NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, ETC. VS. CINTAS FIRE PROTECTION, INC. (L-6413-16, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1802-17T4
NATIONAL FIRE INSURANCE
COMPANY OF HARTFORD,
a/s/o REFORMED CHURCH
MINISTRIES TO THE AGING,
Plaintiff-Appellant,
v.
CINTAS FIRE PROTECTION,
INC.,
Defendant-Respondent.
_______________________________
Argued April 29, 2019 – Decided May 21, 2019
Before Judges Sabatino, Mitterhoff and Susswein.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-6413-16.
W. Dana Venneman argued the cause for appellant
(Law Office of Steven J. Tegrar, attorneys; William E.
Paulus, on the briefs).
Dennis M. Marconi argued the cause for respondent
(Barnaba & Marconi, LLP, attorneys; Dennis M.
Marconi, on the brief).
PER CURIAM
Plaintiff National Fire Insurance Company of Hartford ("National Fire"),
appeals the trial court's order of summary judgment dismissing its subrogation
claim against defendant Cintas Fire Protection, Inc. ("Cintas"). Cintas installed
fire sprinklers in a nursing facility operated by National Fire's insured, Reformed
Church Ministry to the Aging ("RCMA"). After the sprinklers were installed, a
pipe burst and caused roughly $1.5 million in property damages to nursing
facility. RCMA submitted a claim to National Fire, which paid the claim in full.
National Fire then obtained an assignment of RCMA's rights and brought this
subrogation again against Cintas to recoup the indemnity payments.
The trial court granted summary judgment to Cintas based on a waiver-
of-subrogation clause in the contract for services between RCMA and Cintas.
In so holding, the trial court determined that pursuant to the contract terms, Ohio
law governed the dispute. The trial court also found that a limitation-of-liability
provision in the contract, which limited recovery against Cintas to $1,00 0, was
enforceable. We affirm, substantially for the reasons set forth in Judge Lisa M.
Vignuolo's oral opinion, adding only the following comments. 1
1
Although the judge's oral ruling was clear, the accompanying order is
ambiguous as to the court's ruling on the limitation-of-liability clause. The
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2
RCMA operates a nursing facility in Old Bridge, New Jersey. On October
22, 2012, RCMA entered into a "Fire Protection Proposal" (the "contract") with
Cintas for the installation of thirty-three dry sidewall sprinkler heads in all of
the balconies in the nursing facility for $28,760. Russel Nagy, the "GM [of]
Facilities," executed the contract on behalf of RCMA.
On the front side of the one-page written agreement, a section entitled
"Acceptance of Proposal" provides:
The specification and payment terms of this proposal
are satisfactory and hereby accepted. Signing and
accepting this proposal constitutes acknowledgement
for the receipt and acceptance of the Cintas Corporation
Terms and Conditions of Sale – Fire Equipment and
Services, included in this proposal. I am authorized to
approve this proposal and its payment as an agent of the
"Customer" whose information is contained in this
proposal. You are authorized to begin work as
provided.
judge stamped "DENIED" over the portion of Cintas' proposed order awarding
National Fire $1,000 under the terms of the contract. Stemming from this
ambiguity, Cintas filed a cross-appeal as to this issue, but withdrew the cross
appeal once it had received the transcript of Judge Vignuolo's oral decision.
Similarly, National Fire states in its brief that the trial court "den[ied] the part
of the motion that sought to limit RCMA'S damages to $1,000 under the
liquidated damages clause."
In her oral opinion, Judge Vignuolo clearly ruled that the limitation-of-
liability clause was enforceable. This oral ruling is controlling. See Taylor v.
Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002)
("Where there is a conflict between a judge's written or oral opinion and a
subsequent written order, the former controls.").
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The signature line is below these statements. Below the signature line, the
contract provides, "The acceptance of this proposal is subject to the Terms and
Conditions Attached."
