ALTOM TRANSPORT, INC. v. WESTCHESTER FIRE INSURANCE COMPANY et al complaint

8/10/2019 ALTOM TRANSPORT, INC. v. WESTCHESTER FIRE INSURANCE COMPANY et al complaint

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Appendix

Case: 1:14-cv-09547 Document #: 1-1 Filed: 11/28/14 Page 1 of 209 PageID #:6


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2120 - Served

2220 - Not Served

2320 - Served

By

Mail

2420

- Served By Publication

SUMMONS

2121 - Served

2221 - Not Served

2321 - Served

By

Mail

2421 - Served By Publication

ALIAS- SUMMONS

2/28/11) CCG

NOO

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT,

CH NCERY

DIVISION

ALTOM TRANSPORT INC.

Name all parties)

v.

WESTCHESTER FIRE INSURANCE COMPANY and MICHAEL STAMPLEY

: L 1 t : ~ C H 1 7 5 6 6

CALENDAR/ROOM

06

TIME

~

N

D e c l a r a t o r y Jdgmt

. ___________________________

~ v 0t IL ;oo

RE EUVED

STATE OF ILLINOIS

OCT 3 2014

DEPT. OF

INSURANCE

CHICAGO ILLINOIS

( )SUMMONS

QALIAS

SUMMONS

To each Defendant:

YOU ARE SUMMONED and required to file an answer to the complaint in this case, a copy

of

which i

hereto attached,

or

otherwise file your appearance, and pay the required fee, in the Office

of

the

Clerk

ofthis Court

at

th

following location:

0

Richard J. Daley Center, 50

W.

Washington, Room :8 :0=2 J Chicago, Illinois 60602

0 District 2 - Skokie

5600 Old

Orchard

Rd.

Skokie, IL 60077

0

District 5 - Bridgeview

10220

S.

76th Ave.

Bridgeview, IL 60455

0 District 3 - Rolling Meadows

2121

Euclid

Rolling Meadows, IL 60008

0

District 6 - Markham

16501

S.

Kedzie Pkwy.

Markham, IL 60428

0 District 4 - Maywood

1500 Maybrook

Ave.

Maywood,IL 60153

0

Child Support

28 North Clark St., Room 200

Chicago, Illinois 60602

You must file within 30 days after service

of

this Summons, not counting the day

of

service.

IF YOU FAIL

TO

DO SO, A JUDGMENT BY DEFAULT MAY BE ENTERED AGAINST YOU FOR THE RELIEF

REQUESTED IN THE COMPLAINT.

To the officer:

This Summons must be returned by the officer

or

other person to whom it was given for service, with endorsemen

of service and fees, if any, immediately after service. I f ervice cannot be made, this Summons shall be

returned

so endorsed

This Summons may not he served later than 30 days after its date.

Atty.

No.:._5_8_13_9

Name: Emerson Law Group P.C.

Atty. for: Plaintiff Altom Transport, Inc.

Address: 541 West Diversey Parkway Suite 21 0-A

City/State/Zip: Chicago IL

60614

Telephone:

312-758-4301

WITNE SS --------------- -----

Clerk of Court

Date of servic9:Cnmnnr R ROWiU 0CJ 3 0 01

; ::.

:z

0

Other (specifY)

{ W:

.

U1

0'\

Service via email from the opposing party/counsel

will

be

accepted at:

[email protected]

by consent pursuant to Ill. Sup. Court Rules

11

and 131.

ProSe Only:

0

I have read and agree to the terms of the

Clerk s Office Electronic Notice Policy

and choose to opt

in to electronic notice from the Clerk's office for this case

at

this email address:

DOROTHY BROWN, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS



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) : ~ v ( : ( 11 v

RE EDVED

STATE OF

ILLINOIS

OCT 3 ) 2014

DEPT. OF

INSURANCE

CHICAGO

ILLINOIS

IN THE CIRCUIT COURT

OF COOK COUNTY

ILLINOIS

COUNTY DEPARTMENT CHANCERY DIVISION

ALTOM TRANSPORT, INC.,

Plaintiff,

v.

WESTCHESTER FIRE INSURANCE

COMPANY,

and

MICHAEL STAMPLEY,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

No.:

20VCH17566

CALENDAR/ROOM

06

TIME 00 :00

Dec l a r a t o ry Jdgmt

COMPLAINT

FOR

DECLARATORY

JUDGMENT

Plaintiff, ALTOM TRANSPORT, INC. ( Altom Transport ), by and through its

undersigned attorneys, states the following for

its

Complaint for D e c l a r a t o r y : ~ u d g m e n t aiSinst

:,r:

--

- C

WESTCHESTER FIRE INSURANCE COMPANY ( Westchester ) : a n d ~ . M I C 1 3 1 A E I T ;

:- :;j :.:.: : 1

-

w ~ = =

STAMPLEY ( Mr. Stampley ), pursuant to 735 ILCS 5/2-701: ;;j

_

.

0

;;;

.':J:

Altom Transport

is

a corporation licensed to do business in

,_he

"State

of::flli JP. s

_ ;,

I

and does business in Cook County.

.t:

2.

Westchester is

an

insurance company licensed to transact business

in

the State of

Illinois and does business in Cook County. This declaratory action concerns coverage

obligations owed by Westchester to Altom Transport under Westchester insurance policy

number G250209QA 004 with a policy period of August 3, 2013 to August 3, 2014.

3. Mr. Stampley

is

a resident of Cook County

in

the State of Illinois. As the Plaintiff

in

an

underlying lawsuit more fully described below, Mr. Stampley is named as a necessary

party-defendant to this declaratory action.

4.

Venue

is

proper

in

this Court pursuant to 735 ILCS 5/2-101 and 102.



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5. An actual and justiciable controversy exists between Altom Transport and

Westchester as to whether Westchester owes insurance coverage obligations to its policyholder,

Altom Transport.

6

Altom Transpmt is a federally licensed tank-truck motor carrier (U.S. DOT

Number 297572 and MC-187735) and hauls liquid commodities (such as petroleum products and

chemicals) throughout the United States, Mexico and Canada.

7 Altom Transport has both employee drivers and owner-operator drivers. The

owner-operators lease their own trucks and services to Altom Transport

as

independent

contractor drivers. Altom Transport and the owner-operators enter into lease agreements for

Altom Transport's use

ofthe

owner-operator's truck and services.

8 Mr. Stampley was an owner-operator driver for Altom Transport from September

28, 2012 to March 24, 2014. As such,

Mr.

Stampley and Altom Transport entered into a lease

agreement for use

of

Mr. Stampley 's truck and driving services. A copy of the lease agreement

is attached as Exhibit A. An Illinois ICC EL-l Form identifying (a) Mr. Stampley and (b) his

2007 Peterbilt tractor was approved by and filed with the ICC on October 10, 2012 and listed

Stampley's payment as 70%

or

sic) gross and/or (other terms). The lease agreement referred

to the signed and filed EL-l as Appendix A to the lease.

9 The lease agreement with Mr. Stampley was terminated by Altom Transport on

March

24,2014

for service related failures. Three (3) months later, Mr. Stampley filed a lawsuit

against Altom Transport in the United States District Court for the Northern District

of

Illinois,

Eastern Division, No. 1:14-cv-03747 (the Stampley Action ). The Complaint was filed on May

21,2014.

2



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I

0

The Stampley Action was filed by Mr. Stampley individually and on behalf of a

purported class of former and undisclosed Altom Transport owner-operator drivers. The

Complaint was titled Class Action Complaint for Declaratory and Injunctive Relief and

Damages . The Stampley Complaint is attached as Exhibit

B

II. Pursuant to the lease agreement and ICC

EL-l,

Mr. Stampley was to be paid 70%

of the gross Altom Transport received from Mr. Stampley's truck and services. In his

Complaint, Mr. Stampley generally claims that he and other owner-operator drivers similarly

situated should have been paid an additional percentage (70%) of funds stemming from expenses

such as internal and external tank-trailer washes and that Altom Transport wrongfully withheld

such payments.

12 In the bulk tank-truck motor carrier industry tank washes are routinely required to

ensure that residue from a prior shipment does not contaminate the subsequent load placed

in

the

tank trailer. These services are performed by outside vendors -- not Altom Transport and not the

drivers. Mr. Stampley makes his claim despite the fact that Altom Transport owns all the tank

trailers provided to Mr. Stampley and others,

and

that the tank wash and other tank-trailer related

charges are expenses incurred by Altom Transport that are then passed through to the shipper (or

other party) for reimbursement.

