Court of Appeals of Wisconsin.

MATHY CONSTRUCTION COMPANY, INC. and St. Paul Fire & Marine Insurance Company, Plaintiffs-Appellants,

v.

WEST BEND MUTUAL INSURANCE COMPANY and Dan-Ash Trucking, Inc., Defendants-Respondents.

No. 2008AP1326.

 

Feb. 25, 2010.

 

Before VERGERONT, LUNDSTEN and HIGGINBOTHAM, JJ.

 

¶ 1 HIGGINBOTHAM, J.

 

Dan-Ash Trucking, Inc. subcontracted with Mathy Construction Company, Inc. to haul material for a road resurfacing project on which Mathy was the general contractor. As part of the hauling agreement between the parties, Dan-Ash agreed to defend and indemnify Mathy against claims caused by the negligence of Dan-Ash or its subcontractors. The issue in this case is whether Dan-Ash was obligated to defend and indemnify Mathy for costs Mathy incurred in defending against and settling two lawsuits brought by the estate of David Holmes and his heirs after Holmes was killed after falling under the wheels of a semi-truck driven by a Dan-Ash subcontractor while riding his bicycle through the resurfacing project construction zone. The circuit court concluded that, based on the allegations made against Mathy in the two complaints, Dan-Ash had no duty to defend and indemnify Mathy under the agreement. We agree.

 

¶ 2 The second issue in this appeal is whether Mathy’s status as an “additional insured” under Dan-Ash’s commercial general liability policy with West Bend Mutual Insurance Company required West Bend to defend and indemnify Mathy in the two negligence suits. We conclude that, because Mathy’s liability did not arise from Dan-Ash’s work, the complaints did not trigger West Bend’s duty to defend Mathy as an “additional insured” under the policy’s terms. We therefore affirm the summary judgment order entered in favor of Dan-Ash and West Bend.

 

BACKGROUND

 

¶ 3 The following facts are taken from the parties’ summary judgment submissions. Mathy, a general contracting company, was awarded a contract to resurface a county road in Scott County, Iowa. Mathy subcontracted with Dan-Ash, a truckingcompany, to transport materials for the project. The parties executed a hauling agreement, which contained an indemnification provision. The agreement also required Dan-Ash to purchase liability insurance. Accordingly, Dan-Ash purchased insurance from West Bend, listing Mathy as an additional insured.

 

The fact section of Mathy’s brief-in-chief is peppered with argument. WISCONSIN STAT. § 809.19(1)(d) and (e) (2007-08) requires that briefs include a separate statement of facts relevant to the issues being reviewed. The fact section of a brief is no place for argument. Arents v. ANR Pipeline Co., 2005 WI App 61, ¶ 5 n. 2, 281 Wis.2d 173, 696 N.W.2d 194. “[F]acts must be stated with absolute, uncompromising accuracy. They should never be overstated-or understated, or ‘fudged’ in-any manner.” Judge William Eich, Writing the Persuasive Brief, WISCONSIN LAWYER MAGAZINE, Vol. 76, No. 2 (Feb.2003).

 

¶ 4 Dan-Ash subcontracted with RT & T Trucking, Inc. to haul materials, which, in turn, subcontracted with truck driver William Hartmann. On the day of the traffic accident, one lane of the county road was closed for resurfacing, creating a one and one-half mile long “bottleneck.” Traffic was being controlled by flag persons at either end of the blocked-off lane and by a “pilot car,” which led cars through the bottleneck. The pilot car was driven by a Mathy employee, Elizabeth Rogers.

 

¶ 5 David Holmes approached the construction zone on a bicycle and was allowed to enter the bottleneck. Rogers led a line of vehicles through the bottleneck, including a semi-truck driven by Hartmann, which was hauling asphalt to the project site. As the row of vehicles passed Holmes on the right, Holmes lost control of his bike and fell under the rear wheels of Hartmann’s truck. Holmes died from injuries sustained in the accident.

 

¶ 6 Holmes’ heirs filed two wrongful death suits in Scott County, Iowa (the “Iowa suits”), against Mathy, RT & T Trucking, Rogers, Hartmann and Scott County. Dan-Ash was not a defendant in the Iowa suits. Pursuant to the indemnification agreement, Mathy tendered its defense to Dan-Ash and its insurer, West Bend. Dan-Ash did not respond to the request. West Bend refused to defend Mathy in the suits after concluding that the facts alleged in the suits did not fall within Mathy’s coverage as an additional insured.

