Al Jessep v. Jacobson Trans. ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2005
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Al Jessep, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jacobson Transportation *
Company, Inc.; Shelley *
Capehart, in her official *
and individual capacity, *
*
Appellees. *
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Submitted: November 3, 2003
Filed: December 2, 2003
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Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
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RILEY, Circuit Judge.
Al Jessep (Jessep) appeals the district court’s1 adverse grant of summary
judgment in his action alleging breach of contract and violation of 49 U.S.C. § 14103.
We affirm.
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
Jessep, an owner-operator of a semi tractor-trailer, entered into an
“Independent Contractor Standard Agreement” (lease) with Jacobson Transportation
Company (Jacobson), a carrier of goods and freight. Jessep agreed to lease his
vehicle to Jacobson and to provide transportation services in exchange for payment
according to a compensation schedule. Paragraphs 3 and 6E of the lease expressly
provide that the qualified driver/contractor will load, transport, deliver, unload, or
assist in unloading accepted freight. Pursuant to paragraph 6L of the lease, Jessep
agreed to abide by Jacobson’s Policy and Procedure Manual (manual), which
provides that if a driver rejects a load offer, the offer will be rescinded, the driver will
be moved to the bottom of the dispatch board, and the driver will not be paid for
bounce miles–miles driven in an empty truck between loads. The manual also
provides that a driver who rejects a load offer is subject to possible disciplinary action
or lease cancellation.
On September 17, 2001, Jacobson assigned Jessep a “driver assist” load to be
picked up in Fort Worth, Texas, and delivered to Michaels Stores, Inc., in Little Rock,
Arkansas. Jessep told Jacobson’s dispatcher, Shelley Capehart (Capehart), he would
not assist in unloading the freight, although he was not refusing the load. Capehart
responded that “refusing to unload is the same thing as refusing the load.” She
informed Jessep that, if he refused the load, he would go to the bottom of the dispatch
list and would not be paid for bounce miles to his next load. Jessup did not accept
the “driver assist” load. Later that morning, Capehart dispatched another load to
Jessep, which he accepted, but Jacobson did not pay Jessep for his bounce miles.
Jessep filed the instant action in December 2001, and Jacobson terminated its
lease with Jessep on April 29, 2002. In his third amended complaint, which added
Capehart as a defendant, Jessep alleged Jacobson and Capehart had breached the
lease and had coerced or attempted to coerce him to unload freight in violation of 49
U.S.C. § 14103(b), which states:
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b. Coercion prohibited.–It shall be unlawful to coerce or attempt to
coerce any person providing transportation of property by motor vehicle
for compensation in interstate commerce . . . to load or unload any part
of such property onto or from such vehicle or to employ or pay one or
more persons to load or unload any part of such property onto or from
such vehicle; except that this subsection shall not be construed as
making unlawful any activity which is not unlawful under the . . .
Norris-LaGuardia Act.
Jessep sought declaratory and injunctive relief. The district court granted summary
judgment in favor of the defendants, and this appeal followed.
We review de novo the district court’s grant of summary judgment, as well as
the district court’s interpretation of a contract, see ABC Elec., Inc. v. Neb. Beef, Ltd.,
249 F.3d 762, 766 (8th Cir. 2001), and a federal statute; see Norwest Bank of N.D.
v. Doth, 159 F.3d 328, 332 (8th Cir. 1998).
We agree with the district court that there was no breach of contract. The lease
unambiguously provides that a contractor is responsible for unloading freight. The
manual clearly dictates that an owner-operator who refuses a load is not entitled to
payment for bounce miles. Therefore, Jessep suffered only the consequences he
contracted for when he refused the “driver assist” load.
We also find no violation of 49 U.S.C. § 14103(b). The plain language of the
statute does not prohibit all unloading of motor vehicles by drivers, only coerced
unloading. Related statutes clarify that carriers and drivers are expected to enter into
contractual agreements as to who will be responsible for unloading freight. See 49
U.S.C. § 14102(b) (“any arrangement, between a motor carrier . . . and any other
person, under which such other person is to provide any portion of such
transportation by a motor vehicle not owned by the carrier shall specify, in writing,
who is responsible for loading and unloading the property onto and from the motor
vehicle”); 49 U.S.C. § 14103(a) (whenever shipper or receiver requires owner or
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operator be assisted in loading or unloading vehicle, “shipper or receiver shall be
responsible for providing such assistance or shall compensate the owner or operator
for all costs associated with securing and compensating” assistants); 49 C.F.R.
§ 376.12(e) (2002) (“The lease shall clearly specify who is responsible for loading
and unloading the property onto and from the motor vehicle, and the compensation,
if any, to be paid for this service.”). Additionally, the legislative history indicates
section 14103 was meant to prohibit coercive and extortionate practices. See H.R.
Rep. No. 96-1069, at 30-31 (1980) (“Where owner-operator is leased to a regulated
carrier, the Committee expects the lease to specify the responsibility of the carrier and
owner-operator regarding loading and unloading, including compensation.”).
Jessep’s remaining arguments are either meritless or are not properly before us,
because they are raised for the first time in Jessup’s reply brief.
Accordingly, we affirm.
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