United States District Court, E.D. Virginia,

Richmond Division.

DOMINION RESOURCE SERVICES, INC., Plaintiff,

v.

5K LOGISTICS, INC., Defendant.

Action No. 3:09-CV-315.

 

Nov. 30, 2009.

 

OPINION

 

JAMES R. SPENCER, Chief District Judge.

 

I. INTRODUCTION

 

THIS MATTER is before the Court on third-party defendant Thermal Engineering International (USA), Inc.’s (“TEI”) Motion to Dismiss (Doc. No. 31) Counts I and IV of third-party plaintiff 5K Logistics, Inc.’s (“5K”) Third-Party Complaint. 5K seeks indemnity and contribution from TEI for damages incurred while sK’s agent and third-party defendant, Daily Express, Inc. (“Daily Express”), transported equipment built by TEI to plaintiff Dominion Resource Services, Inc. (“Dominion”). (Third-Party Comp., ¶¶ 20-24 & 35-39.) For the reasons discussed below, the Motion is granted and Counts I and IV of the Third-Party Complaint are dismissed as to TEI.

 

II. BACKGROUND

 

As a motion to dismiss a third-party complaint is simply a third-party defendant’s invocation of a Rule 12 defense he is afforded by Rule 14, see Fed.R.Civ.P 14(a)(2), all allegations of fact are taken as true and all reasonable inferences are drawn in favor of the third-party plaintiff. See Ashcroft v. Iqbal, — U .S. —-, 129 S.Ct. 1937, 1949 (2009).

 

A. 5K’s Allegations

 

On or about August 24, 2006, a multi-ton “tube bundle” manufactured by TEI for use by Dominion fell off of a truck on the Capital Beltway (I-495) sustaining $192,072.50 in damage. (Third-Party Comp., ¶¶ 7, 9, 16.) At the time the tube bundles fell from the truck, they were being transported by Daily Express, with whom 5K had contracted to load and transport the tubes from a Dominion warehouse in Chambersburg, Pennsylvania, to a Dominion plant in Lusby, Maryland. (Third-Party Comp., ¶ 10, 16.) Daily Express had also carried the tube bundles from TEI’s facility in Warren, Pennsylvania, to the Dominion warehouse at Chambersburg in early May, 2006. (Third-Party Comp., ¶¶ 11, 12.)

 

Daily Express reloaded the tube bundles at the Chambersburg facility and was generally responsible for securing and tarping the tube bundles during transport. (Third-Party Comp., ¶¶ 14, 15.) TEI’s only instructions regarding the transport of the tube bundles was that they “must be tarped[sic]”. (Third-Party Comp., ¶ 17.) TEI gave no instructions regarding how the bundles should be secured, nor did it warn Daily Express that the tube bundles were not “secured” to the temporary framework on which they were stored. (Third-Party Comp., ¶ 18-19.)

 

B. Posture of 5K’s Claim

 

Dominion filed suit against 5K on May 15, 2009, claiming breach of agreement and trespass to chattels. 5K’s motion to dismiss the trespass to chattels claim was granted and Dominion next filed an Amended Complaint, claiming breach of agreement, negligence, and breach of bailment duties. 5K then filed its third-party complaint against TEI and Daily Express.

 

In its Third-Party Complaint, 5K seeks indemnity and contribution from TEI.  It is 5K’s contention that TEI should indemnify 5K because, “as a manufacturer and original shipper, [TEI] had a duty to properly prepare the tube bundles for transportation” and “[TEI] breached its duty by failing to secure the tube bundles to the temporary frame provide for transportation and/or failing to instruct either [5K] or Daily Express as to the proper manner for securing the tube bundles to the trailer for transport” and that TEI’s negligence in this matter was primary while 5K’s was secondary. (Third-Party Comp., ¶¶ 21-24.) 5K further contends that it is entitled to contribution because TEI owed “various duties of care to [5K] and Dominion, including but not limited to, duties to comply with professional industry standards, and duties to perform work in a good and workmanlike manner” and TEI “negligently and carelessly breached those duties” contributing to the damages which Dominion now seeks from 5K. (Third-Party Comp., ¶ 36-38.)

 

5K also advances other causes of action against Daily Express, but these are not before the Court at this time.

