Thomas Mervyn v. Atlas Van Lines, Incorporated , 882 F.3d 680 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2036
THOMAS MERVYN, on behalf of
himself and all others similarly
situated,
Plaintiff-Appellant,
v.
ATLAS VAN LINES, INCORPORATED,
et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 3587 — Ronald A. Guzmán, Judge.
ARGUED DECEMBER 7, 2017 — DECIDED FEBRUARY 14, 2018
Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Atlas Van Lines (“Atlas”), an autho-
rized interstate transporter of household goods, contracts with
agents to perform its shipments. One of its many agents, Ace
2 No. 17-2036
World Wide Moving, Inc.1 (“Ace”), leases trucks and driving
services from owner-operators. In 2009, owner-operator
Thomas Mervyn entered into a lease agreement with Ace to
haul shipments for Atlas. Mervyn brought a lawsuit in 2013
against Atlas and Ace alleging breach of contract and viola-
tions of the federal Truth-In-Leasing regulations under 49
C.F.R. § 376.12(d). Atlas and Ace moved for summary judg-
ment and the district court granted it in their favor. We affirm.
I. BACKGROUND
A. Regulatory Background
The Motor Carrier Act authorizes the Department of
Transportation to regulate “carriers,” including trucking
companies, which transport goods interstate. 49 U.S.C.
§ 14104(a). Often carriers contract with “hauling agents” to
transport the goods. In turn, the hauling agent may contract
with an individual truck owner, an “owner-operator,” who
leases his truck and services to the agent and carrier. Owner-
operators may bring civil actions against carriers or agents for
1
This entity, Ace World Wide Moving, Inc., is distinct from the named
defendant, Ace World Wide Moving & Storage Co., Inc. The defendants
notified Mervyn in the district court that he had contracted with Ace World
Wide Moving, Inc., and named the wrong defendant in his complaint.
However, Mervyn never amended his complaint. The district court granted
summary judgment on behalf of the incorrectly named entity, Ace World
Wide Moving & Storage Co., Inc., because it was not a party to the relevant
dispute. Nevertheless, the district court on summary judgment addressed
the merits with respect to the lease agreement between Mervyn and Ace
World Wide Moving, Inc.
No. 17-2036 3
violations of legal rights established under the statute or
regulations. See 49 U.S.C. § 14704(a)(2).
The lease agreements between owner-operators and the
agent or carrier are governed by the Truth-In-Leasing regula-
tions. 49 C.F.R. § 376.1. The regulations require that the lease
be in writing and contain specific provisions. See 49 C.F.R.
§ 376.11; 49 C.F.R. § 376.12. Relevant to this dispute, “[t]he
amount to be paid by the authorized carrier for equipment and
driver’s services shall be clearly stated on the face of the lease
or in an addendum which is attached to the lease.” 49 C.F.R.
§ 376.12(d). That amount “may be expressed as a percentage of
gross revenue, a flat rate per mile … or by any other method of
compensation mutually agreed upon by the parties to the
lease.” Id.
B. Atlas’ and Ace’s Contract with Mervyn
Atlas is an agent-owned company, and Ace is one of its
many agents. Generally, when a customer contracts with Atlas
for a shipment, Atlas passes the job onto a hauling agent, like
Ace, who in turn contracts out the driving portion of the job to
an owner-operator. Mervyn is an independent owner-operator
who leased his trucks and driving services to Ace.
Federal law requires carriers like Atlas to publish tariffs
showing the rates for each task in the shipment of household
goods. 49 U.S.C. § 13702(b)(1). One of the tariff rates is for
“linehaul,” which is based on the weight of the goods and the
distance they are shipped. These rates are only ceilings of what
Atlas may charge a customer in a given shipment, and Atlas
often negotiates discounts of the tariff rates with its customers
in order to secure their business. After the shipment is com-
4 No. 17-2036
plete, Atlas collects payment from the customer and distributes
the revenue to its agents. An agent is entitled to revenue based
on the services it performed. Thus, a hauling agent like Ace is
entitled to receive a portion of the linehaul revenue. If the
hauling agent used an owner-operator in the shipment, the
hauling agent pays the owner-operator according to the terms
of their lease agreement.
