Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP

Adkins, J. In this appeal we revisit the elusive economic loss doctrine, to decide whether to extend a duty in tort to persons not in privity for the recovery of purely economic losses. Petitioner, a general contractor who successfully bid for work on a City of Baltimore construction project, argues that Respondent, the project’s design engineering firm, owes it a tort duty of care because Respondent knew that Petitioner would rely on its designs in bidding and constructing the project. We shall hold, that, in the absence of contractual privity, physical injury, ox-risk of physical injury, design professionals in large government construction projects do not owe a tort duty to those who bid for and contract with a government entity. FACTS AND LEGAL PROCEEDINGS The City of Baltimore (“City”) conti-acted with Rummel Klepper & Kahl, LLP (“Engineer”) to design upgrades to the Patapsco Wastewater Treatment Plant.

Under the contract, Engineer was tasked with designing the plans for two interrelated projects, Sanitary Contract 852R (“SC 852R”) and Sanitary Contract 845R (“the companion project”). 1 According to Balfour Beatty Infrastructure, Inc.’s (“Contractor”) complaint, Engineer’s responsibilities under the contract included: ⁶⁰⁵ • Developing the design for SC 852R and its companion project; • Developing drawings and specifications for prospective contractors to use when submitting bids and for the successful contractor to use for construction; • Developing construction timetables for the projects; • Providing responses to questions from prospective bidders regarding the design of the projects; • Evaluating and commenting on contractors’ bids; • Evaluating and approving submissions from the successful contractor during construction; • Inspecting the successful contractor’s work during construction to ensure conformance with Engineer’s design; and • Evaluating and accepting the successful contractor’s work and certifying the work to the City. The City opened both projects up to bids through its competitive bidding process. 2 Contractors that submitted bids had to be prequalified as being able to complete the work required by the designs. Contractor 3 was the successful bidder for SC 852R,. 4 Under its contract with the City, Contractor agreed to construct 34 denitrification filter cells (“DNF cells”), which are concrete tubs that hold untreated wastewater, next ⁶⁰⁶ to the existing wastewater treatment facility. Contractor was also to construct “pipes and pipe support systems” for SC 852R.

During construction, Contractor encountered leaking and other problems, which resulted in delays and cost overruns. In 2014, Contractor filed a complaint against Engineer in the Circuit Court for Baltimore City seeking to recover its financial losses. According to Contractor’s complaint, Engineer designed the DNF cells using expansion and contraction joints that were meant to accommodate changes in water pressure in the cells. On completion, the water retention ability of the DNF cells was tested.

The testing revealed leaks due to cracks in the expansion joints. Contractor averred that it constructed the DNF cells according to Engineer’s design, and any leaking from the expansion joints was a “direct result of deficiencies in [Engineer’s] design.” It alleged “substantial additional costs, expenses and time to remediate the leaks.” Contractor also claimed that Engineer’s “design of the pipe support system was defective,” which caused it to suffer additional financial losses and delays. Finally, Contractor averred that Engineer failed to timely complete the design for SC 852R’s companion project, which “hindered and delayed” Contractor’s construction of SC 852R. Engineer also allegedly failed to warn SC 852R’s prospective bidders of the delayed completion of the companion project’s design and established an unreasonable time line for the completion of SC 852R, which Contractor relied on when submitting its bid.

As a result, Contractor claimed, it “incurred significant cost, expense and time for which [Engineer] is responsible.” In its three-count complaint against Engineer, Contractor brought a professional negligence claim, a negligent misrepresentation claim, and a cause of action based on Restatement (Second) of Torts § 552. As to the professional negligence claim, Contractor alleged that an “intimate nexus” and “contractual privity equivalent” existed between it and Engineer, and that Engineer owed it a duty of reasonable care “exer ⁶⁰⁷ cised by similarly situated design professionals.” Contractor further alleged that it was a foreseeable party who “would utilize and directly rely upon [Engineer’s] professional services including, but not limited to, the preliminary and final design of [SC 852R].” In its negligent misrepresentation claim, Contractor asserted that because Engineer designed the interrelated projects, it was aware that any delay in the design of the companion project would impact SC 852R. Contractor also claimed that Engineer intended prospective bidders like Contractor to rely on the time line it had developed for SC 852R when submitting bids for the project, and an intimate nexus and privity equivalent existed between it and Engineer, establishing a duty. In Contractor’s words, Engineer owed it “a duty to fairly and accurately describe the contract duration for [SC 852R] as well as the status of the [companion project’s] design.” In addition, Contractor alleged, Engineer knew that the companion project’s design was not sufficiently complete to allow for timely completion of SC 852R.

