SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

 

MEMORANDUM OPINION

 

Court of Appeals of Texas,

Waco.

Bradley EVANS, Appellant

v.

Charles O. HENDRIX, Appellee.

 

No. 10–10–00356–CV.

Aug. 17, 2011.

 

From the County Court Bosque County, Texas, Trial Court No. 4263.

Phil Robertson, for Bradley Evans.

 

Keith Bradley, for Charles O. Hendrix.

 

Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.

 

MEMORANDUM OPINION

AL SCOGGINS, Justice.

This dispute pertains to damages sustained when a tractor-trailer driven by appellee, Charles O. Hendrix, collided with a cow allegedly owned by appellant, Bradley Evans. On appeal, Evans challenges the trial court’s $10,000 judgment in favor of Hendrix. In three issues, Evans argues that: (1) the evidence is legally and factually insufficient to prove a statutory claim against him; (2) if a common-law duty exists for a cattle owner to restrain his animals behind fences, the evidence is legally and factually insufficient to prove he breached this duty; and (3) Hendrix’s claim for lost wages is an improper measure of damages, and the trial court failed to segregate its damage award. We reverse and render.

 

Despite this Court granting him three extensions of time, Hendrix has not filed an appellee’s brief in this matter.

 

I. BACKGROUND

During the early morning hours of March 21, 2008, Hendrix drove his tractor-trailer on State Highway 174 in rural Bosque County. According to Hendrix, he had just left his home in Kopperl, Texas, hauling a load of military equipment to a destination in North Carolina. Approximately three miles from his home, Hendrix drove over a hill while driving about fifty miles per hour. As he descended the hill, Hendrix saw several cows in the highway, though it was dark at that time. He avoided most of the cows; however, he struck one cow with the right front fender of his tractor-trailer. As a result of the impact, the cab of Hendrix’s tractor-trailer and the military cargo were damaged and the cow was killed. Hendrix was not injured in the accident.

 

Following the accident, Hendrix called his wife and 911. Hendrix’s wife called the fire department. Two firemen arrived at the scene and tried to put the cattle behind a fence, but they were unsuccessful. Once the firemen left, Hendrix and his wife herded the cows up the “alleyway,” where they found a gate open about the width of a door. Hendrix could not recall if the gate had a lock. The cows “went right up in there” through the open gate, and Hendrix and his wife subsequently closed the gate.

 

Though he could not recall if the gate had a lock or not, Hendrix stated that he wired the gate closed with bailing wire.

 

Initially, Hendrix was not sure who owned the cows and suspected that several locals may be the owners. Shortly thereafter, Hendrix observed that Evans had dragged the deceased cow up a nearby street with his tractor and had cut out its back straps. Evans denied that the cow was his, but he did acknowledge that he took the cow that was hit in addition to seven other cows to auction the day of the accident. With respect to the cow that was hit, Evans stated that “the state worker” at the scene of the accident agreed that Evans could dispose of the cow and that he thought he was “doing somebody a favor.”

 

Evans owns a little less than five acres of land near the site of the accident. He had purchased the land from his neighbor, Ms. Cantrell; however, Evans noted that the “alleyway” Hendrix drove the cattle up was actually on Ms. Cantrell’s property. Evans did not have a lease with Ms. Cantrell, but she allowed Evans to run cattle on her land “to keep the grass down.”

 

Evans recalled checking on his cows two days prior to the accident. They were pastured on the back side of his land and the back side of Ms. Cantrell’s land. The gate on the “alleyway” leading to the highway was closed and chained at that time, and the fences were allegedly in good condition. Neither Evans nor another neighbor, Brandi Gregg, remembered seeing or hearing about Evans’s cattle being out on the road at any time. Evans did recall seeing another neighbor’s cows on the road earlier in the summer of 2008. According to Gregg, Evans’s cattle had never been on her property since the gates between the Greggs’ property and Evans’s property were closed. Gregg first heard about cows on the highway when a Sheriff’s Deputy awoke her and her husband at 5:00 a.m. on the day of the incident.

 

Hendrix filed suit against Evans, alleging that Evans “failed to exercise proper supervision and control of said cattle and in turn Hendrix hit one of the cows with his 2001 Freightliner[,] tearing the passenger side off of the truck” and requesting compensation for lost wages and damages to the tractor-trailer and cargo. Evans filed an answer denying all of the allegations contained in Hendrix’s petition.

