Limitation of Liability Clauses

by Cranfill Sumner & Hartzog LLP
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Introduction and Significance of these Clauses

Many industry form documents and custom construction contracts contain provisions shifting or limiting the respective parties’ risks. One of the more potentially significant risk-limiting provisions seen primarily in customized or modified professional services agreements is the “limitation of liability” clause.

It is important to recognize the difference between a “limitation of liability clause”, and an “exculpatory clause”.  A “limitation of liability clause” is a contractual clause limiting the amount of damages that may be recovered for the negligent acts of a party, whereas an “exculpatory clause” is one that totally exonerates a party from its future negligent conduct.  Generally, exculpatory clauses in contracts are disfavored under the law of most states, and such contract provisions are strictly construed against the party claiming the benefit of the clause. Courts are reluctant to enforce contracts that relieve parties from their future negligence.  In some situations, exculpatory clauses have been held to be invalid under particular statutory provisions and in other instances because the contract is one affected with a public interest. Statutory restrictions which preclude their use generally hold that statutory liability for negligence cannot be contracted away.

“Limitation of liability clauses”, on the other hand, generally establish the maximum liability or exposure of one party if there is a claim.  The purpose of these clauses is to recognize the proportional role of the professional service provider in the project and limit their liability according to the level of compensation received under the agreement. If enforceable, the clause will serve to cap a party’s liability for damages to an amount certain.   However, there some jurisdictions in which these types of clauses are either disfavored, or even unenforceable.  As a result, it is important to understand at the outset of a claim whether one of these clauses exists and has a potential effect on the liability issues, but also which jurisdiction is involved and what that jurisdiction’s case law and/or statutory law has to say about the enforceability of these clauses. 

Typical Limitation of Liability Clause

While there is no standard AIA or industry form document which contains limitation of liability provision language, most of them are proposed as a custom term added to these documents by design professionals. Most read along the lines of the following:

In recognition of the relative risks and benefits of the Project to both the Client and the Design Professional, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Design Professional and Design Professional’s officers, directors, partners, employees, shareholders, owners and subconsultants for any and all claims, losses, costs, damages of any nature whatsoever whether arising from breach of contract, negligence, or other common law or statutory theory of recovery, or claims expenses from any cause or causes, including attorney’s fees and costs and expert witness fees and costs, so that the total aggregate liability of the Design Professional and Design Professional’s officers, directors, partners, employees, shareholders, owners and subconsultants shall not exceed $__________, or the Design Professional’s total fee for services rendered on the Project, whichever amount is greater. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law, including but not limited to negligence, breach of contract, or any other claim whether in tort, contract or equity. If the Client does not wish to limit professional liability to this sum, if the Design Professional agrees to waive this limitation upon receiving Client’s written request, and Client agrees to pay an additional consideration of ______ percent of the total fee or $_________, whichever is greater, additional limits of liability may be made a part of this Agreement.

In addition to the language cited above, it is suggested the following tail language be added to any such clause to make sure the contract is not interpreted in such a way that the Court would find that the insurance or indemnity sections would conflict with, and therefore invalidate the limitation of liability language:

Limitations on liability, waivers and indemnities in this Agreement are business understandings between the parties and shall apply to all legal theories of recovery, including breach of contract or warranty, breach of fiduciary duty, tort (including negligence), strict or statutory liability, or any other cause of action, provided that these limitations on liability, waivers and indemnities will not apply to any losses or damages that may be found by a trier of fact to have been caused by the Design Professional’s gross negligence or willful misconduct. The parties also agree that the Client will not seek damages in excess of the contractually agreed-upon limitations directly or indirectly through suits against other parties who may join the Design Professional as a third-party defendant. “Parties” means the Client and the Design Professional, and their officers, directors, partners, employees, subcontractors and subconsultants.

Enforceability of Limitation of Liability Clauses

Where the parties to a contract are sophisticated business entities dealing at arm's length, the limitation is reasonable in relation to the design professional’s fee, and the damages are purely economic, most states will enforce a limitation of liability clause.   Other states hold them to be varying degrees of unenforceable.   Some states find them unenforceable unless properly worded, giving them careful scrutiny, whereas others find them totally unenforceable for reasons ranging from violation of that state’s anti-indemnity statutes to public policy reasons.

