IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

HOWELL TRACTOR AND EQUIPMENT, )

LLC, an Illinois Corporation, )

 )

Plaintiff, )

)

vs. ) CAUSE NO. 2:14-cv-302

)

ALLIANCE TANK SERVICE, LLC, )

an Oklahoma Corporation, )

)

Defendant. )

______________________________)

 )

ALLIANCE TANK SERVICE, LLC, )

)

Third-Party Plaintiff, )

)

vs. )

)

GREAT AMERICAN INSURANCE ) 

COMPANY OF NEW YORK, )

 )

Third-Party Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1)Great American

Insurance Company of New York’s Motion for Summary Judgment, filed

by Third-Party Defendant, Great American Insurance Company of New

York, on August 14, 2017 (DE #61); (2) Motion for Summary Judgment,

filed by Third-Party Plaintiff, Alliance Tank Service, LLC, on

August 14, 2017 (DE #62); (3) Plaintiff Howell Tractor and

Equipment, LLC’s Motion for Summary Judgment, filed by Plaintiff,
Howell Tractor and Equipment, LLC, on August 14, 2017 (DE #65); (4)

Great American Insurance Company of New York’s Motion to Strike or

Exclude Certain Opinions of Dr. William Warfel, filed by ThirdParty Defendant, Great American Insurance Company of New York, on

August 14, 2017 (DE #67); and (5) Plaintiff Howell Tractor and

Equipment, LLC’s Motion to Bar Third-Party Defendant, Great

American Insurance Company of New York’s Expert Witnesses Anthony

Bond, Michael Smith, Frank Dues, Ben Glaser, Edward Kozlove, Tommie

Beattie, Dave Wood, and Ron Williams, filed by Plaintiff, Howell

Tractor and Equipment, LLC, on August 14, 2017 (DE #68). 

For the reasons set forth below, the Motion for Summary

Judgment filed by Plaintiff, Howell Tractor and Equipment, LLC (DE

#65) is GRANTED IN PART AND DENIED IN PART - it is GRANTED on the

issue of liability but DENIED as to damages because there are

disputed questions of material fact for the fact finder with

respect to whether damages for lost profits are recoverable (and if

they are recoverable, what amount is appropriate) and whether

Howell is entitled to attorneys’ fees and costs. 

This Court HEREBY ORDERS that the action on the third-party

counterclaim is STAYED until after trial or resolution of the

underlying action between Plaintiff Howell and Defendant Alliance,

and until further order of the Court.

Due to the stay in the third-party action, the Motion for

Summary Judgment filed by Third-Party Defendant Great American

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Insurance Company of New York (DE #61) is DENIED WITHOUT PREJUDICE

WITH LEAVE TO REFILE; the Motion for Summary Judgment filed by

Third-Party Plaintiff, Alliance Tank Service, LLC (DE #62) is

DENIED WITHOUT PREJUDICE WITH LEAVE TO REFILE; and Third-Party

Defendant Great American Insurance’s Motion to Strike or Exclude

Certain Opinions of Dr. William Warfel (DE #67) is DENIED WITHOUT

PREJUDICE WITH LEAVE TO REFILE.

Finally, Plaintiff Howell’s Motion to Bar Third-Party

Defendant Great American Insurance’s Expert Witnesses (DE #68) is

GRANTED TO THE EXTENT that Great American’s experts will be barred

from giving testimony in the underlying case between Plaintiff

Howell and Defendant Alliance; however, this does not effect Great

American Insurance’s possible use of its own experts in the thirdparty action, when the third-party action is no longer stayed. 

BACKGROUND

All of the controversy involved in this case began with a

crane that got stuck in the mud. Under a Rental Equipment

Agreement, Plaintiff, Howell Tractor and Equipment, LLC

(hereinafter “Howell”), leased a crane to Defendant, Alliance Tank

Service, LLC (hereinafter “Alliance”). The crane got stuck in the

mud and while attempting to pull it out, Alliance concedes that it

bent the boom of the crane. 

