Alco Standard Corp. v. Westinghouse Elec. Corp., A92A2354

• Decision Date: 04 December 1992
• Docket Number: No. A92A2354,A92A2354
• Citation: 426 S.E.2d 648,206 Ga.App. 794
• Parties: , 21 UCC Rep.Serv.2d 499 ALCO STANDARD CORPORATION v. WESTINGHOUSE ELECTRIC CORPORATION.
• Court: Georgia Court of Appeals

Page 648

426 S.E.2d 648

206 Ga.App. 794, 21 UCC Rep.Serv.2d 499

ALCO STANDARD CORPORATION v. WESTINGHOUSE ELECTRIC CORPORATION.

No. A92A2354.

Court of Appeals of Georgia.

Dec. 4, 1992.

Reconsideration Denied Dec. 16, 1992.

Drew, Eckl & Farnham, Clayton H. Farnham, Atlanta, for appellant.

Schreeder, Wheeler & Flint, David Flint, Alexander J. Simmons, Jr., Atlanta, for appellee.

McMURRAY, Presiding Judge.

In January 1985, plaintiff Alco Standard Corporation experienced problems with three autotransformers which were used to start a large electric motor. Plaintiff's representative telephoned defendant Westinghouse Electric Corporation to arrange for the acceptance by defendant of the three autotransformers for repair and rewinding. Defendant agreed to rewind the autotransformers and they were shipped to defendant. The autotransformers were received by defendant on January 17, 1985, and the following day defendant sent to plaintiff a written acknowledgement of the work order.

The acknowledgement contained language which purported to provide, in lieu of all other warranties, whether statutory, express or implied, a limited warranty of the work to be performed, under which any defective work would be repaired for one year. Another provision provided that defendant would have no liability in contract or tort for any special, indirect, incidental, or consequential damages of a purchaser.

After defendant completed its work on the autotransformers, they were returned to plaintiff and reinstalled in the electric motor. Shortly thereafter, two of the autotransformers failed due to electrical faults.

Plaintiff filed this action seeking to recover damages for the interruption of business allegedly caused by the failure of the autotransformers. As amended, the complaint states alternative theories of negligence and breach of contract. Plaintiff appeals following the grant of defendant's motion for summary judgment. Held:

1. The superior court concluded that "a cause of action in negligence may not be maintained to recover for economic injury. Chrysler Corp. v. Taylor, 141 Ga.App. 671 (1971). Therefore, even if the defendant were negligent, the plaintiff cannot recover its damage on the negligence theory." Plaintiff now argues that this case is governed by the "accident exception" to the general economic loss rule. "Under Georgia law, there is an accident exception to the general rule that an action in negligence does not lie absent personal injury or damage to property other than to the allegedly defective product.... An 'accident' should be defined as a sudden and calamitous event which, although it may only cause damage to the defective product itself, poses an unreasonable risk of injury to other persons or property." Vulcan Materials Co. v. Driltech, 251 Ga. 383, 388(4), 306 S.E.2d 253.

In this case, there is no evidence that any "accident" occurred. A defendant may prevail on summary judgment "by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga.App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. This enumeration of error is without merit.

2. The superior court also concluded that the written contract between the parties, apparently the acknowledgement sent by defendant following receipt of the autotransformers, specifically limited warranties and excluded liability for loss of profits or revenue, so that plaintiff cannot prevail on its claim for breach of contract.

Plaintiff's remaining enumeration of error contends that the superior court erred in failing to recognize that the limitation of warranty and liability provisions contained in the defendant's acknowledgement, and which purportedly barred plaintiff's breach of implied warranty claim, never became part of the contract between plaintiff and defendant.

There is some confusion in the arguments submitted in this case as to whether the transaction between the parties is governed by the "Uniform Commercial Code--Sales," OCGA § 11-2-101 et seq. and particularly OCGA § 11-2-207. However, this article applies only to transactions in goods and not to service or repair contracts. OCGA §§ 11-2-102 and 11-2-106(1). In the case sub judice,...