149 N.J. 620 (1997) 695 A.2d 264

SAMUEL P. ALLOWAY, III, AND NEW HAMPSHIRE INSURANCE CO., PLAINTIFFS-RESPONDENTS,
v.
GENERAL MARINE INDUSTRIES, L.P., DEFENDANT-APPELLANT, AND MULLICA RIVER BOAT BASIN, DEFENDANT.

The Supreme Court of New Jersey.

Argued November 18, 1996. Decided June 30, 1997.

*622 John C. Penberthy, III, argued the cause for appellant (Mesirov Gelman Jaffe Cramer & Jamieson, attorneys; Mr. Penberthy and Matthew O. Dickstein, on the brief).

Sanford F. Schmidt and Edward A. Penberthy argued the cause for respondents (Brandt Haughey Penberthy Lewis & Hyland, attorneys for Samuel P. Alloway, III, and Mr. Schmidt, attorney for New Hampshire Insurance Co.; Suzanne E. Bragg, on the brief).

The opinion of the Court was delivered by POLLOCK, J.

The primary issue is whether New Hampshire Insurance Co. ("New Hampshire") and its insured, Samuel P. Alloway III ("Alloway") (jointly described as "plaintiffs") may recover from General *623 Marine Industries, Inc. ("GMI") in negligence and strict liability for economic loss caused by a defect in a power boat purchased by Alloway and insured by New Hampshire. Alloway purchased the boat from Mullica River Boat Basin ("Mullica"), a retail boat dealer, and insured it with New Hampshire under a comprehensive general insurance policy. Mullica had purchased the boat from Century Boats ("Century"), an unincorporated division of Glasstream Boats, Inc. ("Glasstream"), the manufacturer. Subsequently, Glasstream went bankrupt, and GMI, formerly known as GAC Partners, P.L. ("GAC"), purchased Glasstream's assets.

Allegedly because of a defective seam in the swimming platform, water seeped into the boat, which sank while docked. New Hampshire paid Alloway under the policy. Alloway then subrogated New Hampshire to his rights, subject to Alloway's claim for the deductible portion of his loss.

Plaintiffs instituted this action to recover for their respective economic losses. The Law Division granted GMI's motion to dismiss, holding that plaintiffs could not recover for economic loss resulting from damage to the boat itself. It held that plaintiffs' only claim was for breach-of-warranty under the Uniform Commercial Code ("U.C.C."), a claim barred by 11 U.S.C.A. § 363 ("§ 363") of the Bankruptcy Code. The Appellate Division reversed, holding that plaintiffs could recover in tort for the economic loss and that the Bankruptcy Code did not bar recovery. 288 N.J. Super. 479, 672 A.2d 1177 (1996). We granted certification, 145 N.J. 372, 678 A.2d 713 (1996). We reverse the judgment of the Appellate Division and reinstate that of the Law Division.

I.

From the limited record, the following facts emerge. In October 1989, Glasstream filed a voluntary petition in bankruptcy. Five months later, the Bankruptcy Court directed Glasstream to sell substantially all of its assets to GMI "free and clear of any interest in such property." At some unspecified time, Glasstream made the boat and sold it to Mullica.

*624 On July 14, 1990, Alloway purchased the boat, a new thirty-three foot Century Grande XL ("Grande") boat from Mullica. The purchase price was $61,070. Century expressly warranted for twelve months from the date of purchase that the boat was "free from defects in material and workmanship under normal use and when operated according to instructions." Alloway obtained from New Hampshire a comprehensive general insurance policy on the boat.

Three months later, while docked at the Bayview Marina in Manahawkin, New Jersey, the Grande sank. No other property was damaged, and no one sustained personal injuries.

Alloway filed a claim with New Hampshire, which spent $40,106.63 to repair the boat. Alloway, who had a $2,500 deductible under the policy, paid $2,490 towards the repairs. After completion of the repairs, he received a trade-in credit of $38,770 for the Grande on the purchase of a new boat.

