United States District Court,

E.D. Missouri,

Eastern Division.

Larry BROWN, Plaintiff,

v.

CRST MALONE, INC., Defendant/Third–Party Plaintiff,

v.

AMS Staff Leasing, N.A. Ltd., Third–Party Defendant.

 

No. 4:11CV1527 JCH.

July 6, 2012.

 

Richard L. Hughes, Sr., Mogab and Hughes, P.C., St. Louis, MO, for Plaintiff.

 

Theodore R. Bynum, III, Michael P. Nolan, St. Louis, MO, for Defendant/Third–Party Plaintiff.

 

Thomas P. Hohenstein, Polsinelli Shughart PC, St. Louis, MO, for Third–Party Defendant.

 

MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court on Third–Party Defendant AMS Staff Leasing, N.A. Ltd.’s Motion to Dismiss Pursuant to FRCP 12(b)(6), filed on April 19, 2012. (“Motion to Dismiss,” ECF No. 25). This matter is fully briefed and ready for disposition.

 

BACKGROUND

Plaintiff Larry Brown (“Plaintiff” or “Brown”) was employed by Defendant CRST Malone, Inc. (“Defendant” or “CRST”) from July 1998 through October 2007 as the owner/operator of a truck that he operated on behalf of CRST. (Complaint, ECF No. 4, ¶ 3). CRST required Brown to purchase “bobtail,” “deadhead,” and “workers’ compensation” insurance that would apply to Brown while he worked as an owner/operator for CRST. (Id., ¶ 4). CRST agreed to assist Brown and other owner/operators working for CRST to purchase this insurance, and CRST agreed to deduct monthly premiums from Brown’s paychecks and remit the monthly premiums to a workers’ compensation insurance carrier or the agent that CRST selected to obtain or provide such insurance. (Id., ¶ 5).

 

On July 21, 2002, Brown was injured while unloading freight at the Dow Chemical Company plant in Pevely, Missouri. (Id., ¶ 7). Brown filed a workers’ compensation claim for injuries to his right lower extremity, right knee, body as a whole, left knee, right upper extremity, right hand, left eye, and back. (Id.). Brown received workers’ compensation benefits for medical care and temporary disability from July 21, 2002, until March 2004, when Brown’s benefits unexpectedly ceased. (Id., ¶ 8). At a hearing on Brown’s workers’ compensation benefits before Missouri Administrative Law Judge Leslie Brown on May 19, 2008, Brown learned that the workers’ compensation policy for which premiums had been withheld from his paycheck had allegedly been cancelled by the workers’ compensation carrier, CNA, around May 30, 2002.(Id.). Therefore, Brown was not insured under the Missouri Workers’ Compensation Law at the time of his accident. (Id.). On July 31, 2008, Judge Leslie Brown ruled that Brown was not insured under the Missouri Workers’ Compensation Law at the time of his accident but was rather a self-employed owner/operator (“ALJ decision”). (Id., ¶ 9).

 

Brown brought this action against CRST for the negligent procurement of insurance on March 17, 2011, in the Circuit Court of Jefferson County, State of Missouri. (Notice of Removal, ECF No. 1, ¶ 1). CRST removed this action to this Court on September 1, 2011, on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1441. CRST filed a Third–Party Complaint for Indemnity Against Third–Party Defendant AMS Staff Leasing, N.A., Ltd. (“Third–Party Defendant” or “AMS”) on January 13, 2012. (“Third–Party Complaint,” ECF No. 13).

 

According to the allegations in the Third–Party Complaint, AMS enters into service contracts with client companies to provide assistance with the preparation of payroll, tax withholding, and workers’ compensation coverage. (Id., ¶ 7). One of AMS’s client companies was the Association of Contract Truckmen, Inc. (“ACT”). (Id., ¶ 6). ACT was formed to obtain workers’ compensation insurance for its members, who are independent truck drivers. (Id.). On December 1, 2001, ACT entered into a Staff Leasing Agreement with AMS to provide ACT with certain services, including workers’ compensation insurance for ACT members. (Id., ¶ 8). The Staff Leasing Agreement required ACT to “lease” its owner/operators to AMS, making ACT’s members “co-employees” of AMS. (Id.). AMS was then obligated to obtain worker’s compensation insurance for these “co-employees.” (Id.).

