MEMORANDUM OPINION(PUBLISH)

 

Court of Appeals of Texas,

Tyler.

Ann O. VAUGHN, Appellant

v.

UNITED PARCEL SERVICE OF AMERICA, INC., Appellee.

 

No. 12–10–00272–CV.

June 13, 2012.

 

Appeal from the 114th Judicial District Court Smith County, Texas.

Ann O. Vaughn, pro se.

 

Joshua P. Martin, for United Parcel Service of America, Inc.

 

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

 

MEMORANDUM OPINION

BRIAN HOYLE, Justice.

Ann O. Vaughn appeals the trial court’s summary judgment entered in favor of Appellee United Parcel Service of America, Inc. (UPS). In one issue, Vaughn argues that the trial court erred in granting summary judgment in UPS’s favor. We affirm.

 

BACKGROUND

On or about November 17, 2008, Vaughn sent a package via UPS ground delivery service from Tyler, Texas, to a recipient named Emmanuel Nieves in Antelope, California. According to Vaughn, the package contained various garments and pieces of artwork she created, some of which contained pieces of jewelry she owned. In contracting the shipment with UPS, Vaughn did not declare that the value of the package’s contents exceeded one hundred dollars.

 

Vaughn’s package was lost during shipment. UPS notified her of the loss and issued a “Request for Claim Payment.” But Vaughn refused any claim payment.

 

On December 7, 2009, Vaughn filed the instant suit against UPS alleging that UPS was liable to her for damages for breach of duty of trust, contribution, and negligence. UPS filed a motion for summary judgment, to which Vaughn responded. On July 26, 2010, the trial court granted UPS’s motion for summary judgment. This appeal followed.

 

SUMMARY JUDGMENT

In her sole issue, Vaughn argues that trial court erred in granting summary judgment in UPS’s favor.

 

Vaughn raises a host of arguments, many of which were not presented to the trial court in her response to UPS’s motion for summary judgment. Having considered each argument and having construed them liberally in the interest of justice, we have consolidated the arguments in a single issue concerning the propriety of the trial court’s grant of summary judgment in UPS’s favor. See TEX.R.APP. P. 38.1(f), 38.9.

 

Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When the movant seeks summary judgment on a claim in which the movant bears the burden of proof, the movant must prove all essential elements of the claim. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant has established a right to summary judgment, the burden of proof shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979).

 

We review de novo the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX.R. CIV. P. 166a(c).

 

Carmack Amendment to Interstate Commerce Act

The Carmack Amendment governs a motor carrier’s liability to a shipper, consignor, holder of bill of lading, persons beneficially interested in the shipment although not in possession of the actual bill of lading, buyers or consignees, or assignees thereof for the loss of, or damage to, an interstate shipment of goods. See Harrah v. 3M, 809 F.Supp. 313, 318 (D.N.J.1992); Tallyho Plastics, Inc. v. Big M Const. Co., 8 S.W.3d 789, 792 (Tex.App.-Tyler 1999, no pet.). A pertinent provision of the Amendment holds that a carrier or freight forwarder and any other common carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under subchapter I, II, or IV are liable to the person entitled to recover under the receipt or bill of lading.   Tallyho Plastics, 8 S.W.3d at 792. The liability imposed under this paragraph is for the actual loss or injury to the property. See 49 U.S.C. § 14706 (West 2012).

 

The United States Court of Appeals for the Fifth Circuit has held that the purpose of the Carmack Amendment is to “substitute a paramount and national law as to the rights and liabilities of interstate carriers subject to the Amendment.” Moffit v. Bekins Van Lines, 6 F.3d 305, 306 (5th Cir.1993) (citing Air Products and Chemicals v. Illinois Cent. Gulf R.R., 721 F.2d 483, 486 (5th Cir.1983), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984)). The Carmack Amendment subjects a motor carrier transporting cargo in interstate commerce to absolute liability for “actual loss or injury to property.” See Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194 (1964). By limiting a carrier’s liability to the actual loss or injury to the transported property, Congress intended to provide certainty to both shippers and carriers, and to enable carriers to assess their risks and predict their liability for damages.   Hughes v. United Van Lines, 829 F.2d 1407, 1415 (7th Cir.1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988); Counter v. United Van Lines, Inc., 935 F.Supp. 505, 507 (D.C.Vt.1996); Tallyho Plastics, 8 S.W.3d at 793.

