                                                               FILED
                                                         Feb 07 2017, 10:22 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Gregory M. Feary                                           Irwin B. Levin
Braden K. Core                                             Richard E. Shevitz
Christopher J. Eckhart                                     Vess A. Miller
E. Ashley Paynter                                          Lynn A. Toops
Scopelitis Garvin Light Hanson                             Cohen & Malad, LLP
 & Feary, P.C.                                             Indianapolis, Indiana
Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Celadon Trucking Services, Inc.,                           February 7, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1512-PL-2104
        v.                                                 Appeal from the Marion Superior
                                                           Court
Charles Wilmoth and Kent                                   The Honorable Michael D. Keele,
Vassey, on behalf of themselves                            Judge
and all others similarly situated,                         Trial Court Cause No.
Appellees-Plaintiffs.                                      49D07-1310-PL-36806




Barnes, Judge.




Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017            Page 1 of 20
                                               Case Summary
[1]   Celadon Trucking Services, Inc. (“Celadon”) appeals the trial court’s judgment

      in favor of Charles Wilmoth, Kent Vassey, and a class of similarly-situated

      individuals (“the Class”) in the amount of $3,302,923.60 plus pre- and post-

      judgment interest. We affirm.


                                                      Issues
[2]   The restated issues before us are:


              I.       whether the trial court properly denied Celadon’s motion
                       for judgment on the pleadings; and


              II.      whether the trial court properly granted summary
                       judgment in favor of the Class members on their claim that
                       Celadon overcharged them for fuel purchases they made
                       using a Celadon-issued debit card.


                                                       Facts
[3]   Celadon is a nationwide transportation company headquartered in Indianapolis

      that provides trucking services to its customers. Celadon both directly employs

      company drivers, who drive company-owned trucks, and independent

      contractors, who drive their own trucks. The Class members are independent

      contractor-truck owners-drivers. Employee drivers are not responsible for

      expenses, such as fuel, incurred during the course of employment and must

      refuel at locations Celadon designates. Independent contractors, such as the




      Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 2 of 20
      Class members, are responsible for such expenses, including fuel costs, but are

      paid significantly more per mile than employee drivers.1


[4]   To pay for fuel while on a job, employee drivers were given a “Comdata” card,

      which functions like a consumer credit or debit card. App. p. 33. Additionally,

      Celadon required its employee drivers to refuel at Pilot Flying J truck stops

      whenever possible, in return for Pilot Flying J offering a substantial fuel cost

      discount to Celadon. Whenever a Comdata card was swiped at a Pilot Flying J

      fuel pump, the displayed price per gallon automatically would be reduced from

      the posted “credit” price to the “cash” price, which typically is about six cents

      per gallon less than the “credit” price. However, Celadon actually paid Pilot

      Flying J less than the displayed “cash” price for transactions using the Comdata

      card. The discounted price Pilot Flying J charged Celadon generally was

      equivalent to Pilot Flying J’s cost minus eight cents per gallon. 2 Pilot Flying J

      would send separate invoices to Celadon for fuel purchases made using

      Comdata cards, which Celadon then paid at the discounted price.


[5]   Celadon also provided Comdata cards to its independent contractors. When an

      independent contractor would use a Comdata card at a Pilot Flying J, as with

      employee drivers, the displayed price per gallon was reduced from the “credit”

      to the “cash” price. Celadon then would deduct the amount of Comdata fuel




      1
        Wilmoth and Vassey stated that Celadon paid independent contractors ninety cents per mile, versus thirty
      to thirty-four cents per mile to employees.
      2
          There was a greater discount for fuel purchased at a limited number of Pilot Flying J locations.


      Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017                            Page 3 of 20
      purchases from an independent contractor’s total compensation before paying

      them, using a calculation based on the fuel’s “cash” pump price. This amount

      also was reflected on fuel receipts from Pilot Flying J to the drivers.3 However,

      as with employees, Celadon actually paid Pilot Flying J much less than the

      “cash” price for these Comdata purchases. Celadon paid Pilot Flying J the

      same discounted cost-less-eight-cents per gallon, and Celadon retained the

      difference when deducting the higher pump price from an independent

      contractor’s compensation. Additionally, independent contractors could

      choose to use the Comdata card at locations other than Pilot Flying J, though

      Celadon imposed a higher fee for doing so— $7.50 versus $3.00 per

      transaction—thus making it financially more attractive for the drivers to refuel

      at Pilot Flying Js.


