United States District Court, N.D. Texas, Fort Worth Division.

ADVANTAGE TRANSPORTATION, INC., Plaintiff,

v.

FREEWAYS EXPRESS, LLC, Defendant.

No. 4:08-CV-206-A.

Nov. 25, 2008.

Mike H. Bassett, Christine S. Johnson, Robert L. McGee, Jr., The Bassett Firm, Dallas, TX, for Plaintiff.

Freeways Express LLC, Arlington, TX, pro se.

MEMORANDUM OPINION and ORDER

JOHN McBRYDE, District Judge.

On October 21, 2008, plaintiff, Advantage Transportation, Inc. (“Advantage”), filed a motion for summary judgment in the above-captioned action. Defendant, Freeways Express, LLC (“Freeways”), did not file a response. Having considered the plaintiff’s motion, the summary judgment evidence, and the applicable legal authorities, the court concludes that plaintiff’s motion for summary judgment should be granted.

I.

Plaintiff’s Claims

On March 27, 2008, plaintiff filed a complaint asserting a breach of contract claim and a claim under 49 U.S.C. § 14706.The complaint alleges that Freeways is liable to Advantage for the cost of a lawnmower shipment that was stolen in transit.

Plaintiff’s active pleading is a second amended complaint filed November 17, 2008.

II.

Facts

Because Freeways did not file a response, the court accepts as undisputed the facts set forth in support of plaintiff’s motion for summary judgment. See  Eversley v. Mbank Dallas, 843 F.2d 172, 174 (5th Cir.1988).

Advantage contracted with Freeways to transport and deliver fifty-one cartons of powered lawnmowers to MTD Products, Inc. (“MTD”) in Garland, Texas. On September 14, 2006, Freeways picked up the lawnmowers from MTD’s distribution center in Shelby, Ohio. Advantage issued a bill of lading for the shipment, and, with Advantage’s consent, Freeways executed the bill of lading when Freeways picked up the lawnmowers. On September 16, 2006, Freeways’s driver left the truck and trailer carrying the lawnmowers at a repair yard in Arlington, Texas. The trailer, containing the lawnmowers, was stolen from the repair yard. As a result, Freeways did not deliver the lawnmowers to MTD.

MTD submitted a claim to Advantage for the lawnmowers for the amount of $39,263.42, which Advantage paid. On October 6, 2006, Advantage filed an intent claim with Freeways to demand payment for the stolen lawnmowers. Freeways has not paid Advantage for the lost lawnmowers.

III.

Summary Judgment Principles

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should be rendered if 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). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the nonmoving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A motion for summary judgment cannot, of course, be granted simply because there is no opposition. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 362 n. 3 (5th Cir.1995). When no response is filed, however, the Court may accept as undisputed the facts set forth in support of the motion and grant summary judgment when those facts establish a prima facie showing of entitlement to judgment. See  Eversley, 843 F.2d at 174. Normally, “[a] summary judgment nonmovant who does not respond to the motion is relegated to [its] unsworn pleadings, which do not constitute summary judgment evidence.”  Bookman v. Schubzda, 945 F.Supp. 999, 1002 (N.D.Tex.1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.1991).

V.

Analysis

Plaintiff brings a breach of contract claim and a claim under the Carmack Amendment. The court need not evaluate plaintiff’s breach of contract claim because it is preempted. See  Moffit v. Bekins Van Lines Co., 6 F.3d 305, 307 (5th Cir.1993).

The Carmack Amendment imposes liability on motor carriers and freight forwarders who cause loss or injury to property transported in interstate commerce. See49 U.S.C. § 14706(a)(1). A shipper establishes a prima facie case of negligence under the Carmack Amendment by demonstrating (1) delivery of the goods to the carrier in good condition, (2) receipt by the consignee of damaged or lost goods, and (3) the amount of damages. See  Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 479 (5th Cir.2006). A prima facie case creates a rebuttable presumption of negligence, which the carrier can overcome by showing that (1) it was free from negligence and (2) the damage was due to the inherent nature of the goods or attributable to an act of God, public enemy, the shipper, or public authority. Id.

