United States District Court,M.D. Louisiana.

INTEGRATED FORESTRY SERVICES, L.L.C.

v.

CANAL INDEMNITY COMPANY.

Civil Action No. 07-230-JJB-SCR.

Oct. 20, 2008.

RULING ON SECOND MOTION FOR SUMMARY JUDGMENT

JAMES J. BRADY, District Judge.

This matter is before the Court on a Second Motion for Summary Judgment filed by defendant, Canal Indemnity Company (“Canal”). (Doc. 15). The plaintiff, Integrated Forestry Services (“IFS”) opposes this motion (Doc. 19). Canal has filed a reply (Doc. 21). Oral arguments were heard on 09/09/2008. Subject matter jurisdiction is based upon 28 U.S.C. § 1332.

I. Factual Background

On February 25, 2006, an IFS employee was hauling a 16-18 ton load of wood chips in a 1987 Boggs Trailer (“the trailer”). The trailer was en route to deliver its load from Environmental Concerns, L.L.C. (“Environmental”) to a mill in DeRidder, Louisiana when it “cracked in half.” At the time, the trailer was insured under Canal’s Basic Automobile Physical Damage Policy No. P099237. This policy, at I-COVERAGE AGREEMENTS, PROVIDES:

Exclusions: This insurance does not apply:

…

(b) to damage which is due and confined to:

(i) wear and tear, or

(ii) freezing, or

(iii) mechanical or electrical breakdown or failure, unless such damage is the result of other loss covered by this insurance[.]

On February 27, 2006, IFS reported the incident to Canal. Canal assigned the claim to Aero Adjustment Bureau (“Aero”). Aero performed an investigation and issued a recommendation to Canal in an April 12, 2006 report. Aero’s report concluded that “the loss occurred as a result of the trailer frame’s mechanical failure, including the trailer’s age and wear, and likely including the dropping of chips into the trailer over a long period of time.”Soon thereafter, Canal advised IFS that its claim was denied for the reasons stated in Aero’s report.

II. Arguments

Canal argues that IFS has produced no evidence regarding the road’s condition, and no evidence to support its allegation that road conditions caused the trailer to collapse. Canal argues that IFS did not produce an expert report regarding the condition of the road or provide any expert report to substantiate that an unavoidable pot hole caused the trailer’s damage.

Canal also claims that this incident falls under the exclusions in the policy because there was a mechanical breakdown. The trailer suffered from structural failure. This Court has already ruled that a “structural failure” and “mechanical failure” are not one and the same.

III. Standard of Law

Summary Judgment is appropriate when the pleadings, answers to interrogatories, admissions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

IV. Analysis

Canal claims that there has been no expert report or evidence supporting Integrated Forestry’s claim that the damage was caused by unavoidable pot holes in the roadway. However, Integrated Forestry’s expert, Mr. Killingsworth reported that “the poor condition of the travel route created sufficient dynamic loading of the trailer and trailer cargo to cause the trailer’s center cross bracing to fail.”Integrated Forest also submitted an affidavit from Timothy Lane Liddy, in which Mr. Lyddy attests to his own personal knowledge that at the time of the accident the roads within the territory of the Boise Mill were in great disrepair, with many deep pot holes and ruts all about them. Integrated Forest has supplied both evidence and an expert report describing the conditions of the roadway.

Canal also claims that this incident falls under the exclusions in the policy because there was a mechanical breakdown. The trailer suffered from structural failure. This Court has already ruled that a “structural failure” and “mechanical failure” are not one and the same. This Court again finds that the words “structure and “machine” are commonly understood to have different meetings. The Webster’s Online Dictionary’s definitions of “mechanical” (“using (or as if using) mechanisms or tools or devices; relating to or concerned with machinery or tools; relating to or concerned with machinery or tools; relating to or governed by in accordance with mechanics.”); “mechanism” (”a device consisting of a piece of machinery; has moving parts or some function.); “machine” (“any mechanical or electrical device that transmits or modifies energy to perform or assist in the performance of human tasks.”); “structural” (“relating to or having or characterized by structure; affecting or involved in structure or construction.”); and “structure” (“a thing constructed; a complex construction or entity; the manner of construction and the arrangement of its parts.”) to demonstrate the difference between how one would define a structure versus a machine. This Court again finds the differences are clear and unambiguous.

V. Conclusion

This Court finds that genuine issues of facts remain as to whether there were any road conditions that caused the trailer to collapse. This Court also again finds that the “mechanical failure” exclusion does not apply to the facts at bar.

