Boston Helicopter Charter, Inc. v. Agusta Aviation Corp.

MEMORANDUM

This action arises out of the sale, resale, and eventual crash of an Agusta A109 helicopter. Defendant Costruzioni Aeronautiche Giovanni Agusta S.p.A. (“CAGA”) is the Italian manufacturer of the helicopter, and defendant Agusta Aviation Corporation (“AAC”) 1 is its subsidiary responsible for marketing, distribution and support of CAGA products in North America. AAC sold the helicopter to co-defendant Hydroplanes, Inc., 2 who in turn sold it to the plaintiff, Boston Helicopter Charter, Inc. (“Boston Helicopter”). Boston Helicopter *367 and the individuals injured in the accident 3 filed this action against all three defendants. Hydroplanes then filed a cross-claim against CAGA and AAC for indemnity. CAGA and AAC responded with a cross-claim against Hydroplanes for indemnity and contribution, alleging negligence against Hydroplanes in its maintenance and operation of the helicopter. The case is currently before this Court on AAC’s and CAGA’s motion for partial summary judgment on Boston Helicopter’s warranty claims, and on Hydroplanes’ motion for summary judgment on its claim seeking indemnity from AAC and CAGA.

I.

The following facts are undisputed, except where otherwise indicated. Defendant AAC sold the 109A helicopter to Hydroplanes on May 4, 1984 for $1,000,000.00. Hydroplanes did not take delivery of the helicopter until July 26, 1984. The purchase agreement between AAC and Hydroplanes contained the following warranty:

6. Warranty

a. New Equipment. The Equipment is purchased subject to Seller’s standard warranty which is as follows:

Seller hereby warrants to the original purchaser only each new helicopter and part thereof sold by Seller to be free from defects in material and workmanship under normal use and service, Seller’s obligation under this warranty being limited to replacing or repairing such part at its designated place of business, with the charges payable by Purchaser for such repair or replacement to be prorated for hours of use against the established life of the part or 2,000 hours, whichever is the lesser (with no charges being payable to Purchaser in the event of repair or replacement within the first 500 hours of use), provided that such part shall have been returned to Seller’s designated place of business, with transportation charges prepaid, within 1,000 hours of operation or one year, whichever shall first occur, after delivery of such part to the original purchaser, and provided further that Seller’s examination shall disclose, to Seller’s satisfaction, such part to have been defective. THIS WARRANTY IS GIVEN EXPRESSLY AND IN PLACE OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THIS WARRANTY IS THE ONLY WARRANTY MADE BY SELLER OR THE AGUSTA GROUP. The obligations of Seller under this warranty are limited to the repair of helicopter parts as provided herein and liability is excluded for incidental or consequential damages, including without limitation, damage to the helicopter or other property, and costs of expenses for commercial losses or lost profits due to loss of use of grounding of the helicopter or otherwise.

The 500 hour period for free replacement was substituted by the parties in lieu of a standard 200 hour provision. Moreover, the agreement between AAC and Hydroplanes provided that the warranty was transferrable. 4

More than one year later, on October 31, 1985, Hydroplanes entered into a purchase and sale agreement through which it agreed to sell the helicopter to the plaintiff, Boston Helicopter, for approximately $875,-000.00. 5 Paragraph 141 of the purchase and sale agreement between Hydroplanes and plaintiff provided for the transfer of the warranty to plaintiff. This provision read as follows:

Seller agrees that it shall be a condition of closing that Seller shall deliver to Buyer at closing all documentation necessary to transfer to Buyer the extended facto *368 ry warranty, on which there are approximately 200 hours of Aircraft operation time remaining, which extended factory warranty is equivalent to the factory warranty offered with a new aircraft of this type and model. Seller agrees, at the time of closing, to deliver to Buyer such evidence as is reasonably required by Buyer to satisfy Buyer that the transfer of warranty will be recognized by the Agusta Aviation Corporation. 6

In accordance with its obligation under this paragraph of the purchase and sale agreement, Hydroplanes executed a document by which it authorized AAC to transfer the balance of the warranty to plaintiff. This document, dated November 19, 1985, stated that the balance of the warranty as of that date was “approximately 200 hours.” At the bottom of the same document, however, the following was written: “Balance of Warranty at November 19, 1985 is 185.1 hours.” A representative of AAC initialed the document, indicating that the “Assignment of Warranty” had been “Confirmed & Accepted.” The plaintiff took delivery of the helicopter on that same day. Plaintiff contends that it never received a copy of the warranty; for purposes of this motion, this Court assumes that such is the case.