“[F]reight forwarders possess dual qualities: they have the quality of a common carrier in relation to their shippers, and the quality of a shipper in relation to the underlying carriers.”  N.Y. Foreign Freight Forwarders & Brokers Ass’n v. Interstate Commerce Comm’n, 589 F.2d 696, 700 (D.C.Cir.1978).“A freight forwarder is both the receiving and delivering carrier.”49 U.S.C. § 14706(a)(2). The carrier who issues a bill of lading is entitled to recover from the carrier over whose line or route the loss occurred the amount required to be paid to the property owners. Id .§ 14706(b). Evidence of this amount can be by “receipt, judgment, or transcript.”  Id.

The Carmack Amendment governs this action because the lawnmowers were shipped through interstate commerce. Both parties agree that Advantage is a freight forwarder and Freeways is a motor carrier over whose line the loss occurred. Neither party disputes that Advantage issued a bill of lading that Freeways executed. Both parties agree that Freeways picked up the mowers on September 14, 2006, and lost the mowers on September 16, 2006, when they were stolen. Advantage has provided a copy of the claims form submitted by MTD and the check tendered to MTD for $39,263.42 to cover the loss of the lawnmowers. Because defendant filed nothing in response, the court takes the amount of damages submitted by plaintiff as undisputed. See  Eversley, 843 F.2d at 174.

That the mowers were stolen by a third-party does not relieve Freeways of liability. See  Commodity Credit Corp. v. Norton, 167 F.2d 161, 164-65 (3rd Cir.1948) (“the carrier is responsible without regard to the exercise of due care, even though the damage or loss be occasioned by the independent act of third persons.”) (citing United States v. Morgan, 52 U.S. 154, 11 How. 154, 13 L.Ed. 643 (1850)).

The court finds that plaintiff has established a prima facie showing of its entitlement to judgment. See Id.Under the Carmack Amendment, Freeways, as the carrier over whose line the loss occurred, is liable for the amount Advantage paid to MTD, the owner of the lawnmowers. Neither party disputes that Freeways received the mowers and then subsequently lost them. Advantage has provided undisputed evidence that these damages amount to $39,263.42. Advantage has proven that, as a matter of law, it is entitled to damages of $39,263.42 from Freeways.

Plaintiff also seeks attorneys fees and interest. “[T]he liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions.”  Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964). Accordingly, plaintiff may only recover attorneys fees and interest if such relief is provided under the Carmack Amendment or federal law.

Attorney’s fees authorized under state law are not available in actions under the Carmack Amendment. See  Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 877 (5th Cir.1996). There is no provision for attorney’s fees under the Carmack Amendment that would otherwise grant recovery of attorney’s fees. Thus, plaintiff is not entitled to attorney’s fees. See  Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“[E]ach party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary.”).

As for plaintiff’s request for interest, plaintiff is entitled to prejudgment interest and interest on the damages award. See  La. & Ark. Ry. Co. v. Exp. Drum Co., Inc., 359 F.2d 311, 317 (5th Cir.1966). Plaintiff, however, has provided the court with no proposed calculation of the amount of interest to which it is entitled. If plaintiff still wishes to recover interest, plaintiff should file a proposed calculation of the amount of interest, consistent with Louisiana & Arkansas Railway Company, 359 F.2d at 317, no later than December 4, 2008. The court will construe any failure to file the proposal as plaintiff abandoning its claim for interest.

VI.

Order

For the reasons discussed above, the court concludes that plaintiffs motion for summary judgment should be granted.

Therefore,

The court ORDERS that plaintiff have and recover from defendant the sum of $39,263.42 for damages to plaintiff for the loss of MTD’s tractors.

The court further ORDERS that, if plaintiff wishes to recover interest in the above-captioned action, it file a proposed calculation of interest by December 4, 2008.

MEMORANDUM OPINION

Court of Appeals of Texas, Waco.

James DEWBRE, Appellant

v.

ANHEUSER-BUSCH, INC., Appellee.

No. 10-08-00022-CV.

Nov. 26, 2008.

From the 220th District Court, Hamilton County, Texas, Trial Court No. CV50372.

Kevin B. Miller, Mark A. Cevallos, for James Dewbre.

