NBIS Construction & Transport Insurance Services, v. Liebherr-America, Inc., et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14104
____________________
NBIS CONSTRUCTION & TRANSPORT INSURANCE
SERVICES, INC.,
other
Sims Crane & Equipment Company,
Plaintiff-Appellee,
versus
LIEBHERR-AMERICA, INC.,
d.b.a. Liebherr USA Co.,
LIEBHERR CRANES, INC.,
Defendants-Appellants.
____________________
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 1 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 1 of 21

-- 1 of 21 --

2 Opinion of the Court 22-14104
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02777-AAS
____________________
Before WILSON, G RANT, and L AGOA , Circuit Judges.
L AGOA , Circuit Judge:
This appeal requires the application of Florida tort law to a
dispute resulting from the collapse of a crane boom. Below, NBIS
Construction & Transport Insurance Services, Inc. (“NBIS”), the
third-party administrator and managing general agent of the in-
surer of the crane’s owner, recovered over $1.7 million—the cost
of the damage to the crane itself—in a negligence suit against
Liebherr-America, Inc., a distributor and servicer of the type of
crane at issue. Central to this appeal, the magistrate judge,1 after a
five-day bench trial, rejected Liebherr-America’s argument that
Florida’s economic loss rule shielded it from liability. For the fol-
lowing reasons, we find Florida law unclear on this issue, and thus
certify a question to the final arbiter of Florida law, the Florida Su-
preme Court.
1 The parties consented to trial before the magistrate judge pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 2 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 2 of 21

-- 2 of 21 --

22-14104 Opinion of the Court 3
I. FACTUAL AND PROCEDURAL BACKGROUND2
In 2016, Sims Crane & Equipment Company (“Sims”) pur-
chased a crane, manufactured by Liebherr Werk Ehingen GMbH
(“Liebherr-Germany”), from a non-party crane broker. The crane
has two configurations: a fifty-meter boom and an eighty-four-me-
ter boom. The eighty-four-meter boom has six locking pins: T1
through T6. The T3 and T4 pins are located next to each other and
look similar. To install the longer, eighty-four-meter boom, the T3
pin must be adjusted to a specific position. The T4 pin, on the
other hand, should never be adjusted—if it is and the adjustment is
not remedied, the boom can collapse. But the crane’s operating
manual, published by Liebherr-Germany and provided to Sims be-
fore it received the crane, did not include warnings about the T4
pin.
Under Sims’s sales contract, a “Liebherr [f]actory trained
technician” was “to be provided on site to commission [the crane]
and train [Sims’s] personnel at [n]o [c]harge.” The purpose of this
training, Liebherr-America’s corporate representative agreed, was
to provide “comprehensive knowledge” to crane operators on how
to properly and safely operate the crane.3
2 The majority of the facts in section are taken from the magistrate judge’s
factual findings in its final order.
3 The basis of the training, according to Liebherr-America’s training docu-
ments, was the crane’s operating manual.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 3 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 3 of 21

-- 3 of 21 --

4 Opinion of the Court 22-14104
When two Sims crane operators—Jason D’Angelo and An-
drew Farris—picked up the crane at a port in Jacksonville in Janu-
ary 2017, a Liebherr-America employee and trainer named Henry
Ward instructed the two operators and other Sims employees
while they were loading the crane to transport it Tampa. The
training continued in Tampa from January 30, 2017, to February 4,
2017. Even though Liebherr-America normally provides around
eighty hours of training to new customers, and Ward knew Sims
was a first-time owner of the crane, Ward provided D’Angelo and
Farris with only forty hours of training.
While Ward’s training involved swapping out the fifty-me-
ter and eighty-four-meter booms, he skipped training on multiple
issues. Further, both Farris and D’Angelo testified that Ward did
not train Sims’s employees on the proper placement of specific
pins, including the T3 and T4 pins. For example, while the T3 pin
needed to be adjusted to a specific position, Ward only instructed
Farris and D’Angelo to adjust it “to where it stops,” but not to
“over-torque” it, and to “back it out until it stops.” Liebherr-Amer-
ica’s corporate representative also testified that Ward did not in-
form Sims of the risks with respect to the T4 pin, even though
Liebherr-America knew about the safety risks associated with ma-
nipulating the T4 pin at the time of the training.4
4 While Ward testified that he warned Farris and D’Angelo more than “two or
three times” about the dangers related to manipulating the T4 pin, the magis-
trate judge found this testimony “not credible” in light of the contradictory
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 4 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 4 of 21

