June 15, 2015
TEREX CORPORATION, d/b/a TEREX CONSTRUCTION AMERICAS, Defendant-Appellant,
SOUTHERN TRACK & PUMP, INC., Plaintiff-Appellee
Submitted April 15, 2015
Case Closed July 1, 2015.
Certification of Question of Law from the United States Court of Appeals for the Third Circuit. C. A. No. 13-4279.
CERTIFIED QUESTION ANSWERED.
John C. Phillips, Jr., Esquire (argued), David A. Bilson, Esquire, Phillips, Goldman & Spence, P.A., Wilmington, Delaware; Virginia W. Hoptman, Esquire, Redmon Peyton & Braswell LLP, Alexandria, Virginia, for Defendant-Appellant.
Peter J. Walsh, Jr., Esquire (argued), Ryan M. Murphy, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware; Suzanne Hill Holly, Esquire, Berger Harris, LLC, Wilmington, Delaware, for Plaintiff-Appellee.
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices; NOBLE, Vice Chancellor,[*] and GRAVES, Judge,[*] constituting the Court en Banc.
A dispute pending before the United States Court of Appeals for the Third Circuit (the " Third Circuit" ) turns on the interpretation of Delaware's Equipment Dealer Contracts Statute, 6 Del. C. § 2720, et seq. (the " Dealer Statute" ). To assist the Third Circuit in resolving this dispute, the Third Circuit certified the following question of law to this Court:
Does a supplier's repurchase obligation under § 2723(a) of the Dealer Statute extend to used inventory or is it limited to " new, unused, undamaged and complete inventory" under § 2723(b)?
As more fully explained below, we answer the certified question of law by concluding that a supplier's repurchase obligation under the Dealer Statute is limited to new, unused, undamaged, and complete inventory.
I. FACTUAL AND PROCEDURAL HISTORY
In April 2007, Southern Track & Pump, Inc. (" Southern Track" ), a Florida-based equipment dealership that sells and leases construction equipment, entered into a distributorship agreement with Terex Corporation (" Terex" ), a Delaware corporation that manufactures construction equipment. Under the distributorship agreement, which was governed by Delaware law, Southern Track purchased from Terex approximately $4 million worth of equipment (about forty pieces in total) and $50,000 worth of parts. Southern Track financed its purchase through an arrangement with GE Commercial Distribution Finance Company (" GE" ). The financing was secured by the equipment Southern Track purchased from Terex using funds provided by GE.
Southern Track had difficulty marketing Terex products. When its loan obligations to GE became too onerous, Southern Track decided to terminate the distributorship agreement. In its termination letter, Southern Track indicated that it wanted to keep some equipment, but it wanted Terex to repurchase everything else. The purported impetus behind the decision to terminate was Southern Track's assumption that the Dealer Statute's repurchase obligation
would force Terex to repurchase all of the inventory Terex had previously sold to Southern Track that Southern Track did not wish to retain.
Terex disagreed. Terex contended that the Dealer Statute required a supplier to repurchase only new and unused equipment. Terex argued that since most, if not all, of the equipment it sold to Southern Track had entered Southern Track's rental fleet, the equipment was used. Terex asked Southern Track to compile a list of the new and unused equipment Southern Track had in its inventory. Instead of complying with that request, Southern Track sent Terex a letter in June 2008 that identified seventeen pieces of equipment that it wanted Terex " to come and pick up." Over half of those items had been in operational use for 175 to 300 hours. Yet Southern Track insisted that Terex was required to purchase the equipment at brand new prices.
After some back and forth, Terex offered to repurchase nine of the seventeen pieces of equipment listed in Southern Track's June 2008 letter. Terex offered to pay market value for the equipment, but reserved the right to take a deduction for any parts or repair services " required to return any of the repurchased equipment to good running and operating condition."