Richard C. Danysh, for Anheuser-Busch, Inc.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

James Dewbre was transporting beer for Anheuser-Busch, Inc. when the load shifted and his truck rolled over. Dewbre sued Anheuser-Busch, alleging that the trailer was improperly loaded. The trial court granted Anheuser-Busch’s no-evidence motion for summary judgment. In a single point, Dewbre appeals the granting of this motion, arguing that the evidence raises a genuine issue of material fact as to whether the accident was proximately caused by Anheuser-Busch’s negligence in loading the trailer. We reverse and remand.

Dewbre is not an employee of Anheuser-Busch, Inc.

STANDARD OF REVIEW

We review a no-evidence summary judgment under the same standard of review as a directed verdict. See  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006).“We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”  Id. at 582.A no-evidence summary judgment will be defeated if the non-movant produces some evidence “raising an issue of material fact” on the elements challenged by the movant. Id.

NO-EVIDENCE SUMMARY JUDGMENT

Dewbre contends that he provided expert testimony, via the deposition testimony of both himself and DPS Trooper Steven Schwartz, sufficient to raise a genuine issue of material fact and survive summary judgment. Anheuser-Busch argues that Dewbre failed to: (1) properly designate experts; and (2) designate an expert who is qualified to testify to whether Anheuser-Busch was negligent in loading the trailer or that such negligence caused the roll-over.Anheuser-Busch raised the improper designation argument in both its no-evidence motion and a separate motion to strike, but did not obtain a specific ruling on the issue. Accordingly, the issue is not preserved for our review. See  Page v. State Farm Lloyds, 259 S.W.3d 257, 265-66 (Tex.App.-Waco 2008, pet. filed). We may only consider whether Schwartz and Debrew were qualified as experts. Id. at 266.

To establish negligence, a party must establish a duty, a breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006).

Because the parties do not dispute that expert testimony is required, we will assume without deciding that Dewbre was required to present expert testimony to establish whether Anheuser-Busch was negligent. See  Tamez, 206 S.W.3d at 583 (“Proof other than expert testimony will constitute some evidence of causation only when a layperson’s general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition. Expert testimony is required when an issue involves matters beyond jurors’ common understanding.”).

Dewbre’s Deposition Testimony

Dewbre testified that he has a commercial driver’s license, has driven commercial vehicles for about twenty years, and previously owned his own trucking company. He has both classroom and on-the-job training regarding accepting, securing, and driving loads. He has no formal training on weight distribution or requirements.

Dewbre hauled numerous loads for Anheuser-Busch in the two and a half years preceding the accident. He is familiar with Anheuser-Busch’s load configurations. Most loads are a “double 11” configuration: “[e]leven pallets from where it starts to the end would be 22 pallets.”He has had one “double 11” load shift, causing a pallet to fall over. Depending on the type of load, the manner of driving may need to be modified.

In the past, cargo was “live-loaded”; drivers actually helped load the cargo and gave instructions. Dewbre has supervised approximately twenty loads. He typically loads the pallets “[s]ide to side with void fillers,” a “piece of cardboard that unfolds and [ ] makes a mesh” to “hold[ ] the pallets in place so they can’t leap, they can’t move.”Most cargo is now pre-loaded. Dewbre secures the load to the “best of [his] ability.” This includes installing load locks, which “go[ ] against the sides and you jack it up, and it has got pads on each end of it, keep it from slipping.”

At some point, Anheuser-Busch stopped using void fillers and began stacking pallets seven or eight layers high, causing them to fall or turn over. On the day of the accident, Dewbre did not inspect the load. However, he was certain that there were no void fillers because they are always listed on the bill of lading, but were not listed on the day of the accident. He observed that the load was shrink-wrapped and the pallets were stacked about seven feet high. He installed load locks.

At some point during transport, the truck left the lane of traffic and crossed onto the shoulder. When Dewbre attempted to correct, the “beer hit the side of the trailer so hard that it slapped the truck down,” like “being at the end of a bullwhip.”He testified that he has “pulled enough loads, [to] know when something is moving or something is-something is moving around, and it definitely got all shifted up against the side.”

Dewbre opined that the lack of void fillers caused the pallets to shift to the side, which caused the roll-over. Void fillers would have prevented both the shifting and the roll-over. Because the truck contained thirty feet of “open space,” Dewbre believed that Anheuser-Busch should have “set the load down” instead of stacking the pallets so high. He concluded that Anheuser-Busch negligently loaded the beer by failing to use void fillers and by stacking the pallets too high.

