American Eagle Ins v. United Tech Corp

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1841

AMERICAN EAGLE INSURANCE COMPANY
AND MARTINAIRE, INC.,
Plaintiffs-Appellants,

versus

UNITED TECHNOLOGIES CORPORATION
AND PRATT & WHITNEY-CANADA, LTD., ETC.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Texas

ON PETITIONS FOR REHEARING

(April 19, 1995)

BEFORE WIENER, EMILIO M. GARZA and BENAVIDES, CIRCUIT JUDGES.

BENAVIDES, CIRCUIT JUDGE:

It is ordered that the petition of appellants for rehearing

filed in the above case is denied. However, finding merit in the

petition for rehearing filed by appellee Pratt & Whitney-Canada,

Ltd. ("Pratt & Whitney"), said appellee's petition for rehearing is

granted to the extent and for the reasons set forth herein.

Otherwise, our original panel decision and the language contained

therein is left undisturbed.

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 In our original panel opinion we affirmed a summary judgment

granted by the district court in favor of the defendants/appellees,

United Technologies and Pratt & Whitney, except as to

appellants/plaintiffs' alleged cause of action against Pratt &

Whitney for a breach of implied warranty brought under the Texas

Deceptive Trade Practices Act. As to such claim, we determined

that we could not gauge the effectiveness of appellees' written

disclaimer because the summary judgment evidence was not developed

sufficiently to allow either this court or the district court to

make a decision on the merits of appellees' disclaimer contention.

Believing that the entire document containing the disclaimer was

not before us, we declared, "we are not in a position to evaluate

whether the disclaimer is conspicuous as a matter of law."

Pratt & Whitney's petition for rehearing specifically

points out that not only one entire document, but two entire

documents were properly before the district court as summary

judgment proof, each of which contained disclaimers of implied

warranties made by Pratt & Whitney upon the initial sale and upon

the delivery of the airplane engine to the first purchaser, Cessna

Aircraft Company. Convinced that the record is in fact

sufficiently developed for this court to make a decision on the

merits of Pratt & Whitney's disclaimer defense, we withdraw that

part of our original opinion that declared the record insufficient

for our determination of the issue.

Indeed, the summary judgment evidence before the district

court and in the record on appeal, does contain an original three-

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page Sales Contract between Pratt & Whitney and Cessna Aircraft

Company. Additionally, the record contains an Engine and Parts

Service Policy that was delivered upon the sale of the engine

relating to allowances for an adjustment for engine parts which

might suffer failure in service. Each of the two documents

contains in bold print the following provision:

d) Exclusive Warranties and Remedies

The foregoing warranties are exclusive and are
given and accepted in lieu of (i) any and all
other warranties, express or implied,
including without limitation the implied
warranties of merchantability and fitness for
a particular purpose: and (ii) any obligation,
liability, right, claim or remedy in contract
or tort, whether or not arising from Seller's
negligence, actual or imputed. The remedies
of the Buyer shall be limited to those
provided herein to the exclusion of any and
all other remedies including, without
limitation, incidental or consequential
damages. No agreement varying or extending
the foregoing warranties, remedies or this
limitation will be binding upon the Seller
unless in writing, signed by a duly authorized
officer of Seller.

We have reviewed in their entirety both the Sales Contract and the

Engine and Parts Service Policy and agree with Pratt & Whitney's

contention that the bold faced disclaimer of warranty under the

bold faced capitalized "EXCLUSIVE WARRANTIES AND REMEDIES" is

"attention-calling" and in no way "semi-concealed or obscured". We

conclude that each disclaimer as set forth in bold print in the two

documents is such that attention can reasonably be expected to be

called to the disclaimers contained therein, and that they are

conspicuous under Texas law. See Cate v. Dover Corp., 790 SW2d

559, 560 (Tx. 1990); Texas Business & Commerce Code, § 1.201.

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 Because the disclaimers are conspicuous, they are sufficient

to disclaim any implied warranty under the DTPA. We find that the

trial court did not err in dismissing the appellants' claim

pursuant to Pratt & Whitney's motion for summary judgment.

Accordingly, Pratt & Whitney's motion for rehearing is GRANTED and

the summary judgment granted by the district court is in all

respects AFFIRMED.

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