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Orlett v. Suburban Propane12/11/1989
Koehler, J.
This cause is before the court on appeal from a motion for summary judgment granted in favor of defendants-appellees, Suburban Propane, Suburban Propane Gas Corporation, and Texgas Corporation (hereinafter referred to as "Texgas").
The facts indicate that on March 31, 1986, plaintiffs-appellants, Daniel J. Orlett and Bonnie Orlett, entered into a "liquid propane gas purchase agreement and equipment lease," whereby Texgas agreed to lease three three-hundred-pound gas tanks together with "all the LP gas to be stored and used in the above equipment." Originally, an automatic-fill service method of delivery was set up in order to avoid a total depletion of gas prior to the placing of another order for delivery; however, on November 3, 1986, the automatic-fill service was discontinued apparently due to the Orletts' nonpayment for delivered gas. Therefore, Texgas implemented a cash-on-demand delivery service requiring payment within thirty days. This delivery arrangement remained effective until February 18, 1987 when the Orletts reinstated the automatic-fill service.
On February 18, 1987, the Orletts awakened as a result of a strong gas odor permeating their mobile home. The propane gas tank had run empty and, due to a lack of pressure, the shutoff valve could not be closed. Therefore, propane gas leaked into thsOrletts' home. The Orletts brought suit against Texgas for injuries sustained as a result of the negligence of Texgas in failing to properly inspect and maintain its gas tanks pursuant to the purchase agreement and equipment lease. The complaint alleged that the failure of Texgas to keep the tanks full as per agreement resulted in leaking propane which thereby caused injuries to Bonnie Orlett.
Texgas moved for summary judgment on March 2, 1989. The court below granted the motion in favor of Texgas on May 8, 1989, maintaining that the exculpatory language of the purchase agreement and equipment lease exempted Texgas from the consequences of any negligence it may have in connection with the Orletts. The Orletts subsequently filed this instant appeal setting forth the following assignment of error:
"The trial court erred to the prejudice of the appellants in resolving the issue of the exculpatory clause in the LP Gas Purchase Agreement and Equipment Lease between plaintiffs and defendants, barring plaintiffs from recovery and granting summary judgment in favor of defendants."
The Orletts, in their assigned error, insist that one who is engaged in the business of supplying propane cannot relieve itself by contract from liability in negligence. We agree.
The purchase agreement and equipment lease agreed to and executed by the Orletts provided that:
"It is understood and agreed that TEXGAS will not be responsible for damage to the CUSTOMER's property or for the death or personal injury of the CUSTOMER or of any third party arising out of the storage or use of LPGas, or the use, operation, maintenance, or repair of any equipment or appliance storing or utilizing LP-Gas or arising out of the presence of a TEXGAS representative on or around the CUSTOMER's property for the purposes of carrying out the provisions of this agreement unless the damage to property or death or personal injury was caused by the gross negligence or the wanton and willful act of TEXGAS. The CUSTOMER agrees to indemnify and excuse TEXGAS from all liability, loss, damage, or expenses sustained by any person as a result of the installation, removal, use, servicing, repair, maintenance, filling, refilling, or any other activity related to this lease, the installed equipment, or for any sale, unless the liabi
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