 

One suit was brought by Holmes’ widow, Tammy Holmes, and Holmes’ Estate. The other was brought by Tracy Mahler, the mother of Holmes’ three minor children, on the children’s behalf. The two actions name the same defendants and assert the same claims. Apart from having different plaintiffs, the complaints in the two suits are identical.

 

¶ 7 Mathy’s and Rogers’ insurer, St. Paul Fire & Marine Insurance Company, and RT & T’s and Hartmann’s insurer negotiated separate settlement agreements with the heirs, and the suits were subsequently dismissed. Additional facts are set forth as necessary in the discussion section.

 

¶ 8 Mathy filed this declaratory judgment action against Dan-Ash and West Bend, alleging breach of contract against Dan-Ash and West Bend and seeking recovery of the amount paid to settle and defend against the Iowa suits pursuant to the indemnity agreement and West Bend’s insurance policy with Dan-Ash. Mathy filed separate motions for summary judgment against Dan-Ash and West Bend, and Dan-Ash and West Bend filed a cross-motion for summary judgment against Mathy. After briefing and a hearing on the motions, the court, Judge Roger LeGrand presiding, granted Dan-Ash and West Bend’s motion for summary judgment and dismissed Mathy’s and St. Paul’s action.

 

¶ 9 Mathy moved for reconsideration, arguing that the court’s decision disregarded the plain language of the indemnification provision. On reconsideration, the court, Judge Todd Bjerke presiding, issued a seventeen-page “Findings of Fact, Conclusions of Law and Order,”  that, by its terms, reaffirmed and superseded the prior court’s award of summary judgment to Dan-Ash and West Bend. Mathy appeals the order reaffirming the court’s prior order granting Dan-Ash and West Bend’s motion for summary judgment and denying its motions for summary judgment.

 

We discourage the practice of issuing “Findings of Fact” in a summary judgment order because it increases the risk that the court will err by making a finding as to a disputed issue of fact on summary judgment. Bank of New Glarus v. Swartwood, 2006 WI App 224, ¶ 11 n. 5, 297 Wis.2d 458, 725 N.W.2d 944.

 

STANDARD OF REVIEW

 

¶ 10 An appellate court reviews the circuit court’s order on a motion for summary judgment de novo, applying the same methodology as the circuit court.   Tensfeldt v. Haberman, 2009 WI 77, ¶ 24, 319 Wis.2d 329, 768 N.W.2d 641. Summary judgment is appropriate when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (2007-08). The summary judgment order in this case turns on the interpretation of the indemnification provision of the hauling agreement between Mathy and Dan-Ash, and the portion of West Bend’s insurance contract with Dan-Ash listing Mathy as an “additional insured.” Interpretation of a written contract is a question of law subject to our de novo review. State v. Kaczmarski, 2009 WI App 117, ¶ 10, 320 Wis.2d 811, 772 N.W.2d 702.

 

DISCUSSION

 

¶ 11 The duty to defend “is determined by comparing the allegations of the complaint to the terms of the insurance policy.” Estate of Sustache v. American Family Mut. Ins. Co., 2008 WI 87, ¶ 20, 311 Wis.2d 548, 751 N.W.2d 845;Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis.2d 824, 835, 501 N.W.2d 1 (1993) (whether a party has a duty to defend pursuant to an indemnification agreement “is triggered by the allegations contained within the four corners of the complaint”). In ascertaining whether there is a duty to defend and indemnify under the terms of an indemnification agreement, we assume the truth of the allegations in the complaints. See Trumpeter Devs., LLC v. Pierce County, 2004 WI App 107, ¶ 7, 272 Wis.2d 829, 681 N.W.2d 269.

 

¶ 12 Interpretation of an indemnification agreement, like any other written contract, begins with the language of the agreement. See Williams v. Rexworks, Inc., 2004 WI App 228, ¶ 11, 277 Wis.2d 495, 691 N.W.2d 897. “When the terms of a contract are plain and unambiguous, we will construe the contract as it stands.” Ehlinger v. Hauser, 2008 WI App 123, ¶ 19, 313 Wis.2d 718, 758 N.W.2d 476 (citation omitted). “If a contract is unambiguous, [a court’s] attempt to determine the parties’ intent ends with the four corners of the contract.” Milwaukee Bd. of Sch. Dirs. v. BITEC, Inc., 2009 WI App 155, ¶ 7, — Wis.2d —-, 775 N.W.2d 127 (citation omitted).

