Court of Appeals of North Carolina.

Debra Sizemore HENSLEY, Administratrix of the Estate of Ashley Nicole Hensley Raymer, Deceased, Plaintiff,

v.

NATIONAL FREIGHT TRANSPORTATION, INC.; TDY Industries, Inc., d/b/a Allvac; Larry Allen Smith, Individually and d/b/a Larry Allen Smith Trucking; Paul Wayne Smith, Individually and d/b/a Larry Allen Smith Trucking; Robert E. Smith, Individually and d/b/a Allen Smith Trucking; and Allen Smith Trucking, a de facto North Carolina Partnership, Defendants.

No. COA07-1544.

Nov. 4, 2008.

FACTS

On 30 June 2005, Robert Smith (“Robert”), a truck driver who worked for National Freight Transportation, Inc. (“National Freight”), drove a flatbed truck to the TDY Industries, Inc., d/b/a Allvac (“Allvac”) facility in Richburg, South Carolina to pick up a load of zirconium wire coil. The coils were lying on four pallets that were to be loaded onto the truck. One of the pallets held four coils, while the remaining pallets each held a single coil. Robert instructed the facility’s forklift operator to load the pallets onto the truck and provided guidance as to where the pallets should be placed. Unhappy with the look of the pallet holding four coils, Robert instructed the facility workers to remove that pallet and band the coils. Robert then directed the forklift operator to replace the coils and used additional straps to secure the coils. After securing the coils, Robert signed a bill of lading and drove the truck to the Allvac plant in Monroe, North Carolina. Once in Monroe, Robert was informed that the plant was closed, so he checked the straps securing the load, tightened those straps that felt loose, and drove the truck to Harrisburg, North Carolina.

On 1 July 2005, Robert again drove to the Allvac Plant in Monroe. Before he left, he checked the load and tightened some of the straps. Upon arriving at the Monroe plant, Robert directed Allvac employees as to where to place additional materials on the truck. Robert tied down the materials, checked all the straps, tightened them, and drove the truck to a garage in Harrisburg. On 4 July 2005, Larry Smith (“Larry”), who also worked for National Freight, left the garage with the truck and began to drive to Huntsville, Alabama. On his way to Huntsville, Larry heard a noise while driving southbound on Interstate 85. Larry looked in his right-hand mirror and saw sparks coming from the back of the truck. Thinking he may have lost a wheel, Larry stopped the truck at the side of the road. After inspecting the truck and his cargo, Larry determined that one of the coils had fallen off his truck.

On the evening of 4 July 2005, Ashley Nicole Hensley Raymer (“decedent”) was riding on the back of a motorcycle being driven by Jeffrey Eugene Wellman. The two were driving on Interstate 85 in Mecklenburg County when Mr. Wellman observed sparks approximately 25 to 35 yards ahead of the motorcycle. Mr. Wellman moved the vehicle to dodge debris in the road, but was unable to dodge the coil lying in the road. The motorcycle struck the coil and ejected decedent into the road. An oncoming truck then struck decedent, causing her to sustain serious injuries. Decedent died as a result of those injuries later that evening.

On 8 December 2005, Debra Sizemore Hensley, Administratrix of the Estate of Ashley Nicole Hensley Raymer, deceased (“plaintiff”), filed a complaint against National Freight, Allvac, Larry Allen Smith, Paul Wayne Smith, and Larry Allen Smith Trucking (“defendants”) alleging defendants’ negligence was the proximate cause of decedent’s injuries. On 10 July 2007, Allvac filed a motion for summary judgment, asserting that no material question existed as to Allvac’s liability for decedent’s injuries. On 23August 2007, the trial court granted the motion and dismissed all of plaintiff’s claims against Allvac. Plaintiff now appeals.

I.

Plaintiff argues on appeal that the trial court erred in entering summary judgment in favor of Allvac. We agree.

