Nature of the Case
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Facts
P entered into a commercial contract to purchase a Peterbilt truck for use in their freight hauling business. The truck was powered by a D diesel engine. Peterbilt installed the engine in the tractor. Accompanying the engine was D's Operation and Maintenance Manual which contained, inside its back cover, Caterpillar's warranty. This manual was placed inside the tractor's glove compartment and was located there when the tractor was purchased by P. On the inside of the back page of the booklet was a section titled, in large letters, 'Caterpillar Warranty' with a smaller subtitle, 'Engines Used To Power On-Highway Vehicles.' The warranty had four subsections headed by the following titles, in bold type: 'Warranty Period,' 'Caterpillar Responsibilities,' 'User Responsibilities,' and 'Limitations.' The warranty for the engine excluded liability for consequential damages. The engine and cooling system malfunctioned on several occasions. D' agent attempted repairs at no cost to Ps. The repeated downtime interfered with Ps' hauling schedule. They were ultimately forced to sell the tractor and attempted to recover incidental and consequential damages under an implied warranty theory. The trial court held that implied warranties had been properly disclaimed by the seller under 2-316(2). It also found that the seller had made an express warranty but that the contract provided that repair and replacement for breach of that warranty was the exclusive remedy. D moved for summary judgment and got it. P appealed.
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