 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Westfield Ins. Co. v. Huls Am.6/9/1998
nal property causes of action have expired, and appellants' claims for compensatory damages under the warranty are time-barred in this respect.
IV. Appellants also argue that, because of the limitations contained in the TROCAL warranty, the warranty contract itself fails of its essential purpose and is unconscionable. The limited five-year warranty issued to UAP by Dynamit ("DNA"), issued May 4, 1981 and renewed by UAP for an additional five-year period, provided in part:
"Dynamit Nobel of America, Inc. (DNA) warrants to maintain the TROCAL roof of the Lane Avenue Shopping Center, in a watertight condition at its own expense for a period of five years from this date provided that the owner gives DNA written notice of any leaks within 30 days from discovery of such leaks * * *.
"This warranty is solely intended to cover any condition caused by defective TROCAL Brand material supplied by DNA, or from installation or ordinary wear and tear thereof. It shall not include any condition due to lightning, full gales, hailstones, hurricanes or similar sudden unusual natural occurrences or any condition caused by any deliberate act or negligence in maintaining said roof * * *. LIABILITIES HEREUNDER SHALL BE LIMITED SOLELY TO THE COST OF REPAIR OR INSTALLATION OF NEW TROCAL BRAND MATERIAL BY AN AUTHORIZED TROCAL APPLICATOR. DNA shall have no responsibility for any damage to other components of the roof or of the building, nor for any incidental or consequential damage. This warranty shall be governed by and construed in accordance with the laws of the State of New York.
"This warranty will not cover damage due to repair or subsequent work on or through the roof without DNA's written approval of the methods and materials to be used.
"* * *
"THE PARTIES AGREE THAT THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE GOODS SOLD."
Before reaching a determination as to whether the warranty fails of its essential purpose or is unconscionable, it must first be noted that the parties hasexpressly agreed that " his warranty shall be governed by and construed in accordance with the laws of the State of New York." The Ohio Supreme Court has held that "a forum selection clause contained in a contract between business entities is valid and enforceable, unless it can be clearly shown that enforcement of the clause would be unreasonable and unjust." Kennecorp Mtge. Brokers, Inc. v. Country Club Convalescent Hosp., Inc. (1993), 66 Ohio St.3d 173, 176, 610 N.E.2d 987, 989-990. Absent such unjust or unreasonable enforcement, the "law of the state chosen by the parties to govern their contractual rights and duties will be applied." Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St.3d 436, 438, 6 OBR 480, 482, 453 N.E.2d 683, 686.
Both Ohio and New York law permit parties to a contract to exclude or modify warranties, expressed and implied, accompanying a sale of goods. See R.C. 1302.29. Upon review and comparison of the New York laws (New York Uniform Commercial Code Chapter 553, Article 2, Part 3, Sections 2313 through 2318) (see appendix) and Ohio state laws (R.C. Title 13, Chapter 1302 [Sales], R.C. 1302.26 through 1302.31) regarding the sale of goods, we find that the relative New York ("NY") code sections are of sufficiently similar effect that it is not unjust or unreasonable to construe the warranty regarding the sale and use of the TROCAL roof within Ohio pursuant the N.Y. code section governing such goods.
Appellants contend that the warranty failed of its
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|