United States Court of Appeals,

Ninth Circuit.

ONEBEACON INSURANCE COMPANY, Plaintiff-Appellant,

v.

HAAS INDUSTRIES, INC., Defendant-Appellee.

 

No. 08-16826.

Argued and Submitted Oct. 4, 2010.

Filed March 9, 2011.

 

Before ROBERT R. BEEZER, ANDREWJ. KLEINFELD, and SUSAN P. GRABER, Circuit Judges.

 

OPINION

BEEZER, Circuit Judge:

OneBeacon Insurance Company (“OneBeacon”) brought suit against Haas Industries, Inc. (“Haas”), under the Carmack Amendment, 49 U.S.C. § 14706, to recover for goods lost during shipping. Following a bench trial, the district court entered judgment in favor of Haas. OneBeacon appeals the district court’s holdings that OneBeacon lacked standing to sue under the Carmack Amendment and, alternatively, that Haas limited its liability. We reverse the holding that OneBeacon lacked standing, affirm the holding that Haas limited its liability, and remand for an entry of judgment consistent with the limitation of liability.

 

I

OneBeacon is the subrogated insurer of Professional Products, Inc. (“PPI”). Around June 2005, PPI purchased three pallets of computer wafers from Omneon Video Graphics (“Omneon”). PPI requested that Omneon ship the wafers directly to the City University of New York, the end purchaser of the goods. Omneon and PPI agreed that Omneon would ship the wafers FOB Omneon’s dock. Therefore, ownership of the wafers had passed from Omneon to PPI when the shipment left Omneon’s dock.

 

Nevertheless, instead of arranging for its own carrier to transport the wafers, PPI authorized Omneon to arrange shipment through Haas, a carrier Omneon frequently used. Omneon and Haas had previously negotiated a fee schedule that applied to all Omneon shipments, and Omneon kept copies of pre-printed Haas bill of lading forms, which Omneon filled in prior to a shipment.

 

The face of Haas’s bill of lading provides blank spaces for details about the shipping arrangement, such as the type and weight of the shipment, the type of service, and the sending and receiving companies. Haas also lists Conditions of Contract Carriage on the reverse side of the bill of lading. The Conditions of Contract Carriage are expressly incorporated into the bill of lading.

 

The Conditions of Contract Carriage describe the rights and obligations of various parties, including the “Shipper.” Among other things, the shipper and consignee are jointly and severally liable for any unpaid shipping charges. Paragraph 1 of the Conditions of Contract Carriage defines “Shipper” as “the party from whom the shipment is received, the party who requested the shipment be transported by Haas Industries, and [sic] party having an interest in the shipment, and any party who acts as an agent for any of the above.”

 

The Conditions of Contract Carriage also describe the extent of Haas’s liability for “lost, damaged, misdelivered or otherwise adversely affected” goods. Paragraph 8 states that “in the absence of a higher declared value for carriage,” Haas’s liability “is limited to a minimum of $50.00 per shipment or $0.50 per pound, per piece.” The same paragraph states that “Declared values for carriage in excess of $0.50 per pound, per piece, shall be subject to an excess valuation charge.” The face of the bill of lading provides a blank “declared value” box two lines above the shipper’s signature. An adjacent line states that the declared value is “agreed and understood to be not more than $.50 per pound, per piece, or $50.00 whichever is higher unless higher value declared and charges paid [sic].”

 

Haas’s bill of lading does not specify the amount of the excess valuation charge, but Haas asserts that it had provided this information to customers. In January 2005, Haas sent a letter to its customers specifying the excess valuation charge. In the letter, Haas informed customers that it had increased the excess valuation charge to $0.70 for every $100 of declared value. The letter reiterated, “Obviously, if you do not declare value on the bill of lading you will not be charged.” Haas states that it sent a copy of this letter to each of its customers, including Omneon, by enclosing the letter with its billing statement. Haas asserts that it would have re-sent the information to customers upon request.

 

Omneon contracted with Haas to ship PPI’s goods. Omneon used one of Haas’s pre-printed bills of lading for the shipment. Omneon filled in the City University of New York’s address, the number of pallets to be shipped, and the weight of the shipment. Omneon did not list a declared value for the shipment. PPI did not sign the bill of lading, and Omneon did not indicate PPI’s ownership of the goods identified on the bill of lading.

 

Haas retained Direct Air Service, Inc. to transport the shipment to New York. When the shipment arrived, it contained only two of the three pallets of computer wafers.

