Clark v. International Harvester Co.

This is a products liability case in which the plaintiffs seek to recover consequential damages for economic losses resulting from an allegedly defective tractor manufactured by defendant International Harvester Company and sold to the plaintiffs by defendant McVey’s, Inc., an International Harvester Co. dealer. The plaintiffs alleged a breach of implied and express warranties and negligent design and manufacture of the tractor. Prior to trial the district court granted partial summary judgments in favor of the defendants on the warranty claims. After trial the district court, sitting without a jury, entered judgment against the defendants on the negligence claim and awarded the plaintiffs $26,950.15 in damages.

The defendant International Harvester Co. appeals from that judgment on several grounds. The plaintiffs have cross appealed from the partial summary judgments which dismissed their warranty claims.

We reverse with respect to the defendant’s appeal on the negligence claims, and reverse and remand with respect to the plaintiffs’ cross appeal on the denial of the warranty claims.

I

Plaintiff Raymond W. Clark is a custom farmer in the Twin Falls, Idaho, area doing business as Clark’s Custom Farming. Custom farmers contract to plow or preplant (a fertilizer application) farmland and are generally compensated according to the number of acres plowed or preplanted. They generally work intensive 10 to 15 hour work days, but work only during the spring and fall. In the spring of 1972 Clark first engaged in the custom farming business in the Twin Falls area, although he previously had been in the custom farming business in California.

On January 7, 1972, Clark purchased a Model 1466 International Harvester turbo-diesel tractor from McVey’s, Inc. Clark took delivery of the tractor on January 28, *330 1972, The transmission of this tractor was equipped with a “torque amplifier” (TA). When the tractor is driven in the TA mode, as opposed to the direct or normal drive mode, the tractor develops more torque, or pulling power, at a sacrifice of speed. Clark began using the tractor in his custom farming business in March, 1972. However, between April, 1972, and May, 1973, several breakdowns because of bent or broken push rods in the engine occurred. After each breakdown, McVey’s repaired the tractor free of charge under the warranty. Because of these breakdowns Clark alleged he lost IIV2 days of work.

Early in the fall of 1973, more than a year and a half after he had purchased the tractor, Clark noticed a loss of power in the tractor while preplanting a field covered with potato vines, weeds and other debris. The debris in the field piled up in front of the shanks of the preplant applicator, rather than feeding back through the shanks of the applicator. Preplanting was impossible under these conditions. Clark believed this problem was caused by the inability of the tractor to pull the applicator with sufficient speed to vibrate the shanks of the applicator and thereby cause the debris to feed back through the shanks. McVey’s tested the tractor on a dynamometer, a device for testing the horsepower of a tractor at the power takeoff (PTO) shaft. That test revealed no significant loss of horsepower at the PTO shaft.

Nonetheless, Clark believed the tractor was not pulling properly and concluded that the tractor was not able to plow a sufficient number of acres per hour for it to be economically practical to operate the tractor that season. Clark investigated the possibility of renting a substitute tractor for the 1973 fall season, but determined that it would be too expensive. With the exception of the first fall plowing job during which he experienced the loss of power, Clark did not do any custom farming with the tractor in the fall of 1973.

Clark testified that if the tractor had been functioning properly he would have been able to work sixty ten-hour work days that fall — approximately 40 days plowing and 20 days preplanting. Earlier in 1973, Clark had signed a three year contract with United States Steel Farm Service for fertilizer application. A representative of that firm testified that his company could have supplied Clark with 60 days of work in the 1973 fall season.

Because field conditions were better in the spring of 1974, Clark was able to operate the tractor on a limited basis for 14 days, but at a slower speed than he had operated the tractor previously. At the trial Clark testified that he was only able to cover eight acres per hour when he felt he should have been able to cover twelve acres per hour.

In December of 1973, Clark, through his attorney, had contacted Dr. Rudolf Limpert, an associate research professor of mechanical engineering at the University of Utah. Dr. Limpert agreed to examine the tractor and try to diagnose the cause of the power loss. Over the next six months Dr. Limpert conducted several tests on the tractor. From these several tests Dr. Limpert concluded that something was slipping in the process of transmitting the power from the engine to the draw bar in the TA mode. Under Dr. Limpert’s supervision the TA unit was disassembled at a tractor repair shop in Twin Falls, Idaho. Upon disassembly Dr. Limpert noted eccentric wear in a clutch shaft: Under Dr. Limpert’s direction, the TA unit was replaced by the repair shop with parts obtained from McVey’s. Dr. Limpert tested the tractor after repair and determined that it was performing satisfactorily.