 

On May 1, 2002, Brown entered into an agreement with ACT to purchase workers’ compensation insurance on his behalf. (Id., ¶ 9). Pursuant to this agreement, Brown authorized CRST to deduct his monthly insurance premiums and to remit the amounts deducted to ACT on his behalf. (Id.). ACT would forward the amounts received from its members to AMS along with a list reflecting the owner/operators to be covered by these payments. (Id., ¶ 10). AMS would then forward the information regarding the owner/operators and their premium payments to the workers’ compensation carrier. (Id.).

 

According to the allegations in the Third–Party Complaint, from 2001 and 2002, AMS’s workers’ compensation carrier was National Fire Insurance Company of Hartford, also known as NFIC of Hartford or CNA Financial Corporation (“CNA”). (Id., ¶ 11). CNA cancelled its insurance policy with AMS in 2002, with the cancellation effective as of June 20, 2002.(Id.). AMS advised ACT that the CNA policy had been cancelled and that it would have to cancel its Staff Leasing Agreement with ACT, but neither AMS nor ACT notified CRST of the coverage cancellation. (Id., ¶ 12).

 

As indicated above, CRST brought a Third–Party Complaint against AMS on January 13, 2012. The Third–Party Complaint contains a single count for “common law/implied indemnification” and alleges AMS breached its obligations to Brown in the following ways:

 

a) by failing to obtain workers’ compensation insurance for Mr. Brown in breach of its agreement with ACT; b) by failing to transmit Mr. Brown’s withholdings to CNA; c) by failing to inform Mr. Brown or CRST of the cancellation of his workers’ compensation insurance coverage; and d) by otherwise breaching its contractual and/or common law obligations to Mr. Brown.

 

(Third–Party Complaint, ¶ 22). Accordingly, CRST claims AMS is obligated to indemnify CRST for any damages assessed against it arising out of the procurement of workers’ compensation insurance that AMS undertook on behalf of Brown.

 

AMS filed its Motion to Dismiss on April 19, 2012, on the following grounds: 1) CRST has failed to satisfy the elements of implied equitable indemnification because CRST has not shown AMS owed a duty to Brown that was “identical” to the one owed to Brown by CRST; 2) CRST is barred from arguing that Brown was a co-employee of AMS and ACT by the plain language of the staff leasing agreement between AMS and ACT; 3) CRST is collaterally estopped from arguing that Brown was a co-employee of AMS and ACT by AMS Staff Leasing v. Associated Contract Truckmen, Inc., No. 304CV1344D, 2005 WL 3148284 (N.D.Tex. Nov. 21, 2005) (“the Texas Case”); and 4) CRST is collaterally estopped from arguing that Brown was a co-employee of AMS and ACT by the ALJ decision.

 

STANDARD

In ruling on a motion to dismiss, the Court must view the allegations in the Complaint in the light most favorable to Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A cause of action should not be dismissed for failure to state a claim unless, from the face of the Complaint, it appears beyond a reasonable doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45–46 (1957); Jackson Sawmill Co., Inc. v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070 (1979).

 

Dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity. Stringer v. St. James R–1 Sch. Dist., 446 F.3d 799, 802 (8th Cir.2006). As a practical matter, such dismissal should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint there is some insuperable bar to relief. Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 864 (8th Cir.1999); see also 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. CIV. § 1357, at 565 (3d ed.2004) (stating that “relatively few complaints fail to meet this liberal standard and thereby become subject to dismissal” under Rule 12(b)(6)).

 

DISCUSSION

I. Implied Indemnification

AMS argues CRST has not established a claim for implied indemnification under Missouri law because CRST has not shown AMS had an obligation to Brown that was identical to the obligation CRST had to Brown. The Court finds CRST has adequately alleged a claim for implied indemnification under Missouri law.

