Court of Appeal of Louisiana,

Second Circuit.

Phillip PATTERSON, et ux, Plaintiffs–Appellants

v.

STEPHENSON’S TREE SERVICE, LLC, et al, Defendant–Appellee.

 

No. 47,702–CA.

Feb. 27, 2013.

 

Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana, Trial Court No. 2010–323, Honorable Daniel J. Ellender, Judge.

Jeffrey D. Guerriero, Kevin D. Alexander, Elizabeth J. Guerriero, Wade L. House, Guerriero & Guerriero, for Appellants, Phillip and Charlotte Patterson.

 

David G. Nelson, Allison M. Jarrell, Nelson, Zentner, Sartor & Snelling, L.L.C., for Appellee, Maxum Indemnity Co.

 

Before STEWART, MOORE and LOLLEY, JJ.

 

MOORE, J.

*1 Phillip Patterson appeals a summary judgment that dismissed his claim against Maxum Indemnity Co. on the basis of the auto exclusion in its Commercial General Liability (“CGL”) policy covering Stephenson’s Tree Service LLC. We affirm.

 

Factual and Procedural Background

In October 2009, Patterson was standing on a neighbor’s property in Morehouse Parish, watching Stephenson’s cut trees. One of Stephenson’s trucks got stuck in the mud; employees fastened a “snatch block” (a kind of pulley) to a nearby tree and ran a line through it, attaching one end of the line to the disabled truck and the other end to “another piece of heavy equipment” (so described in the petition) to tow the truck. Under great pressure, the line snapped and struck Patterson, causing serious injuries.

 

In April 2010, Patterson settled his claim against Stephenson’s motor vehicle liability carrier, Colony Insurance, for policy limits of $100,000. The agreement released Stephenson’s but expressly reserved all rights against its CGL and homeowner carriers.

 

In June 2010, Patterson filed this suit against Stephenson’s and Maxum, alleging various acts of negligence including inappropriately fastening the snatch block to the tree, using a rope that was insufficient to the task, and failing to warn the plaintiff of the danger of standing in the work area.

 

Maxum moved for summary judgment, urging that the claim was excluded under the policy’s auto exclusion.FN1 Maxum argued that the accident arose out of the use of not just one but two autos owned by Stephenson’s, and the settlement with Colony proved that the act was subject to motor vehicle coverage, not CGL.

 

FN1. ¶ 2.g: “This insurance does not apply to: ‘Bodily injury’ * * * arising out of the ownership, maintenance, use * * * of any * * * ‘auto’ * * * owned or operated by * * * any insured.”

 

Patterson opposed the motion, arguing that the accident arose from an operational risk rather than an automobile risk. He further argued that the policy’s auto exclusion was subject to an exception for “mobile equipment,” which included “Cherry pickers and similar devices used to raise or lower workers.” FN2

 

FN2. ¶ 2.g.(5): “This exclusion does not apply to: ‘Bodily injury’ * * * arising out of:

 

(a) The operation of machinery or equipment that is attached to, or part of, a land vehicle that would qualify under the definition of ‘mobile equipment’ if it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged; or

 

(b) the operation of any machinery or equipment listed in Paragraph f.(2) or f.(3) of the definition of ‘mobile equipment.”

 

¶ 12.e.: “ ‘Mobile equipment’ means any of the following types of land vehicles, including any attached machinery or equipment: * * * (2) Cherry pickers and similar devices used to raise or lower workers.”

 

After a hearing in April 2011, the district court denied the summary judgment. The court ruled orally that while the policy has an exclusion for “autos,” it does not exclude “mobile equipment”; the court considered this “somewhat ambiguous.” Further, the petition described the towing vehicle as a “piece of heavy equipment,” while the answer described it as a “vehicle,” leaving an issue of material fact as to whether it was an auto subject to the auto exclusion.

 

In November 2011, Maxum filed a second motion for summary judgment, citing further discovery showing that both vehicles involved in the accident were indeed autos under the CGL policy. It attached the affidavit of Kenneth Stephenson, Stephenson’s principal, stating that both vehicles were owned by the company, licensed for use on the road and listed as business vehicles on the Colony policy. It also attached registration certificates showing the two vehicles were a 1991 GMC chassis-and-cab and a 1998 GMC pickup. It argued that under the CGL policy, such vehicles met the definition of “auto” and not “mobile equipment.” FN3

 

FN3. ¶ 2: “ ‘Auto’ means:

 

a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or

 

b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged.”