 

III. APPLICABLE LAW

 

A. Standard of Review and Choice of Law

 

When deciding whether a count within a complaint states a claim upon which relief can be granted, a court must determine whether the plaintiff’s allegations of fact support a reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 129 S.Ct. at 1949-50. In reaching this conclusion, a court should accept as true all allegations of fact contained in the complaint and draw all reasonable inferences in favor of the plaintiff. Id. While a plaintiff need not plead with specificity, it must do more than provide a formulaic recitation of the elements of a cause of action. See Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

 

While the standard for evaluating a complaint is set by federal law, the elements on which a claim is established are drawn from the law which creates it. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Where common law rights are asserted, this principle extends to applying the choice of law rules of the state where the court sits. See Kalxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941); accord Buchanan v. Doe, 246 Va. 67, 71 (Va.1993)(Virginia choice of law rules apply to diversity suits). Virginia law requires a court to look at the law of the place of the wrong to determine whether a claim exists in tort. See Jones v. R.S. Jones and Assoc, Inc., 246 Va. 3, 5 (Va.1993) (adopting a lex loci delicti standard for determining the existence of a wrong and a lex fori standard for determining remedies.)

 

B. Indemnity and Contribution

 

Under the law of Pennsylvania, indemnity in tort is an equitable doctrine by which a party without fault, but liable by operation of law, may recover the full amount of damages from a third party that is responsible in fact. See Riff v. Morgan Pharmacy, 353 Pa.Super. 21, 33 (Pa.1986)(casting test as one of active or primary negligence versus passive or secondary negligence); see also Moscatiello v. Pittsburgh Contractors Equipment Co., 407 Pa.Super 363, 376 (Pa.1991)(retailer of equipment entitled to indemnity from original manufacturer where it was mere “conduit” of defective product). Contribution, by contrast, allows one tortfeasor to seek compensation from another tortfeasor for the portion of damages attributable to the second tortfeasor’s fault. See 42 Pa.C.S. §§ 7102(b), 834(a)(2007).

 

C. Duties of Shippers and Carriers

 

At common law, and under the Carmack Amendment, 49 U.S.C. §§ 13501, 14706(a)(1), which now governs interstate carriers, where goods are lost or damaged in transit, the carrier is generally liable. See Nat.’l Line Steamship Co. v. Smart, 107 Pa. 492, 501 (1884) (summarizing rule and drawing exception where owner left goods with carrier after arrival at destination); see also U.S. v. Savage Truck Line, Inc., 209 F.2d 442, 446 (4th Cir.1954)(noting broad consensus on law, and finding operator of motor vehicle responsible for ensuring cargo is securely loaded before operation). However, when a shipper assumes responsibility for loading goods, he also assumes responsibility for any losses that result, unless the defects in his loading are apparent to the carrier. See Union Pac. R.R. Co. v. Greentree Transportation Trucking Co., 293 F.3d 120, 127 (3d Cir.2002)(finding that this is settled application of state and federal law); see also, David E. Kennedy v. O’Brien, 115 Pa.Super. Ct. 469, 470 (Pa.1934)(Pennsylvania follows common law rule). Similarly, a carrier is not liable for damages to property which arise out of the shipper’s improper packing, unless the inadequacy is apparent to the carrier. See Eastern Motor Express, Inc. v. A. Maschmeijer, Jr. Inc., 247 F.2d 826, 828 (2d Cir.1957)(terming this the “packing rule”); see also, Arabian Am. Oil Co. v. Kirby & Kirby, 171 Pa.Super. 23, 26-27 (Pa.1952)(applying similar principles derived from Pennsylvania common law). Where a manufacturer uses a carrier to deliver property sold to another, it stands in the place of a shipper. See, e.g., Season-All Industries, Inc. v. Merchant Shippers, 451 F.Supp. 727, 730 (D.C.Pa.1978)(apportioning duties between parties based on role in shipment).

