphasis holding, caveat was ventured that cursory On examination of Anderson’s reconsiders, Justice Bakes he will “[u]nless designed by Byron “new rule” Justice setting precedent be as a new standard summary proceedings judgment White for which trial will be obliged apply courts to glance, it is seen at a to Justice White’s summary judgment proceedings, in all as- credit, clearly it was limited to one suming garners a majority, he which category controversy of cases invariably.” Nelson, he does almost —defamation public figures public or which involve offi- particu- Idaho at P.2d at This 129. paragraph cials. The second of Justice presents opportunity lar occasion of majority opinion White’s could not be more stating that one time at this Court was explicit: issuing perilously opinion to close an mak- question ing Judge presents the same mistake which Winmill case This wheth- made, namely clear-and-convincing-evidence er re- applying here of judgment proceedings quirement must be considered a court summary judg- ruling ruling Anderson standard for mo- on a motion for ment Rule of the Rules summary judgment, though tion for even under Federal involving no of Procedure in a case to which New there be issue whatsoever Civil applies. York Times element actual malice. deeply entering great philo- about waters Given the difference worried uncharted

2. between Moreover, sophies scholarly justices, below. where hidden shoals lurk these two Burger fully given up that Chief Justice concurred fact both have their valuable time is, be, writing seeking Rehnquist’s separate dissenting opinions Justice dissent should minds, raising flag justices recklessly the red most to dissuade their fellow charting from course, proceed- signals caution a the need extreme doubtful it would seem that reasoning any further. members of this Court would be Anderson, at 106 S.Ct. trial on Credibility 477 U.S. affidavits. determina- aware, tions, evidence, As all be the case of the weighing should Sullivan, drawing legitimate New York Times Co. U.S. inferences functions, 11 L.Ed.2d 686 S.Ct. jury facts are not public public required figure that all ruling judge, those a whether he is plaintiffs pursuing official defamation suits a motion or for a clear and evi show at trial directed The verdict. evidence of the proof dence actual malice. believed, jus- non-movant is to be and all that: rule opinion two general. states the successive The rule as rule paragraphs as applied applied and the Court’s states 398 U.S. favor. Adickes 1608-09 tifiable inferences are to [26 ^[144] L.Ed.2d 142 158-59, [v. S.H. 90 S.Ct. Kress & (1976)]. drawn ^[1598] Co.], Nei- suggest ther do we courts determining if a When factual than should act other with caution in as malice in a issue to actual exists libel granting summary or that the brought by public figure, suit a trial deny summary judg- trial court quan- in mind judge must bear the actual ment case where there is reason proof necessary quality tum believe that the better course would be support liability under New York Times____ proceed Kennedy full trial. Co., 68 S.Ct. Silas Mason U.S. rule general similar but much L.Ed. in scope, broader and is followed immedi- sum, we conclude that the determi- ately by rule another statement of the given dispute nation of whether factual narrowly applied to the case: requires jury to a must be submission Thus, in ruling on a motion for summa- guided evidentiary by the substantive ry judgment, judge the must view the apply standards that to the ease. This is presented through prism evidence the of true at the verdict both directed evidentiary the substantive burden. This summary stages. Consequent- judgment by conclusion is mandated the nature of ly, York ‘clear where the New Times question this The here determination. is requirement convincing’ applies, evidence jury reasonably a could find ei- whether judgment the trial in- judge’s summary proved by that plaintiff ther the his case quiry as a issue ex- to whether quality quantity re- the of evidence present- the ists will be whether evidence quired by governing the or that he law jury applying ed is such that a that evi- jury not. reason- did Whether could reasonably dentiary could find standard however, ably party, find can- for either plaintiff for either the or the defendant. gov- except by not be criteria defined the Thus, dispute factual where the concerns erning what evidence would enable the malice, clearly actual a material issue in jury plaintiff to for either the or the find case, appropri- the New Times the York say no to defendant: It makes sense that will summary judgment question ate jury reasonably for either could find in evidence the record could whether the party without some benchmark as to finding support jury a reasonable either govern what standards its deliberations the has actual malice that shown and within what boundaries its ultimate convincing evidence or that by clear and fall, and decision must these standards plaintiff has not. by in provided and boundaries are fact 254-55, applicable evidentiary Anderson, standards. at 106 S.Ct. at 477 U.S. omitted). (footnote question The 2513-14 holding Our that clear-and-convinc- extent, any, us what if should is to proof taken before ing standard of should be applied ratio decidendi be the Anderson ruling summary judg- in into account (borrowing civil case a run-of-the-mill denigrate ment does not the role motions White3), which language of Justice by It no authorizes jury. of means inquiry involved in a "Progressing specific we are convinced that in this issue summary judgment changes ruling trial court for its in the kind. It comes before the regardless procedure litigants, of summary judgment proceedings a state for all underlying than a Otherwise rather court. the substantive nature of federal stated, required by High litigation. is this Court pronouncement Court’s Anderson ap- [TJoday’s by its ... decision terms plaintiff the of force off onto a burden motions, plies to all summary resisting judgment motion re- irrespective proof burden producing evidence would meet the suit. quired subject matter of the convincing clarity such being burden of Anderson, 257-58 n. 477 U.S. at jury would find reasonable (em- (Brennan, dissenting) J. S.Ct. As against opposing party? Justice added). phasis original explained: Brennan could under- Justice Brennan While not, course, holding The Court’s why Rehnquist included stand Justice application to First confined its dissent, court state Calder Jones Although case Amendment cases. this surely judges appellate justices trial [i.e., arises in the context of Anderson \ they re- with relief that were not read litigation involving press, libel and the law, quired, a matter constitutional holding ruling ‘in the Court’s holding in as man- consider the Anderson summary judgment, judge motion datorily prescribed in defamation suits all presented must view the evidence necessarily implicate First through the prism of the substantive evi- Burger Amendment. With Chief Justice dentiary burden.’ 