United States District Court,

N.D. Alabama,

Southern Division.

Tommy ROBERTS, Plaintiff,

v.

NEW HAMPSHIRE INSURANCE COMPANY, Defendant.

 

Civil Action No. 2:12–cv–00031–AKK.

April 23, 2013.

 

Henry H. Cobb, IV, Mark David Erdberg, Jaffee & Erdberg PC, Birmingham, AL, for Plaintiff.

 

John W. Dodson, Michael H. Gregory, Michelle L. Crunk, Ferguson Frost & Dodson LLP, Birmingham, AL, for Defendant.

 

MEMORANDUM OPINION AND ORDER

ABDUL K. KALLON, District Judge.

*1 Tommy Roberts filed this action in the Circuit Court of Jefferson County, Alabama seeking a declaratory judgment regarding the availability and amount of uninsured motorist coverage under an applicable liability insurance policy with Defendant New Hampshire Insurance Company. Doc. 1 at 11–12. Defendant subsequently removed the action to this court, doc. 1 at 1–4, and both parties now seek summary judgment, docs. 9 and 12. The motions are fully briefed and ripe for review. Docs. 10, 15–18. For the reasons discussed below, the court DENIES Plaintiff’s motion and GRANTS Defendant’s motion.FN1

 

FN1. Additionally, the court did not rely upon the declaration of Sarah Haynes in reviewing the parties’ motions. Therefore, Plaintiff’s motion to strike this declaration, doc. 19, is DENIED.

 

I. SUMMARY JUDGMENT STANDARD OF REVIEW

Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

 

The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will be resolved in Plaintiffs’ favor when sufficient competent evidence supports Plaintiffs’ version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson, 477 U.S. at 252)).

 

II. FACTUAL BACKGROUND

*2 AIG American International Companies (“AIG”) affiliate American Home Assurance Company (“American Home”) issued commercial auto insurance policy CA 301–77–91 to C & S Wholesale Grocers, Inc. (“C & S”), for a one year period beginning in September 2005.FN2 Doc. 12–7 at 3. When C & S received this policy, it “reject[ed] Uninsured Motorists Coverage in its entirety.” Doc. 12–8 at 2. American Home renewed the policy for the following two years, resulting in policy CA 583–65–62 and subsequently policy CA 160–71–59. Docs. 12–5, 12–6. Thereafter, Defendant, rather than American Home, renewed the auto policy with C & S for the following two years, resulting in policy CA 160–78–12 and CA 664–73–01. Docs. 12–4 at 3, 12–2 at 15. The original policy and each subsequent renewal was issued to C & S at its corporate address in New Hampshire. See docs. 12–2 at 15, 12–4 at 3, 12–5 at 3, 12–6 at 3, 12–7 at 3.

 

FN2. Plaintiff disputes that American Home and Defendant are affiliates. However, the insurance policies attached to Defendant’s motion clearly indicate that both are affiliates of AIG. See docs. 12–7, 12–2. Since Plaintiff does not dispute that these exhibits are true and correct copies of the insurance policy and its subsequent renewals, the court presumes that American Home and Defendant are, in fact, affiliates.

 

In February 2010, while driving a vehicle registered in Alabama and covered by renewal policy CA 664–73–01, Plaintiff sustained injuries in an auto accident caused by a third-party. Docs. 10 at 16, 12–2 at 15. The third party’s insurer, State Farm, offered Plaintiff the $25,000 policy limit “as full and final settlement of Plaintiff’s bodily injury claims against [its insured].” Doc. 1 at 11. However, Plaintiff sent a letter to State Farm stating that his medical expenses totaled $53, 460.64 and demanding $500,000.00 “as full and final settlement of [Plaintiff’s] bodily injury claim.” Id. at 18–19. Thereafter, Plaintiff filed this declaratory judgment action seeking coverage under the uninsured motorists provision of C & S and Defendant’s insurance policy. Id. at 11.

 

III. ANALYSIS

The Alabama uninsured motorists statute provides that

 

[n]o automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32–7–6, under provision approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him or her by the same insurer.

 

Ala.Code § 32–7–23(a) (emphasis added). Based on this language, Plaintiff argues that he is due summary judgment because Defendant failed to produce a valid rejection of uninsured motorist coverage. Doc.10 at 2–3; see also doc.16. Defendant counters that it is due summary judgment on three grounds: (1) the Alabama statute is inapplicable, (2) the insured rejected coverage, and (3) the policy language exempts coverage because the Alabama statute is not compulsory. Docs. 15, 12. The court discusses these contentions below.