 

Indemnity is the shifting of responsibility from the shoulders of one person to another. SSM Health Care St. Louis v. Radiologic Imaging Consultant, LLP, 128 S.W.3d 534, 539 (Mo.Ct.App.2003) (citing Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 727 n. 3 (Mo.1982)). Indemnity is a right that inures to the person who has discharged a duty that is owed by him, but which, as between himself and another, should have been discharged by the other, so that if the other does not reimburse the person, the other is unjustly enriched to extent that his liability has been discharged. Id. (citing Koeller By and Through Koeller v. Unival, Inc., 906 S.W.2d 744, 746 (Mo.Ct.App.1995)). This right of indemnity is based on the principle that everyone is responsible for the consequences of his own wrongdoing, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, that person may be recovered from him. Id. (citing 42 C.J.S. Indemnity § 3; 41 AM.JUR.2D Indemnity § 2).

 

 

Missouri recognizes both contractual indemnity, in which parties agree that one party will protect the other party against liability or loss, and non-contractual indemnity. Beeler v. Martin, 306 S .W.3d 108, 110–11 (Mo.Ct.App.2010). To establish a claim for non-contractual indemnity, which is also referred to as common law indemnity or equitable indemnity, the plaintiff must show: (1) “the discharge of an obligation by the plaintiff”; (2) “the obligation discharged by the plaintiff is identical to an obligation owed by the defendant”; and (3) “the discharge of the obligation by the plaintiff is under such circumstances that the obligation should have been discharged by the defendant, and the defendant will be unjustly enriched if the defendant does not reimburse the plaintiff to the extent that the defendant’s liability has been discharged.” Id. (citing State ex rel. Manchester Ins. & Indemn. Co. v. Moss, 522 S.W.2d 772 (Mo.1975)).

 

Here, viewing the allegations in the light most favorable to Third–Party Plaintiff CRST, the Third–Party Complaint adequately alleges a claim for implied indemnification against AMS. In his Complaint, Brown alleges that CRST

 

agreed that it would assist Plaintiff … to purchase said insurance; and further agreed that it would procure a policy of workers’ compensation insurance for Plaintiff …; would collect and deduct from Plaintiff’s … pay the monthly premiums for said insurance; and would remit the monthly premium it withheld from said owner/operators’ payments to the workers’ compensation insurance carrier or to the agent [CRST] had selected to obtain and/or provide said insurance.

 

(Complaint, ¶ 5). The Third–Party Complaint alleges Brown entered into an agreement with ACT to purchase workers’ compensation insurance on his behalf. The Third–Party Complaint also alleges ACT contracted with AMS to provide workers’ compensation insurance for ACT members, including Brown. Thus, CRST asserts that, if CRST is found to have had a duty to purchase workers’ compensation insurance on behalf of Brown and if a judgment is entered against CRST for the breach of that duty, AMS had an identical duty to provide workers’ compensation insurance to Brown so as to make it unjust for AMS not to reimburse CRST if CRST is compelled to pay Brown.

 

The plain language of the Staff Leasing Agreements  between AMS and ACT does not compel a different conclusion. The Staff Leasing Agreements state that they are “providing the services to assigned co-employees (“Workers”), described in this Agreement at the request of” ACT. (Staff Leasing Agreements, ECF No. 26–1, ¶ 1). The Staff Leasing Agreements state that AMS agrees to provide “continual maintenance of the workers’ compensation insurance with respect to all of the Workers and in connection therewith, provision to [ACT] of certificates evidencing such insurance coverage.” (Id., ¶ 2(e)). Finally, the Staff Leasing Agreements state “AMS Staff Leasing agrees to obtain and provide Workers’ Compensation and Employers Liability Insurance, including Occupational Disease Coverage, providing statutory benefits for Employers Liability Insurance.” (Id., ¶ 8). AMS makes much of the fact that the Staff Leasing Agreements allegedly “assign co-employees” of AMS and ACT to ACT instead of assigning such “co-employees” to AMS, as the Third–Party Complaint asserts. Even assuming AMS’s interpretation of the Staff Leasing Agreements is correct, this is a distinction without a difference: regardless of who is leasing “co-employees” to whom, the terms of the Staff Leasing Agreements indicate AMS is obligated to provide workers’ compensation insurance coverage to the “co-employees.”

