In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1168

Home Valu, Inc.,

Plaintiff-Appellant,

v.

Pep Boys Manny, Moe and Jack

of Delaware, Inc.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98-C-531--J.P. Stadtmueller, Chief Judge.

Argued February 14, 2000--Decided May 24, 2000

 Before Bauer, Flaum, and Evans, Circuit Judges.

 Bauer, Circuit Judge. After a real estate deal

fell apart, Home Valu, Inc. sued Pep Boys 

Manny, Moe & Jack of Delaware, Inc. for the torts

of negligent misrepresentation, strict

responsibility misrepresentation, and intentional

misrepresentation. Home Valu also brought a

breach of contract claim. Exercising jurisdiction

over this state law dispute under 28 U.S.C. sec.

1332, the district court dismissed Home Valu’s

complaint for failure to state a claim upon which

relief can be granted. Home Valu appeals. We

affirm.

I. Background

 Home Valu operated a retail store under the

name "Drexel" located at 8787 West Brown Deer

Road in Milwaukee, Wisconsin. Drexel sold repair

and home improvement goods. Although its Drexel

store was profitable, Home Valu decided to close

it and sell the property to Pep Boys--then a

rapidly growing retailer of automotive parts and

services--to accommodate Pep Boys’ planned

expansion into Wisconsin.

 Home Valu and Pep Boys executed a written

Agreement of Sale on May 15, 1997. The Agreement

gave Pep Boys 180 days to satisfy certain

contingencies, such as obtaining local and state

permits to operate its auto service business and

to verify environmental and other characteristics

of the property. Once the contingencies were met,
the parties were to close within 30 days. The

Agreement provided, however, that if Pep Boys

could not satisfy the contingencies, Pep Boys had

the option of terminating the Agreement, after

giving notice to Home Valu, or the right to waive

the contingencies and finalize without reference

to the contingencies.

 About 30 days before the time the Agreement

gave Pep Boys to complete the contingencies, the

parties extended the closing date to December 31,

1997. Then, roughly a month later, the parties

entered into a written Amendment of their

original Agreement of Sale./1 The Amendment

extended the deal’s closing date again, this time

until March 1, 1998.

 At some point, Pep Boys experienced a downturn

in revenue. Shortly before it negotiated the

Amendment, Pep Boys’ Chairman and CEO commented

in a written memorandum that "It is definitely

NOT business as usual at Pep Boys. Literally

everything we do is being revalidated--nothing is

sacred." Pep Boys’ CEO also stated that the

company’s 1998 expansion rate would be lower and

that Pep Boys did not know how many new states it

would enter because expansion plans were

undeveloped.

 Pep Boys notified Home Valu in mid-February

1998 that it would not purchase the Drexel

property. The contract contained a liquidated

damages clause which limited Pep Boys’ liability

for breach of the contract to $50,000. Pep Boys

invoked the liquidated damages clause and offered

to pay Home Valu $50,000 for the breach. Home

Valu refused the offer. 

 Home Valu was unhappy with the $50,000 offer

because, shortly after extending the closing date

until March 1, 1998, Home Valu began the

expensive process of closing its Drexel store.

Home Valu spent more than $800,000 closing down

Drexel in preparation for the scheduled March 1,

1998 sale. Rather than accepting $50,000 to

compensate it for $800,000 in expenses, Home Valu

filed suit against Pep Boys in Wisconsin state

court. Pep Boys removed the case to federal

district court and Home Valu filed an amended

complaint. Home Valu’s seven-count amended

complaint alleged two counts of negligent

misrepresentation, two counts of strict

responsibility misrepresentation, two counts of

intentional misrepresentation, and one count of

breach of contract.

 Home Valu’s misrepresentation claims can be

divided into two groups. The first group

concerned statements Pep Boys made which induced

Home Valu into executing the Amendment. In these
pre-Amendment statements, Pep Boys repeatedly

assured Home Valu that it would purchase the

property if the closing date were extended to

March 1, 1998. Home Valu claimed that these

statements were false and that when Pep Boys made

them it had no intention of purchasing the

property. Home Valu claimed that Pep Boys made

these false statements for the sole purpose of

inducing Home Valu into executing the Amendment

and that Pep Boys had an economic interest in

extending the closing date. According to Home

Valu, these false statements constituted

negligent, strict responsibility, and intentional

misrepresentations.