-- 4 of 21 --

22-14104 Opinion of the Court 5
On February 16, 2018, Farris supervised apprentice Shane
Burrows during the installation of the eighty-four-meter boom for
a construction project. When Farris instructed Burrows to lock the
T3 pin, Burrows mistakenly manipulated the T4 pin instead, think-
ing it was the T3 pin. After Burrows notified Farris that the pin was
unlocking rather than locking, Farris discovered that Burrows ma-
nipulated the T4 pin and adjusted the T4 pin back to where he
thought it was originally. Farris then installed the eighty-four-me-
ter boom and locked the T3 pin.
A few days later, when Farris started to extend out the
boom, it would not fully extend, even though the crane’s computer
system read no errors. Farris contacted his supervisor, who dis-
patched a crane technician to the jobsite. Farris also contacted a
senior crane operator, who advised him that he would have to
place the crane in manual mode to extend the boom. However,
when Farris took the crane out of computer control mode and pro-
ceeded to manually extend the boom, it collapsed in on itself, caus-
ing both a fatality and damage to the crane.
Prior to this collapse in May 2017 another collapse due to the
improper manipulation of the T4 pin had occurred in Japan. This
led Liebherr-Germany to publish, three months before the accident
in this case, updated product safety information concerning the
risks involved with manipulating the T4 pin. This information in-
cluded a product safety bulletin, a cover plate that covers both the
testimony from Farris, D’Angelo, and Liebherr-America’s corporate repre-
sentative.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 5 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 5 of 21

-- 5 of 21 --

6 Opinion of the Court 22-14104
T3 and T4 pins, warning stickers, and an insert for the operating
manual. The top of the safety bulletin provided that the failure to
follow the instructions contained therein “could result in the un-
controlled retraction of the telescopic boom during operation re-
sulting in serious injury or death.” The bulletin then proceeded to
warn that manipulating the wrong screw, or pin, can lead to such
retractions.
The cover plate is a different color than the crane, and the
warning stickers for the T4 pin, placed on and around the cover
plate, had a red “X” drawn on them.5 The new provision for the
operating manual includes a warning stating “[d]o not unlock the
telescopic boom locking pin.” And it goes on to provide that un-
locking the T4 pin can cause a retraction of the boom “in an un-
controlled manner,” which could lead to “[d]eath, severe bodily in-
juries, [and] property damage.”
Liebherr-America disseminates Liebherr-Germany’s prod-
uct safety updates to American owners, and from October 2017 to
March 2018, disseminated over 700 product safety update cam-
paigns. Once Liebherr-America is on notice that a crane has been
sold to a subsequent purchaser, it sends these updates to that pur-
chaser. And Liebherr-America also typically updates its internal da-
tabase to ensure that it matches the correct ownership information.
5 Liebherr-Germany provided stickers for the T3 pin too. Those did not have
an “X” drawn on them.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 6 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 6 of 21

