Jay Cashman, Inc. v. Portland Pipe Line Corp., Civil No. 07-93-P-H.
| Citation | 559 F.Supp.2d 85 |
| Decision Date | 18 June 2008 |
| Docket Number | Civil No. 07-93-P-H. |
| Parties | JAY CASHMAN, INC., Plaintiff, v. PORTLAND PIPE LINE CORP., Defendant. |
| Court | U.S. District Court — District of Maine |
Martha C. Gaythwaite, Elissa A. Tisdahl, Friedman, Gaythwaite, Wolf & Leavitt, Portland, ME, for Plaintiff.
Jotham D. Pierce, Jr., Nikolas P. Kerest, Pierce, Atwood, LLP, Portland, ME, for Defendant.
Portland Pipe Line Corp. ("Pipeline") moves for summary judgment in its favor on three of the five counts of the complaint filed against it by Jay Cashman, Inc. ("Cashman"). In its complaint, Cashman seeks additional compensation for dredging work it performed for Pipeline in the Portland Harbor Channel. See generally Defendant's Motion for Partial Summary Judgment ("Defendant's S/J Motion") (Docket No. 27); Complaint (Jury Trial Demanded) ("Complaint") (Docket No. 1). In addition, Cashman seeks, via five motions in limine, to exclude evidence it anticipates Pipeline will offer against it. See Plaintiff Jay Cashman Inc.'s Motion in Limine To Exclude Evidence Including Expert Opinion Testimony Concerning [Cashman's] Hydrographic Surveying ("Limine Motion/Surveying") (Docket No. 28); Jay Cashman Inc.'s Motion in Limine To Exclude Evidence of Settlement Negotiations ("Limine Motion/Settlement") (Docket No. 29); Plaintiff Jay Cashman, Inc.'s Motion in Limine To Exclude Evidence of Third-Party Insurance Claim ("Limine Motion/Insurance") (Docket No. 30); Plaintiff Jay Cashman Inc.'s Motion in Limine To Limit the Testimony of Defendant's Expert Edward Geoff Webster ("Limine Motion/Webster") (Docket No. 31); Plaintiff Jay Cashman Inc.'s Motion in Limine To Exclude Any Evidence To Clarify the Terms of the Contract Where the Contract Is Not Ambiguous ("Limine Motion/Contract Terms") (Docket No. 32). With the benefit of oral argument held before me on May 13, 2008, addressing all six motions, I defer ruling until trial on three of the motions in limine (the Limine Motion/Settlement, the Limine Motion/Insurance, and the Limine Motion/Webster), grant the Limine Motion/Contract Terms, deny the Limine Motion/Surveying, and recommend that the court grant the Defendant's S/J Motion as to Counts III (unjust enrichment) and V (unconscionability and breach of the duty of good faith and fair dealing) and deny it as to Count II (quantum meruit).
At oral argument, counsel for Cashman sought postponement of the court's ruling until trial on three of its pending motions in limine, the Limine Motion/Settlement, the Limine Motion/Insurance, and the Limine Motion/Webster. Counsel for Pipeline lodged no objection to that request. Accordingly, ruling on those motions is reserved until trial. Pipeline's counsel also advocated for postponement of a ruling on Cashman's remaining two motions in limine, the Limine Motion/Contract Terms and the Limine Motion/Surveying, in view of the complexity of the contract and the record in this case, and the parties' sharp divergence on the motions' merits. Counsel for Cashman rejoined that the motions could and ought to be adjudicated and that their prompt resolution would assist counsel in preparing for trial. I agree with Cashman and accordingly address the merits of those two motions.
In its motion in limine concerning contract terms, Cashman in effect asks the court to declare that the parties' contract unambiguously (i) incorporated the standards of the United States Army Corps of Engineers Hydrographic Manual, Class 1, EM 1110-2-1003, October 1994 ("1994 Manual"), including the manual's direction that hydrographic surveyors build a halffoot tolerance, or leeway, into measurements in so-called "Class I" surveys, and (ii) fixed mean lower low water ("MLLW") as the standard by which Cashman's performance was to be measured, without reference to a bronze disk on Pipeline's Pier No. 2 that Pipeline contends the parties agreed would serve as the benchmark, or "contract datum," for measurement of Cashman's progress on the project. See generally Limine Motion/Contract Terms; Plaintiff Jay Cashman, Inc.'s Reply to Defendant's Opposition to Plaintiffs Motion in Limine To Exclude Any Evidence To Clarify the Terms of the Contract Where the Contract Is Not Ambiguous ("Limine Reply/Contract Terms") (Docket No. 52).