The plaintiff did, however, make use of this warranty. By a letter dated January 10, 1986, plaintiff notified AAC of its appointment of North Atlantic Air, Inc. as its warranty claims agent. ■ According to the affidavit of James Minogue, the customer service manager and warranty administrator, plaintiff made 33 claims from January 10, 1986 until December 30, 1986. The claim forms have a place to note the number of hours the helicopter had been in flight. It appears that AAC honored one claim when the helicopter had a total aircraft operation time of 504 hours. In addition, on several of these claims forms, although CAGA had made a notation that “the warranty has expired due to calendar limits,” AAC honored the claim under what it referred to on the forms as the “AAC Agreement,” or “AAC Special Warranty.” (See Defendants’ Exhibit 7).

The accident took place on January 13, 1987, when the helicopter had a total operation time of 566.8 hours. According to the factual report of the National Transportation Safety Board, the helicopter experienced a tail rotor blade failure shortly after liftoff from the helipad while hovering at twenty-five feet. The rotor blade that failed had a certified expected life of 1,400 hours. A certified expected life refers to the period of time that the certifying authorities permit the part to remain in use. (See Plaintiff’s Exhibit L, Deposition of Paolo Ferreri at 115). The pilot attempted to set the helicopter down on the helipad, but made a hard landing. According to an estimate prepared by the defendants, it would cost $1,015,447.90 to repair the helicopter.

II.

The first motion to be addressed is that by AAC and CAGA for partial summary judgment on Counts VII, VIII, IX, X, XI, XII, XIII, LXXVIII and LXXVIX of the plaintiff’s amended complaint, which allege the following claims: breach of express warranty by AAC and CAGA; breach of implied warranty by AAC and CAGA; breach of warranty of fitness for a particular purpose by AAC and CAGA; failure of the warranty to achieve its essential purpose against AAC only; and violation of Mass. Gen.L. ch. 93A against AAC and CAGA. Summary judgment is appropriate “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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., *369 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). One way of meeting this burden is by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2553. Once he or she has done so, the opposing party must come forward with enough evidence to demonstrate that there is a genuine issue of material fact for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. To determine if a dispute is genuine, a court must ask whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). It is with this framework that the defendants’ motion is evaluated.

A. Express Warranty

Article two of the Uniform Commercial Code states that express warranties may be created by any affirmation of fact or promise, any description of the goods, or any sample or model. Mass.Gen.L.Ann. ch. 106, § 2-313 (West 1990). In this case, the plaintiff bases its claim for breach of express warranty on the warranty that Hydroplanes transferred to it. (Plaintiff’s Answer to Defendants’ Interrogatory No. 4). In addressing defendants’ motion for summary judgment, the first task is to determine if the express warranty was still in force, or if it had expired by its terms before the crash.

It therefore becomes necessary to interpret the following language contained in paragraph 6 of the warranty:

... Seller’s obligation under this warranty being limited to replacing or repairing such part at its designated place of business, with the charges payable by Purchaser for such repair or replacement to be prorated for hours of use against the established life of the part or 2,000 hours, whichever is the lesser (with no charges being payable to Purchaser in the event of repair or replacement within the first 500 hours of use), provided that such part shall have been returned to Seller’s designated place of business, with transportation charges prepaid, within 1,000 hours of operation or one year, whichever shall first occur, after delivery of such part ...

Without a doubt, this single-sentence paragraph is unartfully drafted. Defendants argue that the extended component time warranty of 500 hours ran concurrently with a standard warranty providing for proration of replacement costs. Thus, according to defendants, the plaintiff was entitled to the benefit of the proration formula for 1,000 hours or one year, whichever occurred first, but would receive free repair or replacement for 500 hours regardless of the one year limitation. Put another way, defendants contend that the clause in paragraph 6 beginning with the word “provided,” does not apply to the 500 hour free repair-and-replace clause which is set forth parenthetically. Thus, the defendants argue, because the helicopter crashed at 566.8 hours, neither the standard nor the extended warranty was in effect.