[6]   The standard contract between Celadon and the Class members contained the

      following provision regarding compensation:


              5.05 Charges to Contractor. Contractor agrees that
              Contractor’s compensation for services hereunder may be
              withheld by Carrier [Celadon] for payment of, and Carrier may
              set off against Contractor’s compensation for:


              a)    All charges and deductions authorized by Contractor
              under this Agreement including, but not limited to, charges,
              deductions and liabilities referred to in the following sections
              hereof: 2.04, 3.02, 3.03, 4.01, 4.02, 4.04, 5.03, 6.02, 8.01, 8.02,



      3
       Celadon’s compensation to the independent contractors also sometimes included “fuel surcharges.” The
      precise nature of these “surcharges” or what they were intended to compensate for is unclear from the record.

      Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017                      Page 4 of 20
           8.03, 8.05, 8.06, 9.01, 9.03, 9.04, 10.01, 10.04 and 12.01;[4] or in
           the Schedule of Compensation, or the option insurance program.


           b)    Any other charges or expenses incurred or paid by Carrier
           on behalf of Contractor.


           c)    Advances and other extensions of credit by Carrier to
           Contractor. . . .


Id. at 44. Section 9.02(c) of the contract stated that the contractors had “sole

and complete responsibility for . . . [p]aying all operating costs and expenses

incidental to the operation of the Equipment including, but not limited to fuel .

. . .” Id. at 46. Finally, a “Contractor Miscellaneous Fees Addendum”

provided in part:

           1.    Celadon will continue to advance monies to the
           Contractor from time to time as requested by the Contractor and
           approved by Celadon. However the fee charges to the
           Contractor provided by Celadon for providing this service to the
           Contractor shall be as follows:


                     A.     $3.00 per advance if the Contractor purchases fuel
                     at a Celadon designated fuel location.


                     B.    $7.50 per advance if the Contractor does not
                     purchase fuel at a Celadon designated location at the time
                     the advance is requested and paid.




4
    None of these sections of the contract refer to fuel charges.


Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017       Page 5 of 20
      Id. at 59. Comdata cards and their use were not explicitly governed or

      mentioned anywhere in the standard independent contractor trucking contracts.


[7]   Wilmoth and Vassey signed their contracts with Celadon after speaking with a

      Celadon representative, Phil Harris. Before signing the contracts, Harris told

      Wilmoth and Vassey that they would get the same discounts Celadon enjoyed

      on fuel purchases. Wilmoth and Vassey later discovered that, in fact, Celadon

      received a greater discount on fuel purchases at Pilot Flying Js than Celadon

      was reflecting in their compensation.


[8]   On October 1, 2013, Wilmoth and Vassey filed a complaint against Celadon

      and requested that it be certified as a class action lawsuit. The complaint

      sought to recover the difference between the amount Celadon deducted from

      independent contractors’ compensation for fuel charges at Pilot Flying J’s and

      the lower amount Celadon actually paid Pilot Flying J for that fuel. The

      complaint had two counts: one for breach of contract, and a second for unjust

      enrichment. Celadon filed an answer that contained individual counterclaims

      against Wilmoth and Vassey for alleged breaches of contract unrelated to the

      fuel purchasing issue, as well as a counterclaim request for attorney fees.

      Celadon moved for judgment on the pleadings against Wilmoth and Vassey’s

      claims, based on the content of the pleadings and the language of the standard

      contract at issue. The trial court denied this motion. It subsequently granted

      Wilmoth and Vassey’s request for class certification, defining the class as any

      person or entity who entered into an independent contractor agreement with

      Celadon between October 1, 2013, and January 31, 2014, and “whose

      Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 6 of 20
       compensation was withheld or charged back in some amount by Celadon for

       diesel fuel purchased at a Pilot Flying J truck stop with a Comdata card issued

       by Celadon.” Id. at 212. The trial court noted that, based on discovery

       responses, the Class may contain up to 2,495 members.


