JOHN and ELAINE ROSE and STATE FARM INSURANCE COMPANY as
subrogee of the ROSES, Appellants, v. ADT SECURITY SERVICES,
INC., Appellees.

CASE NO.: 1D06-3263

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

2008 Fla. App. LEXIS 13837; 33 Fla. L. Weekly D 2162


September 11, 2008, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication September 29, 2008.

PRIOR HISTORY:
An appeal from the Circuit Court for Leon County. Janet E. Ferris, Judge.


COUNSEL: Guy E. Burnette, Jr. and Jennifer L. Velazco, Tallahassee, for
Appellants.

Paul W. Rebein and Scott W. Anderson of Shook, Hardy & Bacon, LLP, Tampa,
for
Appellees.

JUDGES: VAN NORTWICK, LEWIS, AND ROBERTS, JJ., CONCUR.

OPINION

PER CURIAM.

John and Elaine Rose and State Farm Insurance Company appeal a final summary
judgment granted in favor of ADT Security Services (ADT), appellee, in their
action alleging multiple counts against ADT arising out of the fire loss of
the
Roses' home. We agree with the trial court that the express terms of the
agreement between the Roses and ADT preclude appellants' claims as a matter
of
law. Accordingly, we affirm the summary judgment in favor of ADT.

For the purposes of determining whether summary judgment was appropriate, the
trial court found that the following facts were undisputed. The Roses met
with a
representative of ADT in early April 2000. At that meeting, the ADT salesman
represented that the Roses would never lose their house to a fire and that
the
alarm and fire detection system would save the lives of the Roses' dogs and
family members in the event of a fire. On April 24, 2000, John Rose and ADT
entered into a two-page written service agreement in which ADT agreed to
install
an alarm system and provide security and fire detection services in return
for
the Roses' quarterly payment of $ 110.97. The agreement contained various
written representations and disclaimers of warranties and liability which
became
the focus of the case. The appellants do not contest these provisions in the
agreement.

On June 17, 2000, the Roses' house caught fire, presumably after being struck
by lightning. The ADT smoke alarms in the house failed to transmit a fire
alarm
signal and the house burned to the ground. State Farm Insurance Company
insured
the house and its contents. The Roses made claim with State Farm under the
insurance policy and State Farm covered the fire losses under the provisions
of
the policy. Pursuant to the subrogation clause in the policy, State Farm
brought
suit against ADT alleging claims for breach of express warranty, breach of
implied warranty of fitness, breach of implied warranty of merchantability,
fraud in the inducement and deceptive trade practices under section 501.211,
Florida Statutes. 1 ADT moved for summary judgment, arguing that the
appellants
could not state a cause of action for fraud in the inducement because the
written agreement between the Roses and ADT expressly contradicted and
disclaimed any representations made by the ADT salesperson and, thus, the
Roses
could not have justifiably relied on the representations. ADT further
asserted
that the negligence and breach of warranty claims were barred by the clear
and
unequivocal exculpatory and limitation of liability clauses in the agreement.
After a hearing, the trial court entered a lengthy and thoughtful opinion
analyzing the issues raised by the motion for summary judgment, ruling that,
as
a matter of law, the Roses could not state a cause of action against ADT
under
any theory asserted; and entering final summary judgment for ADT.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 While
appellants initially alleged a claim for deceptive trade practices under
section
501.211, Florida Statutes, appellants conceded that summary judgment was
proper
for this claim.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

"The party moving for summary judgment bears the heavy burden of proving a
negative - the nonexistence of a genuine issue of material fact." RNR Invs.
Ltd.
P'ship. v. Peoples First Cmty. Bank, 812 So. 2d 561, 564 (Fla. 1st DCA 2002).
"Where the moving party offers evidence to support its claim of the
nonexistence
of a genuine issue of material fact, the nonmoving party 'must demonstrate
the
existence of such an issue or issues either by countervailing facts or
justifiable inferences from the facts presented.'" Id. at 565 (quoting
Fleming
v. Peoples First Fin. Sav. & Loan Ass'n, 667 So. 2d 273, 274 (Fla. 1st DCA
1995)); see also Holl v. Talcott, 191 So. 2d 40, 43-4 (Fla. 1966). "The
standard
of review governing a trial court's ruling on a motion for summary judgment
posing a pure question of law is de novo." Major League Baseball v. Morsani,
790
So. 2d 1071, 1074 (Fla. 2001).