106 at 2513. Ac- S.Ct. it, joining Rehnquist begins dissent I cordingly, simply do not understand observation: REHNQUIST, dissenting, why Justice Court, apparently The con- moved appropriate cite feels Calder tidiness, mistakenly cerns for intellectual Jones, U.S. 104 S.Ct. decides the ‘clear and L.Ed.2d 804 and to remind the governing standard finders consistently evidence’ Court we have refused applied by special procedural protections fact libel cases must be to extend deciding a motion for in libel and courts defendants defamation today nothing in such a case.4 suits. Court does opposing ruling presented on a for or in the motion insuf- affidavits of necessarily implicates quality for a directed verdict the to allow a rational caliber ficient finder of fact evidentiary proof that substantive standard to clear find actual malice apply Ante, would at the trial on the merits. If the 106 S.Ct. at evidence.’ defendant in civil case moves added). (emphasis run-of-the-mill summary judgment for a directed verdict for inquiry whether evidence ... '[T]he [is] fact, proof based on the lack of of a material require presents disagreement a sufficient judge thinks must ask himself not whether he jury one- to a or whether it is so submission unmistakably the evidence one side or the favors party prevail a matter sided that one must jury re- other but whether could fair-minded Ante, (emphasis law.’ 106 S.Ct. at 2512 plaintiff turn a verdict on 252, evidence added). Anderson, presented." id. at at S.Ct. judge must ask himself whether a '[T]he ... added). (emphasis jury for the fair-minded could return verdict plaintiff presented. mere on the evidence did not to observe in his Justice Brennan fail support existence of a scintilla of evidence in opinion although opinion is "[t]he Court’s insufficient; position plaintiffs will be replete boilerplate language to the effect jury evidence on which the there must be weigh not to evidence when that trial courts are reasonably plaintiff.’ find for the Ibid. could deciding summary judgment motions ... 265-66, Anderson, at U.S. 106 S.Ct. at 2519 language opinion which is also full of Court’s (Brennan, (emphasis origi- dissenting) in J. surely understood as an invitation —if could be nal). not an instruction —to courts assess credit, Brennan, ever-lasting weigh juror Justice to his evidence much as a would: us, made our memories never fail determining genuine if a factual issue ‘When pile out of mincemeat of the Court’s ..., such judge bear mind exists a trial must in ... decidendi, that one can wonder at ration quantity proof quantum the actual jus- displayed by perspicuity necessary liability____ the lack of support exam- For opinion. joined White's It ple, genuine tices who Justice there is issue the evidence no if vincing or that the has to this as a ‘substantive evidence The Court refers standard,’ actually a grounds but I think it is not.” On Anderson requirement engrafted onto procedural procedure,” was “a case about federal 56, contrary our statement in Rule elected to continue its the court instead Jones, 465 U.S. S.Ct. v. Calder for denial of motions for own standard L.Ed.2d 804 summary judgment that “a issue in already declined other litigated.” have exists to of material fact [w]e special procedural grant contexts to reasoning on the The court’s was based in libel and protections to defendants standard re- belief Anderson actions in addition to the defamation weighing by the quires a of the evidence in protections constitutional embodied judge, a function which intrudes into the 790-91, Id., at the substantive laws. jury. province of the 104 S.Ct. at 1487-88. Note, Review, 6 Alaska L.Rev. The Year 268-69, Anderson, 106 S.Ct. at 477 U.S. (footnotes omitted). (1989) also See (footnote dissenting) (Rehnquist, J. 2520-21 (Ala. Caldwell, 543 So.2d 686 Berner v. added). free to follow This Court was 1989) rejecting the Anderson (expressly it be. No federal or to leave Anderson standard). required mandate Court constitutional far, has this Court’s use of Anderson So court) (or engraft any other state limited, of the very probably because been its defamation case holding onto Anderson arise in paucity of defamation cases which law, nothing required us to con- at all appear in the def Idaho. Anderson does just like federal our Rule 56 strue Rankin, 117 Ida amation Wiemer Rules of interpretation of the Federal Civil Justice John ho Procedure. opinion authoring son in Court have It is of interest two states holding adopted only the narrow disregard Anderson. already decided to Anderson, prefacing quote from Consider, example, this discussion words: “The Su Anderson with these Supreme Alaska Court decided what the preme has announced the standard Court put it aside: do with Anderson — ruling a motion for applied to be fully more The malice standard was summary judgment in a defamation case decision, discussed an earlier Moffat[t] proved.” actual malice must be (Alaska 1988)], Brown P.2d 939 [751 Wiemer, 790 P.2d at 355. 117 Idaho at requi- reaffirmed the in which the court trouble was ex- though Even some small malice finding for a site mental state authority cited perienced with Wiem- disregard reckless suf- actions as libel principle that def- support er permit the inference that ficient to spe- accorded some defendants are amation seri- “subjectively entertained defendant proof of def- the idea that protections, cial his state- as to the truth of ous doubts certain strikes sure and amation should be in importantly, perhaps, More ment.” important idea I is an close to what believe court declined to follow Moffat[t], the especially This is jurisprudence. in our standard Supreme Court’s United States plaintiffs are private figure true whenever cases, in summary judgment libel for because, v. Robert as Gertz involved Liberty Lob- in Anderson v. enunciated Inc., Welch, 94 S.Ct. 418 U.S. sup- Inc., the evidence of whether by, (1974) public fig- recognized, L.Ed.2d 789 plaintiff has finding “that ports a ready ac- have plaintiffs by definition con- ure by clear and actual malice shown Nelson, readily that all of the short- justices it is seen opinion. That three not a sound

