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Bradley v. D&B Trucks & Equipment, LLC

United States District Court, W.D. Kentucky, Bowling Green Division

December 19, 2018



          H. Brent Brennenstuhl, United States Magistrate Judge

         In accordance with the parties' consent, this case was reassigned to the undersigned United States Magistrate Judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (DN 33). This matter came before the Court for bench trial on October 23, 2018.

         Findings of Fact

         This is an action for breach of contract. Defendant D&B Trucks and Equipment, LLC fabricates customized commercial Peterbilt road tractors, the motorized portion of a “tractor-trailer.” It does this by combining a “glide kit, ” which is a road tractor lacking an engine and transmission, with a rebuilt engine and transmission of the customer's choice. D&B orders the glide kit from Peterbilt according to the customer's specifications. D&B procures separately a Caterpillar engine and Eaton transmission, both rebuilt by Caterpillar. D&B then assembles the road tractor from these components. By utilizing the glide kit approach, the customer can save taxes because the vehicle is considered a “rebuilt” vehicle. Depending on the engine selected, the customer may also avoid certain current vehicle emissions requirements.

         Plaintiff Wayne Bradley owns and operates Wayne Bradley Trucking and Leasing, Inc. His business primarily hauls material on flat-bed trailers. Bradley wished to purchase a customized 2016 Peterbilt Model 389 road tractor as his “dream truck” for the remainder of his driving career. He learned of D&B through a trade magazine. Bradley already owned a 2007 Peterbilt Model 379 with which he was pleased. He wanted the new truck fabricated to essentially the same specifications, with a few changes. To that end, he provided D&B with the “building record” for the 2007 Peterbilt to use as a guide, and to which he made several notations where different options were desired. The building record is similar to the manufacturer's sticker on the window of an automobile which lists all the basic and optional features included. Jeanette Lee worked with Bradley and assisted him in communicating with D&B. The communications consisted of several faxes, photographs and e-mails, with Jeanette Lee handling most of the communications on Bradley's side and D&B's salesman Joshua Hardey serving as her point of contact. Bradley paid D&B the agreed upon purchase price. Lee is a nominal plaintiff in this action because they both guaranteed the loan for the purchase.

         When D&B presented the tractor for delivery Bradley refused to take possession because he believed it failed to comport with his specifications. Most significantly, he had specified a model 6NZ Caterpillar diesel engine. He believed that the truck was equipped with a model C15 Caterpillar diesel engine. He had requested the 6NZ because it has a single turbocharger and he felt it was regarded as more reliable and lower in maintenance cost than the C15. He also rejected delivery because he did not believe the exterior lights on the cab had been placed in accordance with his specifications, nor was there a pyrometer gauge on the dashboard, which would have registered the temperature of the exhaust gas. He testified that he refused to accept delivery of the truck because he was afraid doing so would waive his complaints regarding nonconformity. During the pendency of this litigation, the parties agreed that Bradley could take possession of the truck without waiving his claims.

         Parsing the communications between the parties to determine the exact nature of the agreement is challenging. At trial, Bradley offered the build record for his older truck which he testified he sent to D&B as a template for the new truck's specifications. He also offered a build record for the new truck which D&B prepared and which he signed and returned to D&B evidencing his assent to the specifications. However, he also offered several other unsigned versions of D&B's build record on which he had made notes and underlining, which he testified he sent to D&B as rolling corrections to the build record he signed. Further complicating the analysis is that several of these subsequently revised build records are versions that predate the version he signed. D&B's witnesses, however, testified that the version he signed represented the building order and what he ultimately received. Another complication is that the engine was specified in separate documentation. The parties agree that there is no single writing which embodies all the terms and specifications.