 

¶ 13 “The general rule accepted in this state and elsewhere is that an indemnification agreement will not be construed to cover an indemnitee for his own negligent acts absent a specific and express statement in the agreement to that effect.” Dykstra v. Arthur G. McKee & Co., 100 Wis.2d 120, 124-25, 301 N.W.2d 201 (citation omitted); see also Barrons v. J.H. Findorff & Sons, Inc., 89 Wis.2d 444, 454-55, 278 N.W.2d 827.

 

¶ 14 On appeal, Mathy argues that the plain language of the indemnification agreement requires Dan-Ash to defend and indemnify Mathy for Mathy’s costs to defend against and settle the Iowa claims. Mathy also argues it may recover its costs in the Iowa claims under the “insured contract” provision of West Bend’s policy with Dan-Ash, or as a listed “additional insured” on the policy.  Dan-Ash asserts that it is not required to indemnify Mathy under the terms of the indemnification agreement because the basis for Mathy’s liability in the Iowa suits arose from allegations of negligence on the part of Mathy and one of its employees, not from Dan-Ash’s work or that of its subcontractors under the hauling agreement. Under Dan-Ash’s construction of the indemnification agreement, its responsibility to defend and indemnify Mathy is limited to those circumstances where Mathy is being asked to pay for the negligence of Dan-Ash or its subcontractors. Dan-Ash further argues that West Bend’s policy does not provide Mathy a means of recovery under either the “insured contract” provision or as an “additional insured.” We address first the issue of whether Dan-Ash must indemnify Mathy for its costs to defend and settle the Iowa claims under the indemnification agreement.

 

Mathy also contends that the circuit court’s decision contains several examples of clear error requiring reversal. Specifically, Mathy argues that the circuit court committed the following errors, among others: Issuing findings as to disputed issues of fact, contrary to summary judgment methodology, and considering extrinsic evidence to ascertain the intent of the parties after concluding that the indemnification provision was “unambiguous.” Because our review of the court’s order on summary judgment is de novo, Green Spring Farms v. Kersten, 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987), we do not address these arguments.

 

¶ 15 The indemnification provisions of the hauling agreement between Dan-Ash and Mathy obligate Dan-Ash to:

 

defend, indemnify and hold harmless Mathy … against all claims, including claims for which Mathy may be or claimed to be negligent or liable … arising out of or resulting from the performance of the work in this Agreement or occurring or resulting from the use by [Dan-Ash], [its] agents or employees of … equipment, … provided that any such claim … is … [c]aused in whole or in part by any negligent act or omission of [Dan-Ash], [or] their subcontractors….”

 

The indemnification section of the hauling agreement provides in full:

 

Indemnification. (a). To the fullest extent permitted by law, the Hauler shall defend, indemnify and hold harmless Mathy, its officers, stockholders and employees from and against all claims, including claims for which Mathy may be or claimed to be negligent or liable, for damages, losses and expenses, including, but not limited to attorneys’ fees, including legal fees and disbursements paid or incurred to enforce the provisions of this paragraph, arising out of or resulting from the performance of the work in this Agreement or occurring or resulting from the use by Hauler, his agents or employees of materials, equipment, instrumentalities or other property, whether the same be owned by the Hauler, Mathy or third parties, provided that any such claim, damage, loss or expense is:

 

(i) Attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including the loss of use therefrom, and

 

(ii) Caused in whole or in part by any negligent act or omission of the Hauler, their subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, or

 

(iii) Attributable to injuries sustained by any employee of the Hauler or its subcontractors of any tier during the performance of work under this Agreement, for any cause whatsoever.

 

(b). Hauler shall obtain, maintain and pay for such Commercial General Liability insurance coverage as will insure the provisions of this paragraph 8, to the fullest extent available.

 

The hauling agreement defines the “work to be performed” as follows: “Mathy or other Divisions, subsidiaries or affiliated companies of Mathy will, from time to time, tender to Hauler a load or loads of Materials for delivery by Hauler….”