 

PPI filed a claim with Haas for the lost wafers, but Haas replied that only Omneon was entitled to file a claim. Omneon then filed a claim with Haas, and Haas issued a check for $88 to Omneon, asserting that this amount fulfilled Haas’s obligation because the bill of lading limited Haas’s liability to $0.50 per pound. OneBeacon, PPI’s insurance company, compensated PPI for the value of the lost goods, and OneBeacon stepped into PPI’s shoes as subrogee. OneBeacon brought suit against Haas claiming that Haas is liable for the full value of the lost goods under the Carmack Amendment.

 

Magistrate Judge Bernard Zimmerman held a bench trial on July 1, 2008.  The trial focused on three issues: whether OneBeacon had standing to sue under the Carmack Amendment, whether Haas limited its liability, and whether Omneon’s acceptance of the $88 check constituted an accord and satisfaction between Haas and PPI. Magistrate Judge Zimmerman found that OneBeacon did not have standing to sue; Haas limited its liability; but Haas failed to prove the existence of an accord and satisfaction.

 

Judgment was entered in favor of Haas. OneBeacon timely appealed the issues of OneBeacon’s standing and Haas’s limitation of liability. We have jurisdiction pursuant to 28 U.S.C. § 1291.

 

II

We review the district court’s findings of fact after a bench trial for clear error. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008) (en banc). We review its conclusions of law de novo. Id. Mixed questions of law and fact are also reviewed de novo. Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017, 1024 (9th Cir.1999).

 

We review the district court’s interpretation of contract provisions de novo. Conrad v. Ace Prop. & Cas. Ins. Co., 532 F.3d 1000, 1004 (9th Cir.2008).

 

III

This case presents the question whether an owner of goods who was not referenced by name in the bill of lading has standing under the current text of the Carmack Amendment. Congress passed the Carmack Amendment in 1906 to amend the Interstate Commerce Act and establish a uniform system of liability for carriers of goods in interstate commerce. See Adams Express Co. v. Croninger, 226 U.S. 491, 503-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913) (describing the diversity of laws governing carrier liability before the Carmack Amendment and concluding that “Congress intended to adopt a uniform rule” under the Carmack Amendment).

 

“The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 94 L.Ed. 698 (1950). The Amendment accomplishes this purpose by imposing liability on the receiving, delivering, and any intermediate carriers regardless of which carrier is at fault.   Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., — U.S. —-, —-, 130 S.Ct. 2433, 2441, 177 L.Ed.2d 424 (2010); see also 49 U.S.C. § 14706(a)(1) (liability of motor carriers and freight forwarders). It also regulates a carrier’s ability to limit liability for lost or damaged goods. See id.

 

Motor carriers are among the various types of carriers subject to the Carmack Amendment. 49 U.S.C. § 14706. The Carmack Amendment requires a motor carrier to issue a receipt or bill of lading for the property it transports. Id. § 14706(a)(1). The carrier is then “liable to the person entitled to recover under the receipt or bill of lading” for any loss or injury to the property caused by any carrier during shipment. Id.

 

During the relevant transaction, Haas was a licensed motor carrier and freight forwarder. The parties therefore agree that under the Carmack Amendment Haas is liable to someone for the lost pallet of computer wafers. The question is to whom.

 

OneBeacon was PPI’s subrogee. To decide whether OneBeacon has standing, we must therefore determine whether PPI would have standing under the Carmack Amendment. OneBeacon contends that PPI must have standing as the owner of the lost goods. Haas contends that only Omneon has standing because Omneon, not PPI, negotiated the shipping arrangement and signed the bill of lading.

 

OneBeacon and Haas are not the first parties to debate who has standing to sue under the Carmack Amendment. The original text of the 1906 Carmack Amendment provided that carriers were “liable to the lawful holder” of the “receipt or bill of lading.” Pub.L. No. 59-337, 34 Stat. 584, 595 (1906). In some early cases, parties argued that the term “lawful holder” was synonymous with the owner of the goods, but the Supreme Court rejected that argument. The Court held that under the original text of the Carmack Amendment, the “lawful holder” of the bill of lading could sue, regardless of who actually owned the goods.   Pa. R.R. Co. v. Olivit Bros., 243 U.S. 574, 583, 37 S.Ct. 468, 61 L.Ed. 908 (1917). But this left open the question of whether an owner of goods who did not actually possess the bill of lading could also sue.