As negotiations between the parties progressed, Southern Track was under increasing pressure from GE to make past-due payments or risk losing possession of the equipment it had purchased from Terex. With GE's threat looming, and with no sign that the parties were close to resolving their differences, Southern Track filed a declaratory judgment action against Terex in the Delaware Superior Court on July 23, 2008. One day later -- and one month before the expiration of the Dealer Statute's ninety-day repurchase period -- GE took possession of all of the equipment Southern Track had purchased from Terex. GE later sold most of this equipment at auction.
Terex removed the lawsuit to the United States District Court for the District of Delaware based on diversity jurisdiction. Southern Track's second amended complaint alleged, in relevant part, that Terex had violated the Dealer Statute when it failed to repurchase " all inventory previously purchased [from it] . . . that remain[ed] unsold on the date of the termination of the agreement."  As a result of the alleged breach, Southern Track claimed that it was entitled to the relief prescribed by § 2727(a) of the Dealer Statute, namely, that Terex was " civilly liable for 100% of the 'current net price' of the inventory" plus other associated costs and fees.
The parties filed cross-motions for summary judgment in the District Court. The principal issue was whether a supplier's repurchase obligation under § 2723(a) extends to all inventory in a dealer's possession
that remains unsold, or only applies to inventory that remains in new and unused condition. The District Court held that § 2723(a) required suppliers to repurchase all -- not just new and unused -- inventory. Thus, it held that Terex's actions ran afoul of the Dealer Statute because Terex offered to repurchase only the new and unused equipment. The District Court granted Southern Track's motion for summary judgment and ordered Terex to pay the full price of all inventory it had sold to Southern Track that remained unsold on the date of the termination of the distributorship agreement (which amounted to approximately $4.35 million).
Terex appealed the District Court's judgment to the Third Circuit. The Third Circuit, having considered the submissions of the parties and having heard oral argument, petitioned for certification to this Court. Pursuant to Article IV, Section 11(8) of the Delaware Constitution and Delaware Supreme Court Rule 41, we agreed to decide this question of law since it raises an important and unsettled issue concerning the interpretation of Delaware's Dealer Statute. As this is a pure question of law, we exercise de novo review.
A. Background of the Dealer Statute
Dealer statutes were enacted to address an imbalance of economic power that often exists between suppliers and dealers. As the Third Circuit observed, as a condition of sale, and as a result of their superior bargaining power, suppliers generally impose a minimum quantity purchase obligation. This requirement " puts dealers in a tough position: in an unfavorable business climate it can be difficult to move the equipment off their showroom floor."  Delaware's Dealer Statute sets forth a statutory scheme that embodies policy choices made by our legislature in an attempt to balance the interests of dealers and suppliers, maintain the freedom to enter into contracts, and regulate certain aspects of the dealer franchise industry. The Dealer Statute addresses the imbalance of power between dealers and suppliers by including a mandatory repurchase obligation in 6 Del. C. § 2722(a), which provides that " [w]henever a contract agreement between a dealer and a supplier is terminated by either party, the supplier shall repurchase the dealer's inventory as provided in this subchapter unless the dealer chooses to keep the inventory." 
The Dealer Statute itself does not distinguish between new and used equipment in those precise terms setting forth the repurchase obligation. Instead, § 2723(a) provides that " [t]he supplier shall repurchase from the dealer within 90 days after termination of the contract agreement all inventory previously purchased from the supplier that remains unsold on the date of termination of the agreement."  Thus,
the Third Circuit has requested that we determine whether the Dealer Statute's use of the term " all inventory" means that a supplier must repurchase both new and used equipment.
B. The Parties Dispute the Correct Interpretation of the Dealer Statute
As the Third Circuit acknowledged, " § 2723(a) can be read in one of two ways, each of which has its problems."  Southern Track advocates that the term " all inventory" in § 2723(a) should be construed according to its plain meaning, namely, that " all" means all. Further, " Inventory" is defined broadly as " tractors, implements, attachments, equipment and repair parts that the dealer purchased from the supplier."  Thus, Southern Track contends that § 2723(a) does not limit a supplier's obligation to repurchase inventory to new and unused equipment when that equipment remains unsold after an agreement between a supplier and retailer is terminated. Any other construction of the statute, Southern Track argues, would render the modifier " all" superfluous.
