 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Borden Chemical9/29/2005
m the evidence).
Cote's deposition testimony was uncontroverted that it was his practice to initial the Borden invoices as a means of instructing Jahn's own accounts payable staff that the amount therein should be paid. Borden points to no evidence that the invoices bearing Cote's initials were sent back to Borden, nor does Borden refute Jahn's assertion that Borden obtained initialed copies of its invoices only in response to discovery requests in connection with this litigation. As a consequence, on this record, the fact that Cote initialed Borden's invoices solely for in-house use, with no communication to Borden, does not support a reasonable inference that Jahn expressly accepted the indemnity agreement contained therein. The cases relied upon by Borden do not hold otherwise. See, e.g., Thomas v. Massachusetts Bay Transp. Authy., 39 Mass. App. Ct. 537, 542-544 (1995) (issue presented was whether an unconditional acceptance had been communicated to the other party so as to establish a binding settlement agreement).
Borden further contends that Jahn's acceptance of Borden's resin shipments without protesting the invoices' terms in the years preceding the shipment involved in the explosion established Jahn's acceptance of the invoices' indemnity agreement or, at the very least, established that the indemnity agreement was not a material alteration to the purchase order's terms. See, e.g., SibcoImtrex, Inc. v. American Foods Group, Inc., 241 F. Supp. 2d at 110 (recognizing that a consistent course of dealing between the parties may substitute for an express agreement or signify mutual consent to an additional term inserted in the seller's invoice). In arguing that the parties' course of dealing over a number of years established the invoices' terms as accepted, Borden does not satisfactorily address the addition of significant new terms and conditions to Jahn's purchase order as of 1998. For that reason, the cases upon which Borden relies, involving enforcement of terms in transactions after lengthy histories of prior dealing between the parties, do not aid its position. See, e.g., Tupman Thurlow Co. v. Woolf Intl. Corp., 43 Mass. App. Ct. at 338-339 (purchaser failed to object to invoices' arbitration provision over a lengthy history of sixty-five transactions involving the same forms); Waukesha Foundry, Inc. v. Industrial Engr., Inc., 91 F.3d 1002, 1009 (7th Cir. 1996) (sixty orders over four years without objection to disclaimer of warranty in invoices).
In this case, the summary judgment record established that, for the resin shipments involved in the claims arising from the 1999 explosion, Jahn's 1998 and 1999 purchase orders contained new terms respecting warranties and remedies in connection with Borden's product that were inconsistent with an agreement to indemnify Borden. Proof of prior dealings under Jahn's pre-1998 purchase orders, which were silent on the issue, would not support a reasonable inference that Jahn accepted the indemnity agreement once Jahn started including in its purchase orders express provisions to the contrary. See, e.g., JOM, Inc. v. Adell Plastics, Inc., 193 F.3d at 57 ("The buyer which explicitly includes a particular term in its purchase order . . . presumably demonstrates that it has considered the allocation of business risks associated with the term, and, for example, has determined that it is unwilling to accept greater risk").
Our review of the undisputed facts in the record confirms that the indemnity agreement in Borden's invoices effected a material alteration of Jahn's purchase orders, as matter of law, for the shipments alleged to be involved in the explosion at Jahn's facility. Accordingly, under ยง 2-207(2)(b), the language i
Page 1 2 3 4 5 6 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|