Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of St. Charles County. Hon. Daniel G. Pelikan.
FOR APPELLANT: Paul P. Hasty, Jr., Overland Park, KS.
FOR RESPONDENT: Erik O. Solverud, Clayton, MO.
Kurt S. Odenwald, P. J. and Gary M. Gaertner, Jr., J., concur.
ROBERT G. DOWD, JR.,
National Information Solutions, Inc. (" NISC" ) appeals from the judgment granting Cord Moving & Storage Company's motion for summary judgment and denying NISC's motion for partial summary judgment on the same issue. We affirm.
NISC entered an Office Relocation Agreement with Cord in which Cord agreed to move the contents of NISC's warehouse to a new location. The one-page Agreement contained the following provision in the middle of the page in a bold typeface larger than the rest of the contract:
Cord's liability is $.30 cents per pound, per article. If you require additional insurance, you can explore options with your present insurance carrier, or call an independent cargo insurance provider.
After a copier was damaged during the move, NISC " short-paid" Cord $450, which represented $.30 per pound for the damaged copier.
Thereafter, NISC filed a one-count petition alleging that Cord was negligent in failing to properly secure the copier during the move. Cord asserted as an affirmative
defense that the Agreement limited Cord's liability for its own negligence to the $.30 per pound NISC had already recovered. Cord then moved for summary judgment on that basis. In response to Cord's motion, NISC argued that the limitation on liability was not valid with respect to claims of negligence because the Agreement did not explicitly refer to " negligence" or use similar language. Cord replied that the Agreement was between " sophisticated commercial entities" and, therefore, less precise language was acceptable to limit liability even for one's own negligence. NISC moved for partial summary judgment on the same issue, seeking a judgment that as a matter of law Cord could not succeed on its affirmative defense. The trial court granted Cord's motion, denied NISC's motion and entered judgment in Cord's favor. This appeal follows.
Summary judgment is proper when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Rule 74.04. In this case, Cord may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of the facts required to support its affirmative defense. See ITT Commercial ...