United States Tenth Circuit

In a contract action involving a contract between the parties wherein defendant supplied plaintiff-public utility periodic shipments of coal from defendant's mine, a judgment in favor of plaintiff is affirmed where: 1) defendant failed to prove that its performance was excused by virtue of a force majeure labor dispute, and the district court did not err in finding that geological problems caused defendant's difficulties; 2) defendant failed to offer any evidence to determine what part of plaintiff's losses were attributable to labor problems versus geological problems, and thus damages could not be reduced without impermissible speculation; 3) even accepting for argument's sake a claim that Missouri does not enforce contract provisions requiring written notice of a force majeure when actual notice of a force majeure exists, the circumstances here did not support the claim; 4) plaintiff did not waive its claim for breach of contract; and 5) it properly mitigated its damages.

Appellate Information

• Decided 11/07/2008
• Published 11/10/2008

Judges

• GORSUCH, Circuit Judge., Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellees:
  
• Todd W. Ruskamp (Elizabeth C. Burke with him on the brief), Shook, Hardy & Bacon, L.L.P., Kansas City, MO, for Plaintiff-Appellee., Carl E. Kingston, Salt Lake City, UT, for Defendant-Appellant.