 

In his bare bones petition, Hendrix did not specifically allege that Evans violated any statutory provisions. Because the parties did not assert that Bosque County is subject to any “stock laws,” we construe Hendrix’s petition to allege that Evans violated section 143.102 of the agriculture code. See TEX. AGRIC. CODE ANN. § 143.102 (West 2004).

 

On September 1, 2010, the trial court conducted a bench trial on this matter. After hearing testimony from Hendrix, Evans, and Gregg, the trial court ruled in favor of Hendrix and awarded him $10,000 in damages. Evans filed a motion for new trial, which was denied. He also tendered two requests for findings of fact and conclusions of law; however, no findings of fact or conclusions of law were filed. This appeal ensued.

 

II. STANDARD OF REVIEW

When a trial court does not issue findings of fact and conclusions of law, all facts necessary to support the judgment and supported by the evidence are implied. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). And when, as here, the appellate record includes a clerk’s record and a reporter’s record, a party may challenge the trial court’s implied findings of fact for legal and factual sufficiency. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); see also Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989) (holding that we conduct our review of sufficiency challenges to implied findings under the same standards of review that govern sufficiency challenges to jury findings or the trial court’s findings of fact).

 

We may sustain a legal sufficiency challenge only when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). In reviewing a legal sufficiency issue, we view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001).

 

Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.   Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

 

III. ANALYSIS

Texas courts have recognized that: “It is the right of every owner of domestic animals in this state, not known to be diseased, vicious, or ‘breachy,’ to allow them to run at large.” Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex.1999); see Fennell v. Seguin St. Ry. Co., 70 Tex. 670, 8 S.W. 486, 486–87 (1888) (“There is no general law in Texas prohibiting owners from permitting their cattle to run at large…. [C]attle may lawfully run at large….”); Gholson v. Parrish, 92 S.W.2d 1113, 1114 (Tex.Civ.App.-Fort Worth 1936, no writ) (finding no duty to fence a public highway off from pasture lands used for grazing and noting that the plaintiff should have known the propensity of cattle to use the public highway for grazing given that the highway was not fenced). While Texas has generally been a “free range” state, the Legislature has established two exceptions. See Goode v. Bauer, 109 S.W.3d 788, 791 (Tex.App.-Corpus Christi 2003, pet. denied) (noting that there is no common-law duty in Texas for an owner of livestock to restrain his animals within fences and that any duty to restrain livestock is statutory). First, the agriculture code permits elections to adopt local “stock laws,” which provide that “a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held.” TEX. AGRIC. CODE ANN. § 143.024 (West 2004); see Gibbs, 990 S.W.2d at 749. Second, section 143.102 of the agriculture code provides that: “A person who owns or has responsibility for the control of a … cow, bull, steer, … may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway.” TEX. AGRIC. CODE ANN. § 143.102 (West 2004); see Gibbs, 990 S.W.2d at 749.

 

Relying on these two statutory provisions, some Texas courts have held that livestock owners may be liable for negligence if their animals stray onto highways or other roads in areas that have passed stock laws. See Gibbs, 990 S.W.2d at 749–50 n. 4 (citing Beck v. Sheppard, 566 S.W.2d 569, 572–73 (Tex.1978) (declining to presume that a horse owner was negligent under a predecessor to section 143.102 because the owner had not “knowingly” allowed his horse to roam at large, but then analyzing whether the driver produced some evidence that the owner violated a “common-law” duty to act with due care to keep his horse from escaping onto the highway); Weaver v. Brink, 613 S.W.2d 581, 583–84 (Tex. Civ. App .-Waco 1981, writ ref’d n.r.e.) (finding defendant was negligent and thus liable because he knowingly maintained cattle behind fences unable to withstand rainfalls, and he knew or should have known that the cattle had been loose several times at or near the highway)).

 

In this case, Hendrix did not plead or prove that this dispute involved any local stock laws. In fact, he did not allege that Evans violated any statutory provision. Based on our review of the agriculture code and the record in this case, it does not appear that any “stock law” applies. Thus, we are left to determine Evans’s liability or lack thereof within the context of section 143.102.