Therefore, Contractor claimed, Engineer had a duty to advise prospective bidders, including Contractor, that SC 852R could not be completed within the time frame it had established. Finally, in its Restatement (Second) of Torts § 552 cause of action, Contractor alleged that Engineer provided designs, plans, and specifications for the construction of SC 852R, which contained deficiencies, and knew or should have known that Contractor would rely on those documents, causing it damages. Engineer filed a motion to dismiss for failure to state a claim. In its motion, Engineer argued that without privity between the parties, no legally cognizable tort duty ran from Engineer to Contractor that would permit recovery of purely economic losses.

Engineer also argued that the intimate nexus test and Restatement (Second) of Torts § 552 concepts of extra-contractual duty do not apply to design professionals and, even if they did, Contractor failed to allege facts satisfying these tests. ⁶⁰⁸ The Circuit Court granted Engineer’s motion to dismiss due to lack of privity between Contractor and Engineer. Contractor appealed. The Court of Special Appeals affirmed the dismissal of Contractor’s complaint based on lack of privity. Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kohl, LLP, 226 Md.App. 420 , 130 A.3d 1024 (2016).

It held that the economic loss doctrine barred Contractor’s negligence and negligent misrepresentation claims, and that privity equivalent concepts of extra-contractual duty did not apply in Contractor’s case. Id. at 445, 452-53, 459-60 , 130 A.3d 1024 . We granted Contractor’s Petition for Writ of Certiorari to consider the following questions: 1. Does the economic loss doctrine bar a general contractor’s professional negligence claim against a design professional on a government construction project under the privity-equivalent analysis of the intimate nexus test? 2.

Does the economic loss doctrine bar a general contractor’s action for negligent misrepresentation against a design professional on a government construction project? 3. Does the economic loss doctrine bar a general contractor’s action under the Restatement (Second) of Torts § 552 against a design professional on a government construction project? 5 ⁶⁰⁹ Because we answer yes to all three questions and decline to apply the privity-equivalent component of the intimate nexus test, we shall affirm the judgment of the Court of Special Appeals. STANDARD OF REVIEW We review a trial court’s grant of a motion to dismiss to determine whether it was legally correct. Kiriakos v. Phillips, 448 Md. 440, 454 , 139 A.3d 1006 (2016) (citation omitted).

In conducting this review, we assume that the facts and allegations in the complaint, and any inferences that may be drawn from them, are true and view them in a light most favorable to the non-moving party. Rounds v. Md-Nat’l Capital Park & Planning Comm’n, 441 Md. 621, 636 , 109 A.3d 639 (2015) (citation omitted). The Court does not, however, accept conclusory allegations and assertions containing insufficient facts as true. State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 497 , 92 A.3d 400 (2014) (citation omitted).

We only consider the well-pleaded facts to determine whether the complaint states a cause of action for which relief may be granted. Id. DISCUSSION Contractor’s overarching contention is that the economic loss doctrine 6 does not apply to its claims of professional negligence, Restatement (Second) of Torts § 552, and negligent misrepresentation because it only applies in products ⁶¹⁰ liability cases. Instead, Contractor avers, the intimate nexus test applies to its claims, and the alleg’ations in its complaint satisfy the test.

Therefore, Contractor asserts, Engineer owes it a duty of care and may be held liable in tort for the economic losses it has incurred. Engineer urges us to apply the economic loss doctrine, which is a principle courts have used to limit the expansion of tort liability absent privity. Engineer avers that under this doctrine there is no liability without privity when a plaintiff has suffered only economic loss without physical injury or risk thereof. Professional Negligence Contractor contends that Engineer is liable for damages it sustained under a negligence theory.