13 Mr. Stampley alleges three causes of action in his Complaint: I) that the lease

agreement used by Altom Transport was improper and wrongful insofar as it did not conform

with the Federal Motor Carrier Safety Administration Truth-in-Leasing Act, 49

USC 14102 and

49 C.F.R Section 376.12; (2) that Altom Transport wrongfully failed to pay Mr. Stampley and

other owner-operators a 70% share of tank-related expense

items-

including tank wash charges;

3



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(3) and that Altom Transport purportedly wrongfully enriched itself by not paying Mr. Stampley

and other drivers the 70% of these charges. Mr Stampley is seeking monetary damages, non

monetary damages and/or injunctive relief. Altom Transport has denied all

of

Mr. Stampley's

claims.

14 On

May 23, 2014 Altom Transport immediately tendered the Stampley Action to

Westchester, requesting that Westchester provide it with a defense and indemnity.

15

Westchester denied Altom Transport's tender and request in correspondence

of

July 14,2014. Westchester relied upon various exclusions in its policy as grounds for its refusal

to

defend or indemnify Altom Transport. Westchester's denial letter

is

attached as Exhibit C.

16

Westchester has neither defended Altom Transport under a reservation

of

rights

nor filed a declaratory judgment action seeking a judicial determination of its obligations to

Altom Transport.

17. As a result of Westchester's refusal to defend, Altom Transport retained counsel,

has funded its own defense in the Stampley Action, and has now been forced to initiate this

declaratory action.

18. On October, 14, 2014, Mr. Stampley's counsel made a written final time-

demand for settlement

in

the amount

of 1.9

million. A copy

of

this letter

is

attached

as

Exhibit

D

19. The $1.9 million settlement demand was within Westchester's policy limits and

was set to expire on October 17, 2014 at 9:00a.m.

20. In correspondence dated October 15, 2014, Altom Transport tendered the $1.9

settlement demand from Mr. Stampley to Westchester requesting that Westchester reconsider its

4



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28. The Westchester policy is a claims made policy, meaning it covers claims made

during the policy period.

29. The Westchester policy contains the following insuring agreement:

3.

The Insurer [Westchester] shall pay the Loss of the Company

[Altom Transport] which the Company becomes legally obligated

to

pay by reason of a Claim first made against the

ompany

during the Policy Period or,

if

applicable, the Extended Period,

and reported to the Insurer pursuant to subsection E 1 herein, for

any Wrongful Act taking place prior to the end of the Policy

Period.

30. The Westchester policy includes the following relevant definitions:

1. Claim means:

c A civil proceeding against any Insured seeking

monetary damages or non-monetary or injunctive

relief, commenced

by

the service of a complaint

or similar pleading;

9.

Wrongful Act means any actual or alleged error, omission,

misleading statement, misstatement, neglect, breach ofduty

or act allegedly committed or attempted by

c the Company, but only with respect to Insuring Clause 3

of this Coverage Section.

Endorsement No. 14 to the Westchester policy amends the definition

of

Loss in

relevant part

as

follows:

Loss means damages, judgments, settlements, pre-judgment or

post-judgment interest awarded by a court ....

31. The Westchester policy includes the following relevant duty to defend coverage:

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I. It shall be the duty o the Insurer and not the duty o the

Insureds to defend any Claim. Such duty shall exist even

i any o the allegations are groundless, false or fraudulent.

The Insurer s duty to defend any Claim shall cease when

the Limits o Liability have been exhausted by the payment

o Loss including Costs, Charges and Expenses.

COUNT I

(Wrongful Refitsa o Duty to Defend)

32. Altom Transport re-alleges the allegations contained in Paragraphs through

31

o

its Complaint for Declaratory Judgment as

i

fully set forth herein.

33. The Stampley Action alleges a Loss by the Company as those terms are defined

in the Westchester policy.

34 The Stampley Action alleges a Claim as that term

is

defined in the Westchester

policy, and the Claim was made within the Policy Period.

35 The Stampley Action alleges a Wrongful ct by the Company as those terms are

defined in the Westchester policy.

36. The allegations o the underlying Complaint fall within, or potentially within, the

coverage provided by the Westchester policy. Therefore it

is

the mandatory duty o Westchester

( not the duty o the Insured ) to defend any Claim. Under the express language o the policy,

Westchester has this duty to defend even i the underlying allegations are groundless, false or

fraudulent.

37. To the extent Westchester relies on policy exclusions to deny coverage, it

is

Westchester's burden o establishing that the applicability o those exclusion(s) is clear and free

from doubt. Westchester has not met this burden.

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38 The allegations contained in the Stampley Action are covered, or at the very least

potentially covered, by the Westchester policy and, as such, Westchester owes a duty to defend

Altom Transport in the Stampley action.

WHEREFORE, Altom Transport respectfully requests that this Court find that the

Westchester policy provides coverage for the Stampley Action; that Westchester owed Altom

Transport a duty to defend; that Westchester breached its contractual obligation to defend Altom

Transport, and that Westchester is obligated

to

reimburse Altom Tranport its defense costs paid

to date to be incurred in the future.

ount II

Imposition o Estoppel)

39 Altom Transport re-alleges the allegations contained in Paragraphs 1 through 38

o its Complaint for Declaratory Judgment as

i

fully set forth herein.

40. The allegations contained

in

the Stampley Action fall within or potentially within

the coverage afforded to Altom Transport under the Westchester policy. As such Westchester

owed Altom Transport a duty to defend.

41. However, on July 14,2014, Westchester denied it owed any coverage obligations

to Altom Transport stemming from the Stampley Action.

42. Westchester did not defend Altom Transport under a reservation o rights or file a

declaratory judgment action to secure a determination

o

any coverage obligations, as required

under Illinois law.

43. Westchester s denial o coverage was incorrect and it wrongfully failed to initiate

a declaratory judgment action to conclusively determine its coverage obligations to Altom

8



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Transport. As such, under clear and unequivocal Illinois law, Westchester is now estopped from

asserting any defenses to coverage for the Stampley Action.

WHEREFORE, Altom Transport respectfully requests that this Court find that

Westchester has breached its duty to defend the Stampley action, and that it is estopped from

asserting any coverage defenses now or in the future.

OUNT III

Section 215 ILCS 5/155 Claim)

44. Altom Transport re-alleges the allegations contained in Paragraphs 1 through 43

o its Complaint for Declaratory Judgment as i fully set forth herein.

45. Westchester s (1) wrongful denial

o

coverage; (2) failure to defend under a

reservation

o

rights or file a declaratory judgment action; (3) complete disregard

o

Altom

Transport s communication requesting a reconsideration o the denial o coverage and settlement

within the policy limits; (4) forfeiture o the oppmtunity to settle within the policy limits on

behalf

o

Altom Tranport; and (5) exposing its insured to an excess settlement or judgment,

constitute unfair and improper claim practices pursuant to Section 215 ILCS 5 55

o

the Illinois

Insurance Code and entitles Altom Transport to all available relief thereunder.

9



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WHEREFORE, Altom Transport respectfully requests that this Court find that

Westchester has engaged in unfair claims practices and is liable for damages under 215 ILCS

5/155 including, but not limited to, an award o its attorney s fees and costs.

Eric J Emerson

Brett

L

Warning

Emerson Law Group P.C.

561

West Diversey Parkway

Suite 210-A


312.758.4301

[email protected]

Firm ID 58139

Respectfully Submitted,

ALTOM TRANSPORT INC.

10



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ALTOM TRANSPORT, INC.

Independent Contractor Agreement

For Owner-Operator

THIS

AGREEMENT is made this 28TH day ofSEPTEMBER 2012, in the State of

Illinois, County of Cook, by and between ALTOM TRANSPORT, INC., a regulated for

hire motor carrier, an Illinois corporation ( ALTOM

TRANSPORT ) and

MICHAEL

STAMPLEY( CONTRACTOR ), as follows:

WHEREAS ALTOM TRANSPORT is engaged in business to provide trucking

service for different customers and intends

to

contract with CONTRACTOR in the

performance

of

certain tasks;

WHEREAS ALTOM TRANSPORT's principal place ofbusiness is located at the

following address:

4243

S.

