Appellate Court of Illinois,

Fourth District.

In re the ESTATE OF Robert COMPTON, Deceased,

Margaret Compton, Individually and as Special Administratrix, Plaintiff–Appellee,

v.

Pneumo Abex Corporation, Pneumo Abex, LLC, Metropolitan Life Insurance Company, Owens–Illinois, Inc., Honeywell International, Inc., John Crane, Inc., Sprinkmann Sons Corporation of Illinois, and Boston Scientific Corporation, Defendants,

and

Illinois Central Railroad Company, Defendant–Appellant.

James Smith, Dianne Smith, Michael McGowan, and Evelyn McGowan, Plaintiffs–Appellees,

v.

Pneumo Abex Corporation, Pneumo Abex, LLC, Metropolitan Life Insurance Company, Owens–Illinois, Inc., Honeywell International, Inc., and Railroad Friction Products Corporation, Defendants,

and

Illinois Central Railroad Company, Defendant–Appellant,

and

John Monical, Patricia Monical, and Johnie Brown, Plaintiffs–Appellees,

v.

Pneumo Abex Corporation, Pneumo Abex, LLC, Metropolitan Life Insurance Company, Owens–Illinois, Inc., and Honeywell International, Inc., Defendants,

and

Illinois Central Railroad Company, Defendant–Appellant.

 

Nos. 4–10–1002, 4–10–1003.

Jan. 20, 2012.

 

Appeal from Circuit Court of McLean County, No. 07L204, No. 06L69, Scott Drazewski, Judge Presiding.

 

OPINION

Justice McCULLOUGH delivered the judgment of the court, with opinion.

¶ 1 This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff.Feb.26, 2010). Defendant, Illinois Central Railroad Company, filed a motion to dismiss the complaint filed by plaintiff, Margaret Compton, individually and as special administratrix of the estate of Robert Compton, and the complaint filed by plaintiffs, John Monical, Patricia Monical, and Johnie Brown. The circuit court denied defendant’s motions to dismiss and then certified the following question for our review: “Whether the defendant, Illinois Central Railroad Company, had a duty to the employees of an asbestos company to pick up unloaded boxcars upon the request of the asbestos company in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from plant operations, or warn such employees prior to moving the boxcars after the railroad had taken possession of the boxcars.” For the reasons that follow, we answer the certified question in the negative.

 

¶ 2 On December 28, 2007, petitioner Compton filed a complaint against defendant and others for the wrongful death of her husband, Robert Compton. The complaint alleged decedent worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment (April to June of 1961), decedent was exposed to asbestos. The complaint alleged decedent contracted asbestosis. Decedent died on September 14, 2007. Specific to defendant, the complaint alleged in counts IV, V, and VI that prior to and during the 1960s, defendant negligently transported asbestos to and from Unarco, and failed to warn decedent of the dangers posed by asbestos.

 

¶ 3 On May 31, 2006, plaintiffs John Monical, Patricia Monical, and Johnie Brown filed a complaint against defendant and others. The complaint alleged John Monical and Johnie Brown worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco. During their employment in the 1950s, Monical and Brown were exposed to asbestos. The complaint alleged Monical and Brown contracted asbestosis. Specific to defendant, the complaint alleged in counts III, IV, and VI that in the 1950s, defendant negligently transported asbestos to and from Unarco, and failed to warn Monical and Brown of the dangers posed by asbestos.

 

¶ 4 On July 31, 2009, defendant filed an amended motion to dismiss counts IV, V, and VI of plaintiff Compton’s complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2–619(a)(9) (West 2008)). On August 12, 2009, defendant filed an amended motion to dismiss counts III, IV, and VI of Monical and Brown’s complaint pursuant to section 2–619(a)(9) of the Procedure Code (735 ILCS 5/2–619(a)(9) (West 2008)). In support, defendant argued that plaintiffs attempted to regulate interstate commerce through the judicial system in violation of the commerce clause of the United States Constitution (U.S. Const., art. I, § 8, cl.3).

