At the panel’s conference on October 21, 1997, following oral argument of the 1

case, Judge Floyd R. Gibson concurred in the result reached in this opinion. Judge

Gibson has been disabled by illness from reviewing the opinion, which is being filed

in the interest of avoiding undue delay.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1267

___________

Maynard Cooperative Co., *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Zeneca, Inc., doing business as * Northern District of Iowa

ICI Seeds, formerly doing business *

as ICI Americans, Inc., *

*

Appellee. *

___________

 Submitted: October 21, 1997

 Filed: May 7,1998

___________

Before McMILLIAN, FLOYD R. GIBSON and LAY, Circuit Judges. 1

___________

McMILLIAN, Circuit Judge.
The Honorable Edward J. McManus, United States District Judge for the

2

Northern District of Iowa. 

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Maynard Cooperative Co. (Maynard) appeals from a final order entered in the United States District

Court for the Northern District of Iowa, granting summary judgment in favor of Zeneca, Inc. (Zeneca), on

2

Maynard’s claims of negligence, negligent misrepresentation, breach of an implied warranty of fitness, and

contribution or indemnity. Maynard Cooperative Co. v. Zeneca, Inc., No. C94-2063 (N.D. Iowa Dec. 17, 1996)

(hereinafter “slip op.”). For reversal, Maynard argues that the district court erred in dismissing its claims of

negligent misrepresentation and contribution or indemnity under Iowa law. For the reasons stated below, we

affirm. 

Jurisdiction

Jurisdiction in the district court was proper based upon 28 U.S.C. § 1332. Jurisdiction in this court is

proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Fed R. App. P. 4(a). 

Background

In the spring of 1993, Robert J. McSweeney, Sr., and Robert M. McSweeney, Jr. (the McSweeneys),

Iowa dairy farmers, hired Maynard to assist them in an effort to “burn down” a failed alfalfa crop and replace it

with a new crop in time to harvest within the same planting season. Maynard consulted Walt Osborne, the area

representative for Zeneca, regarding the McSweeneys’ circumstances. Osborne suggested to Maynard that the

McSweeneys apply two products, Gramoxone (one of Zeneca’s products) and 2,4-D (a herbicide produced by

another manufacturer), wait seven days, and then replant. Maynard informed the McSweeneys of Osborne’s

recommendation and then implemented the plan suggested by Osborne. After the Gramoxone and 2,4-D were

applied, the failed alfalfa plants were destroyed as
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expected. However, the new crop (planted seven days later) died, presumably as a result of chemical residue left

in the soil. 

The McSweeneys made a demand to Maynard for compensation of their losses. Maynard settled with

them and obtained a release by the McSweeneys of all claims against Maynard and Zeneca. Maynard then

brought the present action against Zeneca in state court, alleging negligence, negligent misrepresentation, breach

of an implied warranty of fitness, and contribution or indemnity. Maynard alleged that Osborne gave Maynard

bad advice because the correct period of time to wait before replanting, after applying 2,4-D, is twenty-one days,

not seven days. 

Zeneca removed the case to federal district court on diversity grounds and moved for summary judgment.

The district court granted Zeneca’s motion and entered judgment for Zeneca on all four counts. The district court

held, in relevant part, that the negligent misrepresentation claim was barred under Iowa’s “economic loss”

doctrine for the following reasons.

The performance or service expected of the chemicals in this matter was that they would

be applied to exterminate a crop, and that they would become harmless within seven days after

application, in order that a new crop might be planted. It appears undisputed that the 2,4-D did

not become harmless within seven days, and that the replanted crop was unsuccessful as a result.

The record demonstrates that the question of how long the 2,4-D would take to become harmless

was central to what the application was to accomplish, and therefore the failure to satisfy this

performance level was not a hazard peripheral to the product’s function.

Slip op. at 5-6 (citing Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 106 (Iowa 1995) (Tomka)). The

district court also reasoned that, because the economic loss doctrine operated as a legal bar to Zeneca’s liability

for the alleged harm, Maynard could not recover on a theory of contribution or indemnity as a matter of law. 
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Accordingly, the district court dismissed that claim in the complaint as well. Id. at 7. This appeal followed. 

Discussion

We review a grant of summary judgment de novo. The question before

the district court, and this court on appeal, is whether the record, when

viewed in the light most favorable to the non-moving party, shows that

there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get Away Club, Inc. v.

Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co.

v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992). Where the unresolved issues

are primarily legal rather than factual, summary judgment is particularly

appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th

Cir. 1990). We review the district court’s determinations of state law de

novo. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).

Maynard argues on appeal that the district court erred in holding, as a matter of Iowa law, that the

economic loss doctrine applies under the facts of this case. Maynard argues that the economic loss doctrine only

applies where the plaintiff’s claim is based upon the alleged failure of a product to meet the plaintiff’s commercial

expectations. Here, Maynard argues, there is no issue as to whether the chemicals performed their commercially

expected function of destroying the first crop. Rather, Maynard argues, the basis of its claim against Zeneca is

the incorrect advice given by Osborne that replanting would be safe after seven days. Maynard argues that this

case is clearly distinguishable from Tomka, in which the plaintiff was held not to have a tort claim against the

manufacturer of a synthetic cattle growth hormone, based upon the failure of that product to perform up to the

plaintiff’s expectations. In Tomka, the Iowa Supreme Court explained that “the distinguishing central feature

of economic loss is .
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 . . its relation to what the product was supposed to accomplish.” 528 N.W.2d at 106; see also Nelson v. Todd’s

Ltd., 426 N.W.2d 120, 123-25 (Iowa 1988) (discussing economic loss doctrine). 

