THE MASON AND DIXON LINES, INCORPORATED, Plaintiff, vs. WALTERS METAL FABRICATION, INC., Defendant.

 

Case No. 13-cv-1262-SMY-DGW

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

 

2014 U.S. Dist. LEXIS 129285

 

 

September 16, 2014, Decided

September 16, 2014, Filed

 

 

COUNSEL:  [*1] For The Mason and Dixon Lines, Incorporated, A Delaware Corporation, Plaintiff, Counter Defendant: Daniel C. Sullivan, Matthew P. Barrette, LEAD ATTORNEYS, Sullivan Hincks & Conway, Oak Brook, IL; Michael J. McKitrick, LEAD ATTORNEY, Jeffrey R Schmitt, Danna McKitrick, PC, St. Louis, MO.

 

For Walters Metal Fabrication, Inc, an Illinois Corp, Defendant: Dawn K. O’Leary, Evans Blasi LLC, Granite City, IL; Eric W. Evans, Evans Blasi, Granite City, IL.

 

For Walters Metal Fabrication, Inc, an Illinois Corp, Counter Claimant, Counter Claimant: Eric W. Evans, Evans Blasi, Granite City, IL.

 

JUDGES: STACI M. YANDLE, DISTRICT JUDGE.

 

OPINION BY: STACI M. YANDLE

 

OPINION

 

MEMORANDUM AND ORDER

This matter comes before the Court on The Mason and Dixon Lines, Incorporated’s (“MADL”) motions to dismiss (Docs. 17 & 27). Defendant Walters Metal Fabrication, Inc. (“Walters”) filed responses (Docs. 19 & 31) to which MADL replied (Docs. 20 & 33). For the following reasons, the Court denies as moot MADL’s first motion to dismiss (Doc. 17) and grants MADL’s second motion to dismiss (Doc. 27).

 

1. Background

As an initial matter, the Court notes that MADL’s motion to dismiss (Doc. 17) dated January 16, 2014 was directed at Walters’ counterclaims [*2]  alleged along with Walters’ answer to MADL’s original complaint. Since that time, MADL filed an amended complaint, and Walters filed an answer to the amended complaint along with its counterclaims. As such, the Court denies as moot MADL’s motion to dismiss (Doc. 17) dated January 16, 2014. The Court will turn to address MADL’s second motion to dismiss (Doc. 27) dated April 2, 2014.

This matter arises out of a contract entered into between Walters and MADL for the transportation of an over-dimensional shipment of goods. Walters is a metal fabrication company located in Granite City, Illinois, that sought to transport its product, pipe spools, to a customer located in Mont Belvieu, Texas. As such, Walters contracted with MADL to deliver the over-dimensional load.1 MADL secured a permit for an over-dimensional shipment from the Illinois Department of Transportation (“IDOT”).2 The permit provided for the shipment of a load the height of 15 feet, 9 inches and provided a route the driver was required to follow when delivering the load. On December 29, 2012, while following IDOT’s mandatory route, the driver drove the load into the underside of the Herrin Road Bridge on Interstate Highway 57 [*3]  causing damage to the load.

 

1   The Illinois Vehicle Code limits the height of any vehicle to 13 feet, 6 inches “from the under side of the tire to the top of the vehicle, inclusive of load.” 625 ILCS 5/15-103.

2   Illinois requires the individual or company making the movement of a load exceeding the maximum size and weight requirements, as specified in the Illinois Vehicle Code, to apply for a permit. 625 ILCS 5/15-301. At its discretion, IDOT may prescribe the route which the carrier must follow when delivering the load. Id.

On June 30, 2013, Walters filed a “Standard Form for Presentation of Loss and Damage Claims” for $391,922.11 (Doc. 11-6). Walters’ claim was denied in a letter from Universal Am-Can, Ltd.3 dated September 19, 2013 (Doc. 11-7). Thereafter, Walters demanded immediate payment of the claim plus delay claims. Walters further claimed an offset in the amount of $138,838.50 against transportation invoices from a separate corporation affiliate of MADL that was not a party to the contract. MADL filed the instant action asking the Court to declare as follows: (1) the Tariffs and Bill of Lading apply to the shipment at issue; (2) MADL’s compliance with IDOT’s permit constitutes a force majeure relieving MADL of liability; [*4]  (3) alternatively, if the Court finds no force majeure, Walters’ recovery is limited to $100,000; and (4) Walters’ retention of the $128,838.50 due to another corporate entity was not an allowable set-off. Walters’ filed a counterclaim alleging both a negligence claim and a claim arising under the Federal Carmack Amendment, 49 U.S.C. § 14706.

