Peeler v. KVH Industries, Inc.

Filing 48

ORDER: Defendant KVH Industries, Inc.'s Dispositive Motion for Summary Judgment 29 is DENIED. Plaintiff David Peeler's Motion for Adverse Inference 33 is DENIED. Plaintiff David Peeler's Motion for Summary Judgment 34 is DENIED . Plaintiff David Peeler's Motion to Strike Defendant's Documents filed in Support of Motion for Summary Judgment 36 is GRANTED to the extent that the Court strikes the relevant subpoena responses as detailed herein; the Motion is otherwise DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/25/2013. (CH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID PEELER,
Plaintiff,
v.

Case No. 8:12-cv-1584-T-33TGW

KVH INDUSTRIES, INC.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court in consideration of
Defendant

KVH

Industries,

Inc.’s

Dispositive

Motion

for

Summary Judgment (Doc. # 29), filed on June 6, 2013, to
which Plaintiff filed a response in opposition (Doc. # 37)
on June 20, 2013.

KVH filed a reply (Doc. # 47), with

leave of Court, on July 5, 2013.

Also before the Court are

Plaintiff David Peeler’s Motion for Summary Judgment (Doc.
# 34) and Motion for Adverse Inference (Doc. # 33), both
filed on June 7, 2013.

KVH filed responses in opposition

to both Motions (Doc. ## 38, 39) on June 24, 2013, and
Peeler filed a reply to KVH’s response to the Motion for
Summary Judgment, with leave of Court, on July 5, 2013
(Doc. # 46).
address

In this Order, the Court will additionally

Peeler’s

Motion

to

Strike

Defendant’s

Documents

Filed in Support of Motion for Summary Judgment (Doc. #
36), to which KVH responded on June 25, 2013 (Doc. # 41).
For

the

reasons

Motion

for

Motion

to

that

Adverse
Strike,

follow,

the

Inference,
and

denies

Court

grants
both

denies

in

Peeler’s

part

Peeler’s

Motions

for

Summary

Judgment.
I.

Background
KVH

Industries

designs

and

manufactures

satellite

communication systems for mobile users on moving platforms
such as boats, buses, and motor homes.
31-1 at 4).

(Palmer Dep. Doc. #

On January 29, 2003, Peeler entered into a

Manufacturer’s Representative Agreement with KVH, by which
KVH engaged Peeler as a technical trainer and independent
contractor.
trainer,

(Agreement Doc. # 32-2 at 2).

Peeler

was

responsible

for

As a technical

visiting

various

distributors who bought products from KVH and educating the
distributors’

employees

on

the

process

operating, and repairing KVH products.

of

installing,

(Peeler Dep. Doc. #

30-1 at 13).
The Agreement provided that KVH would pay Peeler “on
all technical training performed in the Territory to RV,
Automotive,
dealers,

and

entertainment
not

to

coach,

exclude
2

any

OEM,

mass

additional

merchant,

pre-approved

accounts,

a

Commission

dealer/account sales.”

.

.

.

based

on

percentage

(Agreement Doc. # 32-2 at 3).

of
The

Agreement additionally provided that “[t]he Commission will
be

considered

earned

when

[KVH]

receives

the

Technical

Training Report upon completion by the end of each month,”
and that “[t]he Commission will be paid to [Peeler] by the
20th of each month for the most recently ended month.”
(Id.).

In

conjunction

with

these

obligations,

the

Agreement required KVH to send to Peeler, “[o]n or before
the

15th

of

each

month,

.

.

.

a

statement

of

account

showing the quantity of trainings completed by Peeler . . .
during the month most recently ended and the amount
commission due . . . thereon.”
From

January

2003

to

(Id.).

March

2004,

$135,827.95 in training commissions.
# 32-4 at 2).
different

of

KVH

paid

Peeler

(Payment Invoice Doc.

In April of 2004, Peeler and KVH agreed to a

payment

arrangement,

a

Contractor

Outline,

in

accordance with which Peeler received a consistent monthly
salary

of

$5,500

per

month

plus

expenses.

(Contractor

Outline Doc. # 32-5 at 2; Peeler Dep. Doc. # 30-2 at 12).
The

parties

dispute

arrangement.
agreement

was

the

reason

for

the

revised

payment

According to KVH, the “reason for the new
[Peeler’s]

displeasure
3

with

the

previous

agreement, which did not include reimbursement of any form
for

the

expenses

[Peeler’s]

incurred

services

.

rendered

Letter Doc. # 32-9 at 2).

.
to

.

in

connection

with

(Mar.

2005

KVH.”

30,

Peeler, however, contends that

he “was okay with the way things were,” and that he had not
expressed concerns prior to 2004 about the way he received
payment from KVH.

(Peeler Dep. Doc. # 30-2 at 12).

KVH released Peeler as an independent contractor in
February of 2005.

(Id. at 25).

Peeler testifies that,

sometime in 2005 after his termination from KVH, a KVH
sales representative named Scott Czewski provided him with
certain

“final

information,

reports”

referred

containing

to

as

BAAN

KVH’s
reports.

Peeler Dep. Doc. # 30-1 at 8-10).

internal
(Id.

sales
at

4;

Based on the details

from those reports, Peeler became concerned that KVH had
not paid him the total amount of commissions to which he
was entitled under the Agreement.
at 4).

(Peeler Dep. Doc. # 30-2

Accordingly, on March 13, 2005, Peeler wrote a

letter to Ian Palmer, KVH’s Executive Vice President of
Satellite

Sales,

explaining

that

“$124,634.03 in unpaid commissions.”
Letter Doc. # 32-8 at 2).

KVH

owed

Peeler

(Id.; Mar. 13, 2005

Palmer responded on March 30,

4

2005, with a letter denying Peeler’s request for additional
payment.

(Mar. 30, 2005 Letter Doc. # 32-9 at 2).

On

April

explaining

4,

that,

2005,
since

Peeler
he

never

sent

Palmer

signed

the

a

letter

Contractor

Outline, the Outline did not effectively amend the original
Agreement between the parties.

(Apr. 4, 2005 Letter Doc. #

32-10 at 2). Peeler further demanded “the back-commissions
that [were] contractually and rightfully due [him] for the
(Id.).1

2003-2005 time period.”
dated

June

10,

2005,

Palmer

In a written response

explained

to

Peeler:

“Your

desire to invoke the benefits of both [the] January 2003
agreement

and

inappropriate.”

the

Contractor

Outline

is

entirely

(June 10, 2005 Letter Doc. # 32-11 at 2).

Palmer further asserted that Peeler’s “actions in accepting
the

$5,500

per

month

in

compensation”

reflect

Peeler’s

“reliance on and acceptance of the terms of that document.”
(Id.).

Despite his position that the Contractor Outline

defined KVH’s relationship with Peeler, Palmer offered: “if
you provide us with a copy of the fully executed January
1

As of the time of Peeler’s deposition, however, he claims
to be entitled only to commissions earned through March of
2004, before the effective date of the Contractor Outline.
(Peeler Dep. Doc. # 30-2 at 16-17).
Thus, Peeler’s
correspondence with Palmer in 2005 reflects a different
basis for dispute than Peeler’s current claim for damages
based on the sales figures revealed by the BAAN software.
5

2003 agreement, as well as any other documents upon which
you rely, we will nonetheless further evaluate your claim.”
(Id. at 3).

Peeler declined to do so. (Peeler Dep. Doc. #

30-2 at 19).
Nearly one year later, on May 5, 2006, an attorney
named

Stephen

Morrissey

contacted

Eric

Rudolph,

KVH’s

corporate counsel, on behalf of Peeler, Czewski, and Dan
Adams, another KVH salesman.
32-12 at 2).