 

The Carmack Amendment represents the shipper’s exclusive remedy against a carrier for goods lost or damaged during shipment. See Hoskins v. Bekins Van Lines, 343 F.3d 769, 773–78 (5th Cir.2003); Celadon Trucking Svcs., Inc. v. Titan Textile Co., Inc., 130 S.W.3d 301, 304 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). If a transaction is governed by the Carmack Amendment, state and common law causes of action involving the same transaction are preempted by the Amendment. See Accura Systems, Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir.1996); Mofit, 6 F.3d at 307; Tallyho Plastics, 8 S.W.3d at 793. For instance, state law claims that are preempted by the Carmack Amendment include the tort of outrage, intentional and negligent infliction of emotional distress, breach of contract, breach of implied warranty, breach of express warranty, violation of the Texas Deceptive Trade Practices Act (DTPA), slander, misrepresentation, fraud, negligence, and gross negligence. See D.M. Diamond Corp. v. Dunbar Armored, Inc., 124 S.W.3d 655, 661 (Tex.App.-Houston [14th Dist] 2003, no pet.).

 

The Texas Supreme Court has held that the Carmack Amendment does not preempt a DTPA claim based on a misrepresentation made prior to the contract. See Brown v. Am. Transfer and Storage Co., 601 S.W.2d 931, 939 (Tex.1980).

 

Under the Carmack Amendment, a “carrier” or “motor carrier” is “a person providing motor vehicle transportation for compensation.” See 49 U.S.C.A. § 13102(14) (West 2012); AIG Europe (Netherlands), N.V. v. UPS Supply Chain Solutions, Inc., 765 F.Supp.2d 472, 483 (S.D.N.Y.2011). The summary judgment evidence in the case at hand establishes that UPS is a “motor carrier.” Moreover, the summary judgment record conclusively demonstrates that Vaughn contracted with UPS to deliver a package via ground delivery service from Tyler, Texas, to a recipient named Emmanuel Nieves in Antelope, California, which, according to Vaughn, contained various garments and pieces of artwork she created. Based on this evidence, we conclude that the Carmack Amendment represents Vaughn’s exclusive remedy against UPS for her package lost during shipment. See Hoskins, 343 F.3d at 773–78.

 

Because the Carmack Amendment preempts Vaughn’s state law claims for breach of duty of trust, contribution, and negligence, we hold that the trial court properly granted summary judgment on those claims. Vaughn’s sole issue is overruled.

 

DISPOSITION

Having overruled Vaughn’s sole issue, we afirm the trial court’s judgment.

United States Court of Appeals,

Tenth Circuit.

FLYING PHOENIX CORPORATION, Plaintiff–Appellant,

v.

CREATIVE PACKAGING MACHINERY, INC., Defendant,

and

North Park Transportation Company; R & L Carriers Shared Services, LLC, Defendants–Appellees.

 

No. 11–8077.

June 12, 2012.

 

John Schumacher of White & White, P.C., Riverton, WY, for Plaintiff–Appellant.

 

Paula Fleck of Holland & Hart, LLP (and Jonathan James Wylie of Wylie Law Firm, LLC, on the brief), Jackson, WY, for Defendants–Appellees.

 

Before KELLY, EBEL, and HOLMES, Circuit Judges.

 

PAUL KELLY, JR., Circuit Judge.

Plaintiff–Appellant Flying Phoenix Corporation (“Flying Phoenix”) appeals from the district court’s dismissal of its claims against North Park Transportation Company and R & L Carriers Shared Services (“the carriers”), with prejudice, for lack of subject matter jurisdiction. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

 

Background

Flying Phoenix Corporation, a Wyoming corporation in the business of importing and reselling fireworks, purchased a machine designed to package fireworks for sale to end users from Creative Packaging Machinery, Inc., a North Carolina corporation. Aplt.App. 5, 6. Flying Phoenix previously purchased a different machine from Creative Packaging, and that machine arrived in satisfactory condition. Id. at 6. The second machine, however, arrived severely damaged: “the junction box was damaged, the breaker was destroyed, the frame was bent underneath, the dolly wheels were broken, the main frame was bent, and there were various scratches on the machine.” Id. at 8.

 

All facts in the Background section are taken from Flying Phoenix’s original complaint.

 

Creative Packaging was responsible for shipping the second machine to Flying Phoenix. Id. at 6. To do so, Creative Packaging contracted with R & L Carriers Shared Services, an Ohio domestic limited liability company, to have the machine shipped from North Carolina to Wyoming. Id. at 5–6. A bill of lading issued for the shipment listed Creative Packaging as shipper, R & L Carriers as carrier, and Flying Phoenix as consignee. Id. at 6–7. Importantly, the bill of lading limited the period for filing claims with a carrier to nine months, and limited the time for filing civil suit to two years and one day following denial of a claim. Id. at 29, 31–32. At some point during the delivery, R & L Carriers transferred the machine to North Park Transportation Company to complete delivery to Flying Phoenix. Id. 7. North Park delivered the machine to Flying Phoenix on April 9, 2007. Id.