 

In Davis v. Livingston, this court held that, regardless of ownership, only the holder of the bill of lading could sue. See 13 F.2d 605, 607 (9th Cir.1926) (concluding that “the Carmack Amendment makes the holder of the bill of lading the representative of the real parties in interest”). Other courts took a broader approach, allowing certain interested parties to sue even if they did not actually possess the bill of lading. See, e.g., Del., L. & W.R. Co. v. United States, 123 F.Supp. 579, 581 (S.D.N.Y.1954) (allowing the United States, as owner of the goods, to sue regardless of who possessed the bill of lading); Aspen Fish Prods. Co. v. Pa.-Reading Seashore Lines, 127 N.J.L. 209, 21 A.2d 826, 826-27 (N.J.1941) (holding that the plaintiff-shipper was allowed to sue when the railroad carrier held the bill of lading at the time of suit).

 

In 1978, Congress clarified this passage through the Revised Interstate Commerce Act. The 1978 act was passed “to revise, codify, and enact without substantive change the Interstate Commerce Act and related laws.” Pub.L. No. 95-473, 92 Stat. 1337, 1337. Among other things, Congress replaced the phrase “lawful holder of the receipt or bill of lading” with the phrase “person entitled to recover under the receipt or bill of lading.” 92 Stat. at 1453.

 

Interpreting the revised wording, some courts have held that particular classes of persons are entitled to recover under the receipt or bill of lading. See, e.g., Harrah v. Minn. Mining & Mfg. Co., 809 F.Supp. 313, 318 (D.N.J.1992) (noting various classes that are allowed to sue, including shippers, consignors, consignees, “holders of the bill of lading,” and “persons beneficially interested in the shipment”). Under this approach, a person may sue as long as he or she belongs to a class of persons that has previously been allowed to sue. See Banos v. Eckerd Corp., 997 F.Supp. 756, 762 (E.D.La.1998) (finding that the plaintiff had standing because he fell within the definition of a “consignor” of goods).

 

Although we recognize that members of certain classes often will be entitled to sue, the statute compels a more direct approach to standing. The crucial phrase under the current statute is “the person entitled to recover under the receipt or bill of lading.” 49 U.S.C. § 14706(a)(1) (emphasis added); cf. Pa. R.R. Co., 243 U.S. at 583 (holding that, under the 1906 version, “[t]he crucial words [were] ‘lawful holder’ ”). Accordingly, we look to the bill of lading, rather than an abstract classification system, to determine whether PPI would be entitled to sue Haas.

 

[10] A bill of lading is a contract between the carrier and the shipper. Oak Harbor Freight Lines, Inc. v. Sears Roebuck & Co., 513 F.3d 949, 954 (9th Cir.2008). As we have noted in other contexts, we apply general principles of contract interpretation when construing a bill of lading. See Starrag v. Maersk, Inc., 486 F.3d 607, 616 (9th Cir.2007) (interpreting a bill of lading in a maritime case). In this case, the bill of lading does not explicitly state who may sue, but OneBeacon offers a compelling argument that the bill of lading entitles PPI to sue.

 

Throughout, the Conditions of Contract Carriage reference the rights and duties of the “shipper.” As OneBeacon notes, the Conditions of Contract Carriage define “Shipper” as “the party from whom the shipment is received, the party who requested the shipment be transported by Haas Industries, and [sic] party having an interest in the shipment, and any party who acts as an agent for any of the above.” Because PPI is a “party having an interest in the shipment,” it falls within the bill of lading’s definition of “Shipper.”

 

We have previously found standing in admiralty and air transport cases that raised similar questions about who may sue under a bill of lading. See Lite-On Peripherals, Inc. v. Burlington Air Express, Inc., 255 F.3d 1189, 1193-94 (9th Cir.2001) (air transport); All Pac. Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1432 (9th Cir.1993) (admiralty). In each of these previous cases, the carrier’s bill of lading imposed obligations on the “Merchant” and defined “Merchant” to encompass “a broad range of parties.” Lite-On, 255 F.3d at 1193. In each case we held that the bill of lading entitled the plaintiff to sue because the plaintiff fell within the bill of lading’s definition of “Merchant.” Id. at 1194; All Pac., 7 F.3d at 1432. In Lite-On, we reasoned that a carrier “cannot seek to include a broad range of parties within the contract’s definition of ‘Merchant,’ and then claim that one of those parties has no standing to enforce” the contract. 255 F.3d at 1194.