A limitation of liability clause simply places a fixed cap on the amount of damages that may be recovered against a contracting party in the event of a claim. Generally, courts hold that such clauses are not per se against public policy, but several states are more protective, and some have enacted legislation, by way of anti-indemnity statutes that hold such clauses void and unenforceable.

Generally speaking, in order to contractually limit damages for a party’s future negligence, the contractual language at issue must be: 1) clear, 2) unambiguous, 3) unmistakable and 4) conspicuous, in order to be enforceable.

There are several principles that emerge from those states that find limitation of liability clauses enforceable. As a rule, most states that enforce them strictly construe them against the beneficiary of the clause. The clause must still meet the above four language requirements. However, a theme from these cases is that the courts are not in a position to re-write sophisticated parties’ business agreements, and will generally enforce them as written.

Some courts have taken a very restrictive view of the these clauses, and while they have upheld them, they have heavily scrutinized them, requiring such things as separate negotiation or bargaining for the clause at issue, evidence of separate consideration for the limitation of liability clause, or that it be very conspicuous – in a different typeface, highlighted and not merely set out along with several other numbered paragraphs.

States that refuse to enforce the clauses do so for a number of reasons, including finding the clauses violative of the specific state’s anti-indemnity statute, or holding that they are unenforceable as against public policy. [A summary table, Table 1.0, at the end of this document, compiles relevant case law and statutes on these clauses from the 50 states.]

States Allowing the Use of Limitation of Liability Clauses

North Carolina

             The North Carolina Court of Appeals has held, specifically in a case involving a provider of professional services in the construction industry, that a limitation of liability provision is valid and enforceable.  In Blaylock Grading Company, LLP v. Smith, 189 N.C.App. 508, 658 S.E.2d 680 (2008), Blaylock Grading Company sued Neil Smith Engineering, a professional land surveying company, over alleged negligence in surveying services provided by Smith to Blaylock.  The contract between the parties contained a clause that limited any potential liability of Smith to $50,000 or the total amount of the fee paid to Smith, whichever was greater.   Blaylock argued that the clause was unenforceable in North Carolina, and that it violated North Carolina’s Anti-Indemnity Statute (N.C.G.S § 22B-1).  The Court concluded that the clause did not violate North Carolina law, and in so doing noted that there were no formation irregularities with the contract, the contract was not unconscionable, there was no inequality of bargaining power, and that both parties were sophisticated, professional parties.  As to the Anti-Indemnity Statute argument, the Court concluded that a limitation of liability clause was not the same thing as an indemnity clause, and so the statute did not operate to bar the clause. 

Missouri

The Missouri Supreme Court has ruled on the validity of a limitation of liability clause in Purcell Tire and Rubber Company, Inc. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. 2001). Purcell dealt with a limitation of liability clause in an inspection agreement between the purchaser of an aircraft and the inspection company hired to prepare an inspection report of the plane before it was purchased.

The Court noted that sophisticated commercial parties have freedom of contract, even to make a bad bargain, or to relinquish fundamental rights, such as waiving the right to a jury trial, or forum selection. The parties may also contractually limit future remedies. The Court held as a general principle that “clear, unambiguous, unmistakable, and conspicuous limitations of negligence liability do not violate public policy.” If the contract effectively notifies a party that it is releasing the other party from its own future liability, sophisticated businesses that negotiate at arm's length may limit liability without specifically mentioning “negligence,” “fault,” or an equivalent.

Although not discussed, it is arguable the Court in Purcell would have reached a different decision in a case involving personal injury, or one involving other than economic damages.

Arkansas

Arkansas addressed the issue of limitation of liability clauses, finding them generally enforceable, in W. William Graham, Inc. v. City of Cave City, 709 S.W.2d 94 (Ark. 1986). In Graham, the question of the validity and enforceability of the clause was secondary in the Court’s analysis, finding that it must give effect to any provision voluntarily entered into. The issue was the construction of the clause, which sought to restrict and limit recovery to damages based upon “professional negligent acts, errors, or omissions.” No mention was made of liability for breach of contract, and the resultant damages that might flow from such a breach.

Though the language in the limitation of liability clause pertained to “negligent acts, errors or omissions,” the jury found the defendant breached its contractual duty to perform within the time frame mutually agreed upon, entering a verdict on a contract claim and not a negligence claim. Whether the delay was occasioned by “negligence” or contract breach was not for the Court to divine, noting that, had the defendant “desired to limit its liability for breach of contract, it could have done so, and doubtless this Court would have enforced such contract proviso, as it has many times in the past.” The Court noted it could not re-write the contract, indicating that such clauses are to be strictly construed against the party relying on them, limited to their exact language.