[9]    In October 2014, the parties filed cross-motions for summary judgment. The

       Class sought summary judgment in its favor on its breach of contract claim and

       against all of Celadon’s counterclaims. Celadon sought summary judgment

       against both the breach of contract and unjust enrichment counts of the Class’s

       complaint. In one order, the trial court granted summary judgment in the

       Class’s favor on all of Celadon’s counterclaims; Celadon does not challenge

       that ruling. In a separate order, the trial court granted summary judgment in

       the Class’s favor on its breach of contract claim and denied Celadon’s summary

       judgment motion as to both claims of the complaint. The trial court found that

       the Class’s damages totaled $3,805,836 and that it was entitled to pre-judgment

       interest as well. The trial court subsequently entered a Trial Rule 54(B) final

       judgment order, but reduced the principal judgment amount to $3,302,923.60,

       plus pre- and post-judgment interest. Celadon now appeals.


                                                     Analysis
[10]   On appeal, Celadon challenges both the denial of its motion for judgment on

       the pleadings and the granting of summary judgment in favor of the Class. We

       first note general principles of contract interpretation applicable to both

       motions. “The goal of contract interpretation is to determine the intent of the

       parties when they made the agreement.” Tender Loving Care Mgmt., Inc. v. Sherls,
       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 7 of 20
       14 N.E.3d 67, 72 (Ind. Ct. App. 2014). This court must examine the plain

       language of the contract, read it in context and, whenever possible, construe it

       so as to render every word, phrase, and term meaningful, unambiguous, and

       harmonious with the whole. Id. Construction of the terms of a written contract

       generally is a pure question of law. Id. If, however, a contract is ambiguous,

       the parties may introduce extrinsic evidence of its meaning, and the

       interpretation becomes a question of fact. Broadbent v. Fifth Third Bank, 59

       N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied. “A word or phrase is

       ambiguous if reasonable people could differ as to its meaning.” Id. A term is

       not ambiguous solely because the parties disagree about its meaning. Id.


[11]   If contract language is unambiguous, this court may not look to extrinsic

       evidence to expand, vary, or explain the instrument but must determine the

       parties’ intent from the four corners of the instrument. Tender Loving Care

       Mgmt., 14 N.E.3d at 72. If the language is deemed ambiguous, the contract

       terms must be construed to determine and give effect to the intent of the parties

       when they entered into the contract. Id. “Courts may properly consider all

       relevant evidence to resolve an ambiguity.” Id. “‘Extrinsic evidence is evidence

       relating to a contract but not appearing on the face of the contract because it

       comes from other sources, such as statements between the parties or the

       circumstances surrounding the agreement.’” Id. (quoting CWE Concrete Const.,

       Inc. v. First Nat’l Bank, 814 N.E.2d 720, 724 (Ind. Ct. App. 2004), trans. denied).

       An ambiguous contract should be construed against the party who furnished

       and drafted the agreement. Id.

       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 8 of 20
                                        I. Judgment on the Pleadings

[12]   The standard of review for a ruling on a motion for judgment on the pleadings

       under Indiana Trial Rule 12(C) is de novo. Consolidated Ins. Co. v. National

       Water Servs., LLC, 994 N.E.2d 1192, 1196 (Ind. Ct. App. 2013), trans. denied. A

       ruling on a Rule 12(C) motion must be based solely on the pleadings, as well as

       any facts of which judicial notice may be taken, and courts must accept the

       properly-pleaded material facts alleged in the complaint as true. Id. A motion

       for judgment on the pleadings may be granted only if it is clear from the face of

       the complaint that relief could not be granted to the plaintiff under any

       circumstances. Id.


[13]   For purposes of a Rule 12(C) motion, the pleadings consist of the complaint

       and answer, as well as any reply to a counterclaim, answer to a cross-claim,

       third-party complaint, and answer to a third-party complaint. Id. “‘Pleadings’

       also consist of any written instrument attached to a pleading, pursuant to Ind.

       Trial Rule 9.2.” Id. “A copy of any written instrument which is an exhibit to a

       pleading is a part thereof for all purposes.” Ind. Trial Rule 10(C).