 

Although the facts and circumstances of Lite-On and All Pacific are not identical to those in this case, we find the reasoning of the cases persuasive. We conclude that PPI would have standing to sue because it is a “Shipper” under the bill of lading. As PPI’s subrogee, OneBeacon has standing to sue under the Carmack Amendment, so we reverse the district court’s standing determination.

 

IV

[11] Although we conclude that the bill of lading entitles PPI, and therefore OneBeacon, to sue, we agree with the district court that Haas effectively limited its liability through the same bill of lading. Under the Carmack Amendment, a carrier is generally liable “for the actual loss or injury to the property.” 49 U.S.C. § 14706(a)(1). However, a carrier may

 

establish rates for the transportation of property … under which the liability of the carrier for such property is limited 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.

 

Id. § 14706(c)(1)(A).

 

[12] OneBeacon does not challenge the reasonableness of Haas’s rates. OneBeacon argues only that Haas failed to limit its liability under the four-step test established in Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 611-12 (9th Cir.1992). In Hughes, we held that to limit its liability under the Carmack Amendment, a carrier must

 

(1) maintain a tariff in compliance with the requirements of the Interstate Commerce Commission; (2) give the shipper a reasonable opportunity to choose between two or more levels of liability; (3) obtain he shipper’s agreement as to his choice of carrier liability limit; and (4) issue a bill of lading prior to moving the shipment that reflects any such agreement.

 

Id. (footnotes omitted). “The carrier has the burden of proving that it has complied with these requirements.” Id. at 612.

 

Since Hughes was decided in 1992, Congress has amended the statutory provisions underlying the Hughes test. We derived the first element of the Hughes test from the Carmack Amendment’s provision that the Interstate Commerce Commission (“ICC”) could authorize a motor carrier to establish rates limiting its liability. Id. at 611 n. 2. In 1994, Congress eliminated the requirement that carriers of non-household goods file tariffs with the ICC. Trucking Industry Regulatory Reform Act of 1994, Pub.L. No. 103-311, 108 Stat. 1673, 1683-85. Then in 1995, Congress added a requirement that carriers “provide … to the shipper, on request of the shipper, a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.” ICC Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803, 907-10 (codified at 49 U.S.C. § 14706(c)(1)(B)).

 

[13] Haas argues that the 1994 and 1995 amendments eliminated the first element of the Hughes test. In contrast, OneBeacon asserts that the Hughes test remains fully intact because a carrier must still maintain a tariff even if it is not required to file the tariff. We agree with the Eleventh Circuit that “the most that can be said about the latest version of the statute is that a carrier is now required to provide a shipper with the carrier’s tariff if the shipper requests it, instead of the shipper filing its tariff with the now-defunct ICC.” Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 841 (11th Cir.2003). Accordingly, we hold that the Hughes test remains the same with one exception: Instead of maintaining a tariff in compliance with the ICC, a motor carrier must now, at the shipper’s request, provide the shipper with “a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the shipper and the carrier, is based.”  49 U.S.C. § 14706(c)(1)(B).

 

[14] In this case, we conclude that Haas complied with all requirements of the revised Hughes test. Contrary to OneBeacon’s arguments, the statute does not require Haas to maintain rates in any particular format, nor does it require Haas to formally publish its rates. Instead, Haas need only provide copies of its “rate, classification, rules, and practices” at the “request of the shipper.” Id. (emphasis added). There is no evidence that either Omneon or PPI requested this information prior to shipping PPI’s goods. Further, Haas provided evidence that it established standard rates, which incorporated the limitation of liability, as well as a separate excess valuation charge for full liability. The district court found that Haas had established rates for different levels of liability and would have made these rates available to customers upon request. We see no clear error in this finding.

 

[15] Additionally, OneBeacon offers no basis for rejecting the district court’s findings that Haas satisfied the last three elements of the Hughes test. To satisfy the second element, “the shipper [must have] had both reasonable notice of the liability limitation and the opportunity to obtain information necessary to make a deliberate and well-informed choice.”   Hughes Aircraft Co., 970 F.2d at 612 (internal quotation marks omitted). The bill of lading and Conditions of Contract Carriage clearly state that Haas’s liability is limited to $50 or $0.50 per pound in the absence of a higher declared value. The bill of lading also explains that Haas will be liable for the actual value of the shipment if the shipper declares the value and pays an excess valuation charge. We conclude that these statements provided sufficient notice of the limitation of liability and explained the procedure for rejecting that limitation.