Alliance returned the crane to Howell. After conferring with

the crane’s manufacturer, Tadano Mantis Corporation (“Mantis”),

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Howell demanded in writing that the boom sections be replaced. 

Meanwhile, Alliance reported the claim to its insurer, third-party

defendant Great American Insurance Company of New York (hereinafter

“Great American”). Great American investigated the claims,

consulted with several heavy equipment experts and repair shops,

and concluded that the crane’s boom sections could be repaired

(instead of replaced). 

Great American tendered payment for only the repair costs

($48,298.78), Alliance tendered payment of its deductible ($5,000),

and Howell accepted the payment without waiving its rights to seek

recovery from Alliance for the difference between the repair cost

and replacement cost of the crane’s boom. Howell had the boom

sections of the crane replaced.

Howell then initiated this lawsuit against Alliance.

Plaintiff’s Complaint (DE #1) states a claim against Alliance for

negligence for damaging the crane (Count I) and breach of contract

(Count II) for failure to pay the full replacement damages

($142,645.55) and the monthly rent lost while the crane was being

repaired ($105,000). 

Alliance then filed a third-party complaint against Great

American, which it amended several times. In the second amended

third-party compliant (DE #45), Alliance states a claim against

third-party defendant Great American for breach of contract (Count

I) and bad faith (Count II). 

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Three motions for summary judgment have been filed. ThirdParty Defendant Great American filed a motion for summary judgment,

arguing that Alliance’s claims against it are premature and unripe,

the bad faith claim fails, and it does not owe anything for the

lost rents. (DE ##61, 69.) In response, Howell argues that the

breach of contract claim against Great American is ripe for

adjudication, there is a genuine issue of material fact regarding

whether Great American acted in bad faith, and damages for lost

rent are recoverable under Alliance’s bad-faith claim. (DE #75.)

Third-Party Plaintiff, Alliance, filed a cross-motion for summary

judgment against Great American, arguing that applicable OSHA

regulations precluded repair of the boom. (DE #62.) In response,

Great American contended it did not breach its contract and that

the OSHA regulations cited by Alliance do not prohibit repair of

the boom sections. (DE #76.) Additionally, Howell filed a motion

for summary judgment, arguing Alliance breached the Equipment

Rental Agreement when it failed to pay for the replacement of the

boom sections, Great American’s expert witnesses are irrelevant to

the contractual cause of action between Howell and Alliance, and

that it is also entitled to lost rental fees and attorneys’ fees

and costs. (DE #65, 66.) Alliance responds in opposition that

there are genuine disputes as to whether Howell is entitled to lost

rental income, the amount of lost rental income and other damages,

whether eight to ten months of lost rental income was foreseeable,

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and whether Howell failed to mitigate its damages. (DE #74.) 

In addition to the three motions for summary judgment, there

are two motions to bar expert witnesses. Plaintiff Howell filed a

motion to bar Third-Party Defendant Great American’s expert

witnesses Anthony Bond, Michael Smith, Frank Dues, Ben Glaser,

Edward Kozlove, Tommie Beattie, Dave Wood, and Ron Williams,

arguing these expert opinions are irrelevant to the cause of action

between Howell and Alliance. (DE #68.) In response, Great American

argues that Howell does not have any standing to bar expert

testimony in an action between Alliance and Great American. (DE

#70.) Finally, Great American moves to strike the opinions of

Alliance’s expert, Dr. William Warfel, arguing Warfel offers

improper legal conclusions and that his expert opinions were not

timely disclosed. (DE #67.) In opposition, Alliance contends that

Dr. Warfel is qualified, his opinions will assist the trier of

fact, and the opinions expressed during his deposition were timely. 

(DE #71.) 

All five motions are fully briefed and ready for adjudication. 

DISCUSSION

Summary judgment must be granted when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” 

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986). Not every dispute between the

parties makes summary judgment inappropriate; “[o]nly disputes over

facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Id. To

determine whether a genuine dispute of material fact exists, the

Court must construe all facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party’s

favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). 

However, “a court may not make credibility determinations, weigh

the evidence, or decide which inferences to draw from the facts;

these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767,

770 (7th Cir. 2003) (citations omitted). 

