Opinion
Civil Action CV-20-55
12-21-2023
ROBERT WHITMORE, Plaintiff v. GREELEY'S GARAGE, Defendant
DECISION AND JUDGMENT
By Second Amended Complaint filed August 13, 2021, Plaintiff Robert Whitmore ("Whitmore") has asserted claims against Defendant Greeley's Garage ("Greeley's") alleging Count I- Breach of Contract, Count II- Negligence, Count III- Breach of Warranty of Merchantability, Count IV- Unfair Trade Practice, and Count V- Fraud. Greeley has denied the allegations and brought a counterclaim for money owed. In addition, Greeley brought a third party complaint against Redline Performance Engines ("Redline"), Freightliner of Hartford, Inc. and ATG Seabrook, LLC seeking indemnity for any amounts determined to be owed to Whitmore. Prior to trial, Whitmore settled with Redline, and Redline was dismissed from the case pursuant to 14 M.R.S.A. § 156, A "Perringer" type release wras utilized to dismiss Redline from the case. The third party claims against Freightliner of Hartford, Inc. and ATG Seabrook, LLC were also dismissed prior to trial.
Trial, jury waived, was held December 6 and 7, 2023. Immediately prior to commencement of trial, Plaintiff withdrew and dismissed his claims for negligence, Count II and breach of warranty of merchantability. Count III. At trial testimony was received from: Whitmore; Spencer Robbins, owner of Redline; Brent Blackwood, service clerk at Greeley's; Dean Dech (via deposition), service technician with Horwith Freightliner (Ex. 23); Jeff Jordan, owner of Greeley's; Ryan Leet (via deposition), a former employee of Greeley's who worked on Whitmore's truck (Ex. 22); and Robert Crandall, Greeley's designated expert witness. The following exhibits were also admitted:
Ex. 1 Invoice from Horwith Freightliner;
Ex. 2 - Invoice from Greeley's for first engine;
Ex. 3 - Invoice from Greeley's for second engine;
Ex. 4 - Invoice from Freightliner of Hartford;
Ex. 5 - Invoice from ATG Seabrook;
Ex. 6 - Bill of Sale from Hartt Transportation;
Ex. 8- Invoices (4) from Redline;
Ex. 9 Greeley's Answers to First Set of Interrogatories;
Ex. 10 - Greeley's Answers to Second Set of Interrogatories;
Ex. 11 - Greeley's Answers to Redline's Interrogatories;
Ex. 12 - Greeley's Expert Witness Designation (marked but not admitted);
Ex. 13 - Redline Interrogatories;
Ex. 14 - Robert Crandall CV;
Ex. 15 - Actual cam bearings from second engine (marked a demonstrative aid, defense to retain pending resolution;
Ex. 16 - Engine manual for MBE 4000 engine;
Ex. 17 - Whitmore inten'ogatories;
Ex. 18 - Invoices from Freightliner of Maine;
Ex. 19 - 30(b)(6) deposition notice of Greeley's;
Ex. 20 - Photo of 2008 Western Star;'
Ex. 21 Summary of calculations for charge for "small block";
Ex. 22 - Deposition transcript of Ryan Leet; and
Ex, 23 - Deposition transcript of Dean Dech.
Introduction.
Whitmore is the owner of a 2008 Western Star tractor truck which originally had a Mercedes Benz MBE 4000 engine. In 2017 the truck broke down due to engine failure. To replace the engine, Whitmore acquired a 2007 Freightliner with a similar Mercedes Benz MBE 4000 engine, his intention being to have a new engine built up from the engine taken out of the Freightliner. In 2019 Whitmore hired Greeley's to rebuild the engine removed from the Freightliner and install it in his Western Star. This engine is hereafter referred to as "engine one" or "first engine", Greeley's completed the work and returned the truck to Whitmore. After operating the truck for a short time, Whitmore's truck again broke down due to engine failure. The truck was taken back to Greeley's and Greeley's was again hired to rebuild the engine. It was determined the block from the Freightliner could not be reused. Greeley's was unable to source from a third party a block, and therefore used the block originally removed from Whitmore's Western Star to rebuild the engine. This engine is hereafter referred to as "engine two" or "second engine". The second engine failed a short time after being returned to Whitmore.
