Air Brake Sys. Inc v. Tuv Rheinland Of North Am. Inc, 3:07-cv-01364 (CSH).

• Decision Date: 30 March 2010
• Docket Number: No. 3:07-cv-01364 (CSH).,3:07-cv-01364 (CSH).
• Citation: 699 F.Supp.2d 462
• Court: U.S. District Court — District of Connecticut
• Parties: AIR BRAKE SYSTEMS, INC., Plaintiff,v.TUV RHEINLAND OF NORTH AMERICA, INC., Defendant.

699 F.Supp.2d 462

AIR BRAKE SYSTEMS, INC., Plaintiff,v.TUV RHEINLAND OF NORTH AMERICA, INC., Defendant.

No. 3:07-cv-01364 (CSH).

United States District Court D. Connecticut.

March 30, 2010.

James Hatcher Graham, J. Hatcher Graham, PC, Warner Robins, GA, Paul A. Garlinghouse, New Haven, CT, for Plaintiff.

Daniel F. Hayes, Leslie F. Ruff, Biedermann, Reif, Hoenig & Ruff, P.C., New York, NY, John J. Radshaw, III, Mark J. Claflin, Howd & Ludorf, LLC, Hartford, CT, Paul T. O'Neill, Paul T. O'Neill PLC, Detroit, MI, for Defendant.

OPINION AND ORDER on Defendant's Motion for Summary Judgment

HAIGHT, Senior District Judge:

Plaintiff Air Brake Systems, Inc. (“ABSI”) ¹ has sued defendant TUV Rheinland of North America, Inc. (“TUVRNA”) for breach of contract, tortious interference with contract, fraud, negligence, and professional malpractice. ABSI originally filed its verified complaint in the United States District Court for the Eastern District of Michigan, invoking federal diversity jurisdiction.² In that court, TUVRNA moved for a change of venue to the District of Connecticut, because the contract at issue specified Connecticut in separate choice-of-law and choice-of-venue provisions. The court granted that motion, and the case was subsequently transferred to this judicial district. See Order & Opinion Granting Defendant's Motion To Transfer Venue [doc. # 28] (E.D. Mich. Aug. 31, 2007) (Ludington, J.).

TUVRNA now moves under Federal Rule of Civil Procedure 56 for summary judgment, as well as to exclude the testimony of a purported expert witness.

I. FactsA. Background

Plaintiff ABSI manufactures a pneumatic brake system for trucks and trailers, known as the MSQR-5000. ABSI alleges that in or around the year 2005, the company was trying to sell the MSQR-5000 “in the South African truck market.” Verified Compl. [doc. # 29] ¶ 9. After receiving preliminary approval from the relevant regulatory authorities, the company “had orders for several million dollars worth of MSQR-5000® in the country of South Africa, and had begun installation on truck trailers in South Africa. However, a group of competing manufacturers prevailed upon the [regulatory body] to require an additional series of tests on the MSQR-5000.” Id. ¶¶ 12-13. The documents provided by ABSI show that in early December 2005, following a “consumer concern,” the South African regulatory body “immediately retracted” its preliminary approval for the MSQR-5000, and instructed ABSI to “retract the product from the South African market until such time that compliance to [relevant regulations] can be proven.” Pl.'s Opp'n ex. 5 [doc. # 80-5] at 1, 2, 3.

In its complaint, ABSI alleges that its product had passed all the tests required for approval in South Africa, save one: the so-called “split friction test.” ³ Moreover, because facilities to perform the split friction test did not exist in South Africa, ABSI elected to perform the test in the United States id. ¶¶ 14-15, perhaps because it believed that “[a]ll of the testing facilities in Europe were either owned or controlled by the Plaintiff's competitors.” Pl.'s Mem. in Opp'n [doc. # 80] at 3.

It was at this point-with the MSQR-5000 recently banned in South Africa, and ABSI anxious to prove its compliance as to the split friction test-that the parties in this case first encountered one another. In early February of 2006, ABSI was referred to Link-Radlinski, a testing company with facilities in Ohio and Texas. Link-Radlinski was not qualified to certify anything under the South African regulations, so the company referred plaintiff to TUVRNA, which had a supposed expertise in the European analogue of the South African regulation.⁴

ABSI's primary contact at TUVRNA was Lead Engineer Serge Reding. Reding testified at his deposition that TUVRNA was an “approved authority to witness these tests, so it's our responsibility to make sure that the tests are conducted, either we conduct them ourselves or we have to make sure that they are conducted[,] according to the [regulatory] standard.” Reding Dep'n, Pl.'s Opp'n ex. 16 [doc. # 80-16], at 16.

B. The Parties' Contract for Testing Services

Reding negotiated the price for the testing directly with ABSI's president, William E. Washington. Washington Dep'n, Def.'s Mot. ex. M, at 48 (Feb. 11, 2008). On or about February 14, 2006, TUVRNA provided ABSI with a “Quotation for Product Evaluation,” which listed a project description and four itemized expenses. Compl. ex. A at 1 [hereinafter “Quotation”]. The Quotation form begins with the following boilerplate text:

Thank you for your interest in the services of TUV Rheinland of North America, Inc. We are very interested in your business and based on the information provided, we have prepared the following estimate. Unless otherwise specified, this project includes assistance with test plan preparation, review of the documentation (“information folder”), technical report and certification. This quotation does not include travel expenses, charged at cost, unless stated otherwise.

