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RONEKER v. KENWORTH TRUCK CO.

August 19, 1997

EARL RONEKER, Plaintiff,
v.
KENWORTH TRUCK COMPANY and DETROIT DIESEL CORP., Defendants.



The opinion of the court was delivered by: HECKMAN

DECISION AND ORDER

 The parties have consented to have the undersigned conduct all further proceedings in this matter, including entry of judgment, in accordance with 28 U.S.C. ยง 636(c). Defendants Kenworth Truck Company ("Kenworth") and Detroit Diesel Corp. ("DDC") have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendants' motions are granted.

 BACKGROUND

 The factual and procedural background of this action has been set forth at length in this court's decision and order in which it ruled on defendants' prior summary judgment motions, see Roneker v. Kenworth Truck Co., 944 F. Supp. 179 (W.D.N.Y. September 18, 1996), and will be repeated here only as necessary to a determination of the issues presented by the motions now pending. On February 21, 1995, plaintiff filed his complaint in this action. He alleged that the 1993 Kenworth T600B truck he purchased in December of 1992 developed numerous mechanical problems, and that both Kenworth and DDC breached their respective warranties by failing to remedy the problems. Plaintiff alleged that he suffered "actual, consequential and replacement damages" as a result of the breaches, in the amount of $ 650,000.00 (Item 1, P 15).

 On June 7, 1996, defendants moved for summary judgment on the grounds that the Kenworth warranty agreement covering the sale of the truck and the DDC warranty covering the engine each contained language limiting plaintiff's remedy to repair and replacement of defective parts, and excluding consequential damages. In its September 18, 1996 ruling, this court found that material factual issues existed precluding summary judgment as to whether the warranties limited plaintiff's remedy to repair or replacement. However, the court granted defendants' motions to the extent they sought a ruling on the validity of the exclusionary clauses in the warranties. The Kenworth warranty provided:

 
IT IS AGREED THAT KENWORTH . . . SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES including, but not limited to: loss of income; damage to vehicle, attachments, trailers and cargo; towing expenses, attorney's fees and the liability you may have in respect to any other person.

 (Item 24, Ex. F(B)). The DDC warranty provided:

 
DDC is not responsible for incidental or consequential costs or expenses which the owner may incur as a result of a malfunction or failure covered by this warranty, such as communication expenses, meals, lodging, overtime, towing, loss of use of the Engine or vehicle ("downtime"), loss of time, inconvenience, cargo loss or damage, and other similar costs and expenses.

 (Item 21, Ex. A).

 The court determined that these express limitations of consequential damages were not unconscionable, and should therefore be given effect to bar plaintiff's claims for consequential damages in this case. However, because the information in the record on the prior summary judgment motions did not support a "precise demarcation between direct and consequential damages," the court left this question for the jury. Roneker v. Kenworth, supra, 944 F. Supp. 179 at 186. Defendants now move for summary judgment seeking a ruling that all of the damages sought by plaintiff in this case are consequential damages within the scope of the warranty exclusions, or are otherwise unrecoverable. For the following reasons, defendants' motions are granted.

 DISCUSSION

 "Consequential damages" are defined in the Uniform Commercial Code as follows:

 
Consequential damages resulting from the seller's breach include
 
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not ...

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