STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. BUSINESS AND CONSUMER COURT LOCATION: PORTLAND DOCKET NO. BCD-CV-16-15 , /
DUDLEY TRUCKING CO., ) ) Plaintiffs, ) ) V. ) COMBINED ORDER ON ) MOTIONS IN LIMINE BISSON TRANSPORTATION, INC. ) ) Defendant. )
The Court heard oral argument on Plaintiff's five motions in limine and Defendant's four
motions in limine on February 6, 2018 in Portland, Maine. Plaintiff Dudley Trucking Co.
("Dudley") was represented by Jeffrey Bennett, Esq. and Melissa Donahue, Esq. Stephen Seagal,
Esq. appeared for Defendant Bisson Transportation, Inc. ("Bisson"). The Court imposed an
expedited deadline to respond to the motions and Dudley and Bisson filed written oppositions to
all motions with the Court on February 5, 2018. The Court ruled on the motions from the bench
during the hearing and now issues this written Order consistent with those rulings.
STANDARD OF REVIEW
The grant of a motion in limine is reviewed for an abuse of discretion. Fitzgerald v. City
ofBangor, 1999 ME 50,110, 726 A.2d 1253.
DISCUSSION
I. PLAINTIFF'S MOTIONS IN LIMINE
A. Plaintiff's First Motion in Limine
On July 9, 2014, the parties executed a "Transportation Agreement" with an attached
"Exhibit" containing certain origins, destinations, miles, and dollar amounts. (Amended Joint Final
1 Pretrial Statement, Stipulated Fact A.) Dudley's first motion in limine sought to preclude Bisson
from referring to the exhibit attached to the Transportation Agreement as a "flat rate sheet" on the
grounds that this appellation would confuse or mislead the jury. See Me. R. Evid. 403.
The Court denies Plaintiffs First Motion in Limine. The Court rules that Dudley's
concerns with Bisson's label for the contract exhibit can be properly dealt with in cross-
examination, or in argument.
A. Plaintiffs Second Motion in Limine and Defendant's Motion in Limine to Exclude Any Evidence That John Katzianer Stated to Dudley Trucking That Bisson Would Pay Dudley Trucking Eighty Percent of the "Gross Line Haul" or "Line Haul"
The Court heard argument on these two motions in tandem, and discusses both here,
because hoth motions deal with certain out-of-court statements of Mr. Jolm Katzianer, a Bisson
employee and expected witness at trial. Dudley asks the Court to make a pretrial ruling that Mr.
Katzianer had the authority to bind and act on Bisson's behalf; Bisson asks the Court for an order
prohibiting Dudley from introducing any evidence at trial that Mr. Katzianer stated to Dudley that
Bisson would pay Dudley eighty percent of the gross line haul in the grounds that it is hearsay.
These motions are two sides of the same coin, and both are premature. Whether Mr.
Katzianer was an agent of Bisson and the scope of any agency relationship is a question of fact for
the jury to decide. See Cty. Forest Prods. v. Green Mt. Agency, Inc., 2000 ME 161, ,r 21, 758 A.2d
59. Whether Mr. Katzianer's statements to Dudley are hearsay turns, in part, on whether those
statements were made within the scope of Mr. Katzianer' s agency relationship with Bisson. See
M.R. Evid. 801(d)(2)(D). Trial evidence will be required to resolve these issues.
The Court thus denies Plaintiff's Second Motion in Limine and Defendant's Motion in
Limine to Exclude Any Evidence That Jolm Katzianer Stated to Dudley Trucking Th~t Bisson
Would Pay Dudley Trucking Eighty Percent of the "Gross Line Haul" or "Line Haul."
2 B. Plaintiffs Third Motion in Limine
Plaintiffs Third Motion in Limine asks the Court to exclude evidence and argument that
the Transportation Agreement is the same form Bisson uses with all of its independent contractors
on the grounds that this evidence is irrelevant. See M.R. Evid. 401. See also M.R. Evid. 402-403.
Bisson responds that the evidence is relevant to resolving the ambiguity in the Transportation
Agreement and as evidence of Bisson's routine practice. See M.R. Evid. 406(a).
The Court agrees with Dudley that the focus of this trial should be oil Bisson's contractual
relationship with Dudley, and not any of its other independent contractors. Allowing Bisson to
introduce evidence of its agreements with other independent contractors would expand the trial
beyond the relevant issue; i.e., what these two parties agreed to. The Court therefore grants
Plaintiffs Third Motion in Limine.
C. Plaintiffs Fourth Motion in Limine
Plaintiffs Fourth Motion in Limine likewise asks the Court to exclude evidence of Bisson' s
agreements with other independent contractors; specifically, its agreements with interstate (as
compared with intrastate) haulers. Dudley again cites M.R. Evid. 401-403 as the basis for its
motion; Bisson again argues that the evidence is relevant to resolving the ambiguity in the
Transportation Agreement and as evidence of Bisson's routine practice. See M.R. Evid. 406(a).
The ambiguity in this contract essentially boils dbwn to two (potentially inconsistent)
provisions regarding Dudley's remuneration for specific hauls or runs. Bisson argues that Dudley's
motion would leave it unable to explain why this potential inconsistency is in a contract that Bisson
itself drafted: specifically, that intrastate and interstate independent contractors are paid differently
by Bisson.
3 The Court grants Plaintiffs Fourth Motion in Limine in part and denies the motion in
part. As in Part I.B. of this Order, supra, the Court rules that Bisson may not introduce evidence
of its general practices or its specific arrangements with interstate or other intrastate independent
contractors. M.R. Evid. 401-402. However, Bisson may suggest that interstate and intrastate
independent contractors are paid differently as an explanation for the potential inconsistency in the
Transportation Agreement. This evidence can be tested through cross-examination and its weight
can be argued to the jury.
D. Plaintiffs Fifth Motion in Limine
Plaintiffs Fifth Motion in Limine requests that this Court preclude Bisson from presenting
three witnesses. at trial who were listed on the Amended Joint Final Pretrial Statement filed with
the Court on January 4, 2018. The thrust of Dudley's motion is that Bisson's addition of these
three witnesses to the Amended Joint Final Pretrial Statement may be a discovery violation, and
in any event prejudices Dudley because it has not had an opportunity to depose these witnesses.
See M.R. Evid. 26 (a)-(b); 135 (a)-(b). Bisson responds that its naming of these three witnesses is
not a violation because it is timely under the Court's scheduling order pertaining to the deadline
for the filing of the joint pretrial statement. Bisson further suggests that Dudley has been on notice
that these three witnesses were privy to facts germane to this litigation because their names came
up in deposition.
