Summary
holding indemnity provision on reverse side of ticket was conspicuous because provision was entitled in bold font, “Liability for Damage to Persons and Property,” and front of ticket contained statement in bold font, “I have read and agree to all of the terms and conditions on the front and reverse side of this contract.”
Summary of this case from Expro Amer. v. SanguineOpinion
No. 10-05-00372-CV
Opinion delivered and filed August 23, 2006.
Appeal fromthe 19th District Court, McLennan County, Texas, Trial Court No. 2004-2371-1.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Appellant, Daryl Tynes, brings this appeal contesting the trial court's summary judgment in favor of Appellees.
Background
Tynes rented a Ditch Witch from Appellee NationsRent. While loading the machine onto his trailer, the weight of it pushed down on the trailer and lifted the rear-end of his pickup truck off the ground. Tynes asked a NationsRent employee and Appellee Rick Newton if his vehicle could handle the Ditch Witch and if he needed to tie it down. Both men told Tynes that his truck could handle the equipment and he did not need to tie it down. Later, as Tynes drove up an elevated ramp, the Ditch Witch shifted backwards on the trailer. The trailer jack-knifed, hit the truck, and caused the truck to flip on its side.
Tynes suffered significant injuries and filed suit, claiming that NationsRent and Newton were negligent in failing to advise him on how to properly secure and transport the Ditch Witch. NationsRent and Newton moved for summary judgment on several grounds. The trial court granted their motion for summary judgment citing a release provision on the reverse of the rental agreement. Tynes appeals that judgment. The issue on appeal is whether this provision satisfies conspicuousness and express negligence requirements.
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Provident Life Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413.
Fair Notice Requirements
To be enforceable, a contractual provision must afford fair notice of its existence if the provision operates to exculpate a party from the consequences of its own negligence. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). The fair notice requirements include the express negligence doctrine and the conspicuousness requirement. Id.
The express negligence doctrine provides that "the intent of the parties must be specifically stated within the four corners of the contract." Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement mandates "that something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it." Dresser, 853 S.W.2d at 508 (citing Ling Co. v. Trinity Sav. Loan Ass'n, 482 S.W.2d 841, 843 (Tex. 1972)). The compliance of both fair notice requirements is a question of law for the court. Id. at 509-10.
Express Negligence
A release is a contractual arrangement whereby one party assumes the liability inherent in a situation, thereby relieving the other party of responsibility. Id. at 508. A release operates to extinguish a claim or cause of action and is an absolute bar to any right of action on a released matter. Id. An indemnity agreement is a collateral contract by which one person engages to secure another against an anticipated loss or to prevent him from being damnified by the legal consequences of an act or forbearance on the part of one of the parties or of some third person. Id. The express negligence doctrine does not require that a release or indemnity provision use the specific word "negligence." See Banzhaf v. ADT Sec. Systems Southwest, Inc., 28 S.W.3d 180, 189 (Tex.App.-Eastland 2000, pet. denied). Rather, the test is whether the parties made it clear that their intent is to exculpate a party for its own negligence. See Atlantic Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989).
The agreement signed by Tynes states:
Customer assumes the risk of any and all damages or injury to persons or property of any kind or nature . . . resulting from or in any way connected with the equipment during the rental. . . . Customer agrees to indemnify and hold Company, its officers and employees, harmless from and against any and all suits . . . of any nature or kind caused by, resulting from or in any way connected with the equipment . . . whether or not caused by the active or passive negligence or other fault of company. . . .
This provision contains an agreement to indemnify NationsRent and its employees. The agreement in favor of NationsRent satisfies the requirements of fair notice by reciting specifically that the customer assumes the risk for any and all damages and that NationsRent is indemnified from all suits arising from its own negligence. We find that the trial court did not err in finding that this agreement meets the express negligence requirements.
Arguably, it is also a release.
Conspicuousness
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. TEX. BUS. COM. CODE ANN. § 1.201(b)(10) (Vernon Supp. 2006). A printed heading in capitals or in contrasting type, font, or color to the surrounding text is conspicuous. Id. Language in a body of a form is conspicuous if it is in larger or other contrasting type, font, or color to the surrounding text of the same size. Id. Comment 10 to § 1.201(10) provides additional clarification of the definition: "Although [this section] indicates some of the methods for making a term attention-calling, the test is whether attention can reasonably be expected to be called to it." Id. at cmt. 10.
The indemnity provision in the NationsRent rental agreement is on the back side of the document and in the seventh paragraph of thirty-one numbered paragraphs. As Tynes complains, the paragraph is in small print. However, the heading is in initial capital/lower-case form ( i.e. Liability for Damage to Persons and Property) and the provision itself is in bold, capital letters. Tynes argues that this does not make the provision conspicuous because the capital letters are the same size as all other capital letters on the page. It is not required that the letters be larger in order to be conspicuous. Id. It is sufficient if they are in "contrasting type, font, or color to the surrounding text of the same size." Id. Further, Tynes argues that "there is no express reference to a release of negligence on the front page." However, above the signature line on the front of the agreement, NationsRent did provide the following statement: "I have read and agree to all of the terms and conditions on the front and reverse side of this contract." We find that the provision in question satisfies the conspicuousness requirement. The trial court did not err in granting summary judgment.
Conclusion
Having overruled Appellant's sole issue, we affirm the judgment.