Robichaux, 643 S.W.2d 392, 393-394 (Tex. 1982); Pyle v. Eastern Seed Co., 198 S.W.2d 562, 564 (Tex. 1946) (concluding that because parties are free to make whatever contract they desire, and parties agreed to nonwarranty clause, each party was bound thereby). Thus, where a contract specifically includes a nonwarranty disclaimer clause, a common-law contract cause of action for breach of express warranties has been waived. Id. See also McCrea v. Cubilla Condominium Corp. N.V., 685 S.W.2d 755, 758 (Tex. Ct. App. 1985) (waiver not permitted where such disclaimer is against public policy or some other statutory provision).
In this case, DuPont did agree in schedule "B" to an express warranty that its products would meet its own "standard specifications for the products or such other specifications as may have been expressly agreed to herein." See Complaint, Exhibit A, Schedule "B", at P 1. That same provision waived all other express or implied warranties, except where provided.
Tersco, however, has not alleged in its complaint that the products supplied by Dupont pursuant to the Agreement failed to satisfy DuPont's own specifications or any other specifications expressly agreed upon. It is unclear, therefore, what the express warranties are to which Tersco refers in count three of the complaint and whether such warranties are ineffective pursuant to the warranty disclaimer of schedule "B". Thus, count three of the complaint will be dismissed without prejudice insofar as it asserts a claim for breach of express warranties.
Finally, Tersco alleges that DuPont breached an implied covenant of good faith and fair dealing.
Texas law, however, does not recognize such an implied covenant unless a special relationship exists between the parties governed or created by a contract. See Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987); Security Bank v. Dalton, 803 S.W.2d 443, 447-48 (Tex. Ct. App. 1991) (duty of good faith is imposed in special relationships marked by shared trust or an imbalance in bargaining power, such as exists between an insured and insurer). As the Agreement in this case cannot be characterized as a "special" contract, Tersco cannot recover for a claim for breach of an implied covenant of good faith and fair dealing. See McClendon v. Ingersoll-Rand Co., 757 S.W.2d 816, 819-20 (Tex. Ct. App. 1988) (refusing to extend the "special" distinction to other contract relationships), rev'd on other grounds, 779 S.W.2d 69 (Tex. 1989). Thus, count three of the complaint will be dismissed with prejudice for failure to state a claim upon which relief can be granted insofar as it asserts a claim for a breach of an implied covenant of good faith and fair dealing. Moreover, insofar as count three alleges a claim identical to that in count one, see Complaint, at P 18(c), it will also be dismissed with prejudice.
An appropriate Order follows.
AND NOW, TO WIT, this 6th day of November, 1992, upon consideration of defendant E.I. DuPont de Nemours and Company's motion to dismiss, and the response and reply filed thereto, IT IS ORDERED that said motion is granted in part and denied in part. IT IS FURTHER ORDERED that:
1. Count one of the complaint is dismissed with prejudice only insofar as it asserts a claim for breach of an implied covenant of good faith and fair dealing and seeks punitive damages. All other aspects of count one shall proceed as stated in the complaint.
2. Count two of the complaint is dismissed without prejudice.
3. Count three of the complaint is dismissed without prejudice insofar as it asserts a claim for breach of an express warranty.
4. Count three of the complaint is dismissed with prejudice insofar as it asserts a claim for breach of an implied covenant of good faith and fair dealing.
LOUIS C. BECHTLE, CH. J.