Contract or Tort Claim: The difference goes from clarity to gray

03/19/2011

In 1998 the Virginia Supreme Court clarified in the McDevitt case that the rights and obligations between contracting parties was limited to that contract, and could not give rise to additional tort claims.

This month the same court in Kaltman v. All American Pest Control seems, to me, to have significantly clouded the issue by allowing a contracting party to bring a tort claim against the party with whom it contracted relating to the services for which the contract was entered. Disregarding prior case law that held there were no implied duties in a written contract, the Kaltman court held that a pest control company could be sued in tort for not meeting common law and statutory duties applicable to its work.

The latter is more understandable, but not the former. The Kaltman’s explanation distinguishing McDevitt is murky, and will likely lead to regular attempts in pleadings to establish tort claims relating to contractual relationships. Practitioners, take you marks, get set, and start arguing tort vs. contract law.

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