At oral argument, the Court inquired of Bisson as to the relevance of these witnesses'
expected testimony. Bisson indicated that these witnesses will testify as to the circumstances
surrounding the early termination of Dudley's contract without notice, and that such evidence will
be relevant to determining whether Dudley's breached the Transportation Agreement thereby
excusing Bisson's termination of the contract without notice.
4 The Court denies Plaintiffs Fifth Motion in Limine because Bisson' s listing of the witnesses
in the Amended Joint Final Pretrial Statement was timely under the Court's scheduling order.
However, the Court orders Bisson that it may not address these witnesses or their expected
testimony in its opening statement. Dudley will have an opportunity to voir dire these witnesses
outside the presence of the jury in order for the Court to properly determine whether their testimony
is admissible or should be excluded as unduly prejudicial or improper character evidence. See M.R.
Evid. 403, 404.
II. DEFENDANT'S MOTIONS IN LIMINE
A. Defendant's Motion in Limine to Exclude Any Evidence That John Katzianer Stated to Dudley Trucking That Bisson Would Pay Dudley Trucking Eighty Percent of the "Gross Line Haul" or "Line Haul"
See Part I.B. of this Order, supra.
B. Defendant's Motion in Limine to Exclude Evidence or Argument in upport of Claim for Punitive Damages
Although there was no formal motion to withdraw this motion, the parties tended to agree
at oral argument that Dudley should be afforded the opportunity to present its evidence relating to
whether Bisson is liable for an award of punitive damages. Bisson nonetheless maintains that based
on what has been alleged and what has been unearthed in discovery Dudley will be unable to
satisfy the heightened burden a plaintiff must prove in order to be entitled to an award of punitive
damages. See Tuttle v. Raymond, 494 A.2d 1353, 1361-62 (Me. 1985).
The Court thus defers judgment on this motion pending the close of evidence in this case.
At that time, Bisson may renew its motion and the Court will determine as a matter oflaw whether
Dudley has met its burden to prove by clear and convincing evidence that Bisson acted with malice
before allowing Dudley to argue punitive damages to the jury. St. Francis De Sales Fed. Credit
Union v. Sun Ins. Co. ofN Y, 2002 ME 127, ,r 17,818 A.2d 995 (citing Tuttle, 494 A.2d at 1354).
5 The Court orders Dudley to refrain from addressing the issue of punitive damages in its opening
statement or at any other point in the trial pending final decision of this motion.
C. Defendant's Motion in Limine Regarding "Gross Line Haul" and Damages
Bisson' s motion in limine regarding "gross line haul" and damages asks this Court for an
order (1) precluding Dudley from stating in its opening or arguing at trial that $258.00 constituted
the "gross line haul;" (2) holding Dudley to its proof with respect to its alleged damages based on
each haul performed; and (3) holding Dudley to its proof with respect to its alleged lost profits as
a result of termination and requiring Dudley to present credible evidence of its alleged net lost
profits. As to (1 ), Bisson argues that this number is speculative. The remaining two requests are
based on Bisson's concern that Dudley will attempt to inflate its damages in its opening statement
to the jmy.
At oral argument, Dudley claimed that it has a good faith basis for its determination that
$258.00 represents the "gross line haul" for the run in question, and knows it to be accurate to a
reasonable certainty based on an insurance claim referenced in a Bisson email. However, Dudley
agreed to not reference any amounts certain it would be requesting in an award for damages in its
openmg.
The Court grants Defendant's Motion in Limine Regarding "Gross Line Haul" and
Damages in part and denies the motion in part. Dudley may not reference any specific amounts
it will be requesting in damages or the value of the "gross line haul" in its opening statement. At
the close of evidence, Bisson may renew its motion on the grounds that Dudley has failed to meet
its burden of proof on the issue of damages as to the compensation and termination provisions of
the Termination Agreement. The Court will then determine what Dudley will be permitted to argue
to the jury regarding its damages, which will be limited to its net losses.
6 D. Defendant' s Motion in Limine to Require Plaintiff to Produce Certain Documents or Things to Defendant Before Trial That It Intends To Use at Trial as Impeachment and/or Rebuttal Evidence
Bisson's final motion in limine asks the Court for an order requiring Dudley to produce
certain documents or things to Bisson before trial that it intends to use at trial as impeachment or
rebuttal evidence. This "document or thing" is referenced in the Amended Joint Final Pretrial
Statement filed with the Court on January 4, 2018. Dudley claims that they are under no obligation
to share the "item" because Bisson never requested it during discovery, it will not use the item in
its case in chief, and that it will be used for impeachment only if appropriate.
At oral argument, Dudley suggested that in the event it wishes to use the "item" before the
jury, the Court could hold a voir dire hearing outside the presence of the jury for the Court to
determine whether the item really is impeachment evidence or instead should have been identified
as part of the case in chief. Bisson agreed to this approach but did not formally withdraw its motion.
The Court thus defers judgment on this motion. The Court declines to order Dudley to
share this "item" with Bisson prior to trial, but rules that Bisson is entitled to a voir dire hearing
to determine whether the item may properly be used for impeachment prior to Dudley's use of the
item in the presence of the jury.
CONCLUSION
Based on the foregoing it is hereby ORDERED:
1. Plaintiffs First Motion in Limine is DENIED.
2. Plaintiffs Second Motion in Limine is DENIED.
3. Plaintiffs Third Motion in Limine is GRANTED.
4. Plaintiffs Fourth Motion in Limine is GRANTED IN PART AND DENIED IN PART. Defendant Bisson may not introduce evidence of its general practices or its specific arrangements with interstate or other intrastate independent contractors. Defendant Bisson
7 may suggest that interstate and intrastate independent contractors are paid differently as an explanation for the potential inconsistency in the Transportation Agreement.
5. Plaintiffs Fifth Motion in Limine is DENIED.
6. Defendant's Motion in Limine to Exclude Any Evidence That John Katzianer Stated to Dudley Trucking That Bisson Would Pay Dudley Trucking Eighty Percent of the "Gross Line Haul" or "Line Haul" is DENIED.
7. The Court defers judgment on Defendant's Motion in Li mine to Exclude Evidence or Argument in Support of Claim for Punitive Damages. The Court ORDERS Dudley to refrain from addressing the issue of punitive damages in its opening statement or at any other point in the trial pending final decision of this motion.