(May 5, 2006 Letter Doc. #

The letter from Morrissey to Rudolph listed

each client’s total demand of back commissions based on the
sales figures in the BAAN software, and requested access to
the software itself, reasoning that “it is clear that the
only real way to rectify the difference of opinion between
the claimants and KVH is for each side to be analyzing from
the same master set of sales and deliveries documentation.”
(Id.).

On

June

16,

2006,

Rudolph

responded

that

Morrissey’s “understanding that KVH’s BAAN software could
provide

all

the

necessary

information

to

resolve

disputes is simply, and unfortunately, incorrect.”
16, 2006 Letter Doc. # 32-13 at 2).

these
(June

The letter proceeded

to explain the detailed process by which the volume of KVH
products
“national

sold

by

account

the

individual

customers”
6

is

retail

stores

reported

to

of
KVH

KVH’s
and

recorded for purposes of paying commissions to KVH’s sales
representatives.

(Id.).

Specifically, Rudolph explained

that the “sales reports provided to KVH by these national
customers are not . . . at any time resident in BAAN, but
rather are in the form of Excel spreadsheets.”

(Id.).

After receiving Rudolph’s response in June of 2006,
Peeler did not file a lawsuit.
21).

(Peeler Dep. Doc. # 30-2 at

Indeed, Peeler claims to have had no further contact

with KVH until 2011, when his current counsel contacted KVH
demanding $447,731.94 in unpaid commissions.

(Id.; Jan.

17, 2011 Letter Doc. # 32-14).
On April 12, 2012, Peeler filed the instant breach-ofcontract action against KVH, claiming that “KVH breached
the

[Agreement]

by

failing

to

(a)

pay

Peeler

all

commissions due Peeler under the Agreement and (b) render
Peeler with a statement of accounting showing the quantity
of training completed by Peeler in the preceding month.”
(Doc. # 2 at ¶ 19).

The Complaint asserts that Peeler’s

unpaid commissions amount to $447,731.94, and that Peeler
is additionally entitled to “prejudgment interest at the
proper legal rate pursuant to R.I. General Laws sec. 9-2110.”

(Id. at ¶¶ 20, 23).

On June 6, 2013, KVH filed a

Motion for Summary Judgment (Doc. # 29), to which Peeler
7

responded in opposition on June 20, 2013 (Doc. # 37).
filed a reply on July 5, 2013.

(Doc. # 47).

KVH

On June 7,

2013, Peeler filed a Motion for Summary Judgment (Doc. #
34) as well as a Motion for Adverse Inference (Doc. # 33).
KVH filed a response in opposition to both Motions (Doc. ##
38, 39) on June 24, 2013.

Peeler filed a reply to KVH’s

response to the Motion for Summary Judgment on July 5,
2013.

(Doc. # 46).

Peeler additionally filed a Motion to

Strike (Doc. # 36) on June 20, 2013, to which KVH responded
(Doc. # 41) on June 25, 2013.
reviewed

the

Motions,

the

The Court has carefully

responses,

the

applicable

replies, and is otherwise fully advised in the premises.
II.

Motion for Adverse Inference
In his Motion for Adverse Inference, Peeler moves “for

an Order imposing an adverse inference against Defendant
[KVH] with respect to the fact that KVH cannot produce the
following

documents:

(a)

technical

training

reports

submitted by Peeler; (b) purported sales reports from KVH’s
dealers and distributors; [and] (c) statements of account
required to be submitted by KVH to Peeler.”
1).2
2

(Doc. # 33 at

Peeler argues that, because KVH is unable to produce

KVH clarifies
Inference that,

in response to the Motion for Adverse
“[w]hile Plaintiff’s motion does not
8

these documents, Peeler is entitled to adverse inferences
that

“(i)

under

the

Manufacturer’s

Representative

Agreement, Peeler’s commissions should have been calculated
based upon sales by KVH to its dealers direct and customer
accounts/distributors and not based upon the sales of KVH’s
distributors/dealers
technical

training

downstream,
on

behalf

of

(ii)
KVH

Peeler
during

provided

the

period

[from] January 1, 2003, through March 31, 2004, to: Camping
World, Stag Parkway, RiverPark, Keller Marine & RV, Perfect
10

Satellite

Salem

Distribution,

Distribution,

Sierra

Northern

Select

Wholesale,

Distribution,

Bell

Industries,

and Arrow Distribution, and (iii) Peeler provided KVH with
technical

training

reports

evidencing

those

trainings.”

(Id. at 1-2).
Peeler
Island

argues

state

law

that
in

this

Court

determining

should

whether

apply
KVH’s

constitute

sanctionable

spoliation

warranting

inference

because

Agreement

provides

the

Rhode
actions

an

adverse

that

“[t]he

validity, interpretation, and performance of this Agreement
specify, KVH assumes that Peeler prematurely requests an
adverse inference at the trial of this action.” (Doc. # 39
at 1).
As explained in further detail below, the Court
finds that no adverse inference is warranted on the bases
supplied in this Motion regardless of whether Peeler
intended the inference to apply at the summary judgment or
the trial stage of this litigation.
9

shall be controlled by and construed under the laws of the
State of Rhode Island.”
# 32-2 at 6).

(Doc. # 33 at 8-9; Agreement Doc.

The Court disagrees with this premise.

“In

a diversity action such as the instant case, federal law
governs the imposition of spoliation sanctions.”

Managed

Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.
Supp.

2d

1317,

1322

(S.D.

Fla.

2010)

(citing

Flury

v.

Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005)
(“[W]e conclude that federal law governs the imposition of
sanctions for failure to preserve evidence in a diversity
suit.”)).

However, “the Court may look to state law for

guidance to the extent that it is consistent with federal
law.”

Id. (internal quotations omitted).

“Spoliation
mutilation,

is

the

alteration,

intentional

or

concealment

destruction,
of

evidence.”

Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2007
WL

486633,

quotations

at

*5

(M.D.

omitted).

Fla.

The

Feb.

9,

decision

2007)

whether

(internal
to

impose

spoliation sanctions is committed to the discretion of the
Court.

See United States v. Lanzon, 639 F.3d 1293, 1302

(11th Cir. 2011).
when

the

party

“Generally, spoliation is established

seeking

sanctions

proves

(1)

that

the

missing evidence existed at one time; (2) that the alleged
10

spoliator had a duty to preserve the evidence; and (3) that
the evidence was crucial to the movant being able to prove
its prima facie case or defense.”

Floeter, 2007 WL 486633,

at *5.
“Additionally,
spoliation

of

in

evidence

this
are

circuit

appropriate

sanctions
‘only

when

for
the

absence of that evidence is predicated on bad faith . . . .
Mere negligence in losing or destroying the records is not
enough for an adverse inference, as it does not sustain an
inference of consciousness of a weak case.’”

Id. (quoting

Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).
Thus, under the “adverse inference rule,” the Court will
not

infer

that

the

missing

documents

contained

evidence

unfavorable to KVH unless the circumstances surrounding the
documents’ absence “indicate bad faith, e.g., that [KVH]
tampered with the evidence.”

Bashir, 119 F.3d at 931.

See

also Vick v. Tex. Emplm’t Comm’n, 514 F.2d 734, 737 (5th
Cir.

1975)

where

(finding

“records

without

bad

were

faith

no

adverse

destroyed

and

well

in

inference
under

was

routine

advance

of

warranted
procedures

[appellant’s]

service of interrogatories”).
In the instant case,

KVH argues that “some of the

documents Peeler claims were destroyed never existed in the
11

first place.”

(Doc. # 39 at 3).

