L. Luria & Son, Inc. v. Honeywell, Inc.
| Decision Date | 12 December 1984 |
| Docket Number | No. 83-1505,83-1505 |
| Citation | 460 So.2d 521 |
| Parties | L. LURIA & SON, INC., a Florida corporation, Appellant, v. HONEYWELL, INC., a foreign corporation, Appellee. |
| Court | Florida District Court of Appeals |
Jan Atlas and Robin Corwin Campbell of Capp, Reinstein, Kopelowitz & Atlas, P.A., Fort Lauderdale, for appellant.
Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Fort Lauderdale, for appellee.
L. Luria & Son, Inc., plaintiff in an action seeking damages resulting from a burglary of its premises while those premises had a burglar alarm system installed and monitored by the defendant, Honeywell, Inc., pursuant to a contract between the parties, appeals from a final judgment that dismissed Luria's amended complaint and entered judgment for Honeywell.
The amended complaint alleged the parties entered into 1) a written contract for installing and monitoring a burglar alarm system and 2) a subsequent verbal contract that Honeywell would advise Luria "of an interruption in telephone lines [that were an integral part of the system] which would affect the operation of the System" and that Honeywell breached the agreements. The amended complaint contained various theories for recovery: breach of contract, breach of express warranties, gross negligence, fraud and gross negligence and intentional tort growing out of a subsequent oral contract. Attached to the complaint was a copy of the written contract between the parties that contained the following exculpatory and limitation of liability clauses:
It is understood and agreed by the parties hereto that Contractor is not an insurer and that insurance, if any, covering personal injury and property loss or damage on Subscriber's premises shall be obtained by the Subscriber; that the Contractor is being paid for the installation and maintenance of a system designed to reduce certain risks of loss and that the amounts being charged by the Contractor are not sufficient to guarantee that no loss will occur; that the Contractor is not assuming responsibility for any losses which may occur even if due to Contractor's negligent performance or failure to perform any obligation under this Agreement. THE CONTRACTOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICE SUPPLIED MAY NOT BE COMPROMISED, OR THAT THE SYSTEM OR SERVICES WILL IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS INTENDED.
Since it is impractical and extremely difficult to fix actual damages which may arise due to the faulty operation of the system or failure of services provided, if, notwithstanding the above provisions, there should arise any liability on the part of the Contractor, such liability shall be limtied to an amount equal to one half the annual service charge...
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Business & commercial cases
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