-- 6 of 21 --

22-14104 Opinion of the Court 7
While Liebherr-Germany asked Liebherr-America to check
its customer list in advance of disseminating the safety information
regarding the T4 pin and to inform Liebherr-Germany if all the
listed cranes remained in the United States, Liebherr-America did
not update its ownership records with respect to the crane at issue
until after the collapse occurred. As a consequence, while
Liebherr-America received the safety bulletin on November 10,
2017, Sims did not receive it until February 26, 2018, a week after
the accident at issue.6 This is despite various internal communica-
tions and documents, dating back to 2016, referencing Sims as the
crane’s owner.
After the crane boom’s collapse, NBIS filed an action in Flor-
ida state court, which Liebherr-America removed to federal district
court.7 NBIS’s first amended complaint asserted three counts: (1)
negligence; (2) negligent training; and (3) a violation of Florida’s
Deceptive and Unfair Trade Practices Act (“FDUTPA”).8 As for the
6 Sims received the cover plate, warning stickers, and related safety warnings
on the same day.
7 In Florida, “when an insurer pays the claim of its insured, the insurer stands
in the shoes of its insured, and the insurer may bring a subrogation action
against the tortfeasor to recover the amounts paid under the insurance policy.”
State Farm Fla. Ins. Co. v. Loo, 27 So. 3d 747, 748 (Fla. 3d DCA 2010). Here,
NBIS paid Sims the fair market value of the crane as it was before it was dam-
aged, and thus stands in Sims’s shoes.
8 The district court granted summary judgment to Liebherr-America on the
FDUPTA claim by approving the magistrate judge’s report and recommenda-
tion, and, after the bench trial, the magistrate judge granted Liebherr-
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 7 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 7 of 21

-- 7 of 21 --

8 Opinion of the Court 22-14104
negligence count, NBIS alleged that Liebherr-America was negli-
gent for failing to properly train Sims’s employees in usage of the
crane and for failing to send the product safety bulletin in a timely
manner. NBIS sought to recover only for the damage to the crane
itself that resulted from the collapse. In response, Liebherr-Amer-
ica argued, among other things, that Florida’s economic loss rule
prevented recovery, that it had no duty to protect NBIS against
purely economic harms, and that its actions were not a cause of the
crane boom’s collapse. Importantly, before trial, the parties stipu-
lated that the crane “was not defective at any time prior to or at the
time of the incident that occurred on February 19, 2018.”
After a five-day bench trial, the magistrate judge rejected
Liebherr-America’s defenses to NBIS’s negligence claim. In its final
order, the magistrate judge described the economic loss rule as pre-
cluding “a tort claim against a product manufacturer when the
product damages only itself.” And here, the magistrate judge said,
“the parties stipulate that the crane was not defective, and the acci-
dent was not caused by a defect in the crane.” Thus, NBIS’s action
was not a products liability action, but instead “an action alleging
negligent services provided by Liebherr-America,” meaning the
economic loss rule does not apply. The magistrate judge then de-
termined that Liebherr-America had a duty “to provide training
that included information about manipulation of the T4 pin, and
the proper position of the T3 pin,” and a duty to “timely send the
America’s motion for partial findings with respect to the negligent training
claim. Neither decision is on appeal.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 8 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 8 of 21

-- 8 of 21 --

22-14104 Opinion of the Court 9
product safety warnings.” The magistrate judge concluded that
these duties were breached, and that these breaches were a proxi-
mate cause of the crane boom’s collapse. As a result, the magistrate
judge awarded NBIS with $1,744,752.74 in damages, as well as pre-
judgment and post judgment interest.9
This timely appeal ensued.
II. ANALYSIS
“As a federal court sitting in diversity jurisdiction, we apply
the substantive law of the forum state, in this case Florida.” Hor-
owitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir.
2011). Thus, we start by providing a summary of Florida law on
the economic loss rule. We then turn to the parties’ arguments and
explain why we find certification to the Florida Supreme Court is
needed.10
9 NBIS paid Sims $3,215,239 and paid $179,513.74 for towing and salvage ex-
penses. NBIS then recovered $1,650,000 by selling the crane after the accident,
which left $1,744,752.74 in damages. On Liebherr-America’s motion, the mag-
istrate judge later entered an amended final judgment lowering the amount of
prejudgment interest to exclude the time during which the trial was postponed
due to Covid-19.
10 Liebherr-America also argues on appeal that it had no duty to protect against
damage to the crane, and that even if it did, there was no breach that caused
the crane to collapse. We do not address the magistrate judge’s findings and
conclusions as to each issue at this stage, for we find that we first need guid-
ance from the Florida Supreme Court as to the application of the economic
loss rule.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 9 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 9 of 21