Specifically, KVH notes

that, although Peeler never asked KVH for a “statement of
account”

during

statements

were

his

employment

not

being

or

complained

provided

to

such

Peeler

him,

that

now

claims never to have received any such statements.

(Id.).

KVH further argues that
it is wholly unclear that the “statement of
account” referenced in the Agreement and which
Peeler claims were (sic) never provided to him
are truly “missing,” as Peeler suggests.
It is
undisputed that Peeler did receive commission
invoices with each and every one of his checks
and that those invoices detailed the amount of
commissions due to him based on the training he
completed. . . . That is precisely the purpose
that the “statement of account” served per the
Agreement, yet Peeler admitted he never looked at
these invoices during his employment.
Peeler
does not properly articulate what information he
claims he should have received from these
“statements of account,” which was not provided
to him in the “commission invoices.”
(Id. at 4).
KVH similarly argues that, “other than Peeler’s selfserving

testimony,”

there

is

“no

evidence

.

.

.

that

[Peeler] provided training reports to KVH beyond the fifty
or

so

that

were

produced

in

Training Forms Doc. # 34-10).

discovery.”

(Id.

at

4;

Although Peeler claims to

have produced several hundred additional reports to KVH,
“Palmer

testified

that

during

12

2003

and

2004,

because

Peeler’s training initiatives with Stag Parkway and Camping
World were going so well, KVH relaxed the requirement that
[Peeler]

produce

reports

for

those

dealer/distributors.”

(Doc. # 39 at 5; Palmer Dep. Doc. # 31-1 at 11-12).

Thus,

KVH argues, “Palmer’s testimony confirms that Peeler cannot
establish the first prong of his ‘adverse inference’ burden
because documents that Peeler now claims KVH ‘spoliated’
likely did not exist in the first place.” (Doc. # 39 at 5).
Furthermore, KVH denies that it had a “perpetual duty”
to

retain

the

relevant

documents,

communicating

with

“particularly
KVH

after

June

because

Peeler

stopped

2006.”

(Id.).

Peeler, however, maintains that “[a]n obligation to

preserve evidence even arises prior to the filing of a
complaint where a party is on notice that litigation is
likely.”

(Doc. # 33 at 10).

Peeler contends that “KVH was

put on notice of Peeler’s claim in 2005 and was threatened
with litigation in 2005 and 2006,” and thus had a duty to
retain

the

statute

of

documents
limitations

“for

the

period

applicable

to

of

the

Peeler’s

ten

year

breach

of

contract claim” notwithstanding the lapse between Peeler’s
(Id. at 11).3

2006 letter and 2012 lawsuit.
3

Peeler offers no legal authority to support his contention
that the duty to retain documents endures for the duration
13

However,

the

prior

existence

of

the

documents

and

KVH’s duty to retain them are not dispositive of the issue
of spoliation because Peeler has failed to demonstrate bad
faith -- that is, Peeler has not presented any evidence
showing
relevant

that

KVH

intentionally

documents.

requirement

that

“Given

an

lost

[the

adverse

or

destroyed

Eleventh]

inference

the

Circuit’s

flowing

from

spoliation requires the presence of bad faith, even grossly
negligent

.

.

inference].”

.

conduct

does

not

justify

[an

adverse

Point Blank Solutions, Inc. v. Toyobo Am.,

Inc., No. 09-61166-CIV, 2011 WL 1456029, at *10 (S.D. Fla.
Apr. 5, 2011).

“In fact, district courts in our Circuit

regularly deny adverse inference requests even when there
is an indisputable destruction of evidence.”
Peeler

appears

to

concede

that

Id.

there

is

no

direct

evidence of intentional spoliation, instead arguing in the
Motion for Adverse Inference that “[t]here is no credible
explanation

for

KVH’s

destruction

of

Peeler’s

technical

training reports, statements of account, or the purported
dealer/distributor

sales

reports

other

(Doc. # 33 at 12) (emphasis added).

than

bad

faith.”

Peeler essentially

of the statute-of-limitations period related to a potential
plaintiff’s predicted cause of action.
14

argues that, because KVH was able to produce several other
documents from the relevant time period, including Peeler’s
checks, emails from Peeler, and other employees’ agreements
from

2003

and

2004,

the

Court

should

infer

bad

faith

because KVH cannot “credibly explain its lack of the most
essential documents to Peeler’s claim.”

(Id. at 13).

The

Court disagrees.
As this Court recognized in Sterbenz v. Anderson, No.
8:11-cv-1159-T-33TBM,

2013

WL

1278160,

at

*3

(M.D.

Fla.

Mar. 28, 2013), for a court to determine via circumstantial
evidence that a party acted

in bad faith in permitting

evidence to be destroyed, the following criteria must be
met:
(1) evidence once existed that could fairly be
supposed to have been material to the proof or
defense of a claim at issue in this case; (2) the
spoliating party engaged in an affirmative act
causing the evidence to be lost; (3) the
spoliating party did so while it knew or should
have known of its duty to preserve the evidence;
and (4) the affirmative act causing the loss
cannot be credibly explained as not involving bad
faith by the reason proffered by the spoliator.
Id. (quoting Walter v. Carnival Corp., No. 09-20962-CIV,
2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010)).
Just as the moving party in Sterbenz, Peeler has not
satisfied

the

criteria

for

15

founding

bad

faith

on

circumstantial

evidence

because

Peeler

has

failed

to

establish that KVH engaged in any affirmative act causing
the documents to be lost.

Palmer testified that “normal

and customary activity within KVH is to retain and save
documentation within a reasonable time frame” (Palmer Dep.
Doc. # 31-2 at 24), and that “after the three rounds of
letters [between Peeler and KVH] . . . I fully thought that
was completely it, it was done, it was -- there was no
possible way that Dave Peeler could have any reason for
dispute.” (Id. at 22).
been

imprudent

for

Accordingly, although it may have
KVH

to

dispose

of

the

relevant

documentation in light of Peeler’s complaints, the Court
cannot say that KVH’s actions or inaction amounted to bad
faith as required to impose an adverse inference spoliation
sanction.
Although not determinative, the Court in arriving at
this

conclusion

has

considered

Peeler’s

own

failure

to

retain certain relevant documents despite being on notice
of this litigation.
his

retention

of

In response to questioning regarding

documents

relating

to

his

independent

contractor relationship with KVH, Peeler testified:
Q:

And you got rid of any of the
financial
documents
because
you
after seven years you were in the
16

other
felt
clear

from an IRS standpoint, correct?
A:

What financial documents are you referring
to?

Q:

Taxes,
credit
cards,
expense
reports.
Anything that you kept as part of your
arrangement as an independent contractor,
you don’t have those anymore, do you?

A:

No, ma’am.

Q:

Because you felt you were in the clear with
-- with the IRS?

A:

Yes, ma’am.

Q:

Even though you knew seven years ago that
you had a claim against KVH, didn’t you?

A:

Yes, ma’am.

Q:

You didn’t keep any of the documents though,
did you?

A:

No, ma’am.

(Peeler Dep. Doc. # 30-2 at 8).

As KVH argues in response

to the Motion for Adverse Inference, Peeler “bears some of
the blame” for the lack of documentation in
(Doc. # 39 at 6).

this case.

“Even though he claims he continued to

contemplate litigation against KVH[,] Peeler conceded that
he

personally

destroyed

or

failed

to

retain

his

own

additional documentation” relating to his claims in this
case.

(Id.).

The training reports submitted by Peeler to

KVH could have been retained just as easily by Peeler as by

17

KVH;

yet,

Peeler

attempts

to

fault

KVH

exclusively

for

their disappearance.
Additionally, Peeler provides no evidence to support
his contention that a “statement of account,” as provided
in the Agreement, constitutes a document other than the
commission

invoices

attached

to

Peeler’s

paychecks.