“In ruling on a motion for summary judgment, the court does not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact.”  Ragland v. Moore, 299 N.C. 360, 363, 261 S.E.2d 666, 668 (1980). Where a party has moved for summary judgment, the movant bears the burden of showing “that there is no triable issue of fact and that he is entitled to judgment as a matter of law.”Id. The movant may meet this burden “by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim [.]”  Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). However, “[a]ll inferences of fact must be drawn against the movant and in favor of the nonmovant.”  Lord v. Beerman, —N.C.App. —-, —-, 664 S.E.2d 331, 334 (2008).“[I]t is only in exceptional negligence cases that summary judgment is appropriate, since the standard of reasonable care should ordinarily be applied by the jury under appropriate instructions from the court.”  Ragland, 299 N.C. at 363, 261 S.E.2d at 668. On appeal, a trial court’s grant of summary judgment will be reviewed de novo. Lord, — N.C.App. at —-, 664 S.E.2d at 334. “North Carolina follows the lex loci delicti rule (law of the situs of the claim) in resolving choice of law for tort claims.”  Terry v. Pullman Trailmobile, 92 N.C.App. 687, 690, 376 S.E.2d 47, 49 (1989).“The law of the place where the injury occurs controls tort claims, because an act has legal significance only if the jurisdiction where it occurs recognizes that legal rights and obligations ensue from it.”Id. Here, decedent was injured in North Carolina so her substantive rights with regard to negligence must be determined by North Carolina law. See id.

Our state Legislature has determined that “[t]he [North Carolina Division of Motor Vehicles] may adopt any rules necessary to carry out the provisions of this Article.”N.C. Gen.Stat. § 20-37.22 (2007). According to the Division,

[t]he rules and regulations adopted by the U.S. Department of Transportation relating to safety of operation and equipment (49 CFR Parts 390-397 and amendments thereto) shall apply to all for-hire motor carriers and all for-hire motor carrier vehicles, and all private motor carriers and all private motor carrier vehicles engaged in interstate commerce over the highways of the State of North Carolina if such vehicles are commercial motor vehicles as defined in 49 CFR Part 390.5.

19A N.C.A.C. 3D.0801 (2007).

The Code of Federal Regulations provides, in pertinent part, that “[a] driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless … [t]he commercial motor vehicle’s cargo is properly distributed and adequately secured[.]”49 C.F.R. § 392.9(a)(1) (2007). Further, under these regulations, the driver of the truck has an affirmative duty to ensure the truck’s cargo is properly distributed and adequately secured before he operates the vehicle. Id.“While not dispositive, [these regulations are] indicative of the proper allocation of duty as between a common carrier and a shipper for the proper loading of goods.”  Rector v. General Motors Corp., 963 F.2d 144, 147 (6th Cir.Ky.1992).

Under federal law, “[t]he primary duty as to the safe loading of property is therefore upon the carrier.”  U.S. v. Savage Truck Line, 209 F.2d 442, 445-46 (4th Cir.Va.1953), cert. denied, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954). However,

“[w]hen the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.”

Franklin Stainless Corp. v. Marlo Transport Corp., 748 F.2d 865, 868 (4th Cir.Va.1984) (citation omitted).

In the case sub judice, Allvac filed a motion for summary judgment alleging National Freight assumed the responsibility for the loading of the truck, and thus, Allvac was not liable for the accident. The trial court reviewed the motion and granted summary judgment, holding that there existed no genuine issue of material fact and that Allvac was entitled to judgment as a matter of law. On appeal, plaintiff argues the trial court erred in granting summary judgment because a genuine issue of material fact remains as to whether Allvac is liable for the negligent loading of the truck.

Our review of the record reveals that the loading of the truck was supervised by Robert Smith, the driver for National Freight. Robert instructed the facility workers on where to put the coils on the truck, directed that facility workers remove some of the coils, and requested that these coils be banded. Robert then instructed the facility workers on where to place the banded coils on the truck. Once the truck was loaded, Robert inspected the load and signed a bill of lading indicating that the truck had been “loaded and braced in accordance with the truck drivers’ instructions.”