Knox Avenue


(800) 327-8903

WHEREAS

CONTRACTOR's principal place of business is located at the follow-

ing address:

15129 South

Grant Street

Dolton, Illinois 60419

708-849-6265

WHEREAS CONTRACTOR is doing business as a [check one]:

D Partnership X Sole Proprietorship

Corporation

PAGE OF

PAGES)



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- .,

Now

THEREFORE

in consideration o the mutual covenants herein contained, the

sufficiency

o which

is

acknowledged,

it is

agreed

as

follows:

During the term

o

this Agreement, CONTRACTOR shall provide ALTOM

TRANSPORT

transportation related services and the use

o

the equipment set forth

below or in an appendix (the Equipment ). CONTRACTOR represents and warrants

that CONTRACTOR has title to or is authorized to contract the Equipment and services

to ALTOM TRANSPORT. Upon taking possession

o

the Equipment from

CONTRACTOR, ALTOM TRANSPORT shall furnish to CONTRACTOR a receipt for

Equipment, which shall constitute the receipt required by 49 C.F.R. 376.1l(b). Upon

termination o this Agreement, CONTRACTOR shall execute a similar receipt for

equipment

as

the written receipt for the return o the Equipment by CARRIER to

CONTRACTOR; provided, however, that the Agreement and ALTOM TRANSPORT's

obligations thereunder shall expire upon the written notice

o

termination regardless

o

whether CONTRACTOR submits the receipt required under this provision.

Year Make Serial No.

Unit

2007 PETERBILT

1XP5DB9X27N730834

B439

1 Effective Date

This Agreement shall become effective upon signing by both parties and

shall remain in effect for one (1) year from date

o signing, and shall automatically

renew for additional like periods.

2. Termination

This Agreement may be terminated:

A Without cause, upon either party giving the other thirty (30) days'

prior written notice; or

B For cause, immediately, upon material breach

o

any term

o

this

Agreement by either

o

the parties.

C

Upon termination o this agreement CONTRACTOR understands

and agrees that the business, contacts, policies, manuals, literature,

price lists, marketing strategies, customer lists, procedures, systems,

PAGE OF PAGES)



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'

records and any and all information, o any type, pertaining to the

operations o ALTOM TRANSPORT, whether or not contributed by

CONTRACTOR, in whole or in part, are or become the proprietary

information and property o ALTOM TRANSPORT.

CONTRACTOR agrees to maintain the confidentiality

o

all

such

information and documents. On termination or cancellation o this

Agreement, for uny reason, CONTRACTOR shall promptly return

all

such documents, literature and information to ALTOM

TRANSPORT and CONTRACTOR shall immediately discontinue

use o or reference to ALTOM TRANSPORT's name and

identification and immediately remove any and all signs and U.S.

Department o Transportation ( DOT ) permit numbers which refer

to ALTOM TRANSPORT. ALTOM TRANSPORT may withhold

final settlement from CONTRACTOR pending full compliance with

this condition.

3

Registration/Licensing o ALTOM TRANSPORT

A ALTOM TRANSPORT is a for hire motor carrier authorized to

transport property pursuant to licenses issued by the FMCSA and

other federal and state operating authorities and licenses.

B ALTOM TRANSPORT will use said Equipment in its business as a

motor carrier, under its various certificates or permits which it now

holds or which it may subsequently acquire, where such are

required.

Such Equipment furnished to ALTOM TRANSPORT

shall be exclusively used in ALTOM TRANSPORT's business to

the extent required by

all

applicable laws and regulations. Said

Equipment shall, during the term o this Agreement, be under

ALTOM TRANSPORT's exclusive possession, use and control,

to

the extent contemplated by and required by all applicable federal and

state laws and regulations relating to the operation o leased motor

vehicle equipment by motor carriers. The above is not intended to

prevent Contractor from entering into contracts with other

companies to the extent that such agreements

do

not conflict

with this contract or any other agreements between the parties

to

this agreement. ALTOM TRANSPORT assumes full responsi-

bility for the operation o said Equipment

as

to all third parties and

the public at large. However, this shall in no way modify, alter or

affect CONTRACTOR's status as an Independent Contractor and

not

an employee o ALTOM TRANSPORT. Nothing in this Agree-

ment shall be deemed

as

a delegation o ALTOM TRANSPORT's

PAGE 3 OF PAGES)



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duties

as

a common or contract carrier to CONTRACTOR insofar

as

the public or any governmental or regulatory body may be

concerned. The terms o this Agreement are merely an assignment

and distribution o various costs arising out o the operations to be

conducted pursuant to this Agreement, between the parties to this

Agreement.

4 Ownership

o

Equipment

The CONTRACTOR declares that it holds title to (or is otherwise legally

entitled to lease) said Equipment and does lease

to

ALTOM TRANSPORT the

Equipment described in the Illinois Commerce Commission ( ICC ) Equipment

Lease form attached to this Agreement as Appendix A, and made a part hereof.

5

Name

on

CONTRACTOR s Equipment

The CONTRACTOR agrees to display ALTOM TRANSPORT'S business

name on all Equipment covered by this Agreement. Any such display o business

name and address shall comply with applicable law and with the rules and

regulations

o

the DOT.

6 Availability and Scheduling

The CONTRACTOR is not required by ALTOM TRANSPORT to perform

services or be available to perform services at specific times or according to a

schedule or for a number o hours specified by ALTOM TRANSPORT. However,

pickup or delivery times specified by a shipper, receiver, broker, or other party

that owns or controls a shipment shall not be deemed specified by ALTOM

TRANSPORT.

7 Licensing and Operating Costs

A LICENSES. The CONTRACTOR shall pay all costs o licensing

and operating the Equipment (except when federal or state law or

regulation requires

ALTOM TRANSPORT to pay), and no costs o

such licensing or operating shall be separately reimbursed by any

other person or entity. CONTRACTOR shall have and maintain a

current and valid Commercial Drivers License ( CDL ) along and

shall at all times comply with the DOT standards, rules, and

regulations.

B

EQUIPMENT. The CONTRACTOR agrees that the Equipment

described herein will be kept and maintained in first -class condition

PAGE 4 OF PAGES)



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,

and repair at CONTRACTOR s sole expense. CONTRACTOR

agrees

to

pay all o the expenses incurred in operating the Equipment

which

is

the subject o this Agreement, without limitation, including,

but not limited

to,

those items enumerated in 49 C.F.R. 376.12(e),

including but not limited to, cost

o

fuel, fuel taxes, empty miles,

permits o all types, tolls, ferries, detention, accessorial services,

base plates and licenses, and the unused portion o such items.

CONTRACTOR shall also ensure compliance with registration with

the International Fuel Tax Association and compliance with all

applicable rules and regulations. Upon failure o CONTRACTOR to

make such payments,

ALTOM TRANSPORT may avail itselfo any

remedies described in Paragraph 2) herein or elsewhere in this

Agreement.

C.

SAFETY COMPLIANCE

CONTRACTOR warrants that the Equip-

ment leased herein complies with all

o

the required safety rules and

complies with all rules and regulations o the United States

Department

o

Transportation, and any and all federal, state or local

regulatory bodies having jurisdiction over the operation o said

Equipment, and that all taxes, o any nature, assessable against the

leased Equipment or

its

operation have been paid. All costs incurred

in connection with causing the Equipment leased hereunder to

comply with said rules and regulations and any loss, damage or

expense o any nature, whatsoever, which shall result from

CONTRACTOR s failure to ensure such compliance, shall

be

borne

by CONTRACTOR. Upon failure o CONTRACTOR to promptly

and immediately ensure such compliance and pay such costs or

expenses, ALTOM TRANSPORT may, at its exclusive option,

effect such compliance, pay such costs or expenses, and deduct the

amount o such payment, together with any administrative expenses

incurred in

so

doing, from any monies due or which may become

due to CONTRACTOR pursuant to this Agreement. Before making

any such deduction, ALTOM TRANSPORT shall give CON-

TRACTOR an itemized statement, setting forth the amount and allo-

cation o any such deductions.

D LICENSE PLATES

CONTRACTOR shall purchase and pay for all

license plates necessary for the operation o the Equipment leased

herein, in

CONTRACTOR s name, and said license plate(s) shall

remain the sole property o CONTRACTOR. Alternatively, at

ALTOM TRANSPORT s election, ALTOM TRANSPORT may

purchase such license plate(s) for the Equipment leased herein in

ALTOM TRANSPORT s name, and said license plate(s) shall then

PAGE 5

O

PAGES)



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. .

E.

F.

remain the sole property o ALTOM TRANSPORT. In such event,

CONTRACTOR shall reimburse ALTOM TRANSPORT for the

cost o all license plate(s). Then, upon cancellation o this

Agreement,

to

the extent that such license plate(s) are unexpired and

ALTOM TRANSPORT

is

able to receive a refund for the unexpired

portion thereof or actually uses said license plate(s) in its business,

in any manner, CONTRACTOR shall receive a pro rata refund for

the unexpired portion o said license plate(s), to the extent that

CONTRACTOR has already paid ALTOM TRANSPORT for said

unexpired portion o said license plate(s).

