Cole Energy Development Company ("Cole Energy") leased two gas
compressor units from Ingersoll-Rand Company ("Ingersoll-Rand")
for use in its business of developing gas fields and in the
pumping, selling, and distribution of natural gas. A lease
agreement for an ESH gas compressor was entered into by the
parties on December 5, 1983, and a lease agreement for a KOA gas
compressor was entered into by the parties on August 11, 1984.
The terms and conditions of both agreements are identical.
(Hence, when we refer to the agreement in the singular, it is
applicable to both leases.) Ingersoll-Rand's motion for partial
summary judgment concerns the enforceability of certain terms of
the lease agreement.
WARRANTIES. Lessor will deliver to lessee the factory
warranty for each new unit manufactured by
Ingersoll-Rand Company to enable lessee to obtain
customary warranty service furnished on such units.
Other than delivering said factory warranty, Lessor
makes no other representations, promises, statements
or warranties, expressed or implied, AND THERE ARE NO
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE CONTAINED HEREIN.
Ingersoll-Rand asks this Court to find as a matter of law that
these provisions are enforceable. If the provisions are
enforceable, Cole Energy's maximum recovery under the agreement
would be limited to the amounts paid under the lease. No
consequential damages would be recoverable and the count alleging
a breach of the implied warranty would be dismissed. We now
address these questions.
Under Rule 56(c), summary judgment should enter "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 a judgment as a matter of law."
Fed.R.Civ.P. 56(c). Unquestionably, in determining whether a
genuine issue of material fact exists, the evidence is to be
taken in the light most favorable to the nonmoving party. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609,
26 L.Ed.2d 142 (1970). Nevertheless, the rule is also well
established that the mere existence of some factual dispute will
not frustrate an otherwise proper summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). Thus, the "preliminary question for the judge
[is] not whether there is literally no evidence, but whether
there is any upon which a jury could properly proceed to find a
verdict for the party producing it, upon whom the onus of proof
is imposed." Id. 106 S.Ct. at 2511, quoting Improvement Co. v.
Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
265 (1986). In other words, the Court must consider the evidence
"through the prism of the substantive evidentiary burden" in
motion. Anderson, 106 S.Ct. at 2513; Carson v. Allied News Co.,
529 F.2d 206, 210 (7th Cir. 1976). Applying this standard, the
Court now turns to the case at bar.*fn1