Accordingly, Canal’s Motion for Summary Judgment is Denied.

United States District Court, M.D. Florida,

Jacksonville Division.

George and Sunny EWANCHEW, husband and wife, Plaintiffs,

v.

BEKINS VAN LINES, LLC, a foreign corporation, and American Safety Movers, Inc., a Florida corporation, Defendants.

No. 3:07-cv-00403-J-34HTS.

Oct. 20, 2008.

ORDER

This is a “written opinion” under § 205(a)(5) of the E-Government Act and therefore is available electronically. However, it has been entered only to decide the motions addressed herein and is not intended for official publication or to serve as precedent.MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on Magistrate Judge Howard T. Snyder’s Report and Recommendation (Dkt. No. 35; Report), entered July 17, 2008, recommending that Plaintiffs’ Motion for Attorneys’ Fees and Incorporated Memorandum of Law (Dkt. No. 31; Motion) be denied as Plaintiffs failed to preserve any entitlement to fees pursuant to 49 U.S.C. § 14708(d)(1).See Report (Dkt. No. 35) at 4-6.To date, no objections to the Report have been filed, and the time for doing so has passed.

The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”28 U.S.C. § 636(b).“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”Fed.R.Civ.P. 72(b) advisory committee’s note (1983); see also  Macort v. Prem, Inc., 208 Fed. Appx. 781, 784-85 (11th Cir.2006) (per curiam). Therefore, if no specific objections to findings of facts are filed, the district court is not required to conduct a de novo review of those findings, but will review the legal conclusions in the report de novo to determine whether there is any clear error. See  Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir.1993); Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.1994); United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at(M.D.Fla. May 14, 2007); see also28 U.S.C. § 636(b)(1).

Based upon an independent examination of the record and a de novo review of the legal conclusions, the Court finds that there is no clear error on the face of the record and it will accept the recommendation of the Magistrate Judge.

Accordingly, it is hereby ORDERED:

1. Magistrate Judge Howard T. Snyder’s Report and Recommendation (Dkt. No. 35) is ACCEPTED.

2. Plaintiffs’ Motion for Attorneys’ Fees and Incorporated Memorandum of Law (Dkt. No. 31) is DENIED.

DONE AND ORDERED.

REPORT AND RECOMMENDATION

Specific, written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, United States District Court, Middle District of Florida, within ten (10) days after service of this document. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.HOWARD T. SNYDER, United States Magistrate Judge.

This cause is before the Court on Plaintiffs’ Motion for Attorney’s Fees (Doc. # 31; Motion), which has been referred to the undersigned for issuance of a report and recommendation. See Order (Doc. # 33). Defendant, Bekins Van Lines, LLC (hereinafter Bekins or Defendant) has now responded to the Motion. See Bekins Van Lines, LLC.’s Response to Plaintiffs’ Motion for Attorney Fees (Doc. # 34; Response).

According to the Motion, counsel for both parties “have stipulated to bifurcating the issues to have the Court initially resolve the question of Plaintiffs’ entitlement to attorney’s fees[.]” Motion at 2. Thereafter, “[i]f the Court resolves such threshold issue in favor of Plaintiffs, then the parties have agreed to submit additional documentation to the Court to permit a determination of a reasonable attorney’s fee.”Id.

Movants instituted this action against Bekins alleging “damage to household goods during interstate movement pursuant to 49 U.S.C. § 14706.”Amended Complaint for Damages (Doc. # 20; Complaint) ¶ 23.The Complaint also avers the Ewanchews “are entitled to recover their attorney’s fees from Bekins pursuant to 49 U.S.C. § 14708(d).”Id.  ¶ 27 (capitalization omitted). In the Motion, Plaintiffs reaffirm their position that this statutory provision constitutes the sole authority on which they base their request for legal fees. See Motion at 5-9. They argue “the plain language of the statute allows a shipper [Plaintiffs] to recover attorney’s fees if the shipper timely submits a claim for loss of their household items, prevails in a court action to resolve the dispute and has no arbitration decision rendered in the dispute.”Id. at 5-6 (brackets in original). “Further,” it is asserted, “Plaintiffs are entitled to recover their attorney’s fees because Bekins did not notify Plaintiffs of the possibility that their claim could be resolved by arbitration.”Id. at 6.

As to the other Defendant, American Safety Movers, Inc., breach of contract was claimed. See id. at 6-7.However, it is represented that, “[a]t mediation, all of Plaintiffs’ claims against [this Defendant] were resolved.”Motion at 2.