States Opposing the Use of Limitation of Liability Clauses

Alaska

In City of Dillingham v. CH2M Hill N.W., Inc., 873 P.2d 1271 (Al. 1994), the Alaska Supreme Court invalidated a standard limitation of liability clause, seeking to limit an engineer’s liability to the owner to $50,000.00, or its fee, whichever was greater, for liability arising out of the engineer’s sole negligent acts, errors or omissions. The Court held the provision violative of the Alaska Anti-Indemnity Act, Alaska Statutes § 45.45.900, which prohibits as against public policy any contract that requires another to hold a party harmless from their “sole” negligence. The Court, in effect, analogized the clause as one for indemnity for those unrecovered amounts over the cap, which would result in one party indemnifying the other for their sole negligence.

New Jersey

In Lucier v. Williams, 366 N.J. Super. 485 (N.J. App. 2004), the New Jersey Appellate Division considered the enforceability of a limitation of liability provision in a home inspection contract. Plaintiffs were first time home buyers, who contracted with an inspection company, owned by an engineer and licensed professional home inspector, to inspect a home they were purchasing. A lower court enforced a limitation of liability clause in their contract.

In determining whether to enforce the contract, the Court of Appeals looked to its adhesive nature, the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the adhering party, and the public interests affected by the contract. It also focused attention on whether the limitation was a reasonable allocation of risk between the parties or whether it ran afoul of the public policy disfavoring clauses which effectively immunize parties from liability for their own negligent acts.

Applying these principles to the home inspection contract in issue, the Court found the limitation of liability provision unconscionable. The Court did “not hesitate to hold it unenforceable for the following reasons: (1) the contract, prepared by the home inspector, is one of adhesion; (2) the parties, one a consumer and the other a professional expert, have grossly unequal bargaining status; and (3) the substance of the provision eviscerates the contract and its fundamental purpose because the potential damage level is so nominal that it has the practical effect of avoiding almost all responsibility for the professional's negligence. Additionally, the provision is contrary to our state’s public policy of effectuating the purpose of a home inspection contract to render reliable evaluation of a home's fitness for purchase and holding professionals to certain industry standards.”

Important in the Court’s analysis was New Jersey statutory provisions requiring home inspectors, as a licensing prerequisite, to maintain errors and omissions insurance with a minimum coverage of $500,000 per occurrence. N.J.S.A. 45:8-76a. This legislative provision provided a clear expression of public policy that home inspectors be fully liable for their errors and omissions, and to maintain “substantial insurance coverage to assure payment for any such liability.”

States Highly Critical of the Use of Limitation of Liability Clauses

California

            While most states take a very careful approach to enforcing these clauses, some do so with extreme caution. In California, as an example, in the case of Greenwood v. Murphy, 2008 WL 4946224 (Cal. App. 2008), while the trial court upheld the enforceability of a limitation of liability clause, the court of appeals reversed, finding the clause unenforceable. In its opinion, the court of appeals noted the factors that should be considered includes: the question of whether the parties in this case had an opportunity to accept, reject, or modify the limitation of liability clause, and a consideration of all of the facts surrounding the transaction, including whether the parties were of relative equal bargaining power and whether it was an arm’s length transaction.

While California has an anti-indemnity statute, they also have a statutory section which allows for some limitations provisions in agreements, California Civil Code Section 2782.5, which states:

Nothing contained in Section 2782 shall prevent a party to a construction contract and the owner or other party for whose account the construction contract is being performed from negotiating and expressly agreeing with respect to the allocation, release, liquidation, exclusion, or limitation as between the parties of any liability (a) for design defects, or (b) of the promisee to the promisor arising out of or relating to the construction contract.

The case involved a homeowner who signed a form contract with an engineer, who simply felt they had no option but to accept the language given to them in the agreement, which contained a limitation of liability clause. Perhaps the outcome would have been different if the parties were both sophisticated business entities.

States with Conflicting Decisions on the Enforceability of Limitation of Liability Clauses

Florida

In Florida Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316 (11th Cir. 1985), the Eleventh Circuit decided whether, under Florida law, a limitation of liability clause “exculpated an engineer from damages caused by its own negligence.” The Court read the contract provision as a contract clause for indemnification under Florida law where the effect of the clause was to exculpate the indemnitee for its own negligence. A review of Florida case law and cases from other jurisdictions revealed that in order for the “indemnity contract” to be construed as allowing indemnification for the indemnitee’s own negligence, that intention must be expressed in clear and unequivocal terms.