-- 9 of 21 --

10 Opinion of the Court 22-14104
A. Florida’s Economic Loss Rule
“[T]he economic loss rule is a judicially created doctrine that
sets forth the circumstances under which a tort action is prohibited
if the only damages suffered are economic losses.” Tiara Condo.
Ass’n, Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3d 399, 401 (Fla.
2013).11 It developed in large part to “protect manufacturers from
liability for economic damages caused by a defective product be-
yond those damages provided for by warranty law.” Indem. Ins. Co.
of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 538 (Fla. 2004), receded
from on other grounds by Tiara, 110 So. 3d 399; see also Tiara, 110 So.
3d at 401 (“A historical review of the doctrine reveals that it was
introduced to address attempts to apply tort remedies to traditional
contract law damages.”).
11 The Florida Supreme Court has defined economic losses as “‘damages for
inadequate value, costs of repair and replacement of the defective product, or
consequent loss of profits—without any claim of personal injury or damage to
other property.’” Casa Clara Condo. Ass’n, Inc. v. Charley Toppino and Sons, Inc.,
620 So. 2d 1244, 1246 (Fla. 1993) (quoting Note, Economic Loss in Products Lia-
bility Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966)), receded from on other
grounds by Tiara, 110 So. 3d 399. The Florida Supreme Court has further ex-
plained that economic loss “includes ‘the diminution in the value of the prod-
uct because it is inferior in quality and does not work for the general purposes
for which it was manufactured and sold.’” Id. (quoting Comment, Manufac-
turers’ Liability to Remote Purchasers for “Economic Loss” Damages–Tort or Con-
tract?, 114 U. Pa. L. Rev. 539, 541 (1966)). And the Florida Supreme Court has
also defined economic loss more broadly “as the loss of the ‘benefit of [the
plaintiff’s] bargain.’” Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d
532, 536 n.1 (Fla. 2004), (quoting Casa Clara, 620 So. 2d at 1246), receded from
on other grounds by Tiara, 110 So. 3d 399.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 10 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 10 of 21

-- 10 of 21 --

22-14104 Opinion of the Court 11
At common law, consumers were inhibited from recovery
in a products liability case in the absence of privity of contract. See
Matthews v. Lawnlite Co., 88 So. 2d 299, 300 (Fla. 1956). Florida and
other jurisdictions, however, eventually “imposed liability on a
manufacturer for personal injury caused by the manufacturer’s fail-
ure to exercise reasonable care in the adoption of a safe plan or de-
sign for a product placed in the stream of commerce, regardless of
privity.” Am. Aviation, 891 So. 2d at 538 (citing Matthews, 88 So. 2d
at 300). Then, in West v. Caterpillar Tractor Co., the Florida Supreme
Court held “that a manufacturer is strictly liable in tort when an
article he places on the market, knowing that it is to be used with-
out inspection for defects, proves to have a defect that causes injury
to a human being.” 336 So. 2d 80, 92 (Fla. 1976).
After West, “the issue arose as to whether the courts should
permit a cause of action in tort by one who suffered purely eco-
nomic loss due to a defective product.” Tiara, 110 So. 3d at 403.
The seminal case answering this question is Florida Power & Light
Co. v. Westinghouse Electric Corp., 510 So. 2d 899 (Fla. 1987). There,
Florida Power & Light (“FPL”) entered into contracts with West-
inghouse in which Westinghouse agreed to design, manufacture,
and supply two nuclear steam supply systems, which included six
steam generators. Id. at 900. After FPL discovered leaks in all six
steam generators, it sued Westinghouse in federal court, alleging
that Westinghouse was liable for both breach of express warranties
and negligence. Id. FPL sought damages for the cost of repair, re-
vision, and inspection of the steam generators. Id. With respect to
the negligence claim, FPL alleged “that Westinghouse negligently
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 11 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 11 of 21