Clark sued McVey’s and International Harvester in October, 1974, alleging negligent design and manufacture and breach of implied and express warranties. McVey’s cross claimed against International Harvester for indemnification.

The defendants separately moved for summary judgment alleging that when Clark purchased the tractor, he signed a sales form which provided for a 12 month warranty and which limited the buyer’s remedies to the repair or replacement of *331 defective parts by the defendant and disclaimed all other warranties. The trial court granted the motion for summary judgment on the warranty claims but ruled that the disclaimer provisions in the form did not exclude liability for negligence.

A court trial was held on the negligence claim. Defendant McVey’s did not participate in the trial. 1 Dr. Limpert, testifying as an expert witness for the plaintiffs, stated that the eccentric wear on the clutch shaft in the TA assembly permitted oil to escape between the shaft and its housing. According to Dr. Limpert, this oil leakage resulted in a decrease in the hydraulic pressure which permitted slippage between the clutch plates of the TA lockup clutch, which is hydraulically actuated, because the hydraulic pressure was then insufficient to squeeze the plates together properly. The plaintiffs also introduced evidence that the push rod failures were caused by improperly designed rocker arms and that International Harvester should have detected the problem in its inspection and products control system.

After the plaintiffs had rested their case, the defendant moved for a dismissal on the ground that the plaintiffs had only established consequential damages and that purely consequential damages were not recoverable in negligence. The trial court denied the motion.

William R. Borghoff, a product performance engineer for International Harvester, testified about the operation of the TA assembly in Clark’s tractor. According to Borghoff, the TA lockup clutch, which Dr. Limpert testified had been slipping, is a light duty clutch which prevents the tractor from coasting when driven in the TA mode, and it transmits no power from the engine to the draw bar. According to Borghoff’s testimony it would be mechanically impossible for slippage in the TA lockup clutch or low hydraulic pressure to cause a loss of horsepower in the TA mode. The plaintiffs presented no rebuttal evidence concerning the function of the TA lockup clutch or the manner in which power is transmitted in the TA mode.

In a memorandum opinion the trial court found that “[plaintiffs’ consequential damages due to ‘down’ time in their operation were caused by design defect in the valve train of the engine and negligent manufacture or assembly in the torque amplifier, . Plaintiffs are entitled to recover $24,246.00 for their down time and $2,112.00 for repair of the tractor.” 2 The trial court denied the plaintiffs’ claims for damages due to loss of “present and future” business and decreased value of the tractor. Formal findings of fact, conclusions of law and a judgment were subsequently prepared and entered. 3

The defendant International Harvester made motions (1) for an amendment of the findings of fact and conclusions of law, pursuant to I.R.C.P. 52(b), (2) for a new trial pursuant to I.R.C.P. 59(a), and (3) for an amendment of the judgment entered pursuant to I.R.C.P. 59(e). All the defendant’s motions were denied.

The defendant International Harvester has appealed from the judgment of the trial court and from the denial of its post trial motions. The plaintiffs have cross appealed *332 from the partial summary judgments on their warranty claims.

II

APPEAL OF DEFENDANT INTERNATIONAL HARVESTER

The defendant on appeal has made numerous assignments of error. They can be summarized as follows:

1. The evidence adduced at trial is insufficient to support the trial court’s finding that the alleged loss of horsepower was caused by an improperly manufactured shaft in the TA assembly.

2. There was no showing that the alleged defect in the TA assembly was the proximate cause of the damages claimed by plaintiffs.

3. The trial court erred in denying the defendant’s post trial motions for a new trial and to amend the findings of fact and the judgment, and the trial court erred in refusing to allow the submission of demonstrative evidence in support of those motions.

4. The trial court erred in awarding consequential damages for purely economic loss in a tort action.

5. The trial court erred in ruling that the recovery of consequential damages for the defendant’s negligence was not excluded by the contract between the parties.

6. The damages awarded the plaintiffs were speculative and conjectural, and the plaintiffs failed to mitigate their losses.