Contractor asserts that Engineer owed it a duty of care, and Engineer breached that duty when it failed to: (1) properly design DNF cells and a pipe support system for the SC 852R project; (2) establish a reasonable timetable for the SC 852R project; (3) timely design the companion project; and (4) inform Contractor that completion of the companion project’s design was delayed. Contractor avers that the allegations contained in its complaint establish a privity-equivalent intimate nexus between it and Engineer. 7 Therefore, Contractor contends, Engineer owed it a tort duty. To establish a negligence claim, a plaintiff must allege facts showing that: (1) the defendant owes the plaintiff a duty of care; (2) the defendant breached that duty; (3) the plaintiff sustained an injury or loss; and (4) the defendant’s breach of the duty was the proximate cause of the plaintiffs injury. 100 Inv. Ltd. P’ship v. Columbia Town Ctr.

Title Co., 430 Md. 197, 213 , 60 A.3d 1 (2013) (citation omitted). In a negligence claim against a provider of professional services, the professional is held to the standard of care of his or her profession. See Schultz v. Bank of Am., N.A., 413 Md. 15 , 28- ⁶¹¹ 29, 990 A.2d 1078 (2010). But without a duty of care, there is no liability in negligence.

Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 646 , 666, 762 A.2d 582 (2000) (citations omitted). Maryland defines “duty” as “an obligation to which the law will give effect and recognition to conform to a particular standard of conduct toward another.” Jacques v. First Nat’l Bank of Md., 307 Md. 527, 532 , 515 A.2d 756 (1986) (quoting J. Dooley, Modern Tort Law § 3.03, at 18-19 (1982, 1985 Cum. Supp.)). As Professors Prosser and Keeton have explained, duty is “an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” W. Page Keeton et ah, Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984). “To determine whether a tort duty exists in a particular context, we examine: (1) ‘the nature of the harm likely to result from a failure to exercise due care,’ and (2) ‘the relationship that exists between the parties.’ ” 100 Inn Ltd, P’ship, 430 Md. at 213-14 , 60 A.3d 1 (quoting Jacques, 307 Md. at 534 , 515 A.2d 756 ).

Privity, Tort Duty, and the Economic Loss Doctrine The economic loss doctrine represents a judicial refusal to extend tort liability to negligence that causes purely economic harm in the absence of privity, physical injury, or risk of physical injury. 8 See Seely v. White Motor Co., 63 Cal.2d 9 , 45 Cal.Rptr. 17 , 403 P.2d 145, 150-51 (1965); E. ⁶¹² River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 870-71 , 106 S.Ct. 2295 , 90 L.Ed.2d 865 (1986) (applying the economic loss doctrine “to maintain a realistic limitation on damages”); Lloyd v. Gen. Motors Corp., 397 Md. 108, 128-29 , 916 A.2d 257 (2007); 3 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 607, at 462 (2d ed. 2011). Courts imposed this limitation on the recovery of purely economic losses in response to the elimination of the privity requirement in tort law. 9 See Seely, 45 Cal.Rptr. 17 , 403 P.2d at 150-51 . In Maryland, the economic loss doctrine bars recovery when the parties are not in privity with one another or the alleged negligent conduct did not result in physical injury or risk of severe physical injury or death.

Lloyd, 397 Md. at 128-29 , 916 A.2d 257 ; see also Morris v. Osmose Wood Preserving, 340 Md. 519, 531-32 , 667 A.2d 624 (1995); U.S. Gypsum Co. v. Mayor & City Council of Balt., 336 Md. 145, 156 , 647 A.2d 405 (1994); A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 251 , 634 A.2d 1330 (1994); Council of ⁶¹³ Co-Owners Atlantis Condo., Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 22 , 517 A.2d 336 (1986). We discussed the evolution of tort law and the economic loss doctrine in the construction context in Whiting-Turner. In that case, condominium owners brought a negligence suit against the general contractor and architect who constructed their condominiums, alleging that defectively constructed electrical ductwork had created a fire hazard, rendering the units uninhabitable. 10 We recognized that privity is not an absolute prerequisite to the existence of a tort duty in this type of case, and that the duty of builders and architects to use due care in the design, inspection, and construction of a building extends to those persons foresee-ably subjected to the risk of personal injury because of a latent and unreasonably dangerous condition resulting from that negligence.