A party opposing a properly supported summary judgment motion

may not rely on allegations in his own pleading but rather must

“marshal and present the court with the evidence [he] contends will

prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d

651, 654 (7th Cir. 2010). “[I]nferences relying on mere

speculation or conjecture will not suffice.” Stephens v. Erickson,

569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the nonmoving party fails to establish the existence of an essential

element on which he bears the burden of proof at trial, summary

judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th

Cir. 2006).

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Where the parties file cross-motions for summary judgment,

like Third-Party Plaintiff Alliance and Third-Party Defendant Great

American, the Court must consider each motion and, even if the

parties agree that no genuine issue of material fact exists, the

Court can deny all motions if the parties do not establish their

rights to judgment as a matter of law. Grabach v. Evans, 196 F.

Supp. 2d 746, 747 (N.D. Ind. 2002). As the Seventh Circuit has

stated:

It is true that cross-motions for summary judgment

do not waive the right to a trial, but this rule

does not alter the respective burdens on crossmotions for summary judgment - more particularly

here, the responsive burden of a plaintiff who

moves for summary judgment and is confronted with a

cross-motion for summary judgment. The motions are

treated separately.

McKinney v. Cadleway Props., Inc., 548 F.3d 496, 504 n.4(7th Cir.

2008) (abrogated on different grounds). 

I. Howell’s Motion for Summary Judgment

This Court finds it appropriate to start first with the Motion

for Summary Judgment filed by Plaintiff, Howell, as it deals with

the underlying rental agreement between Howell and Alliance. The

parties agree that the Equipment Rental Agreement is controlling. 

A. Undisputed Facts

Howell and Alliance entered into the Equipment Rental

Agreement on October 16, 2013. Under that agreement, Howell leased

to Alliance a 2008 Mantis 6010LP crane. The Agreement provides, in

pertinent part, that the Renter “makes no alterations, additions,

8
modifications or improvements of or to Equipment without the prior

written consent of Howell.” (DE #77-1, Equipment Rental Agreement,

¶7(b)(6).) Additionally, it provides that the “RENTER SHALL BE

RESPONSIBLE FOR FULL COST OF ALL REPAIRS AND MAINTENANCE OF OR WITH

RESPECT TO THE EQUIPMENT, WHETHER ON ACCOUNT OF DAMAGE TO THE

EQUIPMENT OR OTHERWISE.” (DE #77-1, Equipment Rental Agreement,

¶7(b)(7) (emphasis in original).) 

Alliance was using the crane in Michigan when it became stuck

in the mud at the project site on November 27, 2013. Alliance

attempted to free the crane by pulling it out of the mud using a

chain, and bent the boom in the process. Alliance returned the

crane to Howell in December 2013. (DE #74-3, Balitewicz Dep. at

19.) 

Howell then performed measurements on the boom and found that

the bottom had 9/16-inch deflection in the bottom of the boom, the

left side had 1/4-inch deflection, the tip section had a bottom

3/8-inch deflection and left side had 3/16-inch deflection. (DE

##66-5, 66-7.) On February 12, 2014, James Lamb (a representative

from Mantis) sent an e-mail to Gary Hammond at Howell stating the

defects exceeded Mantis’ published criteria, Mantis believed the

tubes should be replaced, but:

[i]t is of course the prerogative of the crane

owner to pursue other independent courses of action

but they should obtain written assurances from

those attempting to straighten or otherwise

‘repair’ these components regarding liability for

such repairs and subsequent long term boom

9
performance.

(DE #64-14; 2/12/2014 e-mail from Mantis to Howell.) A few days

later, on February 17, 2014, James Lamb from Mantis sent a letter

to Gary Hammond and Tom Ellis of Howell informing Howell that the:

deformations exceed the limits of acceptance

criteria published by [Mantis], and as the

Manufacturer we recommend the boom should be

replaced. Under no circumstances should

repair/straightening of the damaged boom tube

sections be attempted and if attempted [Mantis]

will accept no responsibility for the continued

operation of structural competence of this

equipment.