 

3   MADL does not elaborate on its relationship with Universal Am-Can, Ltd.; however, Universal Am-Can, Ltd. appears to be a corporate affiliate of MADL.

MADL filed its motion to dismiss (Doc. 27) pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that Walters’ negligence claim must be dismissed for failure to state a claim. Specifically, MADL argues that the Federal Carmack Amendment, 49 U.S.C. § 14706(a), preempts any state law claim arising from damage to cargo during the interstate transportation of goods by motor carrier. In its response, Walters contends that (1) the issue of whether MADL is a motor carrier or a broker should not be determined on a motion to dismiss; (2) the Carmack Amendment does not preempt Walters’ claims which extend beyond the damage to property; and (3) the Carmack Amendment does not preempt any state law claims against any defendant who is not a motor carrier.

In its reply, MADL contends that Walters admitted MADL was a motor carrier in Walters’ counterclaim allegations. [*5]  Specifically, MADL points to the following portions of Walters’ counterclaim:

 

5. On November 8, 2012, Walters contracted [MADL] to haul cargo from its facility to its customer’s facility in Baytown, Texas. []

6. [MADL] issued a bill of lading to Walters [], obtained permits from the State of Illinois and hired a pilot car to guide the load.

7. While hauling the cargo on I-64 in Williamson County, Illinois, [MADL] acting through its agents or employees, drove the load into the underside of the Herrin Road bridge at 57 mph.

 

 

(Doc. 26, p. 3). The Court will consider the parties’ arguments in turn.

 

2. Analysis

When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the complaint (1) describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial plausibility [*6]  when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Bell Atl., 550 U.S. at 556).

Finally, a litigant need not anticipate and affirmatively address defenses in its complaint to survive a motion to dismiss. Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 688 (7th Cir. 2004). However, a party may “plead itself out of court by alleging (and thus admitting) the ingredients of a defense” on the face of the complaint. U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 626 (7th Cir. 2003).

With these standards in mind, the Court will consider whether Walters has properly pleaded a negligence counterclaim against MADL. It is well established that the Carmack Amendment, included within the Interstate Commerce Act, preempts state-law causes of action for damages against a motor carrier for damaged goods. REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008); see also Gordon v. United Van Lines, Inc., 130 F.3d 282, 288 (7th Cir. 1997). However, the Carmack Amendment only preempts those causes of actions for damages to the goods, not every conceivable cause of action associated with the delivery of goods. Gordon, 130 F.3d at 289. The Seventh Circuit has specifically suggested that “a carrier might be liable to a shipper under a statute prohibiting deceptive trade practices, or a bailor might be able to recover from a bailee in tort if the claim for relief does not depend on the existence of a contract.” Id.

First, the Court [*7]  will address Walters’ argument that the Carmack Amendment does not preempt its claims extending beyond damage to its property. Count One clearly alleges a state law negligence claim resulting from the damage to its goods and the resulting damages caused by a delay in delivery of those goods. Walters does not allege a separate cause of action, such as deceptive trade practices, that is not associated with the delivery of the goods. As such, this argument fails.

Next, Walters’ contends that the Carmack Amendment does not preempt any cause of action against MADL because it is not clear whether MADL is a broker, motor carrier, or freight forwarder. If MADL is a broker, the Carmack Amendment would not preempt Walters’ negligence claim. However, if MADL is a motor carrier, Walters’ negligence claim against MADL must be dismissed. MADL argues that Walters has pleaded itself out of court on its negligence claim because it has alleged facts clearly describing MADL as a motor carrier, not a broker. Thus, the Court must determine whether Walters has alleged facts conclusively describing MADL as a carrier warranting dismissal of the negligence claim.