According to Atlas, because it needed a way to distribute
the costs of providing customer discounts across the various
agents involved in a shipment, it instituted the “effective
bottom line discount” (“EBLD”). Atlas also used the “prede-
termined effective bottom line discount” which is an estimate
of what the EBLD will be over a series of shipments. Under
these policies, Atlas divides the total value of the discounts
provided to the customer, including services it provided for
free, by the total maximum value of that shipment using the
tariff rates. The resulting percentage is the EBLD. Atlas then
applies that EBLD percentage to the tariff charges to determine
how much an agent will receive.
Mervyn entered into a lease agreement with Ace on
February 1, 2009. The lease specified that Wisconsin state law
would govern. As relevant here, under the “Payments to
Contractor” section of the lease, Mervyn was to “earn compen-
sation as provided in the schedule of compensation included
in Schedule B.” Mervyn hauled interstate shipments of
household goods which were governed by Schedule B-1. The
top of Schedule B-1 listed numerous “definitions and general
rules” for determining Mervyn’s compensation. Atlas did not
instruct Ace how to compensate its owner-operators, but the
lease agreement adopted Atlas’ EBLD method for the linehaul
No. 17-2036 5
charge: “Linehaul and accessorial service charges shall be
determined by applying the applicable effective or predeter-
mined effective bottom line discount (determined under Atlas’
rules) to the transportation and accessorial charges for each
shipment.” The bottom of Schedule B-1 included percentages
to be paid out for certain categories of service. For the linehaul
charge, the lease read “Linehaul 58%.”
The bottom of Schedule B-1 also specified that Mervyn was
to receive 100% of the fuel surcharge (“Fuel Surcharge 100%”).
Atlas would often negotiate with its customers a discount from
the tariff rate for the fuel surcharge, but during Mervyn’s lease
with Ace, whatever amount the customer paid to Atlas in fuel
surcharge was paid in full to Ace, and in turn, paid in full to
Mervyn.
Atlas and Ace maintained financial documentation for
individual shipments in a computer system called the Rating
Invoice and Distribution System (“RTDS”). Mervyn received
documentation from Ace displaying two different screens:
(1) the amounts billed to the customer; and (2) the amounts
distributable to him after applying the EBLD. Mervyn also
received a “Settlement Sheet” displaying his compensation for
each of the services he provided.
An example of a shipment Mervyn completed for Ace
under the lease illustrates how Mervyn was compensated.
Mervyn’s RTDS screen for the “Evans Shipment” showed that
the customer was billed $7,416.79 for the linehaul charge, a
60% discount from the tariff rate of $18,541.98. Atlas also
subtracted certain items from the invoice amount that were
offered to the customer at a 100% discount, such as $258.00 for
6 No. 17-2036
full value protection services, $52.03 for hauling bulky articles,
and $166.31 for a booking rebate. After applying the EBLD
percentage, the linehaul charge was reduced to $6,652.29 in
distributional charges to Mervyn. Since Schedule B-1 of the
lease stated that Mervyn was to receive 58% of the linehaul
charge, he received 58% of $6,652.29, or $3,858.33. For the fuel
surcharge, the tariff rate of $2,039.61 was billed to the customer
at a 60% discount, or $815.84. Mervyn received 100% of the fuel
surcharge the customer paid. All of these figures in the Evans
Shipment were produced to Mervyn in the Settlement Sheet
and the RTDS Screen.
Critically, Paragraph 11(f) under the “Payments to Contrac-
tor” section of the lease specified that the financial entries
made by Ace on the payment documents “shall be conclusively
presumed correct and final if not disputed by [Mervyn] within
30 days after distribution.” Although Mervyn had made prior
complaints regarding certain financial entries in the payment
documents, he never took any action with respect to the
linehaul and fuel surcharge financial entries during the 2009
lease with Ace until the filing of this lawsuit.
C. Procedural History
Mervyn brought a purported class action lawsuit in the
Northern District of Illinois against Atlas and Ace on May 14,
2013. He alleged state law breach of contract, claiming that he
was not fully compensated according to the plain terms of the
lease; as well as violations of the Truth-In-Leasing regulations
under 49 C.F.R. § 376.12(d), claiming that his compensation for
the linehaul and fuel surcharge were not “clearly stated” in the
lease. The case was assigned to Judge Ronald J. Guzmán.
No. 17-2036 7
Mervyn had brought a purported class action suit in 2011
raising virtually identical claims against Atlas and another one
of its agents. That case was filed in the Northern District of
Illinois and assigned to Judge Gary Feinerman. Before a class
was certified, Judge Feinerman granted a motion for summary
judgment in favor of the defendants on March 31, 2016. See
Mervyn v. Nelson Westerberg, Inc., No. 11 C 6594, 2016 WL
1270416 (N.D. Ill. Mar. 31, 2016).
