United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl, United States Magistrate Judge
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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 ...