was exposed comings and dis- of Anderson as register stinging obliged dissents to would feel dissenting opinions well J., are dissenting opinion in the joined cussed (Burger, fact, not, however, criticism made J.) In substantiated. suffice as Rehnquist, should extremely moderate. therein borders on rejecting opinion without reason for short, opinion be which should not just it is an thoroughly. Having In studying done beyond any import that which that, more allowed at the time of far more so than this time by federal rules. imposed federal courts Wiemer, is recently at the time and then more in dentiary refu- used the media as a forum whereat standard to be at cess to made, a making of libelous assertions can be a defendant’s summa- ruling tation its private open figures forum which is not judgment yet, Better Nelson ry motion. who have been defamed. quote part of did not from that Anderson My such a consideration. which commands in The next use of Anderson occurred opinion pointed my belief also Nelson Steer, Nelson, R. A.I.A. G. of Anderson inadver- misuse was not, (1990). P.2d 117 Nelson how- tent. ever, action. a defamation Notwithstand- inapplicability, an unen- Anderson’s reflecting history In of the evolu- on the upon wholly lightened majority seized worn, sum- of the well tried and true tion controversy as innocuous civil a vehicle standard, I am mary judgment reminded help along promotion heightened of a com- appropriately Brennan’s wise Justice litigants resisting for all motions burden ment: judgment. majority uti- view, my the Court’s result [in paragraph lized a full the stan- discuss product of an exercise Anderson is] reviewing summary judgment dard for game ‘telephone,’ akin to the child’s readily springboard motion—a obvious message repeated from one which likely goal to further a of fos- from which another; person to and then af- another tering whereby a new different rule time, message ter some little bears plaintiffs can ousted out court- spo- originally resemblance to what was they past before make it thresh- room pur- In the present ken. the Court old: ports summary judgment restate judge’s weigh It is function to test, original repetition, with each but evidence, ‘but to determine whether understanding increasingly distorted. trial____ there is a issue for 264-65, Anderson, at 106 S.Ct. U.S. [Tjhere is no issue for trial there unless (Brennan, dissenting). J. This Court favoring is sufficient evidence the non- being recognized Wiemer Anderson moving jury to party for a return a ver suits, applicable to defamation which party.’ dict for that v. Liber Anderson necessarily actual malice. This involved Inc., 249-50, Lobby, ty 477 U.S. purported- Court used Anderson Nelson 2505, 2511, S.Ct. 91 L.Ed.2d repeat again ly to the standard for summa- judgment Summary should be ry general, quote judgment but did not

