United States Court of Appeals,

Sixth Circuit.

HARTFORD CASUALTY INSURANCE COMPANY and Hartford Underwriters Insurance Company, Plaintiffs–Appellees,

v.

Deshon EWAN and Patrick Ewan, Defendants–Appellants,

and

John Mosley, doing business as M & W Tree Service, Defendant.

 

No. 12–6190.

Aug. 28, 2013.

 

On Appeal from the United States District Court for the Western District of Tennessee.

 

Before GILMAN, GRIFFIN, and WHITE, Circuit Judges.FN*

 

FN* We amend the case caption as reflected in this opinion.

 

HELENE N. WHITE, Circuit Judge.

*1 DeShon Ewan and her husband Patrick Ewan (the Ewans) appeal the district court’s declaratory judgment in favor of Hartford Casualty Insurance Company (Hartford Casualty) and Hartford Underwriters Insurance Company (Hartford Underwriters) (collectively, the Hartford Plaintiffs), holding that the commercial general liability policy (CGL Policy) issued by Hartford Casualty to cover John Mosley’s landscaping business does not provide coverage for bodily injury or property damage resulting from an accident Mrs. Ewan had with Mosley’s Mack truck because any resulting injury or damage was covered exclusively under the automobile policy (Auto Policy) issued by Hartford Underwriters covering the Mack truck. We AFFIRM on the basis that the CGL Policy does not provide coverage.

 

I.

Mosley owns M & W Tree Service, a landscaping business in Mississippi. He also owns a Mack truck with an attached tree spade, which his workers use “to create a hole in the ground at a job site, transport the dirt to the nursery, extract a tree from the nursery, and transport and plant the tree at the job site.” The Mack truck also transports the workers who perform the tree transplanting operations. Mosley purchased two insurance polices for his business: the Auto Policy issued by Hartford Underwriters and the CGL Policy issued by Hartford Casualty. Hartford Casualty and Hartford Underwriters are affiliated companies; both are members of The Hartford Insurance Group. The Mack truck is the only “covered auto” under the Auto Policy. The CGL Policy describes the covered business “John Moseley DBA: M & W Tree Service” as “landscaping (with no tree removal or snow plowing).” FN1 Mosley purchased both policies at the same time and from the same agent; the policies were delivered to him in Mississippi.

 

FN1. Throughout this litigation and on the Auto Policy, the name of M & W Tree Service’s owner has been spelled “Mosley.”

 

In March 2005, non-party Jason Whitby, a subcontractor of M & W Tree Service, was involved in an accident with Mrs. Ewan while driving the Mack truck. Whitby allegedly struck the driver’s side of Mrs. Ewan’s car. The Ewans filed suit in Tennessee state court against Mosley and Whitby, seeking damages allegedly suffered as a result of the accident. Counsel for Mosley and Whitby disclosed the Auto Policy to the Ewans as the only applicable insurance policy and offered to settle the lawsuit for the policy limit of $500,000. The Ewans accepted this offer and executed a release and settlement agreement. Thereafter, the Ewans discovered the existence of the CGL Policy, which has a policy limit of $1,000,000. They returned to state court to rescind their earlier settlement agreement, arguing that the CGL Policy also covered the accident and that they were never told of its existence during settlement negotiations.

 

In November 2010, the Hartford Plaintiffs filed this action in federal court against the Ewans and Mosley, seeking a declaration that the CGL Policy does not provide coverage for bodily injury or property damage resulting from the March 2005 accident, and that any resulting injury or damage was covered exclusively under the Auto Policy. The parties agreed to proceed on a “case stated” basis in lieu of trial or summary judgment. The district court entered judgment in favor of the Hartford Plaintiffs:

 

*2 Because the CGL Policy explicitly excludes from coverage damages “arising out of the ownership, maintenance, use or entrustment to others of any … auto … owned or operated by … any insured,” and because the Auto Policy expressly identifies the Mack truck and the tree spade as a “covered auto,” this [c]ourt declares that the CGL Policy issued by Hartford Casualty does not provide coverage for alleged damages to the Ewans resulting from the Auto Accident. The Auto Accident was covered exclusively under the Auto Policy with its attendant $500,000.00 limit on liability.

 

Hartford Cas. Ins. Co. v. Ewan, 890 F.Supp.2d 886, 896 (W.D.Tenn.2012) (internal citation omitted) (ellipses in original). The Ewans timely appealed.

 

II.

