United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

 No. 97-1135

_____________ 

 

Lynn Brunsman; Karen Brunsman, *

*

Plaintiffs - Appellants, *

*

v. *

*

DeKalb Swine Breeders, Inc., * 

*

Defendant - Appellee. *

_____________

Appeals from the United States

 No. 97-1136 District Court for the

_____________ Northern District of Iowa.

Ronald J. Nelson; Brenda K. Nelson, *

*

Plaintiffs - Appellants, *

*

v. *

*

DeKalb Swine Breeders, Inc., *

*

Defendant - Appellee. *
-2-

_____________

 No. 97-1253

_____________

Lynn Brunsman; Karen Brunsman, *

*

Plaintiffs - Appellees, *

*

v. *

*

DeKalb Swine Breeders, Inc., *

*

Defendant - Appellant. *

_____________

Submitted: December 10, 1997

 Filed: March 6, 1998

_____________

Before McMILLIAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

Lynn and Karen Brunsman and Ronald and Brenda Nelson appeal the district

court's entry of summary judgment against them on their breach of warranty claims

against DeKalb Swine Breeders, Inc. Both couples are hog farmers who bought boars

from DeKalb to use for breeding. Their contracts disclaimed any warranty of

merchantability, health, or fitness for a particular purpose and limited the buyer's

remedy to replacement of the boars. The boars allegedly transmitted a virus to the

Brunsmans' and Nelsons' sows, causing the sows to give birth to piglets that suffered

from "Shaky Pig Syndrome." The Nelsons and Brunsmans filed these suits for breach

of warranty. They contend that the limitations on warranty and remedy in the contracts
The Honorable Michael J. Melloy, Chief Judge, United States District Court for 1

the Northern District of Iowa.

-3-

are unconscionable. The district court held that the limitations were not

1

unconscionable and granted DeKalb summary judgment. Nelson v. DeKalb Swine

Breeders, Inc., 952 F. Supp. 622 (N.D. Iowa 1996) and Brunsman v. DeKalb Swine

Breeders, Inc., 952 F. Supp 628 (N.D. Iowa 1996). The Brunsmans and Nelsons

appeal, arguing that the limitations were unconscionable, and DeKalb cross-appeals,

arguing that the court should have entered judgment for it on the ground that the buyers

did not file suit within the limitations period prescribed in the contract. We affirm.

We review de novo the district court's grant of summary judgment. Summary

judgment is proper only if the record, viewed in the light most favorable to the nonmovant, shows that there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). 

The contracts for sale of the boars stated in boldface and capital letters:

LIMITATION ON WARRANTIES AND REMEDIES

A. WARRANTIES AND DISCLAIMERS OF

WARRANTIES. DEKALB WARRANTS ONLY THAT THE

SWINE ARE AS DESCRIBED IN THIS CONTRACT, AND

DEKALB ALSO PROVIDES THE LIMITED

WARRANTIES REGARDING FERTILITY AS SET FORTH

MORE FULLY IN [the paragraph on the fertility warranty]. 

It is undisputed that these warranties do not address the defect that actually existed in

the boars-- infection with a contagious virus. That defect was addressed in the same

paragraph, in boldface, capital letters, and red print:
-4-

DEKALB GIVES NO OTHER WARRANTIES, EXPRESS OR

IMPLIED, REGARDING THE SWINE OR THEIR PROGENY.

DEKALB GIVES NO WARRANTIES OF MERCHANTABILITY,

HEALTH OR FITNESS FOR A PARTICULAR PURPOSE.

The contracts also stated in red print that the buyer had read the "Pathogens and

Disease-- Statement and Limited Replacement Policy" on the back of the contract form.

The "Pathogens and Disease" statement listed pathogens that had been present in

DeKalb's swine herds. It specifically listed "congenital tremor virus," the virus that

causes Shaky Pig Syndrome.

Additionally, the contracts stated:

 LIMITATION ON DAMAGES. UNDER NO

CIRCUMSTANCES SHALL DEKALB BE LIABLE TO BUYER

FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR

CLAIMS OF ANY KIND, WHETHER ARISING IN CONTRACT,

TORT, NEGLIGENCE, STRICT PRODUCTS LIABILITY,

STATUTORY OR REGULATORY VIOLATION OR UNDER

ANY OTHER LEGAL THEORY.

DeKalb agreed in the contract to replace swine infected with any of five specific

diseases, which did not include Shaky Pig Syndrome.

The Brunsmans and the Nelsons contend that the limitation on the warranty

provided by the DeKalb contract is unconscionable under Iowa Code Section 554.2302

(1995) (Uniform Commercial Code section 2-302(1)), because the warranty provided

is actually illusory and has no value.
-5-

Under Iowa law, a court considering a claim of unconscionability should

consider the factors of assent, unfair surprise, notice, disparity of bargaining power, and

substantive unfairness. Gentile v. Allied Energy Prods., Inc., 479 N.W.2d 607, 609

(Iowa Ct. App. 1991) (citing C&J Fertilizer v. Allied Mut. Ins. Co., 227 N.W. 2d 169,

181 (Iowa 1975)). Whether a contractual term is unconscionable is a question of law.

See Iowa Code § 554.2302(1) and comment 3.

The question is not a difficult one in this case, since the Brunsmans' and Nelsons'

briefs concede that they agreed to the terms and that they were "free to go elsewhere

for breeding stock." Thus, the factors of assent and disparity of bargaining power do

not help the buyers. There can be no plausible claim of unfair surprise or lack of

notice, since the limitation of warranty was in plain language, intelligible to a layman,

and was printed in the most emphatic typeface on the front of the contract. Moreover,

the front of the contract alerted the buyer to a statement on pathogens expressly stating

that DeKalb's herd had been exposed to the virus that the boars were later found to

carry. As for substantive unfairness, Iowa Code section 554.2316(2) (1995) permits

parties to negate implied warranties if the exclusion meets certain standards, which the

contracts in these cases met. The Brunsmans and the Nelsons have made no showing

sufficient to establish that the limitations of warranties in their contracts were

unconscionable as a matter of law. See Schweizer v. DeKalb Swine Breeders, Inc.,

954 F. Supp. 1495, 1506 (D. Kan. 1997); cf. Rayle Tech., Inc. v. DeKalb Swine

Breeders, Inc., 897 F. Supp. 1472, 1475 (S.D.Ga. 1995), aff'd, 133 F.3d 1405 (11th

Cir. 1998); Urschel Farms, Inc. v. DeKalb Swine Breeders, Inc., 858 F. Supp. 831,

833-37 (N.D. Ind. 1994).

Having concluded that there is no basis for setting aside the limitation of

warranty, we need not consider the remaining arguments in the appeal or cross appeal.

We affirm the judgment of the district court.
-6-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.