Petro Star, Inc. v. BP Oil Supply Co.

concurring in part and dissenting in part:

I agree that the district court did not err in granting BP’s motion for summary judgment on Petro Star’s claims of uncon-scionability and unjust enrichment. But I respectfully dissent from the majority’s conclusion that the term “tariff’ in the contract is ambiguous, and its conclusion that the district court erred in granting summary judgment.

A provision of the contract at issue in this appeal stated that “[a]ny changes to the TAPS Quality Bank, including but not limited to retroactive adjustments, shall apply to this contract.” Because the contract specified that retroactive adjustments apply to this provision involving exchange barrels, but did not include any such language about the barrels at issue here, retroactive adjustments do not apply to the term “tariff’ as used here under the “expressio unius est exclusio alteras” principle of Ohio contract law. See Laikos v. Marquis Mgt. Grp., LLC, No. 2008CA00166, 2009 WL 2170982 , at *4 (Ohio Ct.App. July 20, 2009) (“Having defined ‘Sale’ in Sections 7, 8, and 9 to include something less than a sale of all its assets but having failed to do so in Section 6, we find ‘sale’ in Section 6…

MEMORANDUM *

Petro Star, Inc., appeals the district court’s grant of defendants’ (collectively, BP) motion for summary judgment on Pe-tro Star’s claims of breach of contract, unconscionability, and unjust enrichment. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse in part, affirm in part, and remand.

Because the term “tariff,” as used in the disputed oil contracts, is ambiguous, and a genuine dispute as to the term’s proper interpretation exists on this record, the district court erred in granting BP’s motion for summary judgment on Petro Star’s breach of contract claim. Under Ohio law, which governs the contract claim, “extrinsic evidence may be used to determine the parties’ intent where the language of the contract is unclear or ambiguous.” Maverick Oil & Gas, Inc. v. Barberton City Sch. Dist. Bd. of Educ., 171 Ohio App.3d 605 , 872 N.E.2d 322, 328 (2007). The contracts that BP and Petro Star entered during the 1990s (the “Contracts”) do not specify whether Petro Star should receive any of the $31 million in tariff refunds that BP received from the Trans-Alaska Pipeline System’s carriers. Neither do they state whether the term “tariff,” as used in the netback…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT AUG 29 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PETRO STAR, INC., No. 13-35007

Plaintiff - Appellant, D.C. No. 3:11-cv-00064-RRB

v.

MEMORANDUM*

BP OIL SUPPLY CO.; and BP

PRODUCTS NORTH AMERICA, INC.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted June 3, 2014 Anchorage, Alaska

Before: WALLACE, GRABER, and WARDLAW, Circuit Judges.

Petro Star, Inc., appeals the district court’s grant of defendants’ (collectively,

BP) motion for summary judgment on Petro Star’s claims of breach of contract,

unconscionability, and unjust enrichment. We have jurisdiction under 28 U.S.C.

§ 1291, and we reverse in part, affirm in part, and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Because the term “tariff,” as used in the disputed oil contracts, is ambiguous,

and a genuine dispute as to the term’s…