Shortly after Judge Feinerman issued his opinion, Judge
Guzmán suspended briefing on class certification and ordered
briefing on Atlas’ and Ace’s motion for summary judgment.
On April 20, 2017, Judge Guzmán granted summary judgment
in favor of Atlas and Ace.
The district court held that Mervyn’s failure to comply with
Paragraph 11(f) barred the breach of contract claims. Because
the financial entries are presumed correct if not disputed
within 30 days according to the lease, Mervyn could not
challenge their accuracy. Moreover, the court found that even
if Paragraph 11(f) did not bar Mervyn’s breach of contract
claims, they still would fail because Mervyn was paid accord-
ing to the terms of the lease agreement. The court also ruled
that the claims under the Truth-In-Leasing regulations failed
since they were based on the breach of contract claims.
II. DISCUSSION
We review a district court’s grant of summary judgment
de novo, and construe all factual disputes and reasonable
inferences in favor of the non-moving party. Betco Corp. v.
Peacock, 876 F.3d 306, 309 (7th Cir. 2017). Summary judgment
is appropriate if the moving party has shown there is “no
8 No. 17-2036
genuine dispute as to any material fact,” and is entitled to
summary judgment as a matter of law. Fed. R. Civ. P. 56(a).
Mervyn advances two claims that are necessarily inconsis-
tent: that he was not paid according to the plain terms of the
lease; and that the lease violated the Truth-In-Leasing regula-
tions because the terms were not “clearly stated.” According to
Mervyn, he was not paid according to the lease because Atlas’
and Ace’s application of the EBLD reduced his compensation
for the linehaul charge. Under this theory, he should have been
paid 58% of what was billed to the customer, not 58% of that
amount after applying the EBLD. For the fuel surcharge,
Mervyn argues that he was owed 100% of the tariff rate, not
100% of what the customer ultimately paid. Since these claims
regarding his compensation are governed by his lease agree-
ment with Ace, they are simply breach of contract claims. That
is where we focus our analysis.
The parties agree Wisconsin law governs the breach of
contract claims. “The primary goal in contract interpretation is
to give effect to the parties' intentions.”Seitzinger v. Cmty.
Health Network, 676 N.W.2d 426, 433 (Wis. 2004). Contracts are
construed according to their plain and ordinary meaning. Ash
Park, LLC v. Alexander & Bishop, Ltd., 866 N.W.2d 679, 685 (Wis.
2015). “Where the terms of a contract are clear and unambigu-
ous, we construe the contract according to its literal terms.”
Maryland Arms Ltd. v. Connell, 786 N.W.2d 15, 20–21 (Wis. 2010)
(quoting Gorton v. Hostak, Henzl & Bichler, S.C., 577 N.W.2d 617,
623 (Wis. 1998)).
The plain and ordinary meaning of Paragraph 11(f) is very
clear. The first sentence states: “Financial entries made by [Ace]
No. 17-2036 9
on payment documents shall be conclusively presumed correct
if not disputed by [Mervyn] within 30 days after distribution.”
This plainly means that if Mervyn did not dispute the financial
entries within 30 days, he could not later argue that the entries
incorrectly reflect what he was owed. Mervyn admits that he
never disputed the financial entries he now complains of—the
linehaul charge and fuel surcharge—until he filed this lawsuit
in 2013.
Moreover, it is undisputed that Mervyn received RTDS
screens and Settlement Sheets that clearly displayed the
financial entries reflecting what was billed to the customer and
his compensation. Those entries showed that Mervyn would
receive 58% of the linehaul charge after applying the EBLD, not
58% of what was billed to the customer. Additionally, the
entries reflected that Mervyn would receive 100% of the fuel
surcharge that the customer paid, not 100% of the tariff rate.
Mervyn cannot escape the plain and ordinary meaning of
Paragraph 11(f)’s 30-day window to dispute the financial
entries by filing a lawsuit four years later challenging the
accuracy of those entries. Accordingly, Paragraph 11(f) bars
Mervyn’s breach of contract claims that the financial entries for
the linehaul and fuel surcharge were less than what he was
owed under the lease.
