United States District Court, W.D. Kentucky,

at Louisiville.

Sol D. BROCK, Plaintiff

v.

FORD MOTOR COMPANY, Defendant.

 

No. 3:11–CV–716–CRS–JDM.

Nov. 5, 2013.

 

Anwar K. Malik, Kelly P. Spencer, Spencer Law Group, Lexington, KY, for Plaintiff.

 

Michelle Ann Turner, R. Thad Keal, Turner, Keal & Dallas PLLC, Prospect, KY, for Defendant.

 

MEMORANDUM OPINION

CHARLES R. SIMPSON III, Senior District Judge.

*1 This matter is before the court on the motion of Defendant Ford Motor Company (“Defendant”) for summary judgment. (DN 39). Plaintiff Sol D. Brock (“Plaintiff”) has filed a response to Defendant’s motion (DN 40), to which Defendant has replied (DN 41). Fully briefed, the matter is now ripe for adjudication. For the reasons stated herein, Defendant’s motion for summary judgment (DN 39) will be granted.

 

I. BACKGROUND

The following facts are undisputed. Plaintiff is a Kentucky resident who originally filed this state law personal injury action in Jefferson Circuit Court on December 1, 2011. In his complaint, Plaintiff asserted a negligence claim against Defendant and sought damages for personal injuries he allegedly sustained at Defendant’s facility.

 

Defendant is a Delaware corporation with its principal place of business in Michigan. After Defendant was properly served, it timely removed the case to this court on the basis of diversity jurisdiction. (DN 1). Plaintiff then filed an amended complaint, adding Voith Industrial Services, Inc. as a defendant. (DN 14). On November 8, 2012, we granted Voith Industrial Services’ motion to dismiss the claims against it (DN 18) on the ground that such claims were barred by the statute of limitations. (DN 30). The parties then engaged in fact discovery, which they completed on or before January 29, 2013. Defendant has now moved for summary judgment. (DN 39).

 

Plaintiff is a truck driver who operated under an independent contractor agreement with TransCorr, LLC (“TransCorr”), an Indiana trucking company. TransCorr, in turn, subcontracted with Defendant to pick up and deliver vehicle parts to and from Defendant’s Kentucky Truck Plant (“Plant”). On December 16, 2010, TransCorr sent Plaintiff to pick up vehicle parts at the Plant and deliver them to a contractor in Ohio. While waiting to pick up his load at the Plant, Plaintiff fell on snow and ice and allegedly suffered injuries to his lower back.

 

After the incident, one of Defendant’s employees filed a Preliminary Initial Security Report which indicated that Plaintiff “slipped and fell on ice landing on his hand and leg” and instructed Defendant’s snow removal company to put salt in the area in which Plaintiff fell. (DN 14–1). Plaintiff alleges that the area where he fell had not been cleaned or salted and that he was not warned about the snow, ice, or other dangerous conditions on Defendant’s premises. Plaintiff did not file a workers’ compensation claim with TransCorr or Defendant, but rather submitted a claim to—and was approved for coverage by—OneBeacon Insurance, through which he had previously purchased truckers’ occupational accident insurance. That policy specifically states that it is not a substitute for workers’ compensation insurance.

 

II. STANDARD

A court may grant a motion for summary judgment if it finds that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and of identifying the portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the nonmoving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

 

*2 The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). However, the nonmoving party is required to do more than simply show there is some “metaphysical doubt as to the material facts.”   Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party cannot rely upon the assertions in its pleadings; rather, that party must come forward with probative evidence, such as sworn affidavits, to support its claims. Celotex, 477 U.S. at 324. It must present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence … of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252.

 

III. DISCUSSION

Defendant asserts the “up-the-ladder” defense FN1 to support its contention that it is immune from tort liability. According to Defendant, the Kentucky Workers’ Compensation Act (“KWCA”) provides the exclusive remedy in this case. This defense is outlined in KRS §§ 342.610 and 342.690. KRS § 342.610(2) states in part as follows:

 

FN1. The “up-the-ladder” defense is also known as “exclusive remedy immunity.” See General Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky.2007).

 

A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter…. A person who contracts with another:

 

…

 

(b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person

 

shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.

