2020 WL 377821

United States District Court, N.D. Ohio, Eastern Division.
Ronald W. SCHMID, et al., Plaintiffs,
v.
Anthony BUI, et al., Defendants.
Case No. 5:19CV1663
|
Signed 01/22/2020
Attorneys and Law Firms
Esther O. Agbaje, Pro Hac Vice, Robert J. King, Jr., Ciresi Conlin, Minneapolis, MN, for Plaintiffs.
Andrew D. Jamison, Reminger & Reminger, Akron, OH, for Defendants.

MEMORANDUM OF OPINION AND ORDER [Resolving ECF No. 23]
Benita Y. Pearson, United States District Judge
*1 Pending is Intervenor Sentry Casualty Company (“Sentry”)’s Motion to Intervene. ECF No. 23. The matter has been briefed. ECF Nos. 23, 26, and 29. For the reasons explained below, Intervenor’s motion is granted.

I. Introduction
Plaintiffs brought this action against Defendants after a car accident on Ohio State Route 57 (“SR 57”). ECF No. 1. Plaintiffs claim Defendant Anthony Bui, the driver of the tractor trailer truck, negligently operated the vehicle by crossing the centerline of SR 57 and colliding with Plaintiff Ronald Schmid (“Schmid”1)’s automobile. Id. at PageID #: 2-3. Schmid sustained injuries that led to multiple surgeries and hospitalization in Ohio and Wisconsin. Id. at PageID #: 2.

Schmid works for ABF North America Corp. (“ABF”). ECF No. 23 at PageID #: 102. Sentry provides workers’ compensation coverage for ABF’s employees. Id. After the accident, Schmid made a claim for worker’s compensation benefits, including but not limited to reimbursement of medical expenses and lost wages. Id. Sentry’s counsel indicates that Sentry has paid workers’ compensation benefits to and on behalf of Schmid in an amount of $311, 384.67. ECF No. 29-1 at PageID #: 172, ¶ 5. Intervenor filed the pending motion to intervene to protect its statutory subrogation interest pursuant to Minn. Stat. § 176.061(5)(b) and common law subrogation interest. ECF No. 23.

II. Standard of Review

A. Rule 24(a)
Under Rule 24(a)(2), a third party may intervene if it “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” In general, “Rule 24 is broadly construed in favor of potential intervenors.” Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir. 1991) (citations omitted). An intervening party must establish four elements: “(1) timeliness of the application to intervene, (2) the applicant’s substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court.” Michigan StateAFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (citations omitted). Failure to establish any one of these factors requires that the motion be denied. United States v. Michigan, 424 F.3d438, 443 (6th Cir. 2005) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

B. Rule 24(b)
“To intervene permissively, a proposed intervenor must establish that the motion for intervention is timely and alleges at least one common question of law or fact.” Miller, 103 F.3d at 1248.

C. Minn. R. Civ. P. 24
Before the Court permits a party to intervene under Minn. R. Civ. P. 24.01, the intervening party mus demonstrate “(1) the motion to intervene was timely; (2) an interest relating to the property or transaction that is the subject of the action; (3) as a practical matter, disposition of the action may impair or impede the party’s ability to protect that interest; and (4) the party is not adequately represented by the existing parties.” Van Meveren v. Van Meveren, 603 N.W.2d 671, 673 (Minn. Ct. App. 1999). All four elements must be satisfied before the Court can permit an intervening party to enter into the litigation. Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986) (noting that the rule “establishes a 4-part test that a non-party must meet” before the Court permits intervention.

III. Discussion
*2 Sentry asserts three different statutory bases for intervention: (1) Fed. R. Civ. P. 24(a); (2) Fed. R. Civ. P. 24(b); and (3) Minn. R. Civ. P. 24.01. The Court begins its analysis by determining whether the motion is timely.

