Johnson v. Vermeer

Johnson v. Vermeer

IN THE UTAH COURT OF APPEALS
 

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C.A. Johnson Trenching, L.C.,

Plaintiff and Appellant,

v.

Vermeer Manufacturing Co.,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030714-CA
 

F I L E D
(March 3, 2005)
  2005 UT App 94

 

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Fourth District, Provo Department

The Honorable Lynn W. Davis

Attorneys: Ryan T. Peel and Thomas W. Seiler, Provo, for Appellant

Todd M. Shaughnessy and Kamie F. Brown, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

BENCH, Associate Presiding Judge:

    C.A. Johnson Trenching, L.C. (Johnson) appeals the district court's order granting Vermeer Manufacturing Company's (Vermeer) motion for summary judgment.(1) "[I]n reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

    Johnson first contends that the district court improperly dismissed its strict liability claim against Vermeer. Johnson's complaint alleges that a trenching machine that Johnson purchased from Vermeer was defective, resulting in lost profits. However, the economic loss rule bars Johnson's strict liability claim. See American Towers Owners v. CCI Mech., 930 P.2d 1182, 1189 (Utah 1996). Utah courts adhere to the general rule that "economic damages are not recoverable in negligence absent physical property damage or bodily injury." Id. Mere damage to the product itself is insufficient to support a products liability claim. See id. Johnson's complaint does not aver that the trencher's alleged defects caused separate property damage or bodily injury. Thus, the district court did not err in dismissing Johnson's strict liability claim.

    Next, Johnson argues that the district court erred in dismissing its claim for breach of the implied warranties of merchantability and fitness for a particular purpose. Under Utah law, a merchant can disclaim the implied warranties, provided the disclaimers are "conspicuous." Utah Code Ann. § 70A-2-316(2) (2001). In addition, to disclaim the implied warranty of merchantability, the disclaimer must expressly "mention merchantability." Id.

    On the day that Johnson purchased the trencher, R. Aaron Johnson, acting as general manager of Johnson, signed a document entitled "Limited Warranty for Industrial Equipment" acknowledging that he was "familiar with [Vermeer's] Limited Warranty Statement." The Limited Warranty Statement expressly disclaimed the implied warranties of merchantability and fitness for a particular purpose. Johnson argues that although R. Aaron Johnson "may have acknowledged familiarity with the Limited Warranty Statement," there is nothing to indicate that R. Aaron Johnson "agreed to be bound by it." This argument fails. R. Aaron Johnson signed the acknowledgment at the time of purchase and thereby accepted the terms of the limited warranty, including the disclaimer of implied warranties. Thus, the district court properly dismissed Johnson's claim for breach of the implied warranties of merchantability and fitness for a particular purpose.

    Accordingly, the judgment of the district court is affirmed.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. Vermeer "initially characterized its motion as a motion to dismiss and not as a motion for summary judgment." Thayne v. Beneficial Utah, Inc., 874 P.2d 120, 124 (Utah 1994). However, because Vermeer "presented evidence outside the pleadings, which the district court did not exclude under rule 12(c) [of the Utah Rules of Civil Procedure], the motion is properly treated as a motion for summary judgment." Id.