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Champion v. Great Dane Ltd. Partnership

Court of Appeals of Texas,

Houston (14th Dist.).

Tommy CHAMPION, Appellant

v.

GREAT DANE LIMITED PARTNERSHIP, Appellee.

No. 14-08-00310-CV.

 

May 7, 2009.

 

Panel consists of Chief Justice HEDGES, Justice FROST, and Senior Justice HUDSON.FN*

 

FN* Senior Justice J. Harvey Hudson sitting by assignment.

 

OPINION

 

KEM THOMPSON FROST, Justice.

 

The underlying products-liability case arose from injuries sustained by appellant, a truck driver, in attempting to unload a truck trailer manufactured by appellee. The truck driver complains on appeal that the trial court erred in excluding testimony from his expert witness as to the trailer’s alleged design defect and in granting a motion for a directed verdict in favor of the manufacturer on the design-defect claim. We affirm.

 

I. FACTUAL AND PROCEDURAL BACKGROUND

 

Appellant Tommy Champion, a truck driver, filed suit against appellee Great Dane Limited Partnership (hereinafter “Great Dane”) for injuries he sustained in an incident involving a truck trailer manufactured by Great Dane. The trailer was owned by Penske Trucking Leasing Company, which leased the trailer to Champion’s employer.

 

Although Champion also asserted claims against Penske and another party, the record reflects that Champion accepted settlement offers from those two parties and that the claims against those parties were dismissed with prejudice.

 

Great Dane designed and manufactured the refrigerated trailer according to Champion’s employer’s specifications. The trailer had ridged flooring that allowed cold air to circulate beneath the freight. An uncovered gutter  spanned the width of the trailer in the rear, which allowed for condensation and liquids from leaky freight to drain away from the freight. Liquids flowed into drainpipes on each side of the gutter to prevent pooling. A “lift gate platform” was attached to the rear of the trailer, which facilitated loading and unloading cargo. Champion had not used this particular trailer before the incident in question.

 

The parties used the terms “gutter” or “drain” interchangeably in reference to this open space. For consistency, we use the term “gutter.” The gutter measured approximately 2-1/3 inches wide and 1-1/4 inches deep.

 

On the day of the incident, Champion was transporting freight that did not require refrigeration. He was scheduled to deliver pallets of freight to several locations. He was supposed to use a pallet jack  to pull the load off of the trailer. At the first location, Champion discovered the lift gate platform attached to the trailer was not level. He noted on a vehicle inspection form that “this ramp needs to be fixed, drops downhill.”During the course of Champion’s trip, he unloaded about twelve to fifteen pallets before arriving at his last stop. He used a pallet jack to unload these pallets and encountered no problems in crossing the trailer’s gutter, although he admitted the pallets were relatively light. He explained at trial that in unloading these pallets, the wheels of the pallet jack “hit” the gutter and “bumped” the gutter, so that the pallet jack “bounced across” the gutter as he pulled cargo out of the trailer.

 

The parties refer to a pallet jack as a manually-operated piece of equipment that allows a single operator to place fork-like arms beneath a pallet, lift the pallet with the aid of hydraulics, and move the pallet on small wheels.

 

Champion’s last load was to be delivered to Filter Fresh Coffee in San Antonio, where he was to unload four pallets. Although he unloaded the first two pallets without incident, he “hit” the gutter both times. The third and fourth pallets contained bottled water and cans of coffee, which were wrapped in plastic “shrinkwrap .” These pallets were heavier and stacked higher than the other pallets. Champion slid the forks of the pallet jack under the third pallet and used the pallet jack to lift the pallet off of the trailer’s floor. The pallet became unstable and almost fell as he maneuvered to the lift gate platform. Champion attributed the unstable load to the wheels of the pallet jack, which he claims became lodged in the trailer’s gutter. Filter Fresh Coffee employees assisted Champion by removing some of the bottled water from the pallet. He then moved the pallet into the Filter Fresh Coffee building.

 

In unloading the last pallet, Champion lifted and moved the pallet and approached the lift gate platform from within the trailer. The wheels of the pallet jack fell into the gutter at the rear of the trailer. The palletized load shifted, and Champion stabilized it with his hands. Champion “wiggled” the load and then used the pallet jack hydraulics to lower the load. He pulled back so that the pallet jack wheels were clear of the gutter and then lifted the load with the pallet jack. Champion maneuvered onto the lift gate platform, where the pallet jack rolled 6-7 inches on its own. He then heard a “pop.” The lift gate platform dropped several inches. Champion lowered the load to prevent the pallet jack from rolling off the end of the lift gate platform, and boxes fell from the pallet, hitting him in the head and knocking out some of his teeth. He jumped off of the trailer and injured his heel, ankle, elbow and thumb. Champion underwent numerous surgeries for his injuries.

 

Although he could not determine the source of the noise, Champion said the noise could have been attributed to kinks in the chain that attached the lift gate platform to the trailer.

 

Champion brought suit against Great Dane, among others, alleging causes of action for negligence, strict liability for a design defect and marketing defect, breach of warranty, and gross negligence. He complained that the trailer’s uncovered gutter subjected him to an unreasonable risk of harm. At trial, Champion sought to elicit testimony from an expert witness regarding alleged marketing and design defects of the trailer’s gutter. The expert witness testified briefly; however, the trial court excluded the expert’s testimony as to defective design and permitted the expert to testify only for marketing defect.

 

At the close of Champion’s evidence, by oral motion, Great Dane moved for a directed verdict on Champion’s defective-design claim. Great Dane argued that Champion failed to produce evidence of a safer alternative design for the trailer’s gutter and that had the safer alternative design existed, Champion presented no evidence that it would have prevented the injuries he sustained. The trial court granted this motion.

 

Champion had rested subject to calling Champion’s wife as a witness the following day.

 

The trial court submitted questions to the jury on Champion’s marketing-defect and negligence claims. The jury returned a verdict in favor of Great Dane, concluding that Champion was 100% negligent and responding “no” to a question regarding marketing defect. The trial court entered a “take nothing” judgment in favor of Great Dane, confirming the jury’s verdict. Champion now appeals, asserting that the trial court erred in excluding the expert’s testimony and in granting Great Dane’s motion for directed verdict.

 

II. ISSUES AND ANALYSIS

 

A. Did the trial court err in granting a directed verdict for the manufacturer on the issue of design defect?

 

In his first issue, Champion argues that the trial court erred in granting Great Dane’s oral motion for a directed verdict on the issue of design defect.

 

A trial court may instruct a verdict in favor of a defendant if no evidence of probative force raises a fact issue on the material questions in the suit. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). A directed verdict in favor of a defendant may be proper when (1) a plaintiff fails to present evidence raising a fact issue essential to the plaintiff’s right of recovery; or (2) the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action. See id.We review the trial court’s granting of a directed verdict by following the same standard for assessing legal sufficiency of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 809-828 (Tex.2005). When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the nonmovant and indulge every reasonable inference that would support the verdict. Id. at 823.When reviewing a directed verdict, we must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827.

