Kelly

MEMORANDUM **

In this diversity action, Heron Ridge 1 appeals from the grant of partial summary judgment under Federal Rule of Civil Procedure 54(b) in favor of AGRA 2 on Heron Ridge’s gross negligence and breach of implied warranty of design claims. Heron Ridge also pursues an interlocutory appeal under 28 U.S.C. § 1292 (b) of the district court’s partial summary judgment in favor of AGRA on the issues relating to the Limitations of Professional Liability clause *697 contained in the contract between the parties. Because the parties are familiar with the facts of this case, we do not recite them here.

I

Heron Ridge contends that the Limitations of Professional Liability clause was not a part of the agreement between the parties because Stanley J. Rumbaugh allegedly rejected the clause in a 1990 telephone conversation with Thomas Be-key. Heron Ridge maintains that Mr. Be-key accepted Heron Ridge’s counteroffer by stating “let’s go ahead and see how it goes.” We agree with the district court that the Limitations of Professional Liability clause is a part of the agreement between the parties.

The evidence, viewed in the light most favorable to Heron Ridge, raises a disputed…