 

¶ 16 Mathy notes that the agreement broadly requires Dan-Ash to defend and indemnify Mathy “against all claims, including claims for which Mathy may be or claimed to be negligent or liable … provided that any such claim … is … [c]aused in whole or in part by any negligent act or omission of [Dan-Ash], [or] their subcontractors.” Mathy appears to interpret this language to mean that, whenever Dan-Ash (or its subcontractors) and Mathy are co-defendants in a negligence suit arising from the same incident, Dan-Ash must indemnify Mathy because the damages sought were “caused in whole or in part by” Dan-Ash’s negligence. We disagree.

 

¶ 17 The plain terms of the indemnification agreement limit Dan-Ash’s obligation to defend and indemnify Mathy to those claims that are caused in whole or in part by the negligence of Dan-Ash or of its subcontractors. That is, Dan-Ash must defend and indemnify Mathy only for those claims brought against Mathy that the complaint alleges are caused at least in part by the negligence of Dan-Ash or its subcontractors. Mathy’s construction of the indemnification agreement that it is protected against claims that arise solely from its own causal negligence is an unreasonable reading of the agreement. The fact that the Iowa complaints allege that Hartmann and RT & T were at least partially responsible for the plaintiffs’ damages does not automatically trigger Dan-Ash’s duty to defend and indemnify Mathy. Rather, the question of whether Dan-Ash must indemnify Mathy turns on whether the specific negligence claims against Mathy in the Iowa complaints alleged that the claims were “[c]aused … in whole or in part by any negligent act or omission” of Dan-Ash, or its subcontractors.

 

¶ 18 Turning to the two Iowa complaints, we observe that each complaint alleges two negligence claims: one against Mathy and its pilot car driver Rogers, the other against RT & T and its subcontractor, Hartmann. The complaints set forth the following allegations common to both claims: Rogers’ pilot car passed Holmes on his bicycle, and led the traffic-which included Hartmann’s truck-past Holmes. When Hartmann attempted to pass Holmes, Hartmann’s truck collided with the bicyclist, killing him. As to RT & T and Hartmann only, the complaints alleged they breached their duty of care by

 

In his brief, Mathy states that the Iowa lawsuits “claimed that Mathy was liable for failure to adequately supervise its subcontractor and for its failure to adequately control the job site in such a way that Hartmann was able to drive over Holmes. (Emphasis added.) Mathy’s reading of this part of the two complaints is inaccurate. As we see above, the claims against Mathy plainly do not allege these particular grounds for Mathy’s negligence.

 

passing David Holmes on a one-lane road … [and] in a construction zone; … failing to yield the right of way; [f]ailing to maintain a proper lookout; [f]ailing to keep an assured clear distance ahead; [e]ntering a one-lane construction zone with a bicyclist already present there; [f]ailing to exercise reasonably [sic] control; [f]ailing to exercise reasonable care under the conditions then and there existing; [f]ailing to operate at a speed which was reasonable and proper under the circumstances; [o]therwise failing to act within a reasonable degree of prudence and care in the circumstances.

As to Mathy and Rogers only, the complaints alleged they breached their duty of care by

 

placing David Holmes in a perilous situation; … passing David Holmes in a construction zone; … leading other traffic past David Holmes in a construction zone and on a one-lane road; [f]ailing to yield the right of way; … leading others to a position where they would or could fail to yield the right of way; [f]ailing to maintain a proper lookout; … leading others to a position where they might fail to maintain a proper lookout; [f]ailing to keep an assured distance ahead; … leading others to a position where they might fail to maintain an assured clear distance ahead; [e]ntering a one-lane construction zone with a bicyclist already present there; … leading other traffic into a one-lane construction zone with a bicyclist already present there; [f]ailing to exercise reasonably [sic] control; … placing other traffic in a positions [sic] where they might fail to exercise reasonable control; [f]ailing to exercise reasonable care under the conditions then and there existing; … leading other traffic into a position where they might fail to exercise reasonable care under the conditions then and there existing; [f]ailing to operate at a speed which was reasonable and proper under the circumstances; … leading other traffic into a position where they might fail to operate a speed which was reasonable and proper under the circumstances; [f]ailing to adequately supervise and/or control traffic within a construction zone; [o]therwise failing to act within a reasonable degree of prudence and care under the circumstances[.]