7. The trial court erred in awarding the plaintiffs the fees of Dr. Limpert as an item of damages.

We first consider assignment of error No. 4, which concerns the recovery of damages for economic loss in a negligence action, because, in our view, that is dispositive of the negligence issue. The specific question presented by this assignment of error is best demonstrated by distinguishing this case from those of our earlier and somewhat related cases. This case is not like Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974), in which the plaintiff sought damages for economic loss as a result of seeds which were damaged by the defendant’s chemicals. In the instant case the plaintiffs have not alleged that their economic losses were the result of any property damage caused by the defendants. This case is not like Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974), in which the plaintiff sought damages for profits lost as a result of a personal injury. In the instant case the plaintiffs have not alleged any personal injury. The negligence issue in this case is not like Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., 97 Idaho 348, 544 P.2d 306 (1975), in which the plaintiffs sought damages for economic loss for breach of an implied warranty. 4 In that case we did not rule whether such damages were recoverable in a negligence action, but held that a plaintiff who was not in privity of contract with the defendant could not recover economic losses based on a breach of an implied warranty. In this case it is conceded that there is privity.

In this action the plaintiffs seek recovery only of lost profits due to alleged “down time” and the costs of repairing and replacing allegedly defective parts. 5 The instant case presents the very narrow question whether the purchaser of a defective product who has not sustained any property damage or personal injury, but only suffered economic losses, can recover those *333 losses in a negligence action against the manufacturer.

This Court has not previously considered this issue. The majority of jurisdictions which have considered the issue have not permitted the recovery of purely economic loss in a products liability action sounding in tort. See Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781 (5th Cir. 1973) (applying Texas law to strict liability action); Bright v. Goodyear Tire & Rubber Co., 463 F.2d 240 (9th Cir. 1972) (applying California law); Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013 (9th Cir. 1970), cert. denied 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970) (applying Arizona law to strict liability action); Plainwell Paper Co. v. Pram, Inc., 430 F.Supp. 1386 (W.D.Pa.1977) (applying Pennsylvania law to strict liability action); Arizona v. Cook Paint & Varnish Co., 391 F.Supp. 962 (D.Ariz.1975) (concluding that under the law of either Arizona, California, Hawaii, Texas or Alaska purely economic losses were not recoverable in strict liability or negligence actions), aff’d 541 F.2d 226 (9th Cir. 1976); Cooley v. Salopian Industries, Ltd., 383 F.Supp. 1114 (D.S.C. 1974) (applying South Carolina law to strict liability action); Morrow v. New Moon Homes, 548 P.2d 279 (Alaska 1976) (strict liability); Beauchamp v. Wilson, 21 Ariz. App. 14, 515 P.2d 41 (1973) (strict liability); Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965) (strict liability); Anthony v. Kelsey-Hayes Co., 25 Cal.App.3d 442, 102 Cal.Rptr. 113 (1972) (strict liability and negligence); Hiigel v. General Motors Corp., 544 P.2d 983 (Colo. 1975) (strict liability); Long v. Jim Letts Oldsmobile, Inc., 135 Ga.App. 293, 217 S.E.2d 602 (1975) (negligence); Alfred N. Koplin & Co. v. Chrysler Corp., 49 Ill.App.3d 194, 7 Ill.Dec. 113, 364 N.E.2d 100 (1977) (negligence); Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill.App.2d 362, 219 N.E.2d 726 (1966) (strict liability); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 209 N.W.2d 643 (1973) (strict liability); Avenell v. Westinghouse Electric Corp., 41 Ohio App.2d 150, 324 N.E.2d 583 (1974) (strict liability); Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965) (strict liability); Nobility Homes, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977) (strict liability). However, a small minority of jurisdictions allow the recovery of purely economic losses in strict liability actions. See City of LaCrosse v. Schubert, Schroeder & Assoc., Inc., 72 Wis.2d 38, 240 N.W.2d 124 (1976); Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970); Santor v. A. & M. Karagheusian, Inc. 44 N.J. 52, 207 A.2d 305 (1965).

