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12/30/97 CLINTON KENNEDY v. COMMERCIAL CARRIERS

December 30, 1997

CLINTON KENNEDY, DALE LONG, KENNETH H. CHANDLER, AND HAROLD SUTPHIN, INDIV. AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES,
v.
COMMERCIAL CARRIERS, INC., DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT. COOK COUNTY. No. 89 CH 11486. THE HONORABLE JENNIFER DUNCAN-BRICE, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court. Gordon and Cahill, JJ., concur. Justice Gordon, Specially Concurring.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Plaintiffs, Clinton Kennedy, Dale Long, Kenneth H. Chandler and Harold Sutphin, brought a class action on behalf of certain union truck drivers against their employer, Commercial Carriers, Inc. (CCI), alleging that CCI had breached its equipment leases with each plaintiff and class member. After a jury trial, the trial court entered judgment in favor of plaintiffs and against CCI in the amount of $2,313,142.72. CCI appeals from that judgment and from the trial courts order denying CCIs post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. On appeal, CCI contends that the trial court erred by denying CCIs request, pursuant to section 2-1201(c) of the Code of Civil Procedure (735 ILCS 5/2-1201(c) (West 1992)), for separate verdict forms that CCI alleges would have enabled the jury to find in favor of the plaintiffs on only one of the two leases at issue.

BACKGROUND

CCI is an automobile transporter that hauls vehicles on behalf of manufacturers and importers. Plaintiff class representatives were owner-operators who leased their respective tractors or tractor-trailers to CCI for use in CCIs business of transporting automobiles. CCI and the owner-operators entered into lease agreements that supplemented other terms of employment. The plaintiff class consisted of 97 owner-operators who signed certain forms of those leases. The lease agreements required CCI to pay rent to the owner-operators in the amount of 65% of CCI's gross revenue. Plaintiffs brought breach of contract claims under two different versions of the lease which were attached to the complaint as exhibits A and B, respectively. *fn1 Clinton Kennedy's lease, attached as exhibit A to the complaint, provided that rents were to be calculated as follows:

"Company agrees to pay Lessor [owner-operator] as rental compensation for the use of the leased motor vehicles and motor vehicle equipment, an amount earned in use of Lessors vehicle equal to the percentage of the gross revenue accruing to the Company and exclusive of delivery charges where Lessors vehicle does not make final delivery, based upon gross billings to customers, hereinafter set forth less drivers wages and vacation pay, at the union contract rates, less the transportation cost attributable thereto." (Emphasis added.)

Harold Sutphins lease, attached as exhibit B to the complaint, provided a separate basis upon which rents were to be calculated and provided as follows:

"The COMPANY agrees to pay the LESSOR, as rental compensation for the use of the Vehicle, an amount equal to the percent of the gross revenue (based upon billings to customers), derived by line-haul revenue only as herein stated below, and exclusive of delivery charges where the Vehicle does not make final delivery less drivers wages and vacation pay, at the union contract rates, less the transportation cost attributable thereto." (Emphasis added.)

Plaintiffs alleged that CCI breached its equipment leases by reducing the gross revenues upon which plaintiffs' rents were calculated by amounts that CCI referred to as "ancillary charges" received by CCI. The ancillary charges covered costs associated with the assimilation of shipping and delivery information and ranged from $2.40 to $5.25 per delivery.

At trial, plaintiffs' expert, Leland Stewart Case, an economic transportation consultant, explained that CCI included ancillary charges in the rates it charged to customers. Those rates were published in CCI's tariffs. Case explained that tariffs are documents that provide the terms and conditions under which a carrier such as CCI will make shipments and the prices the carrier will charge for the shipments. It was Case's opinion that the gross revenues referred to in the lease agreements included ancillary charges that had been charged to the customers.

On the other hand, CCI's expert, Mitchell Haller, testified that line-haul revenue, referred to in the lease attached to the complaint as exhibit B, is different from revenue of a motor carrier because there can be revenue of a motor carrier that is not attributable to line-haul service. Haller defined the term "line haul" as a commonly used term in the trucking industry that constitutes part of a full transportation service that is the movement in a train or truck from the point of origin to the point of destination.

Plaintiffs presented the damages attributable to each of the 97 class members in a demonstrative exhibit that was admitted into evidence as plaintiffs' exhibit M1.

At the jury instruction conference, CCI tendered separate verdict forms for each lease, which would allow the jury to make separate findings of liability for each lease and assess separate damages for each lease. In addition, CCI proposed a jury instruction that instructed the jury to consider the leases separately, determine whether each lease required CCI to include ancillary charges in calculating the plaintiffs' ...


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