 

¶ 19 The excerpts above show that the claims against Mathy and Rogers were not caused in whole or in part by the negligence of Dan-Ash’s subcontractors, RT & T and Hartmann. Mathy’s and Rogers’ alleged negligence stemmed from Rogers’ conduct in leading traffic past the bicyclist Holmes in a one-lane construction zone-a basis for negligence unrelated to the work of the hauling agreement or Hartmann’s operation of a truck used to perform the work of the agreement. While some of the allegations of negligence against Mathy and Rogers are identical to those against RT & T and Hartmann-“passing David Holmes … in a construction zone … failing to yield the right of way,” etc.-Mathy and Rogers are alleged to be negligent for Rogers’ conduct, not the conduct of RT & T and Hartmann. Thus, we conclude that the claims against Mathy and Rogers do not trigger Dan-Ash’s duty to defend and indemnify under the indemnification agreement.

 

Dan-Ash also points to extrinsic evidence that appears to confirm this interpretation of the indemnification agreement. Mathy’s General Counsel David Coriden, the drafter of the hauling agreement, testified that the intent of the indemnification section was to protect Mathy from liability that might flow to it from work under the hauling agreement, not to require Dan-Ash to cover Mathy for Mathy’s own causal negligence. However, our analysis has not taken this evidence into account, because we have concluded that the agreement is not ambiguous. Stone v. Acuity, 2008 WI 30, ¶ 67, 308 Wis.2d 558, 747 N.W.2d 149 (“If the agreement is not ambiguous, ascertaining the parties’ intent ends with the four corners of the contract, without consideration of extrinsic evidence .”) (citation omitted).

 

¶ 20 Mathy next contends that West Bend breached its duty to defend Mathy as a listed “additional insured” under Dan-Ash’s policy with West Bend, and seeks recovery from West Bend as an additional insured for the costs to defend and settle the Iowa claims. West Bend’s policy limits coverage for the additional insured to “liability arising out of: a. Your [Dan-Ash’s] premises; b. ‘Your [Dan-Ash’s] work’ for that additional insured; or c. Acts or omissions of the additional insured in connection with the general supervision of ‘your [Dan-Ash’s] work.’ “ The policy defines “your work,” referring to the work of the primary insured, Dan-Ash, as “a. Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations.”

 

¶ 21 We conclude that Mathy’s coverage as an additional insured is not triggered by the Iowa claims because Mathy’s liability does not arise out of Dan-Ash’s work for Mathy or Mathy’s acts or omissions in connection with its supervision of Dan-Ash’s work. As explained, Mathy’s liability in this case arose from Rogers’ operation of the pilot car in leading the traffic past the bicyclist Holmes on a one-lane road in a construction zone; its liability was unrelated to Dan-Ash’s work.

 

CONCLUSION

 

¶ 22 In sum, we conclude that the claims against Mathy in the Iowa suits do not trigger Dan-Ash’s duty to defend and indemnify Mathy under the indemnification agreement. We further conclude that the claims in the Iowa suits do not trigger West Bend’s duty to defend Mathy as an additional insured on Dan-Ash’s policy with West Bend. Thus, we conclude that Dan-Ash and West Bend are entitled to judgment as a matter of law, and affirm the circuit court’s order granting Dan-Ash and West Bend’s motion for summary judgment and denying Mathy’s motion for summary judgment.

 

Order affirmed.

 

Not recommended for publication in the official reports.

United States District Court, W.D. Kentucky,

at Louisiville.

MAFCOTE INDUSTRIES, INC., d/b/a Miami Wabash Paper, LLC, d/b/a Royal Consumer Products, LLC, Plaintiffs

v.

ESTES EXPRESS LINES, INC., Defendant.

Civil Action No. 3:07-CV-419-S.

 

March 8, 2010.

 

MEMORANDUM OPINION

 

CHARLES R. SIMPSON, III, District Judge.