 

A. Non-compulsory Language Policy Exception—“the right to reject”

*3 Irrespective of whether the Alabama statute applies here, Defendant contends that it is due summary judgment because the insured vehicle is not a “covered auto” under the insurance policy’s uninsured motorists provision. Doc. 15 at 10–11. The business auto coverage form for the disputed policy states that “[o]nly those ‘autos’ you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage” are “covered autos” under the policy’s uninsured motorists provision. Doc. 12–2 at 28 (emphasis added). Consequently, because the vehicle driven by Plaintiff was registered in Alabama, which has an uninsured motorist statute that states that “the named insured shall have the right to reject such coverage,” Ala.Code § 32–7–23(a) (emphasis added), Defendant contends that the insured vehicle is not a “covered auto.” Since the court must give contract terms “their ordinary, plain, and natural meaning” in instances “[w]here there is no indication that the terms … are used in a special or technical sense[,]” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000), the court agrees that the car Plaintiff drove was not a “covered auto.”

 

Plaintiff asserts that, despite the plain language of the policy, this provision is unenforceable under Alabama law. Specifically, Plaintiff asserts that “ § 32–7–23 demands that [uninsured motorists] coverage exists regardless, so long as there is no valid waiver of such coverage” and that, accordingly, the term defining “covered autos” for uninsured motorists coverage is void unless there is an explicit rejection of coverage. Doc. 16 at 8. This is essentially a public policy argument asking the court to interpret the statute as requiring a formal coverage rejection form rather than allowing rejection by agreeing to a policy exclusion. However, Alabama courts

 

have made clear that, in the context of an insurance contract, if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be enforced by courts of justice.

 

Federated Mut. Ins. Co., Inc. v. Vaughn, 96 So.2d 816, 819–20 (Ala.2007) (quoting Ex parte Life Ins. Co. of Georgia, 810 So.2d 744, 751 (Ala.2001) (quoting other cases in turn )). Moreover, Alabama courts only deem policy exclusions void and unenforceable if they are more restrictive than § 32–7–23, which generally occurs only when the policy purports to reduce the amount payable under the policy to an amount below the uninsured motorists statutory requirement. Continental Cas. Co. v. Pinkston, 941 So.2d 926, 929 (Ala.2006) (citing State Farm Auto. Ins. Co. v. Reaves, 292 So.2d 95 (Ala.1974)).

 

Based on these facts, Defendant’s policy does not attempt to lower the amount payable under the uninsured motorists provision. Instead, it provides a waiver of coverage for vehicles maintained in states that allow for rejection of uninsured motorists benefits. Since Alabama courts favor enforcing insurance contracts as written, the court finds that the uninsured motorist provision in this policy acts as a valid rejection of coverage for vehicles in states that allow for such rejection. Accordingly, Defendant’s motion is due to be granted.

 

B. Rejection of Coverage—“the same insurer”

*4 Alternatively, Defendant’s motion is due to be granted based on the existence of a form providing an affirmative rejection of uninsured motorists coverage. Plaintiff does not deny the existence of a valid rejection form, see doc. 10 at 25, but instead contends that Defendant cannot rely on the form because it was originally executed with American Home. Doc. 10 at 2–3. In other words, Plaintiff claims that Defendant is not the “same insurer” under the Alabama statute. Although Alabama courts have not settled whether affiliated companies are considered the “same insurer” under its uninsured motorist statute, this determination is unnecessary here because of the policy language. Specifically, each renewal policy C & S signed with American Home and with Defendant states that “THESE DECLARATIONS AND THE COMMON POLICY DECLARATIONS, IF APPLICABLE, TOGETHER WITH THE COMMON POLICY CONDITIONS, COVERAGE FORMS, AND FORMS AND ENDORSEMENTS IF ANY ISSUED TO FORM A PART THEREOF COMPLETE THE ABOVE NUMBERED POLICY.” See doc. 12–2 at 15 (emphasis added). “When interpreting a contract, a court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state.” Fidelity & Deposit Co. of Maryland v. Jefferson Cnty Com’ns, No. 2:09–cv–247–JHH, 2010 WL 5487397 at *5 (N.D.Ala.2010); Southland Quality Homes, Inc. v. Williams, 781 So.2d 949, 953 (Ala.2000). Based on this rule of contract interpretation and the plain language of the policy at issue, the parties unambiguously incorporated all prior coverage forms, including the uninsured motorists coverage rejection form, into the renewal policy by reference. Incorporating this form into the final renewal policy holds the same effect as signing an entirely new form—C & S rejected uninsured motorist coverage for the 2009–2010 coverage year. Accordingly, the uninsured motorist coverage rejection form is valid and enforceable and thus prevents Plaintiff’s recovery.

