Certain Underwriters v. TNA NA Manufacturing, Inc.

“When a contracting party seeks to immunize itself from liability for its own negligence, its intention to do so must be clearly and unequivocally expressed.” American Wholesale Products v. Allstate Ins. Co., 288 Or App 418, 423, 406 (2017). A contract that contains a “broad reference to ‘any liability’ suggests that the parties intended for the provision to limit ‘any liability’ regardless of whether that liability arose in tort or in contract.” Kaste v. Land O’Lakes Purina Feed, LLC, 284 Or App 233, 246 (2017) (quoting Northwest Pine Products v. Cummins Northwest, Inc., 126 Or App 219, 221 (1994)). Additionally, the “separation of the limitations-of-liability section from the warranty section suggests that the parties intended for the limitations to apply to claims beyond warranty claims.” Kaste, 284 Or App 246 (citing Northwest Pine Products, 126 Or App 221).

Plaintiff appealed the trial court's grant of summary judgment in favor of defendant Food Design, Inc. (FDI). Plaintiff assigned error to the trial court's grant of summary judgment because the sales contract did not clearly express an intent to shield FDI from tort liability. "When a contracting party seeks to immunize itself from liability for its own neg­ligence, its intention to do so must be clearly and unequivo­cally expressed." American Wholesale Products v. Allstate Ins. Co., 288 Or App 418, 423, 406 P3d 163 (2017). A contract that contains a "broad reference to 'any liability' suggests that the parties intended for the provision to limit 'any liability' regardless of whether that liability arose in tort or in contract." Kaste v. Land O'Lakes Purina Feed, LLC, 284 Or App 233, 246 (2017) (quoting Northwest Pine Products v. Cummins Northwest, Inc., 126 Or App 219, 221 (1994)). Additionally, the "separation of the limitations-of-liability section from the warranty section suggests that the parties intended for the limitations to apply to claims beyond warranty claims." Kaste, 284 Or App at 246 (citing Northwest Pine Products, 126 Or App at 221). The Court found that Section 11 of the parties' contract provided that FDI "shall not be liable, in any event," is similar to a contract containing a provision to limit "any liability." See Northwest Pine Products, 126 Or App at 221, 223. Moreover, the fact that the terms at issue were not included in the "Warranties" section but rather in the "Disclaimers" section indicated an intention to extend such disclaimers beyond contract liability. Finally, the language of the disclaimer implied liability beyond issues arising under the contract. Thus, the Court held the parties' contract unambiguously limited FDI's tort liability. Affirmed.