(DE #73-13, 2/17/14 letter from Mantis to Howell.) 

Meanwhile, Alliance’s insurer, Great American, hired Haag

Engineering to also measure the boom sections. Although Haag

Engineering also recorded measurements that were outside of the

scope of repair per Mantis’ standards (DE #66-11 at 99-106, DE #66-

10), Haag Engineering believed that the boom of the crane could be

repaired. (DE #66-11 at 102-03.) 

Howell demanded, in writing, that the boom sections of the

crane be replaced, not repaired. (DE #66-13.) The estimate for

repairing the crane without replacing the boom sections was

$53,298.78. (DE #66-16.) Howell repaired other parts of the crane

sections and replaced the boom sections, at a cost of $142,645.55. 

(DE #66-14 at 97-98; DE #66-17.) Howell ordered replacements for

the crane’s three boom sections from the manufacturer, Mantis, on

April 22, 2014. (DE #75-2 at 38-39; Ex. 32 to Hammond Dep. (DE

10
#75-4).) 

On April 11, 2014, Great American tendered $48,298.78 to

Howell. Howell accepted the payment, but indicated that it was not

accepting this as a final payment for damages suffered. (DE #66-

18; DE #66-19 at 26.) On June 5, 2014, Alliance tendered $5,000 to

Howell, which represented Alliance’s deductible from its insurance

policy with Great American. (DE #66-20; DE #66-2 at 65-66; DE #66-

11 at 87.) 

Howell received the replacement parts on June 24, 2014. (DE

#75-4 at 97.) Afer receiving the parts, it took Howell a few

months to repair the crane, and it was ready to be rented again on

August 23, 2014. (Id. at 91-93; Ex. 12 to Hammond Dep; DE #77-16.)

B. Relevance of Third-Party Expert Witnesses

First, Howell argues that the expert witnesses designated by

Third-Party Defendant, Great American, and expert rebuttal reports,

are irrelevant to this contractual cause of action between Howell

and Alliance. (DE #66 at 6-9.) Alliance does not address this

argument, and Alliance does not rely upon Great American’s experts

in its response in opposition to the motion for summary judgment. 

Therefore, Alliance has essentially conceded Howell’s argument, as

typically “[f]ailure to respond to an argument . . . results in

waiver.” Bonte v. U.S. Bank N.A., 624 F.3d 461, 466 (7th Cir.

2010). 

This Court agrees that, when dealing with this section of the

11
case, the action between Howell and Alliance, the expert witnesses

designated by Third-Party Defendant Great American, are not

relevant to this contract at issue in this portion of the case.1

 

Under Daubert, the Supreme Court fashioned a two-prong test of

admissibility for evidence based on scientific knowledge. Daubert

v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993). To be

admissible, evidence must be both relevant and reliable. Id. at

589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152

(1999) (noting the objective of court’s gatekeeping requirement is

to ensure reliability and relevancy of expert testimony).

Even if an expert’s testimony is deemed reliable, under the

relevance prong, the testimony must also assist the trier of fact

to understand the evidence in the sense that it is relevant to or

1 There is a separate motion filed by Howell seeking to bar

Great American’s experts (DE #68), in which Howell also argues

that the experts should be barred because they are immaterial and

irrelevant to the issues involved in Howell’s contract action

against Alliance. In response, Great American contends this case

also includes a third-party action between Alliance and Great

American (based upon a different contract, the insurance policy

issued by Great American to Alliance), and that Howell has no

standing to bar expert testimony in an action between two other

parties in the case. (DE #70.) Because this Court has found

that Great American’s experts are not relevant to the contractual

case between Howell and Alliance, Alliance does not rely upon

them in opposition or argue that this expert testimony is

relevant to this portion of the case, and this Order stays the

proceeding between third-party plaintiff and third-party

defendant, this motion (DE #68) is GRANTED to the extent that

Great American’s experts shall be barred from giving testimony in

the underlying case between Howell and Alliance. This ruling

does not effect Great American Insurance’s possible use of its

own experts when the third-party action is no longer stayed. 