granted if in opposition the evidence portions from the of- Anderson which merely the motion ‘is or ‘is not colorable’ understanding the common of that fend significantly probative.’ Id. day Hopefully, the never standard. shall Nelson, 118 Idaho at 797 P.2d at 118. when this uses as a come Court Anderson My dissent from on the part Nelson adopting improved it as cornerstone an just ground previously that this Court had preferred standard utilized Anderson for limited use sum- cases. for all mary only in suits defamation proved. actual must be malice I The issue as to which concur with res- fact, I commended the author of Wiemer adequate was not accorded atten- ervation having called Anderson to the attention majority. Primarily, tion the I am not That of the bench and bar. accolade damages al- persuaded crops are upon premised acknowledgement the damages that not re- ways economic are ap- proof of actual malice was an element in tort in Idaho. states coverable Other in- propriate for in cases use defamation hasty not been all that to so rule. have volving public plaintiffs. figure does the support a case from Texas While damages crops are an construction that good one aspect The of Nelson’s use loss and that tort theories are economic explicitly it did Anderson was that not require of a it evi- therefore available redress court that consider the 534 states have made a

wrong,5 courts other to discuss cases which have divided scholarly approach to that issue. question the of whether economic loss liability should be recoverable strict Consider, example: for any personal injury prop- tort or absent perform product prop- When a fails to erty damage. Although only the tort erly, buyer may the incur one or more of count, negligence count before was personal injury, kinds of harm: three re- Koplin purported deny court damage, The property or economic loss. covery pure for economicloss in kind ‘personal injury’ self-explanatory. term is Thus, of tort action. the court’s discus- Property damage injury consists of sion is dictum as it relates to strict liabil- plaintiff’s property other than to the ity misrepresentation. in tort and to