 

IV. DISCUSSION

 

5K’s Third-Party Complaint would appear to fall squarely within the category of conclusory pleadings that Iqbal and Twombly sought to preclude. Iqbal, 129 S.Ct. at 1949 (Rule 8 requires more than unadorned the-defendant-unlawfully-harmed-me accusations); Twombly, 550 U.S. at 561 (plaintiff should not be able to proceed on possibility that it might later establish undisclosed facts which support recovery). In laying out its claims for indemnity and contribution, 5K states that TEI had various duties, that it violated these duties, and that its negligence caused or contributed to the damage suffered by Dominion. (See Third-Party Comp., ¶¶ 21-23, 36-38.) However, given the scarcity of allegations regarding TEI’s actual conduct during the loading and transportation of the tube bundles, there is little from which the Court can infer what duties TEI had, what specific duties it may have violated, or how these violations caused the accident.

 

To the extent 5K has incorporated Dominion’s Complaint into its own, it is worth noting that the Dominion Complaint makes no reference to TEI whatsoever.

 

At this point it is unnecessary to determine the quantum of fact that 5K would need to allege in order to render its claims against TEI plausible and the inference of liability reasonable. Two examples will serve to show the inadequacy of the Third-Party Complaint as it is now drafted.

 

First, since Virginia choice of law rules direct the Court to look to Pennsylvania law to determine the scope of TEI’s duties in this matter, we note that in Pennsylvania a carrier is generally liable for damages to goods in its care. See Smart, 107 Pa., at 501. Therefore, in order for 5K to recover against TEI on either the indemnity or contribution claim, 5K must show that the TEI improperly loaded the goods or improperly packed them and that these deficiencies were not obvious. See Union Pac. R.R. Co., 293 F.3d at 127 (loading); Eastern Motor Express, Inc., 247 F.2d at 828 (packing). Nowhere in its pleading does 5K make any allegation as to how TEI packed the tubes, other than to say they were on a temporary framework. (See Third-Party Comp., ¶ ¶ 18, 22, 37.) Further, 5K does not make any allegations as to how TEI became involved in the loading of the tubes, other than to say that “must be tarped” was written in the special instructions section of the bill of lading. (See Third-Party Comp., ¶ 17.) Finally, nowhere in the Third-Party Complaint does 5K allege that the danger of transporting these tube bundles without additional precautions was not open and obvious to Daily Express. Indeed, the Third-Party Complaint contains no factual allegations regarding how the tube bundles were secured to the trucks at all, nor does it contain any allegations as to what “professional” or “workmanlike” practices would have been in these circumstances. When these absent allegations are considered in light of the allegations that Daily Express was responsible for loading and securing the tube bundles, and that the tube bundles made a trip of several hundred miles between Warren and Chambersburg without any incident (see Third-Party Comp., ¶¶ 11, 15), there is simply no basis on which this Court could reasonably infer that TEI owed some relevant duty, violated that duty, and that this negligence caused the tubes to fall from a truck three months later.

 

Second, in order to recover on its indemnity claim, 5K would also need to establish that it was without fault, or that its negligence was of a passive or secondary sort and that TEI’s negligence was of an active or primary sort. See Riff, 353 Pa.Super. at 33. Since the inference that TEI was negligent is anemic in the first instance, the absence of any allegations addressed to the manner in which 5K’s agent, Daily Express, secured the tubes or the manner in which 5K chose or oversaw Daily Express, it is difficult for the Court to draw any inference regarding 5K’s lack of fault.

 

In short, neither an inference of misconduct nor an inference of liability is reasonable on either claim, given the elements that 5K would need to establish and the absence of allegations bearing on so many of these elements. Thus, since 5K has not shown that its claims for indemnity or contribution against TEI are plausible, they must be dismissed.

 

V. CONCLUSION

 

In light of the deficiencies in 5K’s Third-Party Complaint, Counts I and IV shall be dismissed insofar as they pertain to TEI. Since this Court has not considered whether there are some set of factual allegations on which 5K could proceed, the claims shall be dismissed without prejudice.

 

An appropriate order shall issue.

United States District Court,

N.D. Illinois,

Eastern Division.

ACE MOTORS, INC., Plaintiff,

v.

TOTAL TRANSPORT, INC., Eric R. Dughetti, Hani Elayyan, and Yousef M. Abualrob, Defendants.

No. 08 C 1552.

Dec. 1, 2009.

MEMORANDUM OPINION AND ORDER

GEORGE M. MAROVICH, District Judge.