Thereafter, Alloway filed a three-count complaint against Mullica and GMI, seeking recovery for his economic loss. In count one, Alloway sought to recover for Mullica's breach of "the manufacturer's warranty" for "repair or replacement of any part found to be defective." Count two alleged a strict-liability claim asserting that Century had manufactured a defective boat for which GMI was liable as Century's successor. Count three alleged that Glasstream, "negligently manufactured and inspected the boat," that GMI was liable to Century's successor, and that Mullica had failed to discover the defect.

Alloway then assigned his claims to New Hampshire, but retained a claim for the loss in value of the boat. He sought the $2,490 he had paid towards the repair of the boat, "[t]he difference in value between the price paid for the boat and the market value of the boat in its defective condition," attorneys' fees, and costs. Thereafter, plaintiffs filed an amended complaint asserting, in addition to Alloway's original claims, New Hampshire's claim for the cost of repairs.

*625 On October 3, 1991, GMI, as successor to Glasstream, removed the action to the United States District Court for the District of New Jersey, which referred the matter to the Bankruptcy Court. Alloway and New Hampshire filed a proof of claim as unsecured creditors. The Bankruptcy Court then remanded the matter to the Law Division.

The Law Division granted GMI's motion to dismiss for failure to state a cause of action. It relied on Spring Motors Distribs. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985), which held that a purchaser could not maintain an action in strict liability for economic loss. It also relied on D'Angelo v. Miller Yacht Sales, 261 N.J. Super. 683, 619 A.2d 689 (1993), in which the Appellate Division held that a consumer who had purchased a yacht that was not as represented could sue the manufacturer under the U.C.C. for breach of warranty, but not in strict liability. According to the D'Angelo court, the U.C.C. provides a consumer with the exclusive remedy for economic loss resulting from the breach of express or implied warranties. Id. at 688, 619 A.2d 689. The Law Division reasoned that because plaintiffs sought to recover for economic loss to the boat itself, GMI was not liable as Glasstream's successor.

Because Mullica's insurer was insolvent, New Hampshire dismissed its subrogation claim against Mullica. See N.J.S.A. 17:30A-5, -8 (denying subrogation claims against insured of insolvent insurer). Alloway then settled his claim against Mullica, thereby extinguishing plaintiffs' claims for breach of warranty. Thus, Alloway has already received payment from New Hampshire for the cost of repairs, less the $2,500 deductible under his policy, and an undisclosed sum in settlement of his claim against Mullica.

The Appellate Division reversed, relying on Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), which recognized that a consumer could maintain a strict-liability claim against a manufacturer for loss of value of a defective carpet. According to the Appellate Division, Spring Motors precluded a *626 commercial purchaser, but not a consumer, from recovering in strict liability. 288 N.J. Super. at 486-87, 672 A.2d 1177. Observing that Spring Motors declined to reconsider Santor, the Appellate Division concluded that "[s]ince Santor has not been overruled, we must follow it." Id. at 488, 672 A.2d 1177. In so holding, the court rejected the Appellate Division's holding in D'Angelo, supra, 261 N.J. Super. 683, 619 A.2d 689.

The Appellate Division also concluded that plaintiffs could recover against GMI as the successor to Glasstream. The court relied on Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981), which permitted a worker who was injured by a defective power press to maintain a strict-liability action against a defendant that had purchased the assets of the manufacturer of the press. According to the Appellate Division, the right to recover in strict liability against a successor owner should not depend on whether the recovery was for personal injuries or economic loss. 288 N.J. Super. at 490-91, 672 A.2d 1177. In addition, the court reasoned that the Bankruptcy Court's sale of the boat "free and clear of any interest in [the boat]" did not extend to lawsuits and, therefore, did not bar the instant action. Id. at 493, 672 A.2d 1177. Finally, the court held that a suit against GMI as the purchaser of Century's assets in the bankruptcy sale did not constitute a claim against Century. Consequently, plaintiffs' suit against GMI did not offend the Bankruptcy Code's scheme for the priority of claimants. Ibid. Essentially, the Appellate Division held that GMI, as the successor to Glasstream, was liable to plaintiffs in negligence and strict liability for economic loss caused by the sinking of the boat.