According to KVH, “those invoices detailed the amount of
commissions

due

to

[Peeler]

based

on

the

training

he

completed” (Doc. # 39 at 4); Peeler admits that he “really
didn’t pay attention to” the “backup details” attached to
his paychecks (Peeler Dep. Doc. # 30-2 at 4).
As for the “purported sales reports from KVH’s dealers
and distributors,” Peeler has failed to demonstrate that
KVH

engaged

in

any

affirmative

act

which

caused

these

documents to be lost, nor has Peeler offered any other
evidence of bad faith on KVH’s behalf.
Accordingly, in the absence of bad faith, and in light
of Peeler’s failure to keep related documentation as well
as

Peeler’s

action,

the

unusually
Court

lengthy

finds

that

warranted.
III. Motions for Summary Judgment
A.

Legal Standard
18

delay
no

in

adverse

bringing
inference

this
is

Summary judgment is appropriate “if the movant shows
that 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).
enough

to

defeat

a

A factual dispute alone is not

properly

pled

motion

for

summary

judgment; only the existence of a genuine issue of material
fact will preclude a grant of summary judgment.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun
Publ’g Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is

material if it may affect the outcome of the suit under the
governing law.

Allen v. Tyson Foods, Inc., 121 F.3d 642,

646 (11th Cir. 1997).

The moving party bears the initial

burden of showing the court, by reference to materials on
file, that there are no genuine issues of material fact
that

should

be

decided

at

trial.

Hickson

Corp.

v.

N.

Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)
(citing
(1986)).

Celotex

Corp.

v.

Catrett,

477

U.S.

317,

323

“When a moving party has discharged its burden,

the non-moving party must then ‘go beyond the pleadings,’
19

and by its own affidavits, or by ‘depositions, answers to
interrogatories,

and

admissions

on

file,’

designate

specific facts showing that there is a genuine issue for
trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If

there

is

a

conflict

between

the

parties’

allegations or evidence, the non-moving party’s evidence is
presumed to be true and all reasonable inferences must be
drawn in the non-moving party’s favor.

Shotz v. City of

Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).

If

a reasonable fact finder evaluating the evidence could draw
more

than

one

inference

from

the

facts,

and

if

that

inference introduces a genuine issue of material fact, the
court should not grant summary judgment.

Samples ex rel.

Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir.
1988) (citing Augusta Iron & Steel Works, Inc. v. Empl’rs
Ins.

of

Wausau,

835

F.2d

855,

856

(11th

Cir.

1988)).

However, if the non-movant’s response consists of nothing
“more than a repetition of his conclusional allegations,”
summary judgment is not only proper, but required.
v.

Ross,

663

F.2d

1032,

1034

(11th

Cir.

denied, 456 U.S. 1010 (1982).
B.

KVH’s Motion for Summary Judgment
20

1981),

Morris
cert.

KVH makes clear in its Motion for Summary Judgment
that, “[w]hile KVH vehemently disputes the method by which
Peeler

believes

calculated,

KVH

his
does

commissions
not

method in this Motion.”
confines

its

summary

challenge

should
the

madness

(Doc. # 29 at 2).
judgment

have

arguments

of

been
that

Instead, KVH
to

issues

of

staleness, contending that Peeler “waited too long to bring
his lawsuit and his breach of contract claim is time-barred
under Florida law.

Additionally, the doctrine of laches

(in both Florida and Rhode Island), as well as equity and
common sense, preclude Peeler’s breach of contract claim
from proceeding.”

(Id. at 2-3).

The Court will address

each of these arguments in turn.
1.

Admissibility of Supporting Documents

As a preliminary matter, the Court notes that Peeler
challenges

the

Court’s

potential

reliance

upon

several

documents filed by KVH in support of its Motion for Summary
Judgment.

In his Motion to Strike these documents, Peeler

contends that
The following documents . . . cannot be used in
support [of] a motion for summary judgment:
Atlantic.net Subpoena Response dated 2/28/13,
Camping World Subpoena Response dated 5/2/13,
2004 Contractor Outline, Peeler Damages Chart,
FIA Card Service Subpoena Response dated 4/10/13,
1/31/05 J. Jones email to D. Peeler, River Park
21

Subpoena Response dated 4/22/13, and Stag Parkway
Subpoena Response dated 4/16/13.
(Doc. # 36 at 1).

Specifically, Peeler argues that “[t]he

above-referenced documents are not included in Fed. R. Civ.
P. 56 as permissible documents to be filed in support of a
motion for summary judgment,” and further contends that the
documents

constitute

exception applies.

inadmissible

hearsay

to

which

no

(Id. at 2).

“The general rule is that inadmissible hearsay cannot
be considered on a motion for summary judgment.”

Macuba v.

Deboer,

(internal

193

quotations

F.3d

1316,

omitted).

1323

(11th

However,

the

Cir.

1999)

Eleventh

Circuit

has

“restated the general rule to hold that a district court
may consider a hearsay statement in passing on a motion for
summary

judgment

admissible
form.’”

if

evidence

the
at

statement

trial’

or

could

be

‘reduced

‘reduced

to

to

admissible

Id. (citations omitted).

The Advisory Committee Notes to Rule 56(c)(2) provide
as follows: “Subdivision (c)(2) provides that a party may
object that material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.

The objection functions much as an objection at

trial, adjusted for the pretrial setting.

22

The burden is on

the proponent to show that the material is admissible as
presented

or

to

anticipated.”

explain

Fed.

R.

the
Civ.

admissible
P.

56,

form

Adv.

that

Comm.

is

Notes,

“Subdivision (c)” (2010 Amendments) (emphasis added).
a.
Regarding
argues

that

Subpoena Responses

the

Peeler

challenged

subpoena

subpoenaed

these

responses,

records

“from

KVH
his

internet provider, his credit card company and from various
distributors
time

of

period,”

KVH
and

seeking
that

documents

Peeler

now

from

the

“[c]uriously

relevant
.

.

.

pretends to disavow documents that he requested and which
he

repeatedly

Court.”

referenced

in

(Doc. # 41 at 2).

his

own

submissions

to

the

KVH argues that “all the

responses at issue are signed by agents of their respective
organizations, in response to a legal subpoena, and have
the requisite ‘guarantees of trustworthiness’ as required
under Federal Rule of Evidence [807],”4 and furthermore that
these documents are “the best evidence as to what the[ ]
distributors have (or do not have) concerning Peeler and

4

KVH cites to non-existent Federal Rule of Evidence 809 in
its response to Peeler’s Motion to Strike.
The Court
construes KVH’s arguments, however, as an attempt to
demonstrate
admissibility
under
the
hearsay
residual
exception, Rule 807.
23

sales of KVH products during [the relevant] time period.”
(Id. at 2-3).
However, despite KVH’s argument that these responses
are

sufficiently

“Congress

trustworthy,

intended

exception[,]

to

the

Court

[Rule

807,]

the

used

very

rarely,

be

exceptional circumstances.”

notes

residual
and

hearsay
only

only

when

trustworthiness

certain

exist

in

Jenks v. Naples Cmty. Hosp.,

Inc., 829 F. Supp. 2d 1235, 1248 (M.D. Fla. 2011).
applies

that

exceptional

and

when

“[I]t

guarantees

high

degrees

probativeness and necessity are present.”

of
of

Id. (internal

quotations omitted).
The

Court

finds

that

no

high

degree

of

necessity

exists in this case that would justify consideration of the
subpoena

responses

under

the

residual

exception.

It

appears to the Court that these unsworn statements could
easily have been reduced to an admissible form, as KVH does
not

contend

unavailable;
duty

of

the

that

any

of

nonetheless,
proponent

the

as
to

relevant

explained
show

that

declarants

above,
the

it

is

material

are
the
is

admissible as presented or to explain the admissible form
that is anticipated.