product itself. Economic loss consequential. either direct or Direct ec- facing The other Illinois case product onomic loss occurs when a dam- recovery purely economic issue of ages purpose or unfit for the itself appears loss a tort action to be gen- which it was sold. Such losses are District’s decision in Phar First Rhodes erally price product. limited to macol Co. v. Continental Can Co. Consequential economic loss consists of (1966), 362, Ill.App.2d 219 N.E.2d 726. injury product, an extrinsic to the such plaintiff in Rhodes was a marketer profits as lost or the loss of use cosmetics, drugs, beauty and hair Note, product. See Manufacturer’s products. sought recovery It for dam Liability Tort Strict to Consumers ages incurred aerosol cans man because Loss, 41 L.Rev. 401 Economic St. John’s ufactured the defendant had leaked. explanation, merely Without the court above, plaintiff’s As we observed stated that the case did not meet the complaint alleges only loss— economic application requirements for strict (direct loss) repairs cost of economic liability in tort doctrine. Since the (consequential product loss of use of the many did not discuss the Rhodes court loss). dismissing plain- economic question policy issues on each side of alleging liability tiff’s counts strict face, opinion per is not now we tort, misrepresentation, negligence, and suasive, compelled to and we do not feel specifically upon the the trial court relied follow it. Wanderer v. Car Plainfield N. Second District’s decision Alfred (1976), Corp. Ill.App.3d ton (1977), Koplin Chrysler Corp. & Co. v. N.E.2d 630. Ill.App.3d 7 Ill.Dec. plaintiff N.E.2d 100. In that products liability actions in which alleged negligent manufacture personal has suffered either warranty sought recovery breach injury property damage, courts have replac- expenses repairing for its generally recovery also allowed for eco conditioning units manufactured ing air (See generally nomic losses. Suvada [v. by the defendant. The court said (1965) 612, 210 32 Ill.2d White Motor Co. allegation solely economic plaintiff’s Main, 182]; Inc. v. N.E.2d South placed the case within the ‘narrow loss Ill.App.3d Fingers, Inc. Magic dividing theory tort range of situations * * * 605; Ill.Dec. 364 N.E.2d Ha theory. The line of from contract (8th Colonial, Inc. Cir. les v. Green physical harm and demarcation between 1974), 1015.) recovery deny To 490 F.2d in our view reflects the economic loss liability in under strict for economic loss theory tort line of demarcation between accompanying per there is no tort when (49 Ill.App.3d theory.’ and contract damage an injury property 113, 116-17, sonal N.E.2d 7 Ill.Dec. leading opposite 100, 103-04.) arbitrary distinction proceeded The court then loss). system, irrigation an economic Spencer, defective is Corp. 613 S.W.2d 5. See Lockwood v. damage, by (Tex.Civ.App.1981)(crop caused 369 535 Bergm v. agree the courts virtually indis- We cases that are results (1976), Corp. 87 had Motors In the instant General tinguishable. 584, 818, alleged a mere bushel P.2d ex plaintiff 555 State Wash.2d destroyed by Corp. rain water v. had been Production of corn rel. Seed Western crack, 262, through the tank leaking (1968), into 442 P.2d Campbell 250 Or. property have suffered 215, buyer’s then would suit in held that a recovery of damage to allow sufficient against a manufacturer negligence Likewise, if an individual economic loss. limited, negli- like other should be finger inspecting while had cut his action, only by the gence factors tank, he have suf- crack in the would foreseeability, proximate cause and allowing recovery personal injury fered has plaintiff the kind harm by types of harm. for all the court We note incurred. Co., Industries, Litton Mfg. Corp. v. National Tank Moorman Co. Berwind 189-91, 136, 186, 1, Cir.1976), applying Ill.App.3d (7th 47 Ill.Dec. 532 F.2d Inc. 1302, (1980). The Illi law, negli- 414 N.E.2d 1305-07 recovery Illinois allowed court, considering negligence, came personal nois absent either gent manufacture today’s majority, by the case cited across damage. The court injury property Harvester, 99 Ida v. International Clark however, not, the fact that did discuss 326, (1978): ho 581 P.2d recovery. not allow such some courts do liability growth right of the strict Rather, plaintiff’s With the it determined doctrine, negligence has left in tort been foresee- recovery by looking only to liability products to the backwaters proximate cause. ability and allow Traditionally, courts did not law. liability in analysis under strict Our loss recovery negligence for economic already pierced the veil tort has personal injury property es absent upon by distinction relied contract/tort damage. (Wyatt v. Motor Car Cadillac the same rea- Koplin. For the court 423, (1956), Cal.App.2d Division above, hold that the we sons enunciated 665; P.2d Trans Airlines Cur World can recover for eco- plaintiff in this case 1 Misc.2d tiss-Wright Corp. count. negligence its nomic loss under However, 284.) even 148 N.Y.S.2d Co., 47 Ill.Dec. at Mfg. Moorman leading proposition case for the Wyatt, a added). (emphasis It N.E.2d at 1311 manufacturer does not have a that a many are the members of believed that causing buyer economic duty to avoid would welcome an trial bench and bar who loss, by subsequent has been limited by and reconsideration updated discussion (1961), 55 cases. See Stewart v. Cox of the economic justices of this Court Cal.Rptr. Cal.2d by issues as treated Moorman. said a contractor wherein the court brings out similar con- A case from Iowa swimming pool was liable who built cerns: fact that the loss caused economic distinguishing that when We believe pool leaked. property dam- loss and between economic case of v. Interna In the recent Clark compensation the allow age which will (1978), 99 Idaho tional Harvester Co. kept must be for the distinction reason recov the court denied there emphasizes court mind. The farm negligence for a custom ery under between the a closer connection must be tractor, manu er’s lost income while tan- party and the defendant than injured defendant, being factured plaintiff losses. The gential economic the same ratio repaired. The court used property. This situation must own the such recov denying courts nale as have Innkeepers unlike that of Nebraska [v. liability in tort —the ery under strict Corp., Moines Pittsburgh-Des preemption of such cases. We UCC’s 1984) (Iowa where N.W.2d however, denying ] reject, that basis for only tenuously connected to are plaintiffs just as we negligence, under recovery action. Here the the cause of liability in tort. under strict did 536 having crop directly plaintiff and was dam- of one in an accident