 

KRS § 342.610(2). KRS § 342.690(1) provides that if an employer secures payment of workers’ compensation as required by the KWCA, “the liability of such employer under [the KWCA] shall be exclusive and in place of all other liability of such employer….” For purposes of KRS § 342.690(1), “the term ‘employer’ shall include a ‘contractor’ covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation.” KRS § 342.690(1).

 

The Kentucky Supreme Court has outlined the “up-the-ladder” defense as follows:

 

If premises owners are “contractors” as defined in KRS 342.610(2)(b), they are deemed to be the statutory, or “up-the-ladder,” employers of individuals who are injured while working on their premises and are liable for workers’ compensation benefits unless the individuals’ immediate employers of the workers have provided workers’ compensation coverage. If deemed to be “contractors,” the owners, like any other employers, are immune from tort liability [exclusive remedy immunity] with respect to work-related injuries whether or not the immediate employer actually provided workers’ compensation coverage. Thus, whether an owner is entitled to “exclusive remedy” immunity depends upon whether the worker was injured while performing work that was “of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession” of the owner. If so, the owner is immune; if not, the owner is subject to tort liability.

 

*3 General Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky.2007) (citation omitted). Thus, if a premises owner invokes this defense, it “has no liability in tort to an injured employee of a subcontractor once worker’s compensation benefits are secured.” Giles v. Ford Motor Co., 126 F. App’x 293, 295 (6th Cir.2005) (internal citations omitted). In addition, a “contractor” that is potentially liable under KRS 342.610(2) for workers’ compensation benefits to the subcontractor’s injured employee is also entitled to full immunity from tort liability to that injured employee. See Daniels v. Louisville Gas & Elec. Co., 933 S.W.2d 821, 823 (Ky.Ct.App.1996); see also Thompson v. The Budd Co., 199 F.3d 799, 804 (6th Cir.1999).

 

A premises owner who asserts the up-the-ladder defense “must both plead and prove the affirmative defense.” General Elec. Co., 236 S.W.3d at 585. Determining the circumstances applicable to the “up-the-ladder” defense is typically a matter of fact and law for a court to decide. In making this determination, this court must first discern whether Defendant has shown that: (1) it is a “contractor,” as defined in KRS § 342.610(2); and (2) it secured the payment of compensation, as required by KRS §§ 342.610(2) and 342.690(1).

 

A. Defendant is a “Contractor,” as Defined by KRS § 342.610(2)

Under the KWCA, an employer is considered a “contractor” if it “contracts with another … [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person.” KRS § 342.610(2)(b). In interpreting this statute, the Kentucky Supreme Court has defined “regular” as meaning “that the type of work performed is a customary, usual or normal part of the premises owner’s trade, business, occupation, or profession, including work assumed by contract or required by law.” General Elec. Co., 236 S.W.3d at 586–87 (citation and quotation marks omitted). “Recurrent” is defined as meaning “that the work is repeated, though not with the preciseness of a clock.” Id. at 587 (citation omitted).

 

The facts here are similar to a case involving Ford Motor Company, in which the Sixth Circuit affirmed the district court’s application of the “up-the-ladder” defense and held that Ford Motor Company was a “contractor” under the definition in KRS § 342 .610(2). See Giles, 126 F. App’x at 294, 296. In Giles, the plaintiff, a truck driver for Pegasus Transportation, Inc., FN2 brought a personal injury suit against Ford Motor Company for injuries he allegedly sustained while making a delivery to Ford’s truck plant. Id. at 294. Unlike the case at bar, the plaintiff in Giles was an employee of Pegasus, the subcontracting company, and successfully filed a worker’s compensation claim against Pegasus. Id. Affirming the district court’s application of the KWCA’s “up-the-ladder” immunity provision to Ford, the Sixth Circuit found that Ford was a “contractor” within the meaning of KRS § 342 .610(2) because “the delivery of parts or goods from one company site to another is a regular and recurrent part” of its business. Id. at 295–96 (“Delivery of parts from one Ford plant to another is—in itself—a regular and recurrent aspect of Ford’s manufacturing business [.]”). The Sixth Circuit also held that “[t]he fact that [plaintiff] happened on this occasion to be delivering parts picked up at a third-party supplier does not alter the fundamental nature of Ford’s relationship with Pegasus, his employer.” Id. at 296–97.