CHARGES. Neither CONTRACTOR nor any personnel furnished by

CONTRACTOR shall charge any purchases, o any nature,

to

ALTOM TRANSPORT. Should CONTRACTOR or its personnel,

in violation

o

this Paragraph, charge any purchases to ALTOM

TRANSPORT, ALTOM TRANSPORT shall have the right to set off

and deduct the amount o any such charges, together with any

administrative expenses incurred, from any monies due or which

may become due to CONTRACTOR pursuant to this Agreement and

to avail itself o any other remedies described elsewhere in this

Agreement ALTOM TRANSPORT shall provide CONTRACTOR

written itemization and documentation o

all

charge backs where

such documentation

is

necessary to verif y the validity o the charge.

ADVANCES.

In the event that ALTOM TRANSPORT shall be re

quired to make any advances or payments for and/or on behalf o

CONTRACTOR s obligation for necessary operating expenses or

repairs on said Equipment, then ALTOM TRANSPORT shall have

the right to withhold an equivalent sum, plus any administrative

expenses asserted by ALTOM TRANSPORT in making such

advances, as a set-off, from funds due CONTRACTOR as rental

payment hereunder, or from any other sums which ALTOM

TRANSPORT may owe to CONTRACTOR, to secure the repay

ment o any such advances or payments. ALTOM TRANSPORT

shall provide CONTRACTOR written itemization and

documentation o all charge backs where such documentation is

necessary

to

verif y the validity o the charge. CONTRACTOR

hereby authorizes irrevocably any agent o any court o record to

appear for CONTRACTOR in such court and confess judgment,

without process, in favor o ALTOM TRANSPORT, for such

amounts o any advance or payment which ALTOM TRANSPORT

has made on behalf o CONTRACTOR which remains unpaid,

together with reasonable costs o collection, including attorneys

PAGE OF PAGES)



21/209

fees, and to waive and release all errors which may intervene in any

such judgment, hereby ratifying and confirming all that said attorney

may do by virtue hereof.

G

ALTOM

TRANSPORT

NOT

LIABLE ALTOM TRANSPORT

shall not, in any way, be liable for fire, theft, loss or damage to the

Equipment leased hereunder, unless the cause

of

such loss was

solely that

of

Altom Transport.

H. INSURANCE It is recognized that the

DOT

and various other

regulatory bodies require the carrier under whose certificates or

permits leased Equipment is being operated to be responsible

to

the

public with respect to such Equipment while same is being operated

under its authority. ALTOM TRANSPORT will file, or has on file,

with the

DOT

and any other regulatory body having jurisdiction over

its operations, evidence

of

insurance in such amounts as may be

required

by

law or regulation

of

said agencies, and will continuously

maintain in effect insurance in such amount.

I.

VEHICLES

CONTRACTOR shall ensure that all Equipment and

Vehicles utilized pursuant to this agreement shall at all time adhere

to applicable DOT standards. CONTRACTOR agrees to hold

harmless and indemnify ALTOM TRANSPORT for any non

compliance violations with the above standards.

J CHARGEBACKS. ALTOM TRANSPORT shall charge back to

CONTRACTOR at the time

of

payment or settlement, any liability

or expense ALTOM TRANSPORT has incurred or paid that, under

this Agreement or any addendum to this Agreement,

CONTRACTOR is obligated to bear. Such expenses shall be

deducted from the amount

of

CONTRACTOR s compensation and

shall include those expenses set forth in this Agreement. The

amount

of

each item to be charged back to CONTRACTOR shall be

computed based on the actual cost or expense incurred by ALTOM

TRANSPORT and any administrative fee or mark-up disclosed in

this Agreement or any addendum thereto. ALTOM TRANSPORT

shall provide CONTRACTOR written itemization and

documentation

of

ail charge backs where such documentation

rs

necessary to verify the validity

of

the charge.

PAGE 7 OF PAGES)



22/209

8. Insurance/Benefits/Warranties

A.

INSURANCE COVERAGES. CONTRACTOR shall carry, at its own

expense, the following insurance coverages with the described

minimum limits:

1

Non-Trucking Liability. CONTRACTOR shall procure,

carry, and maintain public liability and property damage

insurance which shall provide coverage

to

CONTRACTOR

whenever the Equipment is not being operated

on

behalf of

ALTOM TRANSPORT in a combined single limit ofnot less

than One Million Dollars ( 1,000,000) for injury or death to

any person or for damages to property in any one occurrence.

In addition, such coverage shall be primary to any other

insurance that may be available

from

ALTOM

TRANSPORT. CONTRACTOR shall be responsible for all

deductible amounts and for any loss or damage in excess

of

the policy limit.

2 Workers Compensation Coverage. CONTRACTOR shall

maintain workers' compensation coverage and Occupational

Disease coverage for CONTRACTOR, its agents, servants

and employees.

As

an independent contractor,

CONTRACTOR is aware that costs and liabilities associated

with work related injuries are the sole responsibility

of

the

CONTRACTOR. f CONTRACTOR fails to keep in

force/said insurance, contractor thereby elects to opt out of

the state workers compensation act of the state(s) in which

contractor operates.

3) Other Insurance. In addition to the insurance coverages

required under this Agreement, it is CONTRACTOR'S

responsibility to procure, carry and maintain any fire, theft,

uninsured and/or underinsured motorist, and physical damage

(collision), or other insurance coverage that CONTRACTOR

may desire for the Equipment or for CONTRACTOR's health

care or other needs.

As

provided in this Agreement,

CONTRACTOR holds CARRIER harmless with respect to

loss of or damage

to

CONTRACTOR's Equipment, trailer, or

other property, and CARRIER has no responsibility to

procure, carry, or maintain any insurance covering loss of or

damage to CONTRACTOR's Equipment, trailer, or other

property. CONTRACTOR acknowledges that CARRIER

PAGE OF PAGES)



23/209

may, and CONTRACTOR hereby authorizes CARRIER to

waive and reject no-fault, uninsured, and underinsured

motorist coverage from CARRIER s insurance policies

to

the

extent allowed under Illinois law (or such other state law

where the Equipment

is

principally garaged), and

CONTRACTOR shall cooperate

in

the completion o

all

necessary documentation for such waiver, election, or

rejection.

B.

CERTIFICATES

O

INSURANCE CONTRACTOR will furnish

ALTOM TRANSPORT an insurance certificate for all required

coverages shown above naming ALTOM TRANSPORT

as

an

additional insured on the Non-trucking liability coverages.

C.

o

BENEFITS

CONTRACTOR further understands and agrees that

CONTRACTOR and CONTRACTOR s subcontractors, agents or

employees are not entitled

to

any employee benefits granted

to

ALTOM TRANSPORT s employees, and CONTRACTOR shall

indemnify and hold

ALTOM TRANSPORT forever harmless from

any and all liabilities (including expense and attorneys fees) and all

costs, loss, expenses or damages arising from employee

compensation or benefits, unemployment, Social Security or any

other tax deduction or any employee benefits including, but not

limited to, group accident and health insurance or any workers com

pensation or occupational disease claims, injuries to or omissions

o

CONTRACTOR or CONTRACTOR s subcontractors, agents or

employees for failure to comply with the terms and obligations o

this Agreement.

D CONTRACTOR NOT COVERED

It is

expressly understood and

agreed that, because o CONTRACTOR s independent contractor

status, ALTOM TRANSPORT is not obligated to carry any

insurance covering CONTRACTOR, including workers

compensation and occupational disease insurance, and that

CONTRACTOR shall be responsible for the payment

o

premiums

on any health, liability, or accident insurance carried by CON

TRACTOR for

its

protection, or the protection o its subcontractors,

agents and employees.

E. DRIVERS QUALIFIED CONTRACTOR warrants that CONTRAC

TOR will furnish to operate all Equipment leased pursuant to this

Agreement only drivers or personnel who are qualified and

competent. CONTRACTOR agrees that all drivers and personnel

PAGE 9 O PAGES)



24/209

furnished will be required

to

meet all o the rules and regulations o

the United States Department o Transportation, and any other

regulatory body having jurisdiction as to safety, hours o service,

inspection and maintenance, the taking o physical examinations,

and furnishing a certificate therefore. All drivers and personnel will

be required to comply

as

to the qualifications, training program, drug

and alcohol testing and safety rules o the United States Department

o Transportation, and any other body having jurisdiction. It

is

further agreed that all drivers and personnel furnished by

CONTRACTOR shall comply with all rules and regulations

prescribed by any regulatory body having jurisdiction over the

operations to be conducted pursuant to this Agreement.