         Although Bradley identified what he believed were several failures by D&B to comply with his specification instructions, he only offered specific testimony on three: the lack of a pyrometer gauge, the number and placement of lights on the back of the cab, and the engine model installed. As to the pyrometer, D&B's witnesses testified that such gauges were no longer offered because they are not compatible with the centralized electronic monitoring systems currently installed on trucks. As to the lights, they testified that the lights were installed by the factory. Regarding the engine, they testified that a 6NZ is a type of C15 engine and that the engine installed is, in fact, a 6NZ model. D&B's witnesses also testified that after Bradley expressed his dissatisfaction with the truck and refused delivery, it was instructed to sell the truck. It advertised the truck for sale, located a buyer, and obtained a price greater than what Bradley had paid for it. However, Bradley later instructed D&B not to sell the truck and it refunded the purchaser's price.

         At trial, Bradley offered three estimates as proof of damages. The first was for installing a pyrometer gauge, the second for reconfiguring the lights on the cab and the third for the rental cost of a comparable truck. The undersigned ruled that Bradley had not laid an adequate foundation for the gauge-related estimate, as his testimony indicated he did not have the personal expertise to do the work himself and merely relied upon what the dealer had told him. The undersigned allowed introduction of the lights-related estimate, as Bradley testified that he had extensive experience working on trucks and had independent expertise to evaluate the reasonableness of the reconfiguration estimate. As to the rental estimate, he offered proof under the theory that it represented the value of the truck during the time between when he rejected delivery for non-conformance and when he eventually accepted delivery on agreement that it would not constitute a waiver of his claims.

         Conclusions of Law

         To establish a breach of contract claim in Kentucky, the plaintiff must establish three things: (1) the existence of a contract; (2) breach of that contract; and (3) damages flowing from the breach of contract. Murton v. Android Indus. - Bowling Green, LLC, No. 1:13-CV-00112-GNS, 2015 U.S. Dist. LEXIS 72968, at *7 (W.D. Ky. April 14, 2015). Multiple writings may form a contract so long as one of them is signed and the other writings clearly indicate that they relate to the same transaction. Snowden v. City of Wilmore, 412 S.W.3d 195, 209, n. 9 (Ky. App. 2013) (quoting Restatement (Second) of Contracts § 132). As noted, Bradley's proof of the terms of the contract consists of a hodge-podge of marked-up writings and communications. Where the Court finds various written exchanges present ambiguous meanings, it must determine the nature of the terms to which the parties agreed, if at all. KFC Corp. v. JRN, Inc., No. 3:11-CV- 260-H, 2012 U.S. Dist. LEXIS 6127, at *10 (W.D. Ky. Jan. 19, 2012). Moreover, any subsequent modification of a written agreement must be proven by clear and convincing evidence. Id. at *11.

         As to the pyrometer, even if it was requested and specified, Bradley presented no proof of damages flowing from the breach of contract. He testified that since he took possession of the truck he has been using it without problem. While he desired the pyrometer, there was no proof that its absence has reduced the value or utility of the truck nor was there admissible evidence of cost of remediation.

         Similarly, there was no clear proof that the lights were not installed as requested. The build record which Bradley signed indicated lights mounted at locations only identified as “Low Inboard Loc A, ” “Low Outboard Loc B, ” “Mid Location C” and “Bracket Mounted Outboard Loc H.” Of the various marked-up versions of the build record Bradley introduced at trial, the lights are only underlined. Lee testified that the reason for underling was because of Bradley's “not knowing the locations of where A, B, and C are.” (DN 47, Tr. p. 106) (see also Id. at p. 107). This is an insufficient basis to conclude that there was an agreement between Bradley and D&B for a light configuration other than what was shown on the build record, which D&B contends is how they are assembled at the factory.

         The last nonconformity to which Bradley testified was that the engine specified in the order was a 6NZ model and instead he received a C15 model. Here there was conflicting testimony. Bradley testified that he believed he was not provided the agreed upon engine because the valve cover is marked “C15.” He also believed it was not a 6NZ because it appeared to have twin turbochargers, whereas the 6NZ only has a single ...

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