Whiting-Turner, 308 Md. at 22 , 517 A.2d 336 . Therefore, we concluded, the condominium owners could recover the reasonable cost of fixing the defective ductwork even without privity or actual physical harm. Id. at 35 , 517 A.2d 336 . In reaching its holding, the Whiting-Turner Court discussed the traditional requirement of privity in construction cases and the erosion of that requirement: In its early development, the law relating to builders and architects generally held that their duty did not extend to those with whom they had no contractual privity.

Gradually, however, exceptions to the general rule of nonliability were judicially recognized. Actions in negligence were permitted, for example, where the contractor had practiced fraud or deceit or had deliberately concealed defects in the work; where construction created a condition that was imminently or inherently dangerous; or where the contractor created a nuisance per se. ⁶¹⁴ Id. at 24-25 , 517 A.2d 336 (footnote omitted). Examining the gradual progression of tort law, the Court relied on Professors Harper, James, and Gray for their acknowledgment that in building and construction work “[t]he modern tendency has been to measure the scope of duty here by the same broad principles of negligence as are generally applied in the field of accidental injuries.” Id. at 26, 517 A.2d 336 (quoting 3 F. Harper, F. James & 0. Gray, The Law of Torts § 18.5, at 708-10 (2d ed. 1986)).

The Court concluded, “[T]he rule of nonlia-bility ... has now evolved into a general rule of liability where the result of negligence is the creation of a dangerous condition.” Id. at 27, 517 A.2d 336 (emphasis added). To explain this duty, it used the words of Professors Prosser and Keeton: [T]he contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers. There may be liability for negligent design, as well as for negligent construction.

Id. at 27-28, 517 A.2d 336 (emphasis in original) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 104A, at 723 (5th ed. 1984)). Therefore, the recovery of economic losses for the repair or remedy of defective conditions was permitted, provided it was necessary to prevent physical injury. In other words, the prospect of physical injury was sufficient to warrant imposing a tort duty in the absence of privity. The Intimate Nexus Test In cases where there were no safety concerns and the risk was purely economic, as in this case, the privity requirement did not erode so quickly or so far.

Instead, in such cases we have refrained from finding a tort duty absent privity or its equivalent—i.e., an “intimate nexus.” 11 Jacques , 307 Md. at ⁶¹⁵ 537, 515 A.2d 756 ; Walpert, 361 Md. at 681 , 762 A.2d 582 ; see also 100 Inv. Ltd. P’ship, 430 Md. at 219 , 60 A.3d 1 . Put differently, the intimate nexus test requires the relationship between the parties to be sufficiently close—or intimate—to support finding a tort duty. Jacques, 307 Md. at 535 , 515 A.2d 756 .

In these cases, if an intimate nexus was established, a duty of care was owed, and the defendant could be held liable to the plaintiff for pecuniary losses. Id. at 534 , 515 A.2d 756 . In Jacques—where we adopted the intimate nexus test—the Court ruled that a bank owed its customers a duty of reasonable care in processing a home loan application. In reaching its holding, the Court discussed two leading cases from the Court of Appeals of New York—Glanzer v. Shepard, 233 N.Y. 236 , 135 N.E. 275 (1922), and Ultramares Corporation v. Touche, 255 N.Y. 170 , 174 N.E. 441 (1931)—to determine whether an intimate nexus existed between the parties and, consequently, a duty of care was owed.

Jacques, 307 Md. at 535-36 , 515 A.2d 756 . In Glanzer, the court permitted a bean purchaser to recover purely economic losses in tort from a public bean weigher even though the weigher’s contract was with the bean seller. Glanzer held that the weigher owed a duty in tort to the purchaser because the sale of the beans was the end goal of the transaction, and, as a public weigher, in undertaking to weigh the beans he assumed a duty to do so with reasonable care. Glanzer, 135 N.E. at 276-77 .

In discussing Glanzer, the Jacques Court emphasized the nature of the contractual relationship between the seller and the weigher and that the weigher held itself out as “skilled and careful in its calling.” Jacques, 307 Md. at 535-36 , 515 A.2d 756 (citing Glanzer, 135 N.E. at 276 ). In Ultramares, on the other hand, the same court declined to impose a tort duty of care running from accountants to recipients of their audit reports for alleged negligent misrep ⁶¹⁶ resentations in the reports. The Ultramares court reasoned that if it imposed a duty, a “thoughtless slip or blunder ... may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.” Ultramares, 174 N.E. at 444 . Distinguishing Glanzer, the Ultramares court reasoned that the “intimacy of the resulting nexus” between the weigher and the purchaser “was so close as to approach that of privity, if not [be] completely one with it,” which warranted finding a tort duty, Id. at 445-46.

