Richardson v. Union Carbide Indus. Gases, Inc.

Facts

We had to put the entire contract terms. Rage proposal number 3313 for a transporter system for iron powder and a transfer system for steel powder was submitted to Pirkey, senior project engineer for Hoeganaes. Hoeganaes issued purchase order No. 21584 to Rage for that equipment. The system was installed on furnace 2S. Rage then submitted two more proposals to Hoeganaes. Number 3353 was for target boxes and Number 3375 was for control logic panels. Hoeganaes issued purchase order Number 23952 in response to these two proposals. The proposals issued by Rage were typed in a letter format addressing the items desired by Hoeganaes. At the base of each page of each proposal, the following language in capital letters was typed: 'ANY PURCHASE ORDER ISSUED AS A RESULT OF THIS QUOTE IS MADE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS ATTACHED HERETO IN LIEU OF ANY CONFLICTING TERMS PROPOSED BY PURCHASER.' There were Rages' standard terms that were sent with every proposal and appeared in standard boilerplate format. The terms and conditions were not discussed during Rage's meetings with Hoeganaes. There was a Limitation of Acceptance which stated: LIMITATION OF ACCEPTANCE. This sale (including all services) is limited to and expressly made conditional on Purchaser's assent to these Terms and Conditions as well as all other provisions contained in any other document to which these Terms and Conditions are attached. Purchaser agrees: (a) These Terms and Conditions . . . shall be deemed to supersede and take precedence over all prior writings, representations or agreements regarding this sale; (b) These Terms and Conditions . . . shall represent our complete agreement; (c) Any inconsistent, conflicting or additional terms or conditions proposed by Purchaser in any order, acceptance or other document or form shall be void and without effect unless Seller shall specifically and expressly accept same in writing; (d) No modification of these Terms and Conditions . . . will be affected by Seller's shipment of goods/equipment or the provision of services following receipt of Purchaser's order, acceptance or other document or form containing terms which are inconsistent, conflicting or in addition to these Terms and Conditions . . .; and (e) Any acceptance of goods/equipment or services, or payment constitutes an acceptance by Purchaser of these Terms and Conditions . . . Rage terms and conditions also had an indemnity clause, which stated: INDEMNITY. Purchaser shall indemnify and hold Seller harmless against and in respect of any loss, claim or damage (including costs of suit and attorneys' fees) or other expense incident to or in connection with: the goods/equipment; the furnishing of design, installation (including site preparation) or other services; processing or use by any person of any goods/equipment or system (including personal injury to the employees of Seller and Purchaser); or Purchaser's violation of any provision of these Terms and Conditions or the provisions of any document to which these Terms and Conditions are attached unless such loss, claim or damage is due solely and directly to the negligence or willful misconduct of Seller. At the bottom of the purchase orders issued by Hoeganaes, the following language in boldface type appeared: 'THIS ORDER IS ALSO SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THIS PAGE.' The reverse side of the purchase orders included the following section at the top of the boilerplate terms and conditions section: 1. Compliance with Terms and Conditions of Order The terms and conditions set forth below, along with the provisions set forth on the front page hereof, constitute the entire contract of purchase and sale between Buyer and Seller. Any provisions in the Seller's acceptance, acknowledgment or other response to this Order which are different from or in addition to any of the terms and conditions and other provisions of this Order are hereby objected to by Buyer and such different or additional provisions shall not become a part of Buyer's contract of purchase and sale. The reverse side also contained: 14. Indemnification Seller agrees to indemnify and hold harmless and protect Buyer, its affiliated and subsidiary companies, successors, assigns, customers and users of its products from and against all losses, damages, liabilities, claims, demands (including attorneys fees'), and suits at law or equity that arise out of, or are alleged to have arisen out of, directly or indirectly, any act of omission or commission, negligent or otherwise, of Seller, its subcontractors, their employees, workmen, servants or agents, or otherwise out of the performance or attempted performance by Seller of this purchase order.... 16. This purchase order contains the entire agreement between the parties and the provisions hereof or rights hereunder may be modified or waived only in writing by Buyer's authorized officials. All matters in connection herewith shall be determined under the laws of New Jersey. Neither side objected to the language in the documents and the contract was performed. P, an employee of Hoeganaes, when he was injured by the explosion of the furnace. P sued numerous Ds including Hoeganaes and Rage. Rage cross-claimed against Hoeganaes seeking contractual indemnification. Hoeganaes, in its answer to the cross-claim, denied any right to indemnification arising out of the contract. Rage filed a motion for summary judgment seeking contractual indemnification from Hoeganaes. Hoeganaes cross-moved for summary judgment seeking dismissal of Rage's crossclaim for contractual indemnity. Rage's claim for indemnification was dismissed. Rage appealed.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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