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BISHOP LOGGING CO. v. JOHN DEERE INDUS. EQUIP.2/13/1995
r particular requirements and needs
of which the seller at the time of contracting had reason to know and
which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of
warranty.
See S.C. Code Ann. § 36-2-715(2). Profits lost as a result of the breach are recoverable under this section as consequential damages. In Marshall and Williams Co. v. General Fibers and Fabrics, Inc., 270 S.C. 247, 241 S.E.2d 888 (1978) the court indicated that consequential damages could also include additional operating expenses caused by the breach. The burden of proving the extent of loss incurred by way of consequential damages is on the buyer. S.C. Code Ann. § 36-2-715, comment 4.
In the present case, the losses suffered by Bishop Logging were primarily lost anticipated profits. There was no To that extent, the actual damage award is reduced to the maximum total of economic damages claimed by Bishop Logging, $723,323. See Wiggins v. Todd, 296 S.C. 432, 373 S.E.2d 704 (Ct.App. 1988) (We may modify a judgment to reduce an award of damages where certain damages improperly allowed can be segregated).
As relates to the one million two hundred thousand dollar punitive damage award, we cannot sustain it because there is no evidence from which it could be reasonably inferred that John Deere deliberately intended to furnish Bishop Logging with defective equipment. In this case, recovery of punitive damages must be predicated upon a breach of contract accompanied by a fraudulent act or gross negligence, and we previously held that Bishop Logging failed to prove both its fraud and negligent misrepresentation claims. See Floyd v. County Squire Mobile Homes, Inc., 287 S.C. 51, 336 S.E.2d 502 (Ct.App. 1985); Cohen v. Allendale Coca-Cola Bottling Co., 291 S.C. 35, 351 S.E.2d 897 (Ct.App. 1986).
For the reasons stated herein, the judgment of the trial court is affirmed in part, and reversed in part.
Affirmed in part as modified and reversed in part.
SHAW, and CONNOR, JJ., concur.
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