 

According to the documents filed by AMS in support of its Motion to Dismiss, AMS and ACT entered into two separate Staff Leasing Agreement: the first Agreement took effect on December 1, 2000, and continued for a period of twelve months, while the second Agreement took effect on December 1, 2001, and also continued for a period of twelve months. (See Staff Leasing Agreements, ECF No. 26–1.) The Agreements are not identical, but the provisions discussed in this Memorandum are the same in both Agreements.

 

AMS also argues the Staff Leasing Agreements show Brown was not one of the “co-employees” covered by the Agreements because AMS did not administer Brown’s payroll or deduct his insurance premiums from his paycheck. As noted by CRST, the Staff Leasing Agreements do not require AMS to perform all payroll services but merely state AMS will provide “consulting assistance” with regards to various payroll functions. Furthermore, AMS’s argument assumes the Staff Leasing Agreements are the only operative agreements between AMS and ACT during the relevant time period. Since the meaning of “consulting assistance” and the exclusivity of the Staff Leasing Agreements are not settled issues at this stage in the litigation, the text of the Staff Leasing Agreements does not negate any of CRST’s substantive allegations at this time.

 

II. Issue Preclusion

AMS also argues CRST is collaterally estopped from arguing that Brown was a “co-employee” under the Staff Leasing Agreements by the Texas Case and the ALJ Decision. The Court finds both of these arguments unpersuasive.

 

The application of collateral estoppel in diversity cases is determined according to state law. Nanninga v. Three Rivers Elec. Co-op., 236 F.3d 902, 906 (8th Cir.2000). In deciding whether the application of collateral estoppel is proper, a court considers the following four factors:

 

(1) whether the issue in the present case is identical to the issue decided in the prior adjudication; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party, or was in privity with a party, to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior adjudication.

 

Wilkes v. St. Paul Fire and Marine Ins. Co., 92 S.W.3d 116, 120 (Mo.Ct.App.2002).

 

First, the issue in the present case is not identical to the issues decided in the Texas Case. The Texas Case was brought by AMS against ACT and Dave Brandert, ACT’s president, for breach of contract, fraud, and fraudulent inducement. See AMS Staff Leasing, 2005 WL 3148284, at * 1. ACT and Brandert counterclaimed for breach of contract and fraud and brought a third-party action against Pacesetter Adjustment Company for negligence, contribution, and indemnity. Id. The court in the Texas Case granted summary judgment in favor of AMS on its breach of contract claim against ACT, finding that ACT breached its contract with AMS by issuing Certificates of Insurance that falsely represented that ACT was the named insured on the CNA policy. Id. at *7. This conclusion was based solely on ACT’s failure to respond to numerous Requests for Admissions, which the court deemed admitted, and ACT’s failure to respond to AMS’s motion for summary judgment. See Id. The court in the Texas Case denied summary judgment on AMS’s claims against ACT and Brandert for fraud, fraudulent inducement, and negligent misrepresentation. Id. at *8.

 

