Cook County Record

Sunday, December 8, 2019

Judge says maker of Chicago's breakdown-plagued electric garbage truck can't countersue City Hall


By Scott Holland | Aug 21, 2019

Chicago city hall

CHICAGO — A federal judge again sided with the city of Chicago in its ongoing legal dispute with the maker of its first and only electric garbage truck, a truck the city says turned out to be a lemon.

In February, City Hall lawyers filed suit in Cook County Circuit Court against Motiv Power Systems Inc., asking the court to force Motiv to reimburse more than $1.3 million the city spent on an electric refuse truck, alleging it has been out of service for a cumulative three years since the city took possession in 2014.

Motiv, based near San Francisco, removed the case to federal court in March, and in May filed a counterclaim accusing the city of breaking its contract. Motiv also filed a motion to dismiss. U.S. District Judge Ronald Guzmán of the U.S. District Court Northern District of Illinois  rejected the motion to dismiss on July 9, and on Aug. 6 he tossed out Motiv’s counterclaim.

“Pursuant to the contract, the parties intended a partnership through which Motiv would develop and the city would road test in real world conditions, the previously undeveloped technology associated with electric refuse trucks. The parties understood and agreed that the electric garbage trucks contemplated in the contract were experimental,” Motiv alleged in its May 22 counterclaim, adding ensuing models would “incorporate the lessons learned and the more mature technology would resolve performance issues.”

Motiv also filed a July 9 response to the city’s motion to dismiss its counterclaim, calling it “the legal equivalent of Mel Brooks’ comedic take on France’s King Louis the XVI in the 1981 comedy, ‘History of the World: Part I.' Motiv cannot sue the city, Motiv could never sue the city, even if Motiv could sue the city, it did not do it right, and while the garbage trucks may have been experimental requiring tremendous investment on the part of Motiv, the city did not have to order any, but if it ordered one, Motiv needed to deliver a perfectly functioning, commercialized experimental garbage truck. ‘It’s good to be the king,’ indeed.

“Fortunately for Motiv, however, the city is not king,” the motion continued. “It is a party to a contract — the terms of which the parties dispute — and bound by the laws applicable to contracts and pleadings. Application of that law to the city’s motion compels its denial.”

Guzmán said the city’s motion to dismiss was broad, but he focused only on the one dispositive issue: a contract clause stipulating Motiv “must and the city may bring any dispute arising under this contract which is not resolved by the parties to the chief procurement officer for decision based upon the written submissions of the parties.”

Motiv argued the city’s lawsuit created space for it to also pursue legal action, but Guzmán said the possible relief channels for Motiv aren’t affected by the city’s actions, and therefore its only outlet under the contract is the city's chief procurement officer.

“Pursuant to the contract, the city has a choice of where to seek relief, whereas defendant does not,” Guzmán wrote.

Finding Motiv is not allowed under the contract terms to sue, Guzmán dismissed the counterclaim.

The city is represented in the action by attorneys from its Department of Law.

Motiv is represented by attorneys Michael J. Summerhill and John T. Shapiro, of the firm of Freeborn & Peters LLC, of Chicago.

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Organizations in this Story

U.S. District Court for the Northern District of Illinois Chicago DivisionFreeborn & PetersMotiv Power SystemsCity of Chicago

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