 

As noted earlier, section 143.102 requires that Hendrix prove that Evans, the alleged owner of the cattle on the highway, knowingly permitted the cattle “to traverse or roam at large, unattended, on the right-of-way of a highway.” TEX. AGRIC. CODE ANN. § 143.102. Here, there is no evidence that Evans knowingly permitted his cattle “to traverse or roam at large, unattended, on the right-of-way of a highway.” See id. Evans admitted that his cattle were allowed on Ms. Cantrell’s property “to keep the grass down,” but two days prior to the accident, Evans’s livestock were on the back of his property and Ms. Cantrell’s property away from the highway. In addition, Evans recalled that the gate to his property was locked and chained. Furthermore, both Evans and Gregg testified that they have never seen or been told about Evans’s cattle being on any roadway. Based on our review of the record, there exists a complete absence of evidence as to the “knowing” element of Hendrix’s section 143.102 claim. See id.; see also Chapman, 118 S.W.3d at 751. Because Hendrix did not proffer any evidence as to the “knowing” element of his section 143.102 claim, and because there is no common-law duty to restrain one’s livestock within fences, we conclude that the evidence supporting the trial court’s judgment is legally insufficient. See Chapman, 118 S.W.3d at 751; see also TEX. AGRIC. CODE ANN. § 143.102; Gibbs, 990 S.W.2d at 749; Beck, 566 S.W.2d at 572 (“ ‘[I]t is true, nevertheless, that such animals may often escape without fault on the part of their owners, when the latter will be guilty of no offense against the law.’ ”) (quoting Jackson v. Overby, 185 S.W.2d 765, 766–67 (Tex.Civ.App.-Eastland 1945, no writ)). Accordingly, we sustain Evans’s first issue.

 

IV. CONCLUSION

Having sustained Evans’s first issue on appeal, we reverse the judgment of the trial court and render judgment that Hendrix take nothing. See Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.1986) (per curiam) (stating the well-settled rule that legal sufficiency or “no evidence” points require rendition in favor of the appealing party).

 

Because Evans’s first issue affords him the greatest relief, we need not address Evans’s remaining issues. See TEX.R.APP. P . 47.1.; see also CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000); Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999) (explaining that generally, when a party presents multiple grounds for reversal of a judgment on appeal, appellate courts should first address issues that would require rendition).

United States District Court,

C.D. California.

CONTESSA PREMIUM FOODS, INC. and Zurich American Insurance Company, Plaintiff,

v.

CST LINES, INC.; Far East Carrier LLC; and Does 1 through 15, Defendants.

No. CV 10–7426 (FFMx).

Aug. 18, 2011.

ORDER re: Plaintiffs Contessa Premium Foods and Zurich American Insurance Company’s Motion for Summary Judgment [19], and Defendant CST Lines, Inc.’s Motion for Summary Judgement [20]

RONALD S.W. LEW, Senior District Judge.

On July 15, 2011, Plaintiffs Contessa Premium Foods, Inc. (“Contessa”) and Zurich American Insurance Company (“Zurich”) filed the present motion for Summary Judgment, or in the alternative, Summary Adjudication [19]. Defendant CST Lines, Inc. (“CST Lines”) concurrently filed a Cross–Motion for Summary Judgment [20]. Both motions were set for hearing on August 9, 2011 and taken under submission on August 5, 2011. After considering all of the papers and arguments submitted on these matters, THE COURT NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS Plaintiffs Contessa and Zurich’s Motion for Summary Judgment. Furthermore, the Court DENIES, in its entirety, Defendant CST Lines’s Motion for Summary Judgment.

I. BACKGROUND

On May 28, 2008, Plaintiff Contessa Premium Foods, Inc. (“Plaintiff Contessa”) a producer and distributor of frozen food products, and Defendant CST Lines, Inc. (“Defendant CST Lines”), a federally licensed motor carrier and broker, entered into a Motor Carrier Agreement (“Agreement”) to transport 48 pallets of frozen food products (“the shipment”) from Plaintiff Contessa’s Green Cuisine Plant in Commerce, California to an Indianapolis, Indiana warehouse. Defendant CST Lines agreed to provide temperature controlled transportation for all shipments tendered by Plaintiff Contessa and maintain the reefer units at a constant minus ten degrees Fahrenheit. The Agreement also includes provisions stating that the Carrier (Defendant CST Lines), in the transportation of any shipment on behalf of the Shipper (Plaintiff Contessa), fully assumes liability for any and all loss or damage to the shipment or any portions thereof.