 

[16] Because the bill of lading contains a written agreement to the limitation of liability, Haas also satisfied the third and fourth elements of the Hughes test. Id. OneBeacon argues that, to comply with the Carmack Amendment, a bill of lading must list the actual value of the goods as the default rate. It is true that if a carrier does not specify any limitation on liability in the shipping contract or bill of lading, then the carrier is responsible for “the actual loss or injury to the property.” 49 U.S.C. § 14706(a)(1). But here the bill of lading expressly limits Haas’s liability in the absence of a higher declared value. By signing the bill of lading without listing a declared value, the parties agreed to the limitation of liability.

 

OneBeacon raises several other arguments for reversal, including the district court’s consideration of PPI’s insurance policy. OneBeacon’s arguments are not persuasive. Because Haas met each of the requirements under the Hughes test, the district court’s reference to PPI’s insurance coverage is at most irrelevant to the limitation of liability.

 

CONCLUSION

We determine that OneBeacon has standing to sue, but Haas limited its liability under the Carmack Amendment. Because the district court found that there was no accord and satisfaction, and Haas did not appeal this finding, we remand the case so that the district court may enter judgment in favor of OneBeacon in an amount consistent with the limitation of liability.

 

REVERSED in part, AFFIRMED in part, and REMANDED.

 

The parties consented to proceed before a magistrate judge.

 

Magistrate Judge Zimmerman raised the standing issue sua sponte before trial.

 

The Carmack Amendment defines”person” to include “a trustee, receiver, assignee, or personal representative of a person.” 49 U.S.C. § 13102(18). OneBeacon is therefore a “person” under the statute to the same extent that PPI is such a person. The parties do not dispute this.

 

This test is similar to the tests applied by other circuits. See, e.g., Rohner Gehrig Co. v. Tri-State Motor Transit, 950 F.2d 1079, 1081 (5th Cir.1992) (en banc).

 

The parties seem to agree that for purposes of this case there is no significant difference between a rate schedule and a “tariff.”

 

Our holding comports with other circuits’ interpretations of the 1994 and 1995 amendments. See, e.g., Emerson Electric Supply Co. v. Estes Express Lines Corp., 451 F.3d 179 (3d Cir.2006).

 

OneBeacon asserts that the district court eliminated the first element of the Hughes test. We note that the district court did in fact analyze the requirement of § 14706(c)(1)(B), although the court analyzed the requirement separately rather than incorporating it into the Hughes test as we have done. Regardless of the sequence of analysis, the outcome is the same.

United States District Court,

S.D. Indiana,

Indianapolis Division.

Tammy POWELL and Bobby Powell, Individually and as Court Appointed Guardian of his Wife, Tammy Powell, Plaintiffs,

v.

UNITED PARCEL SERVICE, INC., Defendant.

 

No. 1:08-cv-1621-TWP-TAB.

March 4, 2011.

 

ENTRY ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

TANYA WALTON PRATT, District Judge.

This matter is before the Court on Defendant United Parcel Service, Inc.’s (“Defendant” or “UPS”) Motion for Partial Summary Judgment. This case arises out of a tragic automobile accident, in which Plaintiff Tammy Powell  suffered catastrophic injuries when she rear-ended a UPS truck. In their complaint, Plaintiffs requested punitive damages. In response, UPS filed the present motion, arguing that punitive damages are inappropriate because this case involves nothing more than garden-variety negligence. For the reasons set forth below, UPS’s Motion for Partial Summary Judgment [Dkt. 92] is GRANTED.

 

Throughout this entry, Mrs. Powell and her husband Bobby Powell are referred to collectively as “Plaintiffs.”

 

I. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate 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 the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir.2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.”   Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.2001) (citation and internal quotations omitted). Finally, “neither the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir.1997) (citations and internal quotations omitted).

 

II. BACKGROUND

A. The Delivery Driver

The accident at the center of this dispute occurred while the driver of a UPS delivery truck, Raymond Moon (“Moon”), was in the process of making a delivery. Moon has worked as a UPS delivery driver since 1984. During his roughly quarter-century-long tenure, he has been involved in two similar rear-end collisions. From these experiences, Moon learned the object lesson that “[i]t’s best to get out of the flow of traffic.” There is no evidence to suggest that injuries were suffered as a result of those prior accidents.