A. Timeliness
The Court begins its analysis by determining whether the motion is timely. In order to intervene as of right, the motion must be timely. United States v. City of Detroit, 712 F.3d 925, 930 (6th Cir. 2013) (citation omitted). The Court applies the same analysis when considering timeliness for permissive intervention. Id. at n.3. Timeliness is determined by considering the following factors:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his or her interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989). “No one factor is dispositive, but rather the determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances.” Blount-Hill v. Zelman, 636 F.3d 278, 284 (6th Cir. 2011) (internal quotation marks and citation omitted). The Court has discretion to determine whether a motion to intervene is timely. Stotts v. Memphis Fire Dept., 679 F.2d 579, 582 (6th Cir. 1982). The factors for timeliness under Rule 24 are similar to those that must be considered for intervention pursuant to Minn R. Civ. P. 24.01. See Schumacher, 392 N.W. 2d at 207 (noting that the factors are “how far the suit has progressed, the reason for any delay in seeking intervention, and prejudice to the existing parties because of a delay.”) (citation omitted).

The first factor the Court must consider is the stage of the proceedings. Sentry avers that the motion is timely because “the matter is in the very early stages of litigation and the parties have not yet completed written discovery.” ECF No. 23 at PageID #: 104. The timing of the intervention alone, however, is “not the determining factor but rather…‘all circumstances’ must be examined to determine the substantive progress that has occurred in the litigation.”

United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (citation omitted). “A more critical factor is what steps occurred along the litigation continuum during” the time between when the Complaint was filed and the intervenor sought to intervene. Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000) (emphasis in original). If the parties have “made extensive progress … before the [intervenor] moved to intervene then this factor weighs against intervention.” Tennessee, 260 F.3d at 592 (internal quotations and citation omitted). The parties have engaged in discovery for over two months and discovery regarding liability is set to conclude by January 21, 2020.2 ECF No. 19 at PageID #: 92. As of the date of this Order, the parties have engaged in at least one deposition. See ECF No. 28.; cf. Stupak-Thrall, 226 F.3d atn474 (“In this instance case … discovery was closed, the experts were producing their reports, and the court’s previously identified ‘finish line’ final disposition of a case on an expedited track should occur nine to twelve months after the date the complaint is filed was fast approaching”); Johnson v. City of Memphis, 73 F. App’x 123, 132 (6th Cir. 2003) (noting that extensive progress had occurred because “a trial date had been scheduled… all witnesses had been identified, expert witnesses had submitted their reports and testified in court, depositions had been taken, and Plaintiffs’ motion for partial summary judgment had been granted.”) Discovery has not been completed, and there is a likelihood for more discovery regarding damages. See Hill v. Travelers Cas. and Sur. Co., 2015 WL 3440871, at *4 (E.D. Mich. May 28, 2015) (“Because discovery has not yet concluded indeed, more than 60 days remain in the discovery period the motion to intervene is timely.”) (citation omitted); Patel Family Trust v. AMCO Ins. Co., 2012 WL 1340371, at *2 (S.D. Ohio Apr. 17, 2012) (“there is no indication the case has progressed beyond initial discovery.”). Accordingly, this factor weighs in Sentry’s favor.
*3 The second factor, the purpose for intervention, weighs in Sentry’s favor. Sentry seeks to protects its legitimate statutory right to payment it is owed.

One particularly pertinent factor is Sentry’s failure to promptly intervene despite their knowledge of this action from when it was filed in July 2019. See ECF No. 27-6 at PageID #: 147. Sentry fails to explain why it waited four months from when the lawsuit was filed to intervene. See Tennessee, 260 F.3d at 549 (“An entity that is aware that its interests may be impaired by the outcome of the litigation is obligated to seek intervention as soon as it is reasonably apparent that it is entitled to intervene.”) (citations omitted); Stupak-Thrall, 226 F.3d at 477-78 (finding there was no timeliness when intervenor “still does not explain their five months of inaction” before attempting to intervene); but see Triax Co. v. TRW, Inc., 724 F.2d1224, 1228 (6th Cir. 1984) (“Although this litigation progressed to the final judgment … he had no reason to seek intervention prior to the decision of Triax not to appeal.”). Sentry’s inaction is further underscored by the fact that it was on notice in April 2019, at least three months beforehand, that this lawsuit was going to be filed. ECF No. 27-8 at PageID # 156. Moreover, Sentry has failed to explain even though it was aware of its interest when the litigation commenced why Plaintiffs would suddenly be unable to represent their interest. Cf. Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990) (“From the outset of the litigation, the proposed intervenors knew their interest would be affected. They were not aware, however, that their interest was inadequately represented by the City until the City responded to the plaintiffs’ summary judgment motion.”) Sentry fails to, let alone attempts to, provide a justification for its untimely intervention. This factor weighs against Sentry’s intervention.