Dean Prosser summarized this majority rule with respect to recovery of economic losses in a products liability case sounding in negligence as follows:

“There can be no doubt that the seller’s liability for negligence covers any kind of physical harm, including not only personal injuries, but also property damage to the defective chattel itself, as where an automobile is wrecked by reason of its own bad brakes, as well as damage to any other property in the vicinity. But where there is no accident, and no physical damage, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing it, the courts have adhered to the rule, to be encountered later, that purely economic interests are not entitled to protection against mere negligence, and so have denied the recovery.” W. Prosser, Handbook on the Law of Torts, § 101 at 665 (4th ed. 1971).

The Restatement (Second) of Torts, § 395 (1965), states that a manufacturer is to be liable for “physical harm” caused by its negligence in the manufacture of a chattel dangerous unless carefully made, but that Restatement section does not extend the manufacturer’s liability to encompass purely economic loss.

Similarly, Restatement (Second) of Torts, § 402A (1965), which states the rule of strict liability in tort adopted by this Court in Shields v. Morton Chemical Co., supra, provides:

“One who sells any product in a defective condition unreasonably dangerous to the *334 user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property . . .

Like the Restatement section concerning the manufacturer’s liability for negligence, § 402A does not extend a seller’s tort liability to include purely economic losses.

One of the most fully articulated discussions of the considerations underlying this rule is found in Justice Traynor’s majority opinion in Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965), which we cited approvingly in Salmon Rivers Sportsman Camps, Inc. v. Cessna Aircraft Co., supra. In Seely the plaintiff sought to recover lost profits and a refund of the purchase price of a defective truck. The California Supreme Court ruled that such damages, although recoverable in a breach of warranty action, were not recoverable in strict liability in tort. The following passage from the majority opinion is pertinent to this case:

“The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the ‘luck’ of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands. A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will. Even in actions for negligence, a manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone. [Citations omitted].” 45 Cal.Rptr. at 23, 403 P.2d at 151.

We believe the rule advanced by the majority of the jurisdictions and by the Restatement is sound for the reasons articulated by Justice Traynor in Seely. Since the turn of the century the law of tort has undergone unprecedented change as courts have endeavored to adapt it so as to satisfy the demands of the commercial, marketing and manufacturing practices of this era. However, we recognize that the courts have not been alone in working to develop laws appropriate to the field of products liability. The legislature has enacted the Uniform Commercial Code. I.C. §§ 28-1-101 through -10-104. Chapter 2 of that act, I.C. §§ 28-2-101 through -2-725, contains a comprehensive and finely tuned statutory mechanism for dealing with the rights of parties to a sales transaction with respect to economic losses. In the continuing development of the tort law of this state, it is important that we be cognizant of the legislature’s actions in this area. Indeed, Santor v. A. & M. Karagheusian, Inc., supra, the leading case for the view that purely economic losses should be recoverable in product liability cases sounding in tort, has been soundly criticized on this ground:

“It is striking that those who would use tort law to protect consumers in defective-product cases do so with only the most cursory explicit recognition that there may already be a body of law directed toward regulating the rights of buyers and sellers, and a statutory body at that. The courts are operating at the border of an area considered by draftsmen at great length and framed in legislation arguably relevant to the cases before the courts. Yet, these judges appear either unaware of the merging of the tort and sales lines or else unwilling to consider the possible limitations legislation may impose on traditional judicial primacy in tort law. .

*335 “At best, we have judicial lack of awareness of the possible relevance of sales law. At worst, we have open judicial defiance of apparent statutory commands.” Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan.L.R. 974, 989-990 (1966).

The Idaho legislature, and indeed the legislatures of nearly every state in the Union, 6 have adopted the UCC which carefully and painstakingly sets forth the rights between parties in a sales transaction with regard to economic loss. This Court, in the common law evolution of the tort law of this state, must recognize the legislature’s action in this area of commercial law and should accommodate when possible the evolution of tort law with the principles laid down in the UCC.

The economic expectations of parties have not traditionally been protected by the law concerning unintentional torts. Just’s, Inc. v. Arrington Constr. Co., 99 Idaho-, - P.2d - (1978); Restatement (Second) of Torts, § 766C(c) (Tent. Draft No. 23,1977); W. Prosser, Handbook of the Law of Torts, § 130 (4th ed. 1971); 1 F. Harper & F. James, The Law of Torts, § 6.11 at 513 (1956). We do not believe that any good purpose would be achieved by undermining the operation of the UCC provisions by extending tort law to embrace purely economic losses in product liability cases. Moreover, the UCC provisions provide the Court with ample room for the exercise of wide judicial discretion to ensure that substantial justice results in particular cases. See, e. g., I.C. §§ 28-2-302 and -2-719(3) (concerning unconscionable clauses and contracts), and I.C. § 28-1-203 (imposing a general obligation of good faith).