 

C. Applicability of the Alabama Statute—“delivered or issued for delivery”

Defendant contends lastly that it is due summary judgment because the Alabama uninsured motorist statute is inapplicable to its insurance policy with C & S. The Alabama statute provides that it is only applicable to insurance policies that were “delivered or issued for delivery in this state.” Ala.Code § 32–7–23(a). This statutory requirement recognizes Alabama’s conflicts of laws lex loci contractus rule that the law of the place where the contract was made governs contractual disputes when the contract itself is silent as to choice of law. Cherokee Ins. Co., Inc. v. Sanches, 975 So.2d 287, 292 (Ala.2007) (quoting Stovall v. Universal Constr. Co., 893 So.2d 1090, 1102 (Ala.2004)). In that regard, the parties dispute where the insurance policy was “delivered or issued for delivery.” Plaintiff contends that an endorsement on the policy naming Birmingham Logistics LLC of Alabama is definitive proof that the insurance policy was issued in Alabama. Doc. 10 at 4. In contrast, Defendant contends that the original policy and each renewal was issued and delivered to C & S at its corporate office in New Hampshire, and that the subsequent endorsement naming Birmingham Logistics as an insured does not change the place of original delivery. Doc. 15 at 6–7.

 

*5 Based on the evidence presented, Defendant in fact executed an “ENDORSEMENT FOR MOTOR CARRIER POLICIES OF INSURANCE FOR PUBLIC LIABILITY UNDER SECTIONS 29 AND 30 OF THE MOTOR CARRIER ACT OF 1980,” naming Birmingham Logistics LLC of Birmingham, Alabama as a covered entity under the public liability provisions of policy CA 664–73–01. Doc. 10 at 27; Doc. 12–3 at 101. FN3 The endorsement itself, also referred to as a “MCS– 90 form,” provides that

 

FN3. Although Defendant also executed identical endorsements for Collington Services of Maryland, Fire Logistics LLC of New York, and Ocean Logistics LLC of Pennsylvania, Plaintiff does not contend that the insurance policy was issued or delivered in those states. See doc. 12–3 at 103, 105, 107.

 

[t]he insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Highway Administration (FHWA) and the Interstate Commerce Commission (ICC).

 

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded for public liability does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo.

 

* * * *

 

However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company.

 

Doc. 12–3 at 101–02 (emphasis added). The plain language of the endorsement indicates that Defendant correctly contends that the endorsement was executed merely to ensure compliance with federal law.FN4 This position is supported by several circuits, which have noted that the purpose of such an endorsement is to ensure that a carrier “has [proof of] independent financial responsibility to pay for losses sustained by the general public arising out of its trucking operations.” Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d 1133, 1140 (7th Cir.1986); see also Canal Ins. Co. v. First General Ins. Co., 889 F.2d 604, 611 (5th Cir.1989), mandate recalled and reformed, 901 F.2d 45 (5th Cir.1990); John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857 (9th Cir.2000), cert. denied, 534 U.S. 1127 (2002); Empire Fire and Marine Ins. v. Guaranty Nat’l Ins., 868 F.2d 357, 362 (10th Cir.1989). The insurance policy endorsement “protect[s] the public from loss due to negligent acts, … [but] do[es] not alter or affect the obligations between the insured and the insurer[.]” Empire Fire and Marine Ins. Co. v. J. Transport, Inc., 880 F.2d 1291, 1298 (11th Cir.1989). In other words, the inclusion of a MCS– 90 form may expand the definition of a “covered auto” or “insured” under the policy to ensure coverage for public loss, but it does not necessarily change the preexisting terms of the underlying policy.

 

FN4. The federal regulations require a motor carrier to maintain proof of financial responsibility at its principal place of business. 49 C.F.R. § 387.7(d). This proof may include “Endorsement(s) for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of the Motor Carrier Act of 1980 (Form MCS– 90) issued by an insurer(s)[.]” Id.