Accordingly, the back of the contract provides, 2 in small print, the terms
and conditions of sale. Three particular provisions contained in these terms and
conditions are at issue in the instant appeal.
First, the contract contained a choice-of-law clause, providing in pertinent
part: "14. Governing Law; Disputes. The rights and obligations of the parties
contained herein shall be governed by the laws of the State of Ohio, excluding
any choice of law which may direct the application of the laws of another
jurisdiction." (Emphasis in original).
Second, the contract required RCMA to maintain an insurance policy on
the property and to indemnify Cintas for all losses arising from claims required
to be covered by the insurance policy:
9. Cintas not an insurer. Indemnification of Cintas
by Purchaser. Purchaser agrees that neither Cintas nor
its subcontractors or assignees, including, without
limitation, those providing monitoring services,
2
The trial court noted, quite accurately, that the clauses were "in small type on
the back of the contract itself." In its brief, Cintas states that the terms and
conditions were "on the next page of the [c]ontract."
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(collectively, "Subcontractors") are insurers and no
insurance coverage is provided by this Agreement.
PURCHASER ACKNOWLEDGES AND AGREES
THAT CINTAS AND ITS SUBCONTRACTORS DO
NOT ASSUME RESPONSIBILITY NOR SHALL
THEY HAVE ANY LIABILITY FOR CLAIMS
MADE AGAINST THEM CLAIMING THAT THEY
ARE AN INSURER OF PURCHASER'S SYSTEMS,
THE FAILURE OF SUCH SYSTEMS TO OPERATE
EFFECTIVELY, OR ANY OTHER TYPE OF
INSURANCE COVERAGE AS AN INSURER.
Purchaser acknowledges that during the term of the
Agreement, it will maintain a policy of insurance,
covering public liability, bodily injury, sickness or
death, and losses for property damage, fire, water
damages, and loss of property in amounts that are
sufficient to cover all claims of Purchaser for any losses
sustained.
PURCHASER AGREES TO INDEMNIFY AND
HOLD CINTAS AND ITS SUBCONTRACTORS
HARMLESS FROM AND AGAINST ALL COSTS,
EXPENSES (INCLUDING ATTORNEYS'
REASONABLE FEES) AND LIABILITY ARISING
FROM CLAIMS REQUIRED TO BE COVERED BY
INSURANCE PURSUANT TO THIS SECTION,
INCLUDING ANY CLAIMS FOR DAMAGES
ATTRIBUTABLE TO BODILY INJURY, SICKNESS
OR DEATH OR THE DESTRUCTION OF ANY
REAL OR PERSONAL PROPERTY. Cintas shall not
be responsible for any claims of Purchaser against the
Subcontractors nor for any portion of any loss or
damage that is required to be insured, is insured or
insurable and shall be indemnified by Purchaser against
all such claims including the claims of any third parties.
[(Emphasis and capitalization in original).]
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Third, the contract contained a limitation-of-liability clause:
10. LIMITATION OF LIABILITY OF CINTAS,
LIQUIDATED DAMAGES. THE LIABILITY OF
CINTAS AND ITS SUBCONTRACTORS FOR ANY
CLAIMS WHICH PURCHASER, ITS AGENTS,
OFFICERS, DIRECTORS, EMPLOYEES OR
INVITEES MAY HAVE AGAINST CINTAS
PURSUANT TO THIS AGREEMENT, IN THE
EVENT IT IS DETERMINED THAT CINTAS HAS
ANY LIABILITY, SHALL BE LIMITED TO $1,000
AS LIQUIDATED DAMAGES. If Purchaser wishes to
increase the limitation of liability, Purchaser may, as of
right, enter into a supplemental agreement with Cintas,
and obtain a higher limit by paying an additional
amount consistent with the increase in liability.