After the destruction of several motor vehicles, plaintiff Ace Motors, Inc. (“Ace”) filed suit against defendants Total Transport, Inc. (“Total Transport”), Eric R. Dughetti (“Dughetti”), Hani Elayyan (“Elayyan”) and Yousef M. Abualrob (“Abualrob”). Plaintiff moves for summary judgment on its Carmack Amendment claim against defendants. In addition, intervener Ermek Abdildaev (“Abdildaev”), who owned two of the destroyed vehicles, filed claims against Ace Motors and Total Transport. Intervener filed two motions for summary judgment on his Carmack Amendment claims-one motion against plaintiff Ace Motors and one motion against defendant Total Transport. For the reasons set forth below, the Court grants in part and denies in part the motions for summary judgment.

I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like considered in connection with a motion for summary judgment. As the Court notes on its website (and has mentioned in multiple opinions), the Court enforces Local Rule 56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the Court. For example, facts included in a party’s brief but not in its statement of facts are not considered by the Court because to do so would rob the other party of the opportunity to show that such facts are disputed. Here, Ace mentioned facts related to damages in its brief but failed to include them in its statement of facts. Those facts are not considered by the Court.

Where one party supports a fact with admissible evidence and the other party fails to controvert the fact with citation to admissible evidence, the Court deems the fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.2004). This does not, however, absolve the party putting forth the fact of its duty to support the fact with admissible evidence. Here, Total Transport failed to file responses to Ace’s and Abdildaev’s statements of facts and Abdildaev failed to respond to Ace’s statement of facts. The Court does not deem every fact put forth admitted; rather, the Court carefully considers whether each asserted fact is supported by admissible evidence. Asserted “facts” not supported by deposition testimony, documents, affidavits or other evidence admissible for summary judgment purposes are not considered by the Court. At the summary judgment stage, it does not suffice to rely on complaint allegations. Nor is it enough for either party to say a fact is disputed. The Court considers a fact disputed only if both parties put forth admissible evidence of his or its version of the fact.

The facts in this case are sparse, like the parties’ submissions. Because different facts were asserted with respect to each motion, the Court has divided the facts into three sections. The listed facts are undisputed unless otherwise noted.

A. Facts relevant to Ace’s motion against defendants

During the relevant time period, defendant Total Transport was a motor carrier within the definition of 49 U.S.C. § 13102. It was engaged in the business of freight forwarding. Defendant Elayyan was a shareholder and director of Total Transport.

On January 29, 2008, defendants accepted custody and control of nine vehicles that were to be shipped to New Jersey. Defendant Dughetti was responsible for securing the nine vehicles onto a truck that would transport them to New Jersey. Later that day, defendant Abualrob drove the truck on which the nine vehicles were loaded. Abualrob collided the truck into a bridge in Gurnee, Illinois, thereby damaging or destroying the nine vehicles. The local police issued Abualrob a citation.

B. Facts relevant to Abdildaev’s motion against defendants

Defendant Total Transport is a motor carrier as that term is used by the Carmack Amendment.

In January 2008, Abdildaev hired Ace to transport three vehicles to Bishkek, Kyrgyzstan. One of the vehicles was a 2006 Lexus LX470, VIN# 012333 (the “Lexus”). Another was a 2000 Toyota Landcruiser, VIN# 090235 (the “Toyota”). The vehicles were in good condition when Abdildaev left them with Ace. Ace, in turn, hired Total Transport to transport the three vehicles (and six more of Ace’s vehicles) to at least New Jersey. When Total Transport took possession of the vehicles, the Lexus and the Toyota were in good condition. Total Transport loaded the nine vehicles onto a truck. The Lexus and the Toyota were destroyed when the driver of the truck carrying the vehicles crashed the truck into a bridge.

Abdildaev had paid $46,000.00 for the Lexus and spent $300 purchasing the Lexus. He had paid $15,500.00 for the Toyota. Abdildaev paid shipping costs of $1,100.00. Abdildaev had expected to profit $2,500.00 from the sale of the Lexus and the Toyota.