Although we have not explicitly adopted the case-stated procedure, we have recognized that parties may submit a matter to the district court for decision based on their submissions and a stipulated record. See Int’l Union v. Winters, 385 F.3d 1003, 1005 n. 1 (6th Cir.2004); cf. FDIC v. St. Paul Fire & Marine Ins. Co., 942 F.2d 1032, 1038 (6th Cir.1991) (“Stipulations voluntarily entered by the parties are binding, both on the district court and on us.”). Under the case-stated procedure recognized by the First Circuit, “the parties waive trial and present the case to the court on the undisputed facts in the pre-trial record. The court is then entitled to engage in a certain amount of factfinding, including the drawing of inferences.” Situation Mgmt. Sys. v. ASP. Consulting LLC, 560 F.3d 53, 58 (1st Cir.2009) (internal quotation marks omitted). “We review the district court’s factual findings for clear error and its legal conclusions de novo.” Id.

 

The parties agree that

 

we [must] consider the policy language through the lens of the substantive contract law of [Mississippi], which includes the following concepts:

 

[I]f a contract is clear and unambiguous, then it must be interpreted as written. A policy must be considered as a whole, with all relevant clauses together. If a contract contains ambiguous or unclear language, then ambiguities must be resolved in favor of the non-drafting party. Ambiguities exist when a policy can be logically interpreted in two or more ways, where one logical interpretation provides for coverage. However, ambiguities do not exist simply because two parties disagree over the interpretation of a policy. Exclusions and limitations on coverage are also construed in favor of the insured. Language in exclusionary clauses must be clear and unmistakable, as those clauses are strictly interpreted. Nevertheless, a court must refrain from altering or changing a policy where terms are unambiguous, despite resulting hardship on the insured.

 

Architex Ass’n v. Scottsdale Ins. Co., 27 So.3d 1148, 1157 (Miss.2010) (internal quotation marks omitted); see State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1372–73 (Miss.1981) (summarizing the “firmly established” rules of construction for insurance contracts).

 

*3 The Hartford Plaintiffs do not dispute that the CGL Policy provides a broad grant of coverage for Mosley’s business, subject to exclusions. The CGL Policy contains an “auto exclusion” clause that excludes from coverage “ ‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured.” FN2 The policy further states:

 

FN2. “Bodily injury” is defined as “bodily injury, sickness or disease sustained by a person, including mental anguish or death resulting from any of these at any time.” “Property damage” means: 1) “Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it;” or 2) “Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of ‘occurrence’ that caused it.”

 

This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment in others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.FN3

 

FN3. The auto exclusion does not apply to “ ‘[b]odily injury’ or ‘property damage’ arising out of the operation of any of the equipment listed in Paragraphs f.(2) or f.(3) of the definition of ‘mobile equipment’.” The specific equipment listed in paragraphs f.(2) and f.(3) are a limited subset of “self-propelled vehicles” with permanently attached equipment: “(2) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and (3) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment.” The Ewans do not contend that the Mack truck with the attached tree spade falls under either paragraph f.(2) or f .(3) of the definition of mobile equipment.

 

“Auto” is defined as “a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment. But ‘auto’ does not include ‘mobile equipment.” ’ The CGL Policy also contains a mobile-equipment exclusion clause (in addition to the auto exclusion) that excludes from coverage “ ‘[b]odily injury” or ‘property damage’ arising out of … [t]he transportation of ‘mobile equipment’ by an ‘auto’ owned or operated by or rented or loaned to any insured[.]”

 

Construing these clauses, an auto or mobile equipment transported by an auto is excluded from coverage under the CGL Policy, but mobile equipment on its own is not. Thus, the question is whether the Mack truck with the attached tree spade is an auto (with an attached piece of machinery or mobile equipment) that is excluded from coverage under the CGL Policy, or mobile equipment that is not. See Architex Ass’n, 27 So.3d at 1156 (“The [insurance] policy either affords coverage or not, based upon application of the policy language to the facts presented.”). There is no dispute that the Mack truck is a land vehicle that travels on public roads and has attached machinery, which falls within the definition of an “auto” under the CGL Policy. Because the Hartford Plaintiffs have established that the auto exclusion applies, the Ewans must show that there is an exception to that exclusion. See Ass’n Cas. Ins. Co. v. Major Mart, Inc., No. 1:12–cv–22, 2013 WL 3409217, at *2 (N .D.Miss. July 8, 2013) (“If the insurer shows an exclusion applies, the burden shifts back to the insured to show that there is an exception to the exclusion.” (collecting cases)).

