United States District Court, D. Maine
FINDINGS OF FACT AND CONCLUSIONS OF LAW
H. Rich III United States Magistrate Judge
suit over a Caterpillar 522 Feller Buncher purchased by the
plaintiff from the defendant, the parties have submitted
proposed findings of fact and conclusions of law following a
bench trial (ECF Nos. 37-39). I now make the following
findings of fact and conclusions of law. I find in favor
of the defendant, with one limited exception.
Findings of Fact
plaintiff, Atkinson Trucking & Logging, Inc.,  is a corporation
licensed to do business in the state of Maine. Robert
Atkinson is the owner and president of the corporation. The
business is primarily involved in the cutting and hauling of
forestry products, and has been in business for the past 35
years. Plaintiff's Proposed Findings of Fact and
Conclusions of Law (“Plaintiff's Proposal”)
(ECF No. 37) ¶ 1; Defendant Blanchard Machinery
Company's Responses to Plaintiff's Proposed Findings
of Fact and Defendant's Proposed Additional Findings of
Fact and Conclusions of Law (“Defendant's
Response”) (ECF No. 38) at 1.
case involves a Caterpillar 522 Feller Buncher serial number
52200236, which the plaintiff purchased from the defendant on
October 12, 2013. Id. ¶ 2.
plaintiff had previously purchased equipment from the
defendant. In 2011, Robert Atkinson, on behalf of the
plaintiff, and the defendant, through its employee Rob Jones,
had negotiated and completed the plaintiff's purchase of
a Tiger Cat Slasher. Id. ¶ 6.
plaintiff had previously owned a Caterpillar feller buncher
as recently as 2010. That feller buncher had a catastrophic
hydraulic failure after only approximately three weeks of
use. This left the plaintiff with an outstanding debt of $25,
000 on the machine even after it became completely unusable.
Id. ¶ 8.
Prior to contacting the defendant about the feller buncher at
issue in this action, Atkinson contacted a number of
equipment sellers in Maine, including Milton CAT, in search
of a feller buncher. Kurt Saunders at Milton CAT recommended
the Caterpillar 521 or 522 as the suitable model for
Atkinson. Blanchard's Proposed Additional Findings of
Fact (“Defendant's Proposal”), included in
Defendant's Response, beginning at 5, ¶ 42;
Plaintiff Atkinson Trucking & Logging, Inc.['s] Reply to
Defendant Blanchard Machinery Company's . . . Proposed
Additional Findings of Fact and Conclusions of Law
(“Plaintiff's Response”) (ECF No. 39) at 1.
Saunders recommended the Caterpillar 521 or 522 as the
suitable model for Atkinson. Id. ¶ 43. A new
model 522 feller buncher costs close to half a million
dollars. Id. ¶ 45.
dealers Atkinson consulted in Maine did not have a feller
buncher that Atkinson was interested in buying; all the
inventory available was either too new and expensive or had
too many years and hours of use. Id. ¶ 46.
seeking out a feller buncher in 2012, the plaintiff was very
much concerned that it not face the problems that it had
encountered with the earlier Caterpillar feller buncher.
Accordingly, the plaintiff, through Robert Atkinson, informed
Rob Jones that the plaintiff did not want to have to do any
additional work to the feller buncher that it purchased and
that it wanted any feller buncher that it purchased to be
ready to work in the woods. The plaintiff specifically used
the term “woods ready, ” which the plaintiff
explained is a term used in the industry to refer to a
machine that does not require any additional repairs,
maintenance, or preparation, but rather is a machine that is
capable of immediately going to work in the woods without
further repair or preparation. Plaintiff's Proposal
¶ 9; Defendant's Response at 1.
Atkinson and Jones had approximately a half-dozen
conversations prior to Atkinson's agreement to buy the
machine at issue. Defendant's Proposal ¶ 49;
Plaintiff's Response at 1. Atkinson declined to travel to
inspect the machine before buying it. Id. ¶ 51.
