Hopkins v. BP Oil, Inc.
| Decision Date | 26 April 1996 |
| Docket Number | No. 94-6906,94-6906 |
| Citation | 81 F.3d 1070 |
| Parties | Troy HOPKINS, individually and on behalf of all BP/Gulf dealers in Alabama, Herbert Sharpe, individually and on behalf of all BP/Gulf dealers in Alabama, John Mann, individually and on behalf of all BP/Gulf dealers in Alabama, Plaintiffs-Appellees, Robert Shaw, individually and on behalf of all BP/Gulf dealers in Alabama, Sherry Shaw, individually and on behalf of all BP/Gulf dealers in Alabama, Tom Pool, individually and on behalf of all BP/Gulf dealers and Exxon dealers in Alabama, Terry Palamotos, individually and on behalf of all BP/Gulf dealers and Exxon dealers in Alabama, Plaintiffs, v. BP OIL, INC., Defendant-Appellant, Exxon Corporation, Chevron USA, Inc., Defendants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Linda A. Friedman, Susan Donovan Josey, Bradley, Arant, Rose & White, Birmingham, AL, Richard H. Gill, George W. Walker, III, Copeland, Franco, Screws & Gill, P.A., Montgomery, AL, for appellant.
John R. Chiles, Donna Bowling Nathan, Sirote & Permutt, P.C., Birmingham, AL, Frank M. Wilson, Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, AL, for appellees.
Appeal from the United States District Court for the Middle District of Alabama.
Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD *, Senior Circuit Judge.
BP Oil, Inc. ("BP") sells gasoline to gasoline station operators for them to re-sell to the public. In this diversity case, three gasoline station operators (the "dealers") sued BP under Alabama law for breach of contract and breach of statutory obligation, among other claims. The dealers alleged that, by billing them based on gross gallons of gasoline rather than based on temperature-compensated gallons of gasoline, BP breached the parties' contracts and its obligation under User Regulation 3.5 ("U.R. 3.5") of National Bureau of Standards Handbook 44. A jury returned a verdict for the dealers on each of their claims. BP appeals, and we reverse the judgment entered on those verdicts.
BP began operating in Alabama on February 1, 1985, when it acquired certain Gulf facilities in Alabama and assumed Gulf contracts to supply gasoline to Gulf-brand gas stations in Alabama. The dealers were operators of Gulf-brand gas stations in Alabama who began buying gasoline from BP when it assumed Gulf's contracts. The dealers eventually executed renewal contracts with BP.
Gasoline's volume varies according to its temperature. Volume expands as temperature rises; volume contracts as temperature falls. To account for gasoline consistently despite fluctuating temperatures, the American Petroleum Institute, a private trade organization, has established a voluntary standard of temperature compensation. Temperature compensation involves adjusting the actual volume of gasoline at a particular temperature to what its volume would be at 60 degrees Fahrenheit.
The Alabama Department of Weights and Measures has adopted National Bureau of Standards Handbook 44 and it was in effect during the relevant time period. U.R. 3.5 of Handbook 44 requires that any written invoice based on a reading of a wholesale measuring device equipped with an "automatic temperature compensator" show that the gasoline delivered has been adjusted to the volume at 60? F. 1 An "automatic temperature compensator" physically adjusts the volume of gasoline dispensed to equal the gallon amount that would be dispensed if the gasoline's temperature were 60? F.
Until February 1, 1988, BP billed the dealers and other Alabama retailers based on the number of gross gallons delivered. In addition to the number of gross gallons, BP's invoices to the dealers showed the gasoline's temperature when dispensed at BP's terminal, as well as its specific gravity. BP was able to record this information on its invoices because the loading line at its terminal was equipped with a temperature probe. The gasoline's temperature was sent automatically by computer to Cleveland, where BP processed the invoices. The invoices then were printed out at the selling terminal. 2 The contracts between the dealers and BP did not define "gallon." However, each dealer testified that he understood that he was receiving gross gallons of gasoline from BP, just as he had received gross gallons from Gulf.
In July of 1985, dealer Hopkins's accountant discovered an inventory shortage and informed Hopkins that the shortage probably was due to variations in temperature and gross billing. Hopkins wrote to BP requesting billing on a temperature-adjusted basis. The local BP representative told Hopkins that shortages and overages even out over the course of a year. After Hopkins wrote another letter requesting temperature-compensated billing, BP responded that it did not sell gasoline to dealers on a temperature-adjusted basis and that it would continue to bill Hopkins based on gross gallons.
The dealers sued BP for breach of contract, breach of statutory obligation, and fraudulent suppression under Alabama law. Dealer Hopkins also sued BP for affirmative misrepresentation under Alabama law.
In their complaint, the dealers alleged that the dispensing equipment at BP's terminal was ." (Compl. at p 13.) In its answer, BP stated: (Answer at p 13.)
The dealers further alleged in their complaint that BP "had invoiced ... according to volumes of gasoline measured at the ambient temperature at the terminal and had refused to temperature compensate the motor fuel sold." (Compl. at p 16.) These billing practices allegedly violated Handbook 44. In addition, they allegedly violated the parties' contract "by charging them for a gallon of motor fuel when a gallon was not actually delivered when measured in accordance with said user regulations." (Compl. at p 17.) The dealers alleged that they were overcharged from February 1, 1985, to February 1, 1988. (Compl. at p 18.) BP denied these further allegations. (Answer at p 16.)