 

¶ 5 In response, plaintiffs stated that their complaints did not invoke commerce clause scrutiny because they alleged only that “after the railroad transported and delivered the asbestos, it negligently removed the empty railcars in such a manner that asbestos was emitted into the air in and around the plant.” (Emphasis in original.) Further, defendant did not warn decedent and plaintiffs Monical and Brown of the hazards. Following a hearing, the trial court denied defendant’s motions to dismiss.

 

¶ 6 On July 9, 2010, defendant filed a motion for a Rule 308 finding. On August 30, 2010, the court granted defendant’s request and noted a Rule 308 order would be entered. On November 30, 2010, the court entered the written Rule 308 order, certifying the previously stated question.

 

¶ 7 Defendant timely filed applications for leave to appeal, which this court denied on January 20, 2011. Defendant then filed petitions for leave to appeal with our supreme court. On June 29, 2011, the supreme court denied defendant’s petitions for leave to appeal and entered a supervisory order directing this court to accept the interlocutory appeals and consolidate the appeals, which this court did on July 7, 2011. In re Estate of Compton, No. 111945, 947 N.E.2d 770 (Ill. May 25, 2011) (nonprecedential supervisory order on denial of petition for leave to appeal); Smith v. Pneumo Abex Corp., No. 111944, 947 N.E.2d 770 (Ill. May 25, 2011) (nonprecedential supervisory order on denial of petition for leave to appeal).

 

¶ 8 Defendant argues it owed no duty to decedent, and plaintiffs Monical and Brown, to remove the unloaded boxcars in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from plant operations, or warn decedent and plaintiffs Monical and Brown, prior to moving the boxcars, and therefore cannot be held liable.

 

¶ 9 Whether a duty exists depends on whether the parties stood “in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Marshall v. Burger King Corp., 222 Ill.2d 422, 436, 856 N.E.2d 1048, 1057 (2006). Our supreme court has stated that whether a relationship exists justifying the imposition of a duty depends on the following four factors:

 

“(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.” Marshall, 222 Ill.2d at 436–37, 856 N.E.2d at 1057.

 

Whether a duty should be imposed involves considerations of public policy.   Marshall, 222 Ill.2d at 436, 856 N.E.2d at 1057; see also Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278, 303, 730 N.E.2d 1119, 1134 (2000) (“the existence of a duty turns in large part on public policy considerations”).

 

¶ 10 Defendant points to other jurisdictions that have found no duty “in similar circumstances.” See Crockett v. Uniroyal, Inc., 772 F.2d 1524 (11th Cir.1985); Bergman v. U.S. Silica, No. 06–CV–356–DRH, 2006 WL 2982136 (S.D.Ill. Oct. 17, 2006).

 

¶ 11 Crockett involved claims for personal injury and wrongful death caused by exposure to a poisonous pesticide while workers were cleaning empty tank cars that had transported a pesticide. Two rail carriers transported the empty tank cars from the manufacturer of the pesticide to the cleaning service. The plaintiffs sued the shipper of the pesticide and the two rail carriers, and the defendants filed cross-claims for indemnity or contribution. The Eleventh Circuit held:

 

“[A] carrier will be put to a duty to perform tasks within his expertise to insure the reasonable safety of transport and delivery. He will not, and should not, be required to examine information about the content of the shipment entrusted to him and warn the ultimate consignee of that shipment of any potential dangers arising from the nature of the cargo. We therefore hold that under the facts as presented the railroad defendants were not required to conclude the railcar was dangerous. There was therefore no duty to warn arising in them because of superior knowledge of the dangerous condition. Hence there was no negligence under this argument as a matter of law.” Crockett, 772 F.2d at 1531.