owned The distinction aged crop large causing physical injury. his was not as because rests, rather, understanding of the Simply have been. on an as should because responsibility a manufac nature of the damage is measured terms of distributing his crop turer must undertake potential sale it had if appropriately held products. He can grown as it should does not automati- by de physical injuries liable for caused cally damage mean that the is econom- by requiring goods fects his to match Damages for loss of cattle would ic. in terms of safety standard of defined also be measured terms of the amount risks money they brought if conditions that create unreasonable would have See, slaughter. of harm. He cannot be held e.g., sold for Denman v. Co., products in performance 322 level his Armour Pharmaceutical 1370, (N.D.Miss.1970). business unless he F.Supp. 1373 We the consumer’s product designed agree agrees with the trial court that the dam- (empha demands’ age by crop suffered to his meet the consumer’s added). applies Seely rule property damage and not the indi- sis sought under a damage type damages whether the are purely rect economic of the (See negligence theory Innkeepers products and strict condemned in Nebraska Co., Laboratories, Inc., supra, 63 Cal.2d ly v. White Motor Wyk Van Norden [v. 18, 17, 145; (Iowa 1984) p. Cal.Rptr. at 403 N.W.2d ]. Corp., su see Hole v. Motors General Co., v. Harvester Manning International v. In pra; S.M. & Co. Smith Wilson 376, (Iowa Ct.App.1985) 381 N.W.2d 378-79 9th, tern., Inc., F.2d 1363 [CCA added). (emphasis 1978], supra; International Clark v. Finally, a York case also refers to New 332-336, 326, Co., Harvester Idaho case law: 784, supra). is now settled in New York The law v. Cayuga Harvester Allis-Chalmers plaintiffs crops if the and loss 606, 5, A.D.2d 465 N.Y.S.2d Corp., 95 resulting consequential damages omitted). (1983) (footnote These state- damages,’ plain therefrom are ‘economic provided to ments from other courts are (see tiff cannot recover Schiavone get- suggest should avoid that this Court Mayo Corp., 81 Elgood v. Constr. Co. in- ting caught up in technical distinctions 933, 221, 227, 439 N.Y.S.2d revd. A.D.2d underly- concerning with the stead of itself dissenting opn., for the reasons stated damaged party’s claim for ing basis of a Silverman, 667, J., N.Y. 56 N.Y.2d relief. 1322, supra; 436 N.E.2d Hole S.2d conclusion, an it is noted that on al- Corp., 83 A.D.2d Motors General exposed regular we are most basis 638; Dudley 442 N.Y.S.2d Constr. courts, decisions of the district written 368, 372-375, Co., 66 A.D.2d Mfg. Drott generality all are well written. Some as a 512). Appeals The Court N.Y.S.2d others, thorough Judge than are more on the ratio in its reversal Schiavone exemplifies here written decision Winmill’s dissenting opinion Ap nale of writing outstanding as to those which are 221, 227-234, (81 A.D.2d pellate Division to all of the ability detailed attention 933) reject necessarily has 439 N.Y.S.2d pointed out issues, in this as v. A & M contrary view Santor ed simple. Boyle, many and not are Justice Inc., 207 A.2d Karagheusian, N.J. majority as pages, Judge rule dis- twenty-five and embraced Winmill issues, Traynor Seely necessarily Justice stated Chief cusses all in the Co., a conflict 63 Cal.2d when confronted with v. White Motor rules evidence, always ‘The distinc with a bent toward Cal.Rptr. 403 P.2d 145: but which is available applying drawn between tort the law tion that the law has interest, Winmill, Judge applicable. war Of recovery physical injuries Boyle, demonstrated Justice loss is not does ranty recovery for economic case from the of the Anderson “luck” awareness not rest on the arbitrary and does WHEREAS, willing Lindsay is to sell the High Judge Winmill cites an Idaho Court. Corp., Sharp v. Idaho Inv. only upon to condition that same Funk 113, 121, as au- Lindsay harmless indemnify Funk and hold thority “this elevated standard of for may any damages that result from claim of regard, proof.” R. 457. In that there was above, from the and Sharp misreading Sharp of the case. WHEREAS, willing purchase to Funk trial, a requires only plaintiff’s that at Lindsay equipment, indemnifying said all nine of the burden is to establish essen- pursuant and conditions here- loss to terms by tial elements of fraud evidence which is of, convincing. clear and THEREFORE, in consideration of NOW A

