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Westfield Ins. Co. v. Huls Am.6/9/1998
he sole remedy.'" Cannon v. Neal Walker Leasing, Inc. (June 28, 1995), Summit App. No. 16846, unreported, 1995 WL 404961.
The record indicates that the limitation of HULS's liability to the cost of repair or replacement of the roof was done in accordance with the provisions for limiting remedies set forth in R.C. 1302.29(D) and 1302.93(A), and is the sole remedy agreed upon by the parties. See, also, N.Y. U.C.C. 2715 and 2719. Appellee limited the warranty liability and also limited the remedies available to appellant under the warranty. See Cannon, supra. The limitation of remedies is also conspicuous, in that it directly follows the limitation of damages and is so written that a reasonable person ought to have noticed it, and is in accord with thsrelevant provisions of the Revised Code. See R.C. 1302.93(C) and N.Y. U.C.C. 2719. See, also, Ins. Co. of N. Anz, v. Auto. Sprinkler Corp. (1981), 67 Ohio St.2d 91, 96-97, 21 O.O.3d 58, 61-62, 423 N.E.2d 151, 154-155.
A party may limit or disclaim the implied warranty of fitness of a product "for its intended use, * * * provided the disclaimer is not unconscionable." Irving Leasing Corp. v. M & H Tire Co. (1984), 16 Ohio App.3d 191, 193, 16 OBR 205, 207-208, 475 N.E.2d 127, 130. A warranty disclaimer that leaves a party with a defective product and no avenue for recourse against the manufacturer is unconscionable. However, a warranty in which the party disclaiming warranties or remedies assumes some form of responsibility for the performance or maintenance of the product in issue is not unconscionable. Id. at 194-195, 16 OBR at 208-210, 475 N.E.2d at 131-133. Pursuant to R.C. 1302.15(A), a determination of whether a warranty is unconscionable is determined from the facts "at the time [the warranty] was made." See, also, N.Y. U.C.C. Section 2-302(1).
At the time the warranty was made, appellee's warranty provided that HULS warranted "to maintain the TROCAL roof of the Lane Avenue Shopping Center, in a watertight condition at its own expense for [the term of the warranty period]," here ten years, and that the warranty covered "any condition caused by defective TROCAL Brand material supplied by DNA, or from installation or ordinary wear and tear thereof." From the language of the warranty, it appears that HUL'S only obligation was to maintain the TROCAL roof in a watertight condition for the warranty period (of ten years), which corresponds to the expected service life of the roof. The language of appellee's warranty makes it clear that "the implied warranties of merchantability and fitness for a particular purpose and all other warranties, express or implied, are excluded" from the warranty, and that the liability of HULS is limited to only the cost of repair or installation of new TROCAL brand material. The HULS warranty provided an avenue of recourse for repair of the roof and the record shows that the roof was maintained in a watertight condition for the warranty period. Therefore, the warranty did not fail and was not unconscionable in this regard.
Appellants argue that appellee had also made express warranties in the TROCAL roof system by affirmation, promise, or description, pursuant to R.C. 1302.26, by asserting that the roof system "stays watertight," "resists thermal shock," and "requires little or no maintenance." Further, appellants contend that appellee misrepresented the roof system by making misleading statements that the roof "was a high quality roof system; that the Trocal Roof System would remain leak-free; that the Trocal Roof System was a suitable replacement [for the mall roof]; and that the Trocal Roof System resists thermal shock due to radical temperature fluctuations." From the record it appears that t
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