Whitesell Corporation v. Whirlpool Corporation et al

Filing 661

MEMORANDUM OPINION and ORDER denying 650 Defendant Whirlpool Corporation's motion for reconsideration of the Court's opinion and order dated October 13, 2009, or, in the alternative, to amend the Court's order dated October 13, 2009, to permit an interlocutory appeal ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

W H I T E S E L L CORPORATION, P l a in tif f , C a se No. 1:05-CV-679 v. H O N . ROBERT HOLMES BELL W H I R L P O O L CORPORATION, W H IR L P O O L MEXICO S.A. de C.V., a n d JOSEPH SHARKEY, D e f e n d a n ts , and W H I R L P O O L CORPORATION, C o u n te r- P l a in tif f , v. W H I T E S E L L CORPORATION, C o u n ter -D e f e n d a n t. / M E M O R A N D U M OPINION AND ORDER T h is matter comes before the Court on Defendant Whirlpool Corporation's motion f o r reconsideration of the Court's opinion and order dated October 13, 2009, or, in the altern ativ e, to amend the Court's order dated October 13, 2009, to permit an interlocutory a p p e a l pursuant to 28 U.S.C. § 1292(b). (Dkt. No. 650.) For the reasons that follow, this m o tio n will be denied.

"G en e rally . . . motions for reconsideration which merely present the same issues ruled u p o n by the Court shall not be granted." W.D. Mich. LCivR 7.4(a). In its October 13, 2009, o p in io n , this Court addressed two of the issues presented by Defendant's present motion, n a m e ly, Defendant's argument that ¶ 20 of Whirlpool's purchase orders does not, in fact, d is c la im liability for "any loss or damage arising out of or in connection with [the 2002 S A A ]," and Defendant's argument that a liability limitation must be both procedurally and su b sta n tiv e ly unconscionable for it to be invalid under Mich. Comp. Laws § 440.2719. (Dkt. N o . 611, 10/13/2009 Op.) The Court previously rejected both arguments and will not now re c o n s id e r them. D e f en d a n t also argues that even if certain portions of ¶ 20 can fairly be read as e lim in a tin g all of Whirlpool's liability, only those portions of ¶ 20 should be stricken, and th e limitation on incidental and consequential damages should be left intact. Defendant ra is e s this argument for the first time in its motion for reconsideration. "A motion for re c o n sid e ra tio n may not generally be used to raise issues that could have been raised in the p re v io u s motion," and the Court finds this reason alone to be a sufficient basis on which to d e n y Defendant's present motion. ITT Corp. v. Borgwarner Inc., No. 1:05-CV-674, 2009 W L 2611219, at *1 (W.D. Mich. Aug. 24, 2009) (Bell, J.); see also Phifer v. City of Grand R a p id s , No. 1:08-CV-665, 2009 WL 3273241, at *1 (W.D. Mich. Oct. 9, 2009); Aero-Motive C o . v. Great Am. Ins., 302 F. Supp. 2d 738, 740 (W.D. Mich. 2003). In any event, the Court finds Defendant's argument unavailing. Comment 1 of Mich. C o m p . Laws § 440.2719 provides that "any clause purporting to modify or limit the remedial 2

p ro v is io n s of this Article in an unconscionable 1 manner is subject to deletion and in that e v e n t the remedies made available by this Article are applicable as if the stricken clause had n e v e r existed." The Michigan Commercial Code itself does not define the word "clause." H o w e v e r, Mich. Comp. Laws § 8.3a directs that: a ll words and phrases shall be construed and understood a c co rd in g to the common and approved usage of the langugage; b u t technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be c o n stru e d and understood according to such peculiar and a p p ro p ria te meaning. In determining the meaning of legal terms, Michigan law permits reference to a legal d i c tio n a ry. Ford Motor Co. v. City of Woodhaven, 716 N.W.2d 247, 255 (Mich. 2006). B la c k 's law dictionary defines "clause" as "a distinct section or provision of a legal d o c u m e n t or instrument." Black's Law Dictionary 285 (9th ed. 2009); see also Webster's T h ird New International Dictionary 417 (1986) (defining "clause" as "a distinct article, s tip u la tio n , or proviso in a formal document"). The term clause is intended to encompass m o re than just narrow groupings of words separated by commas, at least when the term is

Though, as discussed above, the Court does not find it appropriate to now reconsider D e f e n d a n t's argument that a disclaimer of "any loss or damage" must be procedurally u n c o n sc io n a b le for it to be unenforceable under Section 2719, the Court notes that it in te rp re ts the use of the word "unconscionable" in this sentence to refer to substantive u n c o n sc io n a b ility alone. Such a reading is consistent with the requirements in Comment 1 th a t "there be at least a fair quantum of remedy for breach of the obligations or duties o u tlin e d in the contract," and "at least minimum adequate remedies be available." In other w o rd s , according to Comment 1, a clause that is not procedurally unconscionable but that elim inates all liability still deprives a party of "minimum adequate remedies" and is therefore in v a lid . 3

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u s e d in reference to legal documents such as contracts. It would be unreasonable for the C o u rt to conclude that ¶ 20 is anything other than one self-contained contractual "clause," a s that term is contemplated by the Michigan Commercial Code. Because ¶ 20 disclaims lia b ility for "any loss or damage arising out of or in connection with the [2002 SAA]," and th u s deprives Plaintiff of "minimum adequate remedies," the entirety of ¶ 20 is "subject to d e le tio n ," and replaced by the remedies provided by the Michigan Commercial Code, in c lu d in g the right of a seller to seek lost profits for breach of contract. Mich. Comp. Laws § 440.2708. Defendant also asks that the Court amend its October 13, 2009, order to permit an in ter lo c u to ry appeal. A district court may certify an order for interlocutory appeal when it b e lie v e s that the order involves a question of law as to which there is "substantial ground for d if f e re n c e of opinion." 28 U.S.C. § 1292(b). The Court does not believe that either its O c to b e r 23, 2009 opinion and order or its present order involves a question of law as to w h ic h there is "substantial ground for difference of opinion." A c c o r d i n g l y, I T IS HEREBY ORDERED that Defendant's motion for reconsideration or, in the a lte r n a tiv e , to amend the Court's order (Dkt. No. 650) is DENIED.

Dated: October 30, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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