 The second group of claimed misrepresentations

related to statements that Pep Boys made after

the parties executed the Amendment extending the

purchase date. In these claims, Home Valu said

that it became concerned about whether Pep Boys

would honor its obligation under the Amendment

and proceed with the purchase on March 1, 1998.

As a result of these concerns, Home Valu again

asked Pep Boys about its intent to finalize the

real estate transaction on the scheduled closing

date. In response to these inquiries, Pep Boys

told Home Valu on several occasions that it would

in fact purchase the property on or before the

closing date. According to Home Valu, these

statements were false and Pep Boys knew them to

be false when it made them. Home Valu asserted

that these untrue statements caused it to

continue closing its Drexel store when it would

have abandoned the process and averted

substantial financial losses if it had known that

Pep Boys was not going to consummate the deal.

Based on these facts, Home Valu stated that Pep

Boys had committed the torts of negligent, strict

responsibility, and intentional

misrepresentation.

 In its breach of contract claim, Home Valu

first made the simple allegation that Pep Boys

breached the contract by failing to purchase the

property by March 1, 1998. In addition to this

claim, Home Valu alleged that Pep Boys violated

the covenant of good faith and fair dealing. Home

Valu stated that it began closing its Drexel

store because Pep Boys waived the applicable

contingencies and this waiver required Home Valu

to begin shutting down Drexel. Home Valu asserted

that "in exercising its right to require Home

Value to undertake the expensive process of

closing down its profitable Drexel . . . store,

Pep Boys had a continuing duty to act in good

faith and fair dealing and to cooperate with Home

Valu." According to Home Valu, Pep Boys breached

this duty of good faith by repeatedly reassuring

Home Valu that it would purchase the property

even though "Pep Boys knew in 1997 and in January
and February of 1998 that it might not honor its

Agreement to close on the purchase of the

property."

 The district court dismissed Home Valu’s

complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which

relief can be granted. Home Valu now challenges

the district court’s ruling.

II. Analysis

 We review the district court’s grant of a

motion to dismiss under Rule 12(b)(6) de novo.

Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.

1999). In reviewing a dismissal, we accept all

factual allegations in the plaintiff’s complaint

as true and draw all reasonable inferences in the

plaintiff’s favor. Klug v. Chicago Sch. Reform

Bd. of Trustees, 197 F.3d 853, 858 (7th Cir.

1999). We will affirm only if it appears beyond

a doubt that the plaintiff cannot prove any set

of facts that would entitle it to relief. Conley

v. Gibson, 355 U.S. 41, 45-46 (1957); Frederick

v. Simmons Airlines, 144 F.3d 500, 502 (7th Cir.

1998). Finally, by virtue of the parties’

agreement, we apply Wisconsin tort and contract

law to this dispute. See Harter v. Iowa Grain

Co., Nos. 98-3010 & 98-3817, 2000 WL 426366, at

*15 n.12 (7th Cir. April 21, 2000) (we forego

choice of law analysis when the parties agree on

the law that governs a dispute and there is a

reasonable relation between the dispute and the

forum whose law has been selected).

 Because resolution of the issues in this case

depends on Wisconsin law, "we must apply the law

that would be applied in this context by the

Wisconsin Supreme Court." McGeshick v. Choucair,

9 F.3d 1229, 1232 (7th Cir. 1993) (citing Green

v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 761

(7th Cir. 1986)). If the Wisconsin Supreme Court

has not spoken on the issue, we generally treat

decisions by the state’s intermediate appellate

courts as authoritative "unless there is a

compelling reason to doubt that [those] courts

have got the law right." Rekhi v. Wildwood

Indus., 61 F.3d 1313, 1319 (7th Cir. 1995). When

we are faced with two opposing and equally

plausible interpretations of state law, "we

generally choose the narrower interpretation

which restricts liability, rather than the more

expansive interpretation which creates

substantially more liability." Birchler v. Gehl

Co., 88 F.3d 518, 521 (7th Cir. 1996) (citing

Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412

(7th Cir. 1994)).

 A. Misrepresentation Claims
 The district court dismissed all six of Home

Valu’s misrepresentation claims as barred by

Wisconsin’s economic loss doctrine. The Wisconsin

Supreme Court has followed "the majority of

courts across the country in applying the

economic loss doctrine to commercial

transactions." State Farm Mut. Auto Ins. Co. v.

Ford Motor Co., 592 N.W.2d 201, 208 (Wis. 1999).

Under the economic loss doctrine, Wisconsin law

bars tort claims which seek only "economic

losses" related to a commercial transaction.