The plaintiffs, however, attempt to distinguish this case from those applying the majority rule against the recovery of purely economic losses in tort on the ground that many of the latter cases involved strict liability actions and this case is a negligence action. At least two jurisdictions, and perhaps three, apparently prohibit the recovery of economic losses in strict liability actions but allow their recovery in negligence actions. Western Seed Production Corp. v. Campbell, 250 Or. 262, 442 P.2d 215 (1968); Nobility Homes v. Shivers, supra; Berg v. General Motors Corp., 87 Wash.2d 584, 555 P.2d 818 (1976). The Texas court in Nobility Homes ruled that economic losses were not recoverable in a strict liability action, but permitted their recovery on the theory of a breach of an implied warranty under the UCC. In its opinion the Texas court noted that the lower courts in that case had also based the recovery on the plaintiff’s negligence theory. The defendant had not challenged the negligence finding on appeal to the Texas Supreme Court and that court affirmed the judgment for the plaintiff on the negligence point without discussion.

The Washington court’s opinion in Berg did not consider the corrosive effect that an extension of negligence law to purely economic losses would have on the efficacy of the provisions of the UCC, a point which we consider of critical importance and an issue which applies to negligence actions as well as to strict liability actions. The Washington court found support for its decision to permit the recovery of purely economic losses in a negligence action in a line of admiralty cases. Although application of those cases to the facts in Berg may have been appropriate since the case involved the malfunction of a commercial fishing vessel, admiralty principles are of limited guidance in Idaho.

The Oregon court in Campbell recognized that negligence law traditionally has not protected the economic expectations of the parties, stating:

“A buyer’s desire to enjoy the benefit of his bargain is not an interest which tort law has traditionally been called upon to protect.” 442 P.2d at 218/

*336 Cf. Mandal v. Hoffman Constr. Co., 270 Or. 248, 527 P.2d 387 (1974) (denying recovery of economic losses for negligent performance of construction contract). But the Oregon court in Campbell went on to extend negligence principles to include the recovery of purely economic losses, stating:

“Recovery for such negligence, because it is grounded upon fault, falls within traditional tort rules and presents no serious conflict with the statutory system of non-fault recovery under the Uniform Commercial Code.” 442 P.2d at 218.

We find the reasoning that there is no conflict with the UCC because negligence actions are grounded in “fault” inadequate. The point is not whether the UCC warranty provisions are a fault or non-fault concept, but whether there is any compelling reason to further extend negligence law into an area in which the legislature has already enacted comprehensive legislation, thereby undermining that legislation. We believe the UCC provisions adequately define the rights of the parties in such cases and that judicial expansion of negligence law to cover purely economic losses would only add more confusion in an area already plagued with overlapping and conflicting theories of recovery.

The plaintiffs further argue that, in many of the cases which refused to permit the recovery of damages for economic loss in negligence actions and which are cited by the defendants, the absence of privity of contract between the parties was the determinative factor, not the nature of the damages. There is language in some cases suggesting that the absence of privity may have played a role in the reasoning of some courts which have denied the recovery of purely economic losses in negligence. See, e. g., Trans-World Airlines, Inc. v. Curtis-Wright Corp., 1 Misc.2d 477, 148 N.Y.S.2d 284, 290 (Sup.Ct.1955). The requirement of privity in negligence actions, an unfortunate amalgam of tort and contract principles, was for the most part laid to rest by Justice Cardozo’s famous opinion in McPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), and we are not disposed to resurrect it in this case. Rather than obscure fundamental tort concepts with contract notions of privity, we believe it is analytically more useful to focus on the precise duty of care that the law of negligence, not the law of contract or an agreement by the parties, has imposed on the defendant International Harvester. The law of negligence requires the defendant to exercise due care to build a tractor that does not harm person or property. If the defendant fails to exercise such due care it is of course liable for the resulting injury to person or property as well as other losses which naturally follow from that injury. However, the law of negligence does not impose on International Harvester a duty to build -a tractor that plows fast enough and breaks down infrequently enough for Clark to make a profit in his custom farming business. This is not to say that such a duty could not arise by a warranty — express or implied — by agreement of the parties or by representations of the defendant, 7 but the law of negligence imposes no such duty. Accordingly, the trial court erred in granting a judgment to the plaintiffs on their negligence count.