ATTACHMENT equipment Lindsay agreeing to sell said to INDEMNITY AGREEMENT Funk and the further mutual covenants contained, agreements par- and herein Indemnity Agreement, THIS made and agree ties as follows: day August, entered this 22 into by and between LINDSAY MANUFAC- 1. make the Lindsay agrees to sale of COMPANY, Corporation, TURING irrigation upon equipment said to Funk Nebraska, Lindsay, hereinafter referred to terms and set forth this In- conditions “Lindsay”, and FUNK IRRIGATION demnity Agreement. Falls, Idaho, American hereinafter referred hereby indemnify Lindsay 2. Funk does to as “Funk”. actions, against proceedings, claims, all de- WHEREAS, Lindsay the is manufacturer mands, costs, expenses damages and to irrigation equipment including of certain by Lindsay may subjected reason equipment known as lateral move enclosed irrigation equipment fact of the pipeline systems, and longer length than the sold hereunder is WHEREAS, purchase Funk desires to by Lindsay by and recommended reason of two of pipeline said lateral move enclosed operating the fact that the same will be Funk, systems for resale to customer of slopes than those more severe recom- and by reason Lindsay, mended and of the WHEREAS, Lindsay designed has not provide Lindsay fact that to will be unable system length said requested for Lindsay personnel any to work on service designed oper- Funk the same is not develop problems might with the ate slopes as severe as those that the equipment. operate Funk intends to customer of said entering Indemnity 3. into this on, system Agreement, Funk understands that WHEREAS, Lindsay has Funk advised may cause the above conditions advised these facts and has Funk that misalign may and shut down and cause Lindsay personnel will not be available dur- operational problems willing and Funk is ing the next several months to work on therefor, responsibility assume the without keeping opera- machines and assist them right Lindsay any any to look to claims tional, and damages. In the event the customer of WHEREAS, Lindsay has advised Funk any damages Funk asserts such claims operational certain characteristics resulting set from the conditions forth equipment have been discovered Indemnity Agreement, then Funk will yet have not been corrected that ef- fully Lindsay indemnify therefrom. equipment fect said under operation conditions, operating normal Funk further understands that operational equip- characteristics of WHEREAS, Funk has indicated that discovered that effect ment have been equipment, purchase desires to said not- operation equipment under nor- facts, withstanding the above and that yet operating have not been mal conditions necessary Funk the work to erect will do willing keep systems operational, corrected. Funk assume said any WHEREAS, right Lindsay advised responsibility therefor without has Lindsay damages, claims or of this has advised Funk fact and look Lindsay dur- being specifically personnel released and Funk will be available same dam- work on indemnifies claims or next several months to may by opera- ages keeping that asserted Funk’s cus- in them be machines and assist tional, If against Lindsay. Lindsay is able tomer and operational isolate and said diffi- correct WHEREAS, Funk has indicated that culties, Lindsay systems retrofit said will said not- purchase equipment, desires to agreement any under this with cor- covered facts, that withstanding the above and by Lindsay to rective measures determined to erect necessary Funk do the work will correcting operational in dif- be useful said operational, system and and keep said ficulties. WHEREAS, Lindsay willing is to sell 5. standard warranties set forth upon that same Funk condition Lindsay Agreement will remain Sales Lindsay indemnify Funk and hold harmless sale; full force as to this and effect damages may from of result any claim except as herein. In the limited event above, and Lindsay said is able to do a retrofit of systems, paragraph as 4 here- set forth WHEREAS, willing purchase Funk is of, apply then standard warranties will Lindsay from indemnifying said equipment, operation equipment under to the of and here- pursuant loss to terms conditions operating normal conditions. of, WHEREOF, parties IN WITNESS THEREFORE, NOW, of consideration Indemnity have this hereto executed equipment to Lindsay agreeing to sell said first above written. Agreement the date further covenants Funk and the mutual LINDSAY MANUFACTURING contained, par- agreements herein COMPANY agree ties as follows: Snoopy By: Robert S. Lindsay agrees to make the sale 1. FUNK IRRIGATION upon the irrigation equipment said to Funk By: GR Toevs In- set in this terms and conditions forth demnity Agreement. B ATTACHMENT hereby Lindsay indemnify 2. Funk does AGREEMENT INDEMNITY claims, actions, de- proceedings, against all Agreement, made and Indemnity THIS mands, costs, damages expenses to day January, into this 29 entered Lindsay may subjected by be reason between LINDSAY MANUFAC- by and irrigation equipment fact COMPANY, Corporation, of TURING longer length than the sold hereunder Nebraska, referred to Lindsay, hereinafter Lindsay, by by reason recommended “Lindsay”, FUNK IRRIGATION Lindsay will unable to the fact Falls, Idaho, hereinafter referred American personnel to work Lindsay service provide “FUNK”. to as might any develop problems Lindsay equipment. manufacturer WHEREAS including equipment irrigation certain Indemnity entering into this move as lateral enclosed equipment known Agreement, Funk understands systems, and pipeline system to cause the above conditions WHEREAS, purchase Funk desires misalign may cause and shut down and pipeline system lateral move enclosed said willing to and Funk is operational problems Funk, resale to a customer therefor, responsibility without assume the any claims right Lindsay to look WHEREAS, designed Lindsay has In the event the customer damages. length requested system said for the damages any such claims or Funk asserts Funk, resulting from the conditions set forth Indemnity Agreement, then Funk will