 

In his live petition, Champion alleged, among other things, strict liability in design defect of the trailer’s “uncovered floor gutter at the rear of the trailer that interfered with the transportation of loads out of the trailer.”A design defect renders a product unreasonably dangerous as designed, thereby warranting strict liability, when taking into consideration the utility of the product and the risk involved in its use. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999).

 

To establish a design defect, Champion had to show by a preponderance of the evidence that (1) there was a safer alternative design; and (2) the defect was the producing cause of the personal injury. TEX. CIV. PRAC. & REM.CODE ANN. § 82.005(a) (Vernon 2005). A “safer alternative design” under section 82.005  of the Texas Civil Practice and Remedies Code means that a product design other than the one at issue would have prevented or significantly reduced the risk of injury without substantially impairing the product’s utility and that the safer alternative design was both technologically and economically feasible when the product left the control of the manufacturer.Id. § 82.005(b); see Sanchez, 997 S.W.2d at 588. Generally, the requirements to prove a design defect necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co., Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004) (concluding this premise was not peculiar to unintended acceleration cases); DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 410-11 (Tex.App.-Tyler 2008, no pet.)(providing that an expert’s conclusory statements as to design defect are not competent evidence and are insufficient to defeat or support summary judgment for design defect).

 

Unless otherwise specified, all references to a “section” are to the Texas Civil Practice and Remedies Code.

 

Great Dane moved for a directed verdict, alleging that Champion offered no evidence of a safer alternative design that was both technologically and economically feasible when the trailer left Great Dane’s control in 1999. Great Dane also alleged that Champion offered no evidence that a safer alternative design, had it existed, would have prevented Champion’s injuries. The trial court granted Great Dane’s motion.

 

At trial, Champion sought to show that the trailer was defectively designed because of the hazard created when the wheels of a pallet jack became lodged in the trailer’s rear gutter in the course of loading and unloading cargo. On appeal, Champion maintains that he produced evidence of safer alternative designs because James Hofstetter, Great Dane’s Vice President of Product Safety and Compliance, testified that Great Dane manufactures refrigerated trailers without any gutters or with gutters located in the front of the trailer. He also points to testimony from both Hofstetter and Greg Scoggins, another representative for Great Dane, who testified about “dock plates”  that cover the gutters in refrigerated trailers. Finally, as evidence of a safer alternative design, Champion points to his own testimony about his experience in the 1970s and 1980s driving a refrigerated trailer with a mesh grate that covered the rear gutter, a trailer that was not manufactured by Great Dane.

 

The record reflects that Great Dane representatives discouraged use of pallet jacks on the type of ridged flooring found in this refrigerated trailer because the pallet jacks damaged the floor. Great Dane manufactures refrigerated trailers with flat floors intended for use with pallet jacks.

 

Although at trial the parties referred to two different kinds of dock plates used by trailers, a “dock plate” as used in this circumstance is an L-shaped piece of metal that is several inches wide. The shorter piece of metal rests in the gutter of the trailer, and the longer piece covers the open gutter and is tack-welded to the trailer’s ridged floor. The dock plates are evenly spaced across the threshold of the gutter to cover the gutter in spots, but not entirely. The dock plates were designed by Great Dane to protect the edges of the ridged flooring where the ridged flooring meets the gutter when loading and unloading cargo at a warehouse loading dock.

 

At submission, Champion made reference to a fifth alternative design, filling the gutter with square boxed tubing. Champion claims evidence of this design was raised at trial through the testimony of a representative of the manufacturer of the lift gate platform. However, Champion, in his appellate brief, neither identified nor addressed this fifth alternative design and he has provided no analysis or citations to the record or legal authorities as to this alternative design. Therefore, Champion has waived this issue. SeeTEX.R.APP. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14 Dist.] 2005, no pet.)(holding that, even though courts interpret briefing requirements reasonably and liberally, a party asserting error on appeal still must put forth some specific argument and analysis citing the record and authorities in support of the party’s argument).

 

1. Alternative Designs of a Trailer Without Any Gutters or with No Rear Gutter

 

As evidence of an alternative design, Champion points to Hofstetter’s testimony that a refrigerated trailer without any gutters would have reduced or eliminated the risk of injury in this case. Although Hofstetter testified that, at a customer’s request, Great Dane had manufactured a refrigerated trailer with flat flooring and no gutters, that design was an entirely different class of flooring for refrigerated trailers, and unlike the trailer in this case, which featured ridged flooring. See, e.g., Allen v. W.A. Virnau & Sons, Inc., 28 S.W.3d 226, 232-33 (Tex.App.-Beaumont 2000, pet. denied) (providing that safer alternative design did not diminish utility of product involving same model tractor). Furthermore, Scoggins testified that a trailer without any gutter is not feasible in this type of trailer with ridged flooring. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b)(2) (requiring technological and economic feasibility for an alternative design); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 477 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (requiring separate proof for technological and economic feasibility); see also Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335 (Tex.1998) (providing that a safer alternative design must be implemented without destroying the utility of the product). Champion claims he is entitled to a reasonable inference as to economic feasibility of this design even though he acknowledges in his appellate brief that Hofstetter did not explicitly testify regarding the economic feasibility of a refrigerated trailer without any gutters. But because technological feasibility and economic feasibility are different concepts, separate proof is required for each. See Smith, 23 S.W.3d at 477. Champion points to no other evidence that an alternative design of a refrigerated trailer with this type of ridged flooring but without any gutters was either technologically or economically feasible when it left Great Dane’s control in 1999. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b)(2) (requiring technological and economic feasibility); Smith, 23 S.W.3d at 477 (requiring separate proof for technological and economic feasibility). On this record, Champion has not produced evidence to show that this alternative design would be a safer alternative design as contemplated by section 82.005(b).SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b); Smith, 23 S.W.3d at 480-81 (concluding directed verdict on design-defect claim was proper); see also General Motors Corp. v. Harper, 61 S.W.3d 118, 130, 133 (Tex.App.-Eastland 2001, pet. denied) (concluding evidence was legally insufficient to support a safer alternative design).