 

*6 Moreover, the plain language of the endorsement at issue states unequivocally that it does not change the “terms, conditions and limitations” of the policy to which it is attached. Doc. 12–3 at 102. Relatedly, the original terms of the policy indicate that it was issued to C & S and delivered to C & S’s corporate office in New Hampshire. See docs. 12–2 at 15, 12–4 at 3, 12–5 at 3, 12–6 at 3, 12–7 at 3. Accordingly, Plaintiff has no proper basis to contend that the endorsement altered the location of the contract’s original execution. Indeed, if Plaintiff can make such a contention, then an argument exists that the underlying insurance policy was executed in Maryland, New York, and Pennsylvania since endorsements issued to those states were executed on the same date as Birmingham Logistics’ endorsement. See doc. 12–3 at 101–02. This would create a clear inconsistency between the terms of the original insurance policy and its later endorsements. However, where such an inconsistency exists, “the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed.” McLemore v. Hyundai Motor Mfg. Alabama, LLC, 7 So.3d 318, 333 (Ala.2008). Under Alabama law, since Plaintiff failed to present evidence that the parties intended to change the location of the contract’s execution through any of these later MCS– 90 forms, the original issuance term of the insurance policy still governs. In other words, the insurance policy was “delivered or issued for delivery” in New Hampshire and the Alabama uninsured motorist statute is inapplicable. Accordingly, Defendant’s motion is due to be granted.

 

IV. CONCLUSION

For the reasons stated more fully above, the court DENIES Plaintiff’s motion for summary judgment, but GRANTS Defendant’s motion. Accordingly, Plaintiff is not entitled to recover from Defendant under its insurance policy with C & S, and Plaintiff’s claim is DISMISSED with prejudice.

United States District Court,

D. Kansas.

ATLAS AEROSPACE LLC, Plaintiff,

v.

ADVANCED TRANSPORTATION, INC.; DMG Canada, Inc.; BRK Specialized, Inc.; and Redmond & AssociatesMachinery Movers, Defendants.

 

No. 12–1200–JWL.

April 24, 2013.

 

Matthew K. Holcomb, Scott R. Schillings, Hinkle Law Firm, LLC, Wichita, KS, for Plaintiff.

 

Beata Shapiro, Brian Del Gatto, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Stamford, CT, Joseph M. Weiler, Alderson, Alderson, Weiler, Conklin, Burghart & Crow, LLC, Topeka, Corlin J. Pratt, Terry L. Unruh, Sherwood, Harper, Dakan, Unruh & Pratt, LC, Charles E. Hill, Timothy J. Finnerty, Wallace, Saunders, Austin, Brown & Enochs Chartered, Wichita, KS, for Defendants.

 

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

*1 This matter is presently before the Court on motions to dismiss filed by defendants Advanced Transportation, Inc. (“Advanced”) (Doc. # 57) and BRK Specialized, Inc. (“BRK”) (Doc. # 59). For the reasons set forth below, these motions are denied.

 

I. Background

Plaintiff alleges that it contracted with Advanced for the transportation of a machine from Canada to Kansas; that Advanced hired BRK to transport the machine; that plaintiff hired defendant DMG Canada, Inc. (“DMG”) to prepare the machine for shipping; that plaintiff hired defendant Redmond & Associates Machinery Movers (“Redmond”) to mount the machine on BRK’s trailer; that the machine was discovered damaged upon its arrival in Kansas; and that plaintiff suffered damages for repair of the machine and for lost profits. Plaintiff originally asserted a claim for breach of contract against each defendant and a claim for negligence against BRK, DMG, and Redmond.

 

By Memorandum and Order of November 2, 2012 (Doc. # 34), the Court granted BRK’s motion to dismiss, on the basis that plaintiff’s claims against BRK for breach of contract and negligence were preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, which provides plaintiff’s exclusive remedy against BRK. Specifically, the Court held that the shipment from Canada into the United States fell within the scope of the Amendment. The Court allowed plaintiff to amend its complaint, however, to state a claim against BRK under the Carmack Amendment, and on November 15, 2012, plaintiff filed its first amended complaint. Plaintiff subsequently sought leave to amend to state that it was a corporation instead of a limited liability company (although it did not seek to change the caption or its party name); the Court granted that motion as unopposed, and on March 5, 2013, plaintiff filed its second amended complaint.

 

II. Procedural Posture and Governing Standards

Advanced filed an answer to the original complaint, while BRK filed a motion to dismiss, as noted above. After plaintiff filed its first amended complaint, Advanced and BRK filed a joint answer (they are represented by the same counsel in this case). On March 4, 2013, when plaintiff filed its unopposed motion for leave to amend again, it stated that it believed that defendants should not be required to file new answers. On March 7, 2013, two days after plaintiff filed its second amended complaint, Advanced and BRK filed their motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which referenced and attached plaintiff’s first amended complaint.