8. Defendant's Motion in Limine Regarding "Gross Line Haul" and Damages is GRANTED IN PART AND DENIED IN PART. Dudley may not reference any specific amounts it will be requesting in damages or the value of the "gross line haul" in its opening statement. At the close of evidence, Bisson may renew its motion and the Court will then determine what Dudley will be permitted to argue to the jury regarding its damages, which will be limited to its net losses.
9. The Court defers judgment on Defendant's Motion in Limine to Require Plaintiff to Produce Certain Documents or Things to Defendant Before Trial That It Intends To Use at Trial as Impeachment and/or Rebuttal Evidence.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference pursuant to M.R. Civ. P. 79(a). ~ ..........._
Dated: February 6, 2018 ~ Richard Mulhern Judge, Business & Consumer Court
8 STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, SS. LOCATION: PORTLAND Docket No. BCD-CV-16-15 /
DUDLEY TRUCKING CO., ) ) Plaintiff, ) ) V. ) ORDER ON PARTIES' MOTIONS ) FOR SUMMARY JUDGMENT BISSON TRANSPORTATION, INC. ) ) Defendant, ) )
Plaintiff Dudley Trucking Co. and Defendant Bisson Transportation, Inc. have both
moved fo r summary judgment in their respective favor on Plaintiffs breach of contract claim.
Defendant has also moved swnmary judgment on Plaintiff s remaining claims. For the following
reasons, Plaintiffs motion for swnmary judgment is denied. Defendant's motion for summary
judgment is granted in part and denied in part.
BACKGROUND Defendant is a Maine-based trucking company operating throughout the Eastern United
States. (Def. Supp'g S.M.F. 1 1; Pl. Opp. S.M.F. 11.) Plamtiff is also trucking company owned
by Jamie D udley (Id 12.)
On July 9, 2014, Defendant agreed to engage Plaintiff as an independent contractor to
provide intrastate hauling services for various shippers. (Id 1 3.) The parties executed a written
"Transportation Agreement" drafted by Defendant. (Def. Supp'g S.M.F. ~ 5; Pl. Opp. S.M.F. 1
5; PL Supp'g S.M.F. ~ii 1-2; Def. Opp. S.M.F. 11 1-2; Joint Final Pretrial Statement, Stipulated
Facts 1 A; Cooper Aff. Ex. 1.) The Transportation Agreement was signed by James Cooper,
Defendant's General Manager, and Mr. Dudley. (Def. Supp'g S.M.F. 16; Pl. Opp. S.M.F. ~ 6; , Cooper Aff. Ex. l.) Pursuant to the Transportation Agreement, Defendant was to act as an
authorized broker between Plaintiff and shippers. (Pl. Supp'g S.M.F. ,r 4; Def. Opp. S.M.F. 14.)
That same day, the parties also executed a one-page document containing certain origins
destinations, miles, and dollar ammmts (the "Exhibit"). 1 (Def. Supp'g S.M.F. ~ 5; Pl. Opp.
S.M.F. ~ 5; Pl. Supp'g .M.F. ~ 14; Def. Opp. S.M.F. 14; Joint Final Pretrial Statement,
Stipulated Facts A; Cooper Aff. Ex. 1.) The Exhibit was signed by Cooper on behalf of
Defendant and Cassey Dudley, the clerk/registered agent for Plaintiff. (Def. Supp'g S.M.F. ,r 7;
Pl. Opp. S.M.F. ,r 7; Cooper Aff. Ex. 2.) There is no dispute that the Exhibit is an integrated part
of the parties' written agreement. (Pl. Supp'g .M.F. ,r,r 6, 9; Def. Add'l S.M.F. 1 5; Pl. Reply
S.M.F. ,r 5; Def. Supp'g S.M.F. ,ri 5, 10; Pl. Opp. S.M.F. ,r,r 5, 10, Joint Final Pretrial Statement,
Stipulated Facts 1A; see Cooper Aff. Ex. 1 § lO(E) (integration clause).)
Plaintiff perfonned 2,107 hauls or runs for Defendant. 2 (Def. Add 'l S.M.F. 1 9; Def.
Supp'g S.M.F. ~ 11; Joint Final Pretrial Statement, Stipulated Facts 1 C.) One of the hauls or
runs performed by Plaintiff was from Jay, Maine to Mechanic Falls, Maine, for which Plaintiff
1 The parties dispute whether the one-page document is an "exhibit" to the contract or an "amendment." Plaintiff refers to the one-page as the "Amendment." (Pl. Supp'g S.M.F. ,r,r 6, 11, 13-14.) Defendant contends that the one-page document is not an "Amendment'' within the meaning of§ 2 of the Transportation Agreement because it is not dated. (Def. Opp. S.M.F. ,r~ 11, 13-14; Def. Opp. to PL Mot. Summ. J. 9.) Defendant asserts that one-page document is an 'exhibit" to the Agreement and refers to it as the "Compensation Term." (Def. Opp. to Pl. Mot. Summ. J. 8-9; Def. Supp'g S.M.F. ,r 5.) In their Joint Final Pretrial Statement, the parties stipulate, "On July 9 2014, the Parties executed a ' Transportation Agreement' and attached exhibit containing certain origins, destinations, miles and dollar amounts." (Joint Final Pretrial Statement, Stipulated Facts 1 A) (emphasis supplied). Thus, the parties have agreed that the one page document is an "exhibit" and not an "amendment.'' For the sake of simplicity, the court shall refer to the one-page document as the "Exhibit" to the Transportation Agreement.
2 In its statements of material facts, Plaintiff contends it actually completed 2,276 hauls or runs on behalf of Defendant. (PL Reply S.M.F. ,r 8; Pl. Opp. S.M.F. 1 11.) However, in their Joint Pretrial Statement, the parties stipulate, "Dudley Trucking perfonned two thousand one hundred seven (2,107) hauls (or runs) on behalf of Bisson." (Joint Final Pretrial Statement, Stipulated Facts ,r C.) Thus, there is no genuine dispute regarding the number of hauls or runs preformed.
2 was paid $170.00 per run or haul. (Def. Supp'g S.M.F. ,r 12; PL Opp. S.M.F. ,r 12; Pl. Supp'g
S.M.F ,r,r 12, 27; Def. Opp. S.M.F. ,r,r 12, 27.) Plaintiff later discovered that total transit cost for
the Jay to Mechanic Falls run or haul was $258.00. (Pl. Supp'g S.M.F ,r,r 20-24.) Plaintiff
contends that, based on that transit costs, it should have been paid $206.40 for the Jay to
Mechanic Falls run or haul under the Transportation Agreement. (Def. Mot. Summ. J. 2-3 &
n.4.)