 

¶ 12 In Bergman, the plaintiff brought claims of strict products liability, negligence, and breach of implied warranty against various manufacturers of “dangerous chemicals” and a trucking company that transported the products at issue from the manufacturers to the plaintiff’s employer. The plaintiff alleged his work environment caused him to be exposed to the dangerous chemicals, and this exposure allegedly caused the plaintiff’s debilitating condition. The Southern District of Illinois found the trucking company provided a simple service, when needed, “to get the product from Point A to Point B.” Bergman, 2006 WL 2982136, at *6. Further, the trucking company was not in a position to have knowledge of the safety or handling of the silica, other than its transportation. The trucking company did not load or unload the product. The district court found the trucking company “merely a peripheral party—not able to likely press upon the manufacturer to enhance the safety of this product.” Id.

 

¶ 13 Specific to the plaintiff’s negligence claim, the district court stated:

 

“In their memorandum, Plaintiffs assert that the basis for liability in negligence is based upon the ‘duty of a manufacturer or seller of a product * * * to exercise reasonable care in the distribution of and warnings given concerning the use of the product .’ * * * Thus, there must be an existing duty compelling Lotz Trucking to do something—in this case, to use reasonable care in distributing the silica and also to provide warning regarding the use of the silica. Determining whether such duty exists is a question of law, requiring the Court to examine such factors as: (1) whether it is reasonably foreseeable that the conduct of Lotz Trucking could cause injury to another in transporting the silica; (2) the likelihood of any injury occurring due to Lotz Trucking’s transport of the silica; (3) the extent of the burden imposed upon Lotz Trucking to guard against such injury; and (4) the resulting consequences if such burden were imposed upon Lotz Trucking. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 391, 821 N.E.2d 1099, 1125 (Ill.2004).

 

Even Plaintiffs’ own legal authority makes it evident that Lotz Trucking had no duty in this instance. The law cited by Plaintiffs imposes such duty upon a manufacturer or seller—not a peripheral transportation company. Plaintiffs have not offered supporting law or other legal argument to prove otherwise. Looking at the factors regarding the existence of a duty, Lotz Trucking cannot be reasonably expected to anticipate the injury as caused in this case—otherwise, it would be expected to anticipate the injuries for any and every product it may transport in the course of its business. That is clearly unreasonable and would present too great of a burden, especially when considering the fact that Lotz Trucking has no knowledge of what UGL intended to do with the silica once it was unloaded from its trucks by UGL employees. For these reasons, coupled with Plaintiffs’ failure to show why such duty should exist, other than merely resting on their allegations and a couple of basic case cites regarding negligence in a products liability action, the Court finds no reasonable possibility that Plaintiff could state a successful claim of negligence against Lotz Trucking in an Illinois state court.” (Emphasis omitted.) Id.

 

¶ 14 In the instant case, plaintiffs fail to cite any authority, either in Illinois or any other jurisdiction, establishing a duty to remove unloaded boxcars in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from asbestos plant operations or warn employees prior to removing the unloaded boxcars. Essentially, plaintiffs seek an order creating such a duty where no such duty exists. This court declines to create such a cause of action. Given our decision on this issue, we need not address defendant’s remaining arguments.

 

¶ 15 For the reasons stated, we answer the question of the McLean County circuit court finding a railroad engaged in transport and delivery of asbestos and asbestos-containing products owed no duty to employees of an asbestos company to remove unloaded boxcars in such a manner as to prevent the movement of asbestos fibers accumulated upon the boxcars from plant operations or warn employees prior to removing the unloaded boxcars.

 

¶ 16 Question answered; cause remanded.

 

Justices APPLETON and COOK concurred in the judgment and opinion.

United States District Court, E.D. Tennessee.

Janice G. THORNTON, Plaintiff,

v.

PHILPOT RELOCATION SYSTEMS, et al., Defendants.

 

No. 3:09–CV–329.

Jan. 20, 2012.

 

MEMORANDUM OPINION

THOMAS W. PHILLIPS, District Judge.