 

FN2. Ford contracted with Pegasus Transportation, Inc. “to transport automobile components and parts between several of [its] manufacturing plants … and to pick up parts from third-party suppliers.” Giles, 126 F. App’x at 294.

 

*4 As in Giles, the circumstances here fit solidly within the parameters of work which is a “regular or recurrent part” of Defendant’s trade in business. Defendant has produced evidence which shows without contradiction that it regularly and customarily transported and delivered goods and component parts from its Plant to a contractor, and this was an “integral part of [its] ability to manufacture vehicles.” (DN 39–1, p. 4–5; DN 39–3, ¶ 4). These tasks were normally performed by Defendant’s employees or independent contractors, such as TransCorr. (DN 39–1, p. 4–5; DN 39–3, ¶ 5). Plaintiff has not introduced any facts to the contrary. Thus, Defendant has produced sufficient evidence to show that it is a “contractor,” within the meaning of KRS § 342.610(2).

 

B. Defendant Secured the Payment of Compensation

To satisfy the second requirement of the “up-the-ladder” defense, a premises owner must show that it secured the payment of compensation to the employee. See KRS § 342.690(1); General Elec. Co., 236 S.W.3d at 605. In General Elec. Co. v. Cain, the Kentucky Supreme Court held that

 

A certification of coverage from the Department of Workers’ Claims or an uncontroverted affidavit from the employer’s insurer is prima facie proof that a company has secured payment of compensation for the purposes of KRS 342.690(1). Absent evidence that the coverage was in some way deficient as to a worker, such a showing is enough to invoke the exclusive remedy provision of KRS 342.690(1), if applicable.

 

236 S.W.3d at 605. If the employer provides such proof of coverage, “the burden shifts to the worker to show that the coverage is in some way deficient.” Stanley v. Our Lady of Bellefonte Hosp., Inc., 2012 WL 4329265, at *7 (E.D.Ky. Sept. 20, 2012) (citing General Elec. Co., 236 S.W.3d at 605).

 

As proof that it provided coverage in accordance with the requirements of KRS § 342.690(1), Defendant submits a copy of a certificate from the Commissioner of the Kentucky Department of Workers’ Claims. The certificate states that Defendant had self-insured workers’ compensation coverage for the date of the incident. (DN 39–6). Because Defendant has presented proof that it secured payment of compensation, the burden now shifts to Plaintiff to show that the coverage was deficient. See Stanley, 2012 WL 4329265, at *7.

 

Plaintiff does not explicitly contend that Defendant’s coverage was deficient, but rather that he was not entitled to receive workers’ compensation benefits from Defendant or TransCorr because he was an independent contractor. (DN 40, p. 9–12). The Sixth Circuit has held that “the relevant inquiry under the KWCA is not whether the injured worker is an employee or independent contractor, but rather whether the task the independent contractor is hired to perform is a regular or recurrent part of the work of the trade, business, occupation, or profession of the premises owner.” Black v. Dixie Consumer Prods. LLC, 516 F. App’x 412, 415 (6th Cir.2013). Even if Plaintiff was an independent contractor, we have already determined that Defendant is a “contractor” within the meaning of KRS § 342.610(2) because the task Plaintiff was hired to perform was a regular or recurrent part of Defendant’s business. Although an independent contractor is not entitled to seek workers’ compensation benefits, FN3 Kentucky courts do not appear to prevent premises owners from invoking the “up-the-ladder” defense against independent contractors, so long as the premises owner is a “contractor” as defined in KRS § 342.610(2) and provides the court with proof that it secured payment of compensation. See, e.g., General Elec. Co., 236 S.W.3d at 605. We have previously determined that Defendant meets the definition of a “contractor” and submitted a certification of coverage from the Department of Workers’ Claims as proof that it secured payment of compensation. Accordingly, Plaintiff has not shown that Defendant’s coverage was deficient.

 

FN3. See Hubbard v. Henry, 231 S.W.3d 124, 128–29 (Ky.2007) (“An individual who performs service as an independent contractor in the course of an employer’s trade, business, profession, or occupation has effectively elected not to be covered [under the KWCA].”) (citing KRS § 342.650(6)).

 

*5 Defendant has introduced evidence which tends to prove that it is a contractor for the purposes of KRS § 342.610(2) and that it secured payment of compensation to Plaintiff. Because Defendant is deemed to be an employer, or contractor, for the purposes of KRS § 342.610, it is entitled to assert the “up-the-ladder” defense to avoid tort liability on Plaintiff’s claim. The fact that Plaintiff did not request or receive workers’ compensation from TransCorr or Defendant is not relevant to the determination of this matter. Defendant submitted proof that it was capable of paying Plaintiff’s workers’ compensation claim, had Plaintiff filed such a claim. See KRS § 342.609(1) (stating that a premises owner can be considered a “contractor” under KRS § 342.610 “whether or not the subcontractor has in fact, secured the payment of compensation” for the employee); McWhinnie v. U.S., 2009 WL 8764296, at *2 (6th Cir. Nov. 25, 2009) (“[A]n ‘up-the-ladder’ contractor must establish that it has a workers’ compensation program or insurance that would have paid a plaintiff’s claim in the event of a plaintiff’s employer failing to do so.”). As no genuine issues of fact remain, Defendant is entitled to summary judgment.

 

IV. CONCLUSION

For the reasons stated above, Defendant’s motion for summary judgment (DN 39) is GRANTED. A separate order will be entered in accordance with this opinion.

United States District Court, N.D. Illinois, Eastern Division.

On A Roll Trucking, Inc., Plaintiff,

v.

Armen Terpetrosyan d/b/a ATP Express, Defendant.

 

Case No: 13 C 00172

1:13–cv–00172Filed: November 6, 2013

November 7, 2013

 

Jay D. Lewis, Attorney at Law, Chicago, IL, for Plaintiff.

 

ORDER

Joan H. Lefkow, U.S. District Judge

*1 Plaintiff On A Roll Trucking, Inc. (“OAR”) filed its two-count amended complaint alleging violation of 49 U.S.C. § 14706 (“the Carmack Amendment”), and a breach of contract claim against defendant Armen Terpetrosyan d/b/a ATP Express (“ATP”). (Dkt.18.) OAR, a motor freight brokerage company, alleges that it contracted for shipment of perishable goods with ATP, a motor carrier. ATP has moved to dismiss OAR’s claim for attorney’s fees from Count I ( Carmack Amendment claim) and to dismiss Count II entirely (breach of contract claim) as preempted by the Carmack Amendment. (Dkt.19.) OAR did not respond to the motion to dismiss by November 4, 2013, as directed. (Dkt.21.) For the following reasons, the motion is granted.FN1

 

FN1. This court has subject matter jurisdiction under 28 U.S.C. § 1337(a) because the issues raised in OAR’s complaint arise under the Carmack Amendment, 49 U.S.C. § 14706, and the amount in controversy exceeds $10,000. (Compl. ¶¶ 3, 25, 27.) It has supplemental jurisdiction over Count II pursuant to 28 U.S.C. § 1367(a), as Count II is sufficiently related to the Carmack Amendment claim because both arose out of the same incident. Venue is proper in this district because the parties entered into their agreement in this district, and the parties’ agreement provides for venue in Chicago, Illinois. (Compl. ¶ 4, Ex. A p. 4.)

 

STATEMENT FN2

 

FN2. These facts are taken from the amended complaint and are presumed true for purposes of resolving the motion to dismiss. See, e.g., Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005).

 

OAR is an Illinois corporation with its principal place of business in Buffalo Grove, Illinois. It is a motor freight brokerage company that contracts with motor carriers to transport freight around the country. ATP is a California corporation with its principal place of business in Glendale, California. It is a motor carrier company that transports freight by truck around the country.

 

OAR and ATP entered into a motor carrier transportation agreement on July 8, 2011, which governs ATP’s carriage of cargo on behalf of OAR’s clients. On September 12, 2012, OAR engaged ATP pursuant to a rate confirmation to transport cargo from Guadalupe, California, to South Plainfield, New Jersey, by September 16, 2012. The cargo was to be transported at 34 degrees Fahrenheit, and the bill of lading provided that ATP was to maintain a temperature in the refrigerated trailer between 33 and 35 degrees Fahrenheit, which it was required to check throughout transport.

 

On September 15, 2012, ATP’s truck that was transporting the contracted load broke down in Davenport, Iowa. OAR’s customer for whom the load was being shipped extended the delivery date to September 17, 2012. OAR notified ATP the load needed to be delivered by that date or it would be rejected. On September 17, 2012, however, the load had made it no farther than Cleveland, Ohio, and OAR’s customer rejected the load. OAR thus found a potential consignee in Cleveland for the load, Sanson Co. (“Sanson”), and arranged for USDA inspection of it, costing OAR $240. Upon USDA inspection on September 18, 2012, it was revealed that the temperature in the trailer had not stayed between 33 and 35 degrees Fahrenheit. The value of the salvaged product, and the price Sanson paid, was $5,712, whereas the total value of the product had been $21,435.60. OAR is thus seeking the difference of $15,741.60 (which it owes to its client) from ATP, plus the $240 it paid for the USDA inspection, which it rounds to a claim for $15,981.

 

ANALYSIS

I. Availability of Attorney’s Fees under the Carmack Amendment

*2 ATP moves to dismiss OAR’s request for attorney’s fees under the Carmack Amendment, asserting that there is no law entitling plaintiff to such fees.

 

Under the Carmack Amendment, a motor carrier is liable for “actual loss or injury” to property caused by “(A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported[.]” 49 U.S.C. § 14706(a)(1). The effect of the Carmack Amendment is that a “person entitled to recover” under the statute can bring suit against the carrier “for the ‘actual loss or injury to the property caused’ by any carrier in the course of the interstate shipment.” REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir.2008) (quoting 49 U.S.C. § 14706(a)(1)). “A shipper can thus be confident that the carrier will be liable for any damage that occurs to its shipment.” Id.

 

Under the so-called “American rule,” “parties are ordinarily required to bear their own attorney’s fees … ‘absent explicit statutory authority.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), superseded by statute on other grounds, Open Government Act of 2007, Pub.L. No. 110–175, 121 Stat. 2524 (2007) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S. Ct.1960, 128 L.Ed.2d 797 (1994)); see also Tempel Steel Corp. v. Landstar Inway, Inc., No. 98 C 6839, 1999 WL 519412, at *5 (N.D.Ill. July 9, 1999) (noting that “[a]ttorney’s fees may not ordinarily be recovered in the absence of express statutory authority,” explaining it was “not clear” whether plaintiff was entitled to any attorney’s fees for its Carmack Amendment claim despite prevailing on its motion for summary judgment on liability, and denying plaintiff’s motion for summary judgment on damages for failure to establish actual damages). The Seventh Circuit has not ruled on whether a prevailing plaintiff is entitled to attorney’s fees under § 14706.FN3

 

FN3. Other circuit courts have held that attorney’s fees are unavailable to a Carmack Amendment plaintiff. See, e.g., Osman v. Int’l Freight Logistics, Ltd., 405 F. App’x 991, 993–96 (6th Cir.2011) (attorney’s fees unrecoverable under Carmack Amendment, which “does not contain a general attorney fee provision,” unless specific exception under 49 U.S.C. § 14708 for shipment of “household goods” applied, which did not in that case); Acura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 876–77 (5th Cir.1996) (attorney’s fees improper in Carmack Amendment suit despite being proper under Texas statute).

 

The Eastern District of Wisconsin faced a similar situation as the present one in Viasystems Technologies Corp. v. Landstar Ranger Inc., No. 10 C 0577, 2010 WL 5173163, at * *3–5 (E.D.Wisc. Dec. 14, 2010), and determined that an award of attorney’s fees was inappropriate. There, the plaintiff shipper sought damages—including attorney’s fees—from the defendant carrier for a damaged shipment pursuant to 49 U.S.C. § 14706. The shipper first argued that it was entitled to fees under 49 U.S.C. § 14704(e), which allows for “reasonable attorney’s fees under this section.” Viasystems, 2010 WL 5173163, at *3 (quoting 49 U.S.C. § 14704(e)) (emphasis in original). The court held that the use of “this section” § 14704(e) in indicated that attorney’s fees were only recoverable for a plaintiff suing under § 14704, i.e., a plaintiff suing a carrier who did “not obey an order of the Secretary [of Transportation] or the [Surface Transportation] Board,” which was not applicable there. Id. (quoting 49 U.S.C. § 14704(a)(1)).