 

¶ 12.f: * * * “However, ‘mobile equipment’ does not include any land vehicles that are subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle insurance law are considered ‘autos.’ “

 

*2 Patterson opposed the motion, urging that because of law of the case, the court could not revisit the issue of coverage. He also argued that the policy was ambiguous and the vehicles were mobile equipment, not autos. He attached a later affidavit from Kenneth Stephenson, referring to the vehicles as a “loader” (the one stuck in the mud) and a “cherry picker,” both maintained “primarily for purposes other than the transportation of persons and cargo.” Dark Xerox-style copies of photos of the trucks were also attached.

 

After a hearing in March 2012, the district court granted the summary judgment.FN4 By written ruling, the court found (1) both vehicles involved were “autos” under the CGL policy, (2) the negligent act that caused the injury was a natural and reasonable consequence and thus arose out of the use of the auto, (3) the policy is clear and unambiguous, and (4) law of the case did not apply, as Maxum supplied additional information to support the second motion for summary judgment.

 

FN4. A different judge of the Fourth JDC heard the second motion for summary judgment.

 

Patterson now appeals, raising three assignments of error.

 

Discussion: Law of the Case

By his third assignment of error, Patterson urges the court erred in finding that the law of the case doctrine did not apply to its prior ruling that the policy was ambiguous. The doctrine holds that courts should not permit reargument, in the same case, of a previously decided point simply because there is doubt as to the correctness of the prior ruling. Welch v. Willis–Knighton Pierremont, 45,554 (La.App. 2 Cir. 11/17/00), 56 So.3d 242, writs denied, 2011–0075, –0109 (2/25/11), 58 So.3d 457, 459. Patterson concedes that law of the case is a discretionary rule, but argues that when the court denied the first motion, this was tantamount to declaring the policy ambiguous and bound the second judge to that finding.

 

This argument lacks merit. The jurisprudence has consistently found no error when a court hears a second motion for summary judgment after previously denying a motion for summary judgment. Watkins v. City of Shreveport, 45,107 (La.App. 2 Cir. 3/3/10), 32 So.3d 346; Rogers v. Horseshoe Entertainment, 32,800 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, writs denied, 2000–2894, –2905 (La.12/8/00), 776 So.2d 463, 464; Melton v. Miley, 1998–1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, writ denied, 99–3089 (La.1/7/00), 752 So.2d 867. When new evidence is introduced after the initial denial of a motion for summary judgment, the court may reconsider the motion. Watkins v. City of Shreveport, supra. In support of the second motion, Maxum offered Kenneth Stephenson’s affidavit and registration certificates for both of the vehicles involved; Patterson offered another affidavit from Stephenson and photos of the vehicles. With this additional, relevant evidence, the district court did not abuse its discretion in hearing the second motion for summary judgment.

 

Ambiguity of Policy

By his second assignment of error, Patterson urges the district court erred in finding the language of Maxum’s policy clear and unambiguous. He shows that any exclusion from coverage must be clear and unmistakable; if more than one interpretation of an exclusion is reasonable, the one affording coverage to the claimant must be adopted. Lucas v. Deville, 385 So.2d 804 (La.App. 3 Cir.1980) (on rehearing), writs denied, 386 So.2d 357, 359 (1980). He argues that Maxum’s policy is “nothing if not ambiguous”: the auto exclusion excludes coverage for injuries resulting from the use of an auto; other provisions negate the exclusion with respect to mobile equipment (vehicles maintained primarily for purposes other than transportation of people and cargo); and mobile equipment is defined to include cherry pickers and vehicles maintained primarily for purposes other than the transportation of persons or cargo. He suggests that these provisions make it impossible to tell if the cherry picker that caused his injury is an auto or mobile equipment. He also argues that even if the cherry picker was an auto, it was not being used in an excluded manner at the time of the accident. Finally, he suggests that the fact that two well-respected judges interpreted the policy in different ways shows conclusively that it is ambiguous.

 

*3 The insurer has the burden of proving that a loss falls within a policy exclusion. Louisiana Maintenance Servs. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993); Stills v. Mims, 42,799 (La.App. 2 Cir. 12/5/07), 973 So.2d 118. The mere fact that an insurance policy is a complex instrument requiring analysis to understand it does not render it ambiguous.   Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93–0911 (La.1/14/94), 630 So.2d 759; Oxner v. Montgomery, 34,727 (La.App. 2 Cir. 8/1/01), 794 So.2d 86, writ denied, 2001–2489 (La.12/7/01), 803 So.2d 36.