Seller's service fees are based on the value of the
services provided and the limited liability provided
under this contract, and not on the value of Purchaser's
premises or contents, or the likelihood of potential
extent or severity of the injury (Including death) to
Purchaser or others. Seller cannot predict the potential
amount, extent, or severity of any damages or injuries
that Purchaser or others may incur which could be due
to the failure of the system or services to work as
intended. As such (I) Purchaser hereby agrees that the
limits on the liability of Cintas and Subcontractors, and
the waivers and indemnities set forth in this contract are
a fair allocation of risks and liabilities between Cintas,
Purchaser, Subcontractors and any other affected third
parties; (II) except as provided in this agreement,
Purchaser waives all rights and remedies against Cintas
and Subcontractors including rights of subrogation that
Purchaser, any insurer, or third party may have due to
any losses or injuries subscriber or others incur.
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Purchaser agrees that were Cintas and its
Subcontractors to have liability greater than that stated
above, it would not provide the services. Neither party
shall be liable to the other or any other person for any
incidental, punitive, loss of business profits,
speculative or consequential damages.
[(Emphasis and capitalization in original).]
As alleged in National Fire's complaint, on October 19, 2013, a leakage
occurred in the "A" wing balcony of the nursing facility from the sprinkler
system that had been recently installed by Cintas pursuant to the contract.
Thomas Hart, the Old Bridge Fire Marshall, responded to the facility on October
19 and determined "that the orange fire sprinkler pipe which was being installed
for balcony sprinkler heads . . . was separated at the elbow[,] and it was obvious
that the connection was not glued together which resulted in the separation and
caused the water to flow." Similarly, an engineering consultant retained by
RCMA opined that the socket joint failure caused the leakage of water and
resulting damage, and that "[t]he socket joint failure was caused either by:
improper socket joint assembly, improper curing of construed socket joint, or a
combination thereof."
RCMA suffered property damage and losses in excess of $1.5 million, and
National Fire made indemnity payments to RCMA in accordance with the
insurance policy in an amount in excess of $1.5 million. Accordingly, in the
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underlying subrogation action, National Fire sought to recover damages in
excess of $1.5 million.
On November 6, 2017, the trial court, applying Ohio law, rendered an oral
decision granting Cintas' motion for summary judgment based on the contract's
waiver-of-subrogation clause. In that regard, the judge noted that the contract
was not a consumer contract and was entered into between two business entities.
The judge rejected National Fire's contentions that the contract was
unconscionable, reasoning that: (1) Cintas did not have a duty to explain the
waiver-of-subrogation clause to RCMA; (2) there was no factual evidence in the
record indicating that RCMA was unable to understand the terms of the contract;
(3) Ohio law permits contractual terms to be on the back of a document; and (4)
there was no factual evidence in the record indicating that RCMA attempted to
negotiate different or additional terms. In sum, the judge found that RCMA
waived its right to subrogate its claim by the express language of the contract,
and that such a waiver was enforceable under Ohio law.
Although noting that the ruling on the waiver of subrogation "resolve[d]
all outstanding issues relative to the enforcement of the contract with respect to
National Fire attempting to asserts rights as a subrogee," the trial judge also
determined that the limitation-of-liability clause was enforceable under Ohio
A-1802-17T4
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law. The judge reasoned that under Ohio law, such a clause is enforceable unless
it is "commercially unreasonable." The judge found no factual evidence in the
record supporting that the limitation-of-liability clause was commercially
unreasonable.
This appeal ensued. On appeal, National Fire contends that the trial court
erred in determining that Ohio law applies. National Fire also argues that the
waiver-of-subrogation and limitation-of-liability clauses in the contract are
unconscionable and unenforceable. Finally, National Fire contends that the trial
court erred in granting summary judgment prior to the close of discovery.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,
330 (2010). Summary judgment must be granted if "the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c). The court considers whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
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favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
"The trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The analytical framework for deciding how to resolve a choice-of-law issue is
a matter of law." McCarrell v. Hoffmann-La Roche, Inc., 227 N.J. 569, 583
(2017). Accordingly, we review the trial court's choice-of-law determination de
novo. Id. at 583-84.