Thereafter, Defendant CST Lines sub-contracted with a separate trucking company, Far East Carrier, LLC (“Far East Carrier”), to pick up, transport, and deliver the shipment pursuant to a broker agreement between Defendant CST Lines and Far East Carrier. Defendant CST Lines instructed Far East Carrier to check-in and sign paperwork as “CST Lines, Inc.” when picking up the shipment from Plaintiff Contessa. (Pl.’s Mot. 3).

The Agreement does not contain a provision prohibiting brokering.

On September 14, 2009, a truck driver employed by Far East Carrier received delivery of the shipment from Plaintiff Contessa’s plant in California. At the time of delivery, the truck driver who received the shipment stated on the bill of lading, under the “Trucker Name” line, that he was picking up the goods on behalf of “Far East.”

Immediately after Far East Carrier picked up the shipment, Plaintiff Contessa faxed Defendant CST Lines a “shipment manifest,” which noted that Defendant would receive payment of $4,200 for its transportation services. Defendant CST Lines directly invoiced Plaintiff Contessa for the entire $4,200 without informing Plaintiff that it had subcontracted the load to Far East Carrier.

The frozen food shipment was delivered to the agreed upon location in Indiana, at a temperature which caused damage to the shipment.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party.   Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.”   Soremekun v.. Thrifty Payless, Inc., 509 F.3d 978, 984 (2007).

Once the moving party makes this showing, the non-moving party must set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 322. The non-moving party is required by Federal Rules of Civil Procedure Rule 56(e)  to go beyond the pleadings and designate specific facts showing a genuine issue for trial exists. Id. at 324.

The Federal Rules of Civil Procedure were amended on December 01, 2010. Federal Rules of Civil Procedure, Rule 56(e) has now been codified as Federal Rules of Civil Procedure, Rule 56(c).

III. ANALYSIS

A. Evidentiary Objections

As a preliminary matter, in ruling on a Motion for Summary Judgment, the Court considers only evidence that is admissible at trial. Fed.R.Civ.P. 56(c). Here, Defendant CST Lines filed objections to the use of certain declarations and various excerpts of deposition testimony used in support of Plaintiffs’ motion. The Motor Carrier Agreement attached to the Deposition Testimony of Defendant’s 30(b)(6) designee Christopher Erickson and the Declaration of Jennifer Pedersen are the only pertinent objections the Court considered in its analysis. All other objections are therefore OVERRULED AS MOOT.

1. Objection to the Motor Carrier Agreement

Defendant CST Lines objects to the Motor Carrier Agreement, attached as Exhibit 2 to the Deposition of Christopher Erickson, on the grounds that it violates the best evidence rule. Declaration of Ian P. Culver (“Culver Decl.”), ¶ 6, Ex. 4. This objection, however, is misguided as the Federal Rules specifically provide that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Fed.R.Evid. 1003. Here, Defendant has raised no facts to question the authenticity of the Motor Carrier Agreement. Therefore, the Court OVERRULES this objection.

2. Objection to the Declaration of Jennifer Pedersen

Defendant objects to the Declaration of Jennifer Pedersen in its entirety as a “sham affidavit.” Under the “sham” affidavit rule, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.”   Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). But the Ninth Circuit has advised that the doctrine should be used with caution and reserved for situations that appear to be an effort solely to survive summary judgment. See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir.2005).

The Court finds that any additional information in Jennifer Pedersen’s declaration appears to be a result of newly produced evidence, and does not appear to be a tactical attempt to evade an unfavorable summary judgment. Therefore, the Court OVERRULES this objection based on the “sham affidavit” rule.