Although the evidence demonstrates that Robert played a prominent role in the loading of the truck, the record on appeal also contains some evidence that Allvac, the shipper, maintained responsibility as to how the truck should be loaded. Mr. Smith testified that when the facility workers first loaded the truck, the four coils on the pallet in question were stacked on top of each other. According to Robert’s testimony, when he inquired as to why they were being shipped in this manner, the forklift operator at the facility responded, “that’s the way they wanted them shipped.”Further, Robert testified that although he requested the coils be banded by the facility workers, he could not “tell them how to band it.”Thus, Robert’s testimony serves as evidence that Allvac maintained the ultimate responsibility in determining how the coils would be packaged and shipped on the truck. After reviewing the arguments before us, we hold an issue of material fact remains as to which party bore the responsibility for the loading of the truck. Thus, the jury, and not the trial court, should make the determination of whether Allvac is liable for plaintiff’s injuries.Accordingly, we reverse the trial court’s grant of summary judgment and remand the case for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Judge STROUD concurs.

Judge TYSON dissents by separate opinion.

TYSON, Judge dissenting.

The majority opinion erroneously reverses the trial court’s grant of summary judgment for TDY Industries, Inc. d/b/a Allvac (“Allvac”) and remands the case for further proceedings. The trial court correctly ruled there are no genuine issues of material fact and Allvac is entitled to judgment as a matter of law. The trial court’s judgment should be affirmed. I respectfully dissent.

I. Standard of Review

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.

A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff’s case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.

Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.

We review an order allowing summary judgment de novo.If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.

Wilkins v. Safran, 185 N.C.App. 668, 671-72, 649 S.E.2d 658, 661 (2007) (internal citations and quotations omitted).

II. Analysis

The majority’s opinion holds that “an issue of material fact remains as to which party bore the responsibility for the loading of the truck.”I disagree.

The Code of Federal Regulations provides:

A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless-

(1) The commercial motor vehicle’s cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.142 of this subchapter.

49 C.F.R. § 392.9(a) (2005). This Federal Regulation is consistent with N.C. Gen.Stat. § 20-116(g)(1) (2005), which provides:

No vehicle shall be driven or moved on any highway unless the vehicle is constructed and loaded to prevent any of its load from falling, blowing, dropping, shifting, leaking, or otherwise escaping therefrom, and the vehicle shall not contain any holes, cracks, or openings through which any of its load may escape.

Both the Federal Regulation and our State place the liability for securing the load on a vehicle upon the carrier and driver of the vehicle, not the shipper.

The United States Court of Appeals for the Fourth Circuit has stated:

The primary duty as to the safe loading of property is therefore upon the carrier. When the shipper assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper.

United States v. Savage Truck Line, 209 F.2d 442, 445 (4th Cir.1953), cert. denied, 347 U.S. 952, 74 S.Ct. 677, 98 L.Ed. 1098 (1954); see also  Franklin Stainless Corp. v. Marlo Transport Corp., 748 F.2d 865, 868 (4th Cir.1984) (“Responsibility for obviously improper loading generally rests on the carrier, and it must indemnify the shipper even though the shipper loaded the truck.”(Citing General Electric Co. v. Moretz, 270 F.2d 780 (4th Cir.1959); Savage Truck Line, 209 F.2d at 442)). Here, Allvac showed “entitlement to summary judgment” when plaintiff could not establish Allvac owed plaintiff’s decedent any duty to load or transport the coils safely, “an essential element of [plaintiff’s] claim….”  Wilkins, 185 N.C.App. at 672, 649 S.E.2d at 661;see also  Petty v. Print Works, 243 N.C. 292, 298, 90 S.E.2d 717, 721 (1956) (“To recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.”(Citation omitted)).

There is no genuine issue of material fact that Robert Smith, the driver who picked up the load at Allvac,: (1) instructed the forklift operator on where to place the coils on the truck; (2) instructed the forklift operator to take the coils off the truck and to band them; (3) instructed the forklift driver on where to replace the coils on his truck after banding; (4) inspected the load before leaving Allvac; (5) was satisfied that the truck had been loaded in accordance with his standards and his instructions; (6) signed two bills of lading, both of which acknowledged that the truck had been “loaded and braced in accordance with [his] instructions[;]” and (7) acknowledged that it was his job, his duty, and his responsibility, as the driver of the truck, to be sure that the coils were properly loaded with his instructions.

