The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HARDIE-TYNES CO., INC., )
)
Plaintiff, )
)
v. ) Case No.: 2:16-cv-1417-LCB
)
SKF USA, INC., )
)
Defendant. )
MEMORANDUM OF DECISION
This case involves a dispute over the construction of a drawbridge in Florida.
Several previous orders from the undersigned and judges previously assigned to this
case have laid out the facts in great detail. Thus, it is not necessary to restate those
facts in their entirety; a brief summary will suffice. The short of it is that Plaintiff
Hardie-Tynes, Inc. (“HT”) purchased bearings from Defendant SKF, Inc. (“SKF”),
which were to be used in the in the bridge’s construction. The project wasn’t
completed on time, and HT blames SKF’s bearings.
I. Findings of Fact Pursuant to Fed. R. Civ. P. 52(a)
a. Undisputed Background Facts
In 2010, Lee County, Florida entered into a general construction contract with
Archer Western Contractors Ltd., Inc., (“Archer Western”), for a project known as
the Matlacha Bridge Replacement (“the Project”). Archer Western was the general
contractor on the project, and E.C. Driver & Associates, Inc. (“E.C. Driver”)
designed the Project and served as engineer of record. Archer Western entered into
a subcontract with HT, whereby HT was to supply the structural steel and machinery
for the Project. HT then entered into a subcontract with SKF in which SKF was to
supply two bearings that were involved in the raising and lowering of the bridge.
It is undisputed that the Project was not completed on time based in part on a
noise that came from the bridge when it was raised and lowered. The parties disagree
about the exact cause of the noise, but HT blames it on SKF’s bearings.
The delay in completing the Project potentially triggered a liquidated damages
provision in the contract between Archer Western and Lee County. This set off a
wave of litigation beginning with a lawsuit in Hillsborough County, Florida in which
HT sought recovery of its retainage holdback from Archer Western. Archer Western
filed a counterclaim in that case for breach of contract and indemnification.
According to Archer Western, HT breached its contract by, among other things,
failing to provide SKF bearings that were free from defects; failing to provide SKF
installation services that were free from defects; failing to provide SKF bearings that
were fit for the purposes intended; failing to provide SKF installation services that
were fit for the purposes intended; and providing an SKF bearing that performed
abnormally. That case was followed by a suit in the United States District Court for
the Middle District of Florida between Archer Western (as plaintiff) and Lee County
and its engineers(as defendants). That action settled in 2016. Afterwards, HT and
Archer Western settled Archer Western’s counterclaim in the Hillsborough County
Action. The financial liability for these settlements is at the heart of the present
litigation.
HT has asserted four claims in the present case stemming from its purchase
of SKF’s bearings: (1) breach of a contractual indemnity clause; (2) common law
indemnity; (3) breach of warranty; and (4) fraudulent suppression. In order to
complete the purchase and sale of the bearings at issue, HT and SKF traded
numerous items of correspondence including emails, price quotes, and purchase
orders. Each company had a set of standard terms and conditions that it sought to
apply to the transaction. Unsurprisingly, HT’s terms and conditions are quite
favorable to HT, and SKF’s terms and conditions are quite favorable to SKF. As
noted in the most recent summary judgment order (Doc. 160), a determination of
whose terms and conditions apply will dictate the remainder of these proceedings.
Deciding whose terms and conditions applied in HT’s and SKF’s transaction
has proved to be a difficult undertaking. Being unable to discern the answer at
summary judgment, the Court conducted a bench trial1 from March 1, to March 2,
1 As noted in an order entered on January 21, 2021, the Court has trifurcated the trial of this
matter to conserve the parties’ and the Court’s resources . (Doc. 171). The Court’s rulings in
each phase of the trial will determine whether the next phase is necessary and, if so, the burden
of proof. Id.
2021, to answer that question. Among other things, the Court sought testimony
regarding the course of performance or course of dealing between HT and SKF in
order to clarify each party’s intent surrounding the transaction at issue.
b. Trial Testimony
The testimony at trial confirmed the basic chain of events recounted at
summary judgment. In 2009, HT reached out to SKF to request a quote for the
bearings it intended to use in the Matlacha Bridge project. (R. 289-90). SKF
responded with a price quotation on October 30, 2009, identifying the part number,
quantity, price, lead time, an expiration date, and other information regarding the
manufacturing of the bearings. (SKF Ex. 8). This price quotation was printed on a
standardized form bearing SKF’s logo and other information including the following
language in the bottom right-hand corner: “Subject to standard SKF Terms and
Conditions.” Although those terms and conditions were not printed anywhere on
the quote, SKF’s employee Paul Chang testified that SKF mailed hard copies of its
terms and conditions to all of its customers, including HT, in 2007 and 2009.2
However, SKF does not deny that the October 2009 price quotation expired by its
own terms on December 4, 2009. (SKF Ex. 8).