The Court must also consider whether the timing of the intervention will prejudice the existing parties in this case. Plaintiffs aver that enabling Sentry to intervene would compromise the jury’s ability to properly award damages and is unnecessary in light of Defendants’ alleged willfulness to stipulate to the medical expenses. ECF No. 26 at PageID #: 126. Plaintiffs’ objections, however, have no bearing because analysis of prejudice to the parties “must be limited to the prejudice caused by untimeliness, not the intervention itself.” United States v. City of Detroit, 712 F.3d 925, 933 (6th Cir. 2013) (citation omitted) (emphasis in original). Plaintiffs fail to explain how the timing of Sentry’s motion would prejudice them. Accordingly, this factor weighs in Sentry’s favor.

In regards to the final factor, the Court finds that there are no unusual circumstances mitigating against or in favor of intervention.

After weighing all the factors, the Court finds that the motion is timely. The Court recognizes that Sentry did not promptly intervene to protect its interest, has been on notice even before the lawsuit was filed, and fails to even attempt to justify waiting to file the motion. Nevertheless, Intervenor has a legitimate interest, the litigation is at an early stage, and despite Intervenor’s inaction, the existing parties are not prejudiced by the timing of the intervention. These factors when considered in tandem with Sentry’s inaction lead the Court to conclude the motion is timely.

B. Rule 24(a) – Intervention of Right
*4 Aside from being timely, in order to intervene under Rule 24(a) the intervenor must also demonstrate:
(a) that he has an interest in the property or transaction that is the subject matter of the litigation; (b) that the disposition of the action as a practical matter may impair or impede his ability to protect that interest; and (c) that parties already in the litigation cannot adequately protect that interest.
Triax Co., 724 F.2d at 1227. The factors considered under Minn. R. Civ. P. 24.01 are the same. See Van Meveren, 603 N.W.2d at 673. Sentry easily satisfies the first element. The Court must determine whether Sentry has met the two remaining elements.

Sentry must demonstrate that Plaintiffs may impair its ability to protect its interest. Intervenor need only show “that impairment of its substantial legal interest is possible if intervention is denied.” Miller, 103 F.3d at 1247 (citing Purnell, 925 F.2d at 948). The intervenor’s burden for this element is minimal. Northeast Ohio Coalition for Homeless and Service Employees Intern. Union Local 1199 v. Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006). Sentry is concerned that “any disposition of the instant litigation without its participation could compromise its recovery interest.” ECF No. 23 at PageID #: 104. Under this minimal standard, Sentry has satisfied this element. See Brassi v. Elenbaas Steel Supply Co., 2013 WL 3791484, at *2 (W.D. Mich. July 19, 2013) (finding that the Ohio Bureau of Worker’s Compensation would be impaired if it did not intervene).