Once Allvac established its “entitlement to summary judgment[,]” “the burden shift[ed] to [plaintiff] to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima face case at trial.”  Wilkins, 185 N.C.App. at 672, 649 S.E.2d at 661. Plaintiff failed to produce any forecast of genuine issues of material fact to show that Allvac had retained or assumed any responsibility for the manner of or oversight over the loading or transporting of the coils.

The incident where plaintiff’s decedent was killed, occurred five days and hundreds of miles after the shipment left Allvac’s facility. Plaintiff failed to carry her burden “to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima facie case at trial.”Id. The trial court properly granted Allvac’s motion for summary judgment and its judgment should be affirmed.

III. Conclusion

After Allvac showed entitlement to summary judgment, plaintiff failed “to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that [s]he can at least establish a prima face case at trial.”Id. An essential element of her claim is absent. Under our standard of review, the trial court properly granted Allvac’s motion for summary judgment. Id. at 671-72, 649 S.E.2d at 661. I vote to affirm the trial court’s order and respectfully dissent.

In its brief, Allvac argues that even if it bore responsibility for the loading of the truck, such improper loading was apparent, and thus, National Freight would be liable for failing to take further steps to secure the cargo. Although Allvac may be correct in this assertion, we hold this to be a question for the trier of fact. Therefore, summary judgment is not appropriate on this issue. See  Ebasco Service, Inc. v. Pacific Intermountain Express Co., 398 F.Supp. 565 (S.D.N.Y.1975).

United States District Court, D. Connecticut.

DESIGN X MANUFACTURING, INC., Plaintiff,

v.

ABF FREIGHT SYSTEMS, INC., Defendant.

No. 3:06CV1381 (MRK).

Nov. 4, 2008.

RULING AND ORDER

MARK R. KRAVITZ, District Judge.

In this case, Design X Manufacturing, Inc. (“Design X”) has sued ABF Freight Systems, Inc. (“ABF Freight”) under the Carmack Amendment, 49 U.S.C. § 14706, as well as under the Connecticut Unfair Trade Practices Act (CUTPA) and for common law negligence and breach of contract. Pending before the Court is ABF Freight’s Motion for Summary Judgment [doc. # 49]. For the reasons that follow, ABF Freight’s Motion for Summary Judgment is GRANTED.

I.

The facts of this case are not complex. Design X contracted with ABF Freight to transport a shipment of furniture to one of Design X’s customers, Red the Salon, which is located in Birmingham, Michigan. ABF Freight subcontracted a turnkey company, InSite Logistics (“InSite”), to deliver the furniture from the final switching point in Dearborn, Michigan to the second floor of the building where Red the Salon was located. Unable to get one of the pieces of furniture, a reception desk, to the second floor, InSite apparently left the desk in the first floor lobby of another business in the building. Red the Salon was required to hire another turnkey company to get the desk to the second floor. The main dispute revolves around who damaged the desk and when. According to Design X, the reception desk was damaged by InSite in its failed attempt to deliver it to the second floor, and the desk was later discarded as unsalvageable. ABF Freight argues that there is no evidence that it or InSite damaged the desk and questions why Red the Salon would have paid several thousands of dollars to a second company to deliver an unsalvageable desk to the second floor.

Design X claims $15,835 in damages for the loss of the desk itself and for the cost of hiring the second turnkey company. It also seeks upwards of $250,000 in damages for loss of business and reputation.

II.

As this Court has stated on many previous occasions, summary judgment is appropriate only when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c).“A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (quotation marks omitted).“The substantive law governing the case will identify those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’”  Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact, see  Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. See  Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008). If the moving party carries its burden, the party opposing summary judgment “may not rely merely on allegations or denials.”Fed.R.Civ.P. 56(e)(2). Rather, the opposing party must “set out specific facts showing a genuine issue for trial.”  Id. In short, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.”  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).“If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”  Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

III.