Beyond (1) arguing that Rule 807

applies and (2) arguing, without offering supporting legal
24

authority, that “[i]n light of his own clear references to
the[ ] subpoena responses and acknowledgement that none of
the

subpoenaed

entities

were

able

to

provide

documents,

Peeler cannot now claim that those same subpoena responses
should

be

stricken,”

KVH

has

offered

no

exception

justifying admissibility of these responses over Peeler’s
hearsay objection.
KVH seeks to offer these responses for the truth of
the

matters

they

assert:

namely,

that

the

documents

requested from the subject time period have been disposed
of

under

record

retention

guidelines,

or

that

they

otherwise cannot be located due to the passage of time.
Thus,

the

responses

constitute

hearsay

statements,

and

KVH’s arguments that they are each “signed by agents of
their

respective

organizations

in

response

to

a

legal

subpoena” and that “they are the best evidence as to what
these distributors have (or do not have) concerning Peeler”
fail to demonstrate the applicability of Federal Rule of
Evidence

807.

Accordingly,

the

Court

grants

Peeler’s

Motion to Strike as to the subpoena responses.
b.

Contractor Outline, Damages Chart, and
Jones Email

25

Peeler

additionally

moves

2004 Contractor Outline.
at 2).

to

strike

as

hearsay

the

(Contractor Outline Doc. # 32-5

However, KVH contends that the contract could be

offered as admissible evidence at trial under Rule 803(5),
the

recorded

hearsay.

recollection

exception

(Doc. # 41 at 4).

to

the

rule

against

The Court agrees; the document

could indeed be reduced to admissible evidence at trial by
reading

the

contract

to

the

jury

as

a

recorded

recollection, provided a proper foundation exists.
the

Court

denies

Peeler’s

Motion

to

Strike

as

Thus,
to

the

Contractor Outline.
Peeler also claims that his own damages calculation
chart constitutes inadmissible hearsay.

However, the Court

finds that this document is not hearsay because it is not
offered by KVH to prove the truth of the matter it asserts;
that is, KVH does not offer the chart to prove that KVH
owes Peeler total commissions plus interest amounting to
$785,574.50.
KVH

offers

(Damages Chart Doc. # 32-1 at 2).
the

chart

amount

to

demanded

that

in

action.

(Doc. # 29 at 2).

show
the

that

present

Peeler

Rather,

previously

breach-of-contract

Accordingly, the Court denies

Peeler’s Motion to Strike as to the damages chart.
Lastly, Peeler argues that an email he received from
26

Joel

Jones,

a

constitutes

KVH

sales

inadmissible

manager,

January

and

hearsay

in

should

of

2005

not

be

considered in support of KVH’s Motion for Summary Judgment.
KVH

responds

corroborate

that

this

Peeler’s

document

testimony

employment on February 1, 2005.
Court
Motion

has

not

for

relied

Summary

on

this

Judgment;

is

that

offered
KVH

merely

terminated

his

(Doc. # 41 at 4).
email
thus,

in

resolving

Peeler’s

to

The
KVH’s

Motion

to

Strike is denied as moot as to the Jones email.
2.

Statute of Limitations

In its Motion for Summary Judgment, KVH argues that
Peeler’s breach-of-contract claim “is governed by Florida’s
statute of limitations -- not Rhode Island’s -- and is,
therefore, time-barred.”

(Doc. # 29 at 16).

Under section

95.11(2)(b), Florida Statutes, “a legal or equitable action
on

a

contract”

However,

under

must
section

be

commenced

9-1-13(a),

within
Rhode

five

Island

years.
General

Laws, “civil actions shall be commenced within ten (10)
years next after the cause of action shall accrue . . . .”
Jurisdiction in this case is founded upon diversity of
citizenship.

“A court, sitting in diversity, is required

to apply the choice of law rules of the state in which it
sits.”

Pulte Home Corp., Inc. v. Ply Gem Indus., Inc., 804
27

F. Supp. 1471, 1478 (M.D. Fla. 1992).

“Under Florida law,

courts will enforce ‘choice-of-law provisions unless the
law of the chosen forum contravenes strong public policy.’”
Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1341
(11th

Cir.

2005)

(quoting

Mazzoni

Farms,

Inc.

v.

E.I.

DuPont de Nemours & Co., 761 So. 2d 306, 311 (Fla. 2000)).
“The

countervailing

importance

and

public

rise

policy

above

the

must

level

be
of

of

sufficient

routine

policy

considerations to warrant invalidation of a party’s choice
to be bound by the substantive law of another state.”

S.E.

Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73,
80

(Fla.

2012).

“[U]sury

laws

and

statute[s]

of

limitations are not founded on such strong public policy.”
Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 1020 (Fla.
5th

DCA

2002);

see

also

Burroughs

Corp.

v.

Suntogs

of

Miami, Inc., 472 So. 2d 1166, 1169 (Fla. 1985) (finding
that a contractual limitations clause which shortened the
time

period

for

bringing

a

suit

was

not

contrary

to

a

strong public policy).
“[F]our

factors

countervailing
contracting

policy

parties:

.

.

.

overrides
whether

the

indicate
the

whether

expectations

statute

evincing

the
of
the

policy is fraught with exceptions; whether the statute is
28

frequently amended, thereby reflecting a flexible public
policy;

whether

the

policy

is

fundamental

to

the

legal

system; and whether the outcome has a limited effect upon
the contract.”

Mazzoni Farms, 761 So. 2d at 311.

In analyzing another Florida Statute, section 95.03,5
Burroughs Corp. v. Suntogs of Miami, 472 So. 2d at 1168,
provides

a

persuasive

analysis

of

these

factors

context of statutes of limitations generally.

in

the

The Court

reasoned (1) “the legislature has frequently amended the
provisions controlling the statutory periods of limitation,
demonstrating the flexibility of this public policy”; (2)
“we do not consider the protections offered by a statute of
limitations to be fundamental to a legal system”; and (3)
“the laws governing the time to bring a suit have a limited
effect upon a contract insofar as they do not invalidate
the contract, but merely allow the defendant to set up an
affirmative
principles,
affects

the

defense.”
a

Id.

contract’s

applicable

Consistent

choice-of-law

statute

of

with

provision,

limitations,

these
as

does

it
not

rise above the level of routine policy considerations as
5

“Any provision in a contract fixing the period of time
within which an action arising out of the contract may be
begun at a time less than that provided by the applicable
statute of limitations is void.” Fla. Stat. § 95.03.
29

required to warrant invalidation of the parties’ choice to
be bound by the substantive law of another state.
“[P]arties

that

enter

into

commercial

contracts

reasonably expect choice-of-law provisions to be valid and
enforceable, and to disregard a choice-of-law provision in
a commercial transaction would destabilize an area of law
relied upon for its predictable and uniform application.”
Floating Docks, 82 So. 3d at 81 (citing Precision Tune Auto
Care, Inc. v. Radcliffe, 815 So. 2d 708, 711 (Fla. 4th DCA
2002)).

The Court accordingly finds that the choice-of-law

provision in this case does not seek to apply the law of a
forum which contravenes strong public policy.

Therefore,

the Court finds that Rhode Island law governs this dispute,
as provided in the Agreement, and that, in accordance with
Rhode

Island

General

Laws

section

9-1-13(a),

Peeler’s

breach-of-contract claim is timely.
In so finding, the Court is mindful of KVH’s argument
that the choice-of-law provision in the relevant Agreement,
which

states:

“The

validity,

interpretation,

and

performance of this Agreement shall be controlled by and
construed under the laws of the state of Rhode Island,”
(Agreement Doc. # 32-2 at 6), is “silent as to the time in
which challenges to the Agreement may be brought by either
30

party.”