Choice of law
We first address National Fire's contention that the trial court erred in its
determination that Ohio law governs the dispute. Citing to Ginsberg v. Quest
Diagnostic, Inc., 441 N.J. Super. 198 (App. Div. 2015), National Fire argues
that Ohio has no substantial relationship to the transaction, and that New Jersey
has a more substantial relationship to the transaction. National Fire's citation to
Ginsberg, however, is inapposite, as that case addressed the choice-of-law
standards governing tort cases. Id. at 209-11.
The New Jersey Supreme Court set forth the standards for evaluating
contractual choice-of-law provisions in Instructional Sys., Inc. v. Computer
A-1802-17T4
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Curriculum Corp., 130 N.J. 324, 341-42 (1992). In Instructional Sys., the Court
held that "[o]rdinarily, when parties to a contract have agreed to be governed by
the laws of a particular state, New Jersey courts will uphold the contractual
choice if it does not violate New Jersey's public policy." Id. at 341. In so
holding, the Court endorsed the standards set forth in the Restatement (Second)
of Conflict of Laws ("Restatement"), which provides that the law of the state
chosen by the parties in the contract will apply, unless either:
(a) the chosen state has no substantial relationship to
the parties or the transaction and there is no other
reasonable basis for the parties' choice, or
(b) application of the law of the chosen state would be
contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the
determination of the particular issue and which * * *
would be the state of the applicable law in the absence
of an effective choice of law by the parties.
[Id. at 342 (quoting Restatement (Second) of Conflicts
of Laws, § 187 (Am. Law Inst. 1969).]
In this case, National Fire is not entitled to relief under either exception.
With respect to the exception in subsection (a), Ohio has a substantial
relationship to the transaction because Cintas is headquartered in Ohio. See N.
Bergen Rex Transp., Inc. v. Trailer Leasing Co., a Div. of Keller Sys., 158 N.J.
561, 569 (1999) ("The substantial relationship standard under the Restatement
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has been met in the present case because TLC is headquartered in Illinois.").
With respect to the exception in subsection (b), as detailed below, there do not
appear to be any substantial differences in Ohio and New Jersey law on the
enforceability of waiver-of-subrogation or limitation-of-liability contract
clauses.
Specifically, "Ohio courts have repeatedly held that waiver-of-
subrogation provisions are valid and enforceable." Westfield Ins. Grp. v.
Affinia Dev., L.L.C., 982 N.E.2d 132, 139 (Ohio Ct. App. 2012). For example,
in Westfield, the insurer of a property damaged by a fire filed a subrogation
action against a contractor who was renovating the property, alleging that
contractor negligently caused the fire. Id. at 133-35. The Fifth District Court
of Appeals held that the insurer's claim was barred by a waiver-of-subrogation
clause in the contract between the property owner and the contractor. Id. at 144-
46. The court reasoned, "Waiver of subrogation is useful in construction
contracts because it avoids disrupting the project and eliminates the need for
lawsuits because it offers certainty as to the liability of the parties." Id. at 145.
Similarly, in Nationwide Mut. Fire Ins. Co. v. Sonitrol, Inc. of Cleveland,
672 N.E.2d 687, 692-93 (Ohio Ct. App. 1996), the Eight District Court of
Appeals upheld a waiver-of-subrogation clause in a contract for the installation
A-1802-17T4
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and monitoring of a security system for a school building. In so holding, the
court noted, "Other jurisdictions construing similar contract provisions have
upheld contract provisions where the parties agreed to waive claims of personal
liability in the event of a loss or peril, with the understanding that the loss would
be covered by insurance." Ibid. (quoting Len Immke Buick v. Architectural
Alliance (1992), 611 N.E.2d 399, 402 (Ohio Ct. App. 1992)).
