Laidlaw Transp., Inc. v. Helena Chemical Co.
| Decision Date | 13 November 1998 |
| Parties | 1998 N.Y. Slip Op. 9915 LAIDLAW TRANSPORTATION, INC., and Laidlaw Tree Service, Inc., Respondents, v. HELENA CHEMICAL COMPANY, Appellant. HELENA CHEMICAL COMPANY, Third-Party Plaintiff-Respondent, v. SUN REFINING AND MARKETING COMPANY and Kaplan Container Corp., Third-Party Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Bond and McDonald, P.C. by Mark McDonald, Geneva, for appellant and third-party plaintiff-respondent.
Sugarman, Wallace, Manheim & Schoenwald, LLP by Andrew Leja, Syracuse, for third-party defendant-appellant Kaplan.
Block & Colucci, P.C. by Debra Norton, Buffalo, for third-party defendant-appellant Sun Refining.
Hancock & Estabrook, LLP by Patrick Connors, Syracuse, for respondents.
Before GREEN, J.P., LAWTON, HAYES, PIGOTT and CALLAHAN, JJ.
Plaintiffs are engaged in the business of providing lawn and tree services to residential and commercial customers in the central New York area. In 1989, an isolated group of plaintiffs' customers sustained extensive damage to their trees and shrubs after plaintiffs sprayed them with Sunspray 6E, a "dormant oil" that kills pests by suffocating them during their dormant phase. The dormant oil was manufactured by third-party defendant Sun Refining and Marketing Company (Sun) and then sold in bulk to defendant, Helena Chemical Company (Helena), a distributor, which repackaged the oil in 55-gallon drums. The drums had been reconditioned by third-party defendant Kaplan Container Corp. (Kaplan). Helena sold the oil to plaintiffs. Upon delivery of the oil, plaintiffs' employees signed a Helena "delivery ticket" containing language limiting the seller's warranties and also limiting the seller's liability to the price of the goods that caused the alleged damages. When spraying the oil, which was supposed to be clear-colored, plaintiffs' employees noticed that some of the oil had a greenish tint that resembled the color of antifreeze or Irish green beer. After the oil was applied, it caused extensive damage to the trees and shrubs. The oil was subsequently tested by various experts. Plaintiffs' expert concluded that the damage was caused by either an insufficient amount of added emulsifier by the manufacturer or a contaminant in the oil.
Plaintiffs commenced this action against Helena alleging causes of action for negligence, breach of contract, breach of express and implied warranties, and strict products liability. Helena brought a third-party action against Sun and Kaplan.
Following pretrial discovery, Helena moved for summary judgment dismissing the complaint, claiming that the limitation of liability and remedies provision on the delivery ticket limited its liability to the price of the product. Sun and Kaplan each cross-moved for summary judgment dismissing the third-party complaint against them. In support of their cross motions, they each submitted an expert's affidavit stating that the oil was not contaminated as a result of their actions.
Supreme Court properly denied the cross motions of Sun and Kaplan, but should have granted in part the motion of Helena. With respect to the cross motions, the conflicting experts' opinions raised triable issues of fact (see, Scahall v. Unigard Ins. Co., 222 A.D.2d 1070, 1071, 635 N.Y.S.2d 856).
With respect to Helena's motion, Helena contends that it is entitled to summary judgment because plaintiffs are bound by the limitation of liability and remedies provision on the delivery ticket. The parties agree that such clauses are standard in the industry.
Section 2-207 of the Uniform Commercial Code governs whether such additional terms on the delivery ticket become part of the contract between the parties. That section makes a distinction between a clause disclaiming warranties, which would normally "materially alter" the contract, and a clause limiting a...
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