Sentry must also demonstrate that Plaintiffs do not adequately represent their interests. Intervenor claims that Plaintiffs’ interests converge because Plaintiff Schmid seeks to “maximize his own recovery” and may “seek to limit Sentry’s reimbursement right.” ECF No. 23 at PageID #: 104. At first glance, Sentry’s and Plaintiff Schmid’s interests arguably appear the same: to recover damages against Defendants for the injuries caused to Plaintiffs. “Ordinarily, where the intervenor and an existing party have the same ultimate objective in the litigation, the representation of the intervenor’s interest by the existing party is presumed to be adequate, and the intervenor bears the burden of demonstrating the inadequacy of that party’s representation of [its] interests.” Mills v. Tekni-Plex, 2011 WL 27076469, at *3 (N.D. Ohio Apr. 29, 2011) (citations omitted). Plaintiff Schmid has an incentive to maximize his recovery, which would include what he owes to Sentry. If there is only a “slight difference in interests” between the intervenor and the existing party, inadequate representation has not been demonstrated. Jansen, 904 F.2d at 343 (6th Cir. 1990) (citation omitted). Nevertheless, “interests need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate.” Id. (internal quotation marks and citations omitted). “[T]he Supreme Court has stated that the burden of demonstrating inadequacy of representation is a minimal one.” Triax Co., 724 F.2d at 1227 (citation omitted). “[A]n intervenor need only establish that the existing parties ‘may not adequately represent their interests.’ ” American Special Risk Ins. Co. ex rel. South Macomb Disposal Auth. v. City of Centerline, 69 F. Supp. 2d 944, 955 (E.D. Mich. 1999) (quoting Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999) (emphasis added). The burden “is satisfied if the intervenor can show that there is substantial doubt about whether his interests are being adequately represented by an existing party to the case.” Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2010 WL 2670853, at *2 (S.D. Ohio June 29, 2010). Moreover, courts are wary of finding an existing party adequately represents an insurer because “[the] Court cannot foretell the likelihood that Plaintiffs might instead, perhaps for strategic reasons, seek to downplay or ignore” the worker’s compensation claim. Marrico v. Meco Corp., 316 F. Supp. 2d 524, 527 (E.D. Mich. 2004); see also Miracle v. JPVS Imp. Exp., Inc., 2019 WL 5729868, at * 2 (N.D. Ohio Nov. 5, 2019) (“the insurer is entitled to intervene in order to protect its statutory subrogation interest”) (citation omitted); Bressi v. Elenbaas Steel Supply Co., 2013 WL 3791484, at * 2 (W.D. Mich. July 19, 2013) (finding that “because the existing parties have diverging interests, they will not adequately represent” the insurer’s benefits); Harris v. Gen. Coach Works, 37 F.R.D. 343, 345 (E.D. Mich. 1964) (“It was held long ago that where the other requirements of that rule are fulfilled, a compensation carrier has a right to intervene under Rule 24(a) where it has the right of subrogation under state law against any recovery by the injured employee against a third party.”) (citation omitted); but see Jenkins v. La-Z-Boy Inc., 2009 WL 10710296, at *2 (E.D. Tenn. Sept. 24, 2009) (“the court finds that the interests of the plaintiffs and the [intervenors] in this lawsuit are identical in that both seek maximum compensation from the defendant for the plaintiffs’ injuries.”). Against this backdrop, the Court finds that Plaintiffs may not adequately represent Sentry’s interests.

*5 Accordingly, Petitioner is entitled to intervention of right under Rule 24(a).3

C. Rule 24(b) – Permissive Intervention
Even if Sentry is not entitled to intervene as of right, it may join through permissive intervention. Besides being timely, a party may intervene under Rule 24(b)(1)(B) if they have a “claim or defense that shares with the main action a common question of law or fact.” The common question of law is whether Defendants are liable for Plaintiffs’ injuries. For the reasons explained above, the Court also find that intervention will not “unduly delay or prejudice the adjudication of the original parties’ rights” under Rule 24(b)(3).

IV. Conclusion
For the foregoing reasons, Intervenor’s motion is granted. Sentry shall be permitted to intervene as an intervenor plaintiff in this action. The cutoff date for discovery regarding liability shall remain January 21, 2020 and no enlargement will be permitted. ECF No. 19 at PageID #: 92. The Court and the parties will discuss the need for expert discovery and any other discovery regarding damages at the telephonic status conference scheduled for January 27, 2020 at 4:00 p.m. Id. Sentry’s counsel is expected to be present at the telephonic status conference. Counsel for Plaintiffs Ronald W. Schmid and Terri A. Schmid shall call the Court at (330) 884-7435 with all participants on the line.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 377821

Footnotes

1
Although both Plaintiffs have the last name Schmid, the Court refers to Plaintiff Ronald Schmid as Schmid for the sake of brevity in this Order.

2
At the Case Management Conference, the parties indicated that the need for discovery regarding damages might be dependent upon what information is obtained during the first phase of discovery.

3
Because Sentry is entitled to intervene pursuant to Rule 24(a), it also would be entitled to intervene under Minn. R. Civ. P. 24.01.