 

Champion claims he is entitled to a reasonable inference from the evidence that an alternatively designed trailer without a rear gutter would have reduced or eliminated the risk of pallet-jack wheels “falling” into the rear gutter. Champion’s contention that utilization of this alternative design might have avoided injuries does not prove that the trailer was defective. See Harper, 61 S .W.3d at 124-25. In reference to the feasibility of an alternative design with only a front gutter and no rear gutter, Hofstetter testified that customers should be told of potential problems that may arise without a drain in the rear. Hofstetter acknowledged one problem with this design is that because the trailer naturally slopes downward toward the rear, liquid can pool there. Hofstetter explained that without a rear gutter to drain the liquid, the trailer’s refrigeration system may cause the liquid to freeze, which would pose a potential hazard for slipping or falling. As a general rule, a manufacturer should not be liable for failing to adopt an alternative design that, in some circumstances, would impose an equal or greater risk of harm. See Uniroyal Goodrich Tire Co., 977 S.W.2d at 337-38. To prevail on his design-defect claim with this alternative design, Champion was required show that the safety benefits from his proposed alternative design would not impose an equal or greater risk of harm. See id.The safety benefits of the alternative design must be “foreseeably greater than the resulting costs, including any diminished usefulness or diminished safety.”Id. Champion has not pointed to any evidence that the safety benefits from this proposed alternative design would not impose an equal or greater risk of harm. See id. at 338.Champion has not offered evidence to demonstrate that the alternative design was as safe as the current design in terms of protecting from risk of injury. See Harper, 61 S.W.3d at 124-25. Furthermore, Champion points to no other evidence in the record that establishes this alternative design would reduce the risk of injury without substantially impairing the utility of the gutter for this trailer with ridged flooring. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b)(1); Harper, 61 S.W.3d at 128 (“Unsupported statements that an alternative design would be safer is not evidence.”). Champion has not met the burden of showing that this alternative design would be a safer alternative design as contemplated by section 82.005(b).SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b); see also Smith, 23 S.W.3d at 480 (affirming directed verdict granted on design defect claim); Harper, 61 S.W.3d at 130.

 

2. Alternative Designs of a Trailer with a Covered Gutter

 

Champion claims he is entitled to a reasonable inference from the evidence that an alternatively designed trailer with a covered rear gutter would have reduced or eliminated the risk of pallet-jack wheels “falling” into the rear gutter. He points to his own trial testimony that a steel mesh covering 0 like the covering he saw in the 1970s would have reduced the risk of the hazard. However, Champion acknowledged that the trailer in the 1970s was not manufactured by Great Dane and that he did not use a pallet jack to unload cargo at that time. See, e.g., Allen, 28 S.W.3d at 232-33 (involving safer alternative design implemented on same model tractor); see also Harper, 61 S.W.3d at 127 (concluding a test constituted no evidence that an alternative design for seat-belt webbing would protect a driver from the principal risk of impacting a steering wheel when test did not involve steering wheels or steering columns). The fact that another manufacturer uses an alternative design may be evidence of the technical feasibility of that design. See Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 607 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). However, economic feasibility refers to the cost of producing a particular design. Id. Absent testimony that an alternative design is economically feasible, evidence suffices to support a directed verdict. Smith, 23 S.W.3d at 477. Even if we were to presume without deciding that Champion was a qualified witness to testify to this alternative design, both Hofstetter and Scoggins rejected the technological and economical feasibility of a metal grate covering in refrigerated trailers designed by Great Dane.1See Smith, 23 S.W.3d at 477 (requiring separate proof for technological and economic feasibility); see also Nissan Motor Co., Ltd., 145 S.W.3d at 137 (indicating that expert testimony may be necessary to prove a design defect). Hofstetter testified that a steel or aluminum grate for gutters in Great Dane’s trailers was neither technologically nor economically feasible because such metals posed problems of corrosion, added extra weight, and would need to be very thick to sustain heavy loads. Champion does not point to any other evidence that such grates would be technologically or economically feasible in 1999, when this trailer left Great Dane’s control. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b)(2); Smith, 23 S.W.3d at 478. Therefore, Champion has not shown that this alternative design would be a safer alternative design under section 82.005(b).SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b); Smith, 23 S.W.3d at 480;see also Harper, 61 S.W.3d at 130.

 

0. Champion described this alternative design at trial as a piece of steel or “wire mesh” with diamond-shaped square holes.

 

1. Champion’s attorney questioned Hofstetter about an alternative design involving a metal grate, made of aluminum or steel, which he described as being similar to a grate used in a barbecue pit.

 

Finally, Champion claims that use of the “dock plates” manufactured by Great Dane would have reduced or eliminated the risk of injury. However,” [u]nsupported statements that an alternative design would be safer is no evidence.” Harper, 61 S.W.3d at 128. At trial, Hofstetter testified that alternative designs to prevent pallet jack wheels from “falling” into the gutter could not be implemented without seriously affecting the utility of the trailer’s ridged floor. Hofstetter admitted that it was technologically and economically feasible to manufacture dock plates, because Great Dane manufactures such devices for other purposes, and installs them only at a customer’s request. However, Hofstetter and Scoggins each explained that dock plates are evenly spaced across the threshold of the gutter, but not spanning the entire gutter. No evidence reflects that the use of dock plates, when used as intended and spaced evenly over the gutter, would reduce or eliminate the hazard of pallet-jack wheels “falling” into the gutter. SeeTEX. CIV. PRAC. & REM, CODE ANN. § 82.005(b)(1); see, e.g., Harper, 61 S.W.3d at 130. Therefore, Champion has not produced evidence to show that this alternative design, featuring dock plates spaced evenly across the gutter’s threshold, would be a safer alternative design as contemplated by section 82.005. See generallyTEX. CIV. PRAC. & REM CODE ANN. § 82.005; see also Harper, 61 S.W.3d at 130. To the extent that Champion suggested at trial that dock plates may be used to cover the gutter entirely, when shown a picture of a gutter with a solid metal cover over the entire gutter, Hofstetter indicated that such a design was not technologically feasible because the drains and gutter need to be accessible for cleaning or else liquid will collect in the floor and freeze.2See Uniroyal Goodrich Tire Co., 977 S.W.2d at 337 (providing that a manufacturer should not be liable for failing to adopt an alternative design that would impose an equal or greater risk of harm); see alsoTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b)(2)(requiring feasibility). On this record, no evidence reflects that the use of dock plates to cover the gutter entirely is a safer alternative design under section 82.005(b).SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(b); Smith, 23 S.W.3d at 480;see also Harper, 61 S.W.3d at 130.

 

2. Furthermore, Hofstetter could not determine from the picture whether the trailer in the photo had ridged flooring like the trailer at issue in this case. At submission, Champion suggested that Great Dane could have manufactured wider dock plates to span the length of the gutter, leaving only the ends of the gutter near the drain exposed. Champion does not point to evidence in the record that this design was raised as an alternative design at trial. Likewise, Champion did not identify this alternative design in his appellate brief nor address how this design meets the requirements of section 82.005. SeeTEX.R.APP. P. 38.1(h); San Saba Energy, L.P., 171 S.W.3d at 338.

