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November 24
2003 - Ruth Newhall, longtime co-owner/editor of The Signal, dies in Berkeley [story]


Commentary by Carl Kanowsky, Esq.
| Friday, Feb 28, 2014
Carl Kanowsky, Esq.

Carl Kanowsky, Esq.

Patty Party Planners purchased 100 helium hummingbird balloons for Tracy Treat’s 20th birthday bash hosted by Tracy’s mom, Mary Magdalene Morton. Patty verbally ordered the birds from Igor’s Incredible Inflatables, a company Patty had used several times before.

Igor’s attractive assistant, Anna Archer, delivered the balloons to Tracy’s house in colorful Century City. Anna gave the balloons to Tracy’s beau and Patty’s partner, the handsome Carl Casey Carter. The spark between ol’ Triple C and Anna was so immediately intoxicating that Anna neglected to have Carl sign the delivery receipt.

Part of the receipt provided that Patty would indemnify Igor if anything unfortunate happened in using the balloons. Well, of course something did occur.

Mary’s nephew Nicky Norris Napoli, a particularly boisterous blundering boy, popped a balloon near the somnolent Sonny Sunderson, startling him awake, causing him to fall over in his chair, injuring his tailbone in his taupe, tailored trousers. His injuries required recurring recuperative regimes that cost a bunch of money.

Sonny sued Igor, claiming that the balloons busted too easily. Igor cross-complained against Patty, indicating she should indemnify Igor against Sonny’s injuries. The basis for his claim? The unsigned receipt that said Patty would be held to holding Igor harmless.

Patty’s plea? Since Anna hadn’t signed the receipt, Patty had not agreed to the indemnification clause.

The court ruled, “You’re right as rain, Patty.”

In a case strikingly similar to our little alliterative adventure, C9 Ventures v. SVC-West, the Court of Appeal recently considered this same question.

In the C9 case, SVC-West (a seller of time-shares) ordered several helium tanks from C9 to be used at SVC-West’s sales event at the Crowne Plaza Resort in Garden Grove. C9 typically delivered the tanks in the morning when no SVC-West guests were present, but on the day of the incident, the C9 employee did not arrive at the resort to make the delivery until about 5 p.m.

SVC-West instructed the C9 employee to bring the tanks up to the mezzanine level of the resort. The C9 employee stacked five to seven tanks against the walls next to the service elevator. He was in the process of bringing up another tank when a young boy, whose parents were attending the time-share presentation, ran up to the tanks and hugged one of them, pulling it over.

The tank, which was about 5 feet tall and weighed 130 pounds, fell on the boy’s hand. He was hospitalized and underwent surgery for his injuries. In all of the commotion, no one signed for the tanks.

The boy’s parents sued both C9 and SCV-West for the injuries inflicted by the helium tank. Both C9 and SVC settled the case, each paying $350,000. Then C9 sued SVC-West for indemnification, arguing that its delivery receipt had language where SVC-West agreed to hold C9 harmless in its use of the tanks.

But of course, the receipt was not signed. Because it had not signed it, SVC-West argued that it shouldn’t be held to terms to which it never agreed.

The Court of Appeal agreed with SVC-West, stating that adding in an indemnity clause in a delivery receipt materially alters the contract.

Because of the significance of the change, in order for it to be effective, it must be agreed to by both parties. Since SVC-West didn’t sign the receipt, there was no evidence it had ever assented to indemnifying C9. Thus, for the lack of a signature, C9 lost $350,000.

So remember: Whether you have customers in Taipei, Tripoli, Tanzania or Tarzana, or in Chino, China, Cleveland or Cucamonga, make sure they sign the receipt.

 

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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