The Interstate Commerce Act defines the relevant concepts. A “broker” is

 

a person, other than a motor [*8]  carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.

 

 

49 U.S.C. § 13102(2). A “motor carrier” is “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Finally, a “freight forwarder” is

a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation for compensation and in the ordinary course of its business — (A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments; (B) assumes responsibility for the transportation from the place of receipt to the place of destination; and (C) uses for any part of the transportation a carrier subject to jurisdiction under this subtitle.

 

 

49 U.S.C. § 13102(8).

“Whether a company is a broker or a carrier/freight forwarder is not determined by how it labels itself, but by how it holds itself out to the world and its relationship to the shipper.” Lumbermens Mut. Cas. Co. v. GES Exposition Servs., Inc., 303 F. Supp. 2d 920, 921 (N.D. Ill. 2003). The distinction between a broker [*9]  and a carrier is not always clear. See Neb. Turkey Growers Coop. Ass’n v. ATS Logistics Servs., No. 4:05-cv-3060, 2005 U.S. Dist. LEXIS 31683, 2005 WL 3118008, at *4 (D. Neb. Nov. 22, 2005). One crucial distinction between a carrier and broker is the legal responsibilities taken on by the party. 49 C.F.R. § 371.2(a). In this case, if MADL took legal responsibility for transporting the goods, regardless of who actually delivered them, MADL is a carrier. However, if MADL made an agreement with Walters to simply arrange for transportation of the goods, MADL is a broker. See CGU Int’l Ins., PLC v. Keystone Lines Corp., No. C-01-3751 SC, 2004 U.S. Dist. LEXIS 8123, 2004 WL 1047982 (N.D. Cal. May 5, 2004).

Here, on a motion to dismiss, the Court must accept as true all facts as pleaded in Walters’ counterclaim. Initially, the Court notes that in Count One of Walters’ counter-claim, Walters’ alleges MADL is both a “freight carrier and freight broker” (Doc. 26, p. 3). This conclusory pleading alone, however, is not sufficient to sustain Walters’ negligence claim. Walters alleges it contracted with MADL “to haul cargo from [Walters’] facility to its customer’s facility.” A motor carrier, not a broker, would take on the responsibility of hauling the cargo to Walters’ customer. Walters also alleges MADL obtained permits from IDOT to transport the over-dimensional [*10]  load. Again, in line with the statutory definitions, a motor carrier, not a broker, would undertake this task. See 625 ILCS 5/15-301 (requiring the entity transporting the goods to make the permit application for an over-dimensional load). Thus, based on the facts pleaded in the counterclaim, Walters has “plead[ed] itself out of court” with respect to its negligence claim. See U.S. Gypsum Co., 350 F.3d at 626.

 

3. Conclusion

For the foregoing reasons, the Court DENIES as moot MADL’s first motion to dismiss (Doc. 17) and GRANTS MADL’s second motion to dismiss (Doc. 27).

IT IS SO ORDERED.

DATED: September 16, 2014

/s/ Staci M. Yandle

STACI M. YANDLE

DISTRICT JUDGE

KARA DANIEL, Plaintiff vs. NATIONAL CASUALTY INSURANCE COMPANY, Defendant

 

CIVIL ACTION NO. MJG-13-1519

 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

 

2014 U.S. Dist. LEXIS 137771

 

 

September 29, 2014, Decided

September 29, 2014, Filed

 

 

PRIOR HISTORY: Daniel v. Hines, 2011 U.S. Dist. LEXIS 155140 (D. Md., Oct. 4, 2011)

 

COUNSEL:  [*1] For Kara Daniel, Plaintiff: Amy M Orsi, Stephen Allen Markey, III, LEAD ATTORNEYS, Law Offices of Stephen A Markey III PC, Towson, MD.

 

For National Casualty Insurance Company, Defendant: Stacey Ann Moffet, LEAD ATTORNEY, Lauren Elizabeth Marini, Eccleston and Wolf PC, Hanover, MD.

 

JUDGES: Marvin J. Garbis, United States District Judge.