As have Ohio courts, New Jersey courts have upheld waiver-of-
subrogation provisions. See, e.g., ACE Am. Ins. Co. v. Am. Med. Plumbing,
Inc., ___ N.J. Super. ___, ___ (App. Div. 2019) (slip. op. at 10-12) (upholding
waiver-of-subrogation clause in construction contract even as to "Non-work
related" damages); Skulskie v. Ceponis, 404 N.J. Super. 510, 512-14 (App. Div.
2009) (upholding waiver-of-subrogation clause in a condominium unit owner's
insurance policy); School Alliance Insurance Fund v. Fama Construction Co.,
353 N.J. Super. 131, 140-41 (Law Div. 2001) (upholding mutual waiver of
subrogation in contract between school district and construction firm), aff'd o.b.,
353 N.J. Super. 1 (App. Div. 2002).
Most notably, in Synnex Corp. v. ADT Sec. Servs., Inc., 394 N.J. Super.
577, 580 (App. Div. 2007), we upheld "an exculpatory clause in a contract for
the sale of a burglar alarm system, which require[d] the buyer to rely solely on
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its own insurance for any loss from theft." In that case, the exculpatory clause
provided that the customer agreed to look exclusively to the customer's insurer
to recover for injuries and damages and waived all rights of recovery arising by
way of subrogation. Id. at 582. We held that the insurer's subrogation action
was barred by the exculpatory clause and the waiver of subrogation, finding that
the clause was not contrary to public policy. See id. at 587-594. We noted,
"Our courts have also recognized the appropriateness of exculpatory clauses
designed to allocate responsibility for maintenance of insurance coverage and to
avoid subrogation actions by insurance companies that attempt to shift
responsibility for a covered loss to another party." Id. at 589.
Based on the lack of any significant divergence between the laws of Ohio
and New Jersey with respect to waiver-of-subrogation clauses, National Fire has
failed to show a fundamental policy in New Jersey that would suffice to override
the parties' selection of Ohio law as governing the parties' rights under the
contract. Accordingly, we affirm the trial court's application of Ohio law to this
matter.
Unconscionability
National Fire next argues that the trial court erred in enforcing the waiver-
of-subrogation clause because the contract was a contract of adhesion that was
A-1802-17T4
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both procedurally and substantively unconscionable. Although we conclude that
the waiver-of-subrogation provision in the contract may have rendered it a
contract of adhesion, we nonetheless affirm the trial court's ruling that the
contract is not unconscionable under Ohio law. 3
The Ohio Supreme Court has described a contract of adhesion as "a
standardized form contract prepared by one party, and offered to the weaker
party, usually a consumer, who has no realistic choice as to the contract terms."
Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d 12, 24 (Ohio 2008) (citing
Black’s Law Dictionary 342 (8th ed. 2004)); see, e.g., DeVito v. Autos Direct
Online, Inc., 37 N.E.3d 194, 203 (Ohio Ct. App. 2015) ("The loser-pays
provision is tucked into a take-it-or-leave-it, preprinted, boilerplate arbitration
agreement sent in an email to the vehicle purchaser among a stack of documents.
As such, it is adhesive. There was little meaningful, face-to-face opportunity
for understanding, negotiating, or altering the terms.").
3
In its brief, Cintas notes that "National [Fire] appears to concede that the
provisions are enforceable under Ohio law; it never argues that the Ohio [l]aw
was incorrectly applied and instead, appears to premise all of its arguments on
New Jersey [l]aw." Because National Fire did not brief the application of Ohio
law, we deem National Fire to have waived the argument that the trial court
incorrectly applied Ohio law. See Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").
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Although there does not appear to be an appreciable difference in
bargaining power between these two businesses, the additional terms and
conditions were contained in small print on the back of a document which would
commonly be characterized as a pre-printed, standard invoice. Even without
specific evidence that RCMA unsuccessfully attempted to negotiate different
terms, the fact that the additional terms were presented in such a manner allows
for a reasonable inference that the terms were essentially on a "take-it-or-leave-
it" basis.