[14]   Here, because the Class’s action against Celadon was based at least in part upon

       the terms of a written instrument—the standard contract between Celadon and

       its independent contractor-truckers—the Class was required to attach a copy of

       that contract to the complaint. See Eskew v. Cornett, 744 N.E.2d 954, 957 (Ind.

       Ct. App. 2001) (citing Ind. T.R. 9.2(A)), trans. denied. We may look to both the

       complaint and the attached contract for purposes of reviewing the trial court’s

       ruling on the motion for judgment on the pleadings. Id. “However, where
       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 9 of 20
       allegations of a pleading are inconsistent with terms of a written contract

       attached as an exhibit, the terms of the contract, fairly construed, must prevail

       over an averment differing therefrom.” Id. Also, a party moving for judgment

       on the pleadings concedes only the accuracy of the factual allegations in an

       adversary’s pleadings and does not admit assertions that constitute conclusions

       of law. Id.


[15]   For purposes of a motion for judgment on the pleadings, it would appear

       Celadon could only have been entitled to such a judgment if the contract at

       issue is deemed unambiguous and its terms support Celadon’s position. That

       is, if the contract were deemed ambiguous, the parties would or should have

       been afforded the opportunity to present extrinsic evidence regarding the

       contract’s interpretation. But, if the contract is unambiguous, it would be a

       pure question of law as to its interpretation. We would look only to the four

       corners of the instrument, and it would be an appropriate matter to resolve on a

       motion for judgment on the pleadings.


[16]   Celadon contends that the contract unambiguously provided that money

       deducted from an independent contractor’s pay for use of the Comdata card

       was an “advance,” for which Celadon only was required to reflect the at-the-

       pump price at the time the purchase was made when making a deduction for

       fuel purchase from an independent contractor’s compensation, not the lesser

       amount paid to Pilot Flying J. By contrast, the Class asserts the accurate

       measure of such deductions under the contract was the amount Celadon

       actually paid to Pilot Flying J for the fuel purchases, not the at-the-pump price.

       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 10 of 20
[17]   Before turning to our analysis, we note that both parties on appeal rely on parts

       of the contract that they did not explicitly rely on in proceedings before the trial

       court. Specifically, Celadon now refers to the Section 9.02(c) of the contract

       and the contract “Addendum,” while the Class refers to Section 5.05(b) of the

       contract. It is true that, “‘A party generally waives appellate review of an issue

       or argument unless that party presented that issue or argument before the trial

       court.’” L.H. Controls Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1042 (Ind.

       Ct. App. 2012) (quoting Dedelow v. Pucalik, 801 N.E.2d 178, 183 (Ind. Ct. App.

       2003)). However, “[t]he appellate waiver rule for failing to make arguments to

       the trial court does not preclude a party from expanding upon arguments made

       to the trial court and presenting additional authorities to the appellate court . . .

       .” Id. at 1042-43. The waiver rule does not mean that parties may not take any

       new position or that no new arguments may be adduced; it only means that

       independent substantive questions not within the issues or not presented to the

       trial court cannot be made for the first time on appeal. Dedelow, 801 N.E.2d at

       183-84 (quoting Bielat v. Folta, 141 Ind. App. 452, 454, 229 N.E.2d 474, 475

       (1967)).


[18]   We believe that the parties’ “new” arguments on appeal invoking different

       contractual provisions than they did before the trial court are merely expansions

       upon their earlier arguments. Additionally, this court is reviewing the

       interpretation of a contract and the denial of a motion for judgment on the

       pleadings and a granting of summary judgment, which are questions of law to

       be reviewed de novo. Also, general rules of contract interpretation require us to


       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 11 of 20
       consider the contract as whole. We are not limited in that interpretation to the

       precise arguments made by the parties before the trial court and need not turn a

       blind eye to contractual provisions that may be relevant to our analysis.


[19]   We conclude that the contract is ambiguous with respect to how much Celadon

       was permitted to deduct from a trucker’s compensation for fuel purchases at

       Pilot Flying Js made using a Comdata card. Celadon contends that the contract

       expressly defines the use of a Comdata card by an independent contractor as an

       “advance” on compensation. It also claims that as an “advance,” Section

       5.05(c) of the contract unambiguously permits Celadon to deduct the pump

       price for fuel from a contractor’s compensation, not discounted price.