Plaintiff contends that, on or about December 28, 20 15, Mr. and Mrs. Dudley requested a
meeting with Cooper to address Plaintiffs compensation. (Pl. Opp. S.M.F. ,r 22.) At the
meeting, Mr. Dudley inquired why Plaintiff was not being paid the full amount required under
the Transportation Agreement. (Id.) Plaintiff contends that Defendant terminated the
Transportation Agreement without notice, effective immediately, in response to Mr. Dudley's
question. (Id ,r,r 22-23; Pl. Supp'g S.M.F. ,r 29.)
Defendant denies Plaintiff s assertions. (Def. Opp. S.M.F. ,r 29.) Defendant contends
that Mr. Dudley had been involved in several dangerous incidents and safety violations. (Def.
Add'l. S.M.F. ,r,r 13-18; Def. Supp' g S.M.F. ,r,r 16-21.) Defendant asserts that, in late December
201 5, Cooper decided that he had "received too many complaints" and "could not take the safety
risk any longer" and informed Mr. Dudley that Defendant ''had no more work" for Plaintiff.
(Def. Supp'g S.M.F. ,r 22; Def. Opp. S.M.F. ,r 29; Def. Add' l S.M.F. ,r 19.) There is no dispute
that the Transportation Agreement was terminated in December 2015, effective immediately,
without notice. (Def. Supp'g S.M.F. ,r 23; Pl. Opp. S.M.F. ,r 23; Joint Final Pretrial Statement,
Stipulated Facts ,r D.)
On April 11, 20 16, Plaintiff filed a six-count complaint in Oxford County Superior Court
asserting claims for breach of contract (Count I), unjust enrichment (Count II), quantum meruit
3 (Count III), fraud, misrepresentation and deceit (Count IV), conversion (Count V), and for an
accounting (Count VI). Defendant filed an answer on April 20, 2016. This case was
subsequently transferred to the Business and Consumer Docket. A Joint Final Pretrial Statement
setting forth stipulated facts was filed on April 10, 2017. Both parties filed their respective
motions for summary judgment on June 2, 2017, their oppositions on June 23, 2017, and their
replies on July 5, 2017. Oral argument on both motions was held on August 10, 201 7.
Either party may move for summary judgment on all or part of a claim. M.R. Civ. P. 56
(a)~(b). Summary judgment is appropriate if, based on the parties' statements of material fact
and the cited record, there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. M.R. Civ . .P. 56(c); Dyer v. Dep 't ofTransp., 200& ME 106, 1 14,
951 A.2d 821. A fact is material if it can affect the outcome of the case. Dyer, 2008 ME 106, 1
14, 951 A.2d 821 (internal citation and quotation marks omitted). A genuine issue of material
fact exists if the fact finder must choose between competing versions of the truth. Id When
deciding a motion for summary judgment, the court reviews the evidence in the light most
favorable to the non-moving party. Id
The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact for trial. Oceanic Inn, Inc. v. Sloan's Cove, LLC, 201 6 ME 34, 1 26, 133 A.3d
1021; M.R. Civ. P. 56(c). When a defendant moves for summary judgment on a plaintiffs claim
and the motion is properly supported, the burden shifts to the plaintiff to respond with specific
facts establishing a prima facie case for each element of the claim challenged by the defendant.
Chartier v. Farm Family Life Ins. Co., 2015 ME 29, 16, 113 A.3d 234. When a plaintiff moves
for summary judgment on its claims, the plaintiff must establish each element of its claims
4 without dispute as to any material fact in the record . Cach, LLC v. Kulas, 2011 ME 70, 1 8, 21
A.3d 1015. If the plaintiffs motion is properly supported, the burden shifts to the defendant to
respond with specific facts indicating a genuine issue for trial. M.R. Civ. P. 56(c). In either
case, if the non-moving party fails to present sufficient evidence of a genuine issue of material
fact regarding an element, the moving party is entitled to a summary judgment. Watt v. UniFirst
Corp., 2009 ME 47,121, 969 A.2d 897. "Cross motions for summary judgment neither alter the
basic Rule 56 standard, nor warrant the grant of summary judgment per se." Remmes v. Mark
Travel Corp., 2015 ME 63, 1 19, 116 A.3d 466 (internal citation and quotation marks omitted).
Even if one party's version of the facts appears more credible and persuasive, any genuine issue
of material fact must be resolved by the fact finder, regardless of the likelihood of success.
Estate ofLewis v. Concord Gen. Mut. Ins. Co. , 2014 ME 34, ~ 10, 87 A.3d 732.
ANALYSIS
I. Breach of Contract
To _prevail on a breach of contract claim, the plaintiff must establish: ( 1) the parties had a
legally binding contract; (2) the defendant breached a material term of the contract; and (3)
defendant' s breach caused the plaintiff to suffer damages. Tobin v. Barter, 2014 ME 51, ~19-10,
89 A.3 d 1088. The interpretation of an unambiguous contract is a question oflaw for the court.
Town of Lisbon v. Thayer Corp., 675 A.2d 514, 516 (Me. 1996). However, if a contract is
ambiguous, then its interpretation is a question of fact. Thayer Corp., 675 A.2d at 516. The
deterrnination of whether a contract is ambiguous is a question of law for the court. Id
"Contract language is ambiguous when it is reasonably susceptible to different interpretations."
Id. (internal quotation omitted). If the contract is unambiguous, the court shall give its ten:r1S
their plain, ordinary, and generally accepted meaning. Villas by the Sea Owners Ass 'n v.
5 Garrity, 2000 ME 48, ,r 9, 748 A.2d 457. If a contract is ambiguous, however, the court may
consider extrinsic evidence to determine the parties' intent. Garrity, 2000 ME 48, ,r 10, 748
A.2d 457. Tf a contract is ambiguous and there are genuine issues of material fact regarding the
intent of the parties, summary judgment is inappropriate. Thayer Corp., 675 A.2d at 516.
There is no dispute the Transportation Agreement and attached Exhibit constitute a
legally binding contract between the parties. (Pl. Supp'g S.M.F. ,r,r 1, 8, 14; Def. Opp. S.M.F. ,r,r
1, 14; Def. Supp'g S .M.F. ,r,r 5 10; PJ. Opp. S.M.F. ,r,r 5, 10; Joint Final Pretrial Statement,
Stipulated Facts ,r A.) Plaintiff contends that Defendant breached both the compensation and
termination provisions of the Transportation Agreement. (Pl. Mot. Summ. J. 4; Pl. Opp'n to Def.
Mot. Summ. J. 6-8.)