 

B. The Accident

On September 16, 2008, Moon was making a series of deliveries. Specifically, Moon had just finished making a delivery to the Iron Hawg, a motorcycle shop located on the eastbound side of U.S. Highway 40 in Greenfield, Indiana (“US 40”). His next delivery was scheduled for a private residence located on the westbound side of U.S. 40 (“the Rainbolt residence”). To access the westbound side, Moon used a “cut through”  to make a leftward u-turn. Moon entered the cut through, looked right to check for approaching traffic, and determined that the coast was clear. Moon turned left into the passing lane (or left lane) of westbound U.S. 40, put his right turn signal on, and then moved into the curb lane (or right lane) to access the Rainbolt residence.

 

During his deposition, Moon defined the term cut through as “the places that you can go from one side to the other to allow people to get into their driveways.”

 

Moon traveled a short distance on a virtually curve-free portion of westbound U.S. 40 and stopped his truck just past the Rainbolt residence, preparing to back into their driveway. In doing so, he partially obstructed the flow of traffic in the curb lane. Moon testified that doing so was necessary because his entire truck would not fit on the shoulder of the road. The passing lane remained unobstructed. Before backing into the driveway, Moon checked his rearview mirror and noticed that vehicles were approaching. Moon believed the traffic was too close to back in safely, so he waited, assuming the traffic would pass him. Moon felt it was safer to let traffic pass than to try to back in and block both lanes of traffic. Moon did not pull forward and circle back to make the delivery because such a maneuver would hobble efficiency.

 

While waiting, Moon checked his mirror two more times. While most of the traffic was moving over to the passing lane, one car did not do so. Moon quickly realized this car was getting ready to rear-end him. Realizing a collision was imminent, Moon attempted to put his truck into first gear to lessen the impact-“so that the person [in the car] doesn’t get hurt.” Mrs. Powell, however, was not so fortunate. Her 2003 Dodge Neon, traveling 60 miles per hour, smashed into the UPS truck. As a result, she suffered life-altering brain injuries, necessitating a stay in an assisted living facility and a lifetime of medical treatment. According to a police investigator, the primary cause of the accident was Moon’s decision to stop the truck in a lane of travel, “which obstructed traffic for motorists like Tammy Powell.”

 

C. Moon’s Practices and UPS’s Policies

Moon testified that he customarily backed into residential driveways when making deliveries, unless the driveway was u-shaped or another exit would allow him to exit the driveway head first. Moon was familiar with the route he was traveling on the day of the accident. In fact, he had made previous deliveries to the Rainbolt residence, always backing in because “it seemed the safest way to get out of the traffic.” Additionally, Moon mentioned that he had observed children playing in the area.

 

Moon’s “backing-in” practices appear to align with general UPS policy. David Wayne Jones, Moon’s supervisor, testified as follows:

 

Q. Tell me how, prior to September 16th, 2008, you trained the UPS drivers that reported to you, like Ray Moon, to make package deliveries to private residences with driveways that were connected to U.S. 40.

 

A. I would train them to make the decision. If they could not get turned around or any doubt of getting turned around, that they would back first enough to get off the highway and then walk the package out.

 

UPS’s Regional Health and Safety Manager, Steven Ricci, echoed this protocol and explained its rationale:

The reason that we teach that the driver should not nose the vehicle in is that when the driver noses the vehicle in, the driver is not sure of the conditions behind the vehicle. That’s why part of the method is that if you have to make the decision to back, that we want the driver to back first because they have cleared the area to back. When the driver noses in, the driver has no control over what’s behind him, another vehicle that pulls in, a child on a bicycle, a group of children walking behind the car, et cetera. So the nose in is to prevent not being able to control what happens when the driver gets back to the vehicle.

 

Finally, according to the deposition testimony of Brian Galyean, a fellow UPS delivery driver, UPS has what Plaintiffs have dubbed a “go home early” rule. Plainly stated, if a driver completes all of his daily assignments, he can go home before his or her shift concludes. Significantly, Moon’s testimony did not touch on this rule. Moon did, however, testify that his work shift varied, based on the number of assigned deliveries. Finally, Moon testified that prior to the accident, he was not in “any particular rush” but he was “trying to be efficient.” Additional facts are added below as needed.