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“fits” the facts of the case. Daubert, 509 U.S. at 591; Smith v.

Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In other words,

the testimony must be such that the jury can apply it in a

meaningful way to the facts at hand. This “fit” analysis

essentially represents an inquiry similar to if not

indistinguishable from the basic evidentiary inquiries into whether

evidence is relevant and, if so, whether its probative value is

nonetheless substantially outweighed by, among others, the danger

of unfair prejudice and jury confusion. See Daubert, 509 U.S. at

595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.

1995). Testimony that is not relevant should be stricken. Kumho

Tire Co., 526 U.S. at 149. 

In this underlying case, Great American experts are not needed

and are irrelevant to the evaluation of the issues between Howell

and Alliance (revolving around the breach of contract issue arising

from a separate contract, the Equipment Rental Agreement). As

such, those experts will be excluded from consideration in this

underlying matter. 

C. OSHA Regulations

Howell next argues that it would have violated OSHA equipment

modification regulations had it agreed to repair the crane’s boom. 

(DE #66 at 15-16.) While Alliance does not respond to the OSHA

argument (and has therefore waived argument on this issue), the

Court is reluctant to address and rule on this issue without

13
argument from both sides and the Court acknowledges that this issue

is contested in the third-party litigation. (See DE #75 at 12-15;

DE #76 at 9-16.) Because a ruling on this issue is not necessary

for this motion, and because it is not fully briefed by Howell and

Alliance in this underlying action, the Court will defer from

ruling on it at this point in the litigation. 

D. Damages

The Agreement provides, in pertinent part, that the Renter

“makes no alterations, additions, modifications or improvements of

or to Equipment without the prior written consent of Howell.” (DE

#77-1, Equipment Rental Agreement, ¶7(b)(6).) Additionally, it

provides that the “RENTER SHALL BE RESPONSIBLE FOR FULL COST OF ALL

REPAIRS AND MAINTENANCE OF OR WITH RESPECT TO THE EQUIPMENT,

WHETHER ON ACCOUNT OF DAMAGE TO THE EQUIPMENT OR OTHERWISE.” (DE

#77-1, Equipment Rental Agreement, ¶7(b)(7) (emphasis in

original).) 

Howell sets forth in its motion for summary judgment that it

is undisputed that Howell and Alliance entered into a valid

Equipment Rental Agreement; Alliance then damaged the boom of the

crane; the Equipment Rental Agreement provided that Howell must

give written consent to Alliance for any modifications; Howell did

not give written consent to Alliance to repair the boom sections;

Mantis recommended that the boom sections be replaced due to the

deformities exceeding their standards, and Howell demanded in

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writing that the damaged boom sections be replaced. (DE #66 at

14.) Alliance does not dispute any of these facts in its response.

Rather, Alliance argues that there are genuine disputes as to: 

(1) whether Howell is entitled to lost rental income under the

terms of the Equipment Rental Agreement; (2) the amount of lost

rental income and other damages to which Howell is entitled; (3)

whether 8-10 months of lost income was foreseeable; and (4) whether

Howell failed to mitigate its damages. (DE #74 at 4.) 

The Equipment Rental Agreement established a monthly rental

amount of $10,500 for the crane. Howell argues that Alliance is

liable for $105,000 in lost rents to Howell for 10 months of lost

profit because the crane did not become operational until August

23, 2014, after Howell had completed replacing the damaged boom

sections. (DE #77 at 10.)

With regard to the claim for lost profits, the Equipment

Rental Agreement provides in pertinent part as follows: “RENTER

SHALL BE RESPONSIBLE FOR FULL COST OF ALL REPAIRS AND MAINTENANCE

OF OR WITH RESPECT TO THE EQUIPMENT OR OTHERWISE (which if done or

performed by Howell, shall be done at the cost and expense of

Renter).” (DE #77-1 at ¶ 7(b)(6) (emphasis in original).) The

Agreement additionally provides that “[r]ent shall not abate during

the term hereof because renter’s right to possession of Equipment

has terminated or because Equipment has been repossessed, or

because the Equipment has been lost, damaged or destroyed, or is

15
otherwise unusable by Renter, or for any other reason.” (DE #77-1

at 6, ¶4.) 