 

Furthermore, the record contains no expert testimony that any of the proposed alternative designs satisfied both requirements of subsection 82.005(b) as a safer alternative design. See Nissan Motor Co., Ltd., 145 S.W.3d at 137;see alsoTEX. CIV. PRAC. & REM.CODE ANN. § 82.005. Even presuming without deciding that Champion has met the requirements of section 82.005(b), the requirements to prove a design defect generally necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co., Ltd., 145 S.W.3d at 137. Although Champion suggested at submission that no expert witness was necessary, as discussed above, no lay witness testimony established that any of these alternative designs would meet all of the requirements of section 82.005-particularly in light of Champion’s own testimony at trial that (1) the trailer’s ridged flooring and gutter did not have any influence over his pallet jack or whether it would roll toward him; and (2) had the lift gate platform not malfunctioned, the accident would not have occurred.3SeeTEX. CIV. PRAC. & REM.CODE ANN. § 82.005(a)(2) (requiring proof of producing cause). In this case, no expert evidence established that the trailer or gutter was the producing cause of Champion’s injuries, as contemplated by subsection 82.005(a)(2)-especially when considering evidence in the record that Champion’s palletized load stabilized after encountering the gutter and before it was maneuvered onto the lift gate platform. See id.

 

3. In his appellate brief, Champion points to his testimony at trial that the accident would not have occurred if the rear gutter had been covered. This testimony was in reference to the steel grate like the one he saw in the 1970s. As discussed above, Champion did not produce evidence to establish that this alternative design met the requirements of section 82.005.

 

Therefore, because on this record, no evidence of probative force raised a fact issue on the material questions as to design defect, the directed verdict in favor of Great Dane was proper. See Prudential Ins. Co. of Am., Inc., 29 S.W.3d at 77; Smith, 23 S .W.3d at 480. Accordingly, we overrule Champion’s first issue.

 

B. Did the trial court commit reversible error in excluding expert testimony?

 

In his second issue, Champion argues the trial court abused its discretion in excluding the testimony of expert witness, Dr. Waymon Johnston, regarding design defect. Dr. Johnston testified briefly; however, the trial court excluded his testimony as to defective design and permitted him to testify only about marketing defects and warnings. Dr. Johnston’s deposition testimony, however, was included in the record for our review.

 

The trial court has broad discretion to determine the admissibility of evidence; as such, a reviewing court will reverse only if there is an abuse of that discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). A trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding principles. Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 448 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

 

Texas Rule of Evidence 702, entitled “Testimony by Experts,” provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness, qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”TEX.R. EVID. 702. Expert testimony is admissible if the expert is qualified and the testimony is relevant and based on a reliable foundation. Helena Chem. Co., 47 S.W.3d at 499. Once the party opposing the expert testimony objects, the proponent bears the burden of demonstrating the admissibility of the testimony. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995).

 

Champion argues that the trial court excluded the expert’s testimony for the improper reason that Dr. Johnston could not offer an opinion as to whether the proposed safer alternative designs were technologically and economically feasible or could reduce or eliminate risk without substantially impairing the product’s utility, as contemplated by section 82.005(b). According to Champion, an expert was not required to provide testimony on those elements because he offered this proof through his own testimony and through Great Dane’s representatives. To the extent that we have determined above that Champion did not present this evidence under section 82.005(b) through testimony from Champion or Great Dane’s representatives, the requirements of design defect generally necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co., 145 S.W.3d at 137; DeGrate, 261 S.W.3d at 410-11. We, therefore, consider whether Dr. Johnston was qualified to offer an opinion as to defective design.

 

The party calling the witness must show the expert is qualified by having “knowledge, skill, experience, training, or education” to testify on the specific issue before the court. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998).Rule 702 permits expert testimony if such testimony would assist the trier of fact in understanding the evidence or determining a fact issue. TEX.R. EVID. 702; see Gammill, 972 S.W.2d at 718. Whether an expert is qualified under Rule 702 is a preliminary matter to be determined by the trial court. See Gammill, 972 S.W.2d at 718. A trial court “must ensure that those who purport to be experts truly have expertise concerning the actual subject matter about which they are offering an opinion.” Id. at 719 (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)).“General experience in a specialized field is insufficient to qualify a witness as an expert.” General Motors Corp. v. Burry, 203 S.W.3d 514, 526 (Tex.App.-Fort Worth 2006, pet. abated). If the expert is not qualified to offer a particular opinion in a particular case, then the expert’s testimony is not admissible because it does not rise above mere speculation, and, accordingly, does not offer genuine assistance to the jury. Broders v. Heise, 924 S.W.2d 148, 150-54 (Tex.1996).

 

Champion asserts that the trial court incorrectly framed the issue in evaluating Dr. Johnston’s qualifications by requiring Dr. Johnston to be an expert in all aspects of refrigerated trailer design. Champion argues that the focus of this case was about a particular design feature, the uncovered gutter of the trailer, and that Dr. Johnston was well-qualified to discuss potential hazards associated with truck drivers crossing the uncovered gutter in the course of a job duty. The record reflects that the trial court engaged in a lengthy discussion with the parties outside of the jury’s presence about the admissibility of Dr. Johnston’s testimony for design defect. In this exchange, the trial court characterized this case as involving “a refrigerated trailer with a specialized flooring system and specialized drainage needs.”On this basis, the trial court did not require Dr. Johnston to be an expert in all aspects of refrigerated trailer design.

 

Dr. Johnston holds advanced degrees in industrial engineering and an undergraduate degree in mechanical engineering. He is an expert in product safety engineering and human factors engineering. Over the course of a twenty-four year career as the head of the Safety Engineering Program at Texas A & M University, Dr. Johnston taught more than one thousand graduate and undergraduate students in the fields of industrial safety engineering, product safety engineering, and human factors engineering. In that capacity, he taught those students how to properly and safely design all types of products for the workplace.

 

Dr. Johnston equated the hazard posed in this case-i.e., pallet-jack wheels falling into the uncovered rear gutter-with similar hazards he had examined, including a gutter or crack in a sidewalk or walking surface in which a child’s roller blade or wheel could become lodged, or a wheel chair ramp. Dr. Johnston characterized the hazard in this case as “nothing more than a gap in a walking surface, a surface that truck drivers have to walk across and also have to run dollies and so forth.”His solution was to cover or fill the gutter. Dr. Johnston acknowledged that he had not designed and did not intend to design a safer alternative. Champion sought to use Dr. Johnston’s testimony to establish that the alternative designs, as previously described at trial by Hofstetter and Champion, met the requirements of section 82.002(b) in substantially reducing or eliminating the risk of injury.

 

As with one of the experts in the products-liability case Gammill v. Jack Williams Chevrolet, Inc., Dr. Johnston in this case is not qualified to offer testimony as to any alleged design defect with the trailer’s uncovered rear gutter.4See 972 S.W.2d at 719. “Just as not every physician is qualified to testify as an expert in every medical malpractice case, not every mechanical engineer is qualified to testify as an expert in every products liability case.”Id. Dr. Johnston may have demonstrated his experience in designing workplace products and in designing solutions for hazards in walking surfaces, but he was not shown to have any training, experience, or special knowledge in the design or manufacture of refrigerated trailers or their relevant components, i.e, the rear uncovered gutter of refrigerated trailers that served a particular purpose for the trailer’s drainage. See id. at 718.

