Shook, Hardy & Bacon Tort Associates Aaron Kirkland and Jason Scott have co-authored an article published on March 17, 2014, as part of Law360’s “Expert Analysis” series. Titled “Enforcing Exculpatory Provisions Against Meritless Claims,” the article discusses efforts plaintiffs have undertaken to turn ordinary breach-of-contract disputes into gross negligence, fraud or consumer fraud claims to avoid exculpatory provisions that many states refuse to enforce “if the party seeking to enforce one committed gross negligence” or otherwise breached a common law duty. Noting that courts have often seen through these efforts, the authors suggest that defendants carefully scrutinize complaints filed against them with an eye toward seeking early dismissal of contrived claims:
Plaintiffs go to great lengths at the pleading stage to hold defendants to their end of the contractual bargain while simultaneously attempting to avoid their own. To defeat these attempts, carefully read each of the allegations to determine what the plaintiffs contend the defendants did wrong. If the alleged wrongful conduct boils down to the defendant merely breaching a contractual obligation, the sole adequately-pleaded claim is breach of contract. If that’s the case, then plaintiffs are probably adding claims to enlarge their recoverable damages—such as treble damages under a consumer-fraud statute or punitive damages in a gross-negligence or fraud claim—or attempting to void an exculpatory provision.