Moreover, Maynard contends, it has sufficiently established its claims of negligent misrepresentation and

contribution or indemnity to withstand a motion for summary judgment. Maynard notes that the elements of a

negligent misrepresentation claim under Iowa law are defined in the Restatement (Second) of Torts § 552 (1977).

See, e.g., Haupt v. Miller, 514 N.W.2d 905, 909-10 (Iowa 1994) (Haupt). In Haupt, the Iowa Supreme Court

stated:

Our court has recognized the tort of negligent misrepresentation. . . . [S]ection 552 of

the Restatement (Second) of Torts (1977) . . . details the necessary proof as follows:

 One who, in the course of his [or her] business, profession or other employment, or

in any other transaction in which he [or she] has a pecuniary interest, supplies false

information for the guidance of others in their business transactions, is subject to

liability for pecuniary loss caused to them by their justifiable reliance upon the

information, if he [or she] fails to exercise reasonable care or competence in obtaining

or communicating the information. 

Maynard argues that, in the present case, the district court erred in dismissing its negligent

misrepresentation claim on summary judgment because genuine issues of material fact remain as to whether: (1)

Zeneca was in the business of supplying information; (2) Zeneca had a pecuniary interest in supplying the

information; (3) the information supplied was false; (4) Zeneca intended to supply the information for the benefit

of Maynard or its customers; (5) Zeneca intended the information to influence Maynard or its customers; (6)

Maynard acted in reasonable reliance upon the truth of
In support of the assertions that Zeneca was in the business of supplying the

3

information in question and had a “pecuniary interest” in supplying the information,

Maynard highlights Osborne’s statement in his deposition that part of his job was “[t]o

increase the market share of [his] company’s products.” Joint Appendix at 132

(deposition of Walt Osborne).

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the information supplied by Zeneca; and (7) Maynard sustained damage as a proximate result of the false

information supplied by Zeneca.3

In addition, Maynard argues that it sufficiently established a claim for contribution or indemnity to survive

Zeneca’s summary judgment motion because: Zeneca is a joint-tortfeasor vis-a-vis the harm done to the

McSweeneys; Maynard fully paid the McSweeneys and obtained a release of the McSweeneys’ claims against both

Maynard and Zeneca; and the McSweeneys had a viable negligent misrepresentation claim against Zeneca which

was separate from Maynard’s claim. 

We agree with the district court’s application of the economic loss doctrine to the present case. The

district court correctly interpreted Maynard’s negligent misrepresentation claim as essentially based upon the

failure of 2,4-D to meet Maynard’s commercial expectation that the chemical would dissipate within seven days.

The failure of the 2,4-D to perform in that respect was the cause of the McSweeneys’ damages. Moreover,

Maynard is seeking to recover compensation for a purely economic loss – namely, the amount of money it paid

to compensate the McSweeneys. The distinction drawn by Maynard between the advice given by Zeneca and the

product about which the advice was given is, in our opinion, a distinction without a difference. Cf. Bailey Farms,

Inc. v. NOR-AM Chemical Co., 27 F.3d 188, 191-92 (6th Cir. 1994) (holding that a farmer had to seek a remedy

under the UCC for consequential losses for property damage resulting from the failure of an agricultural product

to perform as expected, notwithstanding farmer’s argument that the product worked properly but he was

misinformed about its proper use). Even though Maynard may not have had a claim against Zeneca under the

UCC or contract theories, the
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economic loss doctrine still applies to its negligent misrepresentation claim. In Tomka, 528 N.W.2d at 107-08,

the Iowa Supreme Court enforced the economic loss doctrine to dismiss a negligent misrepresentation claim

against a manufacturer because the only damages sought by the plaintiff were economic damages which clearly

fell within contract warranty theories, not tort theories, even though the plaintiff had no claim against the

manufacturer for breach of implied warranties.

We also hold that Maynard’s negligent misrepresentation claim fails as a matter of law under the

Restatement (Second) of Torts § 552, because Maynard cannot, as a matter of law, show at least three essential

elements of its claim. First, Zeneca was not in the business of supplying information but, rather, offered advice

and information merely as a service provided in connection with its retail operations, notwithstanding Osborne’s

generalized statement that part of his job was “[t]o increase the market share of [his] company’s products.” Joint

Appendix at 132 (deposition of Walt Osborne). See, e.g., Meier v. Alfa-Laval, Inc., 454 N.W.2d 576, 581 (Iowa

1990) (holding that the defendant, a seller and dealer of a milking machine, owed no duty of care for purposes of

a negligent misrepresentation claim based upon statements made in connection with the machine’s repair, because

the defendant was not in the business of supplying information) (cited in Haupt, 514 N.W.2d at 910). Second,

Zeneca did not have a pecuniary interest in supplying information to Maynard regarding 2,4-D, because that

product was manufactured by a different company. Third, Maynard could not reasonably rely on the truth of the

advice given by a Zeneca representative regarding the correct use of another manufacturer’s product. On this latter

point, Maynard could have, and clearly should have, consulted with the manufacturer of 2,4-D before using that

product in the manner suggested by Osborne. Thus, it is beyond genuine dispute that Maynard’s reliance solely

on Osborne’s advice regarding 2,4-D was not justified. 

In short, the district court correctly held that Maynard has failed, as a matter of law, to establish any basis

in tort for imposing liability on Zeneca for the losses
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sustained by the McSweeneys and compensated by Maynard. Stated differently, Zeneca is not a joint-tortfeasor

vis-a-vis the harm done to the McSweeneys, despite Maynard’s assertion to the contrary. Consequently, Maynard

cannot, as a matter of law, recover on a theory of contribution or indemnity.

Conclusion

Accordingly, we hold that the district court did not err in holding that Zeneca is entitled to judgment as

a matter of law on Maynard’s claims of negligent misrepresentation and contribution or indemnity. The order of

the district court is affirmed. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.