 

4. In contrast, a second expert witness in Gammill was shown to be qualified to testify about defects concerning a rear seat belt of the automobile at issue. See Gammill, 972 S.W.2d at 719. Although this second expert in Gammill, a licensed engineer, had a long academic career, similar to Dr. Johnston in this case, this second expert researched vehicle restraint systems, including systems like the one at issue, and had published articles on the subject. See id.This expert testified in numerous cases involving allegations of seat belt defects. See id.We factually distinguish Dr. Johnston from this expert in Gammill because, as shown in his deposition testimony, Dr. Johnston had not conducted research on uncovered gutters in refrigerated trailers, nor had he published articles on the subject or testified in any cases involving this type of allegation. See id.

 

Although Dr. Johnston held the same undergraduate degree in mechanical engineering as some of Great Dane’s engineers, this degree did not demonstrate that Dr. Johnston possessed specialized knowledge about the refrigerated trailer’s uncovered gutter and drainage system. See id.(requiring an expert to possess special knowledge on the very matter for which the opinion is offered). Dr. Johnston’s deposition revealed that he had participated in cases with accidents involving pallet jacks and loading or unloading cargo in trailers. However, he had no experience or specialized knowledge involving uncovered gutters or alternative designs for the gutters in refrigerated trailers. On this record, Dr. Johnston was not shown to have any expertise that would qualify him to testify about any alleged design defects in a refrigerated trailer’s uncovered gutter or the proposed alternative designs. See id.

 

Dr. Johnston demonstrated no specialized knowledge regarding the particular design of this uncovered gutter, and, accordingly, his testimony as to Champion’s proposed alternative designs did not rise above mere speculation. See Broders, 924 S.W.2d at 150-54. For this reason, Dr. Johnston was not qualified to offer an opinion as to any alleged design defect of the gutter at issue. SeeTEX.R. EVID. 702; Gammill, 972 S.W.2d at 719. Therefore, the trial court did not abuse its discretion in excluding Dr. Johnston’s testimony as to design defect. See Gammill, 972 at 719.Because we conclude Dr. Johnston was not qualified under Rule 702, we do not address the merits of whether the trial court assessed the expert’s reliability under an improper standard. Accordingly, we overrule Champion’s second issue.

 

Having overruled Champion’s two issues on appeal, we affirm the trial court’s judgment.

 

Tex.App.-Houston [14 Dist.],2009.

Champion v. Great Dane Ltd. Partnership

— S.W.3d —-, 2009 WL 1311922 (Tex.App.-Hous. (14 Dist.))

 

END OF DOCUMENT

Central Freight Lines, Inc. v. U.S.

United States Court of Federal Claims.

CENTRAL FREIGHT LINES, INC., Plaintiff,

v.

The UNITED STATES, Defendant.

No. 08-311C.

 

May 5, 2009.

 

OPINION

 

FIRESTONE, Judge.

 

This case comes before the court on the defendant’s motion to dismiss the plaintiff’s complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) for lack of subject matter jurisdiction. The plaintiff, Central Freight Lines, Inc. (“Central Freight” or “the plaintiff”), an interstate motor carrier, claims in this action that the United States Department of Defense (“DOD,” “the government,” or “the defendant”) breached contracts for transportation services by failing to pay Central Freight $172,089.93 in charges. For the reasons discussed below, the government’s motion to dismiss is GRANTED.

 

I. BACKGROUND FACTS

 

The following background facts are taken from the pleadings and are undisputed unless otherwise noted. This case involves shipments of crated household goods, known in the industry as “Freight All Kinds” (“FAK”), belonging to DOD personnel transported pursuant to government bills of lading. A government bill of lading (“GBL”) is a contract between the government and a DOD-approved carrier by which the government accepts the carrier’s offer to perform transportation services at a set cost. In order to contract with the government, the carrier must be a pre-qualified transportation service provider (“TSP”).

 

In this case, the DOD, through the Military Surface Deployment and Distribution Command (“SDDC”), issued a series of GBLs to Dispatch Services, Inc. (“Dispatch”) for trucking services, including the transportation of FAK belonging to DOD employees. Dispatch was registered as a TSP for FAK but was not registered with the SDDC as a broker during the period at issue. The GBLs identify Dispatch as a provider of motor carrier services, not broker services. Dispatch then entered into subcontracts with the plaintiff under straight bills of lading (“SBLs”). None of the SBLs incorporated any provisions of the GBLs between the government and Dispatch. Approximately 1,300 SBLs were issued between June 2005 and May 2006. All of the SBLs list “Dispatch Services, Inc.” as the party to be billed. See Ex. A to Ptf.’s Supp. Br. The defendant avers, and the plaintiff does not dispute, that the DOD paid Dispatch the full amount due under the GBLs for the period at issue. However, it appears that Dispatch did not pay Central Freight for the transportation services it provided. Dispatch has since gone out of business.

 

Briefing was completed on March 3, 2009.Oral argument was deemed unnecessary.

 

II. STANDARD OF REVIEW

 

RCFC 12(b)(1) governs the dismissal of claims for lack of subject matter jurisdiction. In reviewing a motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (internal citations omitted); see also Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (“[T]he court [is] obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiff’s favor.”).See generally Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The plaintiff, however, bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence. Reynolds, 846 F.2d at 748. Because jurisdiction is a threshold matter, a case can proceed no further if a court lacks jurisdiction to hear it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”(citation omitted)); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).See generally John R. Sand & Gravel v. United States, —U.S. —-, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). It is well-settled that when the court considers a motion to dismiss for lack of subject matter jurisdiction, it may look beyond the pleadings and “inquire into jurisdictional facts” to determine whether jurisdiction exists. Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991).

 

III. DISCUSSION

 

A. Introduction

 

The Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), grants the Court of Federal Claims jurisdiction to hear any claim founded upon an express or implied-in-fact contract with the United States. The Federal Circuit has held that in order “to maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the government.” Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed.Cir.1998) (internal citation omitted) (emphasis added); see Cent. Transp. Int’l, Inc. v. United States ) (“Central Transport ”), 63 Fed.Cl. 336, 338 (2004) (same) (citing Chancellor Manor v. United States, 194 F.3d 891, 899 (Fed.Cir.2003) (noting longstanding rule that privity is required in contract cases under the Tucker Act)). Privity between the plaintiff and the government “is a jurisdictional prerequisite for a contract claim because ‘the government consents to be sued only by those with whom it has privity of contract.’ “ Globex Corp. v. United States, 54 Fed.Cl. 343, 347 (2002) (quoting Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed.Cir.1984)). “Absent privity between the plaintiff and the United States, there has been no waiver of sovereign immunity for a suit in contract.”   Central Transport, 63 Fed.Cl. at 338.