The issue in this case is whether AMS agreed to procure workers’ compensation insurance for Brown. The Texas Case makes no mention of Brown or any other specific truck drivers. Nonetheless, AMS seems to argue that all of the court’s findings in the Texas Case apply to the present litigation, “particularly as to whether AMS contracted with ACT to provide worker’s compensation insurance to truckers such as Brown.” (Third–Party Defendant’s Memorandum of Law in Support of its Motion to Dismiss Pursuant to FRCP 12(b)(6), ECF No. 26, p. 18). AMS does not specify what category of “truckers” constitute “truckers such as Brown.” The Court assumes “truckers such as Brown” refers to other owner/operators (i.e., independent contractors) employed by CRST. The language of the Texas Case suggests, however, directly contradicts AMS’s assertion that the Texas Case found AMS did not contract with ACT to provide workers’ compensation insurance to owner/operators. The court in the Texas Case noted as follows: “In December 2000 AMS and ACT entered into a staff leasing agreement, which was renewed in December 2001, under which, inter alia, ACT’s independent truckers obtained workers’ compensation coverage through AMS.” Id. at * 1 (emphasis added). Thus, even if the Court were to find that the question in this case as to AMS’s obligation to provide workers’ compensation insurance to Brown is identical to the question of whether AMS contracted with ACT to provide worker’s compensation insurance as determined by the court in the Texas Case, the language of the Texas Case weighs strongly against AMS. The Court finds that the Texas Case has no preclusive effect on the present lawsuit.

 

Second, the issue in the present case is not identical to the issues decided in the ALJ Decision. AMS argues the ALJ Decision found no employer/employee relationship between AMS and Brown, and that such finding forecloses CRST from arguing Brown was a “co-employee” under the Staff Leasing Agreements. As noted by CRST, however, the ALJ Decision did not attempt to interpret the definition of “co-employee” under the Staff Leasing Agreements but merely applied the definition of “employee” under the Missouri Workers’ Compensation Act (“Act”). Thus, the ALJ Decision and the Staff Leasing Agreements concern entirely different definitions of “employee.” A claim for workers’ compensation benefits is governed solely by the definition of “employee” contained in the Act. See Shelton v. City of Springfield, 130 S.W.3d 30, 35 (Mo.Ct.App.2004). “Consequently, whether an employee is entitled to workers’ compensation benefits is not a contractual issue, but a statutory one.” Id. The Staff Leasing Agreements contain no definition of the term “co-employee.” In the absence of a provision in the Staff Leasing Agreements providing that the definition of “co-employee” under the Agreements is coextensive with the definition of “employee” under the Act, there is no basis for equating “co-employee” under the Staff Leasing Agreements with “employee” under the Act. Therefore, the Court finds that the ALJ decision has no preclusive effect on the present lawsuit.

 

CONCLUSION

Accordingly,

 

IT IS HEREBY ORDERED that Third–Party Defendant AMS Staff Leasing, N.A. Ltd.’s Motion to Dismiss Pursuant to FRCP 12(b)(6) (ECF No. 25) is DENIED.

United States Court of Appeals,

Seventh Circuit.

NIPPONKOA INSURANCE COMPANY, LTD., Plaintiff–Appellant,

v.

ATLAS VAN LINES, INC., Defendant–Appellee.

 

No. 11–3085.

Argued April 5, 2012.

Decided July 5, 2012.

 

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:09–CV–168—Richard L. Young, Chief Judge.David T. Maloof, Attorney, Maloof Browne & Eagan LLC, Rye, NY, for Plaintiff-Appellant.David R. Sauvey, Attorney, Evansville, In, for Defendant-Appellee.

 

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

 

WOOD, Circuit Judge.

This case involves the application of the Carmack Amendment, 49 U . S.C. § 14706, to a set of complicated contractual arrangements among a shipper, a carrier, and two entities that facilitated the shipment. As is true in many contract cases that wind up in litigation, the fundamental question is who must ultimately bear the loss when multiple actors play a role in an arrangement. While we appreciate the efforts made by both the parties and the district court to sort this out, we conclude that further proceedings are necessary. A final answer must await further development of the details of the shipping contract and the nature of the relationship among the four companies. Summary judgment was therefore inappropriate.