 

The Ewans argue that the Mack truck with the attached tree spade falls under one of the following definitions of mobile equipment as an exception to the auto exclusion: 1) “Vehicles, whether self-propelled or not, on which are permanently mounted … [p]ower cranes, shovels, loaders, diggers or drills”; or 2) “Vehicles … maintained primarily for purposes other than the transportation of persons or cargo.”

 

*4 Turning to the first definition of mobile equipment cited by the Ewans, the term “permanently mounted” is undefined in the CGL Policy. Mississippi courts have recognized outside the insurance context that the term “ ‘[p]ermanent’ means ‘[l]asting or meant to last indefinitely’ or ‘[n]ot expected to change in status, condition, or place[.]” ’ Sec’y of State v. Gunn, 75 So.3d 1015, 1020 (Miss.2011) (quoting Webster’s II New College Dictionary 819 (2001)); cf. Corban v. United Servs. Auto. Ass’n, 20 So.3d 601, 609 (Miss.2009) (“Our role is to render a fair reading and interpretation of the policy by examining its express language and applying the ‘ordinary and popular meaning’ to any undefined terms.” (quoting Noxubee Cnty. Sch. Dist. v. United Nat’l Ins. Co ., 883 So.2d 1159, 1165 (Miss.2004))). Contrary to the opinion offered by the Ewans’ expert, the tree spade is not permanently mounted to the truck by bolts and welding. Mosley purchased the tree spade while it was attached to a different truck, and he removed the tree spade from that truck to attach it to the Mack truck. He initially attached the tree spade to the Mack truck with U-bolts and by welding; the welding, however, was unsuccessful and broke within two weeks. He then attached steel rods from the truck to the tree spade to provide additional stability so that the tree spade would not “slide back.” The rods are attached by bolts that have been replaced since the accident because they wear out from time to time. Mosley also believed that the tree spade was detached from the truck at least once for repairs, but he could not recall the specific details. That a piece of equipment can be removed does not, in and of itself, mean that is not permanently mounted. Here, however, although the tree spade has been mounted to the Mack truck and is used in conjunction with the truck to perform tree transplanting operations, the evidence indicates that it is not an indefinite or unchanging truck component to be considered permanent.

 

Turning to the second definition of mobile equipment cited by the Ewans, their expert’s conclusion that the Mack truck is not maintained primarily to transport persons or cargo is unsubstantiated by the record. Their expert contends that the truck is maintained primarily to transport the tree spade to and from a job site. Although the truck transports the tree spade, it is not maintained primarily for that simple purpose. Rather, as Mosley testified, the Mack truck with the attached tree spade is used to transport trees to the job site, his “actual business … is transporting them to the job [site],” and the truck transports his workers to the job site to perform the tree transplanting. The transportation of cargo and persons by the truck, therefore, is not merely incidental, but is the actual and primary purpose of the truck.

 

Our conclusion that the Mack truck with the attached tree spade is an “auto” and not “mobile equipment” is confirmed by reference to the Auto Policy. We discern no clear error in the district court’s finding that the CGL and Auto Policies were contemporaneously executed as part of the same transaction, by the same parties, and for the same purpose of providing coverage for Mosley “doing business as” M & W Tree Service. The policies recognize that Mosley purchased multiple coverages insured by The Hartford Insurance Group. As such, the terms of the policies should be construed together under Mississippi contract law. See Sullivan v. Mounger, 882 So.2d 129, 135 (Miss.2004); Swindle v. Harvey, 23 So.3d 562, 568 (Miss.Ct.App.2009) (“[T]he individual documents entered into contemporaneously should be considered integral and interrelated parts of a single global transaction, and as such, all should be construed together.”). The definitions of “auto” and “mobile equipment” are substantially the same under both policies. The Mack truck with the attached tree spade is identified as the only covered “auto” in the Auto Policy. It would be incongruent to hold that the Mack truck is “mobile equipment” under the CGL Policy where the parties to the policies identified the truck as the covered “auto” under the Auto Policy. Cf. Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (Miss.2002) (explaining that coverage “should not vary depending upon the theories of liability asserted,” and that the Mississippi courts “will not recognize a strained interpretation of a policy”).

 

*5 We therefore AFFIRM the district court’s judgment.

United States Court of Appeals,

Fourth Circuit.

RUSH INDUSTRIES, INC., Plaintiff–Appellant,

v.

MWP CONTRACTORS, LLC; Brann’s Transport Services, Inc., Defendants–Appellees.

 

No. 13–1019.

Submitted July 25, 2013.

Decided Aug. 28, 2013.

 

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08–cv–00810–TDS–LPA).

Kenneth L. Jones, Carruthers & Roth, P.A., Greensboro, North Carolina, for Appellant. Kenneth J. Gumbiner, Higgins Benjamin, PLLC, Greensboro, North Carolina, for Appellee MWP Contractors, LLC. Stanley F. Hammer, Wyatt, Early, Harris & Wheeler, LLP, High Point, North Carolina, for Appellee Brann’s Transport Services, Inc.

 

Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.

 

Affirmed by unpublished PER CURIAM opinion.

 

Unpublished opinions are not binding precedent in this circuit.

 

PER CURIAM:

*1 Appellant Rush Industries, a furniture manufacturing company, challenges the district court’s decision in favor of Appellee MWP Contractors, who coordinated shipping of a used panel saw that failed to operate upon arrival at Rush Industries’ manufacturing plant. Finding no error, we affirm the district court’s ruling.

 

I.

In late 2006, Rush Industries purchased a used Italian-made Gabbiani panel saw through an internet auction for $14,300. Michael Rush, the owner of Rush Industries, purchased the saw for use at the company’s plant in Americus, Georgia. An expert witness testified at trial that the twelve-year-old saw was already beyond its expected useful life. The bill of sale provides that Rush Industries made its purchase of the saw “AS IS, WHERE IS, WITH ALL FAULTS.” After purchasing the saw, Rush traveled to South Boston, Virginia, where the saw was located in the facility of a defunct business called D–Scan. After Rush videotaped an operator make a successful demonstration cut using the saw, he made arrangements with MWP to disassemble, package, coordinate shipping, and install the saw at Rush Industries’ Americus plant. Rush sent a check to MWP on December 8, 2006, for an initial payment of $5,300.

 

The saw remained in D–Scan’s facility until January 8th, 2007. During that time, MWP made basic repairs to the saw at Rush Industries’ request. MWP contracted with Appellee Brann’s Transport Services to move the saw to Americus. MWP employees loaded the saw onto two Brann’s trucks. However, MWP did not request that Brann’s tarp the load.

 

Upon arrival, Rush and MWP’s foreman discovered that the saw’s ten ribbon cables and connectors had been damaged. Nonetheless, Rush accepted the shipment, and directed MWP to unload and install the saw, which was not operational without new connectors. MWP offered to locate new connectors. During January 2007, Rush contacted MWP at least twice to inform the company that he needed MWP to make the saw operational immediately to avoid losing orders that required use of the saw. According to MWP, because there were only a limited number of these saws manufactured overseas over a decade prior, it was difficult, yet important, to obtain the right replacement parts. Vicki Rush, Rush’s wife, caused further delay when she provided MWP with the wrong serial number for the damaged parts.

 

On February 28, 2007, MWP sent Rush Industries a statement for the remaining $4,000 balance due for shipment. On April 9, 2007, Rush Industries filed a lawsuit against MWP in North Carolina state court. Unaware of the suit, Anthony Wilson, an employee for MWP, contacted Rush to arrange a time to install proper connectors which he was finally able to locate. Rush explained that he had filed a lawsuit against MWP “for a million dollars” and refused to speak with Wilson or accept the cables and connectors he had obtained.

 

In January 2008, Rush’s wife purchased replacement ribbon cables and connectors off the internet for $103.60, plus $14.63 for shipping. Rush’s employees installed the cables and connectors. While the control panel for the saw lit up, the saw remained dysfunctional. Rush testified that he subsequently engaged several electricians and service companies in an attempt to diagnose and fix the problem. However, none could make the saw operational. Rush testified that the saw has no value in its current dysfunctional state because the cost to haul the metal exceeds the scrap value of the saw.

 

*2 Also in January 2008, Rush Industries added Appellee Brann’s as a defendant. This constituted Brann’s first notice that the saw it had transported was not operational and that Rush Industries had filed a lawsuit. The complaint against MWP and Brann’s alleged breach of contract, negligence, and bailment claims. Rush Industries sought recovery for value of the damaged equipment, lost income and profits, and additional consequential damages. MWP filed a counterclaim against Rush Industries for unpaid invoices.FN1 The Defendants removed the case to federal court in November 2008 on the basis that it fell under the purview of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706.

 

FN1. Brann’s and MWP also filed cross-claims for indemnification against any damages the court awarded. These cross-claims are not at issue here.

 

On Defendants’ motion for summary judgment, the district court dismissed Rush Industries’ state-law claims for lost profits and its negligence claims insofar as they did not arise from bailment. It deferred judgment on the application of the Carmack Amendment. The parties tried the remaining issues in a bench trial in October 2012. The district court found that the Carmack Amendment preempted all state-law claims arising out of damage occurring during transportation of the saw. After re-characterizing state-law claims as federal-law claims, the district court awarded damages to Rush Industries in the amount of $118.23 for the cost of replacement ribbons and connectors, and to MWP for $6,388.59 for unpaid invoices. The district court dismissed all claims against Brann’s.

 

Rush Industries’ filed a timely appeal of which we have jurisdiction pursuant to 28 U.S.C. § 1291.

 

II.

We review a district court’s judgments at a bench trial under a mixed standard: factual findings for clear error and conclusions of law de novo.   Helton v. AT & T, Inc., 709 F.3d 343, 350 (4th Cir.2013).

 

A.

Rush Industries first argues that the district court erred when it determined that its claims against MWP are covered by the Carmack Amendment. Specifically, Rush Industries contends that the services provided by MWP fall outside the parameters of the Carmack Amendment because Brann’s, not MWP, provided actual transport of the saw, and because MWP’s services did not involve transport.

 

The Carmack Amendment is a “comprehensive exercise of Congress’s power to regulate interstate commerce” that creates “a national scheme of carrier liability for goods damaged or lost during interstate shipment under a valid bill of lading.” 5K Logistics, Inc. v. Daily Exp., Inc., 659 F.3d 331, 335 (4th Cir.2011) (internal quotations and citations omitted). It preempts all state or common law claims available to a shipper against a carrier for loss or damage associated with interstate shipments. Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704–05 (4th Cir.1993).

 

Contrary to Rush Industries’ argument, the Carmack Amendment goes beyond the physical act of transportation to include associated services. See 49 U.S.C. § 13102(23). Further, it applies to a company, such as MWP, that is in contract with a shipper to handle the movement of property and subcontracts the actual physical shipping of the property in question. See, e.g., Land O’Lakes, Inc. v. Superior Serv. Transp. of Wis., Inc., 500 F.Supp.2d 1150, 1155 (E.D.Wis.2007) (“Liability under the Carmack Amendment … extends beyond the carrier who actually provides the transportation.”); Mach Mold, Inc. v. Clover Assocs., Inc., 383 F.Supp.2d 1015, 1029 (N.D.Ill.2005) (explaining that the Carmack Amendment applies to a company that coordinates transportation, but does not actually transport the property in question). Even though Brann’s may have owned and controlled the trucks that transported the saw, MWP’s overall coordination of the shipping places it within the confines of the Carmack Amendment.FN2 As such, we agree with the district court that the Carmack Amendment applies and preempts all tort and common law claims against MWP. See Shao, 986 F.2d at 704–05.

 

FN2. While MWP’s repair work and installation of the saw arguably falls outside the parameters of the Carmack Amendment, Rush Industries puts forward no evidence establishing that damage to the saw occurred during repair or installation.

 

B.

*3 Rush Industries next argues that the district court erred when it granted partial summary judgment dismissing its claims for lost profits and negligence not arising out of the bailment. Given that the Carmack Amendment preempts Rush Industries’ state and common law claims, we do not directly address this argument. Instead, we review the district court’s treatment of the claims as re-characterized federal claims under the Carmack Amendment.FN3 See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66–67 (1987) (explaining that a lawsuit that purports to raise only state law claims may be construed as raising federal law claims where complete preemption exists); Darcangelo v. Verizon Commc’ns, Inc., 292 F.3d 181, 195 (4th Cir.2002) (construing state claims as federal claims where ERISA preempted state claims).

 

FN3. To recover under the Carmack Amendment, a plaintiff must make out a prima facie case establishing: (1) delivery to the carrier in good condition; (2) arrival in damaged condition, and; (3) amount of damages.   Oak Hall Cap & Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 294 (4th Cir.1990). The district court correctly found that Rush Industries had established the first two prongs of the prima facie case. Thus, we discuss only the third prong related to damages.

 

The Carmack Amendment establishes that a carrier is “liab[le] … for the actual loss or injury to the property” that occurs during shipping. 49 U.S.C. § 14706. This includes “all damages resulting from any failure to discharge a carrier’s duty with respect to any part of the transportation to the agreed destination.” Se. Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936). As such, a plaintiff shipper can recover all reasonably foreseeable consequential damages and lost profits that are not speculative.   Am. Nat. Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 931 (7th Cir.2003).