Not surprisingly, plaintiff puts forth a different interpretation of the warranty. In fact, plaintiff has proposed two different interpretations. In its first interpretation, plaintiff takes what would appear to be a pro-defendant position. Plaintiff maintains that the 1,000 hours/one year limitation applies to both the applicability of the pro-ration formula and the 500 hour free repair-or-replacement clause. Having argued that the warranty had expired by its terms due to the expiration of one year, plaintiff contends that by allowing for the assignment of the expired warranty from Hydroplanes to plaintiff on November 19, 1985 (more than one year after delivery), and by honoring warranty claims after one year had expired, defendants waived the one year restriction set out in its warranty. Plaintiff’s second reading of the' warranty is that each part was under warranty for the certified life of the part, which is 1,400 hours for the tail rotor blade.

To resolve this dispute concerning the meaning of the warranty, this Court must examine fundamental principles of contract interpretation. It is well-settled under Massachusetts law that the construe *370 tion of an unambiguous contract is a question of law reserved for the court. Boston Edison v. Federal Energy Regulatory Comm’n, 856 F.2d 361, 365 (1st Cir.1988); Freelander v. G. & K. Realty Corp., 357 Mass. 512, 516, 258 N.E.2d 786 (1970). Likewise, the determination of whether a contract is in fact ambiguous is a question of law. Boston Edison, 856 F.2d at 365. A contract is considered ambiguous where the terms used can reasonably support differing interpretations. Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir.1989). A contract that lacks ambiguity must be enforced according to its terms. Liberty Mut. Ins. Co. v. Gibbs, 773 F.2d 15, 17 (1st Cir.1985). In construing a contract, a court must give reasonable effect to each provision, and the contract must be viewed as a coherent whole. J. A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795, 494 N.E.2d 374 (1986). In doing so, a court will be guided by common sense, justice and the probable intention of the parties. Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701, 200 N.E.2d 248 (1964).

In some instances, however, where a contract is ambiguous and extrinsic evidence is used, a factual question may create a proper case for a jury regarding the meaning of a contract. Atwood v. Boston, 310 Mass. 70, 75, 37 N.E.2d 131 (1941). Such is the case “where more than one view can be taken of the evidence respecting the circumstances of the parties and the condition of the subject with which they are dealing.” Ober v. National Casualty Co., 318 Mass. 27, 30, 60 N.E.2d 90 (1945). Thus, a contract cannot be interpreted as a matter of law by the court where there exists a dispute regarding material facts or the inferences to be drawn from the facts. Computer Sys. Eng’r, Inc. v. Oantel Corp., 740 F.2d 59, 65 n. 8 (1st Cir.1984); Hamed v. Fadili, 408 Mass. 100, 106, 556 N.E.2d 1020 (1990); Thomas v. Christensen, 12 Mass.App.Ct. 169, 174, 422 N.E.2d 472 (1981).

Under the framework described above, the first step in construing the contract is to determine, as a matter of law, if the warranty is ambiguous. Boston Edison, 856 F.2d at 365. A contract is not ambiguous simply because the parties disagree about its meaning. The defendants point to extrinsic evidence, specifically the parties’ course of performance, to support their claim that the 500 hour free repair-or-replace provision continues to operate outside of the one year limitation. Extrinsic evidence, however, cannot be used to contradict terms in a contract where the contract is clear on its face. ITT Corp. v. LTX Corp., 926 F.2d 1258, 1264 (1st Cir.1991); Savignano v. Gloucester Hous. Auth., 344 Mass. 668, 673, 183 N.E.2d 862 (1962). This is such a case. 7

In construing the paragraph at issue, general rules of grammatical construction apply. Deerskin Trading Post, Inc. v. Syencer Press, Inc., 398 Mass. 118, 123, 495 N.E.2d 303 (1986). One such rule is that parentheses are used to set aside nonessential matter. C. Millward, Handbook for Writers 125 (1980). Thus, parentheses do not separate and emphasize that which is contained within them, but rather, deemphasize. Deerskin Trading Post, Inc., 398 Mass, at 124, 495 N.E.2d 303 (parenthetical phrase said to be “included in” main clause). The fact that the free repair-or-replace clause is mentioned parenthetically is patently inconsistent with the defendants’ assertion that the parenthetical describes, in essence, a separate “extended component time warranty of 500 hours [that] ran concurrently with the standard warranty.” *371 (See Defendants’ Memorandum in Support of the Motion for Summary Judgment at 4). As a result, it is clear that the parenthetical phrase in the warranty is merely incidental to the preceding clause describing the manner in which charges were to be prorated.

