MANKAP ENTERPRISES, INC., APPELLANT,
v.
WELLS FARGO ALARM SERVICES, A DIVISION OF BAKER PROTECTIVE SERVICES, INC., A FOREIGN CORPORATION, APPELLEE
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Mankap Enterprises sued Wells Fargo Alarm Services for damages resulting from a failed burglar alarm system, alleging intentional misrepresentation, negligence, and unconscionable exculpatory clauses. The appellate court affirmed summary judgment on the negligence and unconscionability counts but reversed on the intentional misrepresentation count, holding that parties cannot contract away liability for fraud.
The court affirmed summary judgment on the negligence and unconscionability counts because exculpatory clauses in burglar alarm contracts are enforceable where the intention to exempt liability is clear and unequivocal, and such clauses do not fail on grounds of unconscionability based on unequal bargaining positions. However, the court reversed summary judgment on the intentional misrepresentation count because parties cannot contract away liability for fraud, and material issues of fact existed regarding whether Wells Fargo made fraudulent misrepresentations.
[1] Exculpatory clauses in burglar alarm contracts will be upheld if the intention to relieve a party of liability for negligence is clear and unequivocal.
[2] An exculpatory clause in a burglar alarm contract is not invalid due to inequity in bargaining positions if it provides that the installer is held harmless for losses cau…
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Join FLexlaw to unlock all legal intelligence“the law [is] settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory clauses are void as against public policy”
Establishes that exculpatory clauses cannot shield parties from fraud liability regardless of contract language
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Join FLexlaw to unlock all legal intelligenceMankap Enterprises installed a burglar alarm system from Wells Fargo that allegedly failed to meet Underwriter's Laboratory AA requirements and standa…
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FERGUSON, Judge.
Appellant filed a three-count complaint seeking to recover damages for loss resulting from failure of a burglar alarm system. The first count was based on intentional misrepresentation as to a particular feature or capability of the system; count two was based on negligence; the third count alleged unconscionability of an exculpatory clause in the contract. After filing an answer generally denying the complaint, appellee, relying on a line of recently decided cases, moved for and was granted a summary judgment. Appellant’s affidavit,1 filed in opposition 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) is clear and unequivocal.3
We also affirm the summary judgment as to count three on authority of Continental Video Corp. v. Honeywell, Inc., 422 So. 2d 35 (Fla. 3d DCA 1982),4 which holds that an exculpatory clause of a contract for installation of burglar alarms which provides that installer would be held harmless for losses caused by improper operation of the system was not invalid and unenforceable on grounds of inequity in bargaining positions between the parties.
As to count one, we reverse. The authorities cited in appellee’s brief, and apparently relied upon by the trial court, are not controlling. None of the cited burglar alarm cases dealt with intentional misrepresentation on the part of the seller. The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional tort, and any such exculpatory clauses are void as against public policy. Oceanic Villas v. Godson, 148 Fla. 454, 4 So. 2d 689 (1941); Zuckerman-Vernon Corp. v. Rosen, 361 So. 2d 804 (Fla. 4th DCA 1978); Fuentes v. Owen, 310 So. 2d 458 (Fla. 3d DCA 1975).
Because there are material issues of fact on the issue of misrepresentation, summary judgment was inappropriate.
Affirmed in part, reversed in part, and remanded for further proceedings.
. The affidavit, containing declarations of appellant’s president, stated that appellant was assured by Wells Fargo that the installed security system would meet the Underwriter’s Laboratory AA requirements and standards, a grade designed specifically for premises which require a higher degree of security (banks, jewelry stores). Attached thereto was a copy of two Underwriter’s Laboratory Certificates issued to appellant by Wells Fargo.
. The order appealed from merely states that appellee’s motion for summary judgment is granted.
. The clause provided in pertinent part:
It is understood that Wells Fargo is not an insurer.... Wells Fargo makes no warranty, expressed or implied, that the systems it installs or the services it furnishes will avert or prevent occurrences therefrom, which the systems and services are designed to detect .... 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 liable for any losses or damages ... its liability shall be limited to a sum equal to ten percent of the annual charge hereunder, or $250.00, whichever is greater. .Continental Video Corp. v. Honeywell, Inc., supra, as noted by Judge Schwartz in an unenthusiastic concurring opinion, is in direct conflict with two Fourth District cases — Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So. 2d 731 (Fla.1974), and Sniffen v. Century National Bank of Broward, 375 So. 2d 892 (Fla. 4th DCA 1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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Mazzoni Farms, Inc. v. E.I. DuPONT DE Nemours & Co., 761 So. 2d 306 (Fla. 2000)…disallows the enforcement of contracts where parties have contracted against liability for their own fraud or other intentional torts. See Oceanic Villas v. Godson, 148 Fla. 454, 4 So. 2d 689 (1941); Mankap Enter., Inc. v. Wells Fargo Alarm Servs., 427 So. 2d 332, 333-34 (Fla. 3d DCA 1983) (“The law is settled that a party cannot contract against liability for his own fraud in order to exempt him from liability for an intentional toi’t, and any such exculpatory clauses are void as against public policy.”); G…
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Rollins, Inc. v. Heller, 454 So. 2d 580 (Fla. 3d DCA 1984)…gence, active or otherwise, of Rollins, its agents or employees. It is well settled that exculpatory and limitation of damages provisions are valid and enforceable in these 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…
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Hardage Enters., Inc. v. Fidesys Corp., N.V., 570 So. 2d 436 (Fla. 5th DCA 1990)…gh not favored in the law, have been upheld as not violative of public policy where the contract is between persons of equal bargaining power and the provisions are clear and unambiguous. Mankap Enterprises, Inc. v. Wells Fargo Alarm Services, Inc., 427 So. 2d 332 (Fla. 3d DCA 1983); Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So. 2d 731 (Fla.1974). Similarly, we have, in a line of burglar alarm cases, upheld exculpatory clauses against claims for consequential losses…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973)
- L. Luria & SON, Inc. v. Alarmtec Int'l Corp., 384 So. 2d 947 (Fla. 4th DCA 1980)
- Oceanic Villas, Inc. v. Godson, 148 Fla. 454 (Fla. 1941)
- ACE Formal Wear, Inc. v. Baker Protective Serv., Inc., 416 So. 2d 8 (Fla. 3d DCA 1982)
- Mantilla v. Fabian, 284 So. 3d 575 (Fla. 4th DCA 2019)
- Simonet v. Simonet, 289 So. 2d 731 (Fla. 1974)
- Stella v. Craine, 289 So. 2d 731 (Fla. 1974)
- Sniffen v. Century Nat'l Bank OF Broward, 375 So. 2d 892 (Fla. 4th DCA 1979)
- Fuentes v. Owen, 310 So. 2d 458 (Fla. 3d DCA 1975)
- Zuckerman-Vernon Corp. v. Rosen, 361 So. 2d 804 (Fla. 4th DCA 1978)