Three variant views as to what constitutes clear and unequivocal language emerged from the Court’s analysis. A strict construction approach would not find an indemnity clause indemnifying against “any and all claims” without express reference to negligent conduct sufficiently “clear and unequivocal,” and thus unenforceable to limit a negligence claim. A more liberal approach would read the language “any and all claims” to clearly cover all types of claims, including negligence claims, and thus enforceable. A more pragmatic line of cases considers the language of the contract along with any other indications of the parties’ intentions in determining whether the intention to indemnify the indemnitee against its own negligence was the intention of the parties.

The Court held the contract satisfied Florida’s strict test applicable to cases where the indemnitee’s sole negligence caused the damage. In clear and unequivocal terms the contract specifically listed the “negligence of the Engineer” as one cause of damage that was to be the subject of the exculpatory clause and the indemnity provision. The contract also limited the Engineer’s liability for indemnity and damages by providing stated insurance coverage. It also provided a means for plaintiff to increase that insurance coverage at additional cost, which plaintiff expressly declined to do. The Court of Appeals ultimately held that under Florida law the limitation of liability clause exculpated the Engineer from its own negligence and enforced the limitation of liability clause.

However, compare the case of Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033 (Fla. App. 2010), wherein the Florida Court of Appeals held the use of limitation of liability clauses in professional services agreements void ab initio. In the case, the Florida Court of Appeals noted the Florida Supreme Court tacitly acknowledged that an extra-contractual remedy against a negligent professional is necessary because contractual remedies in such a situation may be inadequate. (Citing Moransais v. Heathman, 744 So.2d 973, 983 (Fla. 1999)). (“While the parties to a contract to provide a product may be able to protect themselves through contractual remedies, we do not believe the same may be necessarily true when professional services are sought and provided.”). By allowing a professional negligence claim against an individual on common law and statutory grounds, and finding that the doctrine designed to prevent “parties to a contract from circumventing the allocation of losses set forth in the contract” does not preclude such a claim, the Florida Supreme Court implicitly acknowledged that claims of professional negligence operate outside of a contract.

Under the facts of the case, the court held that a cause of action in negligence exists irrespective and independent and outside of a professional services agreement, and, therefore, found a limitation of liability provision was, as a matter of law, invalid and unenforceable.

Practical Tips for Drafting Limitation of Liability Clauses

The best way to ensure that these clauses will be enforceable is to understand what the Courts in your jurisdiction will look at to determine the enforceability, and to make sure the key language is present.  However, as a general matter from looking at the cases where these clauses have been upheld, there are certain essential elements that should be a part of any limitation of liability clause to give it the best chance of being upheld.  

Initially, it is important that the clause is negotiated. This can be accomplished in several different ways. Use of pre-printed forms with blanks provided for filling in the appropriate liability caps (using either a standard figure, like $50,000.00, or the professional's fee, whichever is higher, or some other limit which meaningfully takes into consideration the potential damages on the project), evidences the fact the clause was discussed. Highlighting the language in the agreement with different typeface, or bold print, or having a separate signature or initial block adjacent to the limitation of liability language will show it was conspicuous, negotiated and explicitly accepted.

There must also be evidence of relatively equal bargaining power during contract negotiation, not a "take it or leave it" agreement. Some courts have held that, in the absence of evidence of negotiation over the clause at issue, it will not be enforced.

As far as exculpatory clauses the few cases enforcing these focus on the simple, clear and unambiguous nature of the release language at issue. Therefore, the language must specifically state that it is a release of future “negligence” or “breach of contract” in order for the clause to be an effective waiver of these claims. General language releasing future claims will not suffice to release allegations of negligence unless it is specifically mentioned.

Even following these suggestions does not guarantee a court will enforce the clause as written. These clauses will be subjected to case by case scrutiny. While these are simply suggestions, you should of course obtain the assistance of counsel in your respective jurisdiction to make sure that the limitation of liability clause you are suggesting complies with the exact letter of the law in the subject state.

