ACE FORMAL WEAR, INC., APPELLANT,
v.
BAKER PROTECTIVE SERVICE, INC., A DELAWARE CORPORATION, APPELLEE

Fla. 3d DCA | 1982-06-08
No. 81-1017
Before BARKDULL, BASKIN and JOR-GENSON, JJ.
416 So. 2d 8 Florida District Court of Appeal, Third District (1982) Caution
Cited by 29 cases

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Synopsis

Ace Formal Wear sued Baker Protective Service for breach of contract and negligence after a burglary exploited an unmonitored window in an installed alarm system. The court affirmed summary judgment for Baker, holding that the parties' contractual exculpatory clause clearly limited Baker's liability to $50 and was enforceable.


Holding

The exculpatory clause was valid and enforceable. The court held that parties are free to contract as they please, and the agreement clearly established that Baker was not an insurer, that Ace bore responsibility for obtaining burglary insurance, and that Baker's liability was capped at $50 for nominal installation services.


Headnotes

[1] A contract clause limiting a security company's liability to a nominal sum is enforceable when the contract clearly states the company is not an insurer and the customer…

[2] Parties are generally free to contract as they choose, including allocating risk and limiting liability.

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Key Quotes

“The parties were at liberty to contract as they pleased. The agreement in the instant case clearly indicated that Baker was not to be the insurer; that Ace had the responsibility of securing burglary insurance; that Baker was merely installing equipment for a nominal amount of money, and they assumed no liability above the figure set in the contract of $50.00.”

Establishes the court's rationale that exculpatory clauses are enforceable when parties clearly allocate risk and liability limits reflect the consideration paid.

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Facts & Procedural History

Ace Formal Wear contracted with Wells Fargo Alarm Service (a division of Baker) to install an alarm system. After installation, the store was burglari…

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Opinion of the Court
BARKDULL, Judge.

BARKDULL, Judge.

Ace Formal Wear entered into a contract with Wells Fargo Alarm Service, a division of Baker, for the installation of an alarm system. After the system had been installed, the store was burglarized by persons who gained access through a rear window which had not been wired even though the wiring of that window was required by the contract.

Ace sued Baker, claiming breach of contract and negligence. Baker answered and asserted the following exculpatory or limitation clause in the contract:

D. It is understood that Wells Fargo is not an insurer; that insurance shall be obtained by Subscriber, if any is desired; that the sums payable hereunder to Wells Fargo by Subscriber are based upon the value of services offered and the scope of liability undertaken and such sums are not related to the value of property belonging to Subscriber or to others located on Subscriber’s premises. Subscriber does not seek indemnity by this agreement from Wells Fargo against any damages or losses caused by hazards to Subscriber’s property. Wells Fargo makes no warranty, expressed or implied, that the systems it installs or the services it furnishes will avert or prevent occurrences, or the consequences therefrom, which the systems and services are designed to detect. Subscriber agrees that Wells Fargo shall not be liable for any of Subscriber’s losses or damages, irrespective of origin, to person or to property, whether directly or indirectly caused by performance or nonperformance of obligations imposed by this contract or by negligent acts or omissions of Wells Fargo, its agents or employees. The Subscriber does hereby waive and release any rights of recovery against Wells Fargo that it may have hereunder. It is agreed that if Wells Fargo should be found liable for any losses or damages attributable to a failure of systems or services in any respect, its liability shall not exceed the sum of $50.00 and Subscriber’s sole remedy at law or in equity shall be the right to recover a sum within such limit.

The trial court granted a summary judgment in favor of Baker upon the authority of L. Laria & Sons, Inc. v. Alarmtec International Corporation, 384 So. 2d 947 (Fla. 4th DCA 1980). We affirm.

The parties were at liberty to contract as they pleased. The agreement in the instant case clearly indicated that Baker was not to be the insurer; that Ace had the responsibility of securing burglary insurance; that Baker was merely installing equipment for a nominal amount of money, and they assumed no liability above the figure set in the contract of $50.00.

Similar contracts have been upheld in other jurisdictions, Foont-Freedenfeld Corp. v. Electro-Protective Corp., 126 N.J.Super. 254, 314 A. 2d 69 (1973); Florence v. Merchants Central Alarm Co., 73 A.D.2d 869, 423 N.Y.S.2d 663 (1980); Schepps v. American District Telegraph Co. of Texas, 286 S.W. 2d 684 (Tex.Civ.App.1955); Vallance & Co. v. DeAnda, 595 S.W. 2d 587 (Tex.Civ. App.1980). See also Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P. 2d 1203 (1977), which was expressly relied upon in the Luria opinion, supra.

Counsel for the appellant has attempted to argue unconscionability in this court, but the record fails to disclose that an issue as to unconscionability was ever made in the trial court. Moore Meats, Inc. v. Strawn, 313 So. 2d 660 (Fla.1975); Gulf Life Ins. Co. v. Ferguson, 59 So. 2d 371 (Fla.1952); Fla.R.Civ.P. 1.100(a).

We also find the safety deposit box cases, which are single purpose contracts, not to be applicable in the instant case, Sniff en v. Century National Bank of Broward, 375 So. 2d 892 (Fla. 4th DCA 1979), or that the theory behind these cases was properly made an issue by the pleadings.

Therefore, for the reasons stated, the final summary judgment under review be and the same is hereby affirmed.1

. No error has been preserved as to whether or not the trial court should have awarded the appellant at least $50.00 and we do not address this issue.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Rollins, Inc. v. Heller, 454 So. 2d 580 (Fla. 3d DCA 1984)
    …ese types of contracts. Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, 427 So. 2d 332 (Fla. 3d DCA 1983); Continental Video Corp. v. Honeywell, Inc., 422 So. 2d 35 (Fla. 3d DCA 1982); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So. 2d 8 (Fla. 3d DCA 1982); L. Luria & Sons, Inc. v. Alarmtec International Corp., 384 So. 2d 947 (Fla. 4th DCA 1980). In Mankap, this court held that such provisions will not limit one’s liability for fraud, an intentional tort. 427 So. 2d at 333-34. The…
  • Mankap Enters., Inc. v. Wells Fargo Alarm Servs., 427 So. 2d 332 (Fla. 3d DCA 1983)
    …ion to the motion, was uncontro-verted. We affirm the summary judgment2 as to count two on authority of L. Luria & Sons, Inc. v. Alarmtec International Corp., 384 So. 2d 947 (Fla. 4th DCA 1980) and Ace Formal Wear, Inc. v. Baker Protective Service, 416 So. 2d 8 (Fla. 3d DCA 1982) which hold that although exculpatory contracts which relieve a party of liability for his own negligence are generally looked upon with disfavor, they will be upheld where the intention (of one who installs burglar alarm systems)…
  • Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436 (Fla. 5th DCA 1990)
    …aims for consequential losses based on breach of contract and gross negligence. Continental Video Corp. v. Honeywell, Inc., 422 So. 2d 35 (Fla. 3d DCA), rev. denied, 456 So. 2d 892 (Fla.1982); Ace Formal Wear, Inc. v. Baker Protective Service, Inc., 416 So. 2d 8 (Fla. 3d DCA 1982). The only other instance, so far, where public policy has voided an exculpatory clause is where a party sought to be exempted for his own intentional tort. Mankap. The mutual release was entered into by Hardage and Fidesys after…

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