 

B. No Contract Existed Between the Government and Central Freight.

 

The plaintiff asserts that this court has subject matter jurisdiction because its claims are predicated on contracts between the government and Central Freight. The plaintiff argues that it should prevail on one of two alternative contract theories. Firstly, the plaintiff argues that the SBLs establish direct privity of contract between the plaintiff and the government. Alternatively, the plaintiff argues that the parties should be deemed to be in privity of contract because Dispatch acted as an agent of the government when it entered into the SBL contracts with Central Freight, thus obliging the government to pay Central Freight regardless of whether or not it made payment to Dispatch. Ptf.’s Supp. Br. at 8 (citing United States v. Johnson Controls, Inc., 713 F.2d 1541, 1549-50 (Fed.Cir.1983)).

 

By way of background, a brief explanation of the contractual relationship between the government and a carrier is in order. A contractual relationship between the government and a carrier is governed by a tender and a GBL. Baggett Transp. Co. v. United States, 23 Cl.Ct. 263, 265 (1991), aff’d, 969 F.2d 1028 (Fed.Cir.1992) (“The terms of the contractual relationship between carrier and shipper consist of the tender and incorporated tariff, representing the offer, and the GBL and its annotations, representing the acceptance.”). As the Federal Circuit explained in Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1016 (Fed.Cir.1995), “[A GBL is] a document used by the government when acquiring freight transportation services from common carriers. Each GBL [is a] contract between the parties, establishing their respective rights with regard to the transportation services procured and provided.”(quoted in Central Transport, 63 Fed.Cl. at 338).“Thus, a GBL establishes privity between the carrier and the Government.”Central Transport, 63 Fed.Cl. 338.However, it is well-established that “subcontractors normally are not in privity with the Government” except where “the prime contractor is a mere government agent.” Johnson Controls, 713 F.2d at 1550, 1551. In the absence of such agency, courts have routinely held that a subcontractor has no standing or contractual cause of action to sue the government. See, e.g., Johnson Controls, 713 F.2d at 1550 (denying claim brought by a subcontractor); Central Transport, 63 Fed.Cl. at 338-39 (denying claim brought by subcontractor to a subcontractor). Tested by these standards, the plaintiff’s contract claim must be dismissed.

 

1. Neither the GBLs Nor the SBLs Establish Privity of Contract Between Central Freight and the Government.

 

The plaintiff argues that express contracts existed between Central Freight and the government for the transportation services the plaintiff provided. Central Freight asserts, “A contract between the government and the carrier forms each time the government accepts the carrier’s transportation services with the carrier’s bill of lading,” Ptf.’s Supp. Br. at 5 (citing Central Transport, 63 Fed.Cl. at 338), and that “[t]he Bills of Lading in this case establish express contracts between the DOD and Central Freight Lines.”Id. The plaintiff states that

 

Central Freight Lines is named as carrier in the Bills of Lading. Compare Central Transp[ort], 63 Fed.Cl. at 338 (no privity where carrier is not named on the bill of lading). The DOD is listed as consignee on the Bills of Lading…. As consignee and owner of goods transported by Central Freight Lines, DOD is liable for payment of the rates of transportation. S[ ]. Pac [.] Transp. Co .[ v. Commercial Metals Co.], 456 U.S. [336,] 343, 102 S.Ct. 1815, 72 L.Ed.2d 114 [ (1982) ]; 49 U.S.C. § 13706 [ (1995) ].

 

Id. at 5-6.

 

In response, the government asserts that “[i]n merely contending that a bill of lading establishes privity of contract between the government and motor carrier, Central [Freight] is attempting to deliberately obscure an important distinction between a government bill of lading and a straight bill of lading….” Def.’s Resp. at 4 (emphasis in original) (citation and internal quotation marks omitted). The government argues that while it had contracts in the form of GBLs with Dispatch for delivery of the goods that Central Freight ultimately delivered, the government was not a party to the SBLs between Dispatch and Central Freight and therefore had no contractual relationship with the plaintiff. The government states, “To establish the existence of either an express or implied-in-fact contract, Central [Freight] must demonstrate: (1) mutual intent to contract; (2) consideration; (3) lack of ambiguity in an offer and acceptance; and (4) actual authority on the part of the Government representative to bind the United States in contract.”Def.’s Resp. at 6 (citing Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429, 1434 (Fed.Cir.1998); City of El Centro v. United States, 922 F.2d 816, 820 (Fed.Cir.1990)). The government contends that the plaintiff has failed to demonstrate the existence of any of these required elements.

 

This court agrees with the government that Central Freight has not established that it had an express or implied-in-fact contract with the United States. While the plaintiff has supplied this court with over 1,300 SBLs between itself and Dispatch, the SBLs fail to establish a contractual relationship between the government and Central Freight. See Ptf.’s Supp. Br. at Ex. A. Although, as discussed below, the plaintiff claims that Dispatch was acting as a broker and agent of the government when Dispatch contracted with Central Freight, the plaintiff has not presented evidence sufficient to establish that Dispatch had actual authority to bind the United States in contract. See City of El Centro, 922 F.2d at 820 (“When the United States is a party, a fourth requirement is added: the Government representative ‘whose conduct is relied upon must have actual authority to bind the government in contract.’ “ (quoting Juda v. United States, 6 Cl.Ct. 441, 452 (1984) (further citations omitted))). No signature of an SDDC employee, other DOD employee, or any other government representative appears on the SBLs. Furthermore, the plaintiff does not claim to be a party to the GBLs, nor to even be mentioned on them. In short, drawing all reasonable inferences in favor of the plaintiff, Central Freight has failed to raise a right of relief above the speculative level. See Twombly, 550 U.S. at 555.

 

2. Dispatch Was Not Acting as an Agent of the United States When It Contracted with Central Freight.

 

[10] The plaintiff also argues that this court should find “deemed privity” of contract between Central Freight and the government. In support, the plaintiff cites Johnson Controls, 713 F.2d at 1549-50. In Johnson Controls, the Federal Circuit held that, as an exception to the general rule that subcontractors are not in privity of contract with the government, the government may be deemed to be in privity of contract with a subcontractor where the prime contractor was “(1) acting as a purchasing agent for the government, (2) the agency relationship between the government and the prime contractor was established by clear contractual consent, and (3) the contract stated that the government would be directly liable to the vendors for the purchase price.” Johnson Controls, 713 F.2d at 1551 (citations omitted) (emphasis in original); see also Central Transport, 63 Fed.Cl. at 339 n. 8 (enumerating the Johnson Controls factors but finding no basis for deemed privity); Globex Corp., 54 Fed.Cl. at 347-48 (same). The plaintiff argues that all three factors identified in Johnson Controls are present. Firstly, claims the plaintiff, Dispatch was acting as a purchasing agent for the government “as evidenced by its role in soliciting transportation arrangements from Central Freight Lines, and by the very definition of ‘brokers’ under 49 U.S.C. § 13102(2) [ (2002) (“Section 13102(2))”].” Ptf.’s Supp. Br. at 8. Secondly, argues Central Freight, “the DOD consented to the contractual relationship with Dispatch Services as evidenced by the Bills of Lading.”Id. Finally, the plaintiff claims that “the DOD, as a named party in the Bills of Lading, agreed to be liable for the freight charges by accepting the transportation services of Central Freight Lines.”Id. at 8-9 (citing S. Pac. Transp. Co., 456 U.S. at 343;49 U.S.C. § 13706).

