Trimble v. Ameritech Pub., Inc.
| Decision Date | 09 October 1998 |
| Docket Number | No. 53S01-9805-CV-298,53S01-9805-CV-298 |
| Parties | Gary TRIMBLE, doing business as Bloomington Auto Parts, Appellant (Plaintiff below), v. AMERITECH PUBLISHING, INC., Appellee (Defendant below). |
| Court | Indiana Supreme Court |
In this case, a business owner wanted to advertise in Ameritech's "Yellow Pages." Ameritech agreed but failed to run the ad. At issue is whether the clause in their contract limiting Ameritech's liability to the purchase price of the ad is valid and enforceable. Court of Appeals' decisions differ on this issue and we granted transfer to resolve the conflict.
On August 24, 1994, an Ameritech advertising sales representative met with Gary Trimble to execute a written Advertising Order for Trimble's business advertisement in the 1994-95 PAGESPLUS Directory. Ameritech failed to publish Trimble's advertisement. Consequently, Trimble filed a complaint seeking damages for loss of business resulting from the wrongful omission of the advertisement.
The advertising contract signed by Trimble unequivocally provided that any damages resulting from Ameritech's failure to publish the advertisement would be limited to the amount paid for the advertising or the contract price, whichever is the lesser.
The contract contained the following exculpatory clause:
Publisher's liability: ... if publisher should be found liable for loss or damage due to a failure on the part of the publisher or its directory, in any respect, regardless of whether customer's claim is based on contract, tort, strict liability or otherwise the liability shall be limited to an amount equal to the contract price for the disputed advertisements, or that sum of money actually paid by the customer toward the disputed advertisements, whichever sum shall be less, as liquidated damages and not as a penalty, and this liability shall be exclusive. In no event shall publisher be liable for any loss of customer's business, revenues, profits, the cost to the customer of other advertisements or any other special, incidental, consequential or punitive damages of any nature, or for any claim against the customer by a third party ...
At the time the lawsuit was filed, Trimble had not been charged nor had he paid any money for the advertisement which was allegedly wrongfully omitted. The trial court granted summary judgment for Ameritech. The Court of Appeals reversed the trial court's decision to grant summary judgment and this appeal ensued.
The circumstances of this case are not unique. The Court of Appeals has addressed the failure of Ameritech to publish its customers' "Yellow Page" advertisements on at least two other occasions. In Pigman v. Ameritech Publ'g, Inc., 641 N.E.2d 1026, 1035 (Ind.Ct.App.1994), when an attorney brought an action against the yellow pages telephone directory publisher for failing to publish an advertisement, the Court of Appeals held "that the exculpatory clause contained in [Ameritech's] Yellow Pages advertising contract is unconscionable and void as against public policy as a matter of law." One month later, in Pinnacle Computer Servs., Inc. v. Ameritech Publ'g, Inc., 642 N.E.2d 1011, 1019 (Ind.Ct.App.1994), when a business owner brought suit against Ameritech's Yellow Pages for reasons similar to that in Pigman, 1 the Court of Appeals (acknowledging the decision reached in Pigman) decided to follow the majority of other jurisdictions and held that "the exculpatory clause in Ameritech's Yellow Pages order is valid and enforceable." 2
The sole issue in this case is whether the State of Indiana will enforce in contracts of the nature at issue here exculpatory clauses that limit liability to an amount equal to the lesser of the contract price or the sum of money actually paid to further the contract. We hold that such clauses are enforceable.
Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties. Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind.1995) (citing Weaver v. American Oil Co., 257 Ind. 458, 463, 276 N.E.2d 144, 147 (1971)). See Continental Basketball Ass'n, Inc. v. Ellenstein Enters., Inc., 669 N.E.2d 134, 139 (Ind.1996). We continue to believe that "it is in the best interest of the public not to restrict unnecessarily persons' freedom of contract." Fresh Cut, Inc., 650 N.E.2d at 1129 (citations omitted). "Despite this very strong presumption of enforceability, courts...
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Dearborn v. Everett J. Prescott, Inc.,
...attempting to enforce the bargain; and (5) the parties' relative bargaining power and freedom to contract. Trimble v. Ameritech Publishing, Inc., 700 N.E.2d 1128, 1129-30 (Ind.1998) (clause limiting damages for errors in telephone directory was not contrary to public policy), citing Fresh C......
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Rainbow Country Rentals v. Ameritech, 2004AP239.
...clauses; however, other jurisdictions have characterized such clauses as limitation of damages clauses. Compare Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128 (Ind.1998), with Vasilis v. Bell of Pa., 409 Pa.Super. 396, 598 A.2d 52 (1991). Regardless, the detailed schedule of damages, th......
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...into contracts and have presumed that contracts represent the freely bargained agreement of the parties." Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont'l Basketball Ass'n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). Consequently, imposing on parties a p......
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Rainbow Country Rentals and Retail, Inc. v. Ameritech Publishing, Inc., 2005 WI 153 (Wis. 11/22/2005), 2004AP239.
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