II.

The threshold issue is whether plaintiffs may rely on theories of strict liability and negligence to recover damages for economic loss resulting from a defect that caused injury only to the boat itself. Plaintiffs seek damages for the cost of repair and for the boat's lost value on trade-in. They do not allege that other property was *627 damaged or that anyone sustained personal injuries. The question reduces to whether plaintiffs may use tort theories to recover the lost benefit of their bargain from the purchaser of the manufacturer's assets, GMI.

Preliminarily, economic loss encompasses actions for the recovery of damages for costs of repair, replacement of defective goods, inadequate value, and consequential loss of profits. See James J. White & Robert S. Summers, Uniform Commercial Code 534-44 (3d ed. 1988); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L.Rev. 917, 918 (1966). Economic loss further includes "the diminution in value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold." Comment, Manufacturers' Liability to Remote Purchasers For `Economic Loss' Damages — Tort or Contract?, 114 U.Pa.L.Rev. 539, 541 (1966).

Allocation of economic loss between a manufacturer and a consumer involves assessment of tort and contract principles in the determination of claims arising out of the manufacture, distribution, and sale of defective products. Generally speaking, tort principles are better suited to resolve claims for personal injuries or damage to other property. See Spring Motors Distribs., supra, 98 N.J. at 579-80, 489 A.2d 660; East River S.S. v. Transamerica Delaval, 476 U.S. 858, 871-72, 106 S.Ct. 2295, 2302-03, 90 L.Ed.2d 865 (1986); Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal. Rptr. 17, 403 P.2d 145, 149-51 (1965); Bocre Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685, 621 N.Y.S.2d 497, 499, 645 N.E.2d 1195, 1197 (1995). Contract principles more readily respond to claims for economic loss caused by damage to the product itself. See Spring Motors, supra, 98 N.J. at 580, 489 A.2d 660; East River, supra, 476 U.S. at 871-72, 106 S.Ct. at 2302, 90 L.Ed.2d 865; Seely, supra, 45 Cal. Rptr. 17, 403 P.2d at 149-51; Lewinter v. Genmar Indus., 26 Cal. App.4th 1214, 32 Cal. Rptr.2d 305, 309 (1994); Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899, 901-02 (Fla. 1987); Oceanside At Pine Point v. *628 Peachtree Doors, Inc., 659 A.2d 267, 270 (Me. 1995); Bocre Leasing, supra, 621 N.Y.S.2d at 501, 645 N.E.2d at 1199.

Various considerations support the distinction. Tort principles more adequately address the creation of an unreasonable risk of harm when a person or other property sustains accidental or unexpected injury. See Spring Motors, supra, 98 N.J. at 570-71, 579-80, 489 A.2d 660. When, however, a product fails to fulfill a purchaser's economic expectations, contract principles, particularly as implemented by the U.C.C., provide a more appropriate analytical framework. See East River, supra, 476 U.S. at 871-75, 106 S.Ct. at 2302-04, 90 L.Ed.2d 865; Casa Clara v. Charley Toppino & Sons, 620 So.2d 1244, 1247 (Fla. 1993); Oceanside, supra, 659 A.2d at 270; Bocre Leasing, supra, 621 N.Y.S.2d at 500-01, 645 N.E.2d at 1198-99; Waggoner v. Town & Country Mobile Homes, 808 P.2d 649, 652-53 (Okla. 1990). Implicit in the distinction is the doctrine that a tort duty of care protects against the risk of accidental harm and a contractual duty preserves the satisfaction of consensual obligations. Casa Clara, supra, 620 So.2d at 1246-47; Spring Motors, supra, 98 N.J. at 579, 489 A.2d 660.

