Elite Professionals, Inc. v. Carrier Corp.
| Decision Date | 06 March 1992 |
| Docket Number | No. 65538,65538 |
| Citation | 827 P.2d 1195,16 Kan.App.2d 625 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,179 The ELITE PROFESSIONALS, INC., Appellant, v. CARRIER CORPORATION, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Disclaimer of warranty is not an available defense to a strict liability in tort claim.
2. Where claim is made for strict liability in tort, whether the product was "unreasonably dangerous" is a fact question for resolution by the factfinder.
3. Exculpation of liability for one's own negligence is subject to strict construction and expression by clear and unequivocal language.
4. Whether there has been failure of essential purpose under K.S.A. 84-2-719(2) is a question of fact.
Alan R. Welch, of Fleeson, Gooing, Coulson & Kitch, Wichita, for appellant.
Stephen M. Kerwick and Sharon L. Chalker, of Foulston & Siefkin, Wichita, for appellee.
Before REES, P.J., and DAVIS and PIERRON, JJ.
This is a products liability case. Plaintiff Elite Professionals, Inc., (Elite) a trucking company engaged in the business of interstate transportation of commodities as a common carrier, appeals from the summary judgment entered against it and in favor of defendant Carrier Corporation (Carrier) on Elite's claim for damages arising out of a truck refrigeration unit malfunction that resulted in the spoilage of a cargo of meat.
Elite seeks to recover for physical damage to property other than the refrigeration unit; compensatory damages are sought for the loss of the meat by spoilage and in the amount of the pre-incident value of the meat. Recovery is not sought for damage to the refrigeration unit occasioned by its malfunction nor for its defective condition, that is, its qualitative defect, when sold to Elite. A qualitative defect is a defect that precludes the product from being fit for its intended use or functioning as expected for the purpose it was designed. Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (10th Cir.1984).
The refrigeration unit was manufactured by Carrier. It was a new unit when sold to Elite and mounted on an Elite reefer trailer by a Wichita, Kansas, Carrier dealer on July 22, 1987. The obvious function of a truck refrigeration unit of the sort here involved is to chill a reefer trailer's interior and its cargo.
In the trial court, Elite's asserted theories for recovery were strict liability, negligence, breach of express warranty, and breach of implied warranty. Before us, Elite has abandoned reliance upon implied warranty.
The incident giving rise to Elite's claim occurred in the course of Elite's transport of a 23-ton load of frozen hog sides from the consignor Vermont Meat Packers, Inc.'s place of business in Swanton, Vermont, to the consignee Far West Meat Company's place of business in Highland, California.
Jesse Simpson, Elite's driver for this particular shipment, picked up the hog sides on September 11, 1987, in Vermont. When loaded aboard the reefer trailer, the meat temperature was zero degrees. The meat was to be kept at that temperature until delivered to Far West in California. To accomplish that, the reefer's interior temperature needed to be kept at zero degrees.
The possibility of a refrigeration problem was first evident to Simpson at about 2:00 p.m. in the afternoon of Wednesday, September 16, 1987, when he made a routine stop at Wilson, New Mexico, to check out his truck. Simpson found that the "T-ticker" gauge on the outside of the reefer reported that the temperature inside the reefer was some three to five degrees above zero. Simpson turned the refrigeration unit's temperature control down. In addition, he telephoned Elite's headquarters in Strong City, Kansas, to report the situation to Mark Miller, Elite's president.
Miller told Simpson to proceed onward from Wilson and to call back. In the meantime, Miller would look into the matter of locating a facility to which the truck might be taken for repair of the refrigeration unit or he would make arrangements for a driver switch, with the new driver to take the load on to its California destination.
When Simpson arrived at Gallup, New Mexico, at about 6:00 p.m., the reefer temperature had risen to about 20 degrees. Simpson reported that development to Miller by telephone. Miller instructed Simpson to continue on to Sanders, Arizona, for a driver switch. Simpson's log book reports that he arrived at Sanders at about 7:00 p.m. The switch took place that evening and the new driver, Clate Watkins, took the loaded reefer trailer to California. Watkins arrived at Far West's Highland plant when it opened at 7:30 a.m. the next day, Thursday, September 17, 1987. When the reefer was opened, it was found that the hog sides had spoiled. The reefer temperature had risen to about 60 degrees. The meat was discolored and malodorous. At the instruction of United States Department of Agriculture inspectors, the meat was not offloaded and delivery of the meat was rejected. The spoiled meat was ultimately taken to a rendering plant.
In the late afternoon of September 17, the reefer trailer was taken to a Fontana, California, Carrier service facility. There it was found that a defective component of the refrigeration unit, a solenoid valve coil, was the cause of the unit's malfunction. The coil was replaced that same afternoon at no charge to Elite.
When Elite purchased the refrigeration unit, it was given a printed warranty and disclaimer that, in material part, reads:
After discovery was conducted, Carrier filed a motion for summary judgment primarily relying upon its view of the operative effect of the printed warranty and disclaimer. The court granted summary judgment to Carrier. On reasoning that is at some variance from that suggested by either party or the trial court, we reverse.
When ruling upon the summary judgment motion, the trial court orally stated:
Omitting formalities, the journal entry of judgment reporting the trial court's consideration of Carrier's motion and its grant of summary judgment to Carrier reads:
The summary judgment motion hearing transcript and the journal entry of judgment reflect somewhat imperfect compliance with the findings of fact and conclusions of law requirement of K.S.A. 60-252, Rule 141, (1991 Kan.Ct.R.Annot. 117), and Rule 165 (1991 Kan.Ct.R.Annot. 126). For instance, there is no report of the trial court's reasoning that this is a contract case and not a tort case. Nonetheless, we conclude that the trial court granted summary judgment on the ground that the printed warranty and disclaimer operates to preclude Elite from recovery under any of its asserted theories for recovery.
The printed warranty and disclaimer may be said to be in the nature of an exclusive express limited remedy warranty. Carrier promises to repair or replace any defective parts or components causing malfunction of the refrigeration unit. In the event of refrigeration unit malfunction, Elite's sole and only remedy is repair or replacement of defective parts or components according to Carrier's promise as stated in the printed warranty and disclaimer. There is no backup remedy clause (e.g., repayment of purchase price). Carrier disclaims all liability for damage or loss arising out of refrigeration unit malfunction beyond or other than its...
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