(Doc. # 29 at 17).

“[n]otably

absent

from

KVH additionally argues that

this

paragraph

is

the

more

traditional contract language that the entire document or
agreement is subject to the laws of a particular state.”
(Id.).
to

KVH apparently raises these arguments in an effort

avoid

the

presumptive

validity

provision under Florida law.

of

the

choice-of-law

See Mazzoni, 761 So. 2d at

311.
KVH does not offer any legal support for its apparent
contention that specific language is required to trigger
the effectiveness of a choice-of-law provision regarding
the chosen forum’s statute of limitations, and the Court
declines to impose such a requirement.

A court in the

Southern District of Florida rejected a similar argument in
Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp.
2d 1273, 1276 (S.D. Fla. 2008).
noted

that,

“[w]hile

there

is

In that case, the court
authority

[from

other

jurisdictions] supporting the proposition that a choice of
law provision of a contract must explicitly incorporate the
statute of limitations of the chosen forum in order for
that

forum’s

controlling

statute
or

to

binding

apply,
here.”

such

authority

(citing

is

F.D.I.C.

not
v.

Petersen, 770 F.2d 141, 142 (10th Cir. 1985) (explaining
31

that statutes of limitation are considered to be procedural
rather

than

substantive

law,

and

therefore

they

are

generally not incorporated into choice-of-law provisions)).
In

Florida,

substantive

“statutes

of

nature,”

and

in

limitation
“a

are

choice

of

considered

law

provision

functions to supply a rule of decision for the substantive
rights of the parties.”

W. Grp. Nurseries, Inc. v. Ergas,

211 F. Supp. 2d 1362, 1366 (S.D. Fla. 2002).
Accordingly,

absent

any

authority

relating

to

the

alleged requirement that a choice-of-law provision specify
its application to the “entire document or agreement,” as
KVH proposes, the Court finds that, under Florida choiceof-law rules, the choice-of-law provision in the present
Agreement provides for the application of Rhode Island law,
including
instant

that

state’s

statute

breach-of-contract

of

limitations,

dispute.

Thus,

the

to

the
Court

determines that Peeler’s action is not time-barred by the
applicable statute of limitations.
3.
“Laches

Laches
is

an

equitable

defense

that

precludes

a

lawsuit by a plaintiff who has negligently sat on his or
her rights to the detriment of a defendant.”
Hills,

Inc.,

45

A.3d

1262,
32

1269

(R.I.

Hazard v. E.

2012)

(internal

quotations omitted).

Peeler argues in response to KVH’s

Motion for Summary Judgment that, under Rhode Island law,
“the defense of laches is peculiar to courts of equity and
does not apply in actions at law.”

(Doc. # 37 at 11)

(citing Grand d’Hauteville v. Montgomery, 169 A.2d 916, 918
(R.I. 1961)).

KVH counters, however, that according to the

Rhode Island Supreme Court, “although the concept of laches
originated

in

courts

of

chancery,

it

is

today

often

employed in situations in which the relief sought is not
readily classifiable as equitable in nature.”
at

4)

(quoting

Raso

v.

Wall,

884

A.2d

(Doc. # 47

391,

394

(R.I.

2005)).
This Court need not determine, however, whether the
Rhode

Island

Supreme

Court

would

apply

the

doctrine

of

laches to a breach of contract action initiated before the
statutory limitations period had lapsed, because the Court
finds that, even if laches were an appropriate defense to
Peeler’s

claim,

the

defense

would

not

apply

under

the

circumstances of this case.
Under Rhode Island law, a trial court confronted with
the defense of laches must apply a two-part test: “First,
there must be negligence on the part of the plaintiff that
leads to a delay in the prosecution of the case.
33

Second,

this delay must prejudice the defendant.”
at 1270.
what

Hazard, 45 A.3d

“‘There is no hard and fast rule for determining

constitutes

sufficient

doctrine of laches.’”

prejudice

to

invoke

the

Id. at 1271 (quoting Fitzgerald v.

O’Connell, 120 R.I. 240, 249 (R.I. 1978)).

“Laches bars a

stale cause of action when an unexplained or unjustified
delay in asserting the claim is ‘of such great length as to
render

it

difficult

or

impossible

for

the

court

to

ascertain the truth of the matters in controversy and do
justice between the parties.’”

Id. (quoting Fitzgerald,

120 R.I. at 246).
In Hazard v. East Hills, Inc., 45 A.3d at 1271, the
Supreme

Court

of

Rhode

Island

explained

that

“it

[is]

incumbent upon [the] plaintiff to come forth with a fair
explanation of the reason for the delay.”

In this case,

Peeler provides the following explanation for his delay in
bringing this lawsuit:
Between 2006 and 2010, Peeler was unable to find
an attorney that would follow through on filing
an action against KVH. . . . After 2006, Peeler
met with at least three other attorneys, two in
Florida and one in Rhode Island, in an attempt to
retain them to bring an action against KVH. . . .
In 2008 to 2009, Peeler was involved in a
foreclosure action and was forced to move out of
his home and move in with his mother-in-law. . .
. Between 2008 and 2010, Peeler was also involved
in a lawsuit wherein his partners in a flower
34

shop business sued him and his wife. . . .
Finally, in 2010, Peeler was able to retain legal
counsel
to
litigate
KVH’s
underpayment
of
commissions due him under the Agreement.
(Doc. # 37 at 4-5).
The

Court

instant

acknowledges,

case,

that

many

as

of

do

the

the

parties

preferred

in

the

sources

of

evidence that might once have assisted in ascertaining the
truth of the matters in controversy are now unavailable due
to the passage of time.

However, the Court does not find

that the staleness of this case is such that the Court
should

preclude

this

matter

from

proceeding

toward

a

resolution on the merits.
As

explained

above,

Rhode

Island

law

requires

both

negligence on the part of the plaintiff and prejudice to
the

defendant

as

prerequisites

to

applying

laches.

In

evaluating a plaintiff’s negligence, a court must consider
whether

the

unexplained
While

plaintiff’s
or

Peeler’s

certainly

delay

unjustified.
delay

lengthy,

in

it

is

in

asserting

Hazard,
initiating

not

without

45

a

A.3d

this

claim
at

is

1271.

action

was

explanation.

The

Court finds Peeler’s delay, occasioned partly by personal
financial
Motion

difficulties,

for

Summary

excusable

Judgment.

35

for
See

purposes

of

KVH’s

Andrukiewicz

v.

Andrukiewicz, 860 A.2d 235, 241 (R.I. 2004) (recognizing
the plaintiff’s delay in bringing suit as excusable “based
upon her testimony that she spent all her available funds
on tuition and could not afford an attorney”); Goff v. U.S.
Fid. & Guar. Co., 72 R.I. 363, 371 (1947) (“[It] has been
held that any excuse for delay, which excuse takes hold of
the conscience of the chancellor and makes it inequitable
to interpose the bar of laches, is sufficient.”).
With regard to the extent of prejudice suffered by KVH
due to the time lapse in this case, the Court notes that
Peeler has been prejudiced likewise; this is not a case
involving

a

plaintiff

who

stockpiled

relevant

documents

before lying in wait only to ambush the defendant after
some predictable destruction of more favorable evidence had
occurred.

As discussed in reference to Peeler’s Motion for

Adverse Inference, for instance, Peeler lacks documentation
-- once admittedly in his possession -- to demonstrate the
amount of training he completed for KVH.