Although Southern Track maintains that this provision is clear on its face, Terex points out that the § 2723(b) provides a repurchase price only for new inventory. Section 2723(b) provides:
The supplier shall pay the dealer:
(1) One hundred percent of the net cost of all new, unused, undamaged and complete inventory except repair parts, less a reasonable allowance for deterioration attributable to weather conditions at the dealer's location.
(2) Eighty-five percent of the current net price of all new, unused and undamaged repair parts that are currently listed in the supplier's price book. The supplier may perform the handling, packing and loading of repair parts returned and withhold 5 percent of the current net price of the repair parts returned for their services.
The Dealer Statute contains no provision, and thus is silent, as to a price for used inventory.
The District Court determined that the parties must set the price for used inventory themselves: " inventory that is not new, unused, or undamaged remains subject to the repurchase requirement, but at a price subject to negotiation by the parties instead of the prices set forth by statute."  The Third Circuit characterized this as " one possible remedy," but was " uncertain that it reflects the Delaware General Assembly's intent."  Terex contends that this judicially created gap-filler has no basis in the statute or its history.
Similarly, Terex notes that the synopsis to the House Bill that enacted the Dealer Statute provides that the Act was intended to cover dealers of new equipment only. It provides:
This is an Act relating to contract agreements between dealers engaged in the business of retailing new construction, farm, industrial, and outdoor power equipment ; and wholesalers, manufacturers, or distributors of their products: To require repurchase of inventory from
dealers upon termination of a contract agreement: to provide procedures to establish limitations, rights, and civil liabilities relative to repurchase: To extend the right to require repurchase option to the heirs of dealers: and to provide prompt resolution of warranty claims upon termination.
Moreover, Terex argues that the District Court's solution creates a new problem. Section 2727 sets out remedies for a supplier's failure to repurchase inventory, including:
If a supplier fails or refuses to repurchase any inventory covered under this subchapter within the time periods established, the supplier is civilly liable for 100% of the " current net price" of the inventory , plus the amount the dealer paid for freight costs from the supplier's location to the dealer's location, plus reasonable cost of assembly performed by the dealer, and plus the dealer's reasonable attorney's fees and court costs, and interest on the " current net price" of the inventory computed at the legal rate of interest, but not to exceed 18% annual percentage rate, from the ninety-first day after termination of the contract agreement.
As Terex argues, and the Third Circuit posited, it seems illogical to expect parties to negotiate over price when " if they fail to reach an agreement, the supplier must pay 100% of the current net price of the inventory under 6 Del. C. § 2727(a)." 
C. The Dealer Statute is Ambiguous, But Reading the Text as a Whole Favors One Interpretation
" The goal of statutory construction is to determine and give effect to legislative intent."  At the outset, a court must determine whether the provision in question is ambiguous. " Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme -- because the same terminology is used elsewhere in a context that makes its meaning clear . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. . . ." 
A statute is ambiguous if " it is reasonably susceptible of different conclusions or interpretations" or " if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the legislature."  An ambiguous statute should be construed " in a way that will promote its apparent purpose and harmonize it with other statutes" within
the statutory scheme. All of the pertinent statutory language should be given full effect to produce the most consistent and harmonious result under the wording of the section.
When a statute is silent on a particular matter, the otherwise detailed nature of the statute in other respects can be significant. Moreover, the fact that other similar statutes may have opted to address that particular matter explicitly might be instructive. For example, we note that unlike Delaware, many other states expressly distinguish between new and used equipment in addressing the repurchase obligation, and several states explicitly address equipment that has been leased or rented. Where, as here, the Dealer Statute sets forth a specific and detailed statutory scheme, it would be incongruous to create statutory gaps and apply judicial fillers when an alternative, equally compelling statutory construction does not require us to do so.