 

Rush Industries argues that the saw sustained irreparable damage because MWP “withheld replacement parts for some eight months” after it installed the saw at the Americus plant. Appellant’s Br. 19. Because no individual or company can now fix the broken saw, Rush Industries urges that we find that it is entitled to the value of a comparable brand new saw. Further, Rush Industries claims that it is entitled to lost profits from contracts it could not fulfill because the saw was not made operable.

 

Rush Industries failed to present evidence establishing that any undue delay in replacing the ribbons and connectors caused the saw’s permanently irreparable condition. At trial, Rush Industries presented only a single witness, Mr. Rush, who had extremely limited technical knowledge of the saw. In essence, Mr. Rush could say little more than that the saw was working when he saw it in South Boston and did not work after it arrived in Americus. MWP, on the other hand, presented several witnesses with relevant specialized knowledge who explained that the saw, and particularly the saw’s computer system, were obsolete and past expected functioning life. Further, an MWP witness who serviced this particular saw when D–Scan owned it testified that it was uncertain whether the saw would survive transportation from South Boston to Americus because “there are a lot of variables that happen during shipment,” and that the vibrations during transport could cause problems with the saw’s circuit board.

 

*4 Even if Rush could have established that the inoperable condition of the saw was caused by MWP’s lag in replacing the cables and connectors, Rush Industries’ damages claim would result in an exorbitant windfall. Rush Industries purchased an outdated piece of machinery manufactured overseas in a small batch “AS IS, WHERE IS, WITH ALL FAULTS” for $14,300. A new replacement saw costs over a quarter-million dollars. Surely, MWP could not foresee that its failure to repair damage which occurred during shipping would require that it purchase a brand new saw.

 

Nor should MWP be held liable for Rush Industries’ alleged lost profits in the aftermath of the January 2007 delivery. Rush Industries presented no evidence that the saw would have worked had MWP immediately replaced the cables and connectors. In other words, there is not sufficient evidence to conclude that the problems with the saw upon arrival in Americus were limited to the cables and connectors.

 

There is also no viable evidence in the record that Rush Industries informed MWP that it had a “million-dollar contract,” or any other contract for that matter, hinging on the timely delivery and operability of the saw. In fact, MWP did nothing to guarantee the operability of the saw after transport. Moreover, given the age, foreign origin, and limited number of these saws, it would have been difficult for MWP to obtain the appropriate replacement parts had Rush Industries provided correct information. However, Vicki Rush provided the wrong serial number to MWP, further delaying MWP’s efforts to repair the saw. When MWP’s representative finally contacted Rush to notify him that he had found the correct parts and to arrange for installation, Rush shunned his efforts.

 

The only damages that Rush Industries has established as attributable to MWP are for replacement cables and connectors. As such, we find that the district court correctly found that MWP’s liability is limited accordingly.FN4

 

FN4. Rush Industries’ failure to establish damages beyond the replacement cost of the cables and connectors applies also to its claims against Brann’s. Additionally, we agree with the district court that MWP and Rush Industries’ claims against Brann’s are time barred because neither informed Brann’s of any claims or problems with the panel saw until January 25, 2008, well after the applicable nine-month notice requirement expired. See 49 C.F.R. pt. 1035, App. B (“As a condition precedent to recovery, claims must be filed in writing with the … delivering carrier … within nine months after delivery has elapsed.”).

 

III.

Rush Industries next argues that the district court erred when it refused to excuse its obligation to pay MWP for services rendered.FN5 MWP satisfied its contractual obligations pursuant to its agreement with Rush Industries. MWP conducted repair work on the saw in South Boston per Rush Industries’ request. After shipment, MWP employees complied with Rush’s instructions to unload and assemble the saw in Americus in spite of the damaged state of the cables and connectors. We find no error in the district court’s determination that Rush Industries must pay its past due bills to MWP.

 

FN5. MWP counterclaims for $2,388.59 for pre-shipment repairs it made to the saw in South Boston and $4,000 for unloading the saw and assembling it in Americus.

 

IV.

Rush Industries took a risk in purchasing an outdated, used saw at a huge discount and then shipping it some 600 miles. Unfortunately for Rush Industries, the risk did not pay off. However, there is no legal basis for pushing the repercussions onto the company it enlisted to help with shipment. We find no error in the district court’s handling of this case and therefore affirm.

 

AFFIRMED.