United States District Court, E.D. Virginia,
Alexandria Division.
Elizabeth Anne BOLES, Plaintiff,
v.
DESTINATION MOVERS, INC., Defendant.
Civil Action No. 1:09cv19.
July 6, 2009.
John T. Husk, Law Office of Seaton & Husk, L.P., Vienna, VA, for Plaintiff.
JUDGMENT ORDER
T.S. ELLIS, III, District Judge.
Upon consideration of the June 10, 2009 Report and Recommendation of the United States Magistrate Judge designated to conduct a hearing in this matter, no objections having been filed, and based upon an independent de novo review of the record, it is hereby ORDERED that the Court adopts as its own the findings of fact and recommendation of the United States Magistrate Judge, as set forth in the June 10, 2009 Report and Recommendation.
On page 3 of the Report, the Magistrate Judge indicates, inter alia, that plaintiff submitted paperwork to Anthem Claims Management, LLC on July 2, 2009. It is clear from a review of the record that the Magistrate Judge’s reference in this instance to 2009, rather than 2008, was an inadvertent typographical error.
Accordingly, it is hereby ORDERED that judgment is ENTERED by default in favor of plaintiff and against defendant in the total amount of $8,271.50, plus costs as taxed by the Clerk.
The Clerk is DIRECTED to enter judgment pursuant to Rule 58, Fed.R.Civ.P. and to place this matter among the ended causes.
The Clerk is further DIRECTED to send a certified copy of this Judgment Order to defendant and all counsel of record.
REPORT AND RECOMMENDATION
THOMAS RAWLES JONES, JR., United States Magistrate Judge.
This matter is before the court on plaintiff’s motion for default judgment (docket no. 7). Process for defendant was personally served by private process server on Robert Walker, who is authorized to receive service for defendant, on January 15, 2009. No answer or other response to the complaint has been filed. The Clerk entered default on February 6, 2009 (docket no. 5). Upon consideration of plaintiff’s motion, the memorandum in support of the motion (docket no. 12), the accompanying affidavits (docket no. 7-1, 7-2, 9, 13, 15), and plaintiff’s Exhibit 1 admitted during the default judgment hearing, the magistrate judge makes findings as follows, and recommends that default judgment be entered against defendant.
JURISDICTION AND VENUE
This court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, and 49 U.S.C. §§ 13702 and 13704. Venue is proper pursuant to 28 U.S.C. § 1391(a) because a substantial part of the events or omissions giving rise to plaintiff’s claims occurred in Arlington, Virginia.
FINDINGS
The magistrate judge finds the following facts from the well-pled allegations of the complaint and affidavits in support of default judgment.
Plaintiff, Elizabeth Ann Boles (“Boles”), is a citizen of Virginia. Pl.’s Compl. ¶ 1. Defendant, Destination Movers, Inc. (“Destination Movers”), is a Florida corporation with its principal place of business in North Miami Beach. Pl.’s Comp. ¶ 2. Defendant is an interstate motor carrier of household goods and operates pursuant to the authority of the United States Department of Transportation’s Federal Motor Carrier Safety Administration under Docket no. MC-592491.Pl.’s Compl. ¶ 3.
On April 11, 2008, Boles contacted defendant to transport her household goods and personal belongings from Boston, Massachusetts to Arlington, Virginia. Pl.’s Compl. ¶ 9. Defendant issued plaintiff a Moving Quote which stated that the total binding estimate for such transportation services was $1,000.00. Pl.’s Compl. ¶ 10; Attachment 1 to Exhibit 1. Pursuant to the Order for Service (Attachment 2 to Exhibit 1), defendant was to transport and deliver plaintiff’s household goods and personal belongings from Boston, Massachusetts to Arlington, Virginia. Pl.’s Compl. ¶ 11. On or about April 22, 2008, plaintiff tendered her household goods and personal belongings to defendant in Boston, Massachusetts in good order and condition under Job No. D125912. (Attachment 1 to Exhibit 1). Defendant placed plaintiff’s household goods and belongings into storage, but would not disclose to plaintiff the location of the storage facility in which plaintiff’s goods and belongings were stored. Pl.’s Compl. ¶ 14. On April 26, 2008, defendant’s driver arrived at plaintiff’s home in Arlington, Virginia and demanded that plaintiff pay an additional $1,647.00 before he would unload any of plaintiff’s household goods and belongings. In order to have her household goods and belongings unloaded from the truck, plaintiff paid the additional $1,647.00 that defendant’s driver demanded.