 

Because Advanced and BRK filed answers to the first amended complaint, plaintiff suggests that the present motions are more properly treated as motions for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), although plaintiff concedes that the same standards would apply under either subsection of Rule 12. Because plaintiff filed a second amended complaint, however, any motions addressed to the first amended complaint are technically moot. Plaintiff’s filing also entitled defendants to file new motions under Rule 12(b), even if plaintiff would not have insisted on new answers. Because the arguments by Advanced and BRK apply equally to the second amended complaint, the Court will not deny these motions as moot and require that new motions be filed; rather, in the interest of judicial economy, the Court will treat the motions as if they are addressed to the claims asserted in the second amended complaint.

 

*2 The Court will dismiss a cause of action for failure to state a claim only when the factual allegations fail to “state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The complaint need not contain detailed factual allegations, but a plaintiff’s obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See Bell Atlantic, 550 U.S. at 555. The Court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id ., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.2006). Viewed as such, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. The issue in resolving a motion such as this is “not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

 

III. Advanced’s Motion to Dismiss

 

A. No Preemption by the Carmack Amendment

 

Advanced argues that, like the state-law claims against BRK, plaintiff’s claim against it for breach of contract is preempted by the Carmack Amendment. As before, plaintiff does not dispute that the Carmack Amendment preempts state-law claims that fall within the scope of the Amendment. See Underwriters at Lloyds of London v. North American Van Lines, 890 F.2d 1112 (10th Cir.1989); Hoover v. Allied Van Lines, Inc., 205 F.Supp.2d 1232, 1237–38 (D.Kan.2002). Plaintiff argues, however, that its claim against Advanced, a broker with whom it contracted to arrange for shipment of its machine, falls outside the scope of the Amendment. The Court agrees.

 

Advanced admits in its motion that it is a broker for purposes of the Carmack Amendment. The Amendment provides for liability of a “carrier”, see 49 U.S.C. § 14706(a), which term is defined to include a motor carrier, a water carrier, and a freight forwarder, see id. § 13102(3). A “broker”, however, is separately defined to mean a person “other than a motor carrier” who sells or arranges for sale transportation by motor carrier. See id. § 13102(2). Thus, on its face, the statute does not encompass claims against a broker, which claims would therefore escape preemption. Indeed, plaintiff has cited numerous cases in which courts have held that the Amendment does not preempt state-law claims against brokers. See, e.g., Laing v. Cordi, 2012 WL 2999700, at *2 (M.D.Fla. July 23, 2012); Continental Cas. v. Quick Enters., 2012 WL 2522970, at *2 (D.N.J. June 29, 2012); Chubb Group of Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F.Supp.2d 1064, 1068–69 (C .D.Cal.2002); see also 5K Logistics, Inc. v. Daily Exp., Inc., 659 F.3d 331, 338 (4th Cir.2011)(noting in dicta that claims against brokers are not preempted by the Carmack Amendment).

 

*3 The only contrary case involving a broker cited by Advanced is Ameriswiss Technology, LLC v. Midway Line of Ill., Inc., 888 F.Supp.2d 197 (D.N.H.2012). In that case, the court held that a tort claim against a broker was preempted, based on the reasoning of York v. Day Transfer Co., 525 F.Supp.2d 289 (D.R.I.2007). See Ameriswiss, 888 F.Supp.2d at 205. Neither the Ameriswiss court nor the York court, however, addressed the statutory language that makes the Carmack Amendment applicable only to claims against carriers. See id.; York, 525 F.Supp.2d at 297–301. Thus, the Court does not find those cases persuasive, and it instead follows the overwhelming majority of courts that have held that the Amendment does not preempt claims against brokers.

 

Indeed, in Ameriswiss, the court noted various cases in which courts had refused to find claims against brokers preempted by the Amendment, but it distinguished them because those courts had not also addressed express preemption of tort claims under 49 U.S.C. § 14501(c)(1), which expressly applies to brokers. In its reply brief, Advanced argues that plaintiff’s claim against it should be deemed preempted by Section 14501 because that claim alleges the breach of a duty and thus sounds like a negligence claim. The Court rejects this argument. First, a party is not entitled to raise new arguments in its reply brief. See, e.g., U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074, at *9 n.7 (D.Kan. Aug. 4, 2008) (citing Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir.2003)). Second, plaintiff has clearly alleged a claim for breach of contract, and Advanced has not cited any authority supporting the preemption of such a claim under Section 14501.