 

III. DISCUSSION

A. Indiana Law on Punitive Damages

Indiana’s stance on punitive damages is relatively well-settled. Designed to punish and deter, punitive damages are leveled in addition to compensatory damages. Westray v. Wright, 834 N.E.2d 173, 179 (Ind.Ct.App.2005). For this reason, “they are quasi-criminal in nature and require a different showing than that required for an award of compensatory damages.” Id. (citation omitted).

 

Generally, punitive damages are only reserved for reprehensible conduct. More precisely, “[u]nder Indiana law, a plaintiff may recover punitive damages only if he can show by clear and convincing evidence that the defendant engaged in conscious and intentional misconduct that he knew would probably result in injury.” Purnick v. C.R. England, Inc., 269 F.3d 851, 852 (7th Cir.2001) (citations omitted; emphasis added); Picadilly, Inc. v. Colvin, 519 N.E.2d 1217, 1221 (Ind.1998); see also Austin v. Disney Tire Co., Inc., 815 F.Supp. 285, 288 (S.D.Ind.1993) (“There must be sufficient direct or circumstantial evidence of the malfeasor’s state of mind to conclude that the person recognized the danger and consciously disregarded it; mere failure to recognize a dangerous situation or non-iniquitously failing to exercise proper judgment in such a situation [is] not sufficient.”).

 

Logically following, run-of-the-mill negligence does not support an award of punitive damages in actions arising in tort. Wanke v. Lynn’s Transp. Co., 836 F.Supp. 587, 599 (N.D.Ind.1993). Rather, a plaintiff must show that the defendant “subjected [others] to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 136 (Ind.1988). Significantly, Indiana law requires that punitive damages be supported by clear and convincing evidence (not just a preponderance of the evidence) of the defendant’s state of mind. Samuel v. Home Run, Inc., 784 F.Supp. 548, 550 (S.D.Ind.1992) (citation omitted; emphasis added); see also Westray, 834 N.E.2d at 179 (clear and convincing evidence is “minutely below the ‘reasonable doubt’ standard”). This high hurdle was erected to prevent the imposition of punitive damages for conduct that is merely negligent. Samuel, 784 F.Supp. at 550-551 (citation omitted).

 

B. Application of Punitive Damages Law to the Evidence

In response to the present motion, Plaintiffs forge two separate arguments why they are entitled to recover punitive damages-one relating to Moon individually, the other relating to UPS’s policies. Each argument is analyzed in turn below.

 

1. Moon’s Conduct and Mental State

Plaintiffs argue that “Moon made a conscious and intentional decision to obstruct vehicular traffic, in violation of Indiana law, knowing that it probably would result in serious bodily injury to Powell.” [Dkt. 112 at 13].  To bolster this argument, Plaintiffs make a two-pronged attack, emphasizing that: (1) Moon knowingly obstructed traffic, choosing to wait for cars to pass in lieu of driving forward and circling back; and (2) Moon knew that his conduct would probably result in serious bodily injury, primarily based on his two prior accidents that occurred under similar conditions. Moon’s conduct, according to Plaintiffs, was far more egregious than a mere mistake or error in judgment.

 

Ind.Code § 35-42-2-4 provides that a person “who recklessly, knowingly, or intentionally obstructs vehicular … traffic commits … a Class B misdemeanor.”

 

While Plaintiffs’ argument is well-taken, the Court respectfully disagrees. Even after taking all inferences in favor of Plaintiffs, the Court finds that it would be unreasonable to conclude that there is clear and convincing evidence that Moon acted with the requisite mental state to levy punitive damages. Indeed, Moon testified as to his efforts and intentions to proceed safely in making the particular delivery that precipitated the accident. Moreover, Moon testified that when the accident became imminent, he attempted to put his truck in gear to minimize the effect of the impact. With respect to Moon’s two prior accidents-which occurred during the course of nearly a quarter-century-long career as a delivery driver-there is no evidence that they resulted in injury or that Moon was thinking about them on the day of the accident. At bottom, Plaintiffs did not produce evidence controverting Moon’s testimony as to his state of mind.

