A. LEGAL BACKGROUND Before Fultz, when a plaintiff pleaded a tort arising out of a defendant's breach of contractual obligations, Michigan courts historically drew a distinction between "misfeasance" of a contractual obligation — i.e., "active misconduct" — and "nonfeasance" of a contractual obligation — i.e., "passive inaction," Williams v Cunninghamningham Drug Stores, Inc, 429 Mich 495, 498; 418 NW2d 381 (1988), or "failing to do what one has promised to do in the absence of a duty to act apart from the promise made," Ferrett v Gen Motors Corp, 438 Mich 235, 245 n 11; 475 NW2d 243 (1991) (quotation marks and citation omitted). Under this dichotomy, a contracting party generally was not liable in tort for the complete nonperformance of a contractual obligation, or nonfeasance, whereas defective performance of a contractual obligation, or misfeasance, could support an action in tort or contract. Rinaldo's Constr, 454 Mich at 83-84; Ferrett, 438 Mich at 245 n 11; Chase v Clinton Co, 241 Mich 478, 486; 217 NW 565 (1928).

. The Michigan Supreme Court revisited the contract/tort issue six years later in Ferrett v. GMC, 475 N.W.2d 243 (Mich. 1991), where General Motors fired an employee for excessive absenteeism, and he sued them for breach of contract and the putative tort of negligent performance evaluation. Ferrett, 475 N.W.2d at 244-45.

. The Michigan Supreme Court revisited the contract/tort issue six years later in Ferrett v. GMC , 475 N.W.2d 243 (Mich. 1991), where General Motors fired an employee for excessive absenteeism, and he sued them for breach of contract and the putative tort of negligent performance evaluation. Ferrett, 475 N.W.2d at 244-45.

. The Michigan Supreme Court revisited the contract/tort issue six years later in Ferrett v. GMC , 475 N.W.2d 243 (Mich. 1991), where General Motors fired an employee for excessive absenteeism, and he sued them for breach of contract and the putative tort of negligent performance evaluation. Ferrett, 475 N.W.2d at 244-45.

This Court and the Court of Appeals have defined a tort action stemming from misfeasance of a contractual obligation as the "violation of a legal duty separate and distinct from the contractual obligation." Rinaldo's Constr. Corp. v. Michigan Bell Tel. Co., 454 Mich 65, 84; 559 NW2d 647 (1997); see, also, e.g., Ferrett v. Gen. Motors Corp., 438 Mich 235, 245; 475 NW2d 243 (1991); Sherman v. Sea Ray Boats, Inc., 251 Mich App 41, 48; 649 NW2d 783 (2002). We believe that the "separate and distinct" definition of misfeasance offers better guidance in determining whether a negligence action based on a contract and brought by a third party to that contract may lie because it focuses on the threshold question of duty in a negligence claim.

The principles of Hart continue to be applied. In Ferrett v General Motors Corp, 438 Mich. 235, 245; 475 N.W.2d 243 (1991), the Court held that there was no right arising at common law as a matter of public policy, separate and distinct from any contractual right, to be evaluated or correctly evaluated before being discharged from employment. The Court stated:

The Court in Fultz looked at Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956), which cited and borrowed heavily from H.R. Mock, 159 N.E. at 896-98 (discussing H.R. Moch and borrowing the example of the surgeon who failed to sterilize his instruments quoted by the Court in Fultz). Rinaldo's Construction Corporation v. Michigan Bell Telephone Company, 454 Mich. 65, 559 N.W.2d 647 (1997), Ferrett v. General Motors Corporation, 438 Mich. 235, 475 N.W.2d 243 (1991), and Sherman v. Sea Ray Boats, Incorporated, 251 Mich.App. 41, 649 N.W.2d 783 (2002), recognized by the Court in Fultz as the authorities supporting the definition of "a tort action stemming from misfeasance of a contractual obligation as the violation of a legal duty separate and distinct from the contractual obligation," 683 N.W.2d at 591, all acknowledge Hart as the original source of law for the "separate and distinct" test for duty in this context. Sherman, 649 N.W.2d at 787; Ferrett, 475 N.W.2d at 245-46; Rinaldo's Constr., 559 N.W.2d at 657-58.

At the center of Arauco’s Motion is one of the more troublesome topics in commercial litigation: the often-uncertain boundary between tort and contract law. “Generally, under Michigan law, a plaintiff ‘[may] not maintain an action in tort for nonperformance of a contract.’”DBI Invs., LLC v. Blavin, 617 F. App’x 374, 381 (6th Cir. 2015) (quoting Ferrett v. Gen. Motors Corp., 475 N.W.2d 243, 247 (Mich. 1991)). While this rule is frequently referred to as the “economic loss doctrine,” it is more properly termed the “rule of Hart v. Ludwig” or the “Hart doctrine” where, as here, the contract at issue is not governed by the Uniform Commercial Code.See Vincent A. Wellman, Assessing the Economic Loss Doctrine in Michigan: Making Sense Out of the Development of Law, 54 Wayne L. Rev. 791, 818-25 (2008) (contrasting the economic loss doctrine and rule of Hart v. Ludwig).

(Pls.' Resp. at 31, Pg ID 287.) But the cases that Plaintiffs cite in support of this argument—Hart v. Ludwig, 347 Mich. 559 (1956), and two decisions that relied on it, Corl v. Huron Castings, Inc., 450 Mich 620 (1996), and Ferrett v. General Motors Corp., 438 Mich. 235 (1991)—all concern the uncontroversial principle that a tort claim cannot be sustained based on a breached promise alone, but must involve the violation of a separate legal duty owed by the defendant to the plaintiff. See, e.g., Corl, 450 Mich. 620, 627 n.10 (1996) ("This Court has distinguished between tort and contract actions as follows: 'Where the cause of action arises merely from a breach of promise, the action is in contract.

Relying upon the decisions of the Michigan Supreme Court in Hart v. Ludwig, 347 Mich. 559, 79 N.W.2d 895 (1956) and Ferrett v. General Motors Corp., 438 Mich. 235, 475 N.W.2d 243 (1991), the Sherman court determined that the boat manufacturer owed the purchaser no duty beyond that imposed by the terms of the contract. Cases recognizing a right to maintain an action in tort arising out of breach of contract by the defendant, generally involve a separate and distinct duty imposed by law for the benefit of the plaintiff that provides a right to maintain an action without regard to whether there was a contractual relationship between the plaintiff and the defendant. . . .