 

We have closely studied the applicable policy provisions and do not see the ambiguity urged by Patterson. The “Coverage A” section extends coverage for bodily injury and property damages to which the policy applies; it then excludes coverage for such damages arising out of the ownership, maintenance or use of an auto, but not for the operation of any machinery or equipment defined as mobile equipment. The Definitions section defines mobile equipment to include vehicles that are not self-propelled, such as cherry pickers; however, it specifically states that self-propelled vehicles, including cherry pickers mounted on a truck chassis, are considered autos. In the same vein, it adds that mobile equipment does not include any land vehicles that are subject to compulsory or financial responsibility law or other motor vehicle insurance law; such vehicles are considered autos. The plain meaning is that damages arising out of the use of autos, self-propelled mobile equipment or mobile equipment subject to motor vehicle insurance law are not covered by CGL but by an automobile policy. We perceive no ambiguity.

 

In Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, writ denied, 2000–1221 (La.6/16/00), 764 So.2d 965, this court analyzed a CGL policy issued by Hartford Southeast with a similar structure that excluded bodily injury or property damage arising out of the ownership, maintenance or use of an auto or the transportation of mobile equipment (in that case, a cotton trailer). We rejected an argument that the exclusion was ambiguous, affirming a summary judgment which held that the driver of the pickup truck towing the cotton trailer was not covered under the CGL policy. Interpreting Maxum’s policy, we again find that these provisions do not create any ambiguity. We also find that the registration certificates and the photos of the vehicles remove any doubt as to whether the vehicles are autos, self-propelled mobile equipment or mobile equipment subject to motor vehicle insurance law (not covered) as opposed to mobile equipment (covered).

 

Finally, we attach little significance to the first judge’s remark that the policy was “somewhat ambiguous.” In context, the judge was likely noting that from the pleadings and the limited summary judgment evidence, he could not discern whether the cherry picker at issue would qualify as an auto (excluded) or mobile equipment (included) under the policy. This was a genuine issue of material fact, not a declaration that the policy was inherently ambiguous.

 

*4 This assignment of error lacks merit.

 

Application of the Exclusion

By his first assignment of error, Patterson urges the district court erred in (a) basing its ruling on a strict application of the “but for” test, and thus failed to distinguish between acts of negligence existing independent of and occurring prior to the alleged use of an auto, and (b) failing to find that the conduct did not arise out of the ownership, maintenance or use of an auto. He shows that to determine whether conduct “arises out of” the use of an automobile, and thus is excluded from a CGL policy, courts use the two-prong test set out in Carter v. City Parish Gov’t of East Baton Rouge, 423 So.2d 1080 (La.1982):(1) was the conduct complained of a cause in fact of the harm? and (2) was the alleged tortfeasor under a duty to protect against the particular risk? He contends that Stephenson’s acts were a legal cause of the injury but did not arise out of the use of an auto. He offers the following cases in support: Trammel v. Liberty Mutual, 2001–0948 (La.App. 4 Cir. 2/13/02), 811 So.2d 78, rev’d on other grounds, 2002–0768 (La.5/24/02), 816 So.2d 294; Edwards v. Horstman, 27,776 (La.App. 2 Cir. 4/3/96), 672 So.2d 222; Johns v. State Farm, 349 So.2d 481, 6 A.L.R. 4th 548 (La.App. 3 Cir.1977); Lucas v. Deville, supra. The real cause of the accident, Patterson suggests, was Stephenson’s conduct in using an inadequate rope, inadequately attaching the snatch block to the tree, and failing to clear the area of bystanders or to warn of the danger; the use of the vehicles was merely incidental to these predominant acts of negligence.

 

Maxum responds that under any analysis, using one auto to tow another auto out of the mud arises out of the use of the autos. Maxum also shows that the Trammel and Johns cases cited by Patterson involved homeowner policies with terms different from the instant CGL policy, and thus do not apply. It submits that the truly apposite cases did indeed find that the accidents arose from the use of an auto, such as Massey v. Century Ready Mix Corp., 552 So.2d 565 (La.App. 2 Cir.1989), writ denied, 556 So.2d 41 (1990); Jones v. Louisiana Timber Co., 519 So.2d 333 (La.App. 2 Cir.1988); and Carter v. City Parish Gov’t of East Baton Rouge, supra.

