APRIL 2026 | 33 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The court declined to extend the doctrine at this time but potentially left open the door by stating that the court has not “adopted such an expansive approach, and the facts of this case do not warrant doing so.”30 By declining to expand the doctrine based on the specific facts presented in Mills, the Oklahoma Supreme Court may be receptive to further development of the economic loss doctrine if the facts warrant such consideration. Perhaps providing an additional steppingstone for further application of the economic loss doctrine, the Oklahoma Court of Civil Appeals published its opinion in Proe v. Diamond Homes31 only three weeks after Mills. Proe involved a residential construction dispute between the homeowners, the builder and a contract employee of the builder.32 The homeowners sued the builder and a contract employee for breach of contract and negligence in the construction of their home, alleging that the defendants failed to construct their home in a workmanlike manner free from defects and were responsible for the design and preparation of the concrete slab at issue in the case.33 In affirming the district court’s decision barring the plaintiffs’ negligence claims, the Proe court relied on the Oklahoma Supreme Court’s reasoning in Rodgers v. Tecumseh Bank,34 a case far from the products liability realm. Rodgers involved a dispute between a bank and borrowers on a loan to purchase real estate.35 The question presented was whether the Oklahoma Supreme Court should “extend the implied-in-law duty of good faith and fair dealing, [...] imposed upon contracts of insurance, to contracts for commercial loans in order to support a cause of action for tortious breach of contract.”36 In declining to do so, the Rodgers court emphasized that the borrower’s tort claim arose solely from contract, and, as such, without some independent basis to support their tort claim, it was simply one sounding in contract.37 While not expressly stating it, the decision in Rodgers reaffirmed the same bedrock principle underlying the economic loss doctrine, which is that tort and contract doctrines, including the liability flowing therefrom, should remain separate. The court in Rodgers reaffirmed the principle that if a contract remedy will suffice, then a tort claim is simply proof of the breach of contract, and the separate tort claim should be barred, absent some independent basis for the tort claim. The Proe court followed the Rodgers rationale in finding that the negligence claim against the contract employee failed because the contract employee’s status as an agent protected him from tort liability.38 The employee had a contractual relationship with the homebuilder, not the homeowners. Under those circumstances, Oklahoma law provides that an “agent’s breach of duty owed to the principal is not an independent basis for the agent’s tort liability to a third party.”39 Rather, the duty owed is grounded in the contractual relationship between the parties. At first blush (and ultimately), the well-established privity of contract requirement appeared to bar the negligence claim between the homeowners and the contract employee. Judge Barnes wrote a concurrence that affirmed dismissal based on lack of privity. The majority, however, affirmed for a separate reason. The majority explained that to avoid the privity requirement, the homeowners’ tort claim against the contract employee would have to be based on conduct independent of that covered by the employee’s contractual duty.40 The majority emphasized that Oklahoma law recognizes the difference between a contractual duty and a tort duty, and when the duty alleged to have been breached arises solely from contract, then the alleged negligent conduct is nothing more than proof of the breach of contract.41 Applying this same rationale, the majority held that the homeowners’ tort claim was barred against the homebuilder by the principles supporting the economic loss doctrine. In analyzing the interplay between the negligence claim and contract claim against the homebuilder, the majority elaborated on the reasoning underlying the basis for separating tort and contract doctrines and liability. The majority noted that prior Oklahoma Supreme Court cases authorizing simultaneous tort and contract claims involved injuries beyond the particular matter of contract.42 The majority, accordingly, articulated the clarifying statement that “if there is no damage to person or property ... beyond the particular matter of the contract, there is no tort.”43 The tort claim against the contract employee failed because there was no damage to person or property. Perhaps seeing the opening provided by Mills, the majority in Proe observed, “Courts applying the economic loss rule outside the products liability context have found its products liability origin equally sound in breach of contract cases.”44 The majority noted that, at its core, the economic loss doctrine “serves to maintain a
RkJQdWJsaXNoZXIy OTk3MQ==