The court found that the accountants in Ultramares, by contrast, did not have such a relationship with the recipients of their audit reports. Id. at 446. The Jacques Court emphasized that even though the accountants were generally on notice that nonclients might rely on their audit reports, the relationship between them and the nonclients was not close enough to support finding an intimate nexus—and corresponding tort duty—like in Glanzer. Jacques, 307 Md. at 536 , 515 A.2d 756 .

The Jacques Court concluded: As the magnitude of the risk increases, the requirement of privity is relaxed—thus justifying the imposition of a duty in favor of a large class of persons where the risk is of death or personal injury. Conversely, as the magnitude of the risk decreases, a closer relationship between the parties must be shown to support a tort duty. Therefore, if the risk created by negligent conduct is no greater than one of economic loss, generally no tort duty will be found absent a showing of privity or its equivalent. Id. at 537 , 515 A.2d 756 .

Relying on Glanzer and Ultramares, the Jacques Court “examinfed] carefully the relationship that existed between these parties” because “the harm likely to result from negligent processing of a loan application is limited to economic loss.” Id. at 535 , 515 A.2d 756 . The Court found that the relationship between the parties amounted to a contract because the bank agreed to process the customers’ loan application and “lock in” a specific interest rate in exchange for a processing fee. Id. at 537-38 , 515 A.2d 756 . This contract, the ⁶¹⁷ Court reasoned, included an implied promise by the bank to use reasonable care in processing the application.

Id. at 540 , 515 A.2d 756 . The Court also considered the customers’ reliance on the bank and found that they were “particularly vulnerable and dependent on the [blank’s exercise of due care” because the bank was aware of the restrictive financing provisions in the customers’ contract for sale, which required them to settle with whatever loan they could obtain at the agreed rate of interest. Id. at 540—41, 515 A.2d 756 . Therefore, we held that the bank owed the customers a duty in tort.

Based on Judge Cardozo’s description of the defendants’ professions as a “public calling” in Glanzer and Ultramares, the Jacques Court also found relevant “the nature of the business of the party upon whom the burden is sought to be imposed.” Id. at 541 , 515 A.2d 756 . The Court emphasized the “public nature” of the bank. Id. at 542 , 515 A.2d 756 . It reasoned that the banking industry is “affected with the public interest” and banks and their officers have been “held to a high degree of integrity and responsiveness to their public calling,” which also supported finding a tort duty.

Id. Fourteen years later, in Walpert , an accountant liability case, we adopted the three-part test from Credit Alliance Corporation v. Arthur Andersen & Co., 65 N.Y.2d 536 , 493 N.Y.S.2d 435 , 483 N.E.2d 110 (1985), as one way to establish an intimate nexus between parties. Walpert, 361 Md. at 674 , 762 A.2d 582 . The Credit Alliance/Walpert test requires the plaintiff to show: (1) the accountants were aware that their financial reports were to be used for a particular purpose; (2) a known party was intended to rely on the reports; and (3) conduct linking the accountants to the party that demonstrates the accountants’ understanding of the party’s reliance.

Id. In adopting the test, we noted that the reason for requiring privity or its equivalent to impose tort liability is “to limit the defendant’s risk exposure to an actually foreseeable extent, thus permitting a defendant to control the risk to which the defendant is exposed.” Id. at 671 , 762 A.2d 582 . After examining duty analyses from other jurisdictions, the Court ⁶¹⁸ concluded that the Credit Alliance test most closely reflected Maryland’s policy concerns because it would “limit[ ] the unpredictable and unlimited nature of economic damages.” Id, at 675, 762 A.2d 582 . Initially, the Credit Alliance/Walpert test applied only to accountants, but we have since applied it to title examiners.