 

The use of a cherry picker to pull a loader from the mud is a normal use of such vehicles. The accident arose out of this use and in a situation where Stephenson’s had a duty to protect Patterson from the particular risk of harm, satisfying both prongs of the Carter test. The supreme court recently held, in a slightly different context, that “arising out of” the “use” of a vehicle means “originating from,” “growing out of,” or “flowing from” the use. Bernard v. Ellis, 2011–2377 (La.7/2/12), p. 14–15, ––– So.3d ––––.

 

In light of these principles and a plain reading of Maxum’s policy, we find that Patterson’s personal injury arose out of the use of an auto, and hence fell under the exclusion from CGL coverage. The case is apposite to Jones v. Louisiana Timber Co., supra, in which Jones was trying to secure a load of logs to Louisiana Timber’s trailer. When the cable got snagged, Jones tugged hard on it; it suddenly came apart, hurling him backwards off the top of the load to the ground some 14–16 feet below. This court found that Jones’s conduct arose out of the use of the trailer. We also are guided by the seminal case of Carter v. City Parish Gov’t of East Baton Rouge, supra, in which a 10–year–old girl drowned after her uncle tried to drive the car through a flooded underpass; the supreme court found that the drowning arose out of the use of the car, and thus activated coverage under the uncle’s auto policy. The driver in Carter had just as much duty to protect his passenger from floodwater as Stephenson’s employees had to protect bystanders from towing hazards. The jurisprudence cited by Patterson is not persuasive.FN5 This assignment of error lacks merit.

 

FN5. We particularly note that Edwards v. Horstman, supra, cited and argued in brief, was reversed on writ of certiorari, the supreme court holding that the driver’s conduct therein “clearly constituted the ‘use’ of the automobile.” Edwards v. Horstman, 96–1403 (La.2/25/97), p. 8, 687 So.2d 1007, 1012. The appellate brief completely fails to mention this critical part of the case history, and counsel would do well to check each cite before integrating the case into argument.

 

Conclusion

*5 For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiffs, Phillip and Charlotte Patterson.

 

AFFIRMED.

United States District Court,

N.D. New York.

The FORT MILLER COMPANY, INC., Petitioner,

v.

AMERICAN TRANSPORT, INC., Respondent.

 

No. 1:12–CV–681 (FJS/RFT).

Feb. 28, 2013.

 

Fox & Kowalewski, LLP, Brendan R. Wolf, Esq., Laurence I. Fox, Esq., of Counsel, Clifton Park, NY, for Plaintiff.

 

Benesch, Friedlander Coplan & Aronoff LLP, Stuart A. Laven, Jr., Esq., Eric L. Zalud, Esq., J. Allen Jones, III, Esq., of Counsel, Cleveland, OH, for Defendant.

 

MEMORANDUM–DECISION AND ORDER

SCULLIN, Senior District Judge.

I. INTRODUCTION

*1 Currently before the Court are Petitioner’s motion to compel arbitration, see Dkt. No. 4, and Respondent’s motion for a sixty-day extension of time to respond to Petitioner’s motion to compel arbitration, see Dkt. No. 7.

 

On May 11, 2012, the Court held a hearing regarding Respondent’s motion for an extension of time in which to respond to Petitioner’s motion to compel arbitration.FN1

 

FN1. During oral argument, Respondent conceded that, if there was a contract between the parties, that contract did contain an arbitration clause and that the parties would have to arbitrate any dispute that arose under that contract.

 

At the end of that proceeding, the Court stated that it did not think Respondent had “a legal basis for denying a contract exists based upon the fact that [Petitioner] did not sign that document.” However, the Court allowed Respondent the opportunity to “submit any law, just give me the case, I don’t need [Respondent’s] spin on it, just give me the case law that would support [Respondent’s] position on that [issue] ….“ The Court also provided Respondent with an opportunity “to articulate in writing what issue, material issue of fact [Respondent] maintain[s] exists, which would, as a matter of law, prevent this from bein[g] a contract.” The Court noted that, if there were material issues of fact as to whether there was a contract, the Court would consider having a jury trial, but the Court did not see any such issues at the time. Finally, the Court provided Petitioner with time to respond to Respondent’s submissions.

 

On May 21, 2012, Respondent filed supplemental papers in further support of its motion for an extension fo time to respond to Petitioner’s motion. See Dkt. No. 15. Petitioner filed papers in further opposition to Respondent’s motion on May 24, 2012. See Dkt. No. 16.