Yet, the contract also provides that “THE RENTAL TERM

HEREUNDER SHALL COMMENCE ON THE DAY ON WHICH THE EQUIPMENT LEAVES

HOWELL’S YARD FOR DELIVERY TO RENTER AND SHALL TERMINATE ON THE DAY

ON WHICH THE EQUIPMENT IS RETURNED TO HOWELL’S YARD.” (Id. at ¶2

(emphasis in original.) Thus, it seems that by the language of the

Agreement, the rental term arguably ended when Alliance returned

the crane to Howell’s yard in early December, 2013. While Howell

claims “Alliance does not assert that the Rental Equipment

Agreement is ambiguous” (DE #77 at 10), Alliance does argue that

according to the Agreement, the rental term terminated in early

December, relieving Alliance from any further rent obligations.

It is well settled that under Indiana law, the goal of

contract interpretation is to ascertain the intent of the parties. 

MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc.,

802 N.E.2d 901, 906 (Ind. 2004). In the case of a written

contract, the parties’ intent is determined by looking first to the

plain and ordinary meaning of the contract language. USA Life One

Ins. Co. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997). If the

contract language is clear and unambiguous, the court must

interpret the contract without considering extrinsic evidence. 

Automation by Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749,

753-54 (7th Cir. 2006) (applying Indiana law). However, if the

16
contract is ambiguous, the court may look to relevant extrinsic

evidence in order to ascertain the intent of the parties. Id. at

753-54. 

The two types of contract ambiguity are patent or latent. 

Patent ambiguity is apparent on the face of the instrument and

arises from inherently contradictory or nonsensical language that

either conveys no definite meaning or a confused meaning. Bradley

v. W. & S. Fin. Group, No. 2:05-cv-39, 2005 WL 2709282, at *6-7

(N.D. Ind. Oct. 20, 2005). A latent ambiguity “arises not upon the

face of the instrument by virtue of the words used, but emerges in

attempting to apply those words in the manner directed in the

instrument.” Hauck v. Second Nat’l Bank of Richmond, 286 N.E.2d

852, 862 (Ind. Ct. App. 1972). Extrinsic evidence is admissible to

explain the meaning of a latent ambiguity, but not to explain

patent ambiguity. Eckart v. Davis, 631 N.E.2d 494, 497-98 (Ind.

Ct. App. 1994). Patent ambiguity presents a pure question of law,

while the jury must resolve latent ambiguity as a question of fact.

Felker v. Sw. Emergency Med. Serv., Inc., 521 F.Supp.2d 857, 867

(S.D. Ind. 2007). In other words, if a contract is latently

ambiguous:

and uncertain in its terms, we believe that the

meaning of the contract may well need to be

determined by extrinsic evidence. As such, its

construction is a matter for the fact-finder. 

Rules of contract construction and extrinsic

evidence need to be employed to determine and give

effect to the parties’ reasonable expectations. 

Under such circumstances, resolution of this issue

17
is inappropriate for summary judgment. 

Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1133 (Ind. 1995)

(citations omitted). 

In this case, the Court believes there is a latent ambiguity

in the Agreement. It is only when trying to determine whether lost

profits are allowable under the contract, and for what duration,

that the issue arises with the provision “rent shall not abate

during the term hereof” and the provision which states that the

rental term terminates on the date the equipment is returned to

Howell’s yard. Extrinsic evidence will be needed to determine the

parties’ intent, and give effect to their reasonable expectations

about whether Alliance and Howell agreed to lost profits in the

event of damaging the crane, and for how long they expected and

intended to pay the lost profits. This cannot be determined by the

Court on summary judgment, but rather is delegated to the factfinder. 