Ill

CROSS APPEAL

The trial court granted summary judgments in favor of both defendants with respect to the plaintiffs’ warranty claims. We reverse the partial summary judgments because on several separate legal issues there were material issues of fact. I.R.C.P. 56(c); Prosper v. Raymond, 99 Idaho 54, 577 P.2d 33 (1978).

*337 A. Attached to an affidavit Clark submitted in opposition to the defendants’ motions for summary judgment was a copy of the sales form Clark alleged he signed. The “backer” or reverse side of that form refers to but does not set out the defendant International Harvester’s regular warranty on new equipment. 8 Clark stated that he was never given a copy of the warranty. However, an affidavit by John Davis, owner of defendant McVey’s, stated that the sale was consummated on a form on which the “New Equipment Warranty” was printed on the reverse side. The “New Equipment Warranty” not only states an express warranty but also excludes other express or implied warranties and limits the buyer’s remedies. Attached to Davis’s affidavit as Exhibit A is a blank copy of the form Davis stated was used. 9 The affidavit states that a copy of the seller’s copy of the sales form showing Clark’s signature was attached as Exhibit B to the affidavit. The record before this Court does not contain an Exhibit B to that affidavit.

In granting the summary judgments the trial court concluded that the form attached as Exhibit A to Davis’s affidavit represented the agreement of the parties. However, such conclusion is in direct conflict with the facts stated in Clark’s affidavit. At oral argument defense counsel urged that the dispute concerning which form Clark signed was being raised for the first time on appeal and that at the time the order granting summary judgment was entered the parties v/ere in agreement with respect to the form he signed and what was stated in its warranty provisions. The record before this Court indicates no such consensus, but on the contrary, indicates a genuine factual dispute over what warranty provisions were contained in the form Clark signed. Under such circumstances the trial court erred in resolving that factual issue in the summary judgment. 10

*338 B. The plaintiffs also argue in their cross appeal that even if the trial court was correct in concluding that Clark signed a sales form containing International Harvester’s “New Equipment Warranty” and that those warranty provisions disclaimed all implied warranties and oral express warranties in accordance with the requirements of I.C. § 28-2-316, there still remained material issues of fact whether (1) the repair or replacement remedy provided in the warranty was the exclusive remedy, and (2) even if it was exclusive, whether the limited remedy had failed of its essential purpose.

In the “New Equipment Warranty” the defendants expressly warranted that the tractor was “free from defects in material and workmanship under normal use and service,” but limited their liability to the repair or replacement of parts which proved to be defective within 12 months or 1500 hours of use after delivery. Chapter 2 of the Uniform Commercial Code (UCC) which is applicable to this case, I.C. § 28-2-102, provides that the parties’ agreement may limit the buyer’s remedies to repair and replacement of nonconforming goods. I.C. § 28-2-719(l)(a). However, subsection (l)(b) creates a presumption that contractual clauses prescribing remedies are cumulative to other available remedies. 11 If the parties intend the stated remedy to be the sole and exclusive remedy, that intent must be clearly expressed. I.C. § 28-2-719, Official Comment 2.

Most courts have ruled that clauses similar to the “New Equipment Warranty” are adequate expressions of the intent to limit the buyer’s remedy to the repair and replacement of defective parts. See e. g., Cox Motor Car Co. v. Castle, 402 S.W.2d 429 (Ky.1966); McCarty v. E. J. Korvette, Inc., 28 Md.App. 421, 347 A.2d 253 (1975); Lankford v. Rogers Ford Sales, 478 S.W.2d 248 (Tex.Civ.App.1972); J. White & R. Summers, Handbook on the Law Under the Uniform Commercial Code, § 12-9 (1972). However, some courts have construed such provisions very narrowly. For example, in Ford Motor Co. v. Reid,