In paragraphs 15 and 16 of the complaint, plaintiff states that she had to pay an additional $2,647.00. In the default judgment hearing on March 6, 2009, however, plaintiff’s counsel stated that the $2,647.00 was a typo and that plaintiff only paid an additional $1,647.00. Plaintiff paid a total of $2,647.00, which included the $1,000.00 binding estimate and the additional $1,647.00.
When defendant’s driver unloaded the household goods and belongings, plaintiff realized that several of the items that she tendered to defendant in Massachusetts were missing. Pl.’s Compl. ¶ 17. After discovering that several items were missing, plaintiff submitted a claim to Anthem Claims Management, LLC service (“Anthem”), which manages the claims for Destination Movers. Attachment 5 to Exhibit 1. On July 2, 2009, within 9 months of the delivery, plaintiff submitted the required paper work associated with the claim, but received no response from Anthem. Thereafter, on January 9, 2009, plaintiff filed this lawsuit. According to the complaint and the appraisal plaintiff submitted both to Anthem and to the court, the replacement value for the missing household goods and belongings was $5,580.00. Pl.’s Compl. ¶ 11; Attachment 5 to Exhibit 1.
See 49 U.S.C. § 14706(e).
The items that defendant did not deliver included several pieces of artwork and miscellaneous personal items. Attachment 5 to Exhibit 1.
A. Refund for the Amount Paid in Excess of the Binding Estimate
Pursuant to 49 C.F.R. § 375.403(a)(7), absent the execution of a new binding estimate, “once the carrier loads a shipment” the carrier “may not collect more than the amount of the original binding estimate …”49 C.F.R. § 375.403(a)(7). Here, the original binding estimate was $1,000.00 at the time the carrier loaded plaintiff’s shipment. Pl.’s Compl. ¶ 10; Attachment 1 to Exhibit 1. It is clear from the record before the court that at no time prior to the loading of plaintiff’s shipment did defendant’s driver execute a new binding estimate. Nevertheless, upon delivery of the household goods and belongings in Virginia, defendant’s driver charged plaintiff $1,647.00 more than the original binding estimate. Pursuant to 49 C.F.R. § 375.403(a)(7), the magistrate judge finds that plaintiff is entitled to a refund of $1,647.00, the amount she paid in excess of the original binding estimate.
B Amount for Lost Items
Pursuant to 49 U.S.C. § 14706(a)(1), the delivering carrier is “liable to persons entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by the delivering carrier.”49 U.S.C. § 14706(a)(1). A carrier may limit its liability “to a value established by written declaration of the shipper or by written agreement.”49 U.S.C. 14706(f). In other words, the carrier is liable for the actual loss, unless there is an agreement between the shipper and the carrier that states otherwise.
Here, the agreement (bill of lading) provides for two options regarding the carrier’s liability. (Attachment 3 to Exhibit 1). The first option limits the carrier’s liability “to $0.60 per pound per article for all items indicated as damaged or missing at the time of delivery.”Id. The second option provides for full replacement value protection. Id. Plaintiff marked both boxes on the bill of lading. Id.
In determining which option plaintiff is bound by and ultimately the relief to which she is entitled, the magistrate judge notes that according to the agreement, in order to receive full replacement value protection, the shipper must pay a fee of $8.50 for every 1000 pounds of the shipment’s declared value. Id. However, the agreement does not indicate the declared value of the shipment. Id. Nor does it show that plaintiff paid the fee to receive full replacement value protection. Id. Thus, it does not appear that plaintiff declared the value of the shipment and paid the corresponding fee entitling her to full replacement value protection. Accordingly, the magistrate judge finds that plaintiff agreed to the carrier’s limitation restricting its liability to “$0.60 per pound per article for all items indicated as damaged or missing at the time of delivery.”Id.
However, for the limitation in the agreement to be effective and for plaintiff to be bound by it, the carrier must: (1) maintain a tariff in compliance with the requirements of the Interstate Commerce Commission; (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain the shipper’s agreement as to her choice of carrier liability limit; and (4) issue a bill of lading prior to moving the shipment that reflects any such agreement. Hughes Aircraft Co. v. North American Van Lines, Inc., 970 F.2d 609, 611-12 (9th Cir.1992) (citing Rohner Gehrig Co., Inc. v. Tri-State Motor Transit, 950 F.2d 1079, 1081 (5th Cir.1992) (en banc)); See also Acro Automation Sys. v. Iscont Shipping, 706 F.Supp. 413, 415 (D.Md.1989). The carrier bears the burden of proving that it has complied with these requirements. Carmana Designs, Inc., v. North American Van Lines, Inc., 943 F.2d 316, 319 (3d Cir.1991).