 

B. Complaint States a Claim for Relief

Advanced also argues that plaintiff’s contract claim fails as a matter of law because Advanced did not warranty the shipment of the machine against damage when it agreed to serve as a broker to find a carrier for plaintiff. Advanced again relies on Ameriswiss, in which the court granted summary judgment in favor of a broker on a similar contract claim. See Ameriswiss, 888 F.Supp.2d at 208–09. Advanced notes the court’s aside in a footnote that it was “difficult to see how Ameriswiss’s breach-of-warranty claim could have survived a motion to dismiss for failure to state a claim.” See id. at 209 n.10. Despite such musing by the Ameriswiss court, this Court will not dismiss plaintiff’s claim for breach of contract. Plaintiff has alleged that it entered into a contract with Advanced for the transportation of the machine; that pursuant to that contract, Advanced obligated itself to facilitate the safe transportation of the machine to Kansas; and that Advanced breached that contractual obligation, as evidenced by the damage sustained to the machine in transit. Those allegations are sufficient to state a claim for breach of contract against Advanced. Plaintiff’s allegations must be accepted as true at this stage, and those allegations state a plausible claim for breach. The Court may not consider at this stage whether in fact Advanced undertook such an obligation.FN1 Accordingly, the Court rejects this basis for dismissal.

 

FN1. Of course, in filing this action, plaintiff was required to have had a sufficient factual and legal basis to support the claim against Advanced. Advanced is certainly entitled to seek relief as appropriate if plaintiff did not have such basis.

 

*4 Advanced also argues for dismissal of plaintiff’s claim for lost-profit damages allegedly sustained when plaintiff could not use the machine during its repair. Although Advanced concedes, as it must, that Kansas permits claims for consequential damages in the form of lost profits, it argues that plaintiff’s claim is too speculative. See, e.g., Vickers v. Wichita State Univ., 213 Kan. 614, 620 (1974). Advanced argues that plaintiff does not have a reasonable likelihood of mustering factual support for this claim because it cannot establish that the machine would have been operable during the relevant period and that it would have been operated for the duration estimated by plaintiff in the complaint. The Court certainly cannot make any such pronouncements as a matter of law at this stage, however. Plaintiff has alleged a specific basis for estimating its lost profit damages, and plaintiff is therefore entitled to attempt to support that claim with evidence in the future litigation of the case. The Court also rejects Advanced’s argument that the claim is necessarily speculative because it is based on estimates, as the Kansas Supreme Court has made clear that “[a]bsolute certainty in proving loss of future profits is not required.” See id.

 

The Court therefore denies Advanced’s motion to dismiss in its entirety.

 

IV. BRK’s Motion to Dismiss

The Court similarly denies BRK’s motion to dismiss plaintiff’s claim against it for lost profits under the Carmack Amendment. BRK first argues that claims for consequential damages are barred by the Carmack Amendment. Like other courts, however, the Tenth Circuit has held that special and consequential damages may be recovered under the Amendment. See Reed v. Aaacon Auto Transport, Inc., 637 F.2d 1302, 1305–06 (10th Cir.1981), overruled on other grounds, Underwriters at Lloyds of London v. North Am. Van Lines, 890 F.2d 1112 (10th Cir.1989); see also American Nat’l Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 931 (7th Cir.2003) (recoverable damages under the Carmack Amendment include “damages for delay, lost profits (unless they are speculative), and all reasonably foreseeable consequential damages”) (citing Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936); Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 277 (1st Cir.2000); and Air Prods. & Chems., Inc. v. Illinois Cent. Gulf R.R. Co., 721 F.2d 483, 485 (5th Cir.1983)).

 

In the face of such authority, BRK argues in its reply brief that plaintiff’s claim is too speculative and that such damages were not reasonably foreseeable. Again, however, this argument must await the presentation of evidence at the summary judgment stage, as the Court certainly cannot say at this stage that plaintiff’s claim for lost profits is too speculative as a matter of law. Accordingly, there is no basis for the dismissal of plaintiff’s claim against BRK.

 

IT IS THEREFORE ORDERED BY THE COURT THAT the motions to dismiss filed by defendants Advanced Transportation, Inc. (Doc. # 57) and BRK Specialized, Inc. (Doc. # 59) are hereby denied.

 

*5 IT IS SO ORDERED.