2 SKF alleged in prior pleadings that its terms and conditions were available on its website.
However, that evidence was not developed at trial.
Subsequent to that price quote, the parties continued their negotiations
through SKF’s employee Brian Hass and HT’s employee Lynn Taylor. Those
negotiations resulted in an email that was sent from Mr. Hass to Mr. Taylor on May
23, 2011, which stated: “Attached you will find a requote on Matlacha and South
Park.”3 (SKF Ex. 14). Attached to the email was a spreadsheet containing
information for parts relating the Matlacha project and the unrelated project. The
information relating to the Matlacha project contained the same part number
referenced in the October 2009 quote with the original price from that quote along
with a “requote” of a reduced price for each part. Id. at p. 2. The “requote” is
contained in an email and does not appear on the same type of standardized form as
the October 2009 quote. Additionally, aside from the part number and price, the
requote does not contain any of the other information that was contained in the
October 2009 quote such as the lead time for building the bearings or the language
purporting to impose SKF’s terms and conditions on the transaction. However, SKF
has argued that the May 2011 email was intended incorporate by reference the
October 2009 quote and everything in it. Except, of course, for the December 4,
2009 expiration date. According to SKF, this email, which purports to incorporate
3 Testimony at trial revealed that “South Park” referred to another project that is not related to
this case.
SKF’s terms and conditions from the October 2009 price quote, constitutes the offer
in this case that HT accepted when it purchased the bearings.
At summary judgment, the Court noted that there were disputed factual issues
regarding whether the May 2011 email revived the October 2009 quote including its
language purporting to impose SKF’s terms and conditions. The Court pointed to
the deposition testimony of SKF employee Joanne Rompilla. There, Ms. Rompilla
stated that expired price quotations like the October 2009 quote “may be null and
void.” (Doc. 160, at 10). However, the Court believed that her testimony left open
the possibility that there may be certain circumstances where expired quotes could
be revived. Id., quoting (Doc. 138-1 at 6). The Court believed “that further
testimony about the course of performance or course of dealing between HT and
SKF could be helpful in resolving” the issue of whether the May 2011 email revived
the October 2009 price quote. (Doc. 160 at10).
Ms. Rompilla testified at trial about her employment with SKF and
specifically about her dealings with HT as they related to the Matlacha Bridge
project. She was asked a series of questions about the various price quotes that were
exchanged between HT and SKF between October 2009 and May 2011. (R. 299-
307). Ms. Rompilla testified that at least two of the quotes, the aforementioned
October 30, 2009 quote and another quote from March of 2011, contained language
referencing SKF’s terms and conditions. However, while appearing to acknowledge
that the May 23, 2011 email from Brian Hass to Lynn Taylor did not contain that
language, she opined that it “definitely relate[ed] back to the October 30th quote”
because it contained the same part numbers and the original price. (R. 306-307).
Ms. Rompilla also acknowledged that the October 30, 2009 price quote was long
expired at the time of the May 23, 2011 email. When asked whether it would “be
unusual for SKF and for [her] to refresh and act on expired quotes[,]” Rompilla
replied, “Yes. Especially when it comes to bridge projects and bridge jobs, due to
the fact that they could take anywhere from six months to six years to come into
play.” (R. 307). Thus, Ms. Rompilla acknowledged that it would not be part of
SKF’s ordinary course of dealing to renew expired price quotes that it sent to
customers like HT.
In an effort to rehabilitate her answer, SKF’s counsel clarified his question,
and asked, “In other words, the original quote expired. And so, my question is: On
bridge projects, would SKF have honored and renewed expired quotes?” (R. 308).