B. The Carmack Amendment and Motor Carrier Status

The Carmack Amendment of the Interstate Commerce Act (“Carmack”) imposes liability on motor carriers for all losses relating to goods they transport in interstate commerce. 49 U.S.C. § 14706 (1996); Missouri Pac. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137 (1964). Liability for lost or damaged goods under Carmack, however, does not extend to freight brokers. 49 U.S.C. § 14706; see also PNH Corp. v. Hullquist Corp., 843 F.2d 586, 590–91 (1st Cir.1988) (limiting liability under Carmack to carriers). The difference between a carrier and a broker “is often blurry.” CGU Intern. Ins. Inc., PLC v. Keyston Lines Corp., 2004 WL 1047982, at(N.D.Cal. May 5, 2004). “The crucial distinction is whether the party legally binds itself to transport, in which case it is considered a carrier.” Id. (citing 49 C.F.R. § 371.2(a)).

Thus, as a threshold issue, to obtain summary judgment and subject Defendant CST Lines to Carmack liability, Plaintiffs must show that there are no genuine issues of material fact as to Defendant CST Lines’s status as a “Motor Carrier.” Plaintiffs contend that Defendant CST Lines is a Motor Carrier. On the other hand, Defendant CST Lines argues that it is a broker and not subject to Carmack liability.

The Court finds that Defendant CST Lines is a Motor Carrier within the definition of Carmack for the following reasons.

1. The Motor Carrier Agreement is Evidence that Defendant is a Motor Carrier under Carmack

Courts have consistently recognized that a party can accept responsibility and become liable under Carmack by signing a Motor Carrier Agreement that identifies the party as a “motor carrier.” AIOI Ins. v. Timely Integrated, Inc., 2009 WL 2474072, at(S .D.N.Y. Aug. 12, 2009) (noting that representation as “carrier” in motor carrier agreement is evidence of motor carrier status); Land O’ Lakes, Inc. v. Superior Serv. Transp of Wis., Inc., F.Supp.2d 1150, 1154 (E.D.Wis.2007) (quoting Allied Tube & Conduit Corp. v.. S. Pac. Transp. Co., 211 F.3d 367, 370–71 (7th Cir.2000)) (same).

Here, there is no genuine dispute that Defendant CST Lines signed a Motor Carrier Agreement with Plaintiff Contessa. Similar to the agreements in both AIOI and Land O’Lakes, this agreement identified Defendant as a “Carrier” and imposed liability on Defendant “for any and all or damage to … shipment.” Culver Decl., ¶ 6, Ex. 4. The Court finds that this language in the Motor Carrier Agreement is strong evidence of Defendant CST Line’s status as a motor carrier.

Defendant CST Lines argues that the Motor Carrier Agreement should, instead, be read as evidence of its status as a broker because the agreement did not prohibit Defendant CST Lines from acting as a broker. Even under this constrained reading of the contract, however, the Court finds that Defendant CST Lines was a carrier within the definition provided by Carmack because Defendant identified itself as a “Carrier,” accepted responsibility under the contract for damaged goods and “arrang[ed]” for their shipment. See AIOI, 2009 WL 2474072, at *3.

Defendant CST Lines also contends that a motor carrier agreement is not evidence of Carmack liability because matters touching on contract interpretation are more appropriately filed as a claim for breach of contract.

The Court finds Defendant’s argument unpersuasive. The existence of a contract in a dispute does not automatically covert the dispute into a breach of contract claim. Here, the purpose of identifying the Motor Carrier Agreement is to establish motor carrier liability under Carmack. Furthermore, requiring Plaintiff to file a breach of contract claim would contradict principles of federal preemption, which provide “that the liability for damage to an interstate shipment is a matter of federal law controlled by federal statutes.” Missouri Pac. R. Co., 377 U.S. at 137. As such, the Court finds that Plaintiffs’ correctly filed the claim under Carmack, rather than as a breach of contract claim.

2. Defendant CST Lines is a motor carrier because it did not hold itself out as a broker

Under the Interstate Commerce Act, a freight broker is:

a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for transportation.

49 U.S.C. § 13102(2). By contrast, a carrier is “a person providing … transportation for compensation.” § 13102(12).

An entity has liability under Carmack if the carrier accepts responsibility for ensuring delivery of the goods, “regardless of who actually transported them.” CGU, 2004 WL 1047982, at *2; see AIOI, 2009 WL 2474072, at(finding that a party was a motor carrier even though it subcontracted transportation services to another company who damaged the goods). A party will be regarded as a motor carrier under Carmack as long as it provides “transportation for compensation” with “transportation” defined as either directly providing or “arranging for” delivery. 49 U.S.C. § 13102.