ABF Freight makes three main arguments in support of its Motion for Summary Judgment [doc. # 49]. First, it contends that all of Design X’s state law claims are preempted by the Carmack Amendment. Second, it argues that Design X has failed to make out a prima facie case under the Carmack Amendment. And third, ABF Freight asserts that even if Design X has made out a prima facie case, ABF Freight’s liability is limited to $5.00 per pound, or a total of $1,700. The Court agrees with ABF Freight on each argument.

A.

It is well established that the Carmack Amendment preempts state law claims arising from the shipment of goods in interstate commerce. See, e.g.,  Project Hope v. M/V Ibn Sina, 250 F.3d 67, 74 n. 6 (2d Cir.2001) (“In enacting [the Carmack Amendment], Congress intended to provide interstate carriers with reasonable certainty and uniformity in assessing their risks and predicting their potential liability. The Carmack Amendment did this both by establishing a single uniform regime for recovery by shippers directly from [the] interstate common carrier in whose care their [items] are damaged, and by preempting [the] shipper’s state and common law claims against a carrier for loss or damage to goods during shipment.”(citations and quotation marks omitted)); Cleveland v. Beltman N. Am. Co., 30 F.3d 373, 378 (2d Cir.1994)( “[T]he Carmack Amendment preempts state common law remedies that might be asserted against a carrier for damages to goods shipped under a proper bill of lading.”); Prime Materials Recovery, Inc. v. Martin Roy Transp., No. 3:07cv1169 (AHN), 2008 WL 2095550, at * 1 n. 1 (D.Conn. May 14, 2008); see also  Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 687-88 (9th Cir.2007); Shao v. Link Cargo (Taiwan), 986 F.2d 700, 704-05 (4th Cir.1993); Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112, 1120-21 (10th Cir.1989).

Design X argues that its state law claims are not preempted because they seek damages caused by InSite at the delivery site. These damages, Design X argues, are separate and distinct from damages caused by the shipment of the goods in interstate commerce. Design X cites Gordon v. United Van Lines, 130 F.3d 282 (7th Cir.1997), as support for this argument. However, Gordon is clear that “the Carmack Amendment bars a shipper from seeking any other remedy [that] either state statutory or common law provides against a carrier for damages to the shipper’s goods that have been transferred in interstate commerce.”  Id. at 288 (emphasis added). This holding would, of course, include damage caused to the goods during the course of delivery, as Design X alleges in this case. In fact, the Carmack Amendment explicitly covers damage caused by the delivering carrier, which is defined as “the carrier performing the line-haul transportation nearest the destination.”49 U.S.C. § 14706(a)(1). Design X does not dispute that InSite qualifies as a delivering carrier.

Design X further argues that its claim for $250,000 in damages to business or reputation is not preempted by the Carmack Amendment because it arises from the claims process and not from the actual shipment of goods. Damages incurred during the claim process, Design X argues, are “separate and independently actionable harms that are distinct from the loss of, or the damage to, the goods.”  Gordon, 130 F.3d at 289.In Gordon, the Seventh Circuit held that the plaintiffs’ claim for intentional infliction of emotional distress was not preempted by the Carmack Amendment. Id. at 289.However, the Seventh Circuit also held that the plaintiffs’ claims for breach of contract, negligence, and the state trade practices act-the precise causes of action alleged here-were preempted. Even the plaintiffs’ claim for common law fraud during the claims process was found to be preempted because “the claims process is directly related to the loss or damage to the goods that were shipped.”  Id. Indeed, as the Court recognized, “people would not be involved in the [claims] process unless either loss or damage had occurred.”  Id.

