United States District Court,

E.D. Pennsylvania.

CANAL INSURANCE CO., Plaintiff,

v.

UNDERWRITERS AT LLOYD’S LONDON, Defendant.

Aug. 25, 2004.

MEMORANDUM

ROBRENO, J.

I. INTRODUCTION

This declaratory action arises out of a coverage dispute between two insurance companies. The subject of the dispute involves a 1996 Kenworth tractor, serial no. 1XKAD69XOTJ682926 (hereinafter the “Tractor”), owned by Sukhjit Singh (“Mr.Singh”). During the relevant period, Mr. Singh was an independent trucker who leased his vehicle to BIR Transport Co. (“BIR”), a motor carrier, pursuant to a leasing agreement.

One of the insurance companies involved in the dispute, plaintiff Canal Insurance Co. (“Canal”), issued a “Business Auto Policy” naming BIR as an insured and the Tractor as a covered vehicle. The other insurance company, defendant Underwriters at Lloyd’s London (“Underwriters”), issued a “Non-trucking Liability Insurance Policy” naming Mr. Singh as the insured and also listing the Tractor as a covered vehicle.

While both policies were in effect, the Tractor was involved in an automobile accident, which gave rise to a lawsuit in state court where BIR, Mr. Singh, and the driver of the Tractor at the time of the accident were named as defendants. Canal settled the state action for $58,500 in exchange for a release in favor of BIR, Mr. Singh, and the driver. Underwriters refused to defend the defendants in the state action and refused to indemnify Canal. Canal now seeks indemnification from Underwriters in this action for the monies it spent defending and indemnifying defendants in the state action.

The issue before the Court is whether the Underwriters policy provides coverage for the liability caused by the accident involving the Tractor. If so, Canal is entitled to indemnification from Underwriters. Canal has brought this declaratory judgment action and the parties, after discovery, have filed cross-motions for summary judgment. [FN1]

FN1. When confronted with cross-motions for summary judgment “the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” 10A Charles A. Wright, Arthur R. Miller & Mary Kane, Federal Practice and Procedure § 2720 (1998). Thus, with respect to each party, summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). An issue is genuine only if the evidence is such that a reasonable jury could find for the non-moving party. Id. at 251-52. In making this determination, a court must draw all reasonable inferences in favor of the non-movant. See Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 79 L.Ed.2d 910, 104 S.Ct. 2144 (1984). Thus, summary judgment should be granted only if no reasonable trier of fact could find for the non-moving party. See id.; Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir.1989).

II. FACTS AND DISCUSSION

A. Facts Surrounding the Accident. [FN2]

FN2. These facts are undisputed.

On or about April 23, 2000, Mr. Singh instructed one of his associates to drive the Tractor from Harrisburg, Pennsylvania to a dealership in Chester, Pennsylvania for the purpose of selling the Tractor or trading it in for a new tractor. Mr. Singh’s intention was to trade in the Tractor and get a new one, [FN3] and then try to get a load in the area for delivery on behalf of BIR. BIR was made aware of the plans to go to Chester, but it is undisputed that BIR did not dispatch the Tractor from Harrisburg to Chester. However, in case a dispatch were to become available in the Chester area, Mr. Singh directed that an empty trailer be attached to the Tractor as it traveled to Chester. While en route to Chester, the Tractor was involved in the automobile accident which gave rise to the lawsuit in state court. Ultimately, Canal paid out $85,959.42 in fees, litigation costs, and settlement amounts.

FN3. In his deposition, Mr. Singh stated that he wanted to trade in or sell the Tractor,

because this truck required too much repair on it. Spending–spent too much money on the engine. So, I don’t want to spend anymore. Buy a new one. Dep. Tr., at 12.

B. Underwriters’ Motion for Summary Judgment.

The Underwriters policy names Mr. Singh as the insured and lists the Tractor as a covered vehicle under the policy. However, the policy excludes from coverage certain “[b]usiness use[s].” Specifically, exclusion 8 of the policy provides that the insurance does not cover:

[a] covered automobile while it is engaged in Business Use, such as proceeding to any location, pursuant to the request, direction, control and/or dispatch, of any person or entity other than the Insured, or complying with any term of a presently effective, written lease with a motor carrier.

Resp. Mot. Sum. Judg., at Exhibit D. Further, in a section entitled “Definitions,” the policy provides as follows:

“Business Use” includes, but is not limited to, any use of the auto that promotes the business purposes of the Insured or the purposes of a written, permanent lease that the Insured has signed with a motor carrier such as hauling a load for the motor carrier, being under the request, direction, control and/or dispatch to haul a load for the motor carrier or the pick-up a load, laying over on the road to await pick-up of a load or traveling for the purposes of repairing or maintaining the covered auto. The foregoing examples of “Business Use” are illustrative and not exhaustive.

Id. (emphasis added).

Therefore, if at the time of the accident, the insured’s (Mr. Singh’s) listed vehicle (the Tractor) was engaged in activity that “promote[d] the business purposes of the Insured,” the exclusion applies and coverage was properly denied by Underwriters. Reduced to its essence, the Court must answer, based upon the undisputed facts, three questions:

1. Who is the insured?

2. What is the business of the insured?; and

3. Did the trip from Harrisburg, Pennsylvania to Chester, Pennsylvania “promote the business purposes of the [i]nsured”?

To answer these questions, the Court turns to the Canal policy itself.

The parties agree that Pennsylvania law governs consideration of the Canal policy. Where an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense. Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). As noted by the Pennsylvania Supreme Court in Madison, the principles of insurance contract interpretation are well-settled:

The task of interpreting an insurance contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. [A court] will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.

735 A.2d at 106 (internal citations and quotations omitted).

One, under the Canal policy, Mr. Singh is the named insured. Although BIR is apparently an affiliated entity, and the release from the state action ran to BIR as well as Mr. Singh, under the plain language of the policy, Mr. Singh is the named insured and BIR is not.

Two, the record shows that Mr. Singh is an independent trucker in the business of leasing his tractors to BIR. By contrast, BIR operates as a “motor carrier.” See Prestige Casualty Co. v. Michigan Mutual Ins. Co., 99 F.3d 1340, 1342- 1343 (6th Cir.1996) (summarizing that “motor carriers,” who commonly lease equipment from independent contractors, are persons engaged in the transportation of property as a common or contract carrier). Since Mr. Singh is the named insured under the Canal policy, the business of the insured under the policy is Mr. Singh’s truck leasing business, and not BIR’s motor carrier business.

Three, the trip from Harrisburg, Pennsylvania to Chester, Pennsylvania “promote[d]” Mr. Singh’s truck leasing business. “Words of common usage in an insurance policy are to be construed in their natural, plain, and ordinary sense … [and the court may] inform [its] understanding of these terms by considering their dictionary definitions.” Madison, 735 A.2d at 108. The term “promotes” is defined in Webster’s Ninth Collegiate Dictionary (1990) as “to contribute to the growth or prosperity of” or “