The Court finds that Defendant CST Lines was not acting as a “broker” under the Carmack statutory definition. There is no evidence that Defendant CST Lines sold, offered, or held itself out to Plaintiffs as arranging for shipments by others to serve as carriers. See 49 U.S.C. § 13102(2). On the contrary, the undisputed facts show that Defendant CST Lines was holding itself out to be the actual “carrier” for the shipment of the goods at issue. Both the Motor Carrier Agreement and the bill of lading refer to Defendant CST Lines as the motor carrier. Moreover, the Defendant invoiced Plaintiff Contessa directly for carrier services, which “create an inference that [Defendant] held itself out to Plaintiff as a transporter of property.” Delta Research Corp. v. EMS, Inc., 2005 WL 2090890, at(E.D.Mich. Aug. 29, 2005) (finding that direct invoice by Defendant to Plaintiff for the entire loading and transportation process is circumstantial evidence of carrier status). Defendant CST Lines also never communicated to Plaintiff Contessa that it was planning on subcontracting transportation to another carrier when Plaintiff Contessa continued to bill Defendant CST Lines after the delivery of the goods.

As such, the Court finds that Defendant CST Lines never held itself out as a broker and is therefore liable under Carmack.

3. Defendant CST Lines is liable under Carmack because Defendant Far East Carrier acted as an agent for Defendant CST Lines

In the context of Carmack, a broker can be subject to agency liability if its actions “were not limited to arranging transport, but also exerting some measure of control.” Hewlett–Packard Co. v. Brother’s Trucking Enters., 373 F.Supp.2d 1349, 1352 (S.D.Fla.2005). See also U.S. v. Bonds, 608 F.3d 495, 506 (9th Cir.2010) (defining an agent as one who “acts on the principals behalf and subject to the principal’s control”).

Plaintiffs contend that Defendant CST Lines should, at a minimum, be liable under Carmack because Defendant CST Lines exerted control over Defendant Far East Carrier’s delivery.

The Court finds Plaintiffs’ argument on point. The undisputed facts show that after booking the shipment with Plaintiff Contessa, Defendant CST Lines faxed a load confirmation document with specific handwritten instructions concerning the manner and means by which the load should be carried. The instructions directed Far East Carrier to carry the load at a specified temperature, make daily check calls to Defendant CST Lines, and sign all papers using Defendant CST Lines’s name. The Court finds that such detailed instructions are indicative of the control CST Lines exerted over Far East Carrier.

Thus, even if Defendant CST Lines never signed the Motor Carrier Agreement categorizing it as a “carrier,” the Court finds that Defendant CST Lines would still be, nonetheless, subject to liability under Carmack through principles of agency.

For the reasons above, the Court finds that Defendant CST Lines is a motor carrier under Carmack.

C. Establishing Motor Carrier Liability Under Carmack

The remaining issue is whether Defendant CST Lines, as a motor carrier, is liable under Carmack. The Court finds that Plaintiffs have met their burden and that there are no genuine issues of material fact as to Defendant’s liability under Carmack.

To establish a prima facie case under Carmack, a shipper must demonstrate that (1) its goods were delivered to the carrier in good condition, (2) the goods arrived in damaged condition, and (3) the subsequent condition of the goods resulted in damages. Chubb Group of Ins. Cos. v. H.A. Transp. Sys. Inc., 243 F.Supp.2d 1064 (C.D.Cal.2002). Once a shipper satisfies this burden, the burden of proof then shifts to the carrier to show that it was free of negligence and “that the damage was caused by one of the several expected causes that relieve carriers of liability.” Id.; Land O’ Lakes, F.Supp.2d at 1154 (E.D.Wis.2007) (quoting Allied Tube & Conduit Corp. v. S. Pac. Transp. Co., 211 F.3d 367, 370–71 (7th Cir.2000)).

1. The First Two Elements: the goods were delivered in good condition and arrived in damaged condition

The Court finds that the first two elements required under Carmack have been met. Evan Schneider, an employee of Defendant CST Lines, admitted in his Deposition that Defendant Far East Carrier transported the goods at a higher temperature than required and that the goods were damaged due to this mishandling. Such an admission creates an inference that the goods were delivered in good condition and that the goods arrived in a damaged condition, thereby establishing the first two elements required for Carmack liability.