With respect to the claim alleging fraud in the inducement, we agree with
appellants that, as a general rule, summary judgment is not appropriate to
resolve a fraud claim under Florida law. "Nevertheless, there are
circumstances
which will permit summary judgment even where fraud is alleged." Peninsula
Yacht
Cay Dev. Inc. v. S. Floridabanc Sav. Ass'n, 552 So. 2d 1139, 1140 (Fla. 3d
DCA
1989).

The essential elements to establish a claim for fraudulent inducement are:
(1) a false statement of material fact; (2) the maker of the false statement
knew or should have known of the falsity of the statement; (3) the maker
intended that the false statement induce another's reliance; and (4) the
other
party justifiably relied on the false statement to its detriment. Simon v.
Celebration Co., 883 So. 2d 826, 832 (Fla. 5th DCA 2004). For the purpose of
considering summary judgment, the trial court accepted appellants' assertion
below that the statements were made by ADT's representative and that those
statements were relied upon in entering into the agreement. The central issue
here is whether, given the provisions in the agreement, the Roses could have
justifiably relied on the statements of ADT's representative.

In examining the concept of justifiable reliance, the Florida Supreme Court
has explained:


The question . . . is whether the recipient of the
misrepresentation is "justified in relying upon its truth." For if the
recipient "knows that it [the statement] is false or its falsity is
obvious to him," his reliance is improper, and there can be no cause
of action for fraudulent misrepresentation.


M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91, 94-95 (Fla. 2002)
(quoting
Besett v. Basnett, 389 So. 2d 995, 997 (Fla. 19980)) (citations omitted).
Notwithstanding oral misrepresentations prior to the making of a contract, a
party cannot establish justifiable reliance and "may not recover in fraud
for an
alleged false statement when proper disclosure of the truth is subsequently
revealed in a written agreement between the parties." Taylor Woodrow Homes
Fla.,
Inc. v. 4/46-A Corp., 850 So. 2d 536, 542-43 (Fla. 5th DCA 2003); see also
Aedes
Mosquito Control, Inc. v. Springer Equip., Inc., 959 So. 2d 1208, 1209 (Fla.
1st
DCA 2007)(citing with approval Giallo v. New Piper Aircraft, Inc., 855 So. 2d
1273, 1275 (Fla. 4th DCA 2003)(holding that a party could not recover from
aircraft dealer for allegedly fraudulent statements that the new avionics
system
would "enhance the safety of the aircraft" where the subsequent written
agreement disclaimed any oral representations or warranties as to the
dealer)).

Here, subsequent to the alleged misrepresentations by the ADT representative,
Mr. Rose and ADT entered into the subject agreement which contained the
following provision in bold-faced capitalized type immediately above Mr.
Rose's
signature:


CUSTOMER STATES THAT, BEFORE SIGNING THIS AGREEMENT, HE/SHE HAS
READ BOTH SIDES OF THIS AGREEMENT AND UNDERSTANDS ALL TERMS AND
CONDITIONS OF BOTH THIS AND THE REVERSE SIDE OF THIS AGREEMENT, IN
PARTICULAR, PARAGRAPH 1, LIMITED WARRANTY, AND PARAGRAPH 7, LIMIT OF
LIABILITY.



Directly above this paragraph, the agreement contained the following
provision in capitalized type:


CUSTOMER ACKNOWLEDGES THAT HE/SHE IS AWARE THAT NO ALARM SYSTEM CAN
GUARANTEE PREVENTION OF LOSS, THAT HUMAN ERROR ON THE PART OF ADT OR
THE MUNICIPAL AUTHORITIES IS ALWAYS POSSIBLE, AND THAT SIGNALS MAY NOT
BE RECEIVED IF THE TRANSMISSION MODE IS CUT, INTERFERED WITH, OR
OTHERWISE DAMAGED. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE CUSTOMER AND ADT. CUSTOMER AGREES THAT ANY REPRESENTATION,
PROMISE, CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR IMPLIED, NOT
INCLUDED IN WRITING IN THIS AGREEMENT SHALL NOT BE BINDING UPON ANY
PARTY, . . .


This provision expressly contradicts the oral representations allegedly made
by
ADT's salesperson. We agree with the trial court that the Roses cannot claim
that they justifiably relied on oral representations when the terms of the
subsequent written agreement expressly and conspicuously contradict the oral
statements. Therefore, the trial court did not err in entering summary
judgment
in favor of ADT on appellants' fraud in the inducement claim.