 

Miami Wabash Paper and Royal Consumer Products (wholly owned subsidiaries of Mafcote Industries) hired Estes Express Lines to transport products to their customers. On a number of occasions Estes did not effectuate delivery until after deadlines to which the plaintiffs and their customers had agreed, resulting in the plaintiffs being assessed tens of thousands of dollars in late fees. Thus Mafcote and its subsidiaries instituted this suit in state court, in which they blame Estes for the delays and seek to hold it legally responsible for the consequences thereof. Estes removed the case to this court, asserting both diversity of citizenship and that the case presents a federal question because it is allegedly governed in part by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, et seq. Estes disclaims liability on various grounds, and has counterclaimed for something north of $225,000 in unpaid fees for its transportation services. It has now moved for summary judgment both as to Mafcote’s claims against it and as to its own counterclaim.

 

A party moving for summary judgment has the burden of showing that there are no genuine issues of material fact and that the movant is therefore entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-60 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. The disputed issue need not be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in the light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). We address Estes’s two summary judgment motions in turn.

 

I

 

Estes argues that its shipping contracts with Mafcote were governed by its EXLA 105-L Rules Tariff, which sets out the conditions it places upon its various services. Specifically, Item 490 of Estes’s tariff provides (in pertinent part) as follows:

 

In no event will carrier be liable for any special or consequential damages arising from delay in delivery. Carrier makes no guarantees or warranties concerning delivery time. Any prior or contemporaneous representations regarding delivery schedules are acknowledged not to be binding on either party.

 

(Ex. A to Wilder Aff.) If this provision controls the parties’ relationship, plaintiffs cannot recover. The products themselves were not damaged or made less valuable by the delay in delivery. Plaintiffs have not claimed any actual damages; they seek only consequential damages in the form of a third-party late fees. So we must decide whether the Rules Tariff binds the parties. It does.

 

We note that carriers are free to limit or exclude liability for consequential damages unless some statute stands in their way. See, e.g., Kesel v. UPS, 2002 U.S. Dist. LEXIS 12350, at * 19 (N.D.Cal. Jan. 16, 2002) (enforcing a clause reading, “UPS shall not be liable for any special, incidental or consequential damages”).

 

Compare Paper Magic Group, Inc. v. J.B. Hunt Transp., Inc., 2001 U.S. Dist. LEXIS 13494 (E.D.Pa. Aug. 29, 2001), aff’d,318 F.3d 458 (3d Cir.2003) (concluding that a shipment of 1998 Christmas cards was actually damaged when delivery was delayed until February 1999, at which point they could no longer be profitably sold).

 

Mafcote’s statement that it “believes damages caused by failure to deliver with reasonable dispatch to be freight losses, and actual damage” (Resp.12) is conclusory, unsupported, and unpersuasive.

 

Plaintiffs’ shipments with Estes are governed collectively by an “Agreement for Transportation”  and individually by bills of lading. The overarching contract makes no mention of the tariff, but the bills of lading (each of which was apparently drafted and provided by the plaintiff-shipper) do. Specifically, the two sample bills (Ex. C, D to Wilder Aff.) both contain the following paragraphs (emphasis added):

 

The Agreement for Transportation is dated September 1, 2000, but neither side disputes that it applies here; indeed, both parties have submitted it as an exhibit. We suppose that it automatically renewed in accordance with its terms and remained in effect at the relevant times.

 

The record contains copies of only two bills of lading (one each in the name of Royal and Miami Wabash), but no one disputes that they are representative of the whole set.

 

It is mutually agreed, as to each carrier … that every service to be performed hereunder shall be subject to all the terms and conditions of the Uniform Domestic Straight Bill of Lading set forth … in the applicable motorcarrier classification or tarif if this is a motorcarrier shipment.

 

Shipper hereby certifies that he is familiar with all the terms and conditions of the said bill of lading, including those written on the back thereof, set forth in the classification or tariff which governs the transportation of this shipment, and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns. This language unambiguously incorporates the carrier’s tariff into the agreement,  so to survive summary judgment the plaintiffs must attempt to get out from under it.

 

Additionally, when picking up a shipment, an Estes agent would typically affix to the bill of lading a “PRO sticker,” which bore the statement: “Driver’s signature ONLY acknowledges receipt of freight. Shipment is subject to applicable terms and conditions of the Uniform Straight Bill of Lading and the EXLA-105 series rules tariff.” (See Ex. C. to Wilder Aff.) While are not convinced that this sticker on its own would be sufficient to incorporate the tariff, it is further evidence that the plaintiffs and their agents ought to have been aware of the tariff’s existence and effects.