As Plaintiffs have met their burden for these two elements, Defendant CST Lines is required by Federal Rules of Civil Procedure, Rule 56(c), to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. Defendant CST Lines, however, offers no facts to place Evan Schneider’s admission in doubt. Rather, Defendant only contends that the admission by Evan Schneider should not be considered because it was arguably not authorized by Defendant CST Lines.   Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993) (citing Marks v. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir.1978)) (finding conclusory allegations unsupported by factual allegations as insufficient to create a triable issue of fact so as to preclude summary judgment).

The Court finds Defendant’s assertion unpersuasive. Defendant CST Lines designated Evan Schneider to testify about “the transportation of the shipment,” and Evan Schneider’s admission described the transportation of the goods at issue.

For the reasons above, the Plaintiff has satisfied the burden of proof on the first two Carmack elements.

2. The Third Element: Damages

The Court finds that the third element pertaining to specified damages has also been met as there is no dispute that the shipment of the goods at issue resulted in money damages.

Under Carmack, absent a written agreement limiting liability, a motor carrier is generally liable for the “actual loss or injury to the property.”   OneBeacon Ins. Co. v. Haas Indus, Inc., 634 F.3d 1092 (9th Cir.2011) (citing 49 U.S.C. § 14706(a)(1)).

Plaintiffs contend that their actual losses total $97,491.97, an amount composed of $87,091.02 in lost profits, $4,380.00 in freight charges, and $5,948.67 in inspection and disposal expenses. Declaration of Jennifer Pedersen (“Pedersen Decl.”), ¶ 15, Ex. H. (insurance subrogation receipt corroborating this amount).

Out of this total, Defendant CST Lines only disputes the $4,380.00 freight charge, contending that Plaintiff Contessa should not be entitled to this amount because those freight charges were never paid.

The Court finds Defendant CST Lines’s argument unpersuasive. It is undisputed that Defendant CST Lines has previously invoiced Plaintiff Contessa for freight charges and have never withdrawn those charges. The Court finds that Plaintiffs are entitled to damages equal to the amount of the freight charge because the $4,380 .00 is a debt that still remains on Plaintiff Contessa’s account.

In sum, the Court finds that Plaintiffs are entitled to recover $97,491.97, an amount that is subject to a reduction of $4,380.00 if Defendant CST lines withdraws its freight charge invoice.

3. Attorneys’ Fees

Plaintiffs assert that they are entitled to attorneys’ fees pursuant to an attorneys’ fees clause in the Motor Carrier Agreement. In response, Defendant CST Lines objects to attorneys’ fees, citing a Fifth Circuit case, which held that Carmack preempts attorneys’ fees where a state statute forms the basis of the claim. Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir.1996).

The Court, however, finds that the case cited by Defendant CST Lines is not on point as Plaintiffs’ claim is based on language in the Motor Carrier Agreement rather than a state statute. Mosso, 2007 WL 2746723, at(awarding attorneys’ fees in Carmack liability case when bill of lading signed by parties contained an attorneys’ fees clause). As such, the Court finds that an award for attorneys’ fees is appropriate.

As for the reasonableness of the amount requested by Plaintiff, a district court has a great deal of discretion in determining whether attorneys’ fees are reasonable. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir.1992). Here, the reasonableness of attorneys’ fees requested by the Plaintiffs are not in dispute.

As such, pursuant to the attorneys’ fees clause in the Motor Carrier Agreement, the Court awards the Plaintiffs attorneys’ fees of $37,387.32.

IV. CONCLUSION

For the reasons stated above, the Court finds that there is no triable issue of material fact regarding Defendant CST Lines’s status as a motor carrier and its liability under the Carmack Amendment. Accordingly, the Court GRANTS Plaintiffs Contessa and Zurich’s Motion for Summary Judgment and DENIES Defendant CST Lines’s Cross–Motion. The Court awards Plaintiffs damages of $97,419.87 subject to reduction of $4,380.00 if Defendant CST lines withdraws its freight charge invoice. The Court also awards $37,387 .32 in attorneys’ fees to Plaintiffs.

IT IS SO ORDERED