A supplier's obligation to repurchase inventory from a dealer is set forth in § 2722. Section 2722(a) provides that " [w]henever a contract agreement between a dealer and a supplier is terminated by either party, the supplier shall repurchase the dealer's inventory as provided in this subchapter unless the dealer chooses to keep the inventory."  The issue we confront is whether " inventory as provided by this subchapter" in § 2722 is modified by the term " all inventory" in § 2723(a), or alternatively, the pricing provisions in § 2723(b)(1) and (b)(2) -- which include terms for new, unused, undamaged, and complete inventory, but omit any reference to used equipment or inventory that has entered a dealer's rental fleet. As more fully explained below, we conclude that a supplier's repurchase obligation under the Dealer Statute is limited to new, unused, undamaged and complete inventory, consistent with the statutory scheme, the canon of avoiding unnecessary statutory gap-filling, and our preference to avoid interpretations that could invite constitutional entanglements.
Reading the statute to require suppliers to repurchase only new inventory, as Terex urges, avoids judicially filling a gap in what is otherwise a detailed statutory scheme. Section 2723(b) sets out two pricing formulas, one for " all new, unused, undamaged and complete inventory except repair parts,"  and one for " all new, unused and undamaged repair parts."  As noted above, the statute is silent on the price for inventory that is not " new, unused, undamaged and complete."
Without any textual support to guide it, the District Court attempted to fill the statutory silence by crafting its own requirement, namely, that parties must negotiate the price of used inventory themselves. But this requirement, which has no basis in the text itself, leads to the incongruous result the Third Circuit emphasized in its order certifying the question of law: why would a dealer accept a reduced price if it knows it can get the " current net price" of equipment -- plus all costs and attorney's fees -- if negotiations break down?
Viewing the Dealer Statute as a whole suggests that the legislature was intentionally silent. The Dealer Statute is a detailed
piece of legislation. For example, it provides allowances for " weather conditions at the dealer's location,"  stipulates the price reduction available for suppliers who perform " the handling, packing and loading of repair parts,"  and states that " inventory shall be returned FOB to the dealership."  A requirement that used equipment must also be repurchased would be a matter of fundamental significance in this statutory scheme. It is inconsistent with the statute's overall level of detail to infer by the legislature's silence that it intended to require the repurchase of used equipment.
That is especially the case since the General Assembly can be presumed to have understood the heavy construction equipment industry, including the relationship between suppliers and dealers covered by the Dealer Statute. If the General Assembly understood that dealers typically use equipment in their rental fleets, thereby rendering them not " new, unused, undamaged and complete," they could have included a pricing formula for that equipment as well. That they chose not to suggests that we should decline to supply the alleged omission.
Further, this reading also makes sense of other provisions in the statute. As noted, § 2722(a) states that the " supplier shall repurchase the dealer's inventory as provided in this subchapter unless the dealer chooses to keep the inventory." The only repurchase terms that are provided in the subchapter relate to new, unused, undamaged, and complete inventory because the statute does not provide a pricing formula for used equipment. Given that there can be no repurchase transaction without a price, this provision also suggests that the General Assembly did not intend to require the supplier to repurchase used equipment.
A comparison to the Delaware Motor Vehicle Franchise Statute, 6 Del. C. § 4901, et seq. (the " MVFS" ) -- adopted in 1983, four years before the passage of the Dealer Statute -- is instructive. The MVFS requires a manufacturer to repurchase " at dealer cost" " any new, unused, undamaged and unmodified motor vehicles with less than 750 miles registered on the odometer that the dealer has acquired from the manufacturer or distributor"  if the agreement between the two is terminated. If termination of a dealer's franchise is the result of the cessation of a " line-make" by a manufacturer, then, in addition to payment of termination assistance, the dealer is entitled to be paid " an amount at least equivalent to the fair market value of the franchise for the line-make. . . ."  The MVFS establishes a specific procedure for determining the fair market value of the franchise:
Fair market value shall only include the value of the dealer's franchise for that line-make in the dealer's relevant market area. . . . Upon the dealer's written notice to the manufacturer that the dealer seeks compensation pursuant to this section, the affected dealer and the affected manufacturer shall each select a business valuation appraiser, certified public accountant, or other person that performs business valuations as a part of their occupation. . . . If the difference in valuation as determined by the respective valuators is within 10%, then the valuations shall be averaged and the average of the 2 valuations shall constitute fair market value for the purposes of this provision. If the difference in valuation as determined by the respective valuators is greater than 10%, then the chosen valuators shall select a third valuator by mutual agreement. . . . The third valuator's determination shall be the fair market value for the purposes of this provision unless the valuator's determination is within 25% of either the dealer or manufacturer's valuation. In that instance the valuator's determination shall be averaged with the determination that is within 25% of and that average shall be the fair market value for the purposes of this section.