       However, there is no express definition section in the contract, for the word

       “advance” or anything else. Indeed, Comdata cards and their use are

       mentioned nowhere in the contract.


[20]   Additionally, although Section 9.02(c) of the contract requires truckers to pay

       fuel “costs and expenses” for their jobs, there is no explanation of how to

       calculate the proper amount for fuel costs. App. p. 46. That is, the contract

       does not equate fuel “costs and expenses” with either the actual costs paid by

       Celadon or the pump price displayed to truckers at Pilot Flying Js. Such

       absence of information or explanation in the contract might not have been

       noticeable if there was in fact no difference between the pump price for fuel at

       Pilot Flying Js and what Celadon actually paid for those fuel purchases. But

       there was such a difference, and the contract is entirely silent on how to address

       that difference. After January 31, 2014, Celadon did in fact change its contract

       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 12 of 20
       to clearly allow it to deduct the pump price from a contractor’s compensation,

       as conceded by the Class. Before that date, the contract was ambiguous.

       Because the contract is ambiguous, the trial court properly denied Celadon’s

       motion for judgment on the pleadings.


                                            II. Summary Judgment

[21]   When reviewing a grant of summary judgment, we must draw all reasonable

       inferences in favor of the non-moving party and affirm only “‘if the designated

       evidentiary matter shows that there is no genuine issue as to any material fact

       and that the moving party is entitled to judgment as a matter of law.’” Siner v.

       Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016) (quoting Ind. Trial

       Rule 56(C)). Careful scrutiny must be given to a grant of summary judgment to

       ensure that the losing party was not improperly denied its day in court. Id.

       “Indiana’s distinctive summary judgment standard imposes a heavy factual

       burden on the movant to demonstrate the absence of any genuine issue of

       material fact on at least one element of the claim.” Id.


[22]   Cases involving contract interpretation generally are particularly appropriate for

       summary judgment. Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 840 (Ind.

       Ct. App. 2016), trans. denied. “When the terms of a contract are ambiguous or

       uncertain, however, and its interpretation requires extrinsic evidence, its

       construction is left to the factfinder.” Id. “When summary judgment is granted

       based on the construction of a written contract, the trial court has either

       determined as a matter of law that the contract is not ambiguous or uncertain,


       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 13 of 20
       or that any contract ambiguity can be resolved without the aid of a factual

       determination.” Id. at 840-41.


[23]   In attempting to interpret this ambiguous contract, we may consult sources

       reflecting the ordinary meaning of its terms at the time the contract was

       executed. See Reuille v. E.E. Brandenberger Constr., Inc., 888 N.E.2d 770, 771

       (Ind. 2008). The key disputed term at issue here is the word “advance.”

       Black’s Law Dictionary defines “advance” as “1. The furnishing of money or

       goods before any consideration is received in return. 2. The money or goods

       furnished.” BLACK’S LAW DICTIONARY 63 (10th ed. 2009). Here, the

       undisputed designated summary judgment evidence was that, when a Comdata

       card was used at a Pilot Flying J for a fuel purchase, Celadon did not

       immediately transfer any money to either the trucker or Pilot Flying J for that

       purchase. Instead, Pilot Flying J subsequently sent an invoice to Celadon

       reflecting the amount of fuel purchased at the agreed-to discount of cost minus

       eight cents per gallon, and Celadon paid that amount. Thus, Celadon never

       parted with the cash pump price as opposed to the lesser discount price and

       cannot be said to have ever “advanced” or “furnished” a fuel purchase at the

       pump price. Keeping in mind that we must construe this ambiguous contract

       against Celadon as its drafter, we conclude that it is more accurate to state that

       what Celadon “advanced” to truckers when they used a Comdata card at Pilot

       Flying J was the actual fuel itself—not the specific pump price of the fuel. The

       standard definition of an advance is that it may apply to either “money or

       goods.” Celadon never advanced any money to anyone—it only advanced or


       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 14 of 20
       facilitated the advance of goods. The cost of those goods to Celadon was not

       the pump price but the discounted price.


