Opinion
Civil Action File No. 1:03-CV-2776-CC.
March 14, 2005
ORDER
This action is before the Court on Defendants L.M. Berry Company and BellSouth Advertising Publishing Corporation's Motion for Summary Judgment. After due consideration of Defendants' motion and brief and Plaintiff's response thereto, as well as the arguments presented by counsel on March 7, 2005, all other matters of record, and the applicable and controlling law, Court hereby GRANTS Defendants' Motion for Summary Judgment, for the reasons explained below.
I. BACKGROUND
The undisputed material facts in this case are as follows:
In May 2002, Plaintiff entered into a Directory Advertising Order with Defendants for the placement of advertisements in various sections of the 2002-2003 Yellow Pages directory in Birmingham, Alabama. The Directory Advertising Order contains terms and conditions, including a limitation of liability provision that states as follows:
Limitation of Liability. You acknowledge that: (1) this a commercial business transaction; (2) alternative and compelling advertising media are available to you; (3) any errors, omissions or misplacements in Advertising cannot be corrected until the Advertising can be placed (for print Directories, when the next issue is published); (4) any potential harm from an error, omission or misplacement is speculative in nature; (5) we do not warrant that your Advertising will result in any revenue or profit, even if Advertising rates are based upon revenue or profit; and (6) we assume no responsibility other than as contained in these General Terms and Conditions. UNLESS OTHERWISE AGREED IN WRITING, FOR MUTUAL CONSIDERATION YOU AGREE THAT ANY LIABILITY WHICH WE MAY HAVE DUE TO ERRORS, OMISSIONS OR MISPLACEMENTS IN YOUR ADVERTISING SHALL NOT EXCEED THE AMOUNT OF CHARGES FOR THE AFFECTED ADVERTISING FROM THE TIME WE ARE NOTIFIED OF THE ERROR, OMISSION OR MISPLACEMENT UNTIL ITS CORRECTION. ANY SUCH LIABILITY SHALL BE DISCHARGED BY ABATEMENT OF ALL ADVERTISING CHARGES FOR ANY COMPLETE OMISSION, OR BY REDUCTION OF THE APPLICABLE CHARGES IN PROPORTION TO ANY REDUCTION OF THE VALUE OF THE ADVERTISING DUE TO ERROR, OMISSION OR MISPLACEMENT.
This limitation of liability clause appears on the reverse side of the Directory Advertising Order. On the front of the Directory Advertising Order, there is a signature block, and Plaintiff's representative, Dwight Elliott, signed the Directory Advertising Order on the signature block. Directly above Mr. Elliott's signature, there is language stating that Plaintiff, by signing the Directory Advertising Order, "acknowledges having read, understood and agreed to the Terms Conditions on the reverse," and that "[l]iability for errors and/or omissions is limited" by the limitation of liability provision on the reverse side.
After the 2002-2003 Birmingham directory was published, Plaintiff asserted that (1) some of its advertisements had been omitted, (2) of the advertisements that did print, some appeared in the wrong sections of the Yellow Pages, and (3) one advertisement contained an old telephone number for Plaintiff. The total cost of the advertising at issue was $7,668.00. Plaintiff did not pay for the affected advertising.
In June 2003, Plaintiff filed the instant action seeking the recovery of lost profits, punitive damages, and attorneys' fees on claims of (1) breach of contract, (2) negligence, and (3) "wantonness." Following discovery, Defendants moved for summary judgment, asserting, among other things, that Plaintiff's claims fail under the limitation of liability provision in the Directory Advertising Order. In response, Plaintiff argues that (1) Mr. Elliott was not made aware of the terms and conditions on the reverse side of the contract when he signed it; (2) the language of the limitation of liability provision was not "conspicuous" enough; and (3) the limitation of liability provision constitutes an unenforceable liquidated damages clause.
Plaintiff's Complaint also asserted a fraud claim, but Plaintiff abandoned that claim in its brief in opposition to Defendants' summary judgment motion.
II. DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A dispute of fact is "genuine" if the evidence is such that a rational or reasonable trier of fact could find for the nonmoving party at trial.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). Furthermore, the Court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Defendants' liability as to errors and omissions in the Yellow Pages is, as per the limitation of liability provision, limited to the cost of the affected advertising. Such provisions are valid and enforceable under Georgia law.See, e.g., Phelps v. BellSouth Advertising Pub. Corp., 235 Ga.App. 147, 149, 508 S.E.2d 779, 781 (1998); Southern Bell Tel. Tel. Co. v. C S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977), overruled on other grounds sub nom. Georgia-Carolina Brick Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (1980). As Plaintiff did not pay for the advertising at issue, Defendants' liability is discharged, pursuant to the unambiguous terms of the Directory Advertising Order.
Plaintiff's argument that it was not made aware of the limitation of liability provision is contradicted by the language appearing directly above Mr. Elliott's signature on the Directory Advertising Order. Further, a party that signs a contract without reading it, when it had the opportunity and capability to do so, is bound by the contract's terms, absent emergency, fraud, or reliance on a fiduciary relationship between the parties.Carswell v. Middle Georgia Pools Leisure World, Inc., 215 Ga.App. 88, 89, 449 S.E.2d 628, 629 (1994). There is no evidence in this case of emergency, fraud, or reliance on a fiduciary relationship.
Plaintiff's argument that the language of the limitation of liability provision is not conspicuous is also without merit. O.C.G.A. § 11-1-201(10) provides that "[a] term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. . . . Language in the body of a form is `conspicuous' if it is in larger or other contrasting type or color." The limitation of liability language in the Directory Advertising Order appears in all capital letters, and therefore satisfies the requirement of O.C.G.A. § 11-1-201(10).
Finally, Plaintiff's argument that the limitation of liability provision constitutes an unenforceable liquidated damages clause fails. The provision is a limitation of liability clause of the type routinely enforced under Georgia law, and Plaintiff has identified no legal authority in which such a standard contractual provision is deemed to constitute a liquidated damages provision.
III. CONCLUSION
Defendants' Motion for Summary Judgment [35-1] is GRANTED, and Plaintiff's claims against Defendants are hereby DISMISSED WITH PREJUDICE.
SO ORDERED.