CONTRACTOR will ensure that all records pertaining to the

foregoing will be furnished to ALTOM TRANSPORT, in order that

ALTOM TRANSPORT can keep and maintain such records in

accordance with the rules and regulations o all regulatory bodies

having jurisdiction over these operations.

F. FINES AND PENALTIES.

ALTOM TRANSPORT shall not be re-

sponsible for any fine, expense or costs incurred

by

CONTRACTOR

or any drivers or personnel furnished by CONTRACTOR, by reason

o its or their violation of, or failure to adhere to, any federal or state

law, local ordinance or regulation, or rule or regulation o any

federal, state or local regulatory body having jurisdiction; provided,

however, that ALTOM TRANSPORT agrees to pay

all

fines and

penalties for inadequacies in operating authorities or licenses where

it

is

mandatory that such be issued in ALTOM TRANSPORT s

name. ALTOM TRANSPORT shall be responsible for fmes for

overweight or over-dimension trailers when trailers are pre-loaded,

sealed or the load

is

containerized, or when the trailer or lading

is

otherwise outside o CONTRACTOR s control, except when such

fine shall be the result o an act or omission o CONTRACTOR or

personnel furnished by CONTRACTOR.

G.

CONTRACTOR s PERSONNEL. As between ALTOM

TRANSPORT and CONTRACTOR, except as may be otherwise

required by law or regulation, CONTRACTOR shall be solely

responsible for the direction and supervision o

all

personnel

furnished by CONTRACTOR in connection with this Agreement,

including, but not limited to the selection, hiring, firing, supervising,

directing, training, setting wages, hours and working conditions,

paying and adjusting grievances. As between CONTRACTOR and

ALTOM TRANSPORT only, CONTRACTOR shall be solely and

PAGE 1

OF 22 PAGES



25/209

exclusively responsible for all aspects of the operation of the

Equipment leased hereunder.

9 ompensation

A The compensation and additional terms affecting payment .of that

compensation are stated in A P P E N D I X ~ ' ' J \ . , attached to this

Agreement and made a part hereof. .......

B ALTOM TRANSPORT sfiall---settie with CONTRACTOR

with respect to services

provided under this

Agreement

within 15 calendar days after CONTRACTOR s

submission,

in

proper

form, of those

documents

necessary for ALTOM TRANSPORT to secure

payment

from

its

customers, including

the

signed

freight

bill,

delivery

receipt

or bill of lading, and

properly

completed

logs

as required by

the

DOT. In order that

CONTRACTOR may verify the accuracy of all payments

made pursuant to this Agreement,

where payment

is

predicated

upon

a percentage

of

gross revenues, ALTOM

TRANSPORT

shall present

CONTRACTOR

with copies of

rated freight

bills,

or

a

computer-generated

document

containing

all

of

the

same information, for

all

shipments

transported

in or with Equipment

leased pursuant to

this

Agreement.

CONTRACTOR

shall have the

right

to

examine copies

of

ALTOM TRANSPORT s tar iffs

or

rate

schedules

at ALTOM TRANSPORT s

home

office

during

reasonable business hours. In those circumstances

when CONTRACTOR is given a computer-generated

document rather than a copy of a

freight

bill,

CONTRACTOR shall have

the

right to examine

the

source document s) from which such computer-gener

ated

information

was compiled,

under the

same

conditions. However, ALTOM TRANSPORT

shall

have

the

right

to

block

out

or obliterate all references

on

such

freight bills,

source

document s), tariffs and rate

schedules as to the identity

of

customers, shippers and

consignees. CONTRACTOR shall have thirty (30) days

from

receipt

to contest, in

writing,

the information

contained on any

rated

freight bill or computer

generated

document.

Following

this

thirty (30) day

period, CONTRACTOR shall waive

all

rights to contest



26/209

. .

the validity

or

accuracy of any/

all

payments

made

pursuant to

this Section

9.

With

respect to final

settlement upon

termination

of this

Agreement the

failure on the part of CONTRACTOR to remove and

return

to

ALTOM TRANSPORT

all identification devices

of ALTOM TRANSPORT

or

a letter certifying their

removal

shall

entitle

ALTOM TRANSPORT to

withhold

any

payments owed to CONTRACTOR, including any

escrow funds until such obligation is met.

10

CONTRACTOR s General Duties

A INSPECTION/WARRANTY. ALTOM TRANSPORT shall, prior to

taking possession

of

the Equipment, inspect said Equipment.

CONTRACTOR warrants that the Equipment

is

complete with all

required accessories, appurtenances and appliances, and that the

same is in good, safe and efficient operating condition and shall be

so

maintained, at CONTRACTOR s sole expense, throughout the

duration of this Agreement. CONTRACTOR shall and will submit

said Equipment for ALTOM TRANSPORT s inspection at the time

ALTOM TRANSPORT takes possession and periodically thereafter,

as required by ALTOM TRANSPORT. CONTRACTOR shall

furnish ALTOM TRANSPORT with all necessary information and

documents

of

title or registration so

as

to enable ALTOM

TRANSPORT

to

correctly identify and license the Equipment.

CONTRACTOR shall furnish ALTOM TRANSPORT copies of all

statements

or

invoices for repairs to said Equipment on a monthly

basis, whether done by CONTRACTOR or by a third party.

ALTOM TRANSPORT reserves the right

to

inspect the Equipment

at any time, and if ALTOM TRANSPORT exercises this right and

the Equipment shall be utilized in ALTOM TRANSPORT s service,

as

ALTOM TRANSPORT sees fit, CONTRACTOR shall not hinder

or deter ALTOM TRANSPORT s utilization in any manner whatso-

ever. Nothing in this Paragraph or Agreement shall obligate

ALTOM TRANSPORT to utilize said Equipment with any specific

frequency, for any specific number of miles, trips or pounds of

freight.

B IDENTIFICATION.

CONTRACTOR shall identifY the leased

Equipment with ALTOM TRANSPORT s design, emblem, lettering

and United States Department of Transportation and state certificate

PAGE

2

OF

22

PAGES)



27/209

or permit numbers (if any), at CONTRACTOR's expense. ALTOM

TRANSPORT agrees to furnish to CONTRACTOR the appropriate

identification for said Equipment, and CONTRACTOR agrees to

permit ALTOM TRANSPORT to identify the Equipment and

display such identification thereon, in the manner required by all

applicable laws and regulations, and CONTRACTOR further agrees

to

remove or obliterate such identification, at CONTRACTOR's

expense, and to prohibit display o such identification upon the

termination o this Agreement, whereupon such identification shall

be returned to

ALTOM TRANSPORT. CONTRACTOR agrees to

indemnify and hold ALTOM TRANSPORT harmless for any

expense or loss, howsoever arising, including, but not limited to,

attorneys' fees in connection therewith, which ALTOM

TRANSPORT may incur

as

a result o CONTRACTOR's failure to

do

so

C NOTICE O LOSSES CONTRACTOR shall promptly advise

ALTOM TRANSPORT in writing o any and all injuries, accidents,

cargo loss or damage or spillage, or similar incidents or occurrences,

involving any Equipment which is the subject

o

this Agreement.

CONTRACTOR shall also advise ALTOM TRANSPORT o any

delay in the delivery

o

any cargo. CONTRACTOR shall make a

full and complete written report to ALTOM TRANSPORT, and to

any

insurance company or other agencies

as

may be required o any

and

all

such events within twenty-four (24) hours

o

their

occurrence.

CONTRACTOR shall irmnediately report all cargo claims, including

all shortages, overages or other exceptions to the cargo, to ALTOM

TRANSPORT. CONTRACTOR shall be liable for, and ALTOM

TRANSPORT shall charge back to CONTRACTOR, the first 2,000

o each cargo claim, including but not limited to, delay, shortages,

misdelivery, and any direct damage claim relating to lost, damaged

or contaminated loads, arising out of, or in connection with

CONTRACTOR's services. Before deducting any cargo claim from

CONTRACTOR's compensation, ALTOM TRANSPORT shall

provide CONTRACTOR with a written explanation and itemization

for each such claim.

CONTRACTOR agrees to return any trailer provided for its use by

ALTOM TRANSPORT in the same good condition as received by

CONTRACTOR, reasonable wear and tear excepted, along with any

PAGE

3

OF

PAGES)



28/209

. .

and all other equipment and property belonging to ALTOM

TRANSPORT immediately upon ALTOM TRANSPORT s request

or upon termination of this Agreement. In the event the trailer is not

in as good s condition s it was delivered by ALTOM

TRANSPORT, CONTRACTOR hereby authorizes ALTOM

TRANSPORT to restore the trailer to proper condition and to charge

back

to

CONTRACTOR the costs of such repairs or reconditioning.

