DALLAS (CN) - A jeweler that endured a million-dollar burglary cannot sue ADT Security Services for negligence, a Texas appeals court ruled.
In a 2009 complaint, Van Peterson Fine Jewelers said that an unidentified man wearing an ADT uniform and driving an ADT van sold it a cellular backup device for its alarm system in 2007.
But instead of installing the device, the man allegedly disabled the alarm.
Soon after its ADT backup system was destroyed, the store lost $1 million worth of jewelry in a burglary.
Van Perterson asked the court for damages for breach of contract, negligence, gross negligence, negligent misrepresentation, civil conspiracy, fraud, and violations of the Texas Deceptive Trade Practices Act.
ADT had denied, however, that the man was its employee, and it denied selling the cellular backup device.
The parties' contract includes a limitation-of-liability provision that defeats several of Van Peterson's claims, ADT said.
A Dallas judge subsequently ordered Van Peterson take nothing on its claims, then granted its motion for a new trial to reconsider ADT's motions for summary judgment that it had partly granted earlier. The court then denied both of ADT's motions for summary judgment.
On Tuesday, a three-judge panel with the Court of Appeals for the Fifth District of Texas said ADT should have received summary judgment as to negligence, gross negligence, breach of contract, and negligent misrepresentation.
It affirmed and remanded the plaintiff's remaining claims for further proceedings.
The limitation-of-liability provision extinguishes several of the plaintiff's claims, according to the ruling.
"The liability waiver in ADT and Van Peterson's contract provides Van Peterson will look only to its insurer to recover for injuries or damages in the event of loss, including losses attributable to ADT's performance or nonperformance of its obligations under the contract or from negligence," Justice Jim Moseley wrote for the panel. "Because Van Peterson contractually agreed to seek recover from its insurer, and only its insurer, in the event of a loss due to breach of contract or negligence, and because Van Peterson now seeks to recover those damages from ADT, the trial court erred by denying ADT's traditional motion for summary judgment on Van Peterson's claims for negligence, gross negligence, breach of contract, and negligent misrepresentation."
ADT also claims that Van Peterson's insurer cannot pursue a claim under DTPA because it is not a "consumer," but the panel declined to rule on this allegation.
"Van Peterson's insurer may be involved in this litigation, but is not a partv to this litigation," the eight-page opinion states. "Only Van Peterson sued ADT for damages. The insurer did not join ADT as a plaintiff and the insurer has not been sued as a third party. Therefore, any opinion from this Court regarding whether the insurer could pursue a claim under the DTPA would be advisory."
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