A principal issue of contention in this case is whether Whitmore and Greeley's agreed to use the engine block from the original 2007 Western Star MBE 4000 engine in the build and assembly of the second engine. Whitmore asserts that pursuant to statements by Dean Dech that the original engine from the Western Star was extensively damaged and not reuseable, he told Greeley's that the engine could not be used. Jeff Jordan, the owner of Greeley's, acknowledged that when Whitmore first hired his shop in the Spring of 2019 to build and install engine one, Whitmore told him the original Western Star engine was not reuseable, and he wanted the engine block from the Freightliner utilized. However, Greeley's further asserts that after the first engine failed, Whitmore was more pressed to get his truck running again, and when Greeley's learned they could not source a new or remaned block from a third party, Greeley's and Whitmore discussed, and agreed, to having the original block from the Western Star inspected to see if it could be reused, and used to build the second engine if it was found to be reuseable.
Resolving issues of fact requires the court, as fact finder, to assess the credibility of all the witnesses to determine whether or not Whitmore, as plaintiff, has met his burden of proof by a preponderance of the evidence. In its fact finding role, the court may accept all of the testimony of a particular witness, or it may reject all of the testimony of a witness, or it may choose to accept some aspects of a witness' testimony and reject the balance. On the primary issue of whether the parties agreed to reuse the original block, as will be fully articulated infra, the court finds the parties did agree to reuse the original block. The court will now set forth in detail its findings of facts.
References in these findings that a specific witness "testified" to something should be interpreted that the court heard and acknowledges the testimony of that witness but, unless otherwise noted, is not a factual finding made by the court.
Whitmore obtained his commercial driver's license and began driving track in 1995. He has been a self-employed independent trucker since 2001. In 2016 Whitmore purchased a 2008 Western Star truck tractor which had an MBE 4000 engine. At that time, and for the years relevant to this action, he primarily hauled for Pottles Trucking or Hodges Trucking, primarily hauling loads of Poland Springs Water. Whitmore testified that he received 85% of the shipping fees, with the balance of 15% going to the broker for brokerage fees. Whitmore further testified that his average gross revenue in 2018 and 2019 was around $230,000.00. From the gross revenue, Whitmore testified he paid all expenses for fuel, tolls, maintenance, and trailer lease fees, Whitmore testified his net annual income in 2018 and 2019 was around $137,000.00. Whitmore has not produced or offered records, documents, tax returns, tax return schedules, billing or shipping documents, or business records of any kind to support his testimony of his gross income or expenses. Accordingly, the court is unable to make findings to the preponderance of the evidence standard as to what Whitmore's gross or net earnings were at any time relevant to this action.
In October 2017 while traveling in Pennsylvania, Whitmore's Western Star truck broke down due to engine failure, His truck was hauled to Horwith Freightliner, who performed a diagnostic of the engine to determine what had happened and what needed to be done. Whitmore was told by Dean Dech, a technician with Horwith, that due to internal damage to the engine, an entirely new engine was required, and was given an estimate of $43,756 for a new engine. From this discussion, Whitmore believed nothing from his engine in the Western Star could be reused.
Because the estimate from Horwith for a new engine was too expensive, Whitmore decided not to repair the engine in his Western Star at that time and he had it towed back to his home in Maine. Instead, Whitmore used warranty/insurance proceeds to purchase a 2006 Freightliner truck. Whitmore operated the 2006 Freightliner for his trucking operation over the next couple years. Through that time Whitmore shopped for a replacement engine for his Western Star. Whitmore found and purchased a 2008 Freightliner that had an engine similar to his Western Star, but which needed some repair work before it could be used. His plan was to have the engine in the 2008 Freightliner removed, then rebuilt and installed in his Western Star. To complete this work, Whitmore had both the Western Star and 2008 Freightliner hauled to Morissette's Garage. After inspecting the engines, Whitmore was told by Morrisctte's that the repair work was beyond their capabilities and referred him to Greeley's. In February 2019 Whitmore took both engines to Greeley's.