 

The following constitutes the Court’s written resolution of the pending motions.

 

II. DISCUSSION

A. Respondent’s motion to extend its time to respond to Petitioner’s motion to compel arbitration

Respondent argues that, although it “concedes that, in a vacuum, the mere failure to execute a contract does not necessarily mean that a contract does not exist, … a party’s failure to execute a purported agreement can (and should) serve as evidence of a party’s intention not to be bound.” See Dkt. No. 15 at 3 (citing Ciaramella v. Reader’s Digest Association, Inc., 131 F.3d 320 (2d Cir.1997) (in absence of a document executed by both parties, court must consider four factors to determine whether both parties intended to be bound); Kowalchuk v. Stroup, 873 N.Y.S.2d 43, 49 (2009) (citing Flores v. Lower E. Side Serv. Ctr., Inc., 795 N.Y.S.2d 491 (2005) (an unsigned contract may be enforceable, “provided there is objective evidence establishing that the parties intended to be bound.”))).

 

Respondent further asserts that, in this case, Petitioner clearly failed to execute the agreement; and, therefore,

 

[t]he critical inquiry must focus upon why [Petitioner] did not execute the purported agreement. Conveniently, [Petitioner] argues that it intended to be bound because it is attempting to enforce the purported agreement against [Respondent]. However, [Petitioner’s] present position merely evidences what [Petitioner] intended at the time it attempted to enforce, not what [Petitioner] intended at the time it elected not to execute the purported agreement.

 

*2 See id.

 

Respondent contends that if, for some reason of which Respondent is unaware at this time, Petitioner’s decision not to execute the document was based on its intention not to be bound or that it had other prospective contractors with whom it was also dealing or that it recognized that the parties needed to finalize open terms, then objective evidence exists that both parties may not have intended to be bound to one another. See id. Furthermore, Respondent asserts that “[o]ne fact is for certain: because [Respondent] did not receive an executed copy of the purported agreement from [Petitioner], [Respondent] withdrew its offer on April 21, 2011 on the grounds that the offer was never formally accepted.” See id. at 3–4 (citing Affidavit of David Hartman at ¶¶ 4–5, attached hereto as EXHIBIT 1).

 

Finally, Respondent claims that the Court should give it the chance to ascertain Petitioner’s intent at the time the parties were discussing the purported agreement, through discovery, rather than compelling Respondent to accept Petitioner’s statement of intent as of the time it attempted to enforce the purported agreement. See id. at 4. Respondent claims that Petitioner’s first indication that it believed that it was bound to the purported agreement occurred after Respondent withdrew its offer on April 21, 2011. Thus, Respondent asserts that an issue of fact exists as to the parties’ intent to be bound or form a contract and that, where such a dispute exists, there is no enforceable contract. See id. (citing Dayton Superior Corp., 2011 WL 990300 at *7).

 

Both of the cases that Respondent cites are clearly distinguishable from the present case and do not support Respondent’s argument that there is no enforceable agreement between Petitioner and Respondent.

 

In Ciaramella v. Reader’s Digest Ass’n, Inc., 131 F.3d 320 (2d Cir.1997), the court noted that it had “articulated four factors to guide the inquiry regarding whether parties intended to be bound by a settlement agreement in the absence of a document executed by both sides.” Id. at 323 (citing Winston, 777 F .2d at 80). These factors are as follows: “(1) whether there has been an express reservation of the right not to be bound in the absence of a signed writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.” Id. (citing [Winston, 777 F.2d at 80] ). The court stated that, although “[n]o single factor is decisive, … each provides significant guidance.” Id. (citation omitted).

 

Based on an express reservation in the agreement not to be bound until both parties had signed the agreement, as well as language that demonstrated that only the terms of the settlement agreement, and not any preexisting oral pact, would legally bind them, the court concluded that the parties intended to bind themselves only at the point of signature. See id. at 324 (relying on paragraph 10 of the agreement which stated that “This Settlement Agreement, and General Release shall not become effective (“the Effective Date”) until it is signed by [Plaintiff], [Plaintiff’s attorney], and [Defendant]” and the first paragraph after the WHEREAS clause, which read “NOW, THEREFORE, with the intent to be legally bound hereby, and in consideration of the mutual promises and covenants contained herein, [Defendant] and [Plaintiff] agree to the terms and conditions set forth below: …”).