Plaintiff entered into a contract with defendants to transport her household goods and furniture from Flowery Branch, Georgia to Knoxville, Tennessee. The goods were first delivered to a storage facility in Tucker, Georgia, and ultimately delivered to plaintiff’s residence in Tennessee in September 2005. Plaintiff alleges that defendants allowed the goods to become damaged or destroyed in transit. This matter is before the court on the defendants’ motion for summary judgment [Doc. 31]. Specifically, defendants aver that (1) as agents of a disclosed principal, they cannot be liable pursuant to a duly issued bill of lading contract; (2) the Carmack Amendment preempts all of plaintiff’s claims as a matter of law; and (3) plaintiff’s claims are barred by the applicable statute of limitations.

 

I. Background

In 1998, plaintiff and her husband relocated their business from Georgia to Knoxville, Tennessee. In 1999, plaintiff contracted with defendant Philpot Relocation and its affiliates , to handle both the moving and the interim storage of her household goods. Defendant Atlantic Moving & Storage, Inc., picked up plaintiff’s household goods pursuant to Atlantic’s Uniform Household Goods Bill of Lading and delivered the goods to storage. The household goods remained in storage for several years. On or about August 12, 2005, plaintiff requested that defendant Philpot Relocation transport her household goods from storage in Tucker, Georgia to Knoxville, Tennessee. Defendant Atlas Van Lines, Inc. picked up plaintiff’s household goods for transport from Georgia to Tennessee, pursuant to Atlas’ Uniform Household Goods Bill of Lading, which was issued on or about September 19, 2005.

 

The record shows that defendant Philpot Moving & Storage was administratively dissolved in 2001 and does not exist at this time.

 

Atlas Van Lines, Inc., was previously dismissed as a defendant in this case [Doc. 30].

 

When the household goods were delivered to plaintiff’s residence, she discovered that a substantial number of her household goods had been damaged or destroyed. Many items displayed water and mildew damage, indicating that they had been placed or stored in standing water. Other items had been damaged as a result of rough handling. Plaintiff estimates that the replacement value of items that cannot reasonably be repaired and restored is in an amount of “not less than $150,000.” Plaintiff avers that the household goods were in good condition at the time they were placed with the defendants. Plaintiff further avers that defendants failed to use reasonable care in the storage and delivery of her household goods.

 

Plaintiff submitted a damage claim form to defendants on June 20, 2006. On or about March 20, 2007, Atlas gave written notice that it denied liability for a part of plaintiff’s claim. Counsel for plaintiff acknowledged receipt of the March 20, 2007 denial letter, and responded with letters dated April 13, and May 17, 2007. On or about May 25, 2007, Atlas reaffirmed its March 20, 2007 denial of a part of plaintiff’s claim. Plaintiff brought the instant action against defendants on June 26, 2009, alleging breach of contract, bailment, and breach of warranty under state law.

 

Plaintiff alleges that she never negotiated with any Atlas employee from the first discussion in 1999 through the delivery of her household goods at her Tennessee residence in 2005. Instead, the initial move was made under contract paperwork provided by Philpot Relocation permitting intrastate moves under the authority issued in the name of its related company, Atlantic Moving & Storage, Inc. Plaintiff avers that Atlas had no participation with the first move, even to the extent of providing contract paperwork or allowing the use of its authority. Further, Atlas had no participation or involvement in the storage of her household goods in Georgia between 1999 and 2005. Plaintiff avers that no employee of Atlas ever at any time was in control or possession of her household goods.

 

In addition, plaintiff states that the Philpot Relocation driver engaged to transport her household goods from storage in Georgia to Tennessee “took exceptions against the warehouse for anything that, as he picked it up, was different than when it was delivered into the warehouse.” These exceptions consisted of four pages of discrepancies. Plaintiff avers that Philpot Relocation was aware that there were a number of problems and/or damage to her household goods, at the time of retrieving them from storage in Georgia.

 

II. Analysis

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party.   Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280–81 (6th Cir.1987); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir.1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the nonmoving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943–44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 220 (6th Cir.1996).

 

A. Defendant Philpot Relocation, as agent for a disclosed principal, cannot be held liable pursuant to a duly issued bill of lading contract.

