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Sun Refining & Marketing Co. v. Crosby Valve & Gage Co.3/2/1994
as the most appropriate to modern business practice."
We indicated our support for this position in Chemtrol by quoting the Eighth District Court of Appeals:
"'Application of the doctrine of implied warranty in tort to all products liability cases would render useless many, if not all, of the Uniform Commercial Code provisions involving products liability. For example, * * * whenever the doctrine of implied warranty in tort is applicable, the provisions of the Uniform Commercial Code permitting the parties to contractually modify or exclude warranties, and to modify or limit remedies are of no avail. Stated another way, where implied warranty in tort applies, the parties are not free to determine by contract the quality of goods which the seller is bound to deliver or the remedies available to the buyer in the event that the goods do not measure up to the agreed quality. It is clear, then, that the doctrine of implied warranty in tort must be limited in its applicability. Otherwise, unlimited application would emasculate the Uniform Commercial Code provisions dealing with products liability.'" Chemtrol, 42 Ohio St.3d at 49-50, 537 N.E.2d at 634, quoting Avenell v. Westinghouse Elec. Corp. (1974), 41 Ohio App.2d 150, 157-158, 70 O.O.2d 316, 321, 324 N.E.2d 583, 588.
In my judgment, the relationship between Crosby Valve and Sun Refining falls squarely within the policy reasons established by the drafters of the UCC and sanctioned by this court. The parties made an arm's-length transaction and were free to negotiate the terms of the contract. Thus, their transaction, including remedies, is governed by the UCC. It is unfortunate that Sun Refining delayed filing its cause of action for so long, but in my opinion the policy behind the UCC is sound and, considering the circumstances, presented Sun Refining with a sufficient remedy. Because I believe that where sophisticated commercial parties deal in privity a cause of action for property damage resulting from a breach of warranty is subject to the UCC statute of limitations, I must respectfully dissent.
MOYER, C.J., concurs in the foregoing dissenting opinion.
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