See 100 Inv. Ltd. P’ship, 430 Md. at 222 , 60 A.3d 1 . But Walpert is the only case in which we have used the test to find an intimate nexus between an individual and a third party not in privity. 12 361 Md. at 693-94 , 762 A.2d 582 , We have, however, considered whether there was an intimate nexus between parties without applying the Credit Alliance/Walpert test. We found that the parties’ relationship lacked an intimate nexus in the following cases: Blondell v. Littlepage, 413 Md. 96 , 991 A,2d 80 (2010) (no tort duty owed by one attorney to another in joint representation); Remsburg v. Montgomery, 376 Md. 568 , 831 A.2d 18 (2003) (leader of a hunting party owed property owners no duty of care); Jones v. Hyatt Ins.

Agency, Inc., 356 Md. 639 , 741 A.2d 1099 (1999) (insurance agent who failed to obtain insurance not liable to accident victim); Noble v. Bruce, 349 Md. 730 , 709 A.2d 1264 (1998) (attorney not liable to non-client beneficiaries of a will); Erie Ins. Co. v. Chops, 322 Md. 79 , 585 A.2d 232 (1991) (insurer’s failure to comply with statutory duty to report lapse in motorist’s coverage to the Motor Vehicle Administration did not render it liable to accident victims). In other situations, we considered the relationship between the parties sufficient to establish an intimate nexus. ⁶¹⁹ Weisman v. Connors, 312 Md. 428 , 540 A.2d 783 (1988), involved an employee who sued his employer for alleged negligent misrepresentations made during pre-employment negotiations—at two in-person meetings and in several phone conversations the employer had made certain promises to induce him to leave his previous employer. Id. at 432-33 , 540 A.2d 783 .

Because the employer’s objective was to “sell” the employee on the idea of leaving his current employer during “face-to-face precontractual discussions,” we held that a jury could find that there was an intimate nexus between the parties. Id. at 448-49 , 540 A.2d 783 . In reaching this conclusion, we reasoned that the employee “had a great stake in receiving accurate information” and the employer “had to realize that negligence on his part in conveying such information could result in considerable economic harm to [the employee].” Id. at 449 , 540 A.2d 783 . Because their relationship “more closely resemble[d] the intimacy of the Glanzer parties than the remoteness of the Ultramares relationship,” the jury could find a tort duty.

Id. Similar negligent misrepresentations in “intensive communications” regarding employment were the basis for liability in Griesi v. Atlantic General Hospital Corporation, 360 Md. 1 , 756 A.2d 548 (2000). 13 Weisman and Griesi illustrate that we consider the closeness of the relationship between the parties—especially one party’s reliance on the other party’s exercise of due care—when determining whether ⁶²⁰ there is an intimate nexus that would support finding a duty of care. In Chicago Title Insurance Co. v. Allfirst Bank, 394 Md. 270 , 905 A.2d 366 (2006), we found a privity-equivalent intimate nexus between the third-party drawer of a check and a depositary bank. Without citing the Credit Alliance/Walpert test, we used one of its criteria in our analysis—linking conduct. 14 Id. at 299 , 905 A.2d 366 .

The check at issue was made payable to the depositary bank (not the bearer) for the purpose of paying off a customer’s mortgage loan as part of a refinancing. Id. at 278 , 905 A.2d 366 . Instead of applying the funds to the outstanding balance, the depositary bank credited the customer’s personal, non-mortgage account. Id.

When the customer then defaulted on his loan, the drawer—the title company that conducted the settlement—learned that the funds had been misapplied and the original mortgage had never been released. Id. at 279 , 905 A.2d 366 . In finding an intimate nexus, we reasoned that the depositary bank had already received one check from the drawer and a payoff request from the new lender. Id. at 298-99 , 905 A.2d 366 .

Thus, the bank knew, or should have known, that the title company expected the proceeds of the check to pay off the loan. Id. As a result, we held that the depositary bank had a duty to the title company to exercise due care in handling its check. Id. at 300 , 905 A.2d 366 .

These cases illustrate that regardless of whether we apply the Credit Alliance/Walpert test, our privity-equivalent analysis in economic loss cases looks for linking conduct— enough to show the defendant knew or should have known of the plaintiffs reliance. This means, of course, that context is ⁶²¹ critical. Blondell, 413 Md. at 122 , 991 A.2d 80 (quoting Dan B. Dobbs, The Law of Torts § 229 (2000)) (“Relationship of the parties is so pervasively important in determining existence and measure of duty that it often goes unmentioned.”). We have yet to apply the Credit Alliance/Walpert test or the privity-equivalent analysis in the public construction context and, as