holding that exculpatory clause was enforceable when clause was set off in its own paragraph with a capitalized heading and with all key language capitalized
How later courts described this case
- holding that exculpatory clause was enforceable when clause was set off in its own paragraph with a capitalized heading and with all key language capitalized
- noting that consequential damages “may include profits which might accrue collaterally as a result of the contract’s performance,” while direct damages “may include profits necessarily inherent in the contract”
- although contract stated that it was to be construed under California law, Georgia law applied because California law was not properly pled pursuant to OCGA § 9-11-43 (c)
- vacating award; finding direct lost profits not recoverable with contract “forb[idding] the recovery of ‘ANY LOST PROFITS,’” with “[n]o exceptions”
Written by the judges who cited it.
The opinion
Smith, Judge,
dissenting.
I respectfully dissent. I would affirm the judgment because, in my view, the contract provision prohibiting the recovery of lost profits does not preclude the recovery sought by MRP.
I agree with the majority that the measure of damages applicable for breach of contract in this case is similar to that used when a contractor brings an action for breach of a construction contract. That measure is the unpaid contract price less the amount saved by the contractor as a result of the breach — the contractor’s costs involved in completing the contract. Williams v. Kerns, 153 Ga. App. 259, 262 ( 265 SE2d 605 ) (1980). This measure is sometimes referred to as “anticipated profit” or “expected profit.” It is not identical to “lost profits.” Anticipated profit in a case like this, where one is prevented from reaping the benefit of a bargain, is the measure of the direct damage. Unlike “lost profits,” it may never exceed the contract price. Crankshaw v. Stanley Homes, 131 Ga. App. 840, 841-842 (1) ( 207 SE2d 241 ) (1974). 5 And unlike “lost profits,” it is not speculative; it is defined by the contract price.
Paragraph 5.1 of the contract prohibits only liability for “lost profits or any incidental, special, or consequential damages.” The term “lost profits” is a term of art. It has often been used in contracts to mean a particular type of consequential damages. See, e.g., American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 316-317 (1) (b) ( 469 SE2d 431 ) (1996) (lost profits included in general contractual *647 prohibition against “‘consequential, special, exemplary, punitive, incidental or indirect damages’ ”). As such; it is intended to allow as a recovery for breach of the contract only those damages directly attributable to the acts of the other party and to prohibit recovery of those items of damage only indirectly so attributable. See Hixson-Hopkins Autoplex v. Custom Coaches, 208 Ga. App. 820, 821 (1) (b), (c) ( 432 SE2d 224 ) (1993) (lost profits are consequential damages not directly attributable to failure to pay on contract).
Decided July 11, 1997
Reconsideration denied July 28, 1997
Chambers, Chambers & Chambers, Timothy D. Chambers, John W. Chambers, Jr., for appellants.
Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Michael S. Wakefield, Timothy J. McGann, for appellee.
The contract provision in issue here did just that. But the loss of MRP’s “anticipated” or “expected” profit is a direct result of NGDI’s terminating the contract prematurely. It is therefore recoverable. I would affirm the judgment.
I am authorized to state that Judge Eldridge joins in this dissent.
Crankshaw, supra, overruled Redman Dev. Corp. v. Piedmont Heating &c., 128 Ga. App. 447 ( 197 SE2d 167 ) (1973), relied upon by MRP (and mentioned in the majority opinion) and several other cases because Redman and those other cases incorrectly state the applicable measure of damages.