Purcell Tire & Rubber Co. v. Executive Beechcraft, Inc. , 2001 Mo. LEXIS 91 ( 2001 )

WHITE, Judge,

concurring.

I concur fully in the principal opinion. I write separately to emphasize the important differences between this case and Alack v. Vic Tanny, Inc.,¹ and to stress that the Court’s ruling is premised on the particular, narrow claim plead here, and does not disturb the general “express negligence” rule established in Alack.

Three factors present in this case significantly limit the breadth of the Court’s holding. First, plaintiff is a textbook example of a sophisticated contractor. As the principal opinion notes, the standards for waivers of negligence liability by consumers established in Alack are much more stringent than those applied here, and those standards would not be satisfied by the contract provision at issue in this appeal. Second, this case involves only economic damages. As the principal opinion’s citation to Bracey v. Monsanto suggests, the conscionability of limitations on personal injury damages is judged by much stricter standards than those applied here.²

What takes this case completely outside the general rule announced in Alack, however,- is the nature of plaintiffs “negligence” claim. Plaintiff pleads that defendant negligently failed to perform the inspection defendant had contracted to perform. That is, plaintiff has pleaded no more than that defendant has (negligently) failed to perform the terms of its contract. Whether this action even sounds in tort (as opposed to contract) is not a topic upon which the parties have favored us with briefing, and the principal opinion reasonably refrains from deciding the question, since the liability limiting provision here is sufficient to preclude this narrowly drawn cause of action.

The contract provision at issue here provides that Beechcraft’s “liability ... under the agreement” (emphasis supplied) shall be limited to the cost of the inspection. This language is sufficiently clear to limit liability for the particular claim plead here, because the only “negligence” alleged is the violation of a contract term. Such liability undoubtedly arises “under the agreement,” regardless of whether it is formally considered tort or contract liability. Because the provision only limits liability arising “under the agreement,” it is much narrower than the provision at issue in Alack, which purported to release defendant from liability for any personal injuries occurring in, on or around defendant’s premises, and was in no way limited to liability based upon a breach of the agreement itself. Here, as the principal opinion says, the contract was unmistakably clear that liability for violation of its terms was limited. The Court, however, is not presented with, and does not decide the question of whether this provision expressly, clearly and unmistakably disclaims liability for duties imposed not by explicit agreement, but by the general principles of tort law.

Alack established that negligence waivers may never be enforced against consumers in the absence of express, conspicuous and unambiguous language. This case is one of the narrow situations — which Alack contemplates — where sophisticated commercial contractors may enter enforceable agreements to limit liability for specifically identified tortious conduct without using the words “negligence” or “fault.” The exception to the express negligence rule outlined in the principal opinion, however, is no broader than the terms of the particular cause of action plead here.

I concur that the judgment of the trial court should be affirmed for the reasons stated in the principal opinion.

1 . 923 S.W.2d 330 (Mo. banc 1996).

2 . 823 S.W.2d 946, 948-50 (Mo. banc 1992); cf. Sec. 400.2-719(3), RSMo 2000 (limitations of consequential damages are presumptively unconscionable when damages are related to personal injuries; limitations of economic damages are not presumptively unconscionable).