The Court accepts (without deciding) that there may be certain claims that are so far removed from the normal shipping relationship that they are not be preempted by the Carmack Amendment.However, Design X’s state law claims do not fall into the narrow category of non-preempted claims recognized in Gordon.The alleged loss to business and reputation flowed directly from the damage to the goods shipped in interstate commerce and the subsequent claims process. Indeed, similar claims could probably be brought in most Carmack Amendment cases, which would defeat the Carmack Amendment’s purpose of “establishing a single uniform regime for recovery” and “provid[ing] interstate carriers with reasonable certainty and uniformity in assessing their risks and predicting their potential liability.”  Project Hope, 250 F.3d at 74 n. 6. Thus, the Court GRANTS summary judgment in favor of ABF Freight with respect to Design X’s claims under CUTPA and for common law negligence and breach of contract.

B.

The next question is whether Design X has made out a prima facie case under the Carmack Amendment. In order to make out a prima facie case, Design X needs to show “(1) delivery (of the goods) to the carrier in good condition, (2) arrival in damaged condition, and (3) the amount of damages caused by the loss.”  Project Hope, 250 F.3d at 74 n. 6. ABF Freight argues that Design X has failed to establish both the second and third prongs of the prima facie case. However, the Court need not address the third prong, because it concludes that Design X has failed to provide any evidence to show that the desk arrived in a damaged condition.

It is undisputed that no one from Design X was present when the desk arrived or when it was unsuccessfully delivered to the second floor. In his deposition, Mr. Rosenberg states that he heard from Red the Salon that InSite damaged the desk. Of course, this statement is inadmissible hearsay and therefore cannot be used to create a genuine issue of fact on a motion for summary judgment. See  ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 151 (2d Cir.2007) (“[I]nadmissible evidence [is] insufficient to defeat summary judgment.”). Design X also claims that there are photographs showing the damage to the desk while it sat in the first floor lobby of Red the Salon’s building. Unfortunately, however, Design X has not provided these photographs to the Court, or offered an affidavit from someone who took the photographs to verify that the damaged depicted occurred in the course of InSite’s delivery. The only other evidence relating to damage is an internal email sent from an ABF Freight executive to others within the company that recounts what Design X alleged happened to the desk. See Pl.’s Opp’n to Summ. J. [doc. # 50] Ex. E. An email recounting what Design X told ABF Freight that Red the Salon said is hearsay within hearsay, is inadmissible, and is of no use to Design X.

At oral argument, the Court informed Design X’s counsel that it was concerned by this lack of evidence and the Court gave Design X sixteen days to file a supplemental affidavit from someone at Red the Salon with personal knowledge about the damage to the reception desk or to provide the Court with the photographs that Design X alleges show the damaged condition of the desk. Design X let this deadline pass without so much as a word to the Court. As a courtesy, the Court held an on-the-record status conference with the Parties to inquire into whether Design X intended to file a supplemental affidavit. Counsel for Design X apologized that he had not filed the affidavit and requested more time to do so. The Court gave Design X an additional week, until October 31, 2008, to file its supplemental affidavit. That date too has passed without anything filed by Design X (or, the Court might add with chagrin, without the courtesy of a call to the Court to let it know that Design X would not be filing anything).

Having had numerous opportunities to put into the record evidence that ABF Freight or InSite was responsible for the damage to the desk and having submitted nothing, the Court has no choice but to conclude that Design X has no evidence that ABF Freight or InSite damaged the desk in question. There certainly is nothing in the record to support Design X’s claim. As a consequence, Design X has failed to make out a prima facie case under the Carmack Amendment, and ABF is entitled to summary judgment on Design X’s Carmack Amendment claim.

C.

Even if the Court were to conclude that Design X had established a prima facie case under the Carmack Amendment, the Court would nevertheless hold that ABF’s liability is limited to $1,700. The Carmack Amendment allows carriers to limit their liability “to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.”49 U.S.C. § 14706(c)(1)(A). Liability limitations must be set forth in a reasonably communicative form to the shipper and must offer the shipper the opportunity to declare and pay for a higher valuation. See  Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Sys., Inc., 235 F.3d 53, 59-60 (2d Cir.2000).