Defendants argue that as a disclosed agent of Atlantic/Atlas, they cannot be held liable under the bill of lading. The United States Code provides:

 

Carriers responsible for agents—Each motor carrier providing transportation of household goods shall be responsible for all acts or omissions of any of its agents which relate to the performance of household goods transportation services (including accessorial or terminal services) and which are within the actual or apparent authority of the agent from the carrier or which are ratified by the carrier.

 

49 U.S.C. § 13907(a).

 

“Household goods agents” are defined at 49 C.F.R. § 375.14 to include “agents who are permitted or required under the terms of any agreement or arrangement with a principal carrier to provide any transportation service for or on behalf of the principal carrier, including the selling of or arranging for any transportation service….” Plaintiff avers that because she dealt directly with Philpot Relocation, it is not protected by its agency status and is liable for her claims.

 

Contrary to plaintiff’s argument, courts have regularly held that the agents of disclosed principals are not liable for damages arising under § 13907(a) and that these agents are not parties to the bill of lading as a matter of law. See e.g., Taylor v. Mayflower Transit, Inc., 161 F.Supp.2d 651, 658 (W.D.N.C.2000); O’Donnell v. Earles W. Noyes & Sons, 98 F.Supp.2d 60, 63 (D.Me.2000); Werner v. Lawrence Transp. Systems, Inc., 52 F.Supp.2d 567, 568 (E.D.N.C.1998); Fox v. Kachina Moving & Storage, 1998 WL 760268,(N.D.Tex. Oct.21, 1998); see also Restatement (Second) of Agency § 320. Here, plaintiff’s complaint states that “The Thorntons learned … that Atlas listed and acted through authorized agents. Among these authorized agents was Phi lpot Relocation, which was the closest agent to the then location of the household goods.” A person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract. See Kashala v. Mobility Services, Int’l LLC, 2009 WL 2144289,(D.Mass. May 12, 2009). There is no material fact in dispute that Philpot Relocation was a disclosed household goods agent and cannot be liable for plaintiff’s claims in this case.

 

B. Plaintiff’s state law claims are preempted by the Carmack Amendment

Defendants also contend that plaintiff’s state law claims are preempted as a matter of law by operation of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. The Carmack Amendment provides sweeping preemptive power over state or common law claims arising out of property loss or damage that occur as a result of interstate transport. The Carmack Amendment’s definition of “transportation” is quite broad, encompassing “services related to the goods’ movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(21)(B) (emphasis supplied). Since plaintiff contracted for the shipment of her household goods to be transported from Georgia to Tennessee, the shipment and the parties’ rights, duties and liabilities with respect thereto are governed exclusively by the Carmack Amendment to the Interstate Commerce Act. The statute defines the scope and extent to which an interstate motor carrier can be liable to a shipper on a claim of loss or damage to an interstate shipment of goods. The provisions of the Carmack Amendment supersede all the regulations and policies of a particular state and govern exclusively in determining the liability of a carrier transporting freight (including household goods) in interstate commerce. No state law can be applied in determining the scope of liability of an interstate motor carrier under the Carmack Amendment. See Adams Express Co. v. Croninger, 226 U.S. 491, 505, 33 S.Ct. 148, 57 L.Ed. 314 (1913); W.D. Lawson & Co. v. Penn. Central Co., 456 F.2d 419, 421 (6 th Cir.1972); Intech Inc. v. Consolidated Freightways, 836 F.2d 672, 677 (1st Cir.1987); Rini v. United Van Lines Inc., 104 F.3d 502 (1st Cir.2007).