 

OPINION BY: Marvin J. Garbis

 

OPINION

 

MEMORANDUM AND ORDER

The Court has before it Defendant’s Motion to Dismiss Second Amended Complaint, or in the Alternative, Motion for Summary Judgment [Document 47], Plaintiff’s Cross-Motion for Partial Summary Judgment [Document 55], and the materials submitted relating thereto. The Court finds a hearing unnecessary.

 

I. BACKGROUND

 

A. Underlying Lawsuit

On October 26, 2007, a tractor trailer driven by Derrick Hines, an employee of R & H Trucking, Inc. (“R & H”), crashed into an automobile driven by the husband of Plaintiff Kara Daniel (“Daniel”), resulting in Mr. Daniel’s death. In October 2010, Daniel brought suit in this Court against 7 Defendants for negligence, seeking $10,000,000.00. See JKB-10-2757.

In July 2011, Northland Insurance Company (“Northland”) — the commercial trucking liability insurance carrier for H & F Bros., LLC, (“H & F”), a trucking [*2]  company that had contracted with R & H to transport a shipment of goods — settled with Daniel for $1,000,000.00, the liability limit of the Northland policy.1 The settlement was paid “on behalf of” Northland and 5 of the Defendants: (1) H & F; (2) BDH Trucking, Inc., the predecessor to H & F; (3) R & H; (4) Aaron Hines, the owner of R & H; and (5) Derrick Hines. As part of the settlement, Northland and the 5 Defendants assigned to Daniel:

 

all of [their] rights, title and interest that [they] may have, whether in tort or contract for indemnification and/or contribution, for damages arising out of the accident that occurred on October 26, 2007 which is the subject of said lawsuit, including all claims against National Casualty Insurance Company [for] any failure on the part of National Casualty Insurance Company to defend or indemnify Derrick Hines, Aaron Hines, R & H Trucking, H & F Bros LLC, and/or BDH Trucking, Inc. in said Lawsuit.

 

 

See, e.g., [Document 1-3] (emphasis added).

 

1   Daniel also obtained a $250,000.00 settlement from the insurance carrier for Hotchkiss Trucking, one of the other Defendants in the underlying lawsuit. See [Document 55-11] ¶ 22. Hotchkiss Trucking had facilitated [*3]  the brokerage arrangement between R & H and H & F. The owner of Hotchkiss Trucking has an ownership interest in H & F.

National Casualty Company (“National Casualty”), the insurance carrier for R & H, refused to tender a defense to R & H, Aaron Hines, and Derrick Hines in the underlying lawsuit on the grounds that “the policy was not in effect at the time of the accident” because it had been “cancelled for non-payment of premium on September 25, 2007.” [Document 55-6] at 5.

 

B. The Instant Lawsuit

On May 23, 2013, Daniel, as the assignee of H & F and Northland, filed the instant lawsuit against National Casualty for indemnification.2 Daniel filed an Amended Complaint on July 26, 2013 as the assignee of H & F, Northland, BDH, Aaron Hines, Derrick Hines, and R & H. [Document 22]. National Casualty filed a Motion to Dismiss. [Document 30].

 

2   Daniel also sued Rhonda Moreen Insurance Agency (“Rhonda Moreen”), but later dismissed the case against Rhonda Moreen, without prejudice to reinstate if discovery establishes personal jurisdiction. [Document 45].

After a hearing on November 27, 2013, the Court dismissed the Amended Complaint. At the hearing, the Court stated that “[t]here is nothing in the [Amended] [*4]  complaint that shows any basis to believe that any assignor of rights, other than Northland, was out of pocket or had any loss, or anything that they could claim against National Casualty. [Document 47-2] at 3.

The Court allowed Daniel to file a Second Amended Complaint (“SAC”) and instructed Daniel that any claim on behalf of Northland against National Casualty must “be set forth . . . in a clear and understandable manner” and that she should explain “whatever the relationship is . . . that puts National Casualty on the hook to pay indemnity or some kind of contribution.” Id.