 

I

Our account of the facts, as it must under Federal Rule of Civil Procedure 56, takes them in the light most favorable to the nonmoving party; nothing we say should be understood as resolving any factual disputes. Toshiba American Medical System (TAMS) is a medical device manufacturer; it markets its equipment to hospitals and physicians by displaying its product line at trade shows around the country. This case arose out of a shipment that was to go from California, TAMS’s home state, to the 2008 trade show in Chicago of the Radiological Society of North America. TAMS hired Comtrans, Ltd ., to coordinate that shipment, which fell within a special category of cargo known as an “Exhibit Shipment.” Comtrans is essentially a middleman; it is not a licensed interstate motor carrier. It used its affiliate, Alternative Carrier Source, Inc. (ACS) to handle the arrangements for transportation. ACS retained Atlas Van Lines, Inc. (Atlas) to perform the actual shipment of TAMS’s equipment. (We refer to this as the Shipment, as there is only one at issue in the case.) Unfortunately, the Atlas truck carrying the Shipment was involved in a serious accident, leaving TAMS with more than $1 million in losses. Nipponkoa, TAMS’s insurance company, brought this action on behalf of TAMS.

 

Atlas is an interstate motor carrier authorized by the Federal Motor Carrier Safety Administration to transport goods in interstate commerce. Cargo claims against it are thus subject to the Carmack Amendment, 49 U.S.C. § 14706. This statute provides that a carrier of property in interstate commerce is liable for “the actual loss or injury to the property caused by” the carrier. 49 U.S.C. § 14706(a)(1). A carrier may limit its liability, however, “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.” Id. § 14706(c)(1)(A). The question in our case is whether Atlas limited its liability to TAMS consistently with the Carmack Amendment.

 

Atlas relies on two contracts executed in connection with the Shipment: (1) the contract it had in place with ACS at the time of the accident; and (2) the bill of lading delivered to Comtrans and signed by Comtrans’s warehouse manager when Atlas picked up TAMS’s shipment. Each of these, it asserts, independently limits Atlas’s liability to TAMS to $0.60 per pound: Nipponkoa disputes Atlas’s interpretation of the ACS–Atlas contract and the bill of lading, contending that neither contract applied to TAMS and that even if they did apply, they are not Carmack-compliant. The district court initially agreed with Nipponkoa and denied Atlas’s motion for summary judgment. At that time, the court found that there was a genuine issue of material fact whether TAMS agreed to allow Atlas to limit its liability for the shipment. Atlas came back with a motion to reconsider, however, and succeeded in changing the district court’s mind. In the end, the court concluded that as a matter of law TAMS (and thus Nipponkoa) was compelled to accept the contract terms, including the limitation of liability, negotiated between the carrier and intermediaries like ACS and Comtrans. This appeal followed.

 

II

A

Our review of the district court’s grant of summary judgment is de novo, Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir.2011), and so we will move directly into the merits of the appeal. We apply the widely-accepted test established in our decision in Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir.1987), to determine whether a carrier has properly limited its liability under the Carmack Amendment. See also Tempel Steel Corp. v. Landstar Inway, Inc., 211 F.3d 1029, 1031 (7th Cir.2000). In Hughes, we wrote that “[t]here are four steps a carrier must take to limit its liability under the Carmack Amendment: (1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission [ICC]; (2) obtain the shipper’s agreement as to a choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.” Hughes, 829 F.2d at 1415–16. Following the enactment of the Trucking Industry Regulatory Reform Act of 1994 and the ICC Termination Act of 1995, the first part of the Hughes test is no longer applicable. That is of no importance to the present case, however, because the only elements that are contested are the second and third.

 

Atlas argues that the ACS–Atlas contract governs this case and achieves a limitation of liability that is consistent with the Carmack Amendment. The relevant language from the ACS–Atlas contract states that the “[s]hipper acknowledges that the Tariff includes a choice of liability options.” It also says that “[u]nless Shipper specifically requests different provisions with respect to any single shipment, Shipper releases all shipments transported under this Contract to Carrier with its maximum liability to be $0.60 per pound under Item 190 of the Tariff.” Because TAMS or ACS did not declare a higher value, Atlas contends that its liability is limited to $0.60 per pound.