C. Facts relevant to Abdildaev’s motion against Ace

Plaintiff Ace is in the business of exporting automobiles from the United States. Due to the large quantity of its business, Ace is able to negotiate favorable shipping and transportation rates. In January 2008, Abdildaev asked Ace to combine his cargo of two vehicles with Ace’s cargo in order to take advantage of Ace’s negotiating power. Ace is not a licensed freight forwarder.

In January 2008, Abdildaev entered a contract with Ace for the international shipment of two vehicles, the Lexus and the Toyota. Abdildaev had purchased the Lexus for $46,000.00 and had spent $300 purchasing the Lexus. He had paid $15,500.00 for the Toyota. Abdildaev had expected to profit $2,500.00 from the sale of the Lexus and the Toyota. Ace and Abdildaev dispute whether Abdildaev paid the $1,100.00 freight charge.

Ace, in turn, hired Total Transport to transport nine vehicles, including the Lexus and the Toyota to at least New Jersey. All nine vehicles were damaged and the Lexus and Toyota were destroyed when the truck carrying the nine vehicles collided with a bridge.

Someone at Ace informed Abdildaev about the accident. Ace and Abdildaev reached a verbal agreement to settle Abdildaev’s claims for the damaged vehicles for $40,000.00. Abdildaev refused to sign the release. Notwithstanding his refusal to sign the release, Abdildaev continued to ship cargo via Ace without paying for it, thereby receiving shipping services worth $23,200.00.

II. Summary Judgment Standard

Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When making such a determination, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, when the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir.2005).

III. Discussion

The Carmack Amendment governs “liability of a common carrier to a shipper for loss of, or damage to, interstate shipment.” North American Van Lines, Inc. v. Pinkerton Security Systems, Inc., 89 F.3d 452, 455 (7th Cir.1996). Prior to the passage of the Carmack Amendment, common carriers faced a patchwork of state regulation. The Carmack Amendment “created a nationally uniform rule of carrier liability concerning interstate shipments.” REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir.2008) (quoting North American Van Lines, 89 F.3d at 454). In its attempt to ensure national uniformity via the Carmack Amendment, Congress preempted “state causes of action against carriers for damaged or lost goods.” REI Transport, 519 F.3d at 697.

The Carmack Amendment applies to cargo shipped by a “carrier” or a “freight forwarder” as defined by the Interstate Commerce Act. See Mach Mold Inc. v. Clover Assoc., 383 F.Supp.2d 1015, 1029 (N.D.Ill.2005). A carrier is “person providing commercial motor vehicle (as defined by section 31132) transportation for compensation.” 49 U.S.C. §§ 13102(3) & (15). Transportation includes, “services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23). Both the initial carrier “and any other carrier that delivers the property” are liable to the shipper. 49 U.S.C. § 14706(a)(1). The point is to ease the burden to the shipper of determining where along the line the damage occurred. The Carmack Amendment allows either the initial carrier or the delivering carrier, in turn, to seek apportionment “from the carrier over whose line or route the loss or injury occurred”. 49 U.S.C. § 14706(b).

In order to make out a prima facie case under the Carmack Amendment, a shipper must show: “(1) delivery in good condition; (2) arrival in damaged condition; and (3) the amount of damages.” REI Transport, 519 F.3d at 699 (quoting American Nat’l Fire Ins. Co. v. Yellow Freight Sys., 325 F.3d 924, 929 (7th Cir.2003)). If the plaintiff makes out a prima facie case, the burden shifts to the defendant to “show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” Id. The excepted causes are “acts of God, the public enemy, the act of the shipper himself, public authority or the inherent vice or nature of the goods.” American Nat’l Fire Ins. v. Yellow Freight Sys., 325 F.3d 924, 930 (7th Cir.2003).