Whitmore told Greeley's he wanted the engine from the Freightliner to be rebuilt utilizing its block and other parts that could be properly reused, and new component parts acquired as necessary, and then installed in his Western Star. Whitmore also told Greeley s the old engine from the Western Star was not reuseable. The parties ultimately agreed the price to build the first engine would be $30,000.00.
Ryan Leet of Greeley's undertook the job and began rebuilding the engine from the Freightliner, reusing as instructed by Whitmore its block and as many of its other components as possible. In April 2019, Greeley's took the block, cam shaft and crank shaft that came from the Freightliner to Redline Performance Engines for cleaning, inspection and polishing. In this process, Redline advised Greeley's the block had excessive pitting and should not be used. (See Ex. 2) Following information and guidance received from the engine manufacturer, Greely's instructed Redline to apply titanium epoxy to the block to address the pitting, and then resurface the block to specifications. Redline performed the work as requested in May 2019, but told Greeley's it would not guarantee the work on the block. Greeley's paid Redline for the work done in April and May 2019. (See Ex. 8, pp's 1 and 2). Greeley completed the rebuild of the first engine and installed it in the Western Star. The original engine from the Western Star was placed on a pallet beside the scrap metal bin, where it remained over the next several months.
Greeley's generated a bill and invoice for its work to build the first engine which totaled $30,000.00. Whitmore completed paying the bill in full on September 20, 2021, and took possession of his Western Star' truck with its new engine, the first engine. Up until then Whitmore had been operating the 2006 Freightliner that he had purchased back in 2017, but the transmission in that truck failed just as he was getting back his Western Star, so he immediately put the Western Star back on the road for his trucking business. He initiated his first trip with the Western Star with the first engine a couple days later with a load that was intended for New York.
While Whitmore was traveling in Massachusetts with the Western Star, the first engine seized, requiring him to pull to the side of the road. He was towed to a nearby service plaza from where he called Greeley's. Greeley's sent a tow truck and returned Whitmore and his Western Star truck to Maine. Greeley's paid the towing costs. Once back in Maine, diagnostic tests and inspections were done of the engine. It was determined the first engine seized, or failed, due to bearing failure. However, from the evidence on the record, the court is unable to make a finding to a preponderance of the evidence as to the "cause" of the bearing failure. Whitmore paid Greeley's $5,000.00 for the diagnostics.
There is minimal evidence on the record as to why the bearings in the first engine failed. Some of the evidence suggests owner operator misuse, while some evidence suggests some of the parts being out of specification. From the evidence on this record, the court cannot find that Plaintiff has proven by a preponderance of the evidence why or what caused the failure.
Learning the engine needed to be replaced, Whitmore and Jeff Jordan began discussing options to get Whitmore back on the road. As he had no other truck while this repair was being made, this engine job had a higher sense of urgency than presented by the first engine rebuild when Whitmore had the 2006 Freightliner available. Jordan initially attempted to order from Freightliner of Maine a new short block or remaned block, but was advised one could not be sourced for the indefinite future. Because it was important to get Whitmore back on the road as soon as possible, Jordan discussed with Whitmore utilizing the block from the original Western Star which was still sitting out in the yard next to the scrap metal bin. Jordan told Whitmore they would send the block to be cleaned and inspected to determine whether it was reuseable. Whitmore agreed to using the block from the Western Star if it was determined to be reuseable. They also discussed using as many parts as possible from the earlier engine and acquire new components and parts as needed. Whitmore and Jordan also discussed cost, and given the first engine had just failed, Jordan agreed to "split the cost" and charge Whitmore only half for the second engine. Notwithstanding Whitmore's testimony to the contrary, the court finds Whitmore and Jordan agreed to this arrangement including use of the block from his Western Star.
