Opinion
11642 Index 651871/18
06-11-2020
FRESENIUS KABI USA, LLC, Plaintiff–Appellant, v. HETERO USA, INC., Defendant–Respondent.
Swanson, Martin & Bell LLP, Chicago IL (Patrick G. Cooke of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellant. Greenberg Traurig, LLP, New York (David Jay of counsel), for respondent.
Swanson, Martin & Bell LLP, Chicago IL (Patrick G. Cooke of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellant.
Greenberg Traurig, LLP, New York (David Jay of counsel), for respondent.
Friedman, J.P., Mazzarelli, Gesmer, Singh, Gonza´lez, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 29, 2018, which granted defendant's motion for summary judgment dismissing the damages claim for lost profits, unanimously affirmed, with costs.
Plaintiff seeks damages for lost profits resulting from defendant's alleged breach of the parties' "Product Distribution Agreement." The agreement contains a limitation of liability clause that provides, in pertinent part, "Except for indemnification obligations under this agreement, no party shall be liable to the other party for indirect, incidental, special or consequential damages arising out of performance under this agreement, including without limitation, loss of ... profits" (all caps deleted). However, plaintiff argues that the damages it seeks are recoverable because they are direct, or general, as opposed to consequential (see Biotronik A.G. v Conor Medsystems Ireland, Ltd. , 22 N.Y.3d 799, 806, 988 N.Y.S.2d 527, 11 N.E.3d 676 [2014] ). We reject this argument. Whether damages for lost profits are considered general or consequential turns on "whether the lost profits flowed directly from the contract itself or were, instead, the result of a separate agreement with a nonparty" ( id. at 808, 988 N.Y.S.2d 527, 11 N.E.3d 676 ). Plainly, recovery of the damages plaintiff seeks is barred by the parties' agreement. Plaintiff has not provided a persuasive explanation for why the parties included the "lost profits" language in the limitation of liability clause if they did not intend to preclude the recovery of lost profits.
Contrary to plaintiff's contention, the indemnification provision mentioned in the limitation of liability clause requires the parties to indemnify one another against claims by third parties arising from their losses.
We have considered plaintiff's remaining contentions and find them unavailing.