The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
Universal Am-Can, Ltd. ("Universal") has sued CSI-Concrete Systems, Inc. ("CSI") in five counts, asserting claims based on CSI's refusal to pay a fuel surcharge Universal included on invoices it presented to CSI for hauling 275 loads of concrete forms from New Hampshire to Wisconsin. Specifically, Universal asserts claims for: breach of contract (Count I), quantum meruit (Count II), restitution/unjust enrichment (Count III), attorney's fees and costs (Count IV), and violation of the New Hampshire Consumer Protection Act ("CPA") (Count V). CSI asserts counterclaims for: violation of the CPA (Count I), breach of the implied covenant of good faith and fair dealing (Count II), and misrepresentation (Count III). Before the court is Universal's motion for summary judgment on all five of its claims and all three of CSI's counterclaims. CSI objects. For the reasons that follow, Universal's motion for summary judgment is denied as to its own claims but granted as to CSI's counterclaims.
Summary Judgment Standard
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).
"Once the moving party avers an absence of evidence to support the non-moving party's case, the non-moving party must offer 'definite, competent evidence to rebut the motion,'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)), and "cannot rest on 'conclusory allegations, improbable inferences, [or] unsupported speculation,'" Meuser, 564 F.3d at 515 (quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008)). When ruling on a party's motion for summary judgment, a trial court "constru[es] the record in the light most favorable to the non-movant and resolv[es] all reasonable inferences in [that] party's favor." Meuser, 564 F.3d at 515 (citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002)).
Unless otherwise indicated, the following facts are undisputed.
In September of 2008, in an e-mail from Steven Coughlin to Len Worden, Universal offered to haul 40,000-pound loads of concrete forms for CSI at the following rate:
$1475.00 per load including FSC as long as fuel does not go over $4.35 per gallon on the National Average
[a]s posted on Monday of each week by the Department of Energy. If this should happen an agreed upon increase will be negotiated.
Def.'s Obj., Falco Aff., Ex. A (doc. no. 18-1), at 7. When Universal made the foregoing offer, fuel prices were in the vicinity of $4.20 per gallon. See id., Ex. B (doc. no. 18-2). CSI did not accept Universal's offer. Approximately six weeks later, Coughlin sent Worden another e-mail acknowledging a drop in fuel prices and offering a lower rate:
$1,430.00 per load including FSC as long as fuel does not go over $3.80 per gallon on the National Average as posted [o]n Monday of each week by the D.O.E. If Fuel does exceed the $3.80 per gallon we would have to increase the price [p]er load to a reasonable level as we would agree upon . . .
Id., Ex. A, at 7. When Universal made its second offer, fuel prices were in the vicinity of $3.50 per gallon. See id., Ex.
B. CSI did not accept Universal's second offer.
In May of 2009, Coughlin e-mailed Worden again, with
After review of our last proposal and discussions with Louis Falco and of course the conditions in the transportation industry as a whole I have re-assessed our rate structure on the possible upcoming moves to Milwaukee, WI and wanted to share this with you.
Based on the reduced fuel costs and the overall economy I feel comfortable that we can provide transportation from your Facility in Londonderry NH to Milwaukee, WI at the following rate $1360.00 per load including Fuel as long as the fuel stays at a level under $2.22 per gallon national average as posted each Monday by the D.O.E.
Falco Aff., Ex. A (doc. no. 18-1), at 10-11 (emphasis in the original). Universal and CSI entered into an agreement on those terms. When they did so, the price of fuel was $2.185 per gallon. See Mot. Summ. J., Ex. A, First Boussie Aff. (doc. no. 17-2) ¶ 21.
Universal hauled its first load for CSI on November 10, 2009. See Mot. Summ. J., Ex. D (doc. no. 17-5), at 4. At that time, the cost of fuel was in the vicinity of $2.80 per gallon. See Falco Aff., Ex. B (doc. no. 18-2). For loads delivered between November of 2009 and February 9, 2010, Universal invoiced CSI at the rate of $1,360 per load.
On February 9, 2010, the price of fuel was $2.769 per gallon. See First Boussie Aff. (doc. no. 17-2) ¶ 22. That same day, Coughlin had a conversation with CSI's Project Manager, Louis Falco, concerning Universal's need to impose a fuel surcharge on all loads shipped thereafter.*fn1 Regarding the content of that conversation, Universal has produced an affidavit from Melissa Boussie, an employee in Universal's accounts-receivable department. She states:
On or about February 9, 2010, I was informed by Steve Coughlin that a 15% fuel surcharge was to be added to CSI's invoices going forward.
I was later informed by Mr. Coughlin that when he told CSI that it would be necessary to institute fuel surcharges, that the Project Manager, Louis Falco, agreed stating "Okay. I will tell Len."