As before, Ryan Leet performed the rebuild of the second engine. The block from the Western Star and cam and crank shaft were taken to Redline for cleaning and inspection. The cam and crank shafts were removed. It was determined the crank shaft was cracked and was not reused. Redline inspected the block and then "magna fluxed" it, which established it did not have any cracks or other defects. (Ex. 8, p. 4). Redline determined other measurements of the block, specifically the counterbores, were to specifications. Redline returned the block and cams to Greeley's, which represented to Greeley's the block was reuseable.
Because Greeley's did not have the necessary tools to install the cam bearings, Redline was hired again to do the cam bearing installation. Redline installed the cam bearings doing the necessary boring and honing, which, per the testimony of Robert Crandall, indicates measurements were again taken to assure alignment and clearances were to proper specifications. (Ex. 8, p. 4) Greeley's paid Redline for the work it performed on the block and installation of the cam bearings. The court specifically finds it was reasonable for Greeley's to believe it could reuse the block that had come from the Western Star after it was returned from Redline and Redline had installed the cam bearings.
After Redline completed its work on the block and cam bearings, Greeley's completed the rebuild of the second engine and it was installed in the Western Star-. Greeley's generated an invoice which totaled over $30,000.00 but was reduced to $15,000.00 per Jeff Jordan and Whitmore's agreement to "split the bill", (Ex. 3). The non-discounted invoice included a line item for the "short block" at $12,560.59. This represented the various component parts Greeley purchased from Freightliner of Maine to build up the block. (Ex. 18).
The invoice contained descriptions of work details that included "ORDERED REMANED SMALL BLOCK..." Whitmore asserts this demonstrates fraud by Greeley's. The court does not accept Whitmore's assertion. Brent Blackwood prepared the invoice but did not know where the block actually came from and was not aware of the agreement to use the block from the Western Star. The bill Brent Blackwood prepared did not have a cost for a block and included only component parts actually acquired for the rebuild.
On or about November 6, 2019, the Western Star with the rebuilt second engine was returned to Whitmore. Whitmore took the truck but did not pay the $15,000.00 charged for the second engine. In mid-November, 2019 Whitmore was hauling a load through Hartford, Connecticut when the truck again broke down. The truck was towed to Freightliner of Hartford. Freightliner of Hartford repaired the engine, which included a new fuel pump, and billed $4,280 for the work. Jeff Jordan agreed with Whitmore to pay a portion of the bill and Whitmore paid $2,326.32. (Ex. 4). Whitmore picked up the truck after Thanksgiving, 2019, and returned to Maine.
In early December 2019, Whitmore attempted to haul another load. Whitmore found the truck was still using significant oil and coolant and broke down again, this time in New Hampshire. This time his truck was towed to ATG Seabrook in Seabrook, New Hampshire. Whitmore incurred a towing bill of $500,00 and was charged $1,895.29 by ATG Seabrook for engine repairs. (Ex. 5) Whitmore received his truck from ATG Seabrook after Christmas, Whitmore had no communication with Greeley's about this breakdown.
In January 2020 Whitmore attempted to haul another load when his truck again broke down, this time in Pennsylvania. The truck was hauled to Sherwood Freightliner in Drums, Pennsylvania who performed a diagnostic on the engine and charged Whitmore $879.99. The truck remained at Sherwood Freightliner until the Spring of 2020 when it was towed back to Durham, Maine, where it remains to date in Whitmore's possession.
From February 2020 through February 2021, Whitmore was without a track. Through that time, he drove track as an employee for Sibley Trucking. Whitmore testified he earned around $77,000 while driving for Sibley Trucking. Whitmore testified he experienced a loss of earnings of $87,000 through this period.
In January 2021, Whitmore purchased a 2016 Freightliner from Hartt Transportation at a price of $34,000.00. (Ex. 7) He paid Hartt's in installments until June of 2021 when he paid in full. Until the truck acquired from Hartf s was paid in full, Whitmore was required to drive for Hartt's one day per week, approximately 20 weeks. Whitmore testified being required to drive for Hartt's one day per week caused him to incur lost income of $1,985.00 per week for those 20 weeks.