 

Atlas also asserts that its bill of lading reinforces this conclusion and is a second Carmack-compliant contract that also limited its liability to $0.60 per pound. A bill of lading serves as a contract. North Am. Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452, 457 (7th Cir.1996). The bill of lading here states that the shipper has released the shipment to a value not exceeding either “[t]he maximum released rate set forth in the tariff for shipments on which the specified services are being provided, which may be either $.60 per pound per article or $5.00 per pound” or “[t]he declared value for the property of $______.” Comtrans left the line blank where it could have declared a higher value than $0.60 per pound. The bill of lading concludes by stating that if the declared amount “exceeds the maximum released rate in the tariff, Carrier shall obtain insurance in this amount on Shipper’s behalf for the charges set forth in the tariff.”

 

Putting aside for the moment the question whether either contract binds TAMS, because they are not contracts directly with TAMS (a point that we discuss below), we must examine the meaning of these provisions. On their face, they suggest that TAMS had a choice between accepting a $0.60 per pound limitation of liability or declaring a different value for the load, while also incorporating Atlas’s tariff. Atlas’s shipment rates and rules are contained in the Atlas Van Lines, Inc., Specialized Transportation Group Tariff ATVL 500. Unfortunately, this apparent clarity slips away when we look to the tariff, which is an ambiguous mess. Atlas directs our attention to Item 3035, which states:

 

Rates apply on shipments released to a value not to exceed 60 cents per pound, per article. When shipment is released to a value exceeding 60 cents per pound, per article, or shipper declares a valuation on the entire shipment, rates herein apply plus charges in Item 190.

 

Thus instructed to turn to Item 190, we do so. We find that it is entitled Released Value (Valuation Charges) and states that when a shipment is released to a value exceeding the maximum liability (in this case, presumably $0.60 per pound), Atlas will obtain third-party insurance “to cover all loss or damage to the property being shipped.” Atlas charges the shipper “for the cost of this coverage” $4.50 per $1,000 for the total value declared, “subject to a minimum charge of $45.00.” The immediate question before us is whether this additional rate quoted in Item 190 should be understood as a second option for a rate, or if it is merely something that sets out the cost of insurance. Although one might protest that insurance and rates are economic equivalents, they have not been treated that way in the transportation trade. Thus, a prominent transportation law treatise confirms that an offer to purchase third-party insurance does not qualify as an alternative choice of rates under the Carmack Amendment. Augello, FREIGHT CLAIMS IN PLAIN ENGLISH, Vol. I, § 8.8.20 (4th ed.2008). Accepting that distinction, Atlas nonetheless protests that Item 190 establishes a second rate option. But its bill of lading seems to contradict that position. The bill of lading says that the $.60 per pound limitation on liability “is not insurance but a limit on Carrier’s Liability” without making a comparable clarification in Item 190. Nothing that we can find in the evidence presently in the record clarifies whether the reference to a price of $4.50 per $1,000 of value declared is supposed to incorporate both an additional rate and insurance, or if it is exclusively the price of insurance.

 

The question is further complicated by the disagreement between the parties over whether TAMS’s shipment was an Exhibit Shipment. This is important because Item 190 includes an express exception for Exhibit Shipments, and there is substantial evidence indicating that this is what TAMS’s shipment was. On the one hand, Wayne Curtis, Comtrans’s CEO and President, testified that TAMS’s shipment qualified as an Exhibit Shipment, but on the other hand, Curtis does not necessarily speak for Atlas. The relevant exception under Item 190 for Exhibit Shipments states that “[w]hen an exhibit shipment is released to a value exceeding the maximum liability … the Carrier shall provide a certificate of transit coverage for EXHIBITGUARD PROTECTION.” That might seem straightforward, but again, it is not. The glaring problem for Atlas is that Atlas appears to have waived any argument that Exhibit Guard was Carmack-compliant. It did so through Bradley Beyer, its Claim Representative, who stated in an email to Nipponkoa’s counsel that Exhibit Guard “is not subject to Carmack” because “it is actually insurance coverage that provides more protection to the shipper than a carrier is required under Carmack.” Atlas responds to this evidence not by relying on Exhibit Guard, but instead by asserting that it gave Nipponkoa a list of exhibit shippers that have declared values in excess of $0.60 per pound without purchasing Exhibit Guard. We have no idea if this is so, or what exactly might have been given, because this evidence is not in the record. On the record before us, considering all the evidence we have reviewed, we conclude that there is a genuine issue of material fact whether Atlas offered TAMS “a reasonable opportunity to choose between two or more levels of liability.” Hughes, 829 F.2d at 1415–16.