-- 11 of 21 --

12 Opinion of the Court 22-14104
designed and manufactured the steam generators, failed to provide
proper operating instructions, and failed to warn of potential prob-
lems.” Id. This Court certified two questions to the Florida Su-
preme Court, asking, among other things, “[w]hether Florida law
permits a buyer under a contract for goods to recover economic
losses in tort without a claim for personal injury or property dam-
age to property other than the allegedly defective goods.” Id. at
899. And the Florida Supreme Court answered no, holding that
“contract principles [are] more appropriate than tort principles for
resolving economic loss without an accompanying physical injury
or property damage.” Id. at 902.
Thus, as the Florida Supreme Court later explained, “[i]n ex-
change for eliminating the privity requirements of warranty law
and expanding the tort liability for manufacturers of defective prod-
ucts which cause personal injury, [it] expressly limited tort liability
with respect to defective products to injury caused to persons or
damage caused to property other than the defective product itself.”
Am. Aviation, 891 So. 2d at 541. This rule “applies even in the ab-
sence of privity of contract.” Id.
At one time, the Florida Supreme Court also “expand[ed]
the application of the rule beyond its [product liability] origins.”
Moransais v. Heathman, 744 So. 2d 973, 980 (Fla. 1999), receded from
on other grounds by Tiara, 110 So. 3d 399. For example, in AFM Corp.
v. Southern Bell Telephone & Telegraph Co., the plaintiff entered into
an agreement with the defendant to include the plaintiff’s advertis-
ing in a telephone directory. 515 So. 2d 180, 180 (Fla. 1987). But
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 12 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 12 of 21

-- 12 of 21 --

22-14104 Opinion of the Court 13
the defendant listed the plaintiff’s old phone number, mistakenly
assigned that number to another customer, and then failed to suc-
cessfully remedy the issue. Id. at 180–81. As a result, the plaintiff
subsequently sued in tort to recover the economic losses. Id. at
181. The Florida Supreme Court, however, held that the plaintiff
was barred from suing in tort, relying in part on the economic loss
rule. See id. at 181–82.
The Florida Supreme Court, however, has retreated from
this expansion. In American Aviation, the Florida Supreme Court
“recede[d] from AFM Corp. to the extent that it relied on the princi-
ples adopted by this Court in Florida Power.” 891 So. 2d at 542. The
Florida Supreme Court also refused to apply the rule in cases con-
cerning professional malpractice, fraudulent inducement, negli-
gent misrepresentation, and statutory causes of action. See id. at
543 (listing exceptions). Then, in Tiara, the Florida Supreme Court
receded from its “prior rulings to the extent that they have applied
the economic loss rule to cases other than products liability,” and
returned “the economic loss rule to its origin in products liability.”
110 So. 3d at 407. This remains the state of the doctrine in Florida
today.
B. Parties’ Arguments
Liebherr-America argues that the economic loss rule applies
because this is a products liability case, despite the parties’ stipula-
tion that the crane was not defective. Florida law, as Liebherr-
America explains, imposes on distributors like Liebherr-America a
duty to warn of the potential dangers of a product. With respect
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 13 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 13 of 21