As previously discussed, Whitmore has not produced documentation of any kind to support his lost earnings claims. Documentation that would have assisted in assessing this type of claim would include tax returns with schedules for business income and expenses, shipping invoices that would have shown gross revenues, receipts for expenses such as fuel, tolls, trailer leases, and maintenance or other documents associated with income or revenue. Accordingly, the court finds that Whitmore has failed to prove by a preponderance of the evidence a loss of income or earnings for all times relevant to this action.
As a result of the second engine breaking down, Whitmore has proved by a preponderance of the evidence that he experienced the following damages:
1. Repair charge from Freightliner of Hartford- $2,326.32 (Ex. 4)
2. Repair charge from ATG Seabrook - $1,895.29 (Ex, 5)
3. Tow bill to ATG Seabrook - $500.00
4. Repair/diagnostic charge form Sherwood Freightliner - $879.99 (Ex. 6)
5. Miscellaneous expenses for Whitmore to travel back to Maine after the various breakdowns - $1,000.00.
Whitmore's total damages resulting from the second engine failure total $6,601.60.
Upon Whitmore bringing suit against Greeley's, Greeley's retained Robert Crandall to conduct an inspection of the failed second engine to determine the cause of its failure. Robert Crandall conducted inspections of the second engine in June and September 2021. The court found Crandall's testimony reliable and persuasive. Based upon Crandall's testimony, the court finds that the second engine failed upon the cam shaft seizing due to clearances between the cam shaft and its bearings being out of specification. It was Redline's responsibility that those clearances be to specification. The court finds that the second engine failed due to Redline's failure to properly machine the block and/or cam shaft and failure to assure the cam shaft properly fit within the bearings to specifications. The court finds that Greeley's assembly of the engine did not contribute to the failure. As for use of the block, the court, relying on Crandall's testimony, finds that it was reasonable to use the block once Redline completed its inspection and work on the block and installation of the cam bearings, suggesting Redline was indicating the block was ready for use.
Discussion.
1. Count I - Breach of Contract Claims.
The court finds that a contract existed between Whitmore and Greeley's for each engine rebuild, the first engine and the second engine. Each rebuild contract was for Greeley's to rebuild the engine to proper specifications and be useable. Regarding the contract for the rebuild of the first engine however, as previously discussed, Whitmore has failed to prove to a preponderance of the evidence what caused the bearings in the first engine to fail. Accordingly, Whitmore has failed to prove by a preponderance of the evidence that Greeley's breached their agreement to rebuild the first engine.
Regarding the second engine however, it has been proven by a preponderance of the evidence that this failure was due to the work done by Redline. Redline was Greeley's subcontractor. Accordingly, the court finds that Greeley's did breach the contract to rebuild the second engine. As a result of this breach, Whitmore incurred consequential damages as itemized supra in the amount of $6,601.60 for repair bills from Freightliner of Hartford, ATG Seabrook, Sherwood Freightliner, a towing expense, and miscellaneous travel expense back to Maine after each breakdown. As previously discussed, the court finds Whitmore has failed to prove to a preponderance of the evidence his lost earnings or income.
Based on these findings, on Count I alleging breach of contact, judgement will be entered for Whitmore against Greeley's in the amount of $6,601.60, and judgment will be entered on Greeley's third party complaint against Redline for the same amount.
2. Count IV - Unfair Trade Practice Claim
5 M.R.S. §213(1) is the statute that provides a private remedy and court action for unlawful acts and conduct prohibited by 5 M.R.S. §207. Section 213(1) provides
"Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property.. .as a result of the use or employment by another person of a method, act or practice declared unlawful by section 207.. .may bring an action for damages in the Superior Court or District Court for actual damages..
Based on the findings of fact previously articulated, it is clear Whitmore was engaged in the trucking business and the work done by Greeley's was for Whitmore's business. Accordingly the court finds a claim for unfair trade practices is inapplicable to this case. On Count IV, Unfair Trade Practice Claim, judgment will be entered for Whitmore.