2020 WL 877795
CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Twelfth District, Clermont County.
TOTAL QUALITY LOGISTICS, LLC, Appellant,
v.
BALANCE TRANSPORTATION, LLC, Appellee.
CASE NO. CA2019-04-035
|
2/24/2020
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2017CVH000970
Attorneys and Law Firms
Calfee, Halter & Griswold LLP, David T. Bules, Alexandra R. Forkosh, 2800 First Financial Center, 255 East Fifth Street, Cincinnati, Ohio 45202, for appellant
Faulkner & Tepe LLP, John C. Scott, Tracy E. Schwetschenau, One West Fourth Street, Suite 2050, Cincinnati, Ohio 45202 and Tressler LLP, Joanna Maxwell, 6100 Center Drive, Suite 1175, Los Angeles, California 90045, for appellee

OPINION
RINGLAND, J.
*1 { ¶ 1} Appellant, Total Quality Logistics, LLC (“TQL”), appeals a decision of the Clermont County Court of Common Pleas, denying its motion for summary judgment and granting summary judgment in favor of appellee, Balance Transportation, LLC (“Balance”). For the reasons detailed below, we affirm the trial court’s decision.

{ ¶ 2} TQL is a freight broker. As such, TQL’s customers pay TQL for arranging the transportation of their products with a carrier, and TQL then pays the carrier to transport the product. Balance is a carrier that transports such products. In August 2009, TQL and Balance entered into a broker-carrier agreement (“Agreement”) that provided terms for the transportation of TQL’s customers.

{ ¶ 3} In June 2016, in accordance with the Agreement, TQL arranged with Balance to deliver one truckload of granite for its customer C&C North America, Inc. (“C&C”) from La Porte, Texas to Sun City Granite (“Sun City”) in El Paso, Texas. TQL issued a rate confirmation for the load, which Balance accepted, thus confirming its agreement to transport the load. There is no dispute that Balance took possession of the granite in good condition.

{ ¶ 4} On June 17, 2016, Balance’s driver, Adrian Bernal, arrived at Sun City. When he arrived, Bernal parked his truck on the street in front of Sun City’s building and went inside. There, Bernal met Sun City’s representative. Bernal presented the bill of lading to Sun City’s representative who signed, dated, and returned the bill of lading to Bernal. Bernal then sent an electronic copy of the bill of lading to Balance. The Sun City representative then instructed Bernal to move his truck forward a short distance from where he had parked and that “they were going to unload me.”

{ ¶ 5} Bernal returned to his truck, moved it forward a few feet as instructed, and then placed the truck in park. When he exited the vehicle, Bernal unstrapped the load from the flatbed trailer and placed the straps back inside his truck. Bernal then watched as the Sun City employees began unloading the granite.

{ ¶ 6} At some point, Bernal reentered his truck’s cabin. Bernal remained there for a few minutes until he heard a loud noise. When he stepped out of the cab, Bernal saw that the slabs of granite located in the front of the trailer were falling off the truck, which, in turn, caused slabs toward the rear of the trailer to begin falling too. While this was occurring, Bernal testified that he observed a forklift, being used by a Sun City employee, backing away from his trailer holding an unbroken slab of granite.

{ ¶ 7} After the incident, the Sun City representative who signed the bill of lading asked Bernal to return the bill to her. Bernal testified that the Sun City representative attempted to alter the bill of lading that she had already signed. After the Sun City representative made the changes to the bill of lading, Bernal made a written statement on the bill of lading. The Sun City representative then wrote her own statement below Bernal’s.

*2 { ¶ 8} Following these events, TQL claimed that Balance breached the Agreement by failing to properly deliver the cargo or refusing to pay TQL. Specifically, TQL alleged that Balance failed to timely and properly deliver the load of granite slabs to the intended destination in good condition as required by the Agreement.

{ ¶ 9} C&C submitted a cargo claim to TQL for the cost of its damaged cargo in the amount of $30,641.11. TQL paid that amount to C&C and, in exchange, C&C released and assigned its claim against Balance to TQL. Under an offset provision in the Agreement, TQL applied an open invoice of $1,900 owed to Balance as partial payment, thus reducing TQL’s claim to $28,741.11.