The district court entered a scheduling order setting final deadlines for witness exchange and designation of experts. After holding a pretrial conference, the district court entered a pretrial order. Though the pretrial order purported to detail each party's contentions, the dealers did not explicitly contend in the order that BP had or used an "automatic temperature compensator," nor did BP explicitly contend that it did not have or use an "automatic temperature compensator."
Before trial, BP filed a motion in limine to preclude the dealers from introducing extra-contractual evidence as to the meaning of the term "gallon" in the contracts between BP and the dealers, contending that "gallon" is unambiguous. The district court denied BP's motion.
Ten days before trial, BP moved to add a new witness, Steve Gandee, to its witness list. Conceding that Gandee was identified after the district court's deadline for witness exchange, BP represented that Gandee was a substitute for a seriously ill witness who could not attend trial. Over the dealers' objection, the district court allowed BP to add Gandee to its witness list.
The dealers deposed Gandee on the Friday before the Monday on which trial began. They learned at the deposition that BP disputed that it had "a device equipped with an automatic temperature compensator" within the meaning of U.R. 3.5. The dealers moved to exclude Gandee's testimony, contending that BP had not disputed, in its answer, briefs, or other pretrial contentions, that it had an "automatic temperature compensator." Thus, they argued, BP was unfairly changing its theory of the case on the eve of trial. The district court agreed, refusing to allow Gandee or any other BP witness to testify at trial that BP did not have an "automatic temperature compensator."
The Director of the Alabama Department of Weights and Measures was permitted to testify at trial as to his interpretation of U.R. 3.5. He opined that U.R. 3.5 requires invoices to show the temperature-compensated amount of gasoline sold if dispensed through a device equipped with an "automatic temperature compensator." Presented with hypotheticals purporting to describe BP's dispensing equipment, he opined that BP had a device equipped with an "automatic temperature compensator."
At the close of the dealers' evidence, and again at the close of all the evidence, BP moved for judgment as a matter of law on all claims. The district court denied the motion both times. The jury returned a verdict for the dealers on each of their claims. The jury awarded dealer Hopkins $100,000 in compensatory damages, dealer Mann $150,000 in compensatory damages, and dealer Sharpe $50,000 in compensatory damages. In addition, the jury awarded each dealer $200,000 in punitive damages. The district court denied BP's renewed motion for judgment as a matter of law. On BP's motion for a new trial or remittitur, the compensatory damage awards were reduced to $12,072.66 for Hopkins, $27,941.40 for Mann, and $2,462.40 for Sharpe. The punitive damage awards, however, were left intact.
We address four issues on appeal. First, whether the term "gallons" in the contracts between BP and the dealers is ambiguous. Second, whether U.R. 3.5 requires billing based on temperature-compensated gallons when gross gallons are delivered. Third, whether, for purposes of the dealers' fraudulent suppression claims, BP had an obligation to disclose the number of temperature-compensated gallons delivered. Fourth, whether the evidence was sufficient for a reasonable jury to conclude that dealer Hopkins reasonably...
To continue reading
Request your trial
-
In re Motor Fuel Temperature Sales Practices Lit.
... ... and Measures ("NCWM"), an association which includes representatives from government and the oil industry, recognized that due to temperature expansion, motor fuel purchased solely based on volume ... Defendants contend that under Hopkins v. BP Oil, Inc., 81 F.3d 1070 (11th Cir. 1996), the term "gallon". is unambiguous and refers to a ... ...
-
In re Motor Fuel Temperature Sales Practices Litig.
... ... v. Alon USA, Inc., et al., Lerner, et al. v. Costco Wholesale Corp., et al., Wyatt, et al. v. B.P. Am. Corp., et al ... but "the resolution of this problem lies not with this court but with the Legislature." Al-Sal Oil Co. v. State Bd. of Equalization , 283 Cal. Rptr. 843, 856, 232 Cal. App.3d 969, 988 (1991); see ... Rptr.3d at 328-29, 202 Cal. App.4th at 1385-86; see also Hopkins v. BP Oil, Inc. , 81 F.3d 1070, 1074 (11th Cir. 1996) (district court erred in permitting jury to ... ...
-
Wells v. Gourmet Servs., Inc.
... ... of pro se litigants are 'liberally construed,' they must still comply with procedural rules governing the proper form of pleadings." Hopkins v. Saint Lucie County School Bd., 399 Fed. Appx. 563, 565 (11th Cir. 2010) (unpublished) (citations omitted). II. Facts and Procedural History On ... 2003) (recognizing an action for promissory fraud was governed by Alabama law); Hopkins v. BP Oil, Inc., 81 F.3d 1070, 1071 (11th Cir. 1996) (recognizing that an action for breach of contract was governed by Alabama law). The court does not have ... ...
-
Harris Corp. v. Giesting & Associates, Inc., No. 01-13749.
... ... We review de novo whether a contract's language is ambiguous. Hopkins v. BP Oil, Inc., 81 F.3d 1070, 1074 (11th Cir.1996) (citing Dunkin' Donuts of Am., Inc. v. Minerva, Inc., 956 F.2d 1566, 1573 (11th Cir.1992)) ... ...