Table 1.0

State by State Analysis of the Enforceability of Limitation of Liability Clauses

Enforceability of Limitation of Liability Clauses

State

Enforceable

Leading Case

Statute

Note

AL

Yes

Robinson v. Sovran Acquisition Limited Partnership, 70 So. 3d 390 (Ala. 2011)

 

 

AK

No

City of Dillingham v. CH2M Hill N.W., Inc., 873 P.2d 1271 (Al. 1994)

Ak. Stat. 45.45.900

Not generally enforced and disfavored.

AZ

Yes

1800 Ocotillo, LLC v. WLB Group, Inc., 219 Ariz. 200 (Az. banc 2008)

 

 

AR

Yes

W. William Graham, Inc. v. City of Cave City, 709 S.W.2d 94 (Ark. 1986)

 

They are strictly construed.

CA

Yes

Markborough California, Inc. v. Superior Court, 227 Cal. App. 3d 705 (Cal. App. 1991), but compare Greenwood v. Murphy, 2008 WL 4946224 (Cal. App. 2008)

Cal. Civil Code 2782.5

But only if found to have been “negotiated and expressly agreed.”

CO

Yes

U.S. Fire Ins. Co. v. Sonitrol Management Corp., 192 P.3d 543 (Colo. App. 2008)

 

Not for willful or wanton conduct.

CT

Yes*

Shawmut Bank Conn. v. Connecticut Limousine Serv., Inc., 670 A.2d 880 (Conn. App. 1995)

Conn. Gen Stat. 10-290e(a) (2007)

* Per statute, not enforceable in contracts with towns or schools.

DE

Yes

J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540 (Del. Super. 1977)

 

 

FL

Questionable

Witt v. La Gorce Country Club, Inc., 35 So.3d 1033 (Fla. Ct. App. 2010)

Fla. Stat. 725.06

Likely not in a case where there is a professional involved.

GA

Questionable

Lanier at McEver, L.P. v. Planners & Eng'rs Collaborative, Inc., 663 S.E.2d 240 (Ga. 2008), and Borg-Warner Ins. Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70, 71, 400 S.E.2d 340 (Ga. Ct. App. 1990)

O.C.G.A. 13-8-2(b)

 

HI

Yes

Leis Family Ltd. Partnership v. Silversword Engineering, 2012 WL 504184 (Hi. Ct. App. 2012), and City Express, Inc. v. Express Partners, 959 P.2d 836 (Hi. 1998)

 

 

ID

Yes

Idaho State University v. Mitchell, 552 P.2d 776 (Idaho 1976)

 

They are strictly construed.

IL

Likely

Scott & Fetzer v. Montgomery Ward & Co., 493 N.E.2d 1022 (Ill. 1986)

 

They are strictly construed.

IN

Yes

Orkin Exterminating Co. v. Walters, 466 N.E.2d 55 (Ind. Ct. App. 1984)

 

They are strictly construed.

IA

Likely

Advance Elevator Co., Inc. v. Four State Supply Co., 572 N.W.2d 186 (Ia. Ct. App. 1997)

Iowa Code 554.2719

 

KS

Yes

Santana v. Olguin, 208 P.3d 328 (Kan. App. 2009), and Wood River Pipeline Co. v. Willbros Energy Servs. Co., 738 P.2d 866 (Kan. 1987)

 

 

KY

Yes

Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007)

 

 

LA

Likely

Isadore v. Interface Sec. Systems, 58 So.3d 1071 (La. App. 2011)

La. Civ. Code Ann. Art. 2004

 

ME

Likely

Lloyd v. Sugarloaf Mountain Corp., 833 A.2d 1 (Maine 2003)

 

 

MD

Likely

Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254 (Md. Ct. App. 1996)

 

 

MA

Yes

Zavras v. Capeway Rovers Motorcycle Club, Inc., 687 N.E.2d 1263 (Mass. Ct. App. 1997)

 

 

MI

Yes

Ohio Cas. Ins. Co. v. Oakland Plumbing Co., 2005 WL 544185 (Mi. Ct. App. 2005)

 

Not for willful or wanton conduct.