"However, even a contract of adhesion is not in all instances
unconscionable per se." Taylor, 884 N.E.2d at 24. "[I]t is incumbent upon the
complaining party to put forth evidence demonstrating that the clause is
adhesive and, moreover, that as a result of the adhesive nature, the clause is
unconscionable." Schaefer v. Jim Brown, Inc., 33 N.E.3d 96, 100 (Ohio Ct.
App. 2015) (quotation omitted). "A party challenging [a contract as
unconscionable] must prove a quantum of both procedural and substantive
unconscionability." Hayes v. Oakridge Home, 908 N.E.2d 408, 414 (Ohio
2009).
"Procedural unconscionability considers the circumstances surrounding
the contracting parties' bargaining, such as the parties' age, education,
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intelligence, business acumen and experience, . . . who drafted the contract, . .
. whether alterations in the printed terms were possible, [and] whether there were
alternative sources of supply for the goods in question." Taylor, 884 N.E.2d at
22 (alterations in original) (quotations and citations omitted). A party’s
"inability to understand the language of the agreement" may also support a
finding of procedural unconscionability. Ibid. (quoting Restatement (Second)
of Contracts, § 208, cmt. d (Am. Law Inst. 1981)).
In this regard, National Fire's strongest argument is that the additional
terms were printed in small print on the back of the contract document.
Although the copy of the contract in the appellate appendix is barely legible, it
appears that the reproduction of it has contributed to the illegibility. That being
said, National Fire does not submit a certification from Nagy that he was unable
to read the terms due to the small size of the text, nor does National Fire contend
in its brief that the terms were actually illegible, instead referring to them as
"microscopic."
Ohio courts have found that small print does not render contracts
unconscionable, as long as the print is actually legible and other factors do not
render the contract unconscionable. See Brondes Ford, Inc. v. Habitec, 38
N.E.3d 1056, 1082 (Ohio Ct. App. 2015) (rejecting an argument that a
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limitation-of-liability clause was unconscionable because it was contained in
small print on the back of the contract document); Vincent v. Neyer, 745 N.E.2d
1127, 1132-33 (Ohio Ct. App. 2000) (rejecting an argument that an arbitration
clause was unconscionable because it was printed on the back of the contract in
small print, reasoning that consumers failed to read the entire contract and did
not present evidence that the clause was non-negotiable); P & O Containers, Ltd.
v. Jamelco, Inc., 641 N.E.2d 794, 799 (1994) ("While the print is small, it is not
illegible and the language is understandable. A party's duty to read terms of a
contract before entering into it depends on the facts of the specific case. Both
parties are commercially sophisticated. This was not a consumer transaction.").
As in P & O Containers, there is insufficient procedural unconscionability
to render the contract unenforceable. Although the contract was adhesive in
nature, the agreement was between two business entities. There is no evidence
in the record supporting that the parties had an appreciable difference in
bargaining power, or that RCMA was unable to obtain services from another fire
protection company. Even though the terms were in small print, it does not
appear that the terms were actually illegible and would have prevented a meeting
of the minds.
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Likewise, as did the trial judge, we reject National Fire's contention that
the contract was substantively unconscionable. "An assessment of whether a
contract is substantively unconscionable involves consideration of the terms of
the agreement and whether they are commercially reasonable." Hayes, 908
N.E.2d at 414. "Factors courts have considered in evaluating whether a contract
is substantively unconscionable include the fairness of the terms, the charge for
the service rendered, the standard in the industry, and the ability to accurately
predict the extent of future liability." Ibid. The inquiry is fact-specific and
"var[ies] with the content of the agreement at issue." Ibid.
As discussed above, "Ohio courts have repeatedly held that waiver-of-
subrogation provisions are valid and enforceable." Westfield, 982 N.E.2d at
139. Such waivers allow the parties to accurately predict that any losses will be
covered exclusively by insurance. Ohio courts have not determined that such
waivers are contrary to public policy or commercially unreasonable.