Jones represented that the defendant's Divisional
Service/Operations Manager and Service Department Shop
Superintendent “went all over the machine” and
that the repairs set forth on the condition report were
“all they would recommend.” Plaintiff's
Proposal ¶ 13; Defendant's Response at 2, ¶ 13.
Atkinson recalls that Jones sent him a written condition
report on the machine prior to the purchase. Defendant's
Proposal ¶ 52; Plaintiff's Response at 1. He
recalled that the condition report disclosed that the main
boom had a large dent near the knuckle boom and had been
welded on, that the lower bunching finger cylinder was
leaking, that the gathering arm lower pin weldment was
cracked and broken away from the frame, and that there was
oil of unknown origin visible at the back of the machine.
Id. ¶ 53.
plaintiff took delivery of the feller buncher in November
2012. Plaintiff's Proposal ¶ 23; Defendant's
Response at 1. The machine was one that CAT Financial had
repossessed and that the defendant was selling on
consignment. Defendant's Proposal ¶ 61;
Plaintiff's Response at 1.
Atkinson expected to put 1, 000 to 1, 200 hours per year on
the machine. Id. ¶ 72. He sent the machine out
to a job two hours after it was delivered. Id.
¶ 88. Atkinson expected that he would have to perform
ongoing repairs and maintenance on the machine after
delivery. Id. ¶ 90.
Shortly after the delivery, while the feller buncher was on
its first job, the feller buncher “walked out” of
its tracks, meaning that the track on one side broke, making
the feller buncher unusable. Soon after the machine was
repaired, the opposite side of the tracks also “walked
out.” As a result, the plaintiff incurred significant
costs to repair the tracks and make the machine usable.
Plaintiff's Proposal ¶ 25; Defendant's Response
Michael Cano, service manager at Milton CAT, testified that
significant wear in tracks, suggesting that they are prone or
susceptible to failure, would have been obvious upon a
reasonable inspection of the machine. Id. ¶ 26.
Beginning in December 2012, the feller buncher began to have
significant difficulties starting in cold weather. The
problem was ultimately diagnosed by Milton CAT to be the
result of the IQAN computer system being cold. Plaintiffs
Proposal ¶ 28; Defendant's Response at 3, ¶ 28.
February 2014, the plaintiff returned the machine to
Caterpillar Financial. Id. ¶ 34. CAT Financial
sold it for $111, 575.27. Defendant's Proposal
¶¶ 146, 148; Plaintiffs Response at 1.
plaintiff was sued by Caterpillar Financial Services to
recover a deficiency of over $10, 000.00. Plaintiffs Proposal
¶¶ 34-35; Defendant's Response ¶¶
hose assembly is an item of general maintenance for which the
defendant is not responsible. Defendant's Proposal ¶
92; Plaintiffs Response at 1.
sprockets on the feller buncher at issue lasted as long as
they would normally be expected to last. Id. ¶
98. When changing the sprockets, one should change the tracks
themselves, and that was done in this case. Id.
cold weather package is not standard equipment on a CAT 522
feller buncher. Id. ¶ 105. It is optional
equipment that Milton CAT typically installs on machines that
it sells in Maine. Id. ¶ 106. Milton CAT would
sell a machine to a customer in Maine without that equipment,
if the customer ordered the machine that way. Id.
Atkinson did request that the defendant replace the
machine's fluids. Id. ¶ 110. In performing
that service, the defendant selected fluids appropriate for
the cold-weather conditions in Maine. Id. ¶
2013, the hydraulic pump serving the hydraulic systems of the
machine was found to have a crack. Plaintiffs Proposal
¶33; Defendant's Response at 8, ¶ 33. Although
Milton CAT service technicians noted that the pump failure on
the machine may have resulted from running too thick
hydraulic oil in the winter months, Cano could not offer an
opinion that that was ...