A. Compensation Provisions
Both parties contend that Transportation Agreement and attached Exhibit are
unambiguous. (Pl. Mot. Surnm. J. 4; Def. Mot. Swnm. J. 7.) Plaintiff asserts that the plain
language of the Transportation Agreement's compensation provision required Defendant to pay
Plaintiff 80% of the "gross haul line,'' and that Defendant breached the compensation provision
by paying Plaintiff an amount less than the agreed percentage. (Pl. Mot. Summ. J. 4-5; Pl. Opp'n
to Def. Mot. Summ. J. 7-8.) Defendant, on the other hand, contends that the plain language of
the attached Exhibit stated that Plaintiff would be paid a set amount of $170.00 "for each
completed run'' from Jay to Mechanic Falls, without regard to a percentage or "gross line haul."
(Def. Mot. Summ. J. 7-8; Def. Opp 'n to Pl. Mot. Summ. J. 8.) Plaintiff contends Defendant was
compensated accordingly. (Def. Mot. SuIIl!D,. J. 8; Def. Opp'n to Pl. Mot. Summ. J. 9-10.)
Section 2 of the Transportation Agreement provides:
Compensation. As compensation for transportation services arranged by Bisson Transportation and provided by Carrier pursuant to this Agreement, Bisson
6 Transportation shall pay Carrier in accordance with the set amount of 80% of the gross line haul. This amendment is set forth in writing and authorized representatives of both Bisson Transportation and the Carrier sign and date such amendment.
(Cooper Aff. Ex. 1 § 2.) The Exhibit to the Transportation Agreement lists various origins,
destinations, miles, and HQA Pay.'' (Cooper A.ff. Ex. 2.) Regarding the Jay to Mechanic Falls
run at issue in this case, the Exhibit provides:
ORIGIN DESTINATION MILES OA PAY
JAY MFALLS 35 $ 170.00
(Id. Ex. 2.)
Based solely on the fours corners of the documents, the court finds Transportation
Agreement and attached Exhibit to be ambiguous regarding Plaintiffs compensation. The court
cannot determine the meaning of "set amount of 80% of the gross line haul" in § 2. The
Transportation Agreement does not define "gross line haul" and the court cannot ascertain its
meaning from the plain language. In it is unclear whether the parties intended Plaintiffs
compensation to be a fixed amount or a variable amount based on a set percentage. The second
sentence of§ 2 is equally abstruse. The sentence begins by referring to "This amendment", but it
is unclear what "amendment" the sentence is referring to or how it relates to Plaintiff's
compensation under § 2. Nothing in the preceding sentence discusses an amendment to the
Transportation Agreement.
The attached Exhibit is also ambiguous. The Exhibit does not reference any provisions
of the Transportation Agreement or state its purposes. The Exhibit simply lists origins,
destinations, miles, and an amount of "OA Pay." Neither the Exhibit nor the Transportation
Agreement defines "OA Pay." The court cannot determine from the plain language whether
7 "OA Pay" is a fixed amount of compensation, the "gross line haul," an amount equal to 80% of
the "gross line haul," or whether it is related to Plaintiffs compensation at all. Therefore, the
court finds the Transportation Agreement's compensation provision and attached Exhibit to be
ambiguous.
Although the compensation provision and Exhibit are facially ambiguous, based on the
parties' statements of material fact, there is no genuine dispute of fact regarding Plaintiff s
agreed-upon compensation. Throughout its statements of material fact, Plaintiff refers to the
Exhibit as the "Amendment." (PL Supp'g S.M.F. ,r,r 11, 13-14.) Plaintiff avers, "The Contract
provides that a set amount equal to eighty percent (80%) of the gross line haul is set forth in a
written amendment to the Contract..." (Id. ,i 6.) Plaintiff states, "The Amendment contains the
trucking routes and rates of pay and is signed by both parties." (Id. ii 16.) Plaintiff further states
that, "The Amendment provides that Plaintiff was to be paid at a rate of One Hundred
Seventy Dollars ($170.00) per line haul for hauls originating in Jay, ME and ending in
Mechanic Falls, ME." (Id ,r 11) (emphasis supplied). Defendant asserts that the Exhibit did not
call for Plaintiff to be paid on a "per line haul" basis. (Def. Opp. S.M.F. 11 11.) However,
Defendant does not dispute that, pursuant to the Exhibit, Plaintiff was to be paid a rate of
$170.00 for the Jay to Mechanic Falls route. (Id.)
Thus, regardless of whether the amount stated in the Exhibit was supposed to be equal to
eighty percent (80%) of the gross line haul or a set amount without regard to a percentage or the
"gross line haul," there is no dispute that the parties agreed that Plaintiff would be paid $170.00
fo r each completed run or haul from Jay to Mechanic Falls. Moreover, there is no dispute that
Plaintiff was in fact paid $170.00 for each completed haul or run from Jay to Mechanic Falls in
accordance with the attached Exhibit. (Pl. Supp'g S.M.F. ,r1 12, 27; Def. Opp. S.M.F. 1~ 12, 27;
8 Def. Add'l S.M.F. ,r 9; PL Reply. S.M.F. ,r 9; Def. Supp'g S.M.F. ,r 12; Pl. Opp. S.M.F. ,r 12;
Joint Final Pretrial Statement, Stipulated Facts ,r C.) Because Plaintiff was fully compensated in
accordance with the parties' agreement, Defendant is entitled to summary judgment in its favor
on Plaintiff's breach of contract claim with respect to the compensation provisions. 3
B. Termination of the Agreement
Plaintiff contends that the plain language of the Transportation Agreement's termination
provision required Defendant to provide thirty days written notice prior to terminating the
agreement. (PL Mot. Summ. J. 5; PL Opp'n to Def. Mot. Summ. J. 11-12.) Plaintiff asserts
Defendant breached the termination provision by failing to provide the requisite thirty-day
written notice. (Id.) Defendant asserts that, under plain language of the provision, the thirty-day
written notice requirement only applied to termination without cause. (Def. Mot. Summ. J. 9;
Def Opp'n to Pl. Mot. Summ. J. 11.) Defendant asserts that it was entitled terminate the
Transportation Agreement for cause, effective immediately, without thirty days written notice.
(Def. Mot. Summ. J. 9; Def. Opp'n to PL Mot. Smnm. J. 11-12.) Defendant also asserts that,
even if it was required to provide thirty-days written notice, there is no remedy available to
Plaintiff for the alleged breach. (Def. Mot. Summ. J. 1O; Def. Opp'n to Pl. Mot. Summ. J. 12.)