 

B

Nipponkoa argues that even if the Atlas tariff includes a choice of liability levels, neither the ACS–Atlas contract nor the bill of lading can govern this case because TAMS did not authorize ACS or Comtrans to sign shipment contracts on its behalf. Atlas responds by pointing to the Supreme Court’s statement that “[w]hen an intermediary contracts with a carrier to transport goods, the cargo owner’s recovery against the carrier is limited by the liability limitation to which the intermediary and carrier agreed.”   Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 33, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004); see also Werner Enters., Inc. v. Westwind Mar. Int’l, Inc., 554 F.3d 1319, 1324 (11th Cir.2009) (concluding that “Kirby’s teaching is not limited to maritime law” because its analysis was based on a non-maritime case, Great N. Ry. Co. v. O’Connor, 232 U.S. 508, 34 S.Ct. 380, 58 L.Ed. 703 (1914)). The idea is that if A engages B to handle a shipment, among other things, A has delegated to B the choice between a lower price with a strict limitation of liability and a higher price without one, when B engages the services of Carrier C. We must therefore determine whether ACS or Comtrans served as an intermediary between TAMS and Atlas.

 

Once again, the record leaves a great deal to be desired. Here, the chain appears to go from TAMS to Comtrans to ACS to Atlas, but the facts pertaining to ACS’s role—in particular whether it was functioning as the kind of intermediary to which the Supreme Court was referring in Kirby—are murky at best. According to Atlas, ACS is a freight broker that coordinates the billing for Comtrans’s vendors. Atlas represents that ACS served many roles for it, including that of financial intermediary between TAMS and Atlas. Atlas argues that the ACS–Atlas contract, which establishes the shipment terms and charges, was automatically triggered when ACS tendered TAMS’s load to Atlas. Nipponkoa disputes Atlas’s characterization of ACS’s role in TAMS’s trade show equipment shipments. It argues that ACS is merely Atlas’s invoicing agent. To support that point, it notes that ACS is not registered as a freight broker, as required under 49 U.S.C. § 13901. Nipponkoa also cites Curtis’s testimony to the effect that ACS takes care of Comtrans’s invoicing. At oral argument, Atlas’s counsel conceded that ACS and Atlas are owned by the same person and have the same mailing address. All we can say, in light of this, is that there are material disputed issues of fact on the question whether ACS was an entity independent from Atlas.

 

There may be somewhat greater support for Atlas’s contention that Comtrans was an intermediary, but there are competing facts in the record on that point as well. TAMS hired Comtrans to coordinate its shipment to Chicago. Comtrans does not work exclusively with Atlas for all shipments. For example, Curtis testified that Comtrans works with air freight forwarders when air shipment is required. On the other hand, Curtis testified that Comtrans has an agency agreement with Atlas, and that Atlas is Comtrans’s exclusive motor carrier. Under the agency agreement between the two entities, Comtrans is prohibited from entering into agency agreements with other van lines. In fact, when Comtrans coordinates shipments for Atlas it works under Atlas’s motor carrier number. Reviewing the evidence in the light most favorable to Nipponkoa, it is impossible to conclude as a matter of law that Comtrans was the kind of intermediary the Supreme Court had in mind in Kirby.

 

III

In sum, even if the ACS–Atlas contract or the bill of lading provides a shipper with a choice of at least two levels of liability limitation, as Hughes requires, it is not clear that TAMS was bound by either contract. Further development of the record is necessary on both of the points we have identified. We therefore REVERSE the district court’s grant of summary judgment in Atlas’s favor and REMAND for further proceedings consistent with this opinion.