The Carmack Amendment subjects the carrier to liability for “actual loss or injury to the property.” 49 U.S.C. § 14706. The “ordinary” measure of damages is “the difference between the market value of the property in the condition in which it should have arrived at the place of destination and its market value in the condition in which, by reason of the fault of the carrier, it did arrive.” American Nat’l, 325 F.3d at 932 (quoting Gulf, Col. & Santa Fe Ry. Co. v. Texas Packing Co., 244 U.S. 31, 37, 37 S.Ct. 487, 61 L.Ed. 970 (1917)). Under that ordinary measure, the shipper must still pay freight to the carrier and cannot recover the freight from the carrier as damages. Id. Where the shipment is a total loss, however, the measure of damages is based on the shipper’s cost and can include freight. “The reason for including freight in the measure of damages when the shipper’s cost (or the market value at the place of shipment) is employed as the starting point is that Carmack Amendment allows recovery of lost profits under the ordinary measure of damages. When the shipper’s costs are used, however, the profit is unknown. We can assume, however, that the shipper at least would have been able to recover in the market at the destination his freight, taxes, fees and insurance in addition to the price he paid for the commodity.” Id. at 932-933.

A. Ace’s motion for summary judgment against defendants

Ace moves for summary judgment against defendants Total Transport, Dughetti, Elayyan and Abualrob on Ace’s Carmack Amendment claim. Ace does not appear to be seeking summary judgment on any other claims.

Defendant Total Transport concedes that it is a carrier within the meaning of the Carmack Amendment. Ace does not attempt to argue that the remaining defendants are carriers or freight forwarders, so Ace’s motion for summary judgment as to Dughetti, Elayyan and Abualrob is denied.

It is undisputed that Ace hired Total Transport to transport nine vehicles, which Ace tendered to Total Transport. It is undisputed that the vehicles were damaged or destroyed. Ace has failed, however, to put forth evidence of the amount of damages. (Ace described the damages in its brief, but it failed to include the facts in its statement of facts, thereby denying defendants an opportunity to dispute them. As explained above, facts not included in the statement of facts are ignored by the Court). It is undisputed, however, that Ace suffered some amount of damages. Accordingly, the Court concludes that Ace has, as a matter of law, established his prima facie case under the Carmack Amendment. Total Transport has not attempted to show that the damages were caused by one of the excepted causes.

The Court notes that Total Transport does not argue that Ace is a shipper only with respect to seven of the nine vehicles or that Ace’s claim with respect to the Lexus and the Toyota should be considered one for apportionment under 49 U.S.C. § 14706(b).

For these reasons, plaintiff Ace is entitled to summary judgment against Total Transport on the merits of (though not as to damages for) his Carmack Amendment claim. Ace’s motion [82] for summary judgment is granted in part and denied in part.

B. Abdildaev’s motion for summary judgment against defendants

Intervener Abdildaev moves for summary judgment against defendants Total Transport, Dughetti, Elayyan and Abualrob on Abdildaev’s Carmack Amendment claim.

Defendant Total Transport concedes that it is a carrier within the meaning of the Carmack Amendment. Abdildaev, however, does not explain (legally or factually) why the other defendants are carriers or freight forwarders. Thus, his motion for summary judgment is denied as to defendants Dughetti, Elayyan and Abualrob.

The Court next considers whether Abdildaev has made out a prima facie case with respect to defendant Total Transport. Abdildaev has put forth undisputed evidence that the Lexus and the Toyota were delivered to Total Transport in good condition and that those vehicles were destroyed. Abdildaev has put forth undisputed evidence that his cost for the Lexus was $46,300.00 and that his cost for the Toyota was $15,500.00. Abdildaev has also shown that he paid $1,100.00 for freight costs. Thus, under the shipper’s cost formula for measuring Carmack Amendment damages, Abdildaev has shown he was damaged in the amount of $62,900.00. Total Transport does not attempt to show that the damages were caused by an excepted cause.

For these reasons, Abdildaev is entitled to judgment as a matter of law against Total Transport on his Carmack Amendment claim. The Court hereby grants Abdildaev summary judgment against Total Transport on his Carmack Amendment claim in the amount of $62,900.00 . The Court grants in part and denies in part Abdildaev’s motion [84] for summary judgment against defendants.

Abdildaev has failed to explain why he thinks he is legally entitled to attorneys fees as part of his damages, and, therefore, Abdildaev’s request is denied.

C. Abdildaev’s motion for summary judgment against Ace

Finally, intervener Abdildaev moves for summary judgment against Ace Motors on his Carmack Amendment claim.