Contrary to National Fire's assertion, no different result would have
adhered from the application of New Jersey law. Under New Jersey law, "the
essential nature of a contract of adhesion is that it is presented on a take-it-or-
leave-it basis, commonly in a standardized printed form, without opportunity for
the 'adhering' party to negotiate except perhaps on a few particulars." Rudbart
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v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353 (1992) (citation
omitted).
Even assuming the contract was adhesive, however, as under Ohio law,
"[t]he determination that a contract is one of adhesion, however, 'is the
beginning, not the end, of the inquiry' into whether a contract, or any specific
term therein, should be deemed unenforceable based on policy considerations."
Muhammad v. Cty. Bank of Rehoboth Beach, Delaware, 189 N.J. 1, 15 (2006)
(quoting Rudbart, 127 N.J. at 354). The New Jersey Supreme Court set forth
the following factors to consider in determining whether a contract of adhesion
in unconscionable:
[I]n determining whether to enforce the terms of a
contract of adhesion, courts have looked not only to the
take-it-or-leave-it nature or the standardized form of
the document but also to [(1)] the subject matter of the
contract, [(2)] the parties' relative bargaining positions,
[(3)] the degree of economic compulsion motivating the
'adhering' party, and [(4)] the public interests affected
by the contract.
[Id. at 15-16 (alterations in original) (quoting Rudbart,
127 N.J. at 356).]
We conclude that the contract was not unconscionable when considering
these four factors. New Jersey courts have enforced waiver-of-subrogation
clauses and have determined that they are not contrary to public policy. Again,
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National Fire has not presented any specific evidence supporting a disparity in
bargaining power or a degree of economic compulsion.
Additionally, the fact that the contested terms were in small print on the
back of the contract is not an independent ground to render the terms
unenforceable under New Jersey law. To be sure, in the context of evaluating
whether arbitration clauses were "conspicuous," New Jersey courts have
invalidated clauses based in part on the small size of the text. See Kernahan v.
Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 322-23 (2019) ("Even when
located, the small size of the print makes the provision burdensome to read and
appears to violate the font size requirements of the [Plain Language Act].");
Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 586 (App. Div. 2004)
(invalidating arbitration clause that was "onerous to read in light of the small
size of the print" and was "difficult to locate" because there was no
distinguishable reference to clause on the first page of the document.). But these
cases dealt with consumer contracts and the specific requirement that an
arbitration clause "must state its purpose clearly and unambiguously." Atalese
v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 435 (2014). In this case, by
contrast, the contract was between two business entities, and the front of the
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contract document clearly indicated that acceptance was subject to the attached
terms and conditions.
In sum, both Ohio and New Jersey law permit waiver-of-subrogation
clauses, and there does not appear to be any substantial divergence between the
jurisdictions on this issue. Indeed, National Fire has not identified a case from
either jurisdiction in which a court invalidated a similar waiver-of-subrogation
clause. Because National Fire has not presented a persuasive argument that the
contract was unconscionable under either Ohio or New Jersey law, the trial court
correctly granted summary judgment based on RCMA's waiver of subrogation.
Limitation-of-liability clause
Characterizing the limitation-of-liability clause as a liquidated damages
clause,4 National Fire argues that the clause is unreasonable and unenforceable
under New Jersey law. National Fire maintains "the amount fixed in the subject
4
The clause at issue here is best characterized as a limitation-of-liability clause.
See Nahra v. Honeywell, Inc., 892 F. Supp. 962, 969 (N.D. Ohio 1995)
("Liquidated damages clauses, properly employed, attempt to fix in advance
'reasonable compensation for actual damages.' However, limitation of liability
clauses by definition restrict the amount of compensation available, regardless
of the actual damages ultimately suffered."). The limitation-of-liability clause
in Cintas' contract does not attempt to fix reasonable compensation for actual
damages, but rather restricts the amount of compensation available irrespective
of actual damages. Accordingly, National Fire's reliance on Wasserman, Inc. v.