Rompilla replied affirmatively, and counsel for SKF moved on. Id. This was
precisely the type of course-of-dealing testimony the Court was looking for. The
Court interprets Rompilla’s answer to counsel’s follow-up question to mean that it
was possible for SKF to renew an expired price quotation. However, the Court finds
that her follow-up answer did not negate her previous statement that such an
occurrence would be unusual on large projects like the Matlacha Bridge. There was
no other evidence regarding the parties’ course of performance or course of dealing
as it related to reviving price quotations. Accordingly, the Court finds that it was
not part of the course of dealing between HT and SKF for the parties to use emails,
like the one sent by Mr. Hass on May 23, 2011, to fully revive expired price
quotations and all of the terms contained therein. Therefore, the Court finds that
SKF’s terms and conditions do not control.
But this does not end the matter. As noted, HT seeks to impose its terms and
conditions on SKF because, it says, a copy of those terms and conditions appears on
the reverse side of its standard purchase orders including the purchase orders sent to
SKF in connection with the bearings at issue in this case. Testimony at trial revealed
that HT purchase orders are typically printed on a preformatted form that contains
the HT logo at the top and the HT terms and conditions on the reverse side. (See
e.g. R. 176-77). However, there are also “electronic versions” of the purchase orders
that contain only the relevant information for the parts being ordered, i.e., they are
missing the HT logo and any reference to or inclusion of the terms and conditions.
During her testimony at trial, Ms. Rompilla acknowledged that, at her 2019
deposition, she identified HT Exhibit 16 as the operative purchase order. That
exhibit was printed on the preformatted paper and contained HT’s terms and
conditions. However, Rompilla candidly admitted that she was changing her
testimony at trial because, she said, she misidentified the document at her deposition.
Rompilla explained that after her deposition she “had time to go back and pull
everything from the file to review it, and [she] found the ‘copy of the original, do
not duplicate’ from Wayne Jones that superseded the original one that came in, in
June.” (R. 316). Thus, Ms. Rompilla identified SKF Exhibit 18 as the operative
purchase order at trial. That exhibit appears to be an electronic copy of a HT
purchase order that does not reference HT’s terms and conditions.
Ms. Rompilla further explained that she was sure that SKF Exhibit 18 was the
operative purchase order because the amount of the purchase order was $87,056.
According to Rompilla, SKF’s accounting records showed that HT paid them that
amount for the Matlacha Bridge project. In contrast, the purchase order she
identified in her deposition, HT Exhibit 16, was for $80,588. The Court has no doubt
that Ms. Rompilla saw HT Exhibit 16 while working on this project because she
admitted that the purchase order had her handwriting on it.
HT did not dispute that it paid $87,056 to SKF in connection with the project
at issue. It also introduced HT Exhibit 18, a revised purchase order in the amount
of $87,056, that was printed on the preformatted paper containing the HT logo and
the HT terms and conditions on the reverse side. However, Rompilla claimed to
have never seen that version of the purchase order, and SKF pointed out that it had
only been produced shortly before trial. According to HT, its president, Charles
Debardeleben, discovered that purchase order while going through documents
contained in a shipping container. Counsel for SKF had been given the opportunity
to search through that same shipping container but apparently either did not find that
document or chose not to copy it. The Court also notes that there was some
confusion about the production of SKF Exhibit 22, an electronic copy of the $87,056
purchase order that appeared to be hand stamped with a notation stating that SKF’s
terms and conditions apply. Based on the confusion surrounding the production of
these documents, the Court does not find them credible. However, even if it did find
them credible, neither of those documents help answer the question left after
summary judgment: whether the parties’ course of performance or course of dealing
clarified their intent with regard to whose terms and conditions controlled.
Thus, the Court is left with the following situation: SKF attempted to impose
its terms and conditions by mailing them to its customers. However, there was no
evidence that HT ever received and read these mass mailings. And the Court is not
persuaded by SKF’s position that a party can impose its terms on everyone with
whom it does business simply by sending out an annual mailer. SKF’s position that
its terms and conditions were operative in this transaction because they were
referenced in its various price quotes is also unavailing. In fact, the final price quote
in this case was an email that did not contain the relevant language referencing the
terms and conditions.
HT attempted to impose its terms and conditions by printing them on the
reverse side of its preformatted purchase orders that were sent to vendors like SKF.
However, HT also had a practice of sending electronic versions of its purchase orders
that did not contain that language. There was no evidence of a course of dealing
indicating that only the HT purchase orders printed on the preformatted forms were
to be considered operative.
Accordingly, the Court does not find itself in any better position after two
days of testimony than it did at the summary judgment stage. The Court has no
doubt that HT employees like Mr. Taylor saw the phrase “SKF terms and conditions
apply” on the price quotes that were sent to HT during the course of these dealings.