[24]   We acknowledge Celadon’s argument that, if a trucker attempted to drive away

       from a Pilot Flying J pump after filling up but without paying, the trucker could

       have been charged with theft under Indiana Code Section 35-43-4-2; the

       trucker’s use of a Comdata card avoids that predicament. However, if indeed

       such an event occurred and a prosecution was brought and Pilot Flying J

       sought restitution, Pilot Flying J would not have been entitled to recover the full

       pump price from the absconding trucker. In fact, if a Celadon trucker did pay

       Pilot Flying J only the discounted price but not the displayed pump price, it is

       unclear that there would be any theft at all. This court has held that, “retail

       value is not necessarily the appropriate measure of damages” in every case of

       theft by a consumer from a retailer. T.C. v. State, 839 N.E.2d 1222, 1228 (Ind.

       Ct. App. 2005). It would appear full retail value would not be appropriate as

       restitution in a case such as this, as opposed to using the discounted Celadon

       price. Otherwise, Pilot Flying J would enjoy a windfall based on the fact that

       the trucker stole the fuel rather than paid for it with a Comdata card. The

       discounted price was all that Pilot Flying J was ever entitled to recover for

       purchases made by Celadon independent contractors using a Comdata card,

       and that would be the appropriate value to use for restitution purposes.


[25]   Celadon also argues that, if the measure of an “advance” under Section 5.05(c)

       of the contract is the actual cost to Celadon and not the pump price displayed to

       the truckers, it is rendered superfluous to Section 5.05(b) of the contract and its

       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 15 of 20
       reference to “[a]ny other charges or expenses incurred or paid by Carrier on

       behalf of Contractor.” App. at 44. Celadon seems to concede that Section

       5.05(b) would clearly refer to Celadon’s actual costs and not some other

       amount and that it could only deduct its actual costs under that subsection from

       an independent contractor’s compensation if a particular item fell under it. It

       contends that fuel costs fall strictly under Section 5.05(c) and that they should

       be measured by the pump price, not the discounted actual cost to Celadon, in

       order to differentiate that section from Section 5.05(b).


[26]   Celadon’s proposed interpretation is inconsistent with a holistic reading of the

       contract, particularly when construing it against Celadon as its drafter. With

       respect to Section 5.05 of the contract, the Class states, “Taken as a whole this

       section permits Celadon to seek reimbursement for costs; however it does not

       permit Celadon to seek reimbursement for more than Celadon’s costs.”

       Appellee’s Br. p. 18. We agree with that characterization. Additionally,

       Section 9.02(c) of the contract states that the contractors had “sole and

       complete responsibility for . . . [p]aying all operating costs and expenses incidental

       to the operation of the Equipment including, but not limited to fuel . . . .” App.

       at 46 (emphasis added). The use of the phrase “costs and expenses” would

       indicate the actual cost of such fuel, not a displayed pump price that was never

       actually paid by anyone. Finally, we note that in the contract’s “Addendum,”

       it provides for certain fees to be imposed upon any “advance” from Celadon to

       a trucker related to fuel purchases. Id. at 59. Although Celadon was able to be




       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 16 of 20
       quite specific with respect to these fees, it included no language with respect to

       how to calculate an “advance.”


[27]   Celadon also contends there could be outstanding genuine issues of material

       fact regarding interpretation of the contract, based on the individual

       understandings of the nearly 2,500 truckers who signed it and who form the

       Class members. Celadon implies that different drivers could have had different

       understandings of the type of fuel discount they would receive when they signed

       their contracts, and if there were such differing understandings, there could not

       be a uniform definition of the word “advance” or even a class action, for that

       matter. However, Celadon has not presented any evidence that any trucker had

       an understanding different from that advanced by the Class. Indeed, the only

       evidence in the record on that point comes from the depositions of Wilmoth

       and Vassey, who explained their understanding that they would receive fuel

       discounts identical to any Celadon received. Celadon is at best speculating that

       different drivers could have had different understandings about the contract.

       Mere speculation cannot create questions of fact for purposes of a summary

       judgment motion. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App.

       2008), trans. denied. In any event, interpretation of the contract is readily

       possible from the face of it and the extrinsic evidence besides Wilmoth’s and

       Vassey’s depositions; there is no need to resort to deposing thousands of other

       Class members in order to interpret it.