3 Plaintiff asserts that, prior to signing the Transportation Agreement, Defendant represented that the dollar amounts stated in the Exhibit were equal to 80% of the gross line haul. (Pl. Supp'g S.M.F. ,r 17.) Plaintiff contends that it later discovered that $170.00 was less than 80% of the gross line haul for the Jay to Mechanic Falls run. (Id. ,r,r 20-24; Pl. Mot. Summ. J. 2-3 & n.4.) These assertions do not alter the fact that there is no dispute the parties signed the attached Exhibit and agreed that Plaintiff would paid $170.00 for each completed run or haul from Jay to Mechanic Falls. Whether Plaintiff has a claim for fraudulent misrepresentation against Defendant is a separate issue discussed below.
9 1. Written notice oftermination and material breach ofthe contract
Section 3 of the Transportation Agreement states:
Term. The term of this Agreement shall be for an initial period of one (1) year commencing un lhe date this Agreement is fully executed, and from year to year thereafter, subject to the right of tennination by either party at any time without cause of liability upon thirty (30) days prior written notice to the other pai1y. Such termination shall not release either party form any liability or obligation existing or accrued at, or prior to the date of termination.
(Cooper Aff. Ex. 1 § 3.)
Unlike the compensation provisions, the court finds the Transportation Agreement's
tennination provision to be unambiguous. Section 3 of the Transportation Agreement clearly
states that, after the first year, either party may terminate the contract at any time "without cause
of liability upon thirty (30) days prior written notice." (Id. ) Under the plain language, cause is
simply not a requirement of termination. Either party may terminate the Transportation
Agreement upon thirty days written notice for any reason, no cause required. Defendant's
proffered interpretation, that it may terminate the Agreement for cause immediately, without
notice, inserts an additional provision into the contract that is simply not there. The plain
language contains no terms regarding termination for cause. Therefore, pursuant to the plain and
unambiguous terms of the Transportation Agreement, Defendant was required to give thirty days
written notice prior to termination of the Agreement with or without cause.
However, Defendant's asserted "cause" fo r terminating the Transportation Agreement is
that Plaintiff committed a material breach of§ l(C) of the Agreement. (Def. Opp'n to PL Mot.
Surnm. J. 11 -1 2; Def. Mot. Summ . J. 9-10.) A material breach of contract "is a non-performance
of a duty that is so material and important as to justify the injured party in regarding the whole
transaction as at an end." Cellar Dwellers, Inc. v. D 'Alessio, 2010 ME 32, ~ 16, 993 A.2d 1
(internal quotation and citation omitted). Thus, if Plaintiff materially breached the terms of the
10 Transportation Agreement, the Agreement would be regarded as over and Defendant would be
relieved compliance the thirty-day notice requirement. "Whether a material breach has occurred
is a question of fact. Jenkins, Inc. v. Walsh Bros., 2001 ME 98, ~ 13, 776 A.2d 1229.
Section l (C) provides in relevant part, "Carrier shall comply with all applicable laws,
ordinances, codes, rules and regulations in performing the services called for in this Agreement."
(Cooper Aff. Ex. 1 § l (C).) Defendant contends that Mr. Dudley breached § l(C) by being
involved in several dangerous incidents and committing safety violations. (Def. Opp'n to Pl.
Mot Summ. J. 11-12; Def. Mot. Summ. J. 9-10.) Defendant asserts the Mr. Dudley was
involved in the fo llowing incidents: (1) in March 201 5, Mr. Dudley was banned from certain
New England Public Warehouse ("NEPW") facilities for lowering another contractor's landing
gear to the ground; (2) in the summer of 20 15, one of Defendant's yard service drivers in Jay,
Maine complained that Mr. Dudley had "berated" him; (3) in December of 201 5, Defendant's
yard service supervisor in Jay, Maine reported that :t-.1r. Dudley almost ran over him with his
truck; (4) as a result, Defendant instructed :t,.1r. Dudley not to return personally to the Jay facility,
which Mr. Dudley disobeyed by returning to the Jay facility the next weekend; and (5) in late
December 201 5, Mr. Dudley had threatened to vandalize another contractor' s truck. (Def. Add'l.
S.M.F. 11 13-18; Def. Supp'g S.MF. 11 16-21.) Defendant has not identified which specific
laws, ordinances, codes, rules or regulations Mr. Dudley violated in these incidents.
Plaintiff contends the alleged incidents and safety violations are false and inflated. (Pl.
Reply S.M.F. 1~ 13-18.) First, Plaintiff does not deny there was an incident between Mr. Dudley
another contractor at a NEPW facility in March of 2015. (Pl. Reply S.M.F. 113; Pl. Opp. S.M.F.
1 16.) Plaintiff contends that Defendant instructed Mr. Dudley to work things out with NEPW, that Mr. and Mrs. Dudley met with NEPW' s management a week later, and that the matter was
11 resolved. (Id.) Second, regarding the incident with Defendant's yard service driver, Plaintiff
contends that the yard service driver had blocked Mr. Dudley's truck with another truck, that the
driver was unwilling to move, and that Mr. Dudley contacted security at the facility to handle the
matter. (Pl. Reply S.M.F. 1 14.) Third, regarding the incident with Defendant's yard service
supervisor, Plaintiff contends that the supervisor was standing in Mr. Dudley's blind spot, that
Mr. Dudley was not aware of the supervisor and had no opportunity to observe him, and that the
supervisor was not touched or injured by Mr. Dudley's trailer. (Pl. Reply S.M.F. , 15; Pl. Opp.
S.M.F. 1 18.) Fourth, Plaintiff concedes Mr. Dudley was asked not to personally return to the
Jay facility. (Pl. Reply S.M.F. 116; PL Opp. S.M.F., 19.) However, Plaintiff contends that Mr.
Dudley told Defendant he could not guarantee he would not return if circumstances required him
to do so, that Defendant said they would "cross that bridge when they got to it", that Mr. Dudley
made a conscious effort to stay away from the Jay facility, but that a shortage of drivers required
him to return to the Jay facility, and that he informed Defendant's Senior Safety Manager, who
did not object. (PL Reply S.M.F., 17; Pl. Opp. S.M.F. 120.) Lastly, Mr. Dudley denies ever
threatening to vandalize another contractor's truck. (PL Reply S.M.F. 121.) Plaintiff contends
Defendant's Safety Manager had virtually no involvement in any of the alleged incidents and
Defendant never investigated or made a written record of any of the incidents. (PL Add'l S.M.F.
114, 6-7, 11-12, 15-17.) Although Defendant was required by the plain terms of the Transportation Agreement to
provide thirty days written notice prior to termination of the Agreement, based on the foregoing,
there are genuine issues of material fact regarding whether Plaintiff materially breached the
Transportation Agreement, relieving Defendant of compliance with the notice requirement.