Relevant to the distinction are "the relative bargaining power of the parties and the allocation of the loss to the better risk-bearer in a modern marketing system." Spring Motors, supra, 98 N.J. at 575, 489 A.2d 660; see East River, supra, 476 U.S. at 871-73, 106 S.Ct. at 2302-03, 90 L.Ed.2d 865. Perfect parity is not required for a finding of substantially equal bargaining power. Spring Motors, supra, 98 N.J. at 576, 489 A.2d 660. Although a manufacturer may be in a better position to absorb the risk of loss from physical injury or property damage, a purchaser may be better situated to absorb the "risk of economic loss caused by the purchase of a defective product." Ibid.; see East River, supra, 476 U.S. at 871, 106 S.Ct. at 2302, 90 L.Ed.2d 865 (noting purchaser can insure against risk of economic loss); Lucker Mfg. v. Milwaukee Steel Foundry, 777 F. Supp. 413, 416-17 (E.D.Pa. *629 1991) (same); Bocre Leasing, supra, 621 N.Y.S.2d at 498, 645 N.E.2d at 1196 (same).

In the present case, nothing indicates that Alloway was at a disadvantage when bargaining for the purchase of the boat. Moreover, a thirty-three foot luxury boat with a swimming platform is not a necessity. Additionally, Alloway prudently protected himself against the risk of loss by obtaining an insurance policy that distributed that risk to his insurer, New Hampshire. To this extent, the question becomes whether GMI, which acquired the assets of the bankrupt manufacturer, or New Hampshire, which is in the business of insuring against the risk of harm caused by defective products, can better bear the risk of loss from damage to the boat. See generally East River, supra, 476 U.S. at 871-72, 106 S.Ct. at 2302, 90 L.Ed.2d 865; Bocre Leasing, supra, 621 N.Y.S.2d at 498, 500-01, 645 N.E.2d at 1196, 1198-99.

Also involved is an appreciation of the relative roles of the legislative and judicial branches in defining rights and duties in commercial transactions. Absent legislation, courts possess greater latitude in determining those rights and duties. Once the Legislature acts, respect for it as a co-equal branch of government requires courts to consider the legislation in determining the limits of judicial action. See Spring Motors, supra, 98 N.J. at 577, 489 A.2d 660; see also Danforth v. Acorn Structures, Inc., 608 A.2d 1194, 1200-01 (Del. 1992) (declining to displace provisions of U.C.C. with tort actions). By enacting the U.C.C., the Legislature adopted a comprehensive system for compensating consumers for economic loss arising from the purchase of defective products. See Spring Motors, supra, 98 N.J. at 577, 489 A.2d 660; Danforth, supra, 608 A.2d at 1194, 1200-01; Waggoner, supra, 808 P.2d at 653. The U.C.C. represents the Legislature's attempt to strike the proper balance in the allocation of the risk of loss between manufacturers and purchasers for economic loss arising from injury to a defective product. See generally James J. White & Robert S. Summers, 1 Uniform Commercial Code 582 (4th ed. 1995); East River, supra, 476 U.S. at 872-73, 106 S.Ct. at 2302-04, *630 90 L.Ed.2d 865; Seely, supra, 45 Cal. Rptr. at 20, 403 P.2d at 148; Spring Motors, supra, 98 N.J. at 577, 489 A.2d 660; Bocre Leasing, supra, 621 N.Y.S.2d at 498, 645 N.E.2d at 1196.