 

*3 The court next addressed the plaintiff’s argument that it was entitled to attorney’s fees under Wisconsin law. In making this argument, the plaintiff relied on two cases holding that the Carmack Amendment did not preempt a state statute providing for attorney’s fees. See Mo., Kan., & Tex.R.R. Co. of Tex. v. S.O. Harris, 234 U.S. 412, 420–22, 34 S.Ct. 790, 58 L.Ed. 1377 (1914) ( Carmack Amendment did not preempt Texas statute providing for award of attorney’s fees limited to $200); A.T. Clayton & Co. v. Mo.-Kan.-Tex.R.R. Co., 901 F.2d 833, 835–36 (10th Cir.1990) (award of attorney’s fees was appropriate in connection with Carmack Amendment claim where Oklahoma statute explicitly provided for recovery of attorney’s fees in an action to recover damages for negligent or willful injury to property). As the court in Viasystems noted, however, the plaintiff relied on no comparable Wisconsin statute but instead based its argument on a Wisconsin Supreme Court case allowing for the recovery of attorney’s fees “in a ‘tort of first-party bad faith’ action.” Viasystems, 2010 WL 5173163, at *4 (quoting DeChant v. Monarch Life Ins. Co., 547 N.W.2d 592, 595–97, 200 Wis.2d 599 (1996)). But that case only provided for attorney’s fees not authorized by statute in specific circumstances not present in Viasystems. The Eastern District of Wisconsin thus rejected the plaintiff’s claim for attorney’s fees in the absence of explicit authority to the contrary.

 

As in Viasystems, OAR has failed to present persuasive authority indicating that attorney’s fees are permitted under state law. ATP’s motion to strike OAR’s prayer for attorney’s fees in connection with its Carmack Amendment claim is therefore granted.

 

II. Breach of Contract

ATP also moves to dismiss Count II of OAR’s complaint, the breach of contract claim, arguing this count is completely preempted by the Carmack Amendment.

 

The Seventh Circuit has explained that the Carmack Amendment does not preempt “state law claims that allege liability on a ground that is separate and distinct from the loss of, or the damage to, the goods that were shipped in interstate commerce.” Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir.1997). Where “the damage alleged in [state law] claims is the damage to the [plaintiff’s] property covered by the Carmack Amendment,” however, those claims are “clearly preempted.” Id; see also Ace Motors, Inc. v. Total Transp., Inc., No. 08 C 1552, 2009 WL 2031780, at *3 (N.D.Ill. July 10, 2009) (denying motion to dismiss Carmack Amendment claim but granting motion to dismiss breach of contract claim that sought “remedy for damage to the vehicles that occurred during shipment” where damages sought were the “same amount” as the value of the damaged vehicles); Mitsui Sumitomo Ins. Co. v. Moore Transp., Inc., 500 F.Supp.2d 942, 955–56 (N.D.Ill.2007) (granting summary judgment to carrier on breach of contract claim where that claim “only aim[ed] to address the loss of the subject cargo” that was also at issue in the Carmack Amendment claim).

 

Here, OAR bases its breach of contract claim on the same allegation as it bases its Carmack Amendment claim, i.e., that “ATP is now indebted to OAR in the amount of at least $15,981.00 for its failure to timely deliver in an acceptable, undamaged condition the tendered load.” (Dkt. 18 ¶¶ 25, 27.) Again, OAR has presented no argument as to why its breach of contract claim is not preempted.

 

Because OAR bases its claim for relief for breach of contract on the same facts that give rise to its Carmack Amendment claim and seeks the same relief in both counts, the court finds that Count II of OAR’s amended complaint is preempted by the Carmack Amendment. ATP’s motion to dismiss the breach of contract claim is granted.

 

ORDER

For the aforementioned reasons, ATP’s motion to dismiss is granted. The claim for attorney’s fees will be stricken from Count I of OAR’s amended complaint and Count II will be dismissed in its entirety. ATP is ordered to answer Count I of the complaint by November 27, 2013.