L. Luria & Son, Inc. for Use and Benefit of Fireman's Fund Ins. Co. v. Alarmtec Intern. Corp.
| Decision Date | 18 June 1980 |
| Docket Number | No. 78-1436,78-1436 |
| Citation | 384 So.2d 947 |
| Parties | L. LURIA & SON, INC., for the Use and Benefit of FIREMAN'S FUND INSURANCE COMPANY, a Foreign Corporation authorized to do business in the State of Florida, and L. Luria & Son, Inc., Individually, Appellants, v. ALARMTEC INTERNATIONAL CORPORATION, a/k/a Honeywell Protection Services, aFlorida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Joe N. Unger, Miami, and Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellants.
Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara, Miami, and Thomas D. Lardin of Weaver & Weaver, P.A., Fort Lauderdale, for appellee.
The appellant, as plaintiff in the trial court, appeals an order dismissing its complaint with prejudice.
Appellants contracted with appellee, Alarmtec International Corporation, for the latter to install and maintain an electric protective service against burglary. In September 1974, during the contract period, appellant's business premises were burglarized, resulting in a loss valued in excess of $135,000. The present suit sought damages on several theories: breach of contract, breach of implied warranties and negligence. It also sought recovery of punitive damages for gross, wanton and willful negligence.
The contract between the parties contained what has apparently become the usual exculpatory clause in burglar alarm contracts as follows:
7. It is agreed that Company is not an insurer and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that Company assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire or other cause or any liability on the part of Company by virtue of this Agreement or because of the relation hereby established. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. Such liability as herein set forth is fixed as liquidated damages and not as a penalty and this liability shall be...
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