Egan Machinery Co. v. Mobil Chemical Company

660 F. Supp. 35 (D. Conn. 1986)

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Nature of the Case

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Facts

In response to D's Request for Bid, P submitted two Quotations, one on April 5, 1973, and one on April 27, 1973. Aside from price, conditions of sale were not included in the Quotations. On May 2, 1973, D submitted a Requisition/Purchase order for the unit described in P's quotations. The Requisition/Purchase Order contained the following language: Important - this order expressly limits acceptance to terms stated herein, and any additional or different terms proposed by the seller are rejected unless expressly agreed to in writing. The conditions listed in the Order did not include an indemnification provision. P submitted an Order Acknowledgment on May 8, 1973. This Acknowledgment provided that: This order is accepted on the condition that our Standard Conditions of Sale, which are attached hereto and made a part hereof, are accepted by you, notwithstanding any modifying or additive conditions contained on your purchase order. Receipt of this acknowledgment by you without prompt written objection thereto shall constitute an acceptance of these terms and conditions. It also provides that: The purchaser shall use and shall require its employees to use all safety devices and guards and maintain the same in proper working order. Purchaser shall use and require its employees to use safe operating procedures in operating the equipment. If purchaser fails to observe the obligations contained in this paragraph, purchaser agrees to indemnify and save P harmless from any liability or obligation incurred by P to persons injured directly or indirectly in connection with the operation of the equipment. One of D's employees was injure, and the employee filed suit against P. P's insurer, paid the employee $75,000. P sued D for indemnification. D motioned for summary judgment. P argues that no contract was formed by the exchange of documents because its conditional acceptance clause meets the specificity requirement of § 2-207(1)'s exception provision. P argues that a contract was formed instead by the conduct of the parties and that according to the UCC's gap fillers of custom and usage it became a genuine issue of material fact as to whether the indemnity provision became a term of the contract, thus making summary judgment inappropriate. D argues that a contract was formed by the exchange of documents and because P failed to explicitly declare its unwillingness to proceed with the contract unless its conditions, including the indemnity provision, were accepted D contends the indemnity provision did not become part of the contract because it was an additional term that D rejected by not expressly assenting to it.