 

*3 Likewise, Kowalchuk v. Stroup, 61 A.D.3d 118 (1st Dep’t 2009), does not support Respondent’s position. In that case, the plaintiffs commenced an arbitration proceeding before the NASD asserting that the Defendant had fraudulently or negligently handled the plaintiffs’ accounts and seeking judgment for losses of $832,000. After the arbitration hearing was completed, but before a decision was rendered, the parties agreed on a settlement. When defendant defaulted on the first payment of $125,000 due under the terms of the settlement agreement, the plaintiffs’ counsel offered defendant an opportunity to cure the default. When the Defendant did not cure the alleged default, the plaintiffs commenced an action for breach of contract.

 

The court began its analysis by stating that, “[t]o establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound (22 N.Y. Jur.2d, Contracts § 9). That meeting of the minds must include agreement on all essential terms (id. at § 31).” Id. at 121. Applying these legal principles to the facts before it, the court concluded that the February 6 e-mail that the plaintiff’s counsel had sent established that the defendant had made an offer, including all the essential material terms of that offer, and that the plaintiffs had accepted that offer. See id. The court rejected the defendant’s argument that he had revoked the offer before the plaintiffs had accepted it relying on the fact that the plaintiffs had not yet signed the formal writing by the time they heard about the NASD award, after which the defendant quickly communicated an intent to revoke the offer. See id. at 122.

 

The court noted that, “[w]hile an offer normally may be revoked at any time prior to acceptance, the moment of acceptance is the moment the contract is created.” Id. Moreover, “ ‘[a]s a general rule, in order for an acceptance to be effective, it must comply with the terms of the offer and be clear, unambiguous and unequivocal[.]’ “ Id. (quotation omitted). The court concluded that, because “there was nothing unclear, ambiguous, or equivocal about plaintiffs’ February 6 e-mail responding to Defendant’s offer, it constituted an effective acceptance.” Id.

 

The court also rejected the defendant’s argument that, “because the formal writing prepared for both parties’ signature contained language making reference to it being ‘complete and binding’ upon signature of all the parties, that writing indicates the parties’ intent not to be bound until the point that all parties have signed the document.” Id. The court acknowledged that “ ‘ “[i]t is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed[.]” ‘ “ Id. (quotation omitted). However, the court found that “none of Defendant’s correspondence indicated an intent not to be bound until an agreement was executed by both parties.” Id. at 124. Furthermore, the court held that,

 

*4 [e]ven if the e-mails had failed to evidence the existence of a contract, the formal written document signed just by Defendant would have sufficed to establish the existence of the parties’ agreement, since “an unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound … unless, of course, the parties have agreed that their contract will not be binding until executed by both sides.”

 

Id. at 125.

 

In the present case, despite Respondent’s argument to the contrary, there is nothing in the record to indicate that Petitioner did not intend to be bound by the contract. The four factors set forth in Ciaramella favor a finding that Petitioner’s signature on the contract was not necessary to bind the parties. First, there was no express reservation of right not to be bound in the absence of a signed writing. Moreover, the agreement explicitly stated that, “[b]y signing this Agreement [Respondent] agrees to be bound by the terms and conditions.” Thus, if either party’s signature was required, it was Respondent’s, and Respondent signed the agreement. Second, Respondent partially performed under the contract by, at the very least, procuring and delivering Certificates of Liability Insurance naming Petitioner as holder and additional insured. Third, this agreement was in writing and is the type of contract that is usually committed to writing. Finally, although Respondent attempts to create an issue of fact as to whether there was a meeting of the minds regarding all the terms of the contract, this is nothing more than a red herring and, as the Court will explain more fully below, is not supported by the record. Therefore, the Court concludes that Respondent has not established that the failure of Petitioner to sign the agreement creates an issue of fact about whether Petitioner intended to be bound by the terms of the agreement.

 

Accordingly, the Court denies Respondent’s motion to extend its time to respond to Petitioner’s motion to compel arbitration.

 

B. Petitioner’s motion to compel arbitration

Respondent argues that issues of fact exist about whether there was a lack of mutual assent or a meeting of the minds as to the material terms fo the parties’ purported agreement. See Dkt. No. 15 at 4. Specifically, Respondent contends that there are issues of fact that preclude the Court from determining mutual assent or a meeting of the minds as to the material terms of size and scope, project schedule, frequency, and, in turn, price. See id. at 5.