The amount of

training performed by Peeler constitutes a central dispute
of material fact in this case and, as the plaintiff in this
matter, Peeler bears the ultimate burden of proving the
amount

of

damages

to

which

he

claims

he

is

entitled.

Peeler will continue to bear that burden with the added
36

challenge of utilizing decade-old evidence.
The

Court

accordingly

declines

to

find

bars Peeler’s breach-of-contract claim.
has

also

determined

limitations

applies

that

to

Rhode

Peeler’s

that

laches

Because the Court

Island’s

claim,

statute

KVH’s

of

Motion

for

Summary Judgment is denied.
C.

Peeler’s Motion for Summary Judgment

Peeler argues that summary judgment is appropriate on
his

breach-of-contract

claim

because

the

term

“dealer/account sales,” as provided in the Agreement, is
not

ambiguous,

and

because

KVH

failed

to

pay

Peeler

a

commission on all sales of KVH products from KVH to its
dealers and other customer accounts.

(Doc. # 34 at 6).

“To

claim

succeed

on

a

breach

of

contract

under

Rhode

Island law, a plaintiff must prove that (1) an agreement
existed between the parties, (2) the defendant breached the
agreement, and (3) the breach caused (4) damages to the
plaintiff.”

Barkan v. Dunkin’ Donuts, Inc., 627 F.3d 34,

39 (1st Cir. 2010).

As explained below, the Court finds

that the Agreement between KVH and Peeler is ambiguous and
therefore denies Peeler’s Motion for Summary Judgment.
1.

Ambiguity of Contract Language

“Determining

whether

a

contract
37

is

ambiguous

is

a

question of law for the Court.”

Dan Cake (Portugal) S.A.

v. CVS Pharmacy, Inc., 862 F. Supp. 2d 120, 124 (D.R.I.
2012).

“A contract is ambiguous only when it is reasonably

and clearly susceptible of more than one interpretation.”
Id. (quoting Rotelli v. Catanzaro, 686 A.2d 91, 94 (R.I.
1996)).

“If the terms are found to be unambiguous, . . .

the task of judicial construction is at an end and the
parties are bound by the plain and ordinary meaning of the
terms of the contract.”

Id. (quoting Zarella v. Minn. Mut.

Life Ins. Co., 824 A.2d 1249, 1259 (R.I. 2003)).

“Whereas

the

contract

construction

of

a

clear

and

unambiguous

presents an issue of law which may be resolved by summary
judgment,

an

ambiguous

contract

resolved on summary judgment.”

may

not

properly

be

Lennon v. MacGregor, 423

A.2d 820, 822 (R.I. 1980).
In

the

present

case,

the

Agreement

provides,

relevant part:
A. Commissions. [KVH] shall pay [Peeler] on all
technical training performed in the Territory to
RV, Automotive, entertainment coach, OEM, mass
merchant, dealers, and not to exclude any
additional pre-approved accounts, a commission
(“Commission”) as shown in Exhibit B, and will be
(sic) based on percentage of dealer/account
sales. A commission will be paid on all accounts
trained for the region listed in Exhibit B. The
Commission
will
be
considered
earned
when
Principal receives the Technical Training Report
38

in

upon completion by the end of each month.
A
report that supports trade show or other sales
activities by the agent may also be used to have
the commission considered earned upon “like”
completions. The Commission will be paid to the
Agent by the 20th of each month for the most
recently ended month.
(Agreement Doc. # 32-2 at 3) (emphasis added).
According

to

Peeler,

“dealer/account

sales”

is

an

unambiguous phrase meaning “sales from KVH to its customer
accounts and dealers direct.”

(Doc. # 34 at 7).

Peeler

further argues that this meaning “is easily apparent” upon
examination
refers.

of

Exhibit

B,

to

which

the

above

provision

Exhibit B provides:

Commission
The following is a listing of the sales
channels of [KVH] with the appropriate commission
to be paid to [Peeler] as outlined in Section IV,
Compensation.
Sales Channel

Commission Rate
per Training

Land Mobile Products Dealers Direct

.05%

Distributor

3.5%

Camping World

1%

(Agreement Doc. # 32-2 at 7).

Peeler argues that “the

plain and ordinary meaning of the term ‘sales channels of
[KVH]’ could not mean anything other than sales by KVH to

39

its

distribution

customer

accounts,

distributors.”
The
created

channels
such

--

direct

and

other

Camping

as

dealers

World

and

other

(Doc. # 34 at 7-8).

Court
merely

disagrees.
because

Although

the

ambiguity

litigants

not

about

disagree

is

the

meaning of a contract, the current dispute illustrates the
Agreement’s ambiguity convincingly.
that

the

relevant

language

While Peeler maintains

references

sales

by

KVH

to

dealers and other customer accounts, KVH contends that it
intended

the

phrase

“Dealer/Account

Sales”

to

mean

the

“sell through” activity from KVH’s dealers and distributors
to their customers or end users.
29 at 5-6).
term

(Doc. # 38 at 6; Doc. #

The Agreement contains no definition of the

“dealer/account

sales,”

elsewhere in the Agreement.

and

the

term

is

not

used

After reviewing the contract

language in its entirety, the Court finds that the term
“dealer/account

sales”

is reasonably

susceptible

to

more

than one meaning, and that it is therefore ambiguous.
Having determined that this integral contract term is
ambiguous,

the

Court

declines

to

consider

the

extrinsic

evidence offered by both parties that could be considered
in resolving the ambiguity.
recognized

by

the

Rhode

This principle was recently

Island
40

Supreme

Court

in

Inland

American Retail Management LLC v. Cinemaworld of Florida,
Inc., No. 2012-151-Appeal, 2013 WL 3020002, *5 (R.I. June
18, 2013).

In that case, the Rhode Island Supreme Court

explained:
Because the term “real estate taxes” as used in
the lease is neither defined within the document,
nor specifically governed by the statute, we are
satisfied
that
the
term
is
ambiguous
and
reasonably
susceptible
to
more
than
one
interpretation.
Thus,
although
contract
interpretation is a question of law, when the
contract terms are ambiguous, interpretation of
the
terms
becomes
a
question
of
fact.
Accordingly, at this stage of the proceedings -interpreting ambiguous contractual language -statutes and common-law principles should be
considered as only part of the surrounding
circumstances from which to discern the intent of
the parties. A resort to such outside sources is
not permitted to aid or explain the intended
meaning of the parties, unless and until the
contract language is found to be ambiguous.
However, in this case, because we conclude that
the language of the lease is ambiguous, we agree
with [appellant] that [the relevant statute] is
certainly one of several pieces of extrinsic
evidence that should be considered to resolve the
ambiguity. Nonetheless, it is not appropriate to
consider this evidence on a motion for summary
judgment because the intent of the parties is a
question of fact.
Id. at *5-6 (internal citations omitted).

Thus, at this

juncture the Court declines to determine the intent of the
parties and correspondingly declines to determine whether
KVH has breached its Agreement with Peeler; instead, in
light of the determination that a genuine issue of material
41

fact exists in the instant case, the Court denies Peeler’s
Motion for Summary Judgment.6
2. Commission Discrepancy -- 2.5%
The parties do not dispute that, in at least three
instances memorialized in Commission Invoices dated April
14, 2003, and July 11, 2003, KVH paid Peeler 2.5% rather
than 3.5% on certain dealer account sales.

(Invoice Doc. #

32-3 at 9, 13, 17; Doc. # 34 at 11; Doc. # 38 at 11).
Peeler testified that he did not notice this discrepancy
until 2012, after initiating the present action.
Dep. Doc. # 30-2 at 9).