       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 17 of 20
[28]   Celadon asserts that the Class members are improperly seeking to be third-party

       beneficiaries of the contract between Celadon and Pilot Flying J. To enforce a

       contract as a third-party beneficiary, the third party must show:


               (1) A clear intent by the actual parties to the contract to benefit
               the third party;


               (2) A duty imposed on one of the contracting parties in favor of
               the third party; and


               (3) Performance of the contract terms is necessary to render the
               third party a direct benefit intended by the parties to the contract.


       Eckman v. Green, 869 N.E.2d 493, 496 (Ind. Ct. App. 2007) (quoting Lunhow v.

       Horn, 760 N.E.2d 621, 628 (Ind. Ct. App. 2001)), trans. denied. We do not

       believe that third-party beneficiary principles are relevant here. The question is

       not whether the Class members are attempting to enforce the contract between

       Celadon and Pilot Flying J. This is not a case, for example, where Pilot Flying

       J charged Celadon more than the agreed-to discounted price for fuel and the

       Class members are attempting to force Pilot Flying J to charge only the

       discounted price. Rather, the sole question is what Celadon’s actual costs were

       with respect to fuel purchased by the Class members at Pilot Flying Js. The fact

       that those costs resulted from a contract between Celadon and Pilot Flying J is

       beside the point here.


[29]   After briefing was complete, Celadon filed a notice of additional authority,

       citing a case decided by the Seventh Circuit, Walker v. Trailer Transit, Inc., 824


       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 18 of 20
       F.3d 688 (7th Cir. 2016). That case, like this one, concerned a contract between

       a trucking company and independent contractors it hired. Similar, but not

       precisely identical to the present case, it also concerned contract language

       regarding payment to the contractors and deductions from their compensation

       for payments made by the company on behalf of the contractors during their

       work for “special services,” and whether the company was permitted to retain

       an additional profit on those deductions because of the manner in which the

       services were billed and paid.


[30]   We are not inclined to find that Walker has any application to this case. First

       and most importantly, the contract language here is vastly different from that in

       Walker. Contracts must be analyzed strictly on their own terms. Second,

       although purporting to apply Indiana law, the Walker opinion is devoid of any

       mention of well-settled contract interpretation principles under Indiana law.

       One of those principles is that any ambiguity in a contract should be construed

       against the drafter of the contract. The Seventh Circuit seemed to acknowledge

       that there could be some ambiguity in the key word “reimburse” but construed

       it in a manner favorable to the contract drafter. See Walker, 824 F.3d at 689-90.


[31]   On a final note, we believe our and the Class’s interpretation of the contract is

       consistent with the common expectation consumers have when using a credit or

       debit card to purchase goods. Namely, when such a card is used, the consumer

       reasonably expects that the card issuer will pay the retailer the displayed retail

       price for the good or goods, not some undisclosed price based on a “secret”

       agreement between the issuer and retailer. A possible exception to this

       Court of Appeals of Indiana | Opinion 49A04-1512-PL-2104 | February 7, 2017   Page 19 of 20
       expectation may be the recouping costs or charges to the retailer associated with

       credit card usage. The Class members here reasonably could have expected

       that, when they used the Comdata card to purchase fuel, Celadon was paying

       the displayed pump price to Pilot Flying J and not some lesser amount, in the

       absence of any clear statement to the contrary in the contract. In sum, we agree

       with the Class and the trial court that the proper interpretation of the contract,

       construing its ambiguities against Celadon as its drafter, is that when making

       deductions from a trucker’s compensation for fuel purchases made at Pilot

       Flying Js using a Comdata card, Celadon could only make those deductions

       based on the lower discounted price and not the displayed pump price.


                                                   Conclusion
[32]   The standard contract between Celadon and the Class members was

       ambiguous. There are no genuine issues of material fact precluding us from

       resolving that ambiguity as a matter of law. We agree with the trial court and

       the Class’s interpretation of the contract and, therefore, affirm the denial of

       Celadon’s motion for judgment on the pleadings and affirm the grant of

       summary judgment in favor of the Class.


[33]   Affirmed.


       Riley, J., and Bailey, J., concur.




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