Trooper Schwartz’s Deposition Testimony

Schwartz testified that he has been a trooper for over five years and has completed Level 2 accident reconstruction training. He is not trained on loading a tractor-trailer, does not have a commercial driver’s license, has never driven a commercial vehicle, is not familiar with the standards for loading commercial vehicles, and does not know about void fillers. Although he did not actually load the trucks, Schwartz grew up working at a grocery store unloading trailers and is familiar with “how loads can shift and how they are normally loaded.”He further testified that he has “practical hands-on knowledge” about the affects of a shifting load. He testified that cattle must be “blocked correctly” or “can cause the trailer to jerk or the whole thing to jerk because you got too much weight on the back end, not enough weight on the tongue.”As for flat-beds, “if you put too much weight on the one side [ ] the trailer will whip.”He testified that either a load shift or road conditions can cause a roll-over. He has seen four accidents, two of which he investigated, where a tractor-trailer rig tipped over because of a load shift.

At the scene of Dewbre’s accident, Schwartz observed several pallets of beer lying on the side of the trailer. Some beer had fallen out of the truck when the door was opened. He believed that this occurred because the beer had shifted. He could not tell whether the pallets had been secured and the condition of the cargo made it difficult to assess how it had been loaded. Schwartz opined that the truck “drifted off the roadway and then attempted to correct itself,” but rolled over because of a “steep incline in the bar ditch and a shift in its load.”He gave no opinion as to what caused the truck to drift off the roadway. Nor could he provide an opinion as to whether the cargo was either properly or improperly loaded.

Analysis

An expert must be qualified and his opinion must be relevant and have a reliable foundation. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). An expert is qualified “by knowledge, skill, experience, training, or education.”TEX.R. EVID. 702 Nonscientific expert testimony may be considered unreliable if “ ‘there is simply too great an analytical gap between the data and the opinion proffered.’ “ Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex.2004) (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997))).

There can be no doubt that Schwartz was qualified to give an opinion that the shifting load caused the truck to roll-over. See Lingafelter v. Shupe, No. 10-03-00113-CV, 2004 Tex.App. LEXIS 10355, at *13-14 (Tex.App.-Waco Nov. 17, 2004) (mem.op), rev’d on other grounds, 192 S.W.3d 577 (Tex.2006) (“The opinion of an investigating officer with level two reconstruction training is admissible”); see also  Ter-Vartanyan v. R & R Freight, Inc., 111 S.W.3d 779, 781-82 (Tex.App.-Dallas 2003, pet. denied) (finding officer with training in accident investigation qualified to provide an expert opinion as to the cause of a traffic accident). However, he could not give an opinion as to whether the load shifted because the cargo was improperly loaded. In fact, he could not even tell how the cargo had been loaded. His testimony is no evidence of negligence.

Dewbre, however, possesses sufficient knowledge, skill, and experience to qualify as an expert in this case. SeeTEX.R. EVID. 702. He has supervised the loading of commercial vehicles and is apparently familiar with the standards for doing so. He observed the load on the day of the accident. Based on his experience, he believed that the pallets were stacked too high and were not supported by void fillers. He testified that the purpose of void fillers is to prevent the load from shifting. He felt the load hit the side of the truck and then felt the truck begin to roll over. He clearly explained the basis of his conclusion that Anheuser-Busch negligently loaded the cargo: stacking the pallets too high and failing to use void fillers. See  Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999) (“An expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.”). He also explained what he would have done differently. His testimony is sufficiently reliable because there does not appear to be any significant “analytical gap” between his opinions and the bases for those opinions. See  Kerr-McGee, 133 S.W.3d at 254.

We, therefore, conclude that Dewbre’s testimony was sufficient to raise a genuine issue of material fact as to whether the accident was proximately caused by Anheuser-Busch’s negligence in loading the trailer. The trial court improperly granted Anheuser-Busch’s no-evidence motion for summary judgment. We sustain Dewbre’s sole issue. The trial court’s judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.

(Chief Justice GRAY concurs only in the judgment. A separate opinion will not issue.)