As part of that clause, the parenthetical is modified by the “provided” clause, and is therefore subject to the one year limitation. This reading of the warranty is consistent with the well-established rule of grammatical construction that “a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.” Id. at 123, 495 N.E.2d 303 (quoting Commonwealth v. Brown, 391 Mass. 157, 160, 460 N.E.2d 606 (1984) (quoting Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231, 431 N.E.2d 225 (1982))). Here, there is nothing in the warranty which would suggest a different interpretation. In fact, as mentioned above, just the opposite is true, as it would be unrealistic to expect a seller blithely to create by way of parentheses a second and independent warranty for free repair or replacement of parts. Moreover, the repair-or-replace clause is part of, not separate from, the standard warranty, given the first sentence of paragraph 6 which states that “[t]he Equipment is purchased subject to Seller’s standard warranty which is as follows.” (emphasis added). In sum, the warranty unambiguously supports plaintiff’s position (albeit an ironic one) that, at the time of the crash, the warranty had expired due to the one year limitation. 8

Having determined that the warranty had already expired at the time of the crash, it is clear that plaintiff’s claims based on express warranty are barred absent evidence that the one year durational limitation was inapplicable. The plaintiff has characterized its argument as one of waiver. To support its waiver argument, plaintiff points first to the fact that the defendants acknowledged the assignment of the warranty even though the one year period had already expired. Additionally, the plaintiff argues that the defendants waived the one-year limitation by honoring more than thirty of plaintiff’s warranty claims submitted outside the one year warranty period.

Section 2-209 of the Uniform Commercial Code governs questions of modification, rescission and waiver. Mass.Gen.L. Ann. ch. 106, § 2-209 (West 1990). That section reads as follows:

(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party.

(3) The requirements of the Statute of Frauds section of this Article (section 2-201) must be satisfied if the contract as modified is within its provisions.

(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver.

(5) A party who has made a waiver affecting an executory portion of the *372 contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

Id. The Code then looks to state law for the definitions of waiver and modification.

According to Massachusetts law, “waiver” is the voluntary relinquishment of a known right. St. John Bros. Co. v. Falkson, 237 Mass. 399, 402, 130 N.E. 51 (1921). This definition has been clarified by one commentator, who explains that waiver is actually “the excuse of the nonoccurrence of or a delay in the occurrence of a condition of a duty.” See E.A. Farnsworth, Contracts § 8.5 (2d ed. 1990). A waiver can be express, or it can be inferred from a party’s conduct and the surrounding circumstances. Lone Mountain Prod. Co. v. Natural Gas Pipeline Co., 710 F.Supp. 305, 311 (D.Utah 1989). A waiver implied by a person’s conduct, however, must be unequivocal and must allow room for no other explanation of the conduct of the person who allegedly is waiving a contractual right. Lone Mountain Prod. Co., 710 F.Supp. at 311. Furthermore, the concept of waiver is generally applied only to minor or incidental conditions in a contract. E.A. Farnsworth, Contracts § 8.5 (2d ed. 1990). Whether a waiver has taken place is usually a question of fact for the jury. Kennedy Bros. Inc. v. Bird, 287 Mass. 477, 485, 192 N.E. 73 (1934); St. John Bros. Co., 237 Mass, at 402, 130 N.E. 51.

