The first question certified by the Eleventh Circuit in this case is whether Georgia’s economic loss rule allows a plaintiff to recover in tort lost profits that would have only been realized by using its damaged property and other damaged property that it did not own.1 We hold that established Georgia law and policy considerations dictate that a plaintiff may only recover lost profits associated with damage to its own property. Because we answer this question in the negative, we need not answer the second certified question.2 Lowe’s Home Centers, Inc. operated a retail store on a 5.8-acre parcel of land in Rome, Georgia until 1998. During the 1990s, Lowe’s sought to replace the retail store with a much larger “superstore,” which would also require the acquisition of adjacent property. Lowe’s therefore entered into an agreement with a developer, Horne Properties, under which Horne would buy adjacent property and lease it to Lowe’s. All of the relevant property is located near a General Electric Company plant where polychlorinated biphenyls PCBs were used. After PCBs were discovered on the first parcel of adjacent property sought by Horne, Lowe’s and Horne canceled their agreements with respect to this property. Lowe’s and Horne then entered into a second agreement for a different, 8-acre adjacent parcel that is the subject of this case. After testing revealed PCBs on this property and on Lowe’s existing property, Horne and Lowe’s canceled their agreements for the second parcel, which was permitted by the contractual terms.
Lowe’s then filed suit against GE in the United States District Court for the Northern District of Georgia alleging trespass, nuisance, negligence, and negligence per se in addition to federal environmental claims. The jury awarded Lowe’s $18 million in lost profits associated with the planned superstore; $2 million for the reduction of rental value of Lowe’s existing property; and $163,581 for Lowe’s costs of investigating and responding to the contamination. On appeal, the Eleventh Circuit certified to this Court the two questions discussed earlier —in short, whether the “economic loss rule” or the “new business rule” barred Lowe’s from recovering lost profits associated with its planned superstore.