fully indemnify Lindsay therefrom.

4. The standard warranties set forth Agreement Sales will remain sale, effect full force and as to this

except as limited herein. agreement

This is effected on Irrigation

be sold to G & Farms ZL-__ as ordered on WHEREOF, parties

IN WITNESS Indemnity

hereto have executed this

Agreement the date first above written.

LINDSAY MANUFACTURING

COMPANY Snoopy

By: Robert S.

FUNK IRRIGATION

By: Toevs GR Bonz,

Ronald T. BONZ and Ruth I. hus wife; Haye

band and Elbert L. wife;

Margaret Haye, T. husband and

Stanley Haye, Joyce V. Sr. and Ann wife;

Haye, Larry Hughes husband and Hughes,

and Leslie L. husband and

wife; Stanley Haye, V. Jr. and Patricia Haye, wife;

E. husband and and Jack Gibson, individually,

A. all Plaintiffs-

Appellants, SUDWEEKS,

Jay May, D. J. Dee Jon J. Stubbs,

Shindurling, Jay Mark and L.

Mitchell, individually partners and as Sudweeks, May, Shindurling, Stubbs Mitchell, partnership & and Sud Jerome, Thompson, plain- David W.

weeks, May, Shindurling, Stubbs s-appellants. tiff Mitchell, partnership, Defendants-Re spondents. Eberle, Berlin, Kading, Turnbow & No. 18335. McKlveen, Boise, defendants-respon- Bradley argued. dents. G. Andrews Idaho,

Supreme Court Twin Falls Nov. 1990 Term. BOYLE, Justice.

March appeal upon

In this we are called the existence of determine whether a cloud property on the title to real which contin-

Case Details

Case Name: G&M Farms v. Funk Irrigation Co.

Court Name: Idaho Supreme Court

Date Published: Mar 19, 1991

Citation: 808 P.2d 851

Docket Number: 18136

Court Abbreviation: Idaho