 

They cannot do so. First they observe that the bills of lading contain, in addition to the above-quoted language, statements that “the delivery dates herein specified shall be deemed of the essence and the carrier shall be liable for consequential damages to the shipper or consignee for late delivery.” This provision would have some force, and would create a tricky question of contract interpretation (what to do when a contract and an incorporated document contradict one another?), but as it happens the bills of lading do not articulate any delivery date. To be sure, they contain shipping dates, but neither one indicates a date on which delivery was required. The “of the essence” terms are without enforceable meaning.

 

Second, plaintiffs cite Hillenbrand Indus., Inc. v. Con-Way Transp. Servs., Inc., 2002 U.S. Dist. LEXIS 12417, at *20-21 (S.D. Ind. June 19, 2002) for the idea that a reference to “the applicable tariff” in a shipping order (tendered in lieu of a bill of lading) is merely “a vague statement, obviously used formulaically on every Hillenbrand shipping order no matter the carrier[, that] does not show that Hillenbrand had actual notice of the liability limitation at issue.” But the plaintiffs need not have had actual knowledge to be bound by a tariff expressly incorporated by their own bills of lading. Hillenbrand was a case in which a part of a shipment never reached its intended destination. The shipper sought to recover the value of the lost products, in accordance with the Carmack Amendment’s general rule that a carrier is absolutely liable for the “actual loss or injury to the property caused by” the carrier. 49 U.S.C. § 14706(a)(1); Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060, 1063 (7th Cir.2000). A carrier can limit its liability for actual damage to a product if it meets certain requirements, which include “obtain[ing] the shipper’s agreement as to [the shipper’s] choice of liability” and “giv[ing] the shipper a reasonable opportunity to choose between two or more levels of liability.”   Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir.2006) (citations omitted). Hillenbrand held only that a reference to the tariff in the shipping order was insufficient to establish that the shipper had agreed to a level of liability after being given a reasonable opportunity to choose between several. We are not in the same situation here, because the Carmack Amendment rules apply only where the goods being shipped are lost or damaged. The plaintiffs’ goods were not lost, and the only damages alleged in the complaint accrued as the result of fees assessed by a third party. There is no evidence that the goods were made less saleable or valuable in and of themselves as a result of the delay; the fees were apparently assessed only in order to encourage prompt delivery. Consequently the Carmack Amendment does not cover the damages alleged here, and Estes has no need to fulfill the elements spelled out in Emerson to claim protection under its tariff. The tariff controls, and bars the plaintiffs from recovering the damages alleged in the complaint. Summary judgment for the defense is warranted.

 

II

 

Estes has asserted a counterclaim for a total of $226,450.29 in unpaid transportation charges. Of this sum, $66,344.71 is ascribed to Royal and $160,105.58 to Miami Wabash. (Mot. for Summ. J. 3 & n. 2; Belcher Aff. ¶ 9.) These charges fall under three headings: original freight charges, discount removals, and collection charges. Estes explains that it initially charged the defendants a discounted shipping rate, but that it assesses a 10% ($21 minimum per shipment) service charge if a bill remains unpaid 30 days after issuance of the invoice. Once an invoice is more than 30 days past due, Estes sends written notification of that fact. If the bill remains unpaid 15 days after signed receipt of the late notice or 20 days after Estes sent the notice, the shipper is charged the full, undiscounted shipping rate. So the first category of damages alleged is what Estes originally expected the defendants to pay, and the second is the difference between the discounted rate and the full charge. Finally, if Estes elects to proceed with a legal action or to refer delinquent charges to a collection agency, it adds a 30% fee on top of what is otherwise owed. (Mot. for Summ. J. 6; Ex. B. to Belcher Aff., Rules Tariff Item 720.) As we explained above, Estes’s Rules Tariff was incorporated into each bill of lading through language written by Mafcote itself, so all these charges apply unless contradicted by some other controlling authority.

 

The original complaint sought $228,487.30, but Estes subsequently determined the actual amount to be less. (Mot. for Summ. J. 1, 3 & nn. 1-2.)