 

To the contrary, Petitioner argues that the parties had agreed to all the material terms, including the parties to the agreement, the scope of the agreement, the duration of the agreement, and the quantity and price. See Dkt. No. 16 at 2.

 

As a preliminary matter, because this case involves interstate commerce, the Federal Arbitration Act and federal substantive law control. See Matter of Lory Fabrics (Dress Rehearsal, Inc.), 78 A.D.2d 262 (1st Dep’t 1980). Section 4 of Title 9 of the United States Code provides, in pertinent part, that

 

*5 [a] party aggrieved by the alleged … refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action … of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement…. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement…. If the making of the arbitration agreement … be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, … the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, … on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

 

9 U.S.C. § 4.

 

Section 4 severely limits the court’s role in considering motions to compel arbitration. See Application of Conticommodity Servs. Inc., 613 F.2d 1222, 1224 (2d Cir.1980). “[U]nless the ‘making’ of the agreement to arbitrate or ‘the failure, neglect, or refusal’ of one party to arbitrate is in dispute, the court must compel arbitration.” Id. at 1225; see also Interocean Shipping Co. v. Nat’l Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir.1972) (holding that “the question of the very existence of the [contract] which embodies the arbitration agreement is encompassed within the meaning of ‘the making of the arbitration agreement’ ”).

 

To qualify for a judicial determination of [the] issue [of the very existence of a contract], a party must provide ‘an unequivocal denial that the agreement had been made, and some evidence to substantiate the denial.’ “ PMC, Inc. v. Atomergic Chemetals Corp., 844 F.Supp. 177, 181 (S.D.N.Y.1994) (quotation and other citation omitted). “Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.” Par–Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd ., 636 F.2d 51, 54 (3d Cir.1980). When the court is considering a motion to compel arbitration which the party sought to be bound opposes on the ground that no agreement to arbitrate exists, the court “should give to the opposing party the benefit of all reasonable doubts and inferences that may arise.” Id. (footnote omitted). “A naked assertion … by a party to a contract that it did not intend to be bound by the terms thereof is insufficient to place in issue ‘the making of the arbitration agreement’ for the purposes of Section 4 of the Federal Arbitration Act.: Id. at 55. However, “[a]n unequivocal denial that the agreement had been made, accompanied by supporting affidavits, … in most cases should be sufficient to require a jury determination on whether there had in fact been a ‘meeting of the minds.’ “ Id. (quotation omitted); see also Oppenheimer & Co ., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995) (holding that “it is not sufficient for the party opposing arbitration to utter general denials fo the facts on which the right to arbitration depends”); Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir.1987) (holding that “[a] party resisting arbitration on the ground that no agreement to arbitrate exists must submit sufficient evidentiary facts in support of this claim in order to precipitate the trial contemplated by 9 U.S.C. § 4” (citations omitted)).

 

*6 Under New York law, to form a valid contract “there must be an offer, acceptance, consideration, mutual assent and intent to be bound.” Hodges v. Morrison, No. CV 08–76, 2010 WL 2922689, *3 (E.D.N.Y. July 19, 2010) (citations omitted). To determine whether there is mutual assent, the court “ ‘considers whether there has been a meeting of the minds between the parties on all essential terms of the agreement.’ “ Id. (quotation and other citations omitted). A party who alleges that a contract exists must prove not only the existence of the contract but the contract’s terms as well. See id. (citation omitted). Therefore, “a contract is formed when the contracting parties express an intent to be bound, and where the essential terms of the agreement have been agreed upon.” Id. at *4 (citations omitted).

 

In this case, the agreement itself does not support Respondent’s assertion that there was no meeting of the minds regarding the terms of the agreement. The “Purchase Order” provides that the scope of the project is “Delivery of Precast Concrete Deck Slabs Approx. 1,538 loads $1,080.00/load to staging area.” See Dkt. No. 1–2 at 15. Furthermore, the Purchase Order states that Respondent “shall provide the required trucking/hauling services for the above referenced project at the above referenced price for the duration of the project.” See id. Although the Purchase Order does provide that the project timeline was still being developed, it provided information for each stage of the project: “Stage 1: Shipping between April and September 2011; Stage 2: Shipping between January and July 2012; Stage 3: Shipping between November 2012 and June 2013.” See id.