If the fact finder determines that Howell is entitled to lost

rental income for the damaged crane, it will also need to determine

the amount of lost rents to which it is entitled. Alliance

contends that Howell has not provided any documentation that the

crane would have been rented in the nine months after it was

damaged, that eight-ten months of lost rent was not foreseeable,

and that Howell failed to mitigate its damages by delaying ordering

the parts and not being diligent in the repair of the crane. These

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are all questions that the fact finder will need to determine in

this case. 

Howell has also requested attorneys’ fees and costs. In its

memorandum in support of the motion for summary judgment, Howell

requests “$257,684.86 plus additional attorneys’ fees and costs

incurred after June 30, 2017.” (DE #66 at 16.) Howell does not

articulate the source of its claim for attorneys fees (whether it

be statutory or contractual), or give the Court any law whatsoever

to support its claim that attorneys fees and costs are recoverable

in this case. While the complaint requests reasonable attorneys’

fees and costs, it also does not give a basis for entitlement. (DE

#1 at 5.) In response, Alliance does not contest that Howell is

entitled to recover attorneys fees and costs, but it does argue

that Howell “provided no accounting for the attorney fees it seeks

to recover” and attorney fees are required to be reasonable. (DE

#74 at 7.) In its reply, Howell sets forth that it is entitled to

$89,976.34 in attorneys’ fees and $13,051.84 in costs, and attaches

an affidavit of Donald Timothy McVey, setting forth the hourly

charges for the work performed and number of hours each individual

worked. (DE #77-13.) But again, in the reply, Howell cites no

authority whatsoever, and gives no statutory or contractual basis

for recovery of attorneys fees and costs in this breach of contract

and negligence action. This Court will not do the parties research

for them. Vaughn v. King, 167 F.3d 347, 354 (7th Cir. 1999)("It is

19
not the responsibility of this court to make arguments for the

parties."). 

The American rule presumes that attorney fees are not

ordinarily recoverable to a prevailing litigant as costs or

damages, unless specifically allowed by statute, agreement between

the parties, or narrow common law exception. Travelers Cas. & Sur.

Of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 448 (2007); see also

Courter v. Fugitt, 714 N.E.2d 1129, 1132 (Ind. Ct. App. 1999). 

Moreover, this “presumption that parties bear their own costs of

litigation demands that fee shifting agreements be narrowly

construed.” BKCAP, LLC v. Captec Franchise Trust 2000-1, 701

F.Supp.2d 1030, 1039 (N.D. Ind. 2010). Because Howell has not

pointed this Court to any contractual language or otherwise proved

to the Court that attorneys’ fees and costs are recoverable in this

action, summary judgment on this issue is denied. 

In sum, Howell’s motion for summary judgment is granted on the

issue of liability as Alliance does not contest that it entered

into a valid Equipment Rental Agreement with Howell, Alliance

thereafter damaged the boom of the crane, the Agreement provided

that Howell must given written consent to Alliance for any

modifications, and Howell demanded in writing that the damaged boom

sections be replaced. However, there are disputed questions of

material fact for the jury with respect to whether damages for lost

profits are recoverable, and if they are recoverable by Howell,

20
what amount is appropriate. Finally, because Howell did not prove

it was entitled to attorneys’ fees and costs, this issue also

remains for the fact finder. 

II. Third-Parties Alliance and Great American’s Cross Motions for

Summary Judgment

Third-Party Plaintiff, Alliance, and Third-Party Defendant,

Great American, have also filed cross motions for summary judgment.

Great American argues in part that Alliance’s breach of contract

claims against it are premature and not ripe for adjudication, and

should be dismissed. The second amended complaint alleges that “in

the event that the Court or the trier of fact determines that

Howell Tractor is entitled to the cost of replacing the crane’s

boom as damages, GAICNY will have breached its contract with

Alliance Tank by refusing to pay the amounts owed under the Policy

to indemnify Alliance Tank against Howell Tractor’s claim.” (DE

#45 at 5, ¶18.) The third-parties additionally dispute whether

Great American has a duty to reimburse the lost rental damages (if

lost rental damages are recoverable) and they dispute whether

attorneys’ fees and costs are recoverable under Alliance’s bad

faith claim against Great American. 