In the event CONTRACTOR for any reason fails to comply with this

provrswn and return ALTOM TRANSPORT s trailer,

CONTRACTOR agrees to reimburse ALTOM TRANSPORT for all

reasonable expense and costs, including attorney fees, incurred by

ALTOM TRANSPORT in recovery

of

its trailer or property from

CONTRACTOR or its drivers. CONTRACTOR agrees that in the

event it is necessary for ALTOM TRANSPORT to enter upon

private property or remove private property in order to recover its

trailer and property, CONTRACTOR does hereby irrevocably grant

ALTOM TRANSPORT or its duly authorized agents, permission to

do so and further agrees to indemnify and hold harmless ALTOM

TRANSPORT, and its duly authorized agents, from any form

of

liability whatsoever in connection with such repossession.

CONTRACTOR shall be liable for, and pay, the entire amount for

each incident involving direct, indirect and consequential damage,

including but not limited to, towing charges, replacement costs for a

total loss, arising out of, or in connection with, CONTRACTOR s

use

of

ALTOM TRANSPORT s trailers, ALTOM TRANSPORT s

customer s trailers, other ALTOM TRANSPORT equipment, or

equipment

of

any other carrier. Before deducting any such damage

from CONTRACTOR s compensation, ALTOM TRANSPORT

shall provide CONTRACTOR with a written explanation and

itemization of such damage. CONTRACTOR agrees and warrants

that any trailer provided for use by ALTOM TRANSPORT will only

be used by CONTRACTOR and its drivers to transport shipments

tendered to CONTRACTOR by ALTOM TRANSPORT.

D

ALTOM

TRANSPORT s RIGHT TO TRANSFER In the event of

an Equipment breakdown, or,

if

for any other reason, CONTRAC-

T R

is unable to effect delivery

of

freight being transported with the

Equipment leased herein in a timely fashion, then ALTOM

TRANSPORT shall have the right to transfer such freight to another

vehicle, or attach CONTRACTOR s trailer to another tractor, in

order to deliver such freight and to deduct any costs or expenses so

incurred from CONTRACTOR s trip settlements. In the event that

PAGE

4 OF 22

PAGES)



29/209

CONTRACTOR trip leases the Equipment without first having ob

tained ALTOM TRANSPORT s approval, then ALTOM

TRANSPORT shall not be responsible to CONTRACTOR for the

payment

o

any monies relating to said trip lease, unless and until

ALTOM TRANSPORT has actually received payment for the trip

lease undertaken by CONTRACTOR. Further, it

is

the respon

sibility o CONTRACTOR to submit all paperwork relating to a trip

lease shipment to ALTOM TRANSPORT, and not to the trip-lease

carrier. ALTOM TRANSPORT shall then immediately forward said

paperwork to the trip-lease carrier.

11

Method Means and Manner o Performance

A. METHOD. CONTRACTOR shall determine the method, means and

manner

o

performing this Agreement and shall be responsible to

consignors and consignees for the proper performance

o

this

Agreement, in accordance with the rules and regulations o the

Illinois Commerce Commission and the United States Department

o

Transportation, and any other federal or state regulatory agency.

B. RIGHT TO REFUSE.

CONTRACTOR has the right to accept or

refuse, without penalty, any shipment(s) offered for transportation

by ALTOM TRANSPORT. CONTRACTOR has the right to

determine the actual route

o

travel taken in transporting any freight

shipment for or

on

behalf

o

ALTOM TRANSPORT so long

as

such

route is within the scope

o

ALTOM TRANSPORT s operating

authorities as issued by the United States Department

o

Trans

portation, FMCSA or any other regulatory body having jurisdiction

over such transportation and does not otherwise violate any law,

ordinance, rule or regulation. ALTOM TRANSPORT reserves the

right to offer shipment(s) to contractor and is under no obligation to

do so.

C.

INDEPENDENCE.

CONTRACTOR

as

an independent contractor

is

able to work for others and hold itself out to the public generally, in

a manner consistent with the other provisions

o

this Agreement.

CONTRACTOR shall not be required or expected to grant ALTOM

TRANSPORT priority.

12

Regulatory Requirements/Laws

It is agreed that CONTRACTOR must satisfy all laws or requirements es

tablished by state or federal law, by the DOT and any other federal

or

state

PAGE

5

OF

PAGES



30/209

regulatory agency having jurisdiction, in the performance of this Agreement, and

that ALTOM TRANSPORT may inspect the records

of

CONTRACTOR

periodically to assure compliance with said requirements, laws, or regulations.

13 Subleasing frip Leasing/Etc.

A ALTOM TRANSPORT may sublease the Equipment which is the

subject

of

this Agreement whenever permitted by applicable laws

and regulations, and ALTOM TRANSPORT shall be considered to

be the owner of said Equipment for the purpose of any such

subleasing

if

such

is

required by law or regulation. Neither party

may assign this Agreement. CONTRACTOR may not act as

ALTOM TRANSPORT s agent for the trip or sublease of the subject

Equipment, except upon such express terms and conditions as

ALTOM TRANSPORT may establish. In the event that

CONTRACTOR trip-leases the subject Equipment without first

having obtained ALTOM TRANSPORT s approval, then ALTOM

TRANSPORT shall not be responsible to CONTRACTOR for the

payment of any monies relating to said trip lease, unless and until

ALTOM TRANSPORT has actually received payment from the trip

lease carrier, nor shall ALTOM TRANSPORT be responsible for

any obligations to any trip-lessee undertaken by CONTRACTOR.

Further, it is the responsibility of CONTRACTOR to submit all

paperwork relating to a trip-lease shipment to ALTOM

TRANSPORT, and not to the trip-lease carrier. ALTOM

TRANSPORT shall then immediately forward said paperwork to the

trip-lease carrier.

B. Consistent with its independent contractor status, CONTRACTOR is

free to and may, lease or trip

to

other carriers at such times as the

Equipment that is not being utilized by ALTOM TRANSPORT. f

CONTRACTOR enters into a sublease, CONTRACTOR agrees to

assume all responsibility and hold ALTOM TRANSPORT harmless

from any claim by CONTRACTOR, its subcontractors, agents or

employees during such sublease.

C.

At those times when CONTRACTOR is not operating under

ALTOM TRANSPORT s operating authorities or otherwise oper

ating in ALTOM TRANSPORT s service pursuant to this Agree

ment, or is hauling for someone else, CONTRACTOR agrees to

cover or remove any signs and/ or other identification on the

Equipment containing ALTOM TRANSPORT s name and/or motor

carrier identification numbers.

PAGE 6 OF 22

PAGES)



31/209

.,

14 Indemnification by Contractor

As

between ALTOM TRANSPORT and CONTRACTOR only, without

any regard or effect upon the obligations of ALTOM TRANSPORT to any third

party, CONTRACTOR agrees to be responsible for indemnify and hold ALTOM

TRANSPORT harmless from any and all claims of any nature, losses, personal

injury, death, and/or damage to individuals, cargo or other property, and/or claim

for any such loss or occurrence which may arise from or in connection with the

operations performed or

to

be performed pursuant

to

this Agreement arising from

negligence on the part of CONTRACTOR or any breach of this Agreement by

CONTRACTOR. This

is

to include, but is not limited to, attorneys fees and any

other expenses incurred in defending or processing any claim arising as a result of

any of the above or operation of the Equipment leased herein. ALTOM

TRANSPORT may deduct any sums for which CONTRACTOR is responsible

hereunder from any monies that ALTOM TRANSPORT may owe to CON-

TRACTOR as rentals or from any other sums which ALTOM TRANSPORT may

owe to CONTRACTOR, after first giving CONTRACTOR an itemized statement

therefor. Further, CONTRACTOR will be responsible to indemnify ALTOM

TRANSPORT for any deductible payments incurred by ALTOM TRANSPORT

as a result of the negligence of the CONTRACTOR.

15

Miscellaneous Provisions

A.

L BOR

DISPUTE CONTRACTOR hereby agrees that should it

become involved in a labor dispute with its employees or with

drivers or other personnel furnished to ALTOM TRANSPORT, it

will immediately report such fact

to

ALTOM TRANSPORT. f such

labor dispute interferes or tends

to

interfere with the operations of

CONTRACTOR for ALTOM TRANSPORT pursuant

to

this

Agreement, then this Agreement shall be subject to immediate

cancellation by ALTOM TRANSPORT, without penalty.

B. RENT/PURCHASE CONTRACTOR is not required

to

purchase or

rent any products, equipment or services from ALTOM

TRANSPORT

as

a condition

of

this Agreement.