Defendant agrees that, in appropriate cases, “[a] carrier who fails to provide the required notice of its arbitration program may be liable to a shipper for attorney’s fees.”Response at 6. Still, it contends the Motion should be denied because “the Plaintiffs failed to submit their claim within the time limits prescribed by 49 U.S.C.A. § 14708[,]” and also because “Plaintiffs knew of their right to arbitration but instead chose to proceed with a civil suit.”Id. at 9.

Pursuant to 49 U.S.C. § 14708(d), reasonable attorney’s fees are to be awarded if

(1) the shipper submits a claim to the carrier within 120 days after the date the shipment is delivered or the date the delivery is scheduled, whichever is later;

(2) the shipper prevails in such court action; and

(3) (A) the shipper was not advised by the carrier during the claim settlement process that a dispute settlement program was available to resolve the dispute;

(B) a decision resolving the dispute was not rendered through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension of such period under such subsection; or

(C) the court proceeding is to enforce a decision rendered through arbitration under this section and is instituted after the period for performance under such decision has elapsed.

(emphasis omitted).

The first prerequisite to entitlement to fees, then, is the timely submission of a claim. Indeed, the Ewanchews acknowledge “the plain language of the statute” permits recovery of “attorney’s fees if the shipper timely submits a claim for loss of their household items[.]” Motion at 5 (emphasis added); cf.  Yakubu v. Atlas Van Lines, 351 F.Supp.2d 482, 490 (W.D.Va.2004) (“Attorney fees may be awarded to the shipper only if” a timely claim is submitted as defined by § 14708(d).). According to the stipulated facts, under the original schedule the shipment was to occur “in June 2005.” Motion at 3; Response at 2. Most of the “  household goods needed to be placed into storage. The remaining household goods would be delivered to a rental house in Palm Coast, Florida.”Motion at 3; Response at 2. However, because “the actual size and weight of the household items were much larger than anticipated[,]” a second trip was necessary. Motion at 3; Response at 2. The delivery to the rental house occurred “on July 7, 2005[,]” Motion at 4; Response at 3, and as it was during this shipment that damage allegedly took place, Motion at 4; Response at 3, it initially would appear this date is controlling. Calculating 120 days forward from July 7, 2005, yields a deadline of November 4, 2005, for submission of a claim to the carrier that would preserve entitlement to fees under 49 U.S.C. § 14708(d)(1).

Although “[s]hortly after the goods were delivered[,] Mr. Ewanchew went to the [American Safety Movers, Inc. (ASM) ] warehouse [and] spoke to … an ASM employee[,]” he admits “she informed him … that he could file a claim[,]” at least after the remaining goods “had been delivered to his house.”Motion at 4; Response at 4. These remaining items “were delivered … on or about March 29, 2006.”Motion at 4; Response at 4. Hence, even if this later date is used as the trigger of the 120-day period, the actual submission of Plaintiffs’ claim, which occurred “on December 21, 2006[,]” Motion at 4; Response at 4-5, was clearly untimely.

Plaintiffs assert “a shipper has nine (9) months to submit a claim to the carrier for lost or damaged items.”Motion at 6 (citing 49 U.S.C. § 14706(e) and 49 C.F.R. § 370.3(c)). Yet they fail to explain how they have complied with the timeliness requirement contained in the specific statutory provision addressed to attorney’s fees-and pursuant to which they are moving. Instead, they merely say they “were never told that a claim had to be filed within 120 days as a prerequisite to seek attorney’s fees.”Id. at 7;see also id. at 9. Movants do not cite, and the Court has not uncovered, authority establishing the statutory 120-day deadline applies only where a shipper is informed of it. Cf. Response at 7 (“Plaintiffs failed to cite to any authority which indicated that Bekins had a legal obligation to inform them of the statutory mandated time requirements contained within § 14708.”);   Allen v. Baldwin County Comm’n, Civil Action No. 06-0432-WS-B, 2007 WL 1875944, at(S.D.Ala. June 28, 2007) (ignorance of deadline not a valid excuse). Nor would lack of notice as to the potential for arbitration relieve them of the timeliness requirement. Having “missed the 120 day deadline [,]” Plaintiffs as a matter of law “do not have a claim for attorneys’ fees [.]”  Nichols v. Mayflower Transit, LLC, 368 F.Supp.2d 1104, 1109 (D.Nev.2003).

In accordance with the foregoing, it is hereby RECOMMENDED that the Motion (Doc. # 31) be DENIED.

ENTERED at Jacksonville, Florida, this 17th day of July, 2008.