Cashman initially anticipated that Pipeline would "attempt to argue at trial that some of the contract's provisions are subject to several interpretations or that they are meaningless." Limine Motion/Contract Terms at 1. Pipeline clarified that it makes no such argument;, rather, its position is that the contract unambiguously did not incorporate a half-foot measurement tolerance and unambiguously fixed the bronze disk as the benchmark from which Cashman's performance was to be measured. See generally Defendant's Opposition to Plaintiffs Motion in Limine To Exclude Evidence To Clarify or Explain the Terms of the Contract ("Limine Opposition/Contract Terms") (Docket No. 41). Pipeline seeks denial of the motion on the bases that (i) its interpretation of the contract alone is reasonable and, (ii) alternatively, should the court find both parties' interpretations reasonable (and the contract therefore ambiguous), it is entitled to present extrinsic evidence clarifying the parties' intent. See id. at 1.
The parties see eye to eye on most of the operative legal constructs. They agree that (i) whether a contract term is ambiguous is a question of law for the court, (ii) if a term is unambiguous, its meaning should be derived from within the four corners of the contract, and (iii) if contract terms lend themselves to more than one reasonable interpretation, those terms are ambiguous. Compare Limine Motion/Contract Terms at 2 with Limine Opposition/Contract Terms at 3; see also, e.g., Triple-A Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 220 (1st Cir.1987); Portland Valve, Inc. v. Rockwood Sys. Corp., 460 A.2d 1383, 1387 (Me.1983). However, the parties diverge on what results if the court finds an ambiguity. Cashman urges the court to construe any ambiguous terms against the contract's drafter (Pipeline), see Limine Motion/Contract Terms at 6; Pipeline says the parties should be permitted to introduce extrinsic evidence to clarify any ambiguity, see Limine Opposition/Contract Terms at 3. Pipeline has the better argument. See Tinker v. Continental Ins. Co., 410 A.2d 550, 553-54 (Me.1980) ( ).
The parties' contract included a twenty-page Supplemental Schedule 1, Scope of Work ("SOW"). See SOW, Exh. A to Limine Motion/Contract Terms. The SOW described the job at issue as follows:
[Pipeline or "Company"] owns and operates a crude oil receiving pier (Pier 2) and storage terminal in South Portland, Maine, that receives petroleum from ocean-going tankers. The Company proposes to deepen the federally designated Portland Harbor Approach Channel (referred to herein as "the Channel") and the approach to Pier 2 from the Channel (referred to herein as "the Transition Area") to the performance limits (-48 feet MLLW or -50 feet MLLW) to accommodate larger vessels as shown on the contract Exhibits and Drawings. The portions of the Channel and the Transition area designated for dredging to the performance limits, as shown on the contract drawings (see 0103—List of Drawings), are collectively referred to herein as the Project Area.
Id. at 1, § 0102.1 The project goal was "to dredge the Project Area ... to the performance limits as shown on the Contract Drawings and Exhibits and as defined herein." Id. Section 0103 of the SOW listed approximately a dozen drawings "generated to define the scope of work" and "considered part of the Contract Documents^]" among them "OSI Drawings of the acoustic basement; July 31, 2002." Id. at 2, § 0103. The SOW also contained the following relevant provisions:
0254—Physical Data
The physical conditions indicated on the drawings and in the specifications are the result of site investigations by multi-beam hydrographic surveys, acoustic Doppler current profiling and/or sampling and physical and/or chemical testing of channel sediments or rock deposits. The surveys were conducted in accordance with the USACOE Hydrographic Manual, Class 1, EM 1110-2-1003, October 1994.
* * *
The Company will conduct the postdredge hydrographic surveys in accordance with Section 1027. The Company is responsible for the cost of one postdredge survey that successfully demonstrates that the Contractor has satisfactorily completed the work to the performance limits. Any additional survey work conducted by the Contractor shall be at the Contractor's expense. In the event that the Company-conducted postdredge surveys identify areas of the work that have not been satisfactorily completed to the performance limits, the Contractor shall re-dredge the affected areas to the performance limits and will be responsible for the cost of the subsequent re-surveys by the Company to determine attainment of the performance limits. The cost of any such resurveys will be deducted from the payments to the Contractor.
... The post-dredging hydrographic surveys will employ comparable equipment and techniques...
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