 

Three days after the machine was delivered, Flying Phoenix filed a claim with North Park based on damage to the machine. Id. Roughly two weeks later, North Park inspected the machine and confirmed that it was damaged. Id. A little less than a month later, North Park and R & L Carriers notified Flying Phoenix that its claim was denied, citing evidence that the shipment was issued with insufficient packaging or protection. Id. Flying Phoenix renewed its claim approximately six months later, in November 2007, and the carriers again denied the claim—this time, asserting that the machine was “used” and inadequately packaged. Id.

 

Flying Phoenix filed suit against Creative Packaging, R & L Carriers, and North Park in federal district court on April 1, 2011, id. at 4—almost four years after its initial claim was denied in May 2007, and nearly two years after the limitations period for filing civil suit expired. Flying Phoenix asserted a claim under the Carmack Amendment, 49 U.S.C. § 14706, as well as several state-law claims. Id. at 8–12. The district court found that Flying Phoenix’s negligence claim was preempted by the Carmack Amendment, id. at 67–69, and dismissed the remainder of Flying Phoenix’s suit under Federal Rule of Civil Procedure 12(b)(6), id. at 69–71. Specifically, the district court held that Flying Phoenix’s remaining claims were brought pursuant to the bill of lading and were time-barred by the limitations period contained therein. Id. Flying Phoenix unsuccessfully sought reconsideration, arguing that its claims were independent of the bill of lading. Id. at 73–78, 87–91.

 

The manufacturer is listed as a defendant and appellee, but has had no involvement in the present case. Aplt. Br. 4 n. 1.

 

On appeal, Flying Phoenix argues that the district court erred by holding that (1) its claims were based on the bill of lading, and (2) it was bound by the terms of the bill of lading even though it was not a party and did not consent. Flying Phoenix acknowledges that a bill of lading existed for the shipment, but urges that (1) it was not a party to that bill of lading (but instead was listed as consignee by someone else), and (2) it had no knowledge of the bill of lading until shortly before the present lawsuit was filed.

 

Flying Phoenix does not appeal the district court’s conclusion that its state-law claims were preempted. Aplt. Br. 7.

 

Discussion

This appeal presents two questions: whether the Carmack Amendment creates a cause of action independent of a bill of lading, and whether a non-party consignee may be bound by the terms of a bill of lading. In considering these questions, we review the district court’s dismissal for lack of subject matter jurisdiction de novo. Wyoming v. U.S. Dep’t of Interior, 674 F.3d 1220, 1231 (10th Cir.2012). We address these questions narrowly, and our analysis is specific to the facts of this case.

 

The Carmack Amendment, 49 U.S.C. § 14706, does not create a cause of action independent of a bill of lading when a bill of lading exists. The Carmack Amendment states, in relevant part:

 

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…. Failure to issue a receipt or bill of lading does not affect the liability of a carrier.

 

49 U.S.C. § 14706(a)(1). The Carmack Amendment also enables parties to contract for limitations periods as short as nine months for filing initial claims, and two years from denial of those claims for filing any subsequent civil suit. Id. § 14706(e)(1). Flying Phoenix’s argument relies upon the last quoted sentence, concerning the legal import of failing to issue a receipt or bill of lading. According to Flying Phoenix, that provision allows a party to bring suit independent of a bill of lading, even if a bill of lading exists. We disagree, and read that sentence as simply precluding a defense: a carrier may not escape liability by failing to issue a receipt or bill of lading. As a practical matter, a carrier’s failure to issue a bill of lading only precludes the carrier from contracting for limitations periods in line with § 14706(e)(1). Thus, the Carmack Amendment does not create an independent cause of action for recovery where a receipt or bill of lading issued, and Flying Phoenix does not dispute that a bill of lading was issued in this case.

 

Separately, Flying Phoenix is bound to the terms of the bill of lading on the facts of this case. As the Carmack Amendment does not create an independent cause of action, there is no means other than the bill of lading by which Flying Phoenix may recover against the carriers. By suing under the bill of lading, Flying Phoenix must accept the terms of the bill of lading in at least two ways. First, as a third-party beneficiary, stepping into the shoes of the manufacturer-shipper, Flying Phoenix takes on the rights and limitations of the manufacturer-shipper under the bill of lading—one limitation being a time limit for filing civil suits. Second, Flying Phoenix is deemed to have accepted the terms of the bill of lading by suing under it. See, e.g., Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 36–37 (5th Cir.1997).

 

Finally, Flying Phoenix claims that, although it was listed as consignee on the bill of lading, it never saw the bill of lading until after the limitations period lapsed. It argues that, since it did not know the terms of the carriage, it should not be bound. We find no precedent for Flying Phoenix’s position, and Flying Phoenix has not directed us to any. There is no suggestion in the record that Flying Phoenix ever sought a copy of the bill of lading but was denied access, and it is well-established that a party may not sit idly by, making no effort to obtain obviously necessary documents, and then claim ignorance. Lack of diligence precludes equitable intervention. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“[T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.”);   Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir.2011) (same).

 

AFFIRMED.