{ ¶ 10} On August 7, 2017, TQL filed a complaint seeking $28,741.11 for recovery under the Carmack Amendment, breach of contract, and breach of bailment duty. Balance filed a counterclaim seeking recovery of the $1,900 open invoice, alleging TQL misappropriated said funds for the claimed loss. Both parties moved for summary judgment. In a final judgment entry dated April 1, 2019, the trial court denied TQL’s motion for summary judgment and granted summary judgment to Balance. TQL now appeals, raising three assignments of error for review.

{ ¶ 11} Assignment of Error No. 1:

{ ¶ 12} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED TO APPLY THE EXPRESS LANGUAGE OF THE AGREEMENT (PARAGRAPH 8), WHICH REQUIRES DELIVERY OF THE SHIPMENT TO THE CONSIGNEE BEFORE THE CARRIER’S CARGO CLAIM LIABILITY ENDS.

{ ¶ 13} Assignment of Error No. 2:

{ ¶ 14} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO APPLY THE PROVISION IN PARAGRAPH 8 OF THE AGREEMENT STATING THAT ALL LIABILITY STANDARDS AND BURDENS OF PROOF SHALL BE GOVERNED BY THE CARMACK AMENDMENT.

{ ¶ 15} Assignment of Error No. 3:

{ ¶ 16} THE TRIAL COURT ERRED BY FAILING TO PROPERLY CONSIDER ALL EVIDENCE OF DELIVERY FAILURE WHEN GRANTING BALANCE TRANSPORTATION’S MOTION FOR SUMMARY JUDGMENT AND DENYING TQL’S MOTION FOR SUMMARY JUDGMENT ON ALL OF TQL’S CLAIMS.

{ ¶ 17} TQL’s assignments of error are interrelated and will be addressed together. TQL argues the trial court erred by denying its motion for summary judgment and instead granting summary judgment to Balance. In so doing, TQL argues it is entitled damages under three theories of liability: (1) a cargo damage claim under the Carmack Amendment, (2) a breach of contract claim pursuant to the terms of the Agreement, and (3) breach of bailment duties.

{ ¶ 18} This court reviews summary judgment decisions de novo. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there are no genuine issues of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law and, (3) when all evidence is construed most strongly in favor of the nonmoving party, reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 369-70 (1998).

{ ¶ 19} The moving party bears the initial burden of informing the court of the basis for the motion and demonstrating the absence of a genuine issue of material fact. Robinson v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In determining whether a genuine issue of material fact exists, the evidence must be construed in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 8.

*3 { ¶ 20} Pursuant to well-established principles of transportation law, cargo damage claims against interstate motor carriers are determined under the Carmack Amendment. Total Quality Logistics, L.L.C. v. Red Chamber Co., 12th Dist. Clermont No. CA2016-09-062, 2017-Ohio-4369, ¶ 11. The Carmack Amendment provides that:
[a] carrier providing transportation or service * * * shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property and is providing transportation or service * * * are liable to the person 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 (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States * * *.
Id., citing 49 U.S.C. 14706(a)(1). Accordingly, the Carmack Amendment creates a federal statutory remedy on a bill of lading against both the originating and destination carrier. Id. To assert a prima facie case pursuant to the Carmack Amendment, one must demonstrate: (1) delivery to the carrier in good condition, (2) delivery failure or arrival in damaged condition, and (3) the amount of damages caused by the loss. Id., citing Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 274 (1st Cir.2000).

{ ¶ 21} In addition to claims under the Carmack Amendment, TQL also raises a breach of contract claim against Balance pursuant to the terms under the Agreement. Pursuant to Paragraph 8 of the Agreement:
Unless otherwise agreed in writing, CARRIER shall become fully responsible/liable for the freight when it takes/receives possession thereof, and the trailer(s) is loaded, regardless of whether a bill of lading has been issued, and/or signed, and/or delivered to CARRIER, and which responsibility/liability shall continue until delivery of the shipment to the consignee and the consignee signs the bill of lading or delivery receipt.
TQL claims that Paragraph 8 mandates two conditions before the carrier’s liability ends: (1) delivery of the shipment to the consignee, and (2) consignee’s signature on a bill of lading or delivery receipt.