While this Court has certainly seen declaratory judgment

indemnification actions dismissed as premature until an underlying

case is decided, this case is a little different as it involves a

separate breach of contract claim and bad faith claim that Alliance

has against Great American. As such, dismissal does not seem to be

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the appropriate route, especially since with this opinion and

order, the Court has determined that in the underlying suit,

Alliance breached its Agreement with Howell. Moreover, Federal Rule

of Civil Procedure Rule 14 provides in pertinent part that “[a]

defending party may, as third-party plaintiff, serve a summons and

complaint on a nonparty who is or may be liable to it for all or

part of the claim against it.” Fed. R. Civ. P. 14(a)(1) (emphasis

added). 

Yet, there are several things the fact finder must determine

first in the case between Howell and Alliance before the action

between Alliance and Great American can be entertained, including

whether lost rental damages are recoverable (if yes, in what

amount), and whether attorneys’ fees and costs are recoverable (if

yes, in what amount). Therefore, the third-party claims are not

ripe until the underlying action is resolved. 

The Court has the inherent power to stay proceedings before

it. Landis v. North American Co., 299 U.S. 248, 254-55 (1936). 

This Court believes the best way to handle this case is to stay the

counterclaim proceedings. See, e.g., United States v. City of

Evansville, No. 3:09-cv-128-WTL-WGH, 2011 WL 52467, at *2 (S.D.

Ind. Jan. 6, 2011) (staying third-party complaint pending

resolution of the underlying action). Whether Great American is

liable to Alliance (and for what amount) will depend on: (1) how

much Howell recovers from Alliance; and (2) whether Alliance is

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entitled to indemnification under the insurance contract for those

categories of damages and those amounts. 

It is therefore ordered that the action on the third-party

counterclaim is stayed until after the trial or resolution of the

other issues in this action and until further order of the Court. 

Because the third-party action has been stayed, this Court

will deny without prejudice, with leave to refile at a later time:

Third-Party Defendant Great American’s Motion to Strike or Exclude

Certain Opinions of Dr. William Warfel (DE #67); Third-Party

Plaintiff Alliance’s Motion for Summary Judgment (DE #62); and the

Motion for Summary Judgment filed by Third-Party Defendant Great

American Insurance (DE #61). 

CONCLUSION

For the reasons set forth above, the Motion for Summary

Judgment filed by Plaintiff, Howell Tractor and Equipment, LLC (DE

#65) is GRANTED IN PART AND DENIED IN PART - it is GRANTED on the

issue of liability but DENIED as to damages because there are

disputed questions of material fact for the fact finder with

respect to whether damages for lost profits are recoverable (and if

they are recoverable, what amount is appropriate) and whether

Howell is entitled to attorneys’ fees and costs. 

This Court HEREBY ORDERS that the action on the third-party

counterclaim is STAYED until after trial or resolution of the

underlying action between Plaintiff Howell and Defendant Alliance,

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and until further order of the Court.

Due to the stay in the third-party action, the Motion for

Summary Judgment filed by Great American Insurance Company of New

York (DE #61) is DENIED WITHOUT PREJUDICE WITH LEAVE TO REFILE; the

Motion for Summary Judgment filed by Third-Party Plaintiff,

Alliance Tank Service, LLC (DE #62) is DENIED WITHOUT PREJUDICE

WITH LEAVE TO REFILE; and Great American’s Motion to Strike or

Exclude Certain Opinions of Dr. William Warfel (DE #67) is DENIED

WITHOUT PREJUDICE WITH LEAVE TO REFILE.

Finally, Plaintiff Howell’s Motion to Bar Third-Party

Defendant Great American Insurance’s Expert Witnesses (DE #68) is

GRANTED TO THE EXTENT that Great American’s experts will be barred

from giving testimony in the underlying case between Plaintiff

Howell and Defendant Alliance; however, this does not effect Great

American Insurance’s possible use of its own experts in the thirdparty action, when the third-party action is no longer stayed. 

DATED: March 20, 2018 /s/ RUDY LOZANO, Judge

United States District Court

 

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