Daniel filed the SAC on January 3, 2014, alleging claims against National Casualty in two Counts:

 

Count I Indemnification

Count II Contribution

 

 

See [Document 46]. In the SAC, Daniel contends that National Casualty and Northland insured the same parties, that the National Casualty policy was primary to the Northland policy, and that Northland would not have had to pay anything in the underlying lawsuit if National Casualty had paid its policy limits of $750,000.00.

National Casualty filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. [Document 47]. Daniel filed a Cross-Motion for Partial Summary Judgment. [Document 55].

 

II. DISCUSSION [*5]

The Court finds the parties’ respective briefings inadequate. Both sides have submitted voluminous briefings that “incorporate by reference as if fully stated herein,” all arguments made in previous filings related to National Casualty’s Motion to Dismiss the first Amended Complaint. Accordingly, the parties would have the Court review the entirety of their respective prior filings and guess which portions thereof they may contend, mutatis mutandi, are pertinent to the Second Amended Complaint. As rather eloquently stated in United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), counsel should not treat judges as if we were “pigs, hunting for truffles buried in briefs.”

Moreover, while Daniel contends that she is entitled to partial summary judgment, she does not specify which issue or issues on which she seeks summary judgment and those on which she does not.

Under the circumstances, the Court will deny the pending motions without prejudice and provide an opportunity for the parties to file new motions for summary judgment. However, the Court will require the parties, should they refile motions for summary judgment, to comply with the following:

 

o There shall be no incorporation by reference.

o The parties shall address, with evidentiary [*6]  references as appropriate:

 

[#x25cb] The legal standards applicable to any common law indemnification and contribution claims;

[#x25cb] The relationship between R & H and H & F/BDH at the time of the October 26, 2007 accident;

[#x25cb] The intrastate or interstate nature of the National Casualty policy, with evidentiary support for their contentions; and

[#x25cb] The legal effect of the Premium Service Agreement entered into between R & H and Prime Rate Premium Finance Corporation, Inc. to finance the premium on the National Casualty policy and how, if at all, that differs depending upon whether it is an interstate or intrastate policy.

 

 

o The parties shall clearly explain their respective positions as to the effect of the Notice of Cancellation that Prime Rate mailed to R & H (336A Cottonfield Court, Ayden, NC 28513) on 09/13/2007.

[#x25cb] In particular, how long after September 13, 2007, did the National Casualty policy remain in effect without R & H paying installments to Prime Rate?

 

[#x25aa] The parties debate whether the applicable timeframe for notification of cancellation was 10,3 15,4 30,5 or 356 days.

[#x25aa] Since the accident at issue occurred on October 26, 2007, more than 35 days after the notification, what is the basis for contending [*7]  that the policy was in effect on that date?

 

 

[#x25cb] If the policy were in effect on October 26, 2007, when did the policy cease to be in effect?

 

 

 

 

 

 

3   Relying upon N.C. Gen. Stat. § 58-35-85, cancellation would be effective 09/23/2007.

4   Relying upon the Cancellation Common Policy Condition (1)(a)(1) in the National Casualty Policy, [Document 10-8] at 41, cancellation would be effective 09/28/2007.

5   Relying upon the Cancellation Common Policy Condition (1)(a)(2) in the National Casualty Policy, [Document 10-8] at 41, cancellation would be effective 10/13/2007.

6   Relying upon the Federal Motor Carrier Safety Regulations (“FMCSR”), 49 C.F. R. § 387.7, cancellation would be effective 10/18/2007.

The Court notes that Daniel relies upon § 387.7(d), but there does not appear to be such a provision in the FMCSR.

 

III. CONCLUSION

For the foregoing reasons:

 

1. Defendant’s Motion to Dismiss Second Amended Complaint, or in the Alternative, Motion for Summary Judgment [Document 47] is DENIED WITHOUT PREJUDICE.

2. Plaintiff’s Cross-Motion for Partial Summary Judgment [Document 55] is DENIED WITHOUT PREJUDICE.

3. The parties may file further motions for summary judgment consistent herewith by October 29, 2014.

a. Responses shall be filed by November 12, 2014.

b. Any Replies shall be filed by November 26, 2014.

 

 

SO ORDERED, on Monday, September 29, 2014.

/s/ Marvin J. Garbis [*8]

United States District Judge