It is possible to locate precedent that supports applying the concept of waiver to warranty durational limitations. See Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784, 802 (1978); Ed Fine Oldsmobile, Inc. v. Knisley, 319 A.2d 33, 36 (Del.Super.Ct.1974); R. Andersen, Uniform Commercial Code §§ 2-719:26, 2-719:75 (3d ed. 1984). The soundness of such precedent, however, is highly questionable in the current situation. See Hart Eng’g Co. v. F.M.C. Corp., 593 F.Supp. 1471, 1478 (D.R.I.1984) (refusing to apply waiver principles to warranty durational limitation); Annotation, Seller’s Waiver of Sales Contract Provision Limiting Time Within Which Buyer May Object to or Return Goods or Article for Defects or Failure to Comply with Warranty or Representations, 24 A.L.R.2d 717, 720 (1952) (“Where the qualifications of the seller’s warranty are that notice of or objection to defects must be made within a certain time, however, the principle of waiver is not so readily applied.”). In Hart Engineering Co. v. FMC Corp., Judge Selya described the application of waiver to a similar situation as “akin to trying to force a square peg into a round hole.” 593 F.Supp. at 1478. He correctly described the conceptual difficulty of applying the waiver argument to a one year warranty limitation stating:

To view the warranty, or even the delimited term which is part and parcel thereof, as a privilege or benefit enjoyed by the defendant is to turn the actual relationship of rights and obligations established by the purchase agreement on its head. Thus, it would seem that the defendant’s conduct ... could not have amounted to a waiver.

Id.

Plaintiff’s argument, therefore, must not be that the one year limitation was waived, but rather, that the one year warranty was extended or modified. See National Util. Serv., Inc. v. Whirlpool Corp., 325 F.2d 779, 781 (2d Cir.1963) (“A party may waive performance of a condition inserted for his benefit and thereby make unconditional the other party’s duty under an agreement, but he cannot by waiver of a condition precedent to his own liability create obligation in himself where none previously existed. To create such an obligation requires a new contract and new consideration.”); Hart Eng’g Co., 593 F.Supp. at 1478 (construing waiver argument as one for novation or “revivification” of the original warranty). Any argument that the warranty period was extended or modified necessarily relies on the November 19, 1985 “Assignment of Warranty” which was confirmed and accepted by AAC. In that letter, Hydroplanes authorized AAC to transfer to the plaintiff “the *373 balance of the aircraft warranty ... as provided in the original Purchase Agreement between Hydroplanes, Inc. and Agusta Aviation Corporation. The approximate time remaining is 200 hours.” 9 On the bottom of the same letter, the following was written: “Balance of Warranty at November 19, 1985 is 185.1 hours.” This document, read together with the paragraph in plaintiffs purchase and sale providing for the transfer of the warranty to plaintiff, could be considered a modification of the otherwise expired one year warranty period.

Nonetheless, it is clear as a matter of law that, to the extent the letter extended the warranty beyond one year, it did so for the limited period of either 185.1 or 200 hours. Given that the helicopter had logged approximately 315 aircraft hours at the time it was sold to plaintiff, the modification or extension would mean that the warranty was in force until the helicopter reached 500.1 or 515 hours, depending on which of the two figures in the November 19 letter was used. This duration would appear to be in accordance with plaintiffs expectations, given the fact that plaintiffs own purchase and sale agreement with Hydroplanes stated that there were approximately 200 hours remaining on the warranty. (Aircraft Purchase and Sale Agreement, ¶ 14.L).

Plaintiff makes much of the fact that AAC honored a warranty claim on October 2, 1986, when the helicopter had a total of 504 aircraft hours. 10 Looking to the higher figure of 200 hours, this claim at 504 hours fell within the warranty period as modified. Even assuming that the warranty expired at 500 hours, there is no issue of material fact for a jury to decide. As a matter of law, no reasonable jury could find that the defendants extended or modified the warranty by honoring one claim approximately four hours after the warranty had expired. In fact, refusing to honor such a claim would clearly be an unsound business practice in terms of cultivating goodwill. See Annotation, Seller’s Waiver of Sales Contract Provision Limiting Time Within Which Buyer May Object to or Return Goods or Article for Defects or Failure to Comply with Warranty or Representations, 24 A.L.R.2d 717, 720 (1952) (“[Ajttempts or promises to remedy defects after the time for giving notice has expired are looked at by most courts as acts merely of friendly concern and voluntary efforts to satisfy the buyer so that the reputation of the seller may not be impugned.”). In sum, therefore, summary judgment should be granted in favor of AAC and CAGA on plaintiffs claims for breach of an express warranty.