There are genuine issues of fact regarding the alleged incidents involving Mr. Dudley and
12 whether those incidents constitute a violation of applicable laws, ordinances, codes, rules or
regulations in breach of the Transportation Agreement.
2. Remedy for breach ofthe notice requirement
Alternatively, Defendant contends, even if it was required to provide thirty-days written
notice, there is no remedy available to Plaintiff for the alleged breach. (Def. Mot. Summ. J. 10
11; Def. Opp'n to Pl. Mot. Swnm. J. 12-13.) Defendant asserts that§ l(E) of the Transportation
Agreement only required that an independent contractor be provided no less than one shipment
in interstate commerce per twelve-month period. (Id. ; Cooper Aff. Ex. 1 § l(E).) There is no
dispute that Plaintiff was licensed only to haul shipments intrastate. (Def. Add ' l S.M.F. , 4; Pl.
Reply S.M.F. 14; Def. Supp'g S.M.F. ~ 4; Def. Opp. S.M.F. ~ 4; Joint Final Pretrial Statement,
Stipulated Facts i E.) Thus, according to Defendant, it was not required to provide Plaintiff with
any intrastate hauls and Plaintiffs damages for fajlure to provide thirty days written notice prior
to termination would be purely conjecture. (Def. Mot. Summ. J. 10-11 ; Def. Opp' n to Pl. Mot.
Sunun. J. 12-13.)
The assessment of damages is a question of fact within the sole province of the fact
finder. Down E. Energy Corp. v. RMR, Inc. , 1997 ME 148, ~ 7, 697 A .2d 417. Damages are not
recoverable when uncertain, contingent, speculative, or based wholly on surmise and conjecture.
Id. However, reasonableness, not mathematical certainty, is the criteria for determining whether
damages are appropriate. Id The fact finder may rely on ,probable and inferential proof and may
make intelligible and probable estimates of the damages suffered based on all relevant facts and
circumstances. Id
Although the Transportation Agreement did not require Defendant provide Plaintiff with
a minimum number of intrastate hauls or runs, Defendant has not put forth any facts
13 demonstrating that Plaintiffs damages would be uncertain and speculative. See (Def. Add'l
S.M.F.; Def. Supp'g S.M.F.) Plaintiff is entitled to damages if it can produce any relevant
evidence upon which the fact finder can make intelligible and probable estimates of the damages
suffered as a result of Defendant's termination of the Agreement without notice. Because
Defendant has failed to put forth any facts demonstrating that damages would be uncertain or
speculative, Defendant is not entitled to summary judgment for lack of an available remedy.
Accordingly, because there are genuine issues of fact regarding whether Plaintiff
materially breached the Transportation Agreement and damages, neither party is entitled to
summary judgment with respect to Plaintiff's claim for breach of the termination provision.
II. Plaintiff's Remaining Claims
Defendant has also moved for summary judgment on Plaintiff remaining claims for
unjust enrichment, quantum meruit, fraud, misrepresentation and deciet, conversion, and for an
accounting. (Def. Mot. Summ. J. 11.) Defendant contends Plaintiff's remaining claims are
based entirely on Plaintiff's assertion that it should been paid 80% of the gross line haul and
summary judgment should be granted for the same reasons as Plaintiff's breach of contract
claim. (Id.) Plaintiff asserts, as it did regarding its breach of contract claim, that Defendant was
obligated by the tenns of the Transportation Agreement to pay Plaintiff 80% of the gross line
haul. (PJ. Opp' n to Def. Mot. Summ. J. 12.)
A Unjust Emichment and Quantum .Atferuit
Unjust enrichment is an equitable remedy that permits plaintiff to recover the value of a
benefit retained by the defendant where no contractual relationship exists. Aladdin Elec. Assocs.
v. Town ofOld Orchard Beach, 645 A.2d 1142, 1145 (Me. 1994). To sustain a claim of unjust
enrichment, the plaintiff must establish: (1) it conferred a benefit upon the defendant, (2) the
14 defendant had an appreciation or knowledge of the benefit, and (3) under the circumstances, it
would inequitable for the defendant to retain the benefit without payment of its value to the
plaintiff. Id at 1144.
Under a claim of quantum meruit, a plaintiff may recovery the value of services or
materials rendered to a defendant under an implied contract. Paffhausen v. Balano, 1998 ME 47,
,i 6, 708 A.2d 269. A quantum meruit claim is available to a plaintiff when the formal elements
of an express contract are not met. Id. 1 9. Thus, the existence of an express contract generally
precludes recovery under a quantum meruit claim, particularly when a party has fully preformed
its obligations under an express contract. Horton & McGehee, Maine Civil Remedies § 11-1 at
229, § 11-2(a)(2) at 234 (4th ed. 2004).
As discussed above, there is no dispute the Transportation Agreement and attach Exhibit
constituted a legally binding contract between the parties. (Pl. Supp'g S.M.F. ,r,r 1, 6, 14; Def.
Opp. S.M.F. VV 1, 14; Def. Supp'g S.M. F. ~15, 10; Pl. Opp. S.M.F. 1il 5, 10; Joint Final Pretrial
Statement, Stipulated Facts 1 A.) The parties agreed that Plaintiff would be paid $ 170.00 for
each completed run or haul from Jay to Mechanic Falls. (Pl. Supp'g S.M.F. ~ 11, 16; Def. Opp.
S.M.F. 11 11 , 16.) Plaintiff was in fact paid $170.00 for each completed haul or run. (Pl. Supp'g
S.M.F. VV 12, 27; Def. Opp. S.M.F. 1112, 27; Def. Add'l S.M.F. ~ 9; Pl. Reply. S.M.F. ~ 9; Def.
Supp'g S. M.F. V12; Pl. Opp. S.M.F. 1 12; Joint Final Pretrial Statement, Stipulated Facts ~ C.)
Because Plaintiff was fully compensated in accordance with the terms of the Transportation
Agreement and Exhibit, Plaintiff is not entitled to recovery for unjust enrichment or quantum
meruit. Defendant is entitled to summary judgment on those claims.
15 B. Fraud, Misrepresentation, and Deceit
To sustain a claim of fraudulent misrepresentation, the plaintiff must produce clear and
convincing evidence that (1) the defendant a made a false representation; (2) of a material fact;
(3) with knowledge of its falsity or in reckless disregard of its truth or falsity; (4) for the purpose
of inducing the plaintiff to act in reliance upon it; and (5) the plaintiff justifiably relied upon the
fact as true to their detriment. Me. Eye Care Assocs., P.A. v. Gorman, 2008 ME 36, 1 12, 942
A.2d 707.