 

The Court’s decision is reinforced, and influenced, by a slew of factually analogous cases involving similar driving mishaps. Plainly stated, courts applying Indiana law have routinely held that lousy driving, without more, does not warrant punitive damages. See, e.g., Purnick, 269 F.3d 851, 852-54 (7th Cir.2001) (affirming summary judgment ruling that motorist not entitled to seek punitive damages against trucker; evidence that driver falsified his logs to hide the amount he had driven over the week prior to the accident, was “mesmerized” by the road, failed to brake before impact, and could not recall when he first saw plaintiff’s vehicle was insufficient to prove his mental state to sustain punitive damages because there was no proof he knew his actions would probably cause harm); Austin, 815 F.Supp. at 289-90 (partial summary judgment granted; holding that punitive damages could not be awarded against truck driver who was allegedly negligent in failing to stop for red light, sound his horn, or apply his brake as he entered intersection); Samuel, 784 F.Supp. at 552 (granting partial summary judgment; merely creating a dangerous situation as a driver does not support a further inference that the conduct was wanton or morally blameworthy so as to support punitive damages); Westray 834 N.E.2d at 181 (although driver who looked away from road for five to ten seconds while approaching an intersection was “clearly negligent,” punitive damages were improper). In some of these cases, the defendant’s conduct appeared much more haphazard than Moon’s. Overall, Plaintiffs’ first argument is not supported by the evidence and contradicts applicable case law.

 

2. UPS’s “Go Home Early” Policy

Next, Plaintiffs argue that UPS’s “go home early” policy warrants punitive damages: “UPS’s policy of encouraging a driver to determine how long or short his shift can be is in heedless disregard for the safety of other motorists.” [Dkt. 112 at 13]. While Plaintiffs intimate that this policy is thoroughly ingrained in UPS’s mores, the actual evidence supporting the existence of such a policy is fairly scant. Specifically, it consists of the following portion of Brian Galyean’s deposition testimony:

 

Q. What happens if you have to deliver a certain number of packages, and you deliver them before your shift ends?

 

A. You’re done.

 

Q. You get to go home, right?

 

A. Yes.

 

Q. You don’t have to work the remaining part of the shift, correct?

 

A. Yes.

 

Q. Does that give you any incentive when you’re making deliveries to get done quicker?

 

A. No.

 

Based on this testimony, Plaintiffs extrapolate that UPS’s “go home early” policy incentivizes reckless and cavalier behavior because, invariably, drivers rush to complete their work. To buttress this argument, Plaintiffs rely exclusively on Wauchop v. Domino’s Pizza, Inc., 832 F.Supp. 1577, 1582 (N.D.Ind.1993), where the district court denied defendant’s motion for summary judgment as to punitive damages based on Domino’s “30 minutes or less” guarantee.

 

While this argument is creative, it fares no better than Plaintiffs’ first argument. As an initial matter, Plaintiffs’ reliance on Wauchop is misguided for two reasons. Most notably, in Wauchop, the plaintiffs proffered an array of evidence about the danger of the 30-minute guarantee, including concerns expressed to Domino’s from outsiders, the media, and insurance underwriters. Id. at 1580, 1583 (“the plaintiffs have presented, at a minimum, circumstantial evidence that Domino’s had knowledge from a number of sources concerning the hazards of the 30-minute guarantee.”). Here, by contrast, Plaintiffs have failed to direct the Court to a modicum of evidence that UPS had knowledge concerning the hazards of its purported “go home early” policy.

 

Next, in terms of incentives, the “go home early” rule is profoundly different than a “30-minute guarantee.” In practice, only the 30-minute guarantee necessarily erects perverse incentives. By way of example, myriad intervening, but predictable, factors can derail a pizza delivery-a train on the tracks; being forced to stop for gas; a wrong turn; or a cooking blunder. Domino’s simply had to know that, under such circumstances, a delivery worker would be forced to behave recklessly to comply with the employer’s policy. Conversely, a “go home early” rule-which applies to countless professions-does not necessarily encourage bad behavior. The employer is simply saying, “there is no sense in staying at work if there is nothing left to do.” Under Plaintiffs’ proposed reasoning, a hospital that allows a surgeon to leave when his or her scheduled procedures are completed would necessarily be subject to punitive damages if that surgeon is negligent in the operating room. Simply stated, Plaintiffs’ proposed view on punitive damages is overly-expansive. Plaintiffs have failed to show that UPS implemented a “go home early” policy with knowledge that it would likely result in injuries. Equally important, the record is devoid of evidence that Moon was rushing to avail himself of the “go home early” rule.

 

IV. CONCLUSION

Ultimately, a jury may very well determine that Moon breached his duties. If that occurs, compensatory damages will be awarded accordingly. However, for the reasons set forth above, punitive damages are not appropriate under the circumstances. UPS’s Motion for Partial Summary Judgment (Dkt. No. 92) is GRANTED.

 

SO ORDERED: