In July 1997, the trial court granted Timberline's motion for summary judgment, ruling that the limitations on consequential damages in the licensing agreement barred Mortenson's recovery even though the contractor claimed that it never saw them. The state's Court of Appeals affirmed. The court also rejected Mortenson's argument that the limitations were unconscionable because of Timberline's failure to inform the firm of the defect in the software. Powell says that the most unusual aspect about the case was that Timberline knew about the defect. The program was supposed to analyze the subbids so that there was full coverage of the work and then pick the lowest price.
People have to be careful.
The software industry is very organized and aggressive. According to Peltz, who was one of two main programmers on the DOS-based product, the malfunction was caused by the contractor's operating system and personnel. That issue was not litigated because it was not germane to the court's decision on summary judgment, he says. According to Peltz, the software was designed with a failsafe automatic recalculation feature that was prominently displayed on the software and manuals. The operator need only hit the F-6 key at the end of the program.