The MVFS's intricate procedural framework for calculating the fair market value of the franchise for the " line-make" suggests that when the General Assembly intends for parties to negotiate a " fair market value," it does so explicitly. Because the Dealer Statute is silent as to how to price inventory that is not " new, unused, undamaged, and complete," it is logical to infer that the General Assembly did not intend for such inventory to be included in the repurchase requirement, with the parties (or courts) then left to devise their own formulas and procedures to determine the value of such inventory.
The same conclusion also harmonizes the difference between the Delaware Dealer Statute and the dealer statutes that exist in a number of other states. The Third Circuit characterized Delaware's statute as " unique" because it does not explicitly deal with used equipment. Dealer statutes in several states provide for the repurchase of equipment that is not " new, unused, undamaged and complete" or that has been used in the dealer's rental fleet, and set the repurchase price at the " average as-is value shown in current industry guides."  The absence of a similar provision in Delaware's Dealer Statute suggests that the omission is intentional.
The reference to " current net price" in the section of the Dealer Statute addressing civil penalties also supports our reading of the Dealer Statute. For example, if the supplier does not repurchase the equipment within 90 days, the remedy provided by the statute is the " current net price of the inventory," plus freight, assembly, attorney's fees, court costs, and interest. " Current net price" is defined as " the price listed in the supplier's price list in effect at the time the contract agreement is terminated, less any applicable discount allowed."  Thus, as long as the supplier's price has remained constant, the dealer is made whole. The dealer does not receive a windfall from the supplier's repurchase, but is instead returned to the position that it was in before the agreement was entered. At the same time, the only " penalty" imposed on the supplier in that instance is the obligation to pay freight, assembly, attorney's fees, court costs, and interest. This concept of a statutory balance between the supplier and dealer is consistent with how other courts have viewed similar dealer statutes.
Nor does this construction of the Dealer Statute render the term " all" in § 2723(a) superfluous, as Southern Track suggests. Rather, one reasonable interpretation is that " all" modifies inventory " that remains unsold." Put differently, a supplier is obligated to repurchase all new, unused, undamaged, and complete inventory in accordance with the Dealer Statute. A supplier may not choose to repurchase only a subset of equipment that otherwise qualifies to be repurchased (namely, the new, unused, undamaged inventory); it must repurchase all such inventory at the dealer's option.
Finally, interpreting the statute in this way avoids having to reach the question of whether the statute is punitive in nature, and whether it presents an unconstitutional
taking. There is a " 'strong judicial tradition in Delaware' that supports a 'presumption of the constitutionality of a legislative enactment.'"  " [W]here a possible infringement of a constitutional guarantee exists, the interpreting court should strive to construe the legislative intent so as to avoid unnecessary constitutional infirmities."  Accordingly, our construction of the Dealer Statute avoids the question of whether civil penalties for failure to repurchase inventory from a dealer amount to a taking in violation of the Takings Clause of the United States Constitution.
Based on the foregoing, the question of law certified to this Court by the United States Court of Appeals for the Third Circuit is answered as follows: a supplier's repurchase obligation under § 2723(a) of the Dealer Statute is limited to new, unused, undamaged, and complete inventory.