Wausau Tile, Inc. v. County Concrete Corp., 593

N.W.2d 445, 451 (Wis. 1999). Wisconsin’s highest

court draws the line between economic and noneconomic loss by emphasizing that economic loss

is damage "which does not cause personal injury

or damage to other property." Daanen & Janssen,

Inc. v. Cedarapids, Inc., 573 N.W.2d 842, 845

(Wis. 1998). In contrast, non-economic damages,

which are recoverable in tort, involve some

"physical harm" or other "unreasonable risk of

injury to person or property." Northridge Co. v.

W.R. Grace and Co., 471 N.W.2d 179, 185 (Wis.

1991).

 In reviewing the district court’s dismissal of

Home Valu’s several misrepresentation claims, we

do not write on a clean slate. Rather, we have

previously upheld the dismissal of tort claims

for negligent misrepresentation and strict

responsibility misrepresentation as barred by

Wisconsin’s economic loss doctrine. See Badger

Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d

621, 628 (7th Cir. 1993). In Badger Pharmacal, we

applied Wisconsin law and reasoned that "’tort

law provides no remedy in a case in which the

plaintiff is seeking to recover for a commercial

loss rather than damage to person, property, or

reputation.’" Id. (quoting Midwest Knitting

Mills, Inc. v. United States, 950 F.2d 1295, 1300

(7th Cir. 1991) (also applying Wisconsin law)).

Since our holding in Badger Pharmacal, no

Wisconsin court has ruled to the contrary. We

therefore adhere to our view that the Wisconsin

Supreme Court would not recognize tort claims for

negligent or strict responsibility

misrepresentation "when two corporations, with

the benefit of counsel, negotiate a commercial

transaction at arms length." Badger Pharmacal, 1

F.3d at 627.

 Having found that Judge Stadtmueller correctly

dismissed the negligent and strict responsibility

misrepresentation claims, we consider Home Valu’s

two allegations that Pep Boys committed the tort

of intentional misrepresentation. However, this

issue, too, has been addressed before now. In

Cooper Power Systems, Inc. v. Union Carbide

Chems. & Plastics Co., Inc., 123 F.3d 675, 682
(7th Cir. 1997), we noted that this court "has

already predicted that Wisconsin would not allow

a negligence or strict [responsibility]

misrepresentation claim seeking to recover

economic damages. We perceive no basis for

treating . . . [an] intentional misrepresentation

claim any differently." Our decision in Cooper

Power dooms Home Valu’s two claims of intentional

misrepresentation.

 Home Valu tries to avoid the economic loss

doctrine and preserve at least one of its tort

claims by citing Douglas-Hanson Co., Inc. v. BF

Goodrich Co., 598 N.W. 262 (Wis. Ct. App. 1999).

In Douglas-Hanson, the Wisconsin Court of Appeals

reviewed a jury verdict in the plaintiff’s favor.

After concluding that the jury had found that the

plaintiff was fraudulently induced to enter a

contract, the court confronted the issue of

"whether the economic loss doctrine prohibits a

plaintiff from recovering tort damages when an

intentional misrepresentation fraudulently

induces a plaintiff to enter a contract." Id. at

268. The court answered this question in the

negative and held that "the economic loss

doctrine does not bar claims for intentional

misrepresentation when the misrepresentation

fraudulently induces a party to enter a

contract." Id. at 270-71. In reaching this

conclusion, the court noted tension with our

decision in Cooper Power, but found that the

"better public policy" was to allow such tort

claims. Id. at 270. Armed with this decision,

Home Valu asserts that Douglas-Hanson saves its

intentional misrepresentation claim that Pep Boys

fraudulently induced it into signing the

Amendment which extended the closing date to

March 1, 1998.

 Although we usually treat decisions by state

intermediate appellate courts as authoritative,

Rekhi, 61 F.3d at 1319, we are nevertheless

required to rule as we believe the Supreme Court

of Wisconsin would rule in this context.

McGeshick, 9 F.3d at 1232. In this case, we find

a compelling reason to refrain from following the

Wisconsin Court of Appeals’ decision in DouglasHanson. Specifically, a few weeks after we heard

oral argument in this case, the Supreme Court of

Wisconsin (which had granted a petition to review

the intermediate appellate court’s opinion in

Douglas-Hanson) issued a per curiam statement

that "the court is equally divided on the

question of whether the published decision of the

court of appeals . . . should be affirmed or

reversed." Douglas-Hanson Co., Inc. v. BF

Goodrich Co., 607 N.W.2d 621 (Wis. 2000). While

this evenly divided court resulted in an

affirmance under Wisconsin law, id., Smith v.