 

Moreover, precisely when plaintiff’s property was damaged is irrelevant to assessing the application of the Carmack Amendment. The dispositive fact is that all of plaintiff’s claims are based on allegations that defendants damaged and/or destroyed property whose transportation and storage was governed by an interstate bill of lading. Such claims are completely preempted. The court finds that plaintiff’s state law claims for breach of contract, bailment, and breach of warranty fall squarely within the exclusive ambit of the Carmack Amendment. All of plaintiff’s claims stem from an interstate move, and are, therefore, preempted by the Carmack Amendment. The case law dictates that the statutory federal remedy provided in the Carmack Amendment precludes plaintiff from pursuing her common law claims, and the defendants are entitled to summary judgment as to all of plaintiff’s state law claims.

 

C. Plaintiff’s Carmack Amendment claim is barred by the applicable statute of limitations.

On October 7, 2010, plaintiff amended her complaint to add a claim against defendants under the Carmack Act. Defendants contend that plaintiff’s claim under the Carmack Amendment should be dismissed as untimely, as it was filed beyond the contractual two year and one day statute of limitations. The Interstate Commerce Act requires a common carrier, such as Atlantic/Atlas, to issue a receipt or bill of lading for property it receives for transport. 49 U.S.C. § 14706(a)(1). The carrier is then liable to the party entitled to recover under the receipt or bill of lading for any “actual loss or injury to the property.” Id. The only statutorily specified limitations relating to the time for filing a claim under § 14706 are restrictions imposed on the parties’ authority to contract for time limitations, as set forth in § 14706(e). That section provides:

 

A carrier or freight forwarder may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier or freight forwarder gives a person written notice that the carrier or freight forwarder has disallowed any part of the claim specified in the notice.

 

The Carmack Amendment thus contemplates that limitation periods are terms to be bargained over between shipper and carrier, so long as the minimum conditions of § 14706(e) are met. See Swift Textiles, inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 704 n. 4 (“The Carmack Amendment on its face contemplates that the choice of a statute of limitation is to lie with the shipper subject to the minimum time limit prescribed by the Act…. The Act clearly anticipates statutes of limitations and legislatively approves any limitation period exceeding two years”).

 

In this case, plaintiff received two bills of lading. The Atlantic bill of lading provides:

 

As a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after a reasonable time for delivery has elapsed, and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice.

 

Likewise, the Atlas bill of lading states as follows:

 

You must file any lawsuit within two years and one day from the date when we give you written notice that we have disallowed your claim or any part of it.

 

Moreover, the bill of lading referenced and incorporated Atlas’ tariff that contains the same limitation. The tariff provision states as follows:

 

As a condition precedent to recovery, a claim for any loss or damage injury or delay, must be filed in writing with the carrier within nine (9) months after delivery to consignee as shown on face hereof, or in case of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice.

 

Here, both bills of lading reference and incorporate the applicable two year and one day limitations period. It is undisputed that plaintiff received and signed the Atlantic bill of lading and had reasonable notice of the limitations period. Moreover, the record shows that plaintiff was presented with the second (Atlas) bill of lading, reproducing the tariff language that binds the shipper to a two year and one day period of limitation within which to bring a civil action.

 

Plaintiff states that Philpot Relocation responded to her claims on June 22, 2007, and that she received another letter from Philpot Relocation dated June 28, 2007. Plaintiff argues that the June 28, 2007 letter was the first notice of disallowance issued by Philpot Relocation and her complaint filed on June 26, 2009 is thus timely. However, plaintiff ignores the record evidence in this case that on March 20, 2007, plaintiff received written notice from Atlas that part of her claim had been denied. Following the March 20, 2007 denial, plaintiff then had two years and one day to file suit against defendants pursuant to the contractual statute of limitations set forth in the bill of lading. Plaintiff did not commence this action until June 26, 2009, which is more than two years and one day after the contractual statute of limitations for plaintiff to bring a civil action against defendants. Accordingly, the court finds that defendants are entitled to summary judgment on plaintiff’s Carmack Amendment claim.

 

III. Conclusion

For the reasons previously stated, defendants’ motion for summary judgment [Doc. 31] is GRANTED; and this action is hereby DISMISSED with prejudice.

 

Defendant’s motion for hearing on the motion for summary judgment [Doc. 44] is DENIED as moot.