The Court first considers whether Abdildaev has shown that Ace Motors was a carrier under the Carmack Amendment. A carrier is “person providing commercial motor vehicle (as defined by section 31132) transportation for compensation.” 49 U.S.C. §§ 13102(3) & (15). Transportation includes, “services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.” 49 U.S.C. § 13102(23). Here, it is undisputed that Ace and Abdildaev entered into a contract for the international shipment of the Lexus and the Toyota. It is undisputed that Ace received the Lexus and the Toyota. It is undisputed that Ace turned around and hired Total Transport to transport the Lexus and the Toyota to New Jersey. Accordingly, it is clear as a matter of law that Ace provided “transportation” by providing services related to the movement of the vehicles and by receiving the vehicles. Thus, Ace was a carrier within the meaning of the Carmack Amendment.

Next, the Court considers whether Abdildaev has made out a prima facie case under the Carmack Amendment. It is undisputed that Abdildaev provided the Lexus and Toyota to Ace in good condition. It is undisputed that the vehicles were destroyed before they reached their destination. Abdildaev has also put forth evidence of damages. Abdildaev has put forth evidence that the vehicles cost him $61,800.00. The parties dispute whether Abdildaev paid the freight charge of $1,100.00. Under the shipper-cost measure of Carmack Amendment damages, Abdildaev has shown he has suffered damages of at least $61,800.00.  Abdildaev has made out a prima facie case. Ace, for its part, has not bothered to show that the damages were caused by one of the exceptions to the Carmack Amendment.

Abdildaev has failed to explain why he thinks he is legally entitled to attorneys fees as part of his damages, and, therefore, Abdildaev’s request is denied.

Instead, Ace asserts that Abdildaev’s Carmack Amendment claim is barred by Ace’s affirmative defense of accord and satisfaction. The burden of proof on this affirmative defense rests with Ace. See Laouini v. CLM Freight Lines, Inc., — F.3d —-, —-, 2009 WL 2535818 at(7th Cir. Aug.20, 2009). The elements of the affirmative defense are: “(1) a bona fide dispute; (2) an unliqui sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution (or satisfaction) of the accord.” Sherman v. Rokacz, 182 Ill.App.3d 1037, 1043, 131 Ill.Dec. 523, 538 N.E.2d 898 (First Dist. Ill.App.Ct.1989). As the Illinois Appellate Court explained long ago:

‘An agreement to do a thing in consideration of the settlement of a controversy or claim is not a satisfaction. It is the doing of the thing agreed upon that has that effect. As Mechem in his work on Sales, volume II page 678, section 806 says: ‘It is not the second contract but the performance of it which discharges the original contract.’’

Sherman, 182 Ill.App.3d at 1045, 131 Ill.Dec. 523, 538 N.E.2d 898 (quoting Carriage Co. v. American and British Mfg. Co., 188 Ill.App. 634, 644-645 (1914)).

Here, Ace has put forth evidence that Abdildaev and Ace reached a verbal agreement to settle the dispute over the damaged cars for $40,000.00. By Ace’s own account, Abdildaev never signed the agreement, and Ace never paid the $40,000.00. Instead, Ace provided services worth $23,200.00. By Ace’s own account, then, Ace never “satisfied” the agreement by paying the $40,000.00. Thus, Ace has failed to put forth sufficient evidence from which a jury could conclude that Ace is entitled to prevail on its accord and satisfaction affirmative defense.

For these reasons, Abdildaev is entitled to judgment as a matter of law on his Carmack Amendment claim against Ace Motors in the amount of $68,800.00. The Court hereby grants Abdildaev summary judgment on his Carmack Amendment claim against Ace Motors in the amount of $68,800.00. Abdildaev’s motion [89] for summary judgment is granted in part and denied in part.

Finally, the Court notes that while Ace Motors and Total Transport are both liable to Abdildaev under the Carmack Amendment, the Court does not see anything in the Carmack Amendment that would allow Abdildaev to recover his damages from both. Accordingly, the liability shall be joint and several as to the first $68,800.00. See Jessica Howard Ltd. v. Norfolk Southern RR Co., 316 F.3d 165, 169 (2nd Cir.2003) (“The Carmack Amendment permits the imposition of joint and several liability”).

IV. Conclusion

For the reasons set forth above, the Court grants in part and denies in part the motions for summary judgment.