 

In response, the government argues that the plaintiff misapplies the Johnson Controls test. The government argues that the fact that Dispatch subcontracted with Central Freight is insufficient to demonstrate that Dispatch acted as the government’s purchasing agent. The government notes that in his declaration, Mr. Bono “unequivocally stated that Dispatch was not authorized to act as a broker or agent of the Government.”Def.’s Resp. at 8; Bono Decl. ¶¶ 8 (“from 1999 to 2009 Dispatch … had legal authority to operate only as a carrier, not a broker”), 9 (“Dispatch was not registered with SDDC as a broker during this period”), 12 (“None of the contract documents authorized Dispatch to act as an agent of DOD.”). Likewise, the government argues that the SBLs between Dispatch and Central Freight “fail[ ] to demonstrate that any agency relationship between Dispatch and the Government was established by ‘clear contractual consent.’ “ Def.’s Resp. at 8 (quoting Johnson Controls, 713 F.2d at 1551). The government argues that “Central [Freight] has failed to establish that the United States was a party to the [SBLs]” and that “[i]n any event, nowhere in those bills of lading is any agency relationship even referenced.”Id. Finally, the government argues that “Central [Freight] has failed to establish that any purported contract stated that the Government would be directly liable to … Central [Freight]” and adds that “as each bill of lading demonstrates, any bill for service was to be submitted to Dispatch, and nothing on the contract states or even implies that the United States agreed to pay Central [Freight] for any services.”Id. Thus, argues the defendant, the plaintiff cannot establish that Dispatch was acting as a government agent, and the parties cannot be deemed to be in privity of contract.

 

The court agrees with the government that, for the reasons the government advances, the plaintiff has failed to satisfy any of the three Johnson Controls factors. The plaintiff has not pled jurisdictional facts sufficient to demonstrate that Dispatch was acting as a government agent when it subcontracted with Central Freight. Indeed, Dispatch was not a registered broker with the DOD and did not possess actual authority to bind the government in contract. Nowhere was an agency relationship between the government and Dispatch established by clear contractual consent. See Bono Decl. ¶ 12 (“None of the contract documents authorized Dispatch to act as an agent of DOD.”). Furthermore, as in Central Transport, the GBLs did not state that the government would be directly liable to the plaintiff for the charges of shipping the goods. See Central Transport, 63 Fed.Cl. at 339 n. 8. As was the plaintiff’s situation in that case, Central Freight was never mentioned in any GBL. See id.Additionally, each SBL listed Dispatch as the sole party to be billed. Ptf.’s Supp. Br. at Ex. A; see Central Transport, 63 Fed.Cl. at 339 n. 8. Therefore, this court finds no basis to deem the parties to be in privity of contract.

 

C. Neither 49 U.S.C. § 13706 Nor 41 C.F.R. § 102-118.35 Provides Jurisdiction.

 

[11] As an alternative to a contractual basis for Tucker Act jurisdiction, the plaintiff asserts that 49 U.S.C. § 13706 (“Section 13706”) provides a statutory basis for jurisdiction. Section 13706 governs the liability of consignees for shipping charges incurred by a common carrier. In its response to the defendant’s motion to dismiss, the plaintiff cites Fikse & Co. v. United States, 23 Cl.Ct. 200, (1991), for the proposition that Section 13706 imposes liability where transportation services are provided by a common carrier. Ptf.’s Resp. at 4 (citing Fikse, 23 Cl.Ct. at 203, 204). The plaintiff argues that “[a]t all times material, Plaintiff … was a common carrier. Therefore, under the analysis of Fi[ks]e and the general rule of the Fi[ks]e court, that is, that liability may lie where transportation is provided by a common carrier, Plaintiff has sufficiently ple[d] a cause of action against the DOD.”Ptf.’s Resp. at 4.

 

In response, the government argues that Section 13706 is inapplicable because “[i]n this case, Central [Freight] was clearly not acting in the capacity of a common carrier. Rather, as the [SBLs] demonstrate, Central [Freight] was providing services to Dispatch pursuant to a contract with Dispatch, not the United States .”Def.’s Resp. at 4 (internal quotation marks removed). The defendant notes that the Fikse court held that Section 13706“was not intended to ‘create liability in the consignee in the face of an express contractual allocation elsewhere of freight charges.’ “ Id. (quoting Fikse, 23 Cl.Ct. at 204 (citing-in-turn In re Roll Form Prods., 662 F.2d 150, 153-54 (2d Cir.1981) (“The Interstate Commerce Act … was not intended to ‘fashion a sword’ to insure collection by carriers of freight charges[ n]or … to impose an absolute liability upon consignees for freight charges.” (internal brackets removed)); Consol. Freightways Corp. v. Admiral Corp., 442 F.2d 56, 62 (7th Cir.1971); In re Penn-Dixie Steel Corp., 6 B.R. 817, 820 (S.D.N.Y.1980), aff’d, 10 B.R. 878 (S.D.N.Y.1981); S. Pac. Transp. Co. v. Campbell Soup Co., 455 F.2d 1219, 1220-22 (8th Cir.1972) (the principal purpose of the Interstate Commerce Act was to eliminate all forms of rate discrimination on interstate shipments)). Additionally, the government argues that Section 13706 does not provide a basis for jurisdiction where the subcontractor and the government are not in privity of contract.

 

Faced with the government’s argument that the plaintiff was not acting as a common carrier, the plaintiff argues that Section 13706 does not “limit its application to common carriers,” and therefore, “whether Central Freight [ ] Lines is a common or contract carrier is inapposite.”Ptf.’s Reply at 4, 5. The plaintiff asserts that “Congress no longer recognizes a distinction between common and contract carriers,” and cites 49 U.S.C. § 13902(f)(2) (2005) in support of this proposition. In the alternative, the plaintiff argues that “[e]ven assuming the distinction was relevant, Central Freight Lines is a common carrier under the old common law test because though there were many bills of lading, there was no single contract governing the shipments tendered by DOD.”Ptf.’s Reply at 5 (citing Fikse, 23 Cl.Ct. at 203).