Consequently, the U.C.C. provides for express warranties regarding the quality of goods, N.J.S.A. 12A:2-313, as well as an implied warranty of merchantability, N.J.S.A. 12A:2-314, and an implied warranty of fitness for a particular purpose, N.J.S.A. 12A:2-315. When a seller delivers goods that are not as warranted, the buyer may recover the difference between the value of the defective goods and their value if they had been as warranted. Furthermore, a provision in a merchant's form is not binding on a consumer unless the consumer has signed the form. N.J.S.A. 12A:2-209(2). A consumer, moreover, may recover incidental and consequential damages. N.J.S.A. 12A:2-715(1), (2); N.J.S.A. 12A:2-714. In addition, the Legislature has directed courts to construe the U.C.C. liberally and to promote the U.C.C.'s underlying purposes and policies. N.J.S.A. 12A:1-102(1).

As a counterbalance, the U.C.C. allows manufacturers to limit their liability through disclaimers, except for personal injuries. N.J.S.A. 12A:2-316. Further, the U.C.C. allows parties to modify or limit damages by agreement. N.J.S.A. 12A:2-719. Finally, the U.C.C. provides a four-year statute of limitations to institute an action under its provisions. N.J.S.A. 12A:2-725. This comprehensive scheme offers significant protection to consumers while insuring that merchants are not saddled with substantial and uncertain liability. See East River, supra, 476 U.S. at 874, 106 S.Ct. at 2303-04, 90 L.Ed.2d 865.

Over thirty years ago, before the U.C.C. took effect, this Court ruled that strict liability in tort provided more suitable relief than an action for breach of an implied warranty of merchantability. Santor, supra, 44 N.J. at 53, 207 A.2d 305. The Court reached this unprecedented result notwithstanding that an action for breach of implied warranty, like one in strict liability, did not require privity between the purchaser and the manufacturer. See id. at 60-63, 207 A.2d 305.

*631 Disagreement with Santor was not long in coming. In Seely, supra, 63 Cal.2d 9, 45 Cal. Rptr. 17, 403 P.2d 145, which was decided four months after Santor, the purchaser of a defective truck sued for damage to the truck and lost profits from his inability to use it in his heavy-duty hauling business. Writing for the California Supreme Court, Chief Justice Roger Traynor recognized the purchaser's claim for breach of an express warranty, but rejected his claim in strict liability. In reaching that result, Chief Justice Traynor reasoned that absent personal injury or property damage, strict liability in tort was not designed "to undermine the warranty provisions of the ... Uniform Commercial Code but, rather, to govern the distinct problem of physical injuries." Id., 45 Cal. Rptr. at 21, 403 P.2d at 149.

Twenty years later, we addressed "the rights of a commercial buyer to recover for economic loss caused by the purchase of defective goods." Spring Motors, supra, 98 N.J. at 560, 489 A.2d 660. In that case, Spring Motors Distributors ("Spring Motors"), a commercial lessor of vehicles, bought a fleet of trucks from Ford Motor Co. ("Ford"). Id. at 562, 489 A.2d 660. Pursuant to the sales, Ford issued an express warranty on transmissions manufactured by Clark Equipment Co. ("Clark"), which had issued express warranties to Ford. Spring Motors' lessee experienced difficulties with the transmissions. Id. at 563, 489 A.2d 660. Consequently, Spring Motors suffered economic losses, which included costs of repair, lost profits, and a decrease in the market value of the trucks. Id. at 564, 489 A.2d 660. Thereafter, Spring Motors sued Ford under theories of negligence, strict liability and breach of warranty. Ibid. The basic issue was whether the applicable statute of limitations was the four-year statute in the U.C.C., N.J.S.A. 12A:2-725, or the six-year statute of limitations pertaining to tort actions for property damage, N.J.S.A. 2A:14-1. We held that Spring Motors had a cause of action against both Ford and Clark for breach of warranty and that the U.C.C.'s four-year period of limitations determined the time for the commencement of the action.

*632 When the harm suffered is to the product itself, unaccompanied by personal injury or property damage, we concluded that principles of contract, rather than of tort law, were better suited to resolve the purchaser's claim. Id. at 580, 489 A.2d 660. Consequently, we held that the U.C.C. provided the appropriate period of limitations. Id. at 561, 489 A.