Township of Middletown, 137 N.J. 238 (1994), for the standards to evaluate the
enforceability of a liquidated damages provision, is misplaced.
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contract ($1,000.00) is not a reasonable forecast of just compensation for the
harm caused by the breach of [Cintas]." We disagree and conclude that the
limitation-of-liability clause is not unconscionable under either Ohio or New
Jersey law.
Under Ohio law, "[a] party seeking to avoid a limitations clause on
grounds of unconscionability must show that the clause is commercially
unreasonable and that he had no meaningful choice but to accept its inclusion in
the contract." Nahra v. Honeywell, Inc., 892 F. Supp. 962, 970 (N.D. Ohio
1995). Similarly, under New Jersey law, a limitation-of-liability is
unenforceable where it is unconscionable or violates public polic y. See
Marcinczyk v. N.J. Police Training Comm'n., 203 N.J. 586, 593-94 (2010);
Lucier v. Williams, 366 N.J. Super. 485, 491-92 (App. Div. 2004).
Similar limitation-of-liability clauses have been enforced by both Ohio
and New Jersey courts. See, e.g., Nahra, 892 F. Supp. at 970-72 (upholding
limitation-on-liability clause in a contract for security alarm services to the
lesser of $10,000 or the annual service fee and noting that "it was commercially
reasonable for [the security company] to seek as a basis of the bargain a fixed
limit on its potential liability."); Brondes Ford, 38 N.E.3d at 1082 (upholding
$250 limit of liability in a contract for fire alarm services); Synnex, 394 N.J.
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Super. at 591-94 (upholding limitation-of-liability clause in a business contract
for a burglar alarm system that limited damages to the greater of 10% of annual
service charge or $1,000); Tessler & Son, Inc. v. Sonitrol Sec. Sys. of N. New
Jersey, Inc., 203 N.J. Super. 477, 481-86 (App. Div. 1985) (upholding a $250
limitation-of-liability provision in an alarm services contract).
Accordingly, we affirm the trial court's holding that the limitation-of-
liability clause is not unconscionable, that it is commercially reasonable, and
that it is therefore enforceable.
Discovery incomplete
Finally, we reject National Fire's argument that disputed issues of material
fact precluded the entry of summary judgment. In that regard, a party opposing
a motion for summary judgment on the grounds that discovery is incomplete,
must "demonstrate with some degree of particularity the likelihood that further
discovery will supply the missing elements of the cause of action." Badiali v.
New Jersey Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (quoting Wellington v.
Estate of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003)). The party
must identify the specific discovery that is still needed. See Trinity Church v.
Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007) ("A party opposing
summary judgment on the ground that more discovery is needed must specify
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what further discovery is required, rather than simply asserting a generic
contention that discovery is incomplete."). "[D]iscovery need not be undertaken
or completed if it will patently not change the outcome." Minoia v. Kushner,
365 N.J. Super. 304, 307 (App. Div. 2004).
National Fire notes that the trial court relied in part on the fact that there
was no certification from a representative from RCMA supporting that RCMA
did not understand the contractual terms. National Fire requests that "at a
minimum, . . . this [c]ourt remand the matter for further discovery on the issue
of the state of mind of the individuals preparing, drafting and executing the
subject contract."
However, discovery would not be needed to obtain this evidence, as it
would be within the control of National Fire's subrogor, RCMA. We also note
that National Fire did not tender a certification from Nagy or another fact
witness in opposition to the motion for summary judgment. Regardless, the state
of mind of the individuals drafting and executing the contract is largely
irrelevant to the issue of whether the challenged terms are unconscionable. In
this case, involving two sophisticated business entities, we that any failure by
Nagy to read the contract prior to signing it would be insufficient to overcome
summary judgment.
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To the extent we have not specifically addressed any arguments raised by
the parties, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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