MN

Questionable

Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783 (Minn. 2005)

 

 

MS

Unlikely

Turnbough v. Ladner, 754 So. 2d 467 (Miss. 1999)

Miss. Code Ann. 31-5-41

 

MO

Yes

Purcell Tire and Rubber Company, Inc. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. 2001)

 

 

MT

Unlikely

State ex rel. Mountain States Tel. & Tel. Co. v. District Court In and For Silver Bow, 160 Mont. 443 (Mont. 1972)

Mont. Code Ann. 28-2-702, 30-2-719

 

NE

Yes

Ray Tucker & Sons, Inc. v. GTE Directories Sales Corp., 571 N.W.2d 64 (Neb. 1997)

 

 

NV

Likely

Obstetrics & Gynecologists v. Pepper, 693 P.2d 1259 (Nev. 1985)

 

 

NH

Likely

McGrath v. SNH Development, Inc., 969 A.2d 392 (N.H. 2009)

N.H. Rev. Stat. Ann. 339-A:1

Statute may prohibit contract clauses that extend indemnification to design professionals.

NJ

Questionable

Stelluti v. Casapenn Enterprises, LLC, 1 A3d. 678 (N.J. 2010), Marboro, Inc. v. Borough of Tinton Falls, 297 N.J. Super. 411 (1996)

 

 

NM

Yes

Fort Knox Self Storage, Inc. v. Western Technologies, Inc., 142 P.3d 1 (N.M. Ct. App. 2006)

 

 

NY

Yes

Sommer v. Federal Signal Corp., 583 N.Y.S.2d 957 (Ct. App. 1992), Long Island Lighting Co. v. Imo Delaval, Inc., 668 F. Supp. 237 (S.D.N.Y. 1987)

 

 

NC

Yes

Blaylock Grading v. Smith, 658 s.E.2d 680 (2008).

N.C. Gen. Stat. 22B-1

 

ND

Questionable

Reed v. Univ. of N.D., 589 N.W.2d 880 (N.D. 1999), but compare Kondrad ex rel. McPhail v. Bismarck Park Dist., 655 N.W.2d 411 (N.D. 2003)

 

 

OH

Yes

Motorists Mut. Ins. Co. v. ADT Sec. Systems, 1995 WL 461316 (Oh. Ct. App. 1995)

 

 

They are strictly construed.

OK

Likely

Elsken v. Network Multi-Family Sec. Corp., 838 P.2d 1007 (Ok. 1992)

Okla. Stat. tit. 14-421-30; tit. 15-221

 

OR

Likely

Estey v. MacKenzie Eng'g Inc., 927 P.2d 86 (Or. 1996)

 

 

PA

Yes

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010), see also Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195 (3rd Cir. 1995)

 

 

RI

Likely

Star-Shadow Prods., Inc. v. Super 8 Sync Sound Sys., 730 A.2d 1081 (R.I. 1999)

 

 

SC

Yes

Georgetown Steel Corp. v. Union Carbide Corp., 806 F. Supp. 74 (D.S.C. 1992)

 

 

SD

Likely

Rozeboom v. Northwestern Bell Telephone Co., 358 N.W.2d 241 (S.D. 1984)

 

 

TN

Questionable*

Houghland v. Security Alarms & Services, Inc., 755 S.W.2d 769 (Tenn. 1988)

T. C. A. § 62-6-123

* Likely not if public interest is involved.

TX

Yes

Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875 (Tex. App. 2008), CBI NA-CON, Inc. v. UOP Inc., 961 S.W.2d 336 (Tex. App. 1997)

V.T.C.A., Bus. & C. § 1.201

 

UT

Questionable

Russ v. Woodside Homes, Inc., 905 P.2d 901 (Utah Ct. App. 1995)

 

 

VT

Likely

Colgan v. Agway, Inc., 553 A.2d 143 (Vt. 1988), Hamelin v. Simpson Paper Co., 702 A.2d 86 (Vt. 1978)

9A V.S.A. § 2-302

 

VA

Questionable

Pettit v. Chesapeake & Potomac Tel. Co. of VA, 1992 WL 884663 (Va. Cir. Ct. 1992)

Va. Code Ann. 11-4.1

 

WA

Likely

Markel American Ins. Co. v. Dagmar's Marina, L.L.C., 161 P.3d 1029 (Wa. Ct. App. 2007)

 

 

WV

Likely

Arts' Flower Shop, Inc. v. Chesapeake & Potomac Telephone Co. of West Virginia, Inc., 413 S.E.2d 670 (W. Va. 1991)

 

 

WI

Questionable

Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334 (Wis. 2005)

Wis. Stat. 895.447

 

WY

Yes

Massengill v. S.M.A.R.T. Sports Med. Clinic, 996 P.2d 1132 (Wyo. 2000)

 

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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