In an effort to escape the plain and ordinary meaning of
Paragraph 11(f), Mervyn tries to reinterpret the lease’s lan-
guage in a number of ways. None of these arguments change
our ultimate conclusion. First, Mervyn argues that we cannot
ignore the second sentence in Paragraph 11(f), which states
that “[o]n the date 30 days after distribution, such documents
shall constitute the primary and/or prima facie business record
10 No. 17-2036
between [Ace] and [Mervyn] with respect to the financial
transactions between the parties … .” He posits that his failure
to timely object to the entries only created prima facie evidence
of the entries, which by definition, can be rebutted.
However, interpreting Paragraph 11(f) to only create a
rebuttable presumption of the accuracy of the financial entries
would require us to completely ignore the first sentence stating
that if the entries are not disputed within 30 days, they “shall
be conclusively presumed correct.” Something that is conclu-
sively presumed correct cannot be rebutted. Nor are the two
sentences irreconcilable. The first sentence of Paragraph 11(f)
establishes that the entries on the documents are conclusively
presumed correct if not disputed in 30 days. The second
sentence states that after 30 days, the documents with the entries
are primary and/or prima facie evidence of a transaction. In
other words, Mervyn could file a lawsuit saying he was never
paid under the lease, and the financial documents would only
establish prima facie evidence that he was paid, which could
be rebutted.
Mervyn also points to other parts of the lease to suggest
that the documentation he received was not intended to reflect
what he was owed, but merely what he was paid into his
operating account. Under this line of thinking, Paragraph 11(f)
only required Mervyn to dispute within 30 days whether he
was actually paid into his operating account the amounts
reflected in the financial entries. Again, this argument does not
square with the plain and ordinary meaning of Paragraph
11(f), which does not contain the words “operating account.”
No. 17-2036 11
Finally, Mervyn argues that Paragraph 11(f)’s 30-day
window to dispute the financial entries is unreasonably short
and unenforceable. Mervyn cites to an unpublished district
court opinion which found an owner-operator lease provision
unenforceable that barred “any claim or demand of any nature”
from being brought if no written notice was provided in 90
days. See Al-Anazi v. Bill Thompson Transp., Inc., No. 15-CV-
12928, 2016 WL 3611886, at *5–7 (E.D. Mich. July 6, 2016)
(emphasis added). However, as the district court here noted,
Paragraph 11(f) is not a claims limitations clause. In other
words, it does not bar Mervyn from bringing any claims arising
out of his compensation; rather, it simply establishes the
accuracy of the financial entries if they are not disputed within
30 days. As noted above, Paragraph 11(f) does not prohibit
Mervyn from bringing claims challenging whether he was paid
under the lease. The record below reflected that Mervyn had
enough time to raise disputes over the entries, and in fact, had
raised disputes to other types of entries with respect to his
compensation. Thus, Paragraph 11(f) is not unreasonably short
or unenforceable.
Regardless of whether Paragraph 11(f) bars Mervyn’s
breach of contract claims, the claims fail on the merits because
Mervyn was compensated according to the plain and ordinary
terms of the lease. As for Mervyn’s argument that he was not
fully compensated for the linehaul charge, the lease specifically
states that “Linehaul and accessorial service charges shall be
determined by applying [the EBLD] (determined under Atlas’
rules).” Application of the EBLD was explicitly contemplated
in the lease, and Ace paid him accordingly: 58% of what was
billed to the customer after applying the EBLD. Mervyn cannot
12 No. 17-2036
simply point to “Linehaul 58%” in Schedule B-1 and ignore the
plain language directly above it stating that the EBLD, deter-
mined by Atlas’ rules, would be applied to the linehaul charge.
It is undisputed that Mervyn was paid 100% of the fuel
surcharge that the customer paid to Atlas, and in turn, to Ace.
Mervyn argues that he was entitled to 100% of the tariff rate,
which was not charged to the customer. But there is nothing in
the lease, or in Schedule B-1, that would allow for such an
interpretation. The plain language of Schedule B-1 only states,
as it relates to fuel surcharge, “Fuel Surcharge 100%.” That is
precisely what Mervyn received: 100% of what the customer
paid for the fuel surcharge.
Finally, the district court did not err in granting summary
judgment to Atlas and Ace on Mervyn’s claims under the
Truth-In-Leasing regulations. Mervyn’s arguments in the
district court and on appeal for these claims were necessarily
premised on a breach of the lease. Since we conclude that
Mervyn’s breach of contract claims fail and that he was paid
according to the plain terms of the lease, his claims under the
Truth-In-Leasing regulations also fail.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Atlas and Ace.