New Valley Corp. v. United States

72 Fed. Cl. 411, 2006 U.S. Claims LEXIS 257, 2006 WL 2513067
CourtUnited States Court of Federal Claims
DecidedAugust 30, 2006
DocketNo. 94-785C
StatusPublished
Cited by3 cases

This text of 72 Fed. Cl. 411 (New Valley Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Valley Corp. v. United States, 72 Fed. Cl. 411, 2006 U.S. Claims LEXIS 257, 2006 WL 2513067 (uscfc 2006).

Opinion

OPINION

WIESE, Judge.

In an earlier opinion issued in this case, the court resolved in plaintiffs favor the question of whether Western Union Telegraph Company (‘Western Union”), New Valley’s principal subsidiary, was entitled to recover contract damages as a result of the National Aeronautics and Space Administration’s (“NASA”) anticipatory repudiation of a contract promising NASA’s “best efforts” to launch Western Union’s communications satellite, the Westar VI-S, into earth orbit. New Valley Corp. v. United States, 67 Fed.Cl. 277 (2005). Notwithstanding this ruling, plaintiffs right to recover contract damages is once again at issue. Defendant has moved for summary judgment asserting that the damages identified in the court’s opinion do not qualify as direct damages but instead constitute consequential damages and lost profits and therefore are not recoverable under the terms of the parties’ contract. Plaintiff has cross-moved for summary judgment claiming that it is entitled on the basis of the stipulated facts to recover $43.3 million pursuant to the court’s earlier opinion. For the reasons set forth below, the parties’ cross-motions are denied.

I.

During the period relevant to this action (1984-1991), Western Union was a corporation in financial distress — a condition brought on by an ever — increasing interest burden arising out of indebtedness undertaken to finance capital expenditures that ultimately failed to produce their expected revenue flow. In an effort to arrest the decline in the company’s fortunes, Western Union began to sell off assets, including those comprising the company’s communications satellite division, the Westar Division. Included in the Westar [413]*413Division assets was the Westar VI-S, a communications satellite built by Western Union at a cost of $82.2 million and acquired by Hughes Communications, Inc., in January 1989 for $20.5 million.1 At the time Western Union contracted for the construction of the Westar VI-S, it expected to launch that satellite aboard the Space Shuttle pursuant to a contract executed with NASA in 1984. This contract, however, was later disavowed by NASA due in the main to a reevaluation of the nation’s launch program precipitated by the loss of the Space Shuttle Challenger in January 1986 and the subsequent decision by President Reagan to forego commercial launches in favor of payloads that either were shuttle-unique or had national security and foreign policy implications.

Western Union eventually went into bankruptcy and following its reemergenee from that process brought suit in this court seeking, inter alia, damages for NASA’s breach of contract. The case went to trial on the issue raised by defendant, namely, that because of Western Union’s precarious financial condition, the company would not have been able to perform the contract on the date that performance was scheduled to occur and therefore had no basis for recovery of damages. In support of that argument, defendant relied on the Restatement (Second) of Contracts § 254(1) (1981) which declares that “[a] party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise.”

We rejected defendant’s argument, concluding that section 254 is simply a codification of the general rule requiring a party seeking damages for breach of contract to demonstrate that the breach was the proximate cause of the injury claimed. New Valley, 67 Fed.Cl. at 284. That requirement, we noted, was satisfied in the instant case because absent NASA’s breach, Western Union’s sale of the Westar Division assets would have included the transfer (by assignment) of the satellite launch contract, thereby allowing Western Union to realize, through such assignment and sale, the market value of that contract. Id. Given this fact, we ruled that it was irrelevant whether or not plaintiff had the financial capacity to launch the satellite in its own right because under either scenario “the breach must be seen as the proximate cause of injury to plaintiff.” Id. We left for later consideration the question of how much more Hughes Communications would have paid for the Westar Division assets had they included a NASA launch contract.

II.

A.

Pursuant to the terms of the parties’ contract, any award for a breach of contract must be restricted to direct damages and may not include lost profits or other consequential damages. Specifically, under the heading “Limitation of United States Government and Customer Liability,” the launch services contract provided:

[T]he United States Government’s liability to the Customer ... whether or not arising as a result of an alleged breach of this Agreement, shall be limited to direct damages only and shall not include any loss of revenue, profits or other indirect or consequential damages.

Defendant maintains that the damages contemplated in the court’s earlier opinion constitute consequential damages and lost profits and therefore, based on the language quoted above, are not recoverable under the parties’ contract.

In support of this argument, defendant asserts that Western Union did not sell the Westar Division assets because of the breach but rather because it was confronting a liquidity crisis that left it without sufficient funds to satisfy its day-to-day operations and also meet its debt service obligations. Defendant thus maintains that plaintiffs damages cannot be said to flow directly from the breach but are instead the result of a collateral undertaking and therefore constitute consequential damages. More particularly, [414]*414defendant identifies plaintiffs damages claim as a claim for lost profits, i.e., monies that Western Union claims it would have realized had it been able to sell its favorably priced NASA launch contract for its much higher market value.

We cannot accept this argument. Direct damages, or what are more often referred to as “general damages,” 24 Richard A. Lord, Williston on Contracts § 64:1, at 11 (4th ed.2002), are damages measured by the loss of the value of the performance promised by the breaching party. In other words, such damages are “based on the value of the very thing to which the plaintiff was entitled ..., they encompass paper losses or unrealized losses, and ... they are determined as of a particular date, usually by market measures.” 3 Dan B. Dobbs, Law of Remedies § 2.2(3), at 40-41 (2d ed.1993). Consequential damages (also called “special damages”), on the other hand, are those damages that “result as a secondary consequence of the defendant’s non-performance,” id. § 12:4(1), at 62, i.e., they “arise from the interposition of an additional cause, without which the act done would have produced no harmful result,” United States v. Chicago B. & Q.R. Co., 82 F.2d 131, 136 (8th Cir.1936). Consequential damages are thus distinguishable from general damages in that rather than being based on the value of the promised performance itself, they are based on the value of some consequence that that performance may produce. Dobbs, supra § 12.4(1), at 62.2

Consistent with these definitions, we believe that the damages identified in our earlier decision are direct damages rather than consequential damages.

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Cite This Page — Counsel Stack

Bluebook (online)
72 Fed. Cl. 411, 2006 U.S. Claims LEXIS 257, 2006 WL 2513067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-valley-corp-v-united-states-uscfc-2006.