C. LOADING/UNLOADING Loading of freight onto the Equipment,

which is the subject of this Agreement, is the responsibility of

CONTRACTOR and shall be done at CONTRACTOR s expense.

Unloading of freight is the responsibility of CONTRACTOR and

shall be done at CONTRACTOR s expense.

PAGE

7 OF 22

PAGES)



32/209

I _

D COMPLETE AGREEMENT. This Agreement shall supersede, replace

and take precedence over any prior agreement

of

a similar character

between the parties hereto. This Agreement shall constitute the

complete Agreement between the parties, and no agent or

employee

of

either party shall have the authority to alter or vary the terms

hereof or

to

make any representations or commitments not included

herein. This Agreement shall not be assignable except with the ex

press written consent of both parties. This Agreement shall be

interpreted and governed pursuant to the laws

of

the State of Illinois,

and any action pertaining thereto shall be brought and maintained

exclusively in Courts in the State of Illinois.

E

COPIES.

This Agreement shall be executed in at least three (3)

copies, each of which shall be considered an original, to the end that

one executed copy, known

as

ALTOM TRANSPORT's Copy

shall be retained by ALTOM TRANSPORT; one executed copy

known as CONTRACTOR's Copy shall be retained by CON

TRACTOR; and

one

executed copy known as Equipment Copy

shall be carried in the Equipment during the term

of

this Agreement

and returned to ALTOM TRANSPORT at the conclusion of this

Agreement. Additional copies may be signed where necessary, and,

when signed, such additional copies shall also be considered as

originals and may be filed with appropriate regulatory bodies.

F

COSTS/ATTORNEY FEES.

CONTRACTOR shall be responsible

to pay all court costs and reasonable attorney fees incurred

as

a

result of ALTOM TRANSPORT having to enforce the terms of this

agreement in the event

of

CONTRACTOR'S non-compliance with

the terms and conditions set forth herein.

G NON WAIVER. The failure or refusal of either party to insist upon

the strict performance of any provision of this Agreement, or to

exercise any right in any one or more instances or circumstances

shall not be construed

as

a waiver or relinquishment of such

provision or right, nor shall such failure or refusal be deemed a

customary practice contrary

to

such provision or right.

H

GOVERNING LAW AND CHOICE OF FORUM.

This

Agreement is to be governed by the laws of the United States and of

the State of Illinois, including the choice-of-law rules

of

Illinois, and

PAGE

8 OF 22

PAGES)



33/209

CARRIER and CONTRACTOR hereby consent

to

the jurisdiction

of the state and federal courts of Illinois.

16 Independent Contractor Status/Tax Treatment

CONTRACTOR acknowledges and agrees that it has been engaged as an

independent contractor and not as an employee. It shall be therefore, responsible

for payment of all federal, state and local taxes arising out of its activities under

this Agreement, and/or the activities of its subcontractors, agents or employees

including by way of illustration, but not limitation, federal and state income tax,

Social Security tax, unemployment insurance taxes, where applicable, and

business license fees, where required. CONTRACTOR understands and agrees

that ALTOM TRANSPORT is not obligated or responsible to deduct any taxes

which may be imposed by any governmental authority from the fees

as

paid

to

CONTRACTOR or CONTRACTOR s subcontractors, agents or employees by

ALTOM TRANSPORT under this Agreement, but that any such tax obligations

are the sole responsibility of CONTRACTOR. ALTOM TRANSPORT is not

authorized to withhold state or federal income tax, or Social Security tax upon the

sums paid CONTRACTOR or CONTRACTOR s subcontractors, agents or em-

ployees.

17 Confidentiality

CONTRACTOR will

obtain

from

ALTOM TRANSPORT

information concerning customer names, pnc1ng

information,

customer

usage patterns, etc., and

other

information

described

in

Section 2(C)

above, all

of

which

ALTOM TRANSPORT

considers to

be

proprietary and

confidential

( confidential data''). To insure the

confidentiality of ALTOM TRANSPORT S confidential data,

CONTRACTOR shall limit disclosure of all

information

concerning

this Agreement, CONTRACTOR S performance

and

ALTOM

TRANSPORT S

confidential data to

only

those

employees of

CONTRACTOR who require such information

to

properly perform

their

respective

duties

under

this

Agreement.

Upon termination

of

this Agreement, CONTRACTOR agrees to return to ALTOM all of the

confidential information and documents, as provided

in

Section

2(C) hereof.

PAGE

9

OF 22

PAGES)



34/209

r

18. Non-Compete

MICHAEL STAMPELY

are officers, directors

and

shareholders

of

CONTRACTOR,

and

will benefit financially, both

directly and

indirectly

from CONTRACTOR doing business

with

ALTOM TRANSPORT. CONTRACTOR, MICHAEL STAMPELY

individually and collectively, agree that they shall not and will not

both during

the term

of this Agreement or for two

2)

years after the

termination

of

this Agreement solicit

the

business of any

customer

of

ALTOM TRANSPORT,

unless

CONTRACTOR

can prove

that

it

also had

a business

relationship with any

ALTOM TRANSPORT

customer

on

the

effective

date of

this

Agreement.

All parties hereto agree

that in

addition to any monetary loss

which

ALTOM TRANSPORT would suffer as a

result

of a

violation

of

this Agreement by CONTRACTOR, such violation would

cause

ALTOM TRANSPORT irreparable harm for which harm monetary

damages

are presumptively inadequate.

Therefore

ALTOM

TRANSPORT may apply

to

a

court

of a competent

jurisdiction

for a

Temporary

Restraining Order or a Preliminary or Permanent

Injunction

against any other

party to this Agreement.

In such

event the Defendant

in

such action

specifically

waives

any

requirements for an injunction bond and

agrees

they will not ask

for

an

injunction bond. The seeking of injunctive

relief

shall not

constitute

an election of remedies.

19. Invalidity

In the event any provision

of

this Agreement shall be held to be invalid, it

shall not affect the validity

of

the remainder

of

this Agreement.

20. Notices

Any written notice required by the terms

of

this Agreement shall be given

either by personal delivery, by certified mail, premium overnight delivery service,

facsimile or such other means as the parties shall in writing agree upon.

21. Headings

The headings of this Agreement s provisions are for convenience only and

shall not control or affect the meaning or construction or limit the scope or intent

PAGE

2

OF 22 PAGES)



35/209

o any o this Agreement s provisions. All headings shall be subordinate t the

meaning

o

the text

o

the Agreement.

PAGE 2 OF PAGES)



36/209


37/209

State of Illinois

Illinois Commerce Commission 527 E. Capitol Avenue, Springfield,

IL

62701 217(782-4654 Fax 217(785-1448

.

0

Equipment Lease Motorized (Power) Units Only

'

Read

Attached Instructions Carefully

Identification of Lessee: (ILCC authority

holder).

1. Full Legal name: (as shown on license)

2.

FEIN/SSN:

Altom

Transport, Inc.

36-3217907

3. Business Address: (street and number)

4. Lessee s Illinois Motor Carrier No.: (required)

7439 W

Archer Ave.

MC 62032

5. City:

6.

State:

7.

Zip Code:

8. Business Phone:

Summit

Illinois 60501

(773) 284-4400

Identification of Lessor: (equipment

owner and/or

operator

9. FEIN/SSN: 331-58-4620

10. Full Legal Name: (as it appears on vehicle title)

11.

FMCSA No.: (if available)

MICHAEL STAMPLEY

12. Business Address: (street and number)

13.

Lessor s Illinois Motor Carrier No.:

15129 SOUTH GRANT STREET

14. City: 15. State:

16.

Zip Code:

17. Business Phone:

DOLTON

ILLINOIS

60419 708-849-6265

Identification of

Eouioment:

A seoarate lease is required for each

piece

of MOTORIZED eauipment.

18. Manufacturer or Make: Model: Year: Vehicle Identification Number (VIN):

PETERBILT CONVENTIONAL 2007 1XP5DB9X27N730834

TERM;::; uF LEASt:: 1 e rollowing conditions are the

express

terms or this

lease,

and any contrary provisions in

attachments

or other contractual documents are

void.

19. Duration

or

Lease. LEA::>E

Pt:RiuD

CAN NUT t:XCEED THREE

Yt:AR::>.

EFFEGTIVE DA II:: CANNOT BE MORE THAN

FIFTEEN DAYS PRIOR TO THE DATE THIS LEASE

IS

FILED WITH THE ILLINOIS COMMERCE COMMISSION.

Effective Date of Lease: 09/28/2012 Expiration date of Lease:

09/28/2015

20. Compensation

to

Lessor: Is a

current master

lease

addendum on

file with the Illinois

Commerce

Commission?