{ ¶ 22} Finally, TQL also claimed Balance breached its bailment duties. The general and accepted rule in bailment cases is that the bailee has two basic duties to the bailor: (1) he must exercise ordinary care in safeguarding the bailed property; and (2) he must return the bailed property, or the product thereof, undamaged. If the bailee fails to redeliver the bailed property, he has breached both of these duties and is liable to the bailor, in tort and contract, for the value of the property. In order to establish a prima facie case, the bailor must prove: (1) the existence of a bailment contract; (2) the delivery of the bailed property to the bailee; and (3) the failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment. Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826, 831 (2d Dist.1993)

{ ¶ 23} Following review, we find the undisputed evidence supports the finding that Balance successfully delivered the cargo and Sun City signed the bill of lading prior to any damage to the cargo. Thus, the loss of cargo occurred after the risk of loss had shifted from Balance. This finding is dispositive as to all claims raised by TQL.

*4 { ¶ 24} On appeal, TQL cleverly dissects the trial court’s decision to argue that the trial court ignored the “delivery” requirement and instead placed undue emphasis on the signed bill of lading. TQL maintains that, although Sun City’s representative signed the bill of lading, Balance had not yet successfully delivered the cargo. In so doing, TQL denies that delivery was complete when Bernal parked his truck in the street or when the bill of lading was signed. TQL also alleges that delivery could not have been complete at the signing of the bill of lading because Bernal still had to move the truck, repark the truck, and unstrap the granite.

{ ¶ 25} However, contrary to TQL’s argument, we do not find the trial court merged or eliminated the delivery requirement. Though the parties present argument as to the precise moment that delivery occurred, the operative facts are straightforward and not in dispute. As noted above, Bernal accepted and transported the cargo from its original destination to Sun City. Since there was no place to park his truck, Bernal testified that he parked in the street near the sidewalk and went into the office where a Sun City representative signed and dated the bill of lading and gave it back to him. Bernal then sent a copy of the bill of lading to Balance. The Sun City representative then instructed Bernal to move his truck forward a short distance and Bernal understood that “they were going to unload me.” In accordance with the instructions, Bernal testified that he moved his truck up a few feet and parked the truck. Thereafter, Bernal stated that he unstrapped the load from the flatbed trailer and placed the straps inside the truck’s cabin. Up until this point, there is no dispute that the cargo was in good condition.

{ ¶ 26} Soon thereafter, Sun City began unloading the granite from the truck. Ultimately, the granite was badly damaged during the unloading process. However, since the damage occurred subsequent to delivery and receipt of the signed bill of lading, we agree with the trial court that Balance was no longer responsible for the risk of loss in accordance with the Carmack Amendment and the parties’ contractual and bailment obligations. As a result, we find the trial court appropriately granted summary judgment in favor of Balance.

{ ¶ 27} Finally, we note that TQL argues that its claim for breach of bailment duty must be reversed because Balance allegedly did not move for summary judgment or present argument of evidence on that claim. This court has previously stated, “[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond.” Total Quality Logistics, 2017-Ohio-4369 at ¶ 9; Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 12th Dist. Clermont No. CA2018-05-034, 2019-Ohio-20, ¶ 25. “A trial court, generally, may not sua sponte grant summary judgment upon grounds not raised by the prevailing party.” Id. However, a trial court does not deprive a party of a meaningful opportunity to respond where the party has notice of an issue. Ballinger v. Leaniz Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 22.

{ ¶ 28} TQL’s claim that Balance did not move for summary judgment on the bailment claim is contradicted by the record. Balance’s motion clearly states that it sought summary judgment on all claims including specific reference to the breach of bailment duties that TQL complains of on appeal. Furthermore, since Balance argued that it had successfully delivered the cargo and had a signed bill of lading, TQL was on notice that its claim for breach of bailment duty was at issue. As a result, we find TQL’s three assignments of error are without merit and are hereby overruled.

*5 { ¶ 29} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.
All Citations
Slip Copy, 2020 WL 877795, 2020 -Ohio- 620