With regard to the breach of warranty claims, in Florida "there are two
parallel but independent bodies of products liability law. One, strict
liability, is an action in tort; the other, implied warranty, is an action in
contract." West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 88 (Fla.
1976).
This court recognized in Cunningham v. General Motors Corp., 561 So. 2d 656,
658-59 (Fla. 1st DCA 1990), that "[t]he doctrine of strict liability evolved
as
a vehicle for recovery for personal injury or property damage resulting from
use
of a product, when, due to lack of privity with the manufacturer, the injured
user has no recourse under traditional warranty theory grounded in contract."
However, "[i]f there is a contractual relationship with the manufacturer, the
vehicle of implied warranty remains." West, 336 So. 2d at 91.

In the case before us, there was a contractual relationship between the Roses
and ADT. Therefore, appellants' warranty claims sound in contract rather
than in
tort. Accordingly, we apply the Florida Uniform Commercial Code ("UCC"). It
is
clear under Florida law that "[t]he [UCC] contemplates that a seller may
disclaim warranties as long as the buyer reasonably understands this is being
done." Knipp v. Weinbaum, 351 So. 2d 1081, 1084-85 (Fla. 3d DCA 1977).
Section
672.316(2), Florida Statutes (1999), instructs that, "to exclude or modify
the
implied warranty of merchantability or any part of it, the language must
mention
merchantability and in case of a writing must be conspicuous; and to exclude
or
modify any implied warranty of fitness, the exclusion must be by a writing
and
conspicuous." The disclaimer in the agreement before us fully complies with
the
law governing warranty disclaimers. It specifically disclaims both the
"implied
warranties of merchantability and fitness" and is conspicuous, having been
printed in bold, capital letters in the section of the agreement entitled
"General Terms and Conditions." Thus, we agree with the trial court that, as
a
matter of law, ADT effectively disclaimed any and all warranties arising from
the contract.

As to the negligence claim, the agreement expressly provides in capitalized
type, "UNDER NO CIRCUMSTANCES, SHALL ADT BE LIABLE TO THE CUSTOMER [...] FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE [...] AND HOWEVER
OCCASIONED,
WHETHER ALLEGED AS RESULTING FROM BREACH OF WARRANTY BY ADT, THE NEGLIGENCE
OF
ADT, OR OTHERWISE." While exculpatory clauses that purport to release a party
from liability for its own negligence are disfavored, these clauses are
enforceable, as long as the language of such clauses is "so clear and
understandable that an ordinary and knowledgeable party will know what he is
contracting away." Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580
So.
2d 628, 634 (Fla. 1st DCA 1991). Florida courts also recognize, however,
that a
party "should not be permitted to exempt himself from responsibility to
[another
party] for damages resulting from [that party]'s negligence if such an
exemption
effectively immunizes the [party] from liability for breach of a positive
statutory duty to protect the well-being of the [other party]." John's Pass
Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fla. 2d DCA 1979).

Appellants argue that ADT's actions violated numerous statutes and
administrative rules. As a result, appellants assert that this case fits
within
the exception created in John's Pass and that, therefore, ADT's exculpatory
clause was unenforceable. In support of its motion for summary judgment, ADT
came forward with evidence that demonstrated that it did not violate any
statutes that created a positive duty to protect the well-being of the
homeowner. Upon this showing by ADT, the burden then shifted to the
appellants,
who failed to produce competent evidence to fit this case within the John's
Pass
exception. See RNR Invs. Ltd. P'ship, 812 So. 2d at 565. Appellants rely on
the
deposition and report of their expert, Jeffrey Zwirn, to support the
contention
that the facts here establish that the John's Pass exception applies. Neither
document constitutes admissible evidence, however. First, the record reflects
that the parties jointly stipulated to exclude Zwirn's deposition. Second,
the
report is a letter written from Zwirn to appellants' counsel, which, as the
trial court correctly determined, constitutes inadmissible hearsay. See §
90.802, Fla. Stat. (2005). A trial court cannot consider inadmissible
evidence
in determining the disposition of a motion for summary judgment. Dykes v.
Quincy
Telephone Co., 539 So. 2d 503, 504 (Fla. 1st DCA 1989). Accordingly, the
exculpatory clauses here which limit ADT's liability for negligent acts will
be
upheld if the terms of such clauses are clear and unequivocal. We agree with
the
trial court that the terms contained in the parties' agreement are clear and
unequivocal. From the above exculpatory language, "an ordinary and
knowledgeable
person" would understand this provision to mean that appellee was limiting
its
liability for any negligent acts. Southworth & McGill, P.A., 580 So. 2d at
634.
Accordingly, the trial court did not err in granting summary judgment on
appellants' negligence claim. 2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2
Because
of our holdings on the other issues on appeal, it is unnecessary to address
the
issue relating to the subrogation waiver.
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We affirm the final summary judgment.

VAN NORTWICK, LEWIS, AND ROBERTS, JJ., CONCUR.