Id. (emphasis added).

Below the boilerplate text, specific details of the proposed “services” follow.

                -------
                |Description of Product and/or System                                         |
                |-----|
                |MSQR-5000 ABS system tests according to ECE-R 13, Annex 13, on one           |
                |semi-trailer.                                                                |
                -------
                

                -------
                |Witness Testing, based on 2 days on-site at LRI, East Liberty, OH    |$3,600 |
                |---------------------|-------|
                |Laboratory expenses, inc. vehicle prep, test track fees and driver   |$11,500|
                |(LRI)                                                                |       |
                |---------------------|-------|
                |Technical Report                                                     |$1,200 |
                |---------------------|-------|
                |Estimated travel expenses                                            |$500   |
                -------
                

                -----------------------
                |TOTAL|$16,800.00 USD |
                -----------------------
                

Id. Immediately below the itemized estimated costs, the form states that “Air Brake Systems Inc. hereby agrees to the terms stated in this quote.” The document is signed by ABSI president William E. Washington, on February 15, 2006, and it is not signed by anyone else. Id.

Washington also signed, on the same day, another document captioned “Service Agreement by and between TUV Rheinland of North America, Inc. and Air Brake Systems Inc.” Compl. ex. A at 2 [hereinafter “Service Agreement”].⁵ The Service Agreement, too, is not signed by anyone else.

It is undisputed that the Service Agreement provided the terms of the engagement between ABSI and TUVRNA. And while the parties dispute precisely what obligations that agreement imposed, there is no dispute that the Service Agreement properly incorporates by reference at least two addenda, namely “the attached [1] General Terms and Conditions & [2] Testing and Certification Regulations.” Serv. Aggr. at 1. Neither of those addenda is attached to ABSI's complaint, but they are attached to TUVRNA's Motion for Summary Judgment. See Def.'s Mot. ex. D [doc. # 70-5]. The parties also agree that “[p]rior to signing the Service Agreement, [Plaintiff's President William E.] Washington received and reviewed the ‘Terms and Conditions' document referred to in the Service Agreement.” Def.'s Local Rule 56(A)(1) Statement [doc. # 73] ¶ 5; see also Pl.'s Responses to Def.'s Local Rule 56(A)(1) Statement [doc. # 79] ¶ 5 (admitting same).

The General Terms and Conditions addendum includes several provisions that are relevant to this litigation:

17. Warranty and Limitation of Liability

...

17.3. CUSTOMER MAY NOT BRING ANY ACTION ARISING OUT OF OR IN CONNECTION WITH ANY TRANSACTION COVERED BY THESE TERMS UNLESS SUCH ACTION IS COMMENCED WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.

17.4.... THE LIABILITY OF TRNA AND THE TRNA AFFILIATES HEREUNDER IS EXPRESSLY LIMITED TO DIRECT DAMAGES INCURRED WITH RESPECT TO THE SERVICES BY TRNA. ⁶ IN NO EVENT SHALL TRNA BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR GOODWILL, OR ADDITIONAL EXPENSES INCURRED, WHETHER PURSUANT TO A CLAIM IN CONTRACT, TORT OR OTHERWISE AND WHETHER IN AN ACTION FOR BREACH OF WARRANTY OR OTHERWISE.

...

19. Governing Law and Jurisdiction; Place of Performance

19.1. The construction and validity of these Terms shall be governed by the laws [of] the State of Connecticut, USA, without giving effect to its conflict of laws rules, regardless of where any order was placed or filed, the place of performance of the Services or delivery of reports or where any other act or performance has occurred.

19.2. All Services provided by TRNA shall be deemed to be provided in Newtown, Connecticut, USA. The Customer agrees to the exclusive jurisdiction of the federal and state courts located in the State of Connecticut, with respect to the adjudication of any dispute arising out of or in connection with the provisions of the services, the Service Agreement or these Terms.

...

19.4. In the event of any legal action, the prevailing party shall be entitled to recover from the other party all costs, expenses and reasonable attorney's fees, expert witness fees, and any other costs incurred to bring or defend such action.

Def.'s Mot. ex. D [doc. # 70-5] at 2.C. The Testing on March 7, 2006

Pursuant to the Service Agreement, TUVRNA observed a test of the MSQR-5000 system on March 7, 2006, in the presence of ABSI personnel. The mechanics of the test were administered by non-party Link-Radlinski, and the test was performed at a facility and track owned by another non-party, Transportation Research Company.

In opposing summary judgment, ABSI emphasizes the existence of several factual questions regarding which exact tests were performed, and which ones were not performed. See [doc. # 80] at 3.

The Plaintiff contends that the Defendant did not perform a

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