By failing to file an answer or otherwise plead to the complaint, defendant has failed to carry its burden to prove that the liability limitation was effective. Accordingly, the magistrate judge finds that defendant’s attempt to limit its liability is ineffective and plaintiff ultimately is entitled to the full replacement value of her belongings in the amount of $5,580.00 pursuant to 49 U.S.C. § 14706(a)(1).
C. Pro-Rata Percentage of the Binding Estimate
Pursuant to 49 C.F.R. § 375.707(a)(1)(I) if a shipment is partially lost the carrier can only collect a prorated percentage of the binding estimate equal to the percentage of weight of that portion of the shipment delivered relative to the total weight of the shipment.
In order to determine the prorated amount to which plaintiff is entitled to have refunded, the magistrate judge directed plaintiff to submit an affidavit estimating the weight of the items that defendant did not deliver (docket no. 14). Accordingly, plaintiff submitted an affidavit, which was based, in part, on the American Moving and Storage Association Joint Military/Industry Table of Weights and Depreciation Guide, indicating that the total weight of items that were missing at the time of delivery weighed 55 pounds. The affidavit is a sufficient basis to find, as the magistrate judge now does, that the total weight of the items not delivered was 55 pounds.
As a result, 2472 pounds was delivered on a shipment that weighed 2527 pounds in total, which represents 97.8% of the shipment. The binding estimate was $1,000.00. Accordingly, the carrier was only entitled to collect 97.8% of $1,000.00 or $978.00. Plaintiff paid the entire binding estimate of $1,000.00 and is entitled to a refund of $22.00 pursuant to 49 C.F.R. § 375.707(a)(1)(I).
D. Attorneys’ Fees
Under 49 U.S.C. § 14708, a shipper of household good is entitled to attorneys fees if it prevails in a court action against a carrier and the carrier did not advise the shipper that a dispute resolution program was available to resolve the dispute. Specifically,
in any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation … the shipper shall be awarded reasonable attorneys’ fees if-the shipper prevails in such action; and the shipper was not advised by the carrier during the claim settlement process that a dispute settlement program was available to resolve the dispute.
49 U.S.C. § 14708.
Here, plaintiff is the prevailing party in this court action by default. In addition, as noted above, plaintiff submitted a claim to Destination Movers’s claims manager, Anthem. Neither Anthem nor Destination Movers ever contacted plaintiff, much less informed her of an alternative dispute resolution program. As a result, plaintiff is entitled to attorneys’ fees pursuant to 49 U.S.C. § 14708.
Plaintiff’s counsel avers under oath that the following is an accurate representation of the attorneys’ fees incurred in this proceeding.
Attorneys’ Fees
Service Rate Time Used Cost
Counsel # 1 $175.00 5.8 $1,022.50
The magistrate judge has examined the record and finds that this amount is reasonable compensation for work necessarily expended to enforce plaintiff’s rights.
In addition, Federal Rule of Civil Procedure 54(d) provides that costs shall be allowed as a matter of course to a prevailing party Fed.R.Civ.P. 54(d). The award of costs is largely controlled by statute. Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 132 (5th Cir.1983).
Pursuant to 28 U.S.C. § 1290, plaintiff should be awarded the costs as taxed by the Clerk.
On these facts, the magistrate judge finds that the submitted pleadings and affidavits establish that plaintiffs are entitled to a default judgment and damages in accordance with the following:
Total Amount Due
Refund in Excess of Biding Estimate: $1,647.00
Recovery for Lost Items: $5,580.00
Refund for Weight of Items Lost $22.00
Attorneys’ Fees $1,022.50
Total $8,271.50
RECOMMENDATION
The magistrate judge recommends that default judgment be entered against defendant Destination Movers, Inc., in favor of plaintiff Elizabeth Ann Boles in the amount of $8,271.50 and costs as taxed by the Clerk.
NOTICE
By means of the court’s electronic filing system, and by mailing a copy of this report and recommendation to defendant’s address used for service of process, the parties are notified as follows. Objections to this report and recommendation must be filed within ten (10) days of service on you of this report and recommendation. A failure to file timely objections to this report and recommendation waives appellate review of the substance of the report and recommendation and waives appellate review of a judgment based on this report and recommendation.