(Peeler

KVH argues that, because Peeler

received the relevant Commission Invoices which “on their
face

evidence

the

fact

that

[Peeler]

was

paid

a

2.5%

commission on certain dealer account sales,” and cashed the
corresponding

commission

checks

without

question,

Peeler

has thus waived his claim for the additional 1% under Rhode
Island law.
“Waiver is the voluntary, intentional relinquishment
of a known right.

It results from action or nonaction.”

Sturbridge Home Builders, Inc. v. Downing Seaport, Inc.,
6

Correspondingly, the Court declines to examine the hotlydisputed issue of the number of trainings that Peeler
actually completed during the relevant time period.
As
previously explained, such a disputed factual issue cannot
properly be resolved by the Court at this juncture.
42

890 A.2d 58, 65 (R.I. 2005) (citations omitted).
party

claiming

contractual
issue.”
and

that

provision

there

Id.

has

has

the

been

burden

a
of

“The

waiver
proof

of

on

a

that

“A waiver may be proved indirectly by facts

circumstances

from

clearly inferred.”

which

Id.

intention

to

waive

may

be

“On summary judgment, the party

asserting waiver of a contract term has the affirmative
duty to produce evidence demonstrating the existence of an
issue of fact concerning the voluntary relinquishment of a
known right.”

Id.

“Further,

implied

waiver

of

a

legal

right

must

be

proved by a clear, unequivocal, and decisive act of the
party

who

(internal

is

alleged

quotation

to

and

have

committed

citation

waiver.”

omitted).

“An

Id.

implied

waiver may arise where a person against whom the waiver is
asserted

has

sufficiently

pursued
evidence

such
an

a

course

intention

to

of

conduct

waive

a

as

to

right

or

where his conduct is inconsistent with any other intention
than to waive it.”

Id.

In this case, KVH has provided evidence demonstrating
that (1) Peeler knew of his contractual right to receive a
3.5% commission rate for distributor sales (Agreement Doc.
# 32-2 at 7), (2) Peeler was provided Commission Invoices
43

contemporaneously with his paychecks which clearly provided
for only 2.5% commission on certain account sales (Invoice
Doc. # 32-3 at 9, 13, 17), and (3) Peeler admittedly did
not notice, let alone complain of, this discrepancy until
2012 -- nine years after he cashed the checks providing for
only

2.5%

commission

(Peeler

Dep.

Doc.

#

30-2

at

9).

Accordingly, KVH has presented evidence demonstrating the
existence of an issue of fact concerning Peeler’s voluntary
relinquishment

of

a

known

right;

this

evidence

is

sufficient to preclude granting Peeler’s Motion for Summary
Judgment as to the issue of the 1% commission discrepancy.
Sturbridge, 890 A.2d at 65; see also Haxton’s of Riverside,
Inc. v. Windmill Realty, Inc., 488 A.2d 723, 725-26 (R.I.
1985)

(“A

party’s

actions

can

resolve

the

question

of

whether he or she has knowledge of the right waived and
whether the waiver was voluntary.

As a general rule, the

question of whether a party has voluntarily relinquished a
known right is one of fact for a jury.”).
3.
Similar

Statement of Account
to

KVH’s

response

to

Peeler’s

argument

regarding the 1% discrepancy, KVH maintains that Peeler’s
conduct

in

cashing

his

paychecks

without

receiving

or

demanding to receive a “statement of account” constitutes
44

waiver of that contractual right as well.

However, with

regard to this alleged contractual breach, the Court finds
a waiver analysis to be unnecessary.
To the extent Peeler seeks summary judgment based on
KVH’s failure to provide Peeler with a monthly statement of
account, (Agreement Doc. # 32-2 at 3), the Court finds that
a genuine issue of material fact exists as to whether the
“backup

details”

attached

to

Peeler’s

paychecks

and

admittedly ignored by Peeler (Peeler Dep. Doc. # 30-2 at 4,
9; Invoice Doc. # 32-3) fulfilled this requirement under
the Agreement.
denies

In light of this factual dispute, the Court

Peeler’s

Motion

for

Summary

Judgment

as

to

this

issue.
4.

Statutory Interest

In his Motion for Summary Judgment, Peeler asserts his
entitlement “to prejudgment interest on his damage award
from the date of the breach by KVH” in accordance with
Rhode Island General Laws § 9-21-10.

(Doc. # 34 at 15).

That statute provides, in relevant part:
(a) In any civil action in which a verdict is
rendered or a decision made for pecuniary
damages, there shall be added by the clerk of the
court to the amount of damages interest at a rate
of twelve percent (12%) per annum thereon from
the date the cause of action accrued, which shall
be included in the judgment entered therein.
45

Post-judgment interest shall be calculated at the
rate of twelve percent (12%) per annum and accrue
on both the principal amount of the judgment and
the prejudgment interest entered therein.
This
section shall not apply until entry of judgment
or to any contractual obligation where interest
is already provided.
R.I. Gen. Laws § 9-21-10.
interest

to

Peeler

The Court finds that an award of

under

this

statute

would

be

inappropriate.
“Statutes

that

award

prejudgment

interest

generally

serve the dual purposes of encouraging the early settlement
of claims . . . and compensating plaintiffs for waiting for
recompense to which they were legally entitled.”

Martin v.

Lumbermen’s Mut. Cas. Co., 559 A.2d 1028, 1031 (R.I. 1989)
(citations omitted).

The award of interest in this case

would promote neither purpose.
At

least

once,

in

response

to

Peeler’s

demands

in

April of 2005, KVH offered “to further evaluate [Peeler’s]
claim,” provided Peeler would furnish KVH with “a copy of
the fully executed January 2003 agreement, as well as any
other documents upon which [he] rel[ied].”
Letter

Doc.

#

32-11

at

3).

Peeler,

(June 10, 2005
apparently

not

interested in pursuing KVH’s offer to further evaluate his
claim

at

documents.

that

time,

declined

to

provide

the

(Peeler Dep. Doc. # 30-2 at 19).
46

requested
Thus, the

Court finds that awarding prejudgment interest to Peeler
would not promote the statutory objective of encouraging
early settlement.

Furthermore, much -- if not all -- of

Peeler’s “waiting” regarding his claims in this matter can
be attributed to his own delay in filing this action.
Court

accordingly

interest

in

this

finds

no

case.

cause

See

to

Martin,

award
559

The

prejudgment

A.2d

at

1031

(declining to award interest under section 9-21-10 where an
award

“would

promote

neither

of

the

purposes”

of

the

statute).
5.
Peeler
pursuant

to

Attorney’s Fees
claims

to

section

(Doc. # 34 at 16).

be

entitled

9-1-45,

Rhode

to

attorney’s

Island

General

fees
Laws.

That statute provides as follows:

The Court may award a reasonable attorney’s fee
to the prevailing party in any civil action
arising from a breach of contract in which the
court:
(1) Finds that there was a complete absence of a
justiciable issue of either law or fact raised by
the losing party; or
(2) Renders a default judgment against the losing
party.
As Peeler is not a prevailing party with regard to his
Motion for Summary Judgment, the Court finds that he is not
entitled to statutory attorney’s fees at this juncture.
47

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

KVH Industries, Inc.’s Dispositive Motion for Summary
Judgment (Doc. # 29) is DENIED.

(2)

Plaintiff David Peeler’s Motion for Adverse Inference
(Doc. # 33) is DENIED.

(3)

Plaintiff David Peeler’s Motion for Summary Judgment
(Doc. # 34) is DENIED.

(4)

Plaintiff David Peeler’s Motion to Strike Defendant’s
Documents
Judgment

filed
is

in

GRANTED

Support
to

the

of

Motion

extent

for

that

Summary

the

Court

strikes the relevant subpoena responses as detailed
herein; the Motion is otherwise DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of July, 2013.

Copies: All Counsel of Record

48