3. Count V - Fraud.
To prevail on a claim for fraud, a plaintiff must prove by clear and convincing evidence that defendant: made a false representation; of material fact; with knowledge of its falsity or with reckless disregard of whether it was true or false; for the purpose of inducing the plaintiff to act or to refrain from acting in reliance of on the representation; and the plaintiff justifiably relied on the representation, causing economic loss, See Maine Eye Care Assocs. P.A. v. Gorman, 2008 ME 36, ¶¶12-15; see also Alexander, Maine Jury Instruction Manual, §7-30 (2022).
Whitmore's fraud claim relates to use of the block from the Western Star and his further assertion Greeley's made a false representation in the invoice with the work description "ORDERED REMANED SMALL BLOCK ENGINE...". As previously indicated, the court finds that Whitmore and Jeff Jordan discussed and agreed to use the block from his Western Star. That finding defeats the fraud claim. A few other points, however need discussion.
As Whitmore correctly points out, the invoice work description of "ORDERED REMANED SMALL BLOCK ENGINE..." is incorrect. However, it was with Jeff Jordan, as owner of Greeley's, that Whitmore discussed the use of the block. But this was after Jordan had in fact tried to order from Freightliner of Maine a block. It was after he learned no block of any kind could be sourced for months that a different option was discussed. Brent Blackwell prepared the invoice. And the description "ORDERED REMANED SMALL BLOCK ENGINE" was consistent with the initial plans and efforts. Blackwell was simply uninformed as to what block was ultimately used. In addition, the invoice contains no improper charges for a block. The charge associated with the block, $12,560.59, were the components from Freightliner of Maine necessary to build a short block. (Ex. 18) There is no evidence Blackwell, or any others with Greeley's, knowingly or recklessly made a false representation of material fact.
Through the trial, there was evidence elicited that the bills from Freightliner of Hartford and Sherwood Freightliner showed the engine serial number of the original engine block out of the Western Star. This evidence was seemingly offered to suggest Whitmore could have, or should have, seen this himself. The court does not necessarily agree with that assertion. However, this evidence caused the court to reflect on a couple other things. First of all, the court learned that the engine serial number, including that shown on the engine block reused from the Western Star, are openly visible. Secondly, it is apparently common for service garages and dealers to show the engine serial number on bills and invoices, a fact likely known to Greeley's. The point being, it seems to the court that a garage reusing an engine block that has on it the placard with the serial number would be foolhardy to think it could fraudulently reuse the block without being detected.
In summary, Whitmore has failed to prove fraud by either a preponderance of the evidence or by clear and convincing evidence. On Count V, Fraud judgment will be entered for Greeley's.
The order is
On Count I of Plaintiff Robert Whitmore's second amended complaint alleging breach of contract, judgment is entered for Plaintiff Robert Whitmore and against Defendant Greeley's Garage, Inc. in the amount of $6,601.60, plus prejudgment interest and costs as allowed by law and approved by the court. On Count IV and Count V of Plaintiff Whitmore's second amended complaint alleging unfair trade practice violations and fraud, respectively Judgment is entered for Defendant Greeley's Garage, Inc. Count II and Count III of Plaintiff Whitmore's second amended complaint alleging negligence and breach of the warranty of merchantability, respectively, are dismissed with prejudice and without costs on Plaintiff's motion made at commencement of trial.
On Defendant Greeley's Garage, Inc.'s counterclaim, judgment is entered for Plaintiff Robert Whitmore
On Defendant/Third Party Complainant Greeley's Garage, Inc.'s third party complaint against Third Party Defendant Redline Performance Engines, LLC, judgment is entered for Third Party Plaintiff Greeley's Garage, LLC and against Third Party Defendant Redline Performance Engines, LLC for all amounts Defendant/Third Party Plaintiff Greeley's Garage, LLC is liable to Plaintiff Robert Whitmore, $6,601.60, plus prejudgment interest and costs as allowed by law and ordered by the court.
Pursuant to 14 M.R.S. §163, the parties are to notify the court whether a release or settlement with Third Party Defendant Redline Performance Engines, LLC has occurred that precludes or reduces recovery on this judgment from Defendant Greeley's Garage, LLC, and the terms and effect on the judgment herein.
The clerk is directed to enter this order on the docket by reference pursuant to M.R. Civ. P. 79(a).