In its statement of material facts in support of its own motion, Plaintiff contends that,
prior to signing the Transportation Agreement, "Defendant represented to Plaintiff that the
amounts stated in the [Exhibit] were equal to eighty percent (80%) of the line haul." (PL Supp' g
S.M.F. 1 17.) Plaintiff contends that on August 21, 2015, a shipper submitted a Loss and
Damage Claim Report to Defendant for lost or damaged cargo transported by Plaintiff. (Id. 1il
21-22.) Plaintiff contends that Loss and Damage Claim Report and Defendant's Load Sheet for
that haul stated that the transit cost for that haul was $258.00. (Id ,123-24.) Plaintiff was paid
$170.00 for that particular haul in accordance with the Exhibit. (Id. ~ 26.) Plaintiff contends,
based on that transit costs, it should have been paid $206.40 as 80% of the gross line haul
($258.00 x .80). (Def Mot. Summ. J. 2 & n.4.) Defendant does not dispute Plaintiffs assertions
regarding the transit cost of the lost shipment, only that Loss and Damage Claim Report does not
reference a "line haul." (Def. Opp. S.M.F. 1~ 21-24.) Defendant denies ever representing to
Plaintiff that the dollar amounts stated in the Exhibit were equal to 80% of the gross tine haul.
(Id. 117.)
Based on the foregoing, there is a genuine dispute of fact whether Defe ndant made a false
representation of a material fact regarding the amounts in the set forth in the Exhibit. Because
16 Defendant has not made any specific arguments regarding Plaintiffs inducement, justifiable
reliance, or any other elements of fraudulent misrepresentation, the court finds this dispute of
fact sufficient to deny Deft;:ndant's motion summary with respect to Plaintiff's claim for
fraudulent misrepresentation.
C. Conversion
Conversion is the invasion of another party's possession or right to possession of
property at the time of the alleged conversion. Estate ofBarron v. Shapiro & Morley, LLC, 2017
ME 51, 1 14, 157 A.3d 769. The necessary elements of conversion are (1) the person claiming
their property was converted has a property interest in the property; (2) the person had the right
to possession at the time of the alleged conversion; and (3) the party with the right to possession
made a demand for its return that was denied by the holder. Id.
In its complaint, Plaintiff contends that it had a right to immediate possession of all the
money earned under the Transportation Agreement and that Defendant committed conversion by
failing to pay the full amount. (Compl. 11 63w67.) As discussed above, the Transportation
Agreement and attach Exhibit constituted a legally binding contract between the parties. (PL
Supp'g S.M.F. 11 1, 6, 14; Def. Opp. S.M.F. 11 l, 14; Def. Supp'g S.M.F. ff 5, 10, PL Opp.
S.M.F. 11 5, 10; Joint Final Pretrial Statement, Stipulated Facts 1 A.) The parties agreed that
Plaintiff would be paid $ 170.00 for each completed run or haul from Jay to Mechanic Falls,
which Plaintiff was in fact paid. (Pl. Supp'g S.M.F. 11 11-12, 16, 27; Def. Opp. S.M.F. 1111
12, 16, 27; Def. Add'l S.M.F. 1 9; Pl. Reply. S.M.F. 1 9; Def. Supp' g S.M.F. if 12; Pl. Opp.
S.M.F. ,r 12; Joint Final Pretrial Statement, Stipulated Facts, C.) Because Plaintiff was paid all
it was owed under the Transportation Agreement and Exhibit, Plaintiff did not have a property
17 interest or right to possession in the alleged unpaid funds. Therefore, Defendant is entitled to
summary judgment on Plaintiffs claim for conversion.
D. Plaintiffs Claim for an Accounting
An accounting is a restitutionary remedy, not a cause of action, used to establish the
amount of liability. Horton & McGehee, Maine Civil Remedies § 8-1 at 199. The mere fact that
an accounting is demanded does not necessarily mean it is an appropriate remedy. Id. § 8-2 at
200. Whether an accounting is an appropriate remedy is a question for the court. Id Generally,
an accounting will be awarded in following circumstances: (1) where a fiduciary relationship
exists between the parties and the defendant owes a duty to account; (2) where the parties have
"mutual accounts," meaning each has charges against the other that will off-set each other to
produce a net debt one way or the other; (3) where the account is so complicated that it is beyond
the court's or jury's ability to decide; (4) where the defendant has misappropriated money or
property belonging to the plaintiff and an accounting is necessary to trace the misappropriated
money or property and to determine if the misappropriate funds or property has yielded profits;
(5) where specifically provided by statute; or (6) any other case in which an accounting is
necessary in order to provide complete relief. Id § 8-2 at 200-02.
In its complaint, Plaintiff seeks an accounting for only its claim that Defendant breached
the Transportation Agreement by failing to pay Plaintiff 80% of the gross line haul. (Compl. ,ri
68-73.) Because Plaintiff was fully compensated under the terms of the Transportation
Agreement and attached Exhibit, Plaintiff is not entitled to an accounting for that claim.
Moreover, none of Plaintiffs remaining claims present circumstances requiring an accounting.
Therefore, Defendant is entitled to summary judgment on Plaintiffs request for an accounting.
18 CONCLUSION
Based on the foregoing, the court's entry is as follows:
(1) Plaintiff Dudley Trucking Co.'s motion for summary judgment on its breach of
contract claim is DENIED.
(2) Defendant Bisson Transportation, Inc.'s motion for summary judgment on all claims
is GRANTED IN PART AND DENIED IN PART. Defendant's motion is GRANTED on
Count I with respect to Plaintiff's claim for breach of the compensation provisions and on
Counts II, III, V, and VI. Defendant's motion is DENIED on Count I with respect to Plaintiff's
claim for breach of the termination provision and on Count IV.
The Clerk is instructed to enter this Order on the docket for this case incorporating it by
reference pursuant to Maine Rule of Civil Procedure 79(a).
Dated: ?/ t?, /, 7 Ric.hard Mulhern Judge, Business & Consumer Court
19 Dudley Trucking Co. v. Bisson Transportation, Inc.
BCD-CV-2016~15
Dudley Trucking Co. Jeffrey Bennet, Esq. 198 Maine Mall Rd Box 15 South Portland, ME 04106
Bisson Transportation, Inc. Stephen Segal, Esq. One Portland Square Po Box586 Portland, ME 04112 and Thomas Newman 75 Pearl Street Po Box9785 Portland, ME 04104