 

This court adopts the reasoning expressed by Judge Williams in Central Transport and holds that Section 13706 does not “dispense with the necessity of establishing privity of contract with the Government in order to establish jurisdiction under the Tucker Act.” 63 Fed.Cl. at 340 n. 10 (citing Fikse, 23 Cl.Ct. at 204; In re Roll Form Prods., 662 F.2d at 154 (“The ICA, in our view, was not intended to ‘fashion a sword’ to insure collection by carriers of freight charges.”(internal brackets omitted)); S & B Transp., Inc. v. Allou Distribs., Inc., 41 F.Supp.2d 388, 391-92 (E.D.N.Y.1999) (holding that Section 13706 does not confer federal subject matter jurisdiction over disputes involving independent brokerage contracts between broker and shipper)). While the plaintiff attempts to distinguish Central Transport by arguing that “in Central Transport[ ], the contract carrier was a sub-sub-contractor …. [while i]n the instant matter, the Plaintiff is at best[ ] a sub-contractor,” Ptf.’s Resp. at 4, this court finds this to be a distinction without a difference. Section 13706 provides no basis for jurisdiction between the government and a subcontractor of any level, be it a subcontractor, a “sub-sub-contractor,” or a “sub-sub-sub-contractor.”

 

[12] In the alternative, the court agrees with the defendant that under the court’s holding in Fikse,Section 13706 does not create liability in the consignee for shipping charges where there is a contract allocating these charges elsewhere. See Fikse, 23 Cl.Ct. at 204. Regardless of whether the carrier is deemed a “common” or “contract” carrier, the salient fact is whether or not a contract exists allocating shipping charges. As such a contract exists here and allocates shipping charges to Dispatch, Section 13706 does not apply and, therefore, provides no basis for this court’s exercise of jurisdiction.

 

[13] The plaintiff also cites 41 C.F.R. § 102-118.35 (2004), which defines a TSP as “any party, person, agent, or carrier that provides freight or passenger transportation and related services to an agency,” as a basis for jurisdiction on the theory that it dispenses with the requirement of privity of contract. Ptf.’s Resp. at 4-5. In Central Transport, Judge Williams noted that 41 C.F.R. § 102-118.35“does not imbue a TSP, which is a subcontractor, with the right to recover payment from the Government for services provided in the absence of a contract between the Government and that party.” 63 Fed.Cl. at 340. As Judge Williams explained, this interpretation of the regulation is supported by a more specific provision in the regulation, found at 41 C.F.R. § 102-118.205 (2004), which contains the following question and answer:

 

May my agency pay a subcontractor or agent functioning as a warehouseman for the TSP providing service under the bill of lading?

 

No, your agency may only pay the TSP with whom it has a contract.The bill of lading will list the TSP with whom the Government has a contract.

 

(emphasis added). Here, there is no dispute that Dispatch is the TSP with whom the government has a contract. Therefore, the latter regulation makes it clear that the former does not support recovery in the absence of a contract between the government and the subcontractor.

 

[14][15][16] Additionally, as Judge Williams notes, “the Government is not made liable, by implication, for payment to Plaintiff when it is clear from the face of each SBL that [another party was] expressly obligated to pay.” Central Transport, 63 Fed.Cl. at 340 (emphasis in original) (citing Fikse, 23 Cl.Ct. at 204 ( [N]o implication of an agreement to pay could arise by acceptance in view of the express provisions obligating [the non-government entity that contracted with the plaintiff] to pay shipping charges”)). Here, it is not disputed that the express terms of the SBLs obligated only Dispatch to pay the plaintiff. Thus, neither Section 13706 nor 41 C.F.R. § 102-118.35 provide a basis for this court’s exercise of jurisdiction.,

 

IV. Conclusion

 

For the foregoing reasons, the defendant’s motion to dismiss is GRANTED.The Clerk is directed to enter judgment accordingly. Each party is to bear its own costs.

 

The SDDC is a component of the DOD and is responsible through either the Personal Property Directorate or the Domestic Business Requirements Section for coordinating the transport of household goods or FAK, respectively.

 

In response to the court’s order for supplemental briefing, the plaintiff filed copies of over 1,300 SBLs between Dispatch and Central Freight. Ptf.’s Supp. Br. at Ex A. The defendant also filed the declaration of Evert L. Bono III, Chief of the Domestic Business Requirements Section of the SDDC, stating that while several GBLs were issued to Dispatch during the time period in question, it could not be determined which of these related to the goods described in the SBLs. Def.’s Resp. to Ptf.’s Supp. Br. (“Def.’s Resp.”) at Ex. B (“Bono Decl.”) ¶¶ 15-17.

 

Although the plaintiff does not specify whether the bills of lading to which it refers are the GBLs or the SBLs, it is clear from the context that the plaintiff is referring to the SBLs.

 

Section 13102(2) defines “broker” for purposes of Title 49 as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.”

 

At the time of the Fikse decision, Section 13706 was codified at 49 U.S.C. § 10744 (1989).

 

49 U.S.C. § 13902(f)(2) states:

 

Pre-existing certificates and permits.-The Secretary shall redesignate any motor carrier certificate or permit issued before the transition termination date as a motor carrier certificate of registration. On and after the transition termination date, any person holding a motor carrier certificate of registration redesignated under this paragraph may provide both contract carriage (as defined in section 13102(4)(B)) and transportation under terms and conditions meeting the requirements of section 13710(a)(1). The Secretary may not, pursuant to any regulation or form issued before or after the transition termination date, make any distinction among holders of motor carrier certificates of registration on the basis of whether the holder would have been classified as a common carrier or as a contract carrier under-

 

(A) subsection (d) of this section, as that section was in effect before the transition termination date; or

 

(B) any other provision of this title that was in effect before the transition termination date.

 

Similarly, this court also rejects the plaintiff’s argument that 49 U.S.C. § 13101 (1995), which sets forth broad transportation policy goals, provides a basis for Tucker Act jurisdiction. A statute “need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it can fairly be interpreted as mandating compensation by the Federal Government.” United States v. Navajo Nation, — U.S. —-, —-, 129 S.Ct. 1547, 1552, — L.Ed.2d —-, —- (2009) (citations and internal quotation marks omitted); see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (A federal statute grants this court subject matter jurisdiction only if it “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.”(citations and internal quotation marks omitted)). As no part of 49 U.S.C. § 13101 can be fairly interpreted as mandating compensation, this court holds that this statute provides no basis for jurisdiction.

 

As a final matter, the plaintiff argues in the alternative that it is entitled to recover for unjust enrichment. Ptf.’s Supp. Br. at 9 (citing Perri v. United States, 340 F.3d 1337, 1344 (Fed.Cir.2003); Prestex, Inc. v. United States, 162 Ct.Cl. 620, 320 F.2d 367 (1963)). As the government asserts, a claim of unjust enrichment is equitable in nature and is not based on a contractual relationship. Def.’s Resp. at 9 (citing Enron Fed. Solutions, Inc. v. United States, 80 Fed.Cl. 382, 409 (2008) (further citation omitted)). Such a claim “is therefore based upon a contract implied in law, over which this court has not been given jurisdiction.”Id. Therefore, the plaintiff’s unjust enrichment claim does not provide this court with subject matter jurisdiction.

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