-- 13 of 21 --

14 Opinion of the Court 22-14104
to “inherently dangerous” products, the Florida Supreme Court ex-
plained the duty this way:
When a distributor of an inherently dangerous com-
modity places it in the channels of trade, then by the
very nature of his business he assumes the duty of
conveying to those who might use the product a fair
and adequate warning of its dangerous potentialities
to the end that the user by the exercise of reasonable
care on his own part shall have a fair and adequate
notice of the possible consequences of use or even
misuse.
Tampa Drug Co v. Wait, 103 So. 2d 603, 607 (Fla. 1958), receded from
in part by Felix v. Hoffmann-LaRoche, Inc., 540 So. 2d 102 (Fla. 1989).
And long ago, the Florida Supreme Court said that “a crane in op-
eration is inherently dangerous.” Geffrey v. Langston Constr. Co., 58
So. 2d 698, 699 (Fla. 1952); see Grove Mfg. Co. v. Storey, 489 So. 2d
780, 782 (Fla. 5th DCA 1986) (applying Wait in a case concerning
the warnings accompanying a crane). The Florida Supreme Court
has also found that a “a manufacturer has a duty to warn of dan-
gerous contents in its product which could damage or injure even
when the product is not used for its intended purpose.” High v.
Westinghouse Elec. Corp., 610 So. 2d 1259, 1262 (Fla. 1992).
Florida’s intermediate appellate courts have applied the duty
to warn in various cases, including those involving goods with
“dangerous propensities.” See, e.g., Scheman-Gonzalez v. Saber Mfg.
Co., 816 So. 2d 1133, 1139 (Fla. 4th DCA 2002) (“Unless the danger
is obvious or known, a manufacturer has a duty to warn where its
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 14 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 14 of 21

-- 14 of 21 --

22-14104 Opinion of the Court 15
product is inherently dangerous or has dangerous propensities.”);
Advance Chem. Co. v. Harter, 478 So. 2d 444, 447 (Fla. 1st DCA 1985)
(“Although the Wait case speaks of the duty to warn in terms of an
‘inherently dangerous’ product, it is clear that the duty to warn
arises when the product has dangerous propensities as well.”); see
also, e.g., Rodriguez v. New Holland N. Am., Inc., 767 So. 2d 543, 544–
45 (Fla. 3d DCA 2000). And this duty to warn exists even if the
product is non-defective. See, e.g., Cohen v. Gen. Motors Corp., Cadil-
lac Div., 427 So. 2d 389, 390 (Fla. 4th DCA 1983) (“[A] warning of a
known danger in a non-defective machine is required in the exer-
cise of reasonable care. . . . [A] supplier of a product who knows or
has reason to know that the product is likely to be dangerous in
normal use has a duty to warn those who may not fully appreciate
the possibility of such danger.”); Dayton Tire & Rubber Co. v. Davis,
348 So. 2d 575, 581 (Fla. 1st DCA 1977) (explaining that the Wait
Court “imposed a strict duty to adequately warn the consumer of
a product’s dangerous propensities when that product by its very
nature, free of defect, is dangerous”), quashed on other grounds sub
nom. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d
1339 (Fla. 1978).
Further, Florida courts have described cases concerning this
duty to warn as “products liability action[s] . . . based on negli-
gence.” West v. Caterpillar Tractor Co., 336 So. 2d 80, 90 (Fla. 1976);
see also, e.g., R.J. Reynolds Tobacco Co. v. Nelson, 353 So. 3d 87, 89 (Fla.
1st DCA 2022) (discussing “Florida law addressing product liability
based on negligent design and negligent failure to warn”); Emerson
Elec. Co. v. Garcia, 623 So. 2d 523, 524 (Fla. 3d DCA 1993) (reviewing
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 15 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 15 of 21

