adopting verbatim the definition of employer from Korea Shipping
How later courts described this case
- adopting verbatim the definition of employer from Korea Shipping
Written by the judges who cited it.
The opinion
WHITE, Circuit Judge,
concurring and dissenting.
I join in the majority opinion except for section II.B. I would reverse and remand the contractual claim based on § 3 of the *288 Agreement. 1 Unlike the majority, I do not interpret the phrase “actual costs and expenses of operation” to unambiguously provide that “costs” for which Top became liable as the result of its operations under the contract with ICP, but did not pay, are not “actual costs.”
The word “actual” means “real.” In this context, “real” or “actual” could mean the actual amount of the costs and expenses as contrasted with the actual amount plus a percentage markup for services, or an additional markup for overhead. This is a common usage of the term actual. For example, a provision of the Bankruptcy Code allows court-appointed trustees of bankrupt estates to recoup “actual, necessary expenses.” 11 U.S.C. § 330 (a)(1)(B). Federal courts interpreting that language have distinguished “actual” expenses not from unpaid expenses, but from “estimated” expenses, as well as from general overhead expenses not attributable to any one account. See generally, James Lockhart, Annotation, What Expenses Qualify for Reimbursement Under Bankruptcy Code Provision Allowing Reimbursement to Trustees, Examiners, and Professional Persons for Actual, Necessary Expenses ( 11 U.S.C.A. § 330 (a)(1)(B)), 169 A.L.R. Fed. 197 (2001).
Absent evidence of an alternate meaning between the parties, a reasonable interpretation of the phrase “actual costs and expenses” in the Agreement is that it served to make similar distinctions as those in other business interactions, and not to disqualify incurred but unpaid liabilities. Cf. In re Washington Mfg. Co., 101 B.R. 944, 956 (Bankr.M.D.Tenn.1989) (stating that “actual, necessary expenses” are expenses that are “incurred”).
Further, the fact that withdrawal liability is not mentioned in the contract is not dispositive. The contract clearly provided that costs and expenses shall include, but not be limited to, the enumerated items. It is undisputed that over the course of the thirty-year relationship, Top billed ICP for, and ICP paid, the ongoing pension cost and expense. Further, ICP and Top visited the issue in 1994, when ICP cut back on the number of drivers supplied by Top. At that time, Top informed ICP of its potential withdrawal liability. ICP responded that it had obtained an opinion from counsel that “no liability will be incurred by [ICP] as a result of the downsizing.” Although the district court interpreted this as ICP’s assertion that withdrawal liability was not an obligation of ICP, it can also be understood as a statement that ICP believed that the anticipated downsizing would not trigger withdrawal liability, and a tacit acceptance of the underlying assertion that ICP might have withdrawal liability under the Agreement under different circumstances. Indeed, it is not asserted that the downsizing triggered such liability. If it had, no doubt Top would have billed ICP.
Because § 3 of the Agreement is not unambiguous as applied to this situation, and the surrounding circumstances create a genuine issue of material fact as to ICP’s and Top’s intent, I would reverse the grant of summary judgment and remand for further proceedings on this issue as well.
. I concur in the affirmance of the district court’s grant of summary judgment dismissing plaintiffs' contract claim based on § 5 of the Agreement.