 

It’s important here to distinguish between the subsidiary companies and the parent. Estes cannot hold Mafcote liable on its subsidiaries’ debts unless it can “pierce the corporate veil.” See, e.g., Louisville/Jefferson County Metro Gov’t v. Hornblower Marine Servs., No. 3:06-CV-348, 2009 U.S. Dist. LEXIS 92351 (W.D.Ky. Oct. 1, 2009). It has to this point raised no piercing argument.

 

Royal is alleged to owe $23,212.55 in freight charges $27,821.84 in discount removals, and $15,310.32 in collection fees. Miami Wabash is alleged to owe $54,878.56, $68,279.58, and $36,947.44, respectively.

 

Royal does not contest any of the original charges against it. (See Pl.’s Resp. to Interrogs. 4-6.) Miami Wabash, however, claims never to have received 55 of the invoices for which Estes seeks to hold it responsible, and therefore argues that it owes only $29,387.63. (See id.) That denial, backed up only by a copy of an “Account Detail Report” marked up by Steve Gilliland (whose identity is unclear and who was not, so far as we can tell, under oath when he reviewed the report), is not sufficient to create a material question of fact as to the amount of Miami Wabash’s debt. Moreover, the mere fact that an invoice was not on file with Miami Wabash at some later date is not evidence that the money was not due. The record contains no affidavits or other testimony that would establish that the disputed amounts were either improperly billed or not owed at all. Consequently Wendy Belcher’s sworn affidavit, written in her capacity as Estes’s Credit Manager, is sufficient to establish damages as to this portion of Estes’s claim. Miami Wabash has failed to create a genuine question of fact, and summary judgment is warranted against both Royal and Miami Wabash with respect to the whole of the original freight charges.

 

We turn to the discount removals. This issue is dispatched easily. The Agreement for Transportation between the parties -the overarching contract that governed the whole of the relationship-states unambiguously that “CARRIER agrees that no penalties; loss of discount or interest will be assessed to SHIPPER for past due amounts.” (Ex. E to Wilder Aff. (emphasis added).) And while Estes argues that the Rules Tariff controls in the event of conflict, the tariff itself provides that “[t]he Rules, and Charges provided in connection with such rules, published in this tariff will NOT apply[ ] to the extent conflicting provisions have been established either by written agreement or contractual arrangement with specific accounts and are maintained in the Offices of the carrier….” (Pl.’s Ex. 2, Rules Tariff Item 163.) Estes makes no effort to get around this clause. The discount removals are not recoverable by the plain terms of the parties’ contracts. The court will grant summary judgment sua sponte to Royal and Miami Wabash in this respect.

 

Although the Agreement is nominally between Estes and Mafcote, all parties treat it at various times as governing everyone involved. We thus assume that it binds Royal and Miami Wabash.

 

Next we come to the 30% charge that Estes assessed because it had to bring its complaints to court. Royal and Miami Wabash argue that this is a “penalty” that Estes is not entitled to recover under the Transportation Agreement. Estes asserts that it is something else-a collection fee. We first note that the term “penalty” in the agreement does not appear to carry the same meaning as it does in ordinary contract law. A “penalty” is generally defined as a “term fixing unreasonably large liquidated damages” for breach. Restatement (Second) of Contracts § 356(1). Such a provision is unenforceable on grounds of public policy; no specific contract term is needed to avoid it. But the contract here does not envision a charge assessed for breach. It envisions a surcharge on “past due amounts.” The definition is thus broader than in normal legal usage. Bearing this in mind, the court is of opinion that the “collection fee” is a penalty within the meaning of the transportation agreement provision quoted above. It is assessed only once an account is overdue to the point of Estes having to resort to legal action, and penalizes the shipper for allowing itself to fall so far behind in its accounts. Because Estes contracted away its right to enforce such a clause, the court will also grant summary judgment sua sponte here.

 

Finally, Estes has requested an award of prejudgment interest, which courts normally award in cases of nonpayment of freight charges. See Coliseum Cartage Co. v. Rubbermaid Statesville, Inc., 975 F.2d 1022, 1026 (4th Cir.1992); 2 Saul Sorkin, Goods in Transit § 11.07. Here, however, Estes has bargained away its right to collect interest on past due amounts. It is not entitled to more than the benefit of that bargain. Its recovery will therefore be limited to the discounted freight charges that remain in arrears.

 

The court will issue a separate order in accordance with this opinion.