-- 15 of 21 --

16 Opinion of the Court 22-14104
a jury verdict in a “products liability case” in which one of the the-
ories of liability was the “negligent failure to warn”); Advance Chem.
Co., 478 So. 2d at 445–48 (describing a case concerning the “negli-
gent failure to warn” as a “products liability case”).
Additionally, under Florida’s strict products liability law, a
product may be defective because of an inadequate warning.
Ferayorni v. Hyundai Motor Co., 711 So. 2d 1167, 1170 (Fla. 4th DCA
1998); see also Force v. Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th
DCA 2004) (“In the byzantine world of products liability, there are
three basic families of defects that may be the subject of strict prod-
uct liability: manufacturing defects, design defects, and failures to
warn.”). In such a case, a plaintiff must prove “that the defendant
did not adequately warn of a particular risk that was known or
knowable in light of the generally recognized and prevailing best
scientific and medical knowledge available at the time of manufac-
ture and distribution.” Ferayoni, 711 So. 2d at 1172 (quoting Ander-
son v. Owens–Corning Fiberglas Corp., 810 P.2d 549, 558 (Cal. 1991))
(emphasis removed).
Here, Liebherr-America argues, both theories of negli-
gence—the failure to adequately train and the failure to promptly
send the product safety bulletin—are in essence failure to warn
claims.
For an example of the economic loss rule applied to a failure
to warn claim, Liebherr-America directs us to the Florida Supreme
Court’s decision in Airport Rent-A-Car, Inc. v. Prevost Car, Inc., 660
So. 2d 628 (Fla. 1995), receded from on other grounds by Tiara, 110 So.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 16 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 16 of 21

-- 16 of 21 --

22-14104 Opinion of the Court 17
3d 399. There, we certified three questions to the Florida Supreme
Court, including one asking whether, “under Florida law, a cause
of action may exist outside the bar of the economic loss rule where
the plaintiffs allege a duty to warn which arose from facts which
came to the knowledge of the company after the manufacturing
process and after the contract.” Id. at 629. The Florida Supreme
Court answered no: the “failure to warn, without the requisite
harm [to person or other property], will not circumvent the eco-
nomic loss rule” in such circumstances. Id. at 632. There is another
example too. In Florida Power & Light, one of FPL’s allegations was
that Westinghouse “failed to warn of potential problems” with re-
spect to the steam generators at issue. 510 So. 2d at 900. And the
Florida Supreme Court, of course, concluded that the economic
loss rule applied to bar FPL’s claim. Id. at 902.
NBIS, in response, hangs its hat on the parties’ stipulation
that the crane itself was not defective. Because it is not “pursuing
a product liability action asserting a product defect,” but is instead
suing Liebherr-America for “negligent services,” it argues that the
economic loss rule is inapplicable. For this reason, NBIS argues
that Airport-Rent-A-Car is distinguishable, for there the plaintiff as-
serted a product defect while here the parties have agreed that the
crane was not defective. And the same is true with respect to the
steam generators at issue in Florida Power & Light, which were also
allegedly defective. 510 So. 2d at 899.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 17 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 17 of 21

-- 17 of 21 --

18 Opinion of the Court 22-14104
C. Certification
We find Florida law unclear as to the economic loss rule’s
applicability here. On one hand, we see merit in Liebherr-Amer-
ica’s argument that NBIS’s theories of negligence are like the failure
to warn theories found in products liability law. If Liebherr-Amer-
ica could not be held liable for economic loss resulting from an in-
adequate training manual under Florida’s economic loss rule, then
it makes sense for that rule to also shield Liebherr-America from
liability for economic loss arising from its failure to adequately train
Sims and to promptly send the product safety bulletin.
On the other hand, NBIS is correct that cases concerning
product defects are at the heart of Florida’s economic loss rule. In-
deed, “from the outset, the focus of the economic loss rule was di-
rected to damages resulting from defects in the product itself.” Ti-
ara, 110 So. 3d at 404; see also id. at 410 (Pariente, J., concurring)
(“We now eliminate once and for all any confusion in the applica-
tion of the economic loss rule . . . and clearly espouse Justice Wells’
view that ‘the economic loss rule should be limited to cases involv-
ing a product which damages itself by reason of a defect in the prod-
uct.’”) (quoting Moransais, 744 So. 2d at 984 (Wells, J., concur-
ring))); Am. Aviation, 891 So. 2d at 538 (“[T]he products liability eco-
nomic loss rule developed to protect manufacturers from liability
for economic damages caused by a defective product beyond those
damages provided for by warranty law.”). Even the case on which
Liebherr-America relies, Airport Rent-A-Car, concerned a defective
product. 660 So. 2d at 629, 632. And while Liebherr-America is a
distributor of the crane at issue, we wonder how applying Florida’s
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 18 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 18 of 21