State, 163 N.W.2d 8 (Wis. 1968), it did not make
the Wisconsin Court of Appeals’ Douglas-Hanson

decision binding authority of the Wisconsin

Supreme Court. See Neil v. Biggers, 409 U.S. 188,

192 (1972) (an affirmance by an equally divided

court is not entitled to precedential weight);

State ex rel. Thompson v. Jackson, 546 N.W.2d

140, 142 (Wis. 1996) ("a majority of the

participating justices must agree on a particular

point for it to be considered the opinion of the

court").

 Because the Wisconsin Supreme Court did not

garner a majority to affirm the Wisconsin Court

of Appeals’ holding that the economic loss

doctrine does not bar claims for intentional

misrepresentation that allege fraudulent

inducement, the issue remains unresolved. And, as

exhibited by the equally divided Wisconsin

Supreme Court, whether the economic loss doctrine

does bar such a tort claim is an issue over which

there is considerable disagreement. Where, as in

this case, we are faced with two equally

plausible interpretations of state law, "we

generally choose the narrower interpretation

which restricts liability, rather than the more

expansive interpretation which creates

substantially more liability." Birchler, 88 F.3d

at 521. We therefore take the approach that is

restrictive of liability and conclude that

Wisconsin’s economic loss doctrine bars Home

Valu’s intentional misrepresentation claim that

it was fraudulently induced into executing the

Amendment. Accordingly, we affirm the district

court’s decision to dismiss Home Valu’s

misrepresentation claims as barred by Wisconsin’s

economic loss doctrine.

 B. Breach of Contract Claim

 Although it brought only one breach of contract

count in its complaint, Home Valu actually

alleges two separate breaches. Home Valu first

complains that Pep Boys breached the express

terms of the contract when it failed to purchase

the property by March 1, 1998. The district court

denied this claim because the contract’s

liquidated damages clause limited Pep Boys’

liability for breach to $50,000 and Pep Boys had

already offered to pay Home Valu $50,000. Finding

no legal basis for recoverable damages beyond the

$50,000 that Pep Boys had already offered to pay,

Judge Stadtmueller held that Home Valu did not

state a claim upon which relief could be granted.

 We agree with the district judge that Home Valu

has no further claim for breach of contract. The

parties bargained for and agreed on a liquidated

damages clause that clearly and unambiguously

limited Pep Boys’ liability for a breach to
$50,000. Pep Boys offered to pay Home Valu

$50,000 for its failure to buy the property and

that money has been placed into an escrow account

pending the outcome of this litigation. In the

event that Pep Boys prevails in this appeal

(which it now has), Home Valu can collect the

$50,000 in liquidated damages from the escrow

account. That fully satisfies the question of

damages for the breach. 

 Home Valu’s second breach of contract theory

alleges that Pep Boys violated the covenant of

good faith and fair dealing by telling Home Valu

that it would purchase the property even though

Pep Boys knew it would not go through with the

deal. The district court held that the duty of

good faith and fair dealing is an implied

provision of the contract and therefore any

breach of this term simply triggers the

liquidated damages clause. No additional damages

are available, even assuming the correctness of

the claim of violation of fair dealing or good

faith.

 It is well-settled that Wisconsin law recognizes

the implied contractual duty of good faith and

fair dealing in commercial contracts. See Market

St. Assocs. Ltd. Partnership v. Frey, 941 F.2d

588, 593-94 (7th Cir. 1991); Hauer v. Union State

Bank of Wautoma, 532 N.W.2d 456, 463-64 (Wis. Ct.

App. 1995). However, the implied covenant "does

not support an independent cause of action for

failure to act in good faith under a contract."

Hauer, 532 N.W.2d at 464. Instead, the duty of

good faith is meant to "give the parties what

they would have stipulated for" at the time of

contracting if they could have foreseen all

future problems of performance. Market St.

Assocs., 941 F.2d at 596. As the district court

pointed out, the requirement of good faith "was

not of a duty independent of the contract, but of

the contract itself." Because a breach of the

duty of good faith is the same as a breach of any

other contract term, Home Valu is entitled to its

contractual liquidated damages, but nothing more.

 We affirm the decision of the district court.

FOOTNOTES

/1 The original Agreement of Sale and the subsequent

Amendment collectively govern the parties’

contractual rights. Because these two agreements

work together, we will treat them as one and

refer to them collectively as "the contract."