Always Read The Contract – They Wrecked Your Wine, But Now Won’t Pay
You send your Chardonnay to a custom crush facility for bottling. A month later the wine in one out of about every ten bottles is brown. It oxidized in the bottle. You are forced to pull all your Chardonnay from the market at significant expense, and you fear your brand has suffered. The evidence suggests that the wine oxidized during bottling. Surely, the custom crush facility will step up and compensate you for your damages? To the surprise of many vintners, the custom crush facility may escape much or all liability based upon language in its contract.
In California, as in most states, companies can dramatically limit their liability to commercial customers. Companies do this by including clauses in their contracts with customers that exclude liability for negligence, for lost profits, or for consequential damages, among other things. These clauses are powerful – if something goes wrong – like oxidized wine – these clauses can shift liability from the company to the customer, or in our example, from the custom crush facility to the vintner. These clauses, if drafted properly, could prevent the custom crush facility from liability for lost profits, any damage to the vintner’s wine brand, consequential damages, and might even limit damages to the value of the wine if sold as bulk wine.
California courts will enforce contractual limitations of liability, but courts interpret those clauses very strictly. Consequently, those clauses should be well written and clear. There are, however, exceptions to the enforceability of these clauses. Parties cannot limit liability for fraud, willful injury to persons or property, or for violations of the law, even if those violations are negligent. While parties can limit liability for negligence, parties cannot limit liability for gross negligence. Courts explain that gross negligence is the “lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (See CACI 425.)
Additionally, contracts can further attempt to limit the amount of damages. For example, the custom crush facility in the above example might include a clause valuing the wine at $5 a gallon. If the wine is then destroyed in the bottling process because of the custom crush facility’s negligence, damages may be limited to $5 a gallon, even if the wine might retail for $25 a bottle.
If you are a winery or a winemaker in California, you need to understand these contractual limitations of liability before signing any contract with a custom crush facility, an alternative proprietor, bottler, or other service provider. You need to read the contract, and you further should understand that you could object to these limitations or negotiate less onerous clauses.
If you provide services to winemakers or wineries, you should also understand the need for contractual limitations of liability. Accidents happen, and they should not cost you your business. These limitations of liability, however, must be carefully drafted, and you should obtain an attorney with knowledge of the wine business to draft these limitations.
Additionally, all parties should understand the need for the right insurance to cover situations when things do go badly. Typically, commercial general liability policies will not cover damage to wine that occurs during the “wine making process,” which may include bottling. Both the vintner and the custom crush facility would do well to have an errors and omission policy.