-- 18 of 21 --

22-14104 Opinion of the Court 19
economic loss rule in this case might affect Florida’s tort law with
respect to defendants who are not in the distributive chain. In
other words, if a defendant, not in the distributive chain, negli-
gently trained Sims and the collapse of the crane’s boom resulted,
would the economic loss rule still apply? If the answer is yes, then
that would appear to be an extension of Florida’s economic loss
rule in tension with Tiara and Am. Aviation. And if the answer is
no, then it is worth considering why it makes sense to exempt
Liebherr-America from liability solely because it is a distributor of
the product at issue.
These are all questions and considerations, however, for the
Florida Supreme Court, not this Court. “When faced with substan-
tial doubt on a dispositive state law issue, our ‘better option is to
certify the question to the state supreme court.’” WM Mobile Bay
Env’t Ctr., Inc. v. City of Mobile Solid Waste Auth., 972 F.3d 1240, 1251
(11th Cir. 2020) (quoting In re Mooney, 812 F.3d 1276, 1283 (11th
Cir. 2016)). Certification serves interests “of federalism and com-
ity,” Steele v. Comm’r of Soc. Sec., 51 F.4th 1059, 1065 (11th Cir. 2022),
and provides us with “‘what we can be assured are “correct” an-
swers to state law questions.’” Miss. Valley Title Ins. Co. v. Thomp-
son, 754 F.3d 1330, 1334 (11th Cir. 2014) (quoting Forgione v. Dennis
Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996)). Given that
Florida’s economic loss rule is a doctrine of the Florida Supreme
Court’s making, that court, not this one, should determine
whether it applies in circumstances not already addressed in the
case law.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 19 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 19 of 21

-- 19 of 21 --

20 Opinion of the Court 22-14104
We therefore certify to the Florida Supreme Court the fol-
lowing question:12
Whether, under Florida law, the economic loss rule
applies to negligence claims against a distributor of a
product, stipulated to be non-defective, for the failure
to alert a product owner of a known danger, when
the only damages claimed are to the product itself?
As always, our phrasing of these questions serves “only as a
guide.” United States v. Clarke, 780 F.3d 1131, 1133 (11th Cir. 2015).
“[W]e do not mean, by our presentation of the issue, our phrasing
of the question, or otherwise, to restrict the Florida Supreme
Court’s analysis of this or any other issue it chooses to address.” Id.
And “if we have overlooked or mischaracterized any state law is-
sues or inartfully stated” the question we have posed “we hope the
[Florida] Supreme Court will feel free to make the necessary cor-
rections.” Spain v. Brown & Williamson Tobacco Corp., 230 F.3d
1300, 1312 (11th Cir. 2000).
III. CONCLUSION
For these reasons, we defer our decision in this case until the
Florida Supreme Court has had the opportunity to consider and
determine whether to exercise its discretion in answering our
12 The Florida Supreme Court “[m]ay review a question of law certified by the
Supreme Court of the United States or a United States Court of Appeals which
is determinative of the cause and for which there is no controlling precedent
of the supreme court of Florida.” Fla. Const. art. V, § 3(b)(6); see also Fla. Stat.
§ 25.031. And Florida Rule of Appellate Procedure 9.150 “establishes the pro-
cedures governing those discretionary proceedings to review such certified
questions.” Steele, 51 F.4th at 1065 n.3.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 20 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 20 of 21

-- 20 of 21 --

22-14104 Opinion of the Court 21
certified question. The entire record of this case, including the par-
ties’ briefs, is transmitted to the Florida Supreme Court.
QUESTION CERTIFIED.
USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 21 of 21 USCA11 Case: 22-14104 Document: 44-1 Date Filed: 02/29/2024 Page: 21 of 21

-- 21 of 21 --