United States District Court, D. Nebraska
JACKSON HARMON ENTERPRISES, LLC, d/b/a MIDWEST TOWING, a Nebraska Limited Liability Company, Plaintiff,
INSURANCE AUTO AUCTIONS, INC., an Illinois Corporation, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This diversity case is before court on cross-motions for summary judgment. The plaintiff, Jackson Harmon Enterprises, LLC, doing business as Midwest Towing ("Midwest"), seeks to recover damages from the defendant, Insurance Auto Auctions, Inc. ("IAA"), for breach of contract or, in the alternative, unjust enrichment. Both motions will be denied.
IAA is an Illinois corporation engaged in the business of storing automobiles in Douglas County, Nebraska. IAA provides a forum for insurance companies and other vehicle providers to dispose of total loss, theft-recovered, or dealer trade-in vehicles at auction. Upon assignment from a provider, IAA utilizes towers to pick up and deliver vehicles that are assigned to IAA by various vehicle providers. Midwest Towing is a Nebraska limited liability company engaged in the business of towing vehicles in Douglas County, Nebraska.
On March 8, 2010, Midwest and IAA entered into a "Towing Services Agreement, " pursuant to which Midwest agreed "to tow vehicles for IAA... at the [mileage zone] rates set forth in the [attached] Towing Rate Sheet" (Complaint Ex. A (filing 1-1), ¶ 4.1). The Towing Services Agreement specified: "All additional charges such as two stops, waiting time, and dry runs not authorized by IAA will be absorbed by [Midwest] and not reimbursed by IAA" ( id., ¶ 4.2). Regarding such additional charges, the Towing Rate Sheet provided:
1) Dry Runs -
> Will be paid at 35% of the applicable zone rate. Dry runs must be pre-approved by Branch Manager.
2) Wait Time -
> IAA will not pay for wait time for the first ½ hour. After 30 minutes, wait time will be paid at $25.00 per ½ hour increments, if approved by the Branch Manager.
3) Added Stops -
> IAA will pay $25.00 for additional stops, if approved by the Branch Manager.
( Id., p. 12; filing 89-1, p. 17).
Midwest alleges IAA breached the parties' agreement by not paying a "two stops" charge after Midwest either (a) delivered one or more vehicles from a single load to IAA's lot located on 52nd Street in Omaha, Nebraska, and the balance of the vehicles to a different IAA lot or (b) delivered vehicles in a single load to a location other than the 52nd Street lot and then delivered the tow bill ( i.e., paperwork) to 52nd Street. Midwest alleges that these types of towing assignments occurred on at least 8, 994 occasions since July 2010,  but in its motion for partial summary judgment Midwest claims only 5, 945 "two stops" charges.
The first time Midwest requested payment from IAA for deliveries to lots other than 52nd Street was in early 2011. Midwest's manager, Jeff Jackson, told IAA's branch manager, John Williams, that "the change of having to drop cars all over off the same load is starting to really cost me money, " and he asked, "will IAA do anything about the fact that we're having do this?" Williams denied the request and responded that IAA's area manager, Dawn Kors, would not approve additional payments. Jackson again approached Williams in mid-2011, and Williams responded that he could not approve payment of additional compensation. Jackson also spoke directly with Kors in October 2011, and she told him the additional compensation Midwest was requesting was "not in the budget." She offered to put the Towing Services ...