Id. ¶¶ 6-7. Universal has not produced an affidavit from Coughlin describing his conversation with Falco. CSI has produced an affidavit in which Falco describes his conversation with Coughlin in the following way:
On February 9, 2010, Mr. Coughlin of Universal contacted me regarding increases in fuel prices and Universal's alleged need to impose a fuel surcharge.
In response, I explained to him that - based upon my review of Universal's three rate quotes for the hauling of Concrete Systems goods - the third rate quote (the May 2009 Agreement whereby Universal agreed to haul Concrete Systems' goods for $1,360.00 per load as long as the price of fuel was below $2.22 per gallon) should have actually been $1,360 per load as long as fuel prices remained below $3.22. Otherwise, Universal's first rate quote ($1,475 per load as long as fuel costs remained below $4.35 per gallon) and second rate quote ($1,430 as long as fuel costs remained below $3.80 per gallon) - which Concrete Systems rejected because they were too high - would have been better deals for Concrete Systems. Based on my analysis, Concrete Systems would have saved approximately $25,000 if it accepted an earlier rate quote. This is in contrast to Universal's representation that the third rate quote was better than the second rate quote, which had allegedly been better than the first. In hindsight, I felt that Universal's rate quotes were misleading. I informed Mr. Coughlin that I would have to confer with Mr.
Worden, the president of the company, regarding the proposed fuel surcharge. However, throughout my conversation with Mr. Coughlin, I never agreed that Concrete Systems would pay the fuel surcharge. In fact, I expected Universal to acknowledge that the $2.22 fuel cost limit was an error and should have been set at $3.22.
Falco Aff. (doc. no. 18-1) ¶ 7. Based on the foregoing, Falco did not contest Universal's right to a higher rate per load once fuel prices hit a certain ceiling; he merely indicated his belief that fuel prices had not yet reached the agreed-upon ceiling.
Universal agrees with CSI that there is a factual dispute over whether CSI agreed to the fuel surcharge in the February 9 telephone call.*fn2 It is undisputed, however, that after Coughlin's conversation with Falco, Falco spoke with Worden, with the following result:
[A]fter it was informed that Universal would be unilaterally imposing a fuel surcharge, CSI determined that it would not pay such a fuel surcharge because it never agreed to pay such a fuel surcharge. This was a decision reached by Mr. Worden after being advised of the conversation between Mr. Falco and Mr. Coughlin on or about February 9, 2010.
Mot. Summ. J., Ex. B (doc. no. 17-3), at 8.*fn3 Falco never got back in touch with Coughlin to report the outcome of his conversation with Worden.
On March 17, Boussie e-mailed John Perry, who was then employed by CSI
as an accounts payable/accounts receivable assistant.*fn4
Boussie wrote to inquire about several January invoices that
had not been paid and three more invoices that she characterized as
having been "paid short." With respect to the
short-paid invoices, Boussie wrote: "Also, there are a few invoices
that are paid short. Can you tell me the breakdown on payment for the
following invoices?" Pl.'s Reply, Ex. A, Second Boussie Aff. (doc. no.
20-1), at 4. Boussie then listed three invoice numbers. Perry
4150561-00 & 4130707-00, were short paid in my error in entering them. I will enter the balance due on these 2 invoices.
Invoice 4141342-00 should have been for 1360.00, the fuel surcharge was in effect on 2/09/10 this invoice is dated 2/01/10 please credit the $204.00.
Id. In an affidavit, Boussie characterizes her communications with Perry:
I . . . contacted Mr. Perry at CSI and inquired as to why the fuel surcharge was not paid. Mr. Perry replied via e-mail that CSI would not be paying the fuel surcharge prior to February 9, 2010 but would be paying the fuel surcharge after February 9, 2010.
I believe I also had telephone calls consistent with the e-mail exchange whereby Mr. Perry stated that CSI was not willing to pay the fuel surcharge prior to the date Mr. Falco and Mr. Coughlin spoke (February 9, 2010), but that it was Mr. Perry's mistake in not paying the fuel surcharge for the entire month of February with the fuel surcharge subsequent to February 9. I believe I apologized for mistakenly sending invoices for the entire month of February with the fuel surcharge and Mr. Perry apologized for not sending the fuel surcharge for all invoices from February 9, 2010 forward.
First Boussie Aff. (doc. no. 17-2) ¶¶ 10, 12.
By check dated March 26, 2010, CSI paid the fuel surcharge on invoices 4150561 and 4130707. See Second Boussie Aff. (doc. no. 20-1) ¶ 3. CSI, however, never again paid the surcharge. Rather, it paid $1,360 each for the next 275 loads Universal hauled.*fn5 Universal hauled its last load for CSI on April 5, 2010. See Mot. Summ. J., Ex. D (doc. no. 17-5), at 23. There is no specific evidence in the record to indicate when CSI was invoiced for the loads Universal hauled after February 9, nor is there specific evidence to indicate when CSI paid those invoices. There is, however, evidence that as a general matter, Universal sent invoices ...