American Freight System, Inc. v. Electrolert, Inc. (In re American Freight System, Inc.)

187 B.R. 692, 1995 U.S. Dist. LEXIS 14570
CourtUnited States District Court for the District of Arkansas
DecidedSeptember 1, 1995
DocketBankruptcy No. 88-41050-11; No. 94-4253-RDR
StatusPublished

This text of 187 B.R. 692 (American Freight System, Inc. v. Electrolert, Inc. (In re American Freight System, Inc.)) is published on Counsel Stack Legal Research, covering United States District Court for the District of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Freight System, Inc. v. Electrolert, Inc. (In re American Freight System, Inc.), 187 B.R. 692, 1995 U.S. Dist. LEXIS 14570 (ard 1995).

Opinion

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a bankruptcy appeal. This appeal arises from an adversary proceeding filed by debtor, American Freight System, Inc. against the appellant in this matter, Electro-lert, Inc., to recover freight charges allegedly owed to debtor. Electrolert asserts that the freight charges were the subject of a release agreed to by debtor and Electrolert to settle litigation filed by Electrolert against debtor before the underlying bankruptcy was filed. The bankruptcy judge denied Electrolert’s motion for summary judgment finding that the language of the settlement agreement was ambiguous. After conducting a trial in which only one witness (the chief executive officer of Electrolert) was presented, the bankruptcy judge held that Electrolert had not satisfied its burden of proving the settlement covered the disputed freight charges and, therefore, held in favor of debtor. Elec-trolert appeals the bankruptcy judge’s rul[694]*694ings on its summary judgment motion and at trial.

The following facts appear uncontroverted. Electrolert sued debtor after a shipment of Electrolert products (“fuzzbusters”) was lost. Electrolert sought $83,616.00 in damages for the lost shipment. Before filing the litigation, Electrolert continued to hire debtor to ship its goods. However, Electrolert did not pay debtor for several of the shipments. The CEO for Electrolert, Mr. Dale Smith, testified that payment for the shipments was intentionally withheld pending the resolution of the dispute over the lost shipment. The litigation filed by Electrolert was settled.

The settlement document, titled “MUTUAL RELEASE”, reads as follows:

This Agreement made and concluded as of the date of the last execution hereof by the parties, by and between Electrolert, Inc., American Freight Systems, Inc., Steve D. Thompson Trucking, Inc., and Service Merchandise Company, Inc., and Wholesale Supply Company, Inc., by and through their respective corporate agent,
WITNESSETH:
WHEREAS, a dispute has arisen between the parties hereto arising out of the shipment of goods from Electrolert, Inc. to Wholesale Supply Company, Inc., and Service Merchandise, Inc., by American Freight Systems, Inc., and Steve D. Thompson Trucking, Inc.; and
WHEREAS, suit was originally instituted by Electrolert, against American Freight Systems, Inc. and Steve D. Thompson Trucking, Inc., which action was subsequently removed to the United States District Court for the Southern District of Ohio, Western Division, in Case No. C3-86-539; and
WHEREAS, the parties in the action referred to herein asserted various cross-claims and third party claims for indemnity and contribution, and
WHEREAS, the parties hereto desire to resolve between themselves all claims asserted or that could have been asserted in said action;
NOW, THEREFORE, for and in consideration of the sum of Seventeen Thousand Five Hundred Dollars ($17,500.00), paid to Electrolert, Inc., Electrolert, Inc., American Freight Systems, Inc., Steve D. Thompson Trucking, Inc., Service Merchandise Company, Inc. and Wholesale Supply Company, Inc., do hereby agree to dismiss with prejudice Case Number C3-86-539 now pending in the United States District Court for the Southern District of Ohio, Western Division, said action being styled Electrolert, Inc. v. American Freight Systems, Inc., et al., and each party hereto does hereby waive any and all other claims against one another arising out of the shipment of goods that was the subject of said lawsuit and each party hereto agrees to and does hereby release each of the other-parties from any and all actions, causes of action, demands or claims whatsoever, whether said claim was asserted or whether said claim could have been asserted in the action described herein and arising out of the shipment of goods that formed the basis of said action.
This mutual release, upon execution of each of the parties hereto through then-respective agent, constitutes a complete release of any and all claims between the parties, including claims for indemnity and/or contribution and represents a complete and full accord and satisfaction of any and all claims either asserted or that could have been asserted in the action referred to herein by any party against any of the other parties hereto.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year opposite the signature of each party’s respective agent.

Electrolert emphasizes the language in the last recital and in the last operative paragraph which indicates that the parties intended to and did waive and release all claims asserted or that could have been asserted in the action. It is undisputed that claims for the unpaid shipments could have been asserted as counterclaims in the lost shipment litigation.

Debtor emphasizes the language in the first operative paragraph which states that the parties waive any and all other claims arising out of the shipment of goods that was [695]*695the subject of the lawsuit, and any claims asserted or that could have been asserted “in the action described herein and arising out of the shipment of goods that formed the basis of said action.”

In denying Electrolert’s motion for summary judgment, the bankruptcy judge stated that Eleetrolert’s construction of the settlement agreement rendered the language in the first operative paragraph superfluous. He stated that the debtor’s construction of the settlement agreement, limiting its coverage to claims arising out of the lost shipment, was more reasonable. However, debtor did not ask for and was not granted judgment. Indeed, in the memorandum of decision entered after the trial, the bankruptcy judge considered the release to be ambiguous and said that both sides’ interpretations were reasonable.

In summarizing the evidence at trial, the bankruptcy judge noted that no one who directly participated in the settlement discussions testified at trial. Mr. Smith testified that he had informed a sales representative of debtor that Electrolert was withholding payment on shipments pending the settlement on the lost shipment. He also testified that the actual cost of Electrolert’s lost goods was $25,000.00 and that the settlement payment ($17,500.00) plus the amount of withheld freight charges approximated that figure. He stated that the settlement was intended to cover the lost shipment and the shipments upon which payment was withheld.

The bankruptcy judge found that the release was ambiguous, but that the testimony of Mr. Smith provided little evidence of Elee-trolert’s position during settlement negotiations because he did not directly participate in the discussions. The bankruptcy court’s order after trial stated: “Only those who were present for the discussion could have told the Court whether the parties discussed these bills and intended to settle them as well as all claims arising from the same transaction or occurrence as those actually pressed in the suit.” The bankruptcy judge acknowledged that debtor sent no overdue bills for the shipments for which Electrolert withheld payment. But, he said this could have been an oversight or motivated by some other reason than the settlement. The judge held for debtor and summarized his rationale as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
187 B.R. 692, 1995 U.S. Dist. LEXIS 14570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-freight-system-inc-v-electrolert-inc-in-re-american-freight-ard-1995.