The Court also has no doubt that SKF employees, like Ms. Rompilla, saw the HT
terms and conditions on at least one purchase order, HT Exhibit 16, even if that
purchase order was superseded by a revised purchase order of some type. Thus, both
sides had cause to be aware that the other had their own terms and conditions that
they sought to impose. However, there was no testimony or other evidence
indicating that either side ever attempted to reconcile those terms in their dealings
or otherwise reach any agreement as to what those terms would be. In fact, the terms
are irreconcilable. For example, SKF’s terms and conditions state that SKF was
“prepared to accept the order only if you agree to [all of SKF’s terms].” SKF’s terms
further state that SKF “regard[s] any order that you send to us as a document that
identifies only the products and services you are ordering from us and not as a
document that adds to or modifies these terms and conditions. All other terms and
conditions in your order are expressly rejected.” (SKF Ex. 1). SKF’s terms go on
to provide that its terms can be negotiated, but only if signed by certain authorized
individuals. Id.
Similarly, HT’s terms and conditions state that “[T]he purchase of goods or
services hereunder is expressly conditioned upon Seller’s assent to the Terms and
Conditions contained or referred to herein.” (HT. Ex. 16). Further, HT’s terms state
that “[a]ny shipment or delivery by Seller of goods or provisions of services
purchased hereunder constitutes acceptance of these terms and conditions.” Id. The
remaining terms and conditions are also polar opposites. For example, HT’s terms
and conditions call for extensive warranty obligations while SKF’s terms and
conditions disclaim all such obligations. Thus, both cannot apply.
There was no evidence of any course of dealing between the parties that would
suggest one side’s terms and conditions controlled over the other’s. In fact, there
was ample testimony at trial indicating that neither party ever raised any objection
to the other party’s terms and conditions. The evidence showed that HT and SKF
had done business with each other since at least 2001 and had engaged in as many
as 22 transactions on various projects over the years. Throughout that time, neither
party appeared to question whose terms and conditions would control in the event of
a dispute like the one in this case. The only negotiations involved the “dickered
terms” like the price, quantity, and various other terms that related to the specific
transaction at hand. Had the parties wished to clarify their obligations on matters
like warranties, indemnification, and damages, they had many opportunities to do so
over the years.
The Court finds that the trading back and forth of price quotes and purchase
orders, some referencing terms and conditions and some not, was insufficient to bind
either party. In denying summary judgment, the Court found “that other questions
of fact exist[ed] regarding the parties’ extensive dealings with each other and what
they may or may not have understood to govern their dealings. Evidence about the
course of performance or course of dealing between the parties could clarify their
intent.” Having heard the testimony at trial and reviewed the evidence that was
admitted, the Court does not find persuasive evidence of any such course of dealing
or course of performance.
It is well settled that under Alabama law4, “[n]o contract can be formed
without an offer, acceptance, consideration, and mutual assent to the terms essential
4 As noted in the Court’s memorandum opinion denying summary judgment, the Court has
diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. (Doc. 160, p. 1-2). In diversity
cases, courts apply the substantive law of the forum state. Cadle v. GEICO Gen. Ins. Co., 838 F.3d
1113, 1121 (11th Cir. 2016), citing Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009).
HT filed this lawsuit in the Northern District of Alabama, and SKF has never challenged venue.
to the contract.” Ex parte Holland Mfg. Co., 689 So. 2d 65, 66 (Ala. 1996), citing
Steiger v. Huntsville City Board of Education, 653 So. 2d 975 (Ala.1995). For the
reasons stated above, the Court finds that there was no mutual assent to either party’s
terms and conditions. Thus, no contract was formed with respect to those terms and
conditions.
II. Conclusions of Law Pursuant to Fed. R. Civ. P. 52(a)
As noted above, HT alleged the following causes of action in its complaint:
(1) breach of a contractual indemnity clause; (2) common law indemnity; (3) breach
of warranty; and (4) fraudulent suppression. (Doc. 50). Because the Court finds that
no contract was formed with respect to the terms and conditions of the parties’
dealings, HT’s breach of contractual indemnity and breach of warranty claim must
fail as both rely on the existence of such a contract. Accordingly, judgement is due
to be entered in favor of SKF as to Count I and Count III of the amended complaint.
The Court will set a status conference by separate order to discuss the
remainder of the proceedings.
DONE and ORDERED July 21, 2021.
Ko SZ Sh
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
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