Yes

O o

Lessor shall

be

compensated as follows:

per hour OR

70

or gross

and/or

(other terms)

121. Insurance. Lessee is

aware

of

insurance

obligations for operations under this

lease.

Please read

Required

Terms

on

reverse side.

ves

0 No

22. Direction

and

Control.

Lessee

is

aware

of his responsibilities for direction and control of operations under this lease.

ves

0 No

23. 15.00

FILING FEE

REQUIRED. THIS FORM MUST BE SUBMITIED IN TRIPLICATE. ORIGINAL SIGANTURES REQUIRED ON ALL COPIES.

. .

24. Certirytng

Statement

and

Signature.

Under

penalty

of

perjury, I declare

that

I have examined

the

equipment

lease submitted by

me

and

to the

best of

my

knowledge it is true and correct and

complete.

My signature authorizes the Illinois

Commerce

commission

to

lower the amount of the check if fees submitted

exceed the correct amount. A power of attorney is required if

an

agent signs this lease.

Lessee Signature (lessee

or

authorized a g e n t ~

_,

_ . {

Lessor signature( ow ner

or

authorized representive):jt/d.. JJ JV 1.--;t/;- , Positionmtle:

Positionmtle:

b g

1

: ( Date:

Date:

Page 1 of2



38/209

JOSEPH

M.

MALONE

DIRE TOR OF SAFETY

NTTC I BOARD OF DIRECTORS

4243 S

KNOX AVENUE

CHICAGO ILLINOIS 60632

800 327 8903 X 245

[email protected]

www ALTOMTRANSPOAT com

Owner Operator Comdata Fuel Card Agreement

This agreement made this 28th day of SEPrEMBER.

2012.

between Altom Transport, Inc and

Contractor MICHAEl, STAMPLEY /DNJT B439 to establish a fuel purchase plan for the Independent

Contractor named

above.

Altom Transport, Inc agrees to issue a Comdata Fuel Card to Contractor for

the purchase of fuel to be used

in

the assigned equipment leased to Altom Transport,

Inc

Contractor

hereby agrees to the following conditions and limitations governing the use of the fuel card. Tbe

Comdata Fuel Card issued to the contractor remains the property of Altom Transport,

Inc

and must be

surrendered upon demand or

at

the termination of the Contractor s lease with Altom Transport, Inc

Altom Transport, Inc is to be held harmless against all claims arising from the Contractor s use of card

including,

but

not limited

to

the quality of the fuel purchased or pricing of fuel. Contractor may not use

card for fueling of any vehicle not leased to Altom Transport, Inc Contractor agrees to be responsible

for any and

all

charges made with the card and posted against Altom s account with Comdata. Tbe loss

or theft of the card shall not waive Contractor s obligation

until

the card

is

properly reported lost or

stolen and the card

is

cancelled.

Contractor agrees that a weekly settlement deduction will be made to cover charges against the card. Tbe

daily limits imposed upon the card for fuel and miscellaneous purchases are subject to change without

notice and shall not be the basis of any claim against Altom Transport,

Inc

Altom Transport,

Inc

reserves the right to cancel or suspend charge privileges during any period of non- revenue the Contractor.

Contractor agrees to abide

by

the conditions and limitations contained in this agreement and any

revisions deemed necessary by the

account holder, Altom Transport, Inc This program is being

administrated

by

the Safety Department and they must be contacted regarding any account maintenance.

_ ~

2: _

_ i : J I

;;J

Date

~ ~ - ~ - - - - - - - -

164-804-1160

omdata Fuel

ard Number

J. M Malone Director of Safety



39/209

JOSEPH M MALONE

DIRECTOR

OF SAFETY

4243 S.

NOX

AVENUE

CHICAGO ILLINOIS 60632

OO

327 8903 x245

MALONE @ALTOMTRANSPORT COM

www ALTOMTRANSPORT com

OWNER OPERA

TOR

LICENSING PURCHASE PROGRAM

By requesting the use o an LTOM TRANSPORT, INC., Illinois Apportioned License Plate,

I, MICHAEL STAMPLEY Unit Number: B439 VIN 1XP5DB9X27N730834, agree to the

following terms and conditions:

All applicable charges will be subject to an administration fee that will be added to the final

invoicing received from the Illinois Secretary o State's Office.

The issued License Plate will remain the property

o

Altom Transport, Inc., and must be returned

upon cancelation

o

lease and/or termination.

Refunds will only be issued and based on an unused full Quarterly basis should separation from

Altom Transport, Inc., occur.

Deductions from your weekly settlement will begin the first week after the request for plates has

been approved.

Your deductions will be amortized in (4) four equal installments.

Any owner operator requesting Altom Transport, Inc., to purchase license plates, your pay

percentage will be set at 70

o

the gross revenue.

All License Plates owned and purchased by Altom Transport, Inc., will be apportioned

in

all 48

States and the lower 6 provinces o Canada.

b t

:;JtJid

a t e ~



40/209


41/209

5 t is against company policy to willfully disconnect this unit or disable it for any reason. Any

intentional act to deceive or evade the company s ability to use the system s functionality

will be considered a breach

o

this agreement and may result in the termination

o

the

contractor s hauling agreement.

6

The contractor agrees to pay

l,OOO.OOlfor

removal

o

system unit

i

contractor elects to

terminate contract and lease during first

65 days

after this agreement is signed. (Amended

03/02/11)

7 The contractor agrees to and understands that all charges the contractor is responsible for

related to the PeopleNet system as outlined above, will be paid to the company through

settlement deductions.

The undersigned acknowledges they have read this agreement and agree to the terms outlined

above.

Altom Transport, Inc. Date



42/209


43/209


44/209

Case: 1:14-cv-03747 Document : 1 Filed: 05/21/14 Page 2

o

40 PageiD :2

operators.

2. Plaintiff brings this class action because Altom formulated, implemented and/or

engaged in and practiced an unlawful common course

of

conduct against Plaintiff and the

members

of

the Class (as defined in 8(a)

of

this Complaint) by knowingly and unlawfully

reducing and intentionally miscalculating Plaintiffs compensation and the compensation

of

the

other members of the Class and by relying upon owner-operator agreements that failed to clearly

state or disclose deductions made to amounts used

to

calculate owner-operator compensation.

THE PARTIES

A.

Plaintiff

3

At

all times relevant

to

this complaint, Michael Stampley ( Stampley ), a resident

and citizen

of Illinois, was an owner-operator of a moving truck.

He

entered into a lease

agreement listing Altom as the carrier within the purview of 49 U.S.C.

14102

and 49 C.F.R.

376 12

A true and correct copy of the owner-operator agreement (the Ow11er-Operator

Agreement ) he signed

is

attached hereto as Exhibit

A

1

Plaintiff brings this suit individually

and on behalfof all members

of

the Class, defined 8

of

this Complaint.

B Defendant

4. Altom, which is headquartered in Summit, Illinois, is a motor carrier which, at all

times relevant to this class action, held and continues to hold a certificate of authority issued by

the Federal Motor Carrier Safety Administration. In addition to its corporate headquarters,

Altom operates facilities in Chicago, Illinois, Hammond, Indiana, Indianapolis, Indiana,

Pasadena, Texas, and Lufkin, Texas.

Mr

Stampley's social security number, which is set forth on Page 22

of of

he Owner-Ogerator

Agreement has

been

redacted

for privacy purposes.

2



45/209

Case: 1:14-cv-03747 Document : Filed: 05/21/14 Page 3 o 40 PageiD :3

JURISDICTION ND VENUE

5. This Court has subject matter jurisdiction over this class action pursuant to

28

U.S.C.

1331

and l337(a) because the claims asserted in this Complaint arise under the

Motor Carrier Act, 49 U.S.C.

14102 and 14704 t seq. and the regulations promulgated

thereunder, namely 49 C.F.R. 376.12, all o which relate to truck owner-operators lease

equipment to authorize motor carriers for the transportation

o

property.

6. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) because, during the

Class Period, Altom transacted business

in

this District, maintained offices in this District, were

and are found in this District, and because a substantial part o the events giving rise to Plaintiffs

and Class members' claims occurred in this District.

7.

Upon information and belief, Altom continues to carry out the wrongful acts

described in this Complaint in this District.

CLASS

CTION LLEG TIONS

8.

Plaintiff brings this class action pursuant to Rule 23(a) and b)(3)

o

the Federal

Rules

o

Civil Procedure, on behalfo the following Class:

All equipment owner-operators

in

the United States who, during the

period from May 21, 2004, through the prese

Documents

ALTOM TRANSPORT, INC. v. WESTCHESTER FIRE INSURANCE COMPANY et al complaint