B. Failure of Essential Purpose

Count X of the amended complaint, asserted only against AAC, alleges that the warranty’s remedy failed of its essential purpose. Article two specifically permits parties to modify the contractual remedies provided in the Code. See Mass.Gen.L. Ann. ch. 106, § 2-719(l)(a) (West 1990). In fact, section 2-719(l)(a) specifically permits limitations such as the repair-or-replace limitation found in the warranty at issue here. Nonetheless, section 2-719(2) cautions that “[wjhere circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this subchapter.” Mass.Gen.L. Ann. ch. 106, § 2-719(2) (West 1990). Whether a remedy has failed of its essential purpose is a question of fact.

Courts have held that a repair-or-replace remedy fails of its essential purpose where the “seller is either unwilling or unable to conform the goods to the contract.” Chatlos Sys., Inc. v. National Cash Register Corp., 635 F.2d 1081, 1085 (3d Cir.1980); 3 W. Hawkland, UCC Series § 2-719:03 (1984). For example, the Ninth *374 Circuit has held that a repair-or-replace remedy fails of its essential purpose as a matter of law where the seller completely refuses to honor its duty to repair or replace. Fiorito Bros., Inc. v. Fruehauf Corp., 747 F.2d 1309, 1313 (9th Cir.1984). Similarly, as to a seller’s inability to conform the goods to the contract, there is one line of cases standing for the proposition that a repair-or-replace remedy fails of its essential purpose where, during the life of the warranty, the goods are totally destroyed as a result of the defective part. See, e.g., Rudd Constr. Equip. Co. v. Clark Equip. Co., 735 F.2d 974, 982 (6th Cir.1984). Thus, where a repair-or-replace remedy deprives the buyer of minimum adequate remedies, the warranty will be said to have failed of its essential purpose. Mass.Gen.L.Ann. ch. 106, § 2-719 Massachusetts code comment (West 1990); Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 373, 548 N.E.2d 182 (1990).

Section 2-719 must be examined, however, in light of this Court’s determination that the warranty was limited in duration and had expired by its terms at the time of the crash. There is some authority for the proposition that a warranty fails of its essential purpose according to section 2-719(2) where the defects were latent, and therefore could not have been discovered during the limited period of the warranty. See, e.g., Ritchie Enter. v. Honeywell Bull, Inc., 730 F.Supp. 1041, 1048 (D.Kan.1990); Comind, Companhia de Seguros v. Sikorsky Aircraft Div. of United Technologies Corp., 116 F.R.D. 397, 413 (D.Conn.1987). 11 The better reasoned approach, however, is that 2-719(2) is inapplicable once the warranty has expired. See, e.g., Arkwright-Boston Mfrs. Mut. Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1179-80 (5th Cir.1988); Wisconsin Power & Light Co. v. Westinghouse Elec. Corp., 830 F.2d-1405, 1412-13 (7th Cir.1987); Hart Eng’g Co., 593 F.Supp. at 1479; Clark, 99 Idaho 326, 581 P.2d at 802-03; see also Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936, 941 (2d Cir.1980) (no failure of essential purpose where repair-or-replace remedy was available throughout warranty period and defect discovered after warranty expired); Airlift Int’l, Inc. v. McDonnell Douglas Corp., 685 F.2d 267, 270 (9th Cir.1982) (same); 2 R. Andersen, Uniform Commercial Code § 2-302:86 (1982) (time limitation not a question of failure of remedy, but of whether unconscionable). As explained by one court:

This is certainly not a case in which an exclusive or limited remedy failed of its essential purpose. To the contrary, the warranty provisions here operated just as intended, allocating the risk of loss between the parties both before and after the warranty expired. The transformer operated satisfactorily long after the warranty period had run. A purchaser cannot claim that a warranty provision has failed of its essential purpose merely because a potential claim does not arise until after the warranty period has expired.

Arkwright-Boston Mfrs. Mut. Ins. Co., 844 F.2d at 1179 (quoting Wisconsin Power & Light Co., 830 F.2d at 1412-13). Put another way, to apply 2-719(2) to an expired warranty is to confuse limitation of remedy with limitation of liability. Hart Eng’g Co., 593 F.Supp. at 1479. Thus, as 2-719(2) concern remedies, it is inapplicable to AAC’s warranty provision limiting the duration of liability.

The issue therefore is whether the durational limitation is unconscionable under Mass.Gen.L.Ann. ch. 106, § 2-302. Hart Eng’g Co., 593 F.Supp. at 1480; Clark, 99 Idaho 326,