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P alleges that it entered into a contract with D whereby D would provide a variety of services for P, including billing and data processing. P claims that D breached that agreement by failing to properly code claims, to post payments, and to timely bill patients or payors. P claims that, because of those breaches, it has suffered damages in excess of $6 million, which it now seeks to collect. D has filed a motion for partial dismissal, arguing that P cannot state a claim for the amount of damages it alleges in its complaint in excess of the limitation clause contained in the contract. The contract contained a damage-limitation clause which states: 9. Limitation of Liability. In the event of any error or omission in the performance of services hereunder, Company [Defendant] may, at its election, reperform the work at no additional cost to Client [Surgical]. NOTWITHSTANDING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE COMPANY'S LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE TOTAL AMOUNT BILLED OR BILLABLE TO CLIENT FOR COMPANY'S SERVICES IN THE BILLING PERIOD IN WHICH THE SERVICES THAT GAVE RISE TO THE LOSS OR DAMAGE WERE PERFORMED. THE LIABILITY HEREUNDER IS ESTABLISHED AS LIQUIDATED DAMAGES AND AS A LIMITATION OF LIABILITY AND NOT AS A PENALTY. . . . D contends that P's exclusive remedy is for the amount of money it paid for D's services during the months in question -- not the amount of money lost in P's receivables. P argues that this limitation clause is unconscionable and that enforcement of the clause violates D's implied covenant of good faith and fair dealing.

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