 

The Purchase Order also provides that, “[d]uring the project, there will be times within each stage where no deliveries will be required to allow for issues on the job such as weather delays, traffic pattern changes, etc. We will need to deal with these incremental breaks as best we can and [Respondent] will not charge additionally for any idle equipment or drivers.” See id. at 16. The Purchase Order provides further that Respondent may assess a fuel surcharge if the price for diesel exceeds $4.00 per gallon and, likewise, that Respondent would issue a fuel discount if the price for diesel dropped below $2.70 per gallon. See id. Finally, the Purchase Order provides that [Respondent] “shall also adhere to the terms and conditions as noted in the ‘Standard Shipping Agreement’ signed by both [Respondent] and [Petitioner] and attached hereto. The attached terms and conditions area part of this purchase order.” See id.

 

The attached Standard Shipping Agreement provides that, “[b]y signing this Agreement, [Respondent] agrees to be bound by these terms and conditions.” See id. at 17. This Standard Shipping Agreement clearly sets forth Petitioner’s responsibilities and Respondent’s responsibilities. One of Respondent’s responsibilities was to

 

*7 maintain, at all times, insurance coverage of the types and at the limits outlined in the attached sample insurance certificate. Prior to commencement of any work with [Petitioner], [Respondent] must furnish the insurance certificate to [Petitioner] for review and approval. After furnishing the original certificate, it is [Respondent]’s responsibility to furnish additional certificates upon insurance renewal or at any point [Respondent] changes its insurance coverage. [Petitioner] maintains the right to request insurance evidence at any point. It is [Respondent]’s responsibility to insure its interest in its trailers and equipment and any other personal property brought onto [Petitioner]’s property.

 

See id.

 

The Standard Shipping Agreement also provides that Respondent

 

is responsible for acquiring and paying for all permits required by the various jurisdictions involved with the loads. [Respondent] is responsible for following all guidelines and restrictions associated with the permits and jurisdictions involved. [Respondent] is responsible for acquiring and paying for certified, licensed, and reputable escorts, as required by permit or the jurisdiction(s) to be traveled through.FN2

 

FN2. The Court finds it interesting that the Purchase Order/Standard Shipping Agreement incorporated many of the terms of the revised quotation that Respondent had sent to Petitioner and which Respondent appears to be attempting to repudiate. For example, this quotation refers to the same start and end dates for the project. It also includes, under the heading “for duration of the Project” the price of “$1,080.00 per load to staging.” The quotation also references the fact that fuel cost is based on $4.00 per gallon and that “any increase in fuel over $4.00 per gallon would need to be reimbursed by [Petitioner].” Under the heading of “trailers,” the quotation provides that “[Respondent] will provide the 45 trailers needed for the length of project and will not back charge for any lapse in schedule or weather delays.”

 

See id.

 

Although Respondent now asserts that the parties had not agreed on certain material terms, that argument is inconsistent with the agreement that Respondent signed. Respondent signed the Standard Shipping Agreement, which clearly states that by signing it Respondent agreed to be bound by its terms and conditions. If Respondent had concerns about the exact dates on which shipments would be made, it should not have signed the agreement. In its own quotation to Petitioner, Respondent used the term “for the duration of the Project” in quoting $1,080.00 per load to staging. Finally, although Respondent now argues that, “if the size and scope ultimately called for an escort vehicle, route planning, and permitting, the price per load would require adjustment,” that is not indicated in its price quotation and, in addition, in the Standard Shipping Agreement, under “Responsibilities of [Respondent] under the Agreement,” these items are specifically delineated. See Dkt. No. 1–2 at 17.

 

Based on the overwhelming evidence in the record, the Court concludes that the parties had a meeting of the minds as to the terms of the agreement. Respondent has not submitted any credible evidence to create an issue of fact regarding this issue. Therefore, the Court concludes that a valid contract exists between the parties and grants Petitioner’s motion to compel arbitration of the parties’ dispute because their dispute is covered by the arbitration clause in that agreement.

 

III. CONCLUSION

After reviewing the entire file in this matter, the parties’ submissions, and the applicable law, and for the above-stated reasons, the Court hereby

 

ORDERS that Respondent’s motion for an extension of time in which to respond to Petitioner’s motion to compel arbitration is DENIED; and the Court further

 

*8 ORDERS that Petitioner’s motion to compel arbitration is GRANTED; and the Court further

 

ORDERS that the Clerk of the Court shall enter judgment in favor of Petitioner and close this case.

 

IT IS SO ORDERED.