Design X does not dispute that it had the option of declaring and paying a higher valuation on the goods. Nor could they make such an argument given that it was Design X that prepared the bill of lading. Cf.  Mech. Tech. Inc. v. Ryder Truck Lines, Inc., 776 F.2d 1085, 1089 (2d Cir.1985) (“When a sophisticated shipper, using his own bill of lading form, leaves blank the space provided for declaring the released value of the goods, we will presume that he did so deliberately with full knowledge of the consequences under the applicable tariff.”). Rather, in their Opposition to the Motion for Summary Judgment [doc. # 50], Design X argues that ABF Freight has not proven that the liability limitation was set forth in a reasonably communicative form.

Apparently, the Service Quotation that specified the $5.00 per pound limitation went through several iterations before being finalized. ABF Freight submitted Quote “B” to the Court. However, the bill of lading references Quote “D,” which was not produced during discovery and which ABF Freight claims was lost. In response to questions from the Court about Quote “D,” ABF Freight provided a Supplemental Affidavit [doc. # 54] by Donald Black, a cargo claims analyst at ABF Freight. In the affidavit, he avers that “all versions of ABF’s Turnkey Service Quotation for Design X include[d] the same $5.00 per pound limitation of liability with respect to cargo loss and damage, which is standard for all of our Turnkey Service Quotations.”Def.’s Supp. Aff. in Support of Summ. J. [doc. # 54], ¶ 6. This is consistent with the liability limitation as stated in ABF Freight’s rules tariff, ABF 111, which ABF Freight has provided for the Court.

Furthermore, Robert Rosenberg, vice-president of Design X, acknowledged that he was familiar with ABF Freight’s liability limitations. In response to the question, “Did you ever read the part on the bottom [of the Service Quotation] where it says: Liability. ABF’s liability shall not exceed the lesser of the released value provided in the NNFC 100 Series or five dollars per pound,” Mr. Rosenberg answered “Yeah. You’re quoting a tariff law there for the shipping.”See Def.’s Exhibits re Mot. for Summ. J. [doc. # 30] at 118-19. Mr. Rosenberg also acknowledged in his deposition that he had looked at ABF Freight’s rules tariff “[b]efore, during and after” the shipment. See id. at 119.And Design X does not contest that the liability limitations were available on ABF Freight’s website during the time period in question.

In short, ABF Freight has provided the Court with ample evidence that the liability limitation for Design X’s shipment was $5.00 per pound and that it was communicated to Design X in a reasonably communicative form. Design X has not produced any evidence to the contrary and, indeed, does not even appear to contest the liability limitation beyond arguing that ABF Freight has not sustained its burden. Thus, even if Design X had made out a prima facie case under the Carmack Amendment-and it has not done so-ABF Freight’s liability would nevertheless be limited to the total sum of $1,700.

IV.

For the foregoing reasons, the Court GRANTS ABF Freight’s Motion for Summary Judgment [doc. # 49].The Clerk is directed to enter judgment in favor of ABF Freight and to close this file.

IT IS SO ORDERED.

The Court notes that some courts have rejected Gordon’s approach to preemption under the Carmack Amendment. See, e.g.,  Smith v. UPS, 296 F.3d 1244, 1248-49 (11th Cir.2002). The Court expresses no view on whether Gordon was rightly decided under the Carmack Amendment because even accepting the holding in Gordon, it does not assist Design X in this case.

Design X also argues that even if the liability limitation applies, the limit on damages is actually $24,950, not $1,700. Design X calculates this amount by taking the certified weight of the entire shipment, 4,990 pounds, and multiplying it by $5.00 per pound. There are several problems with this line of argument. First of all, the entire shipment included eight pieces of furniture that were not damaged and are not at issue in this case. It is absurd to suggest that Design X could recover damages based on the weight of the entire shipment, when eight of the nine pieces arrived in good condition, simply because all nine pieces were part of the same shipping order. Design X cites no case that support such an argument. Second, Mr. Rosenberg admitted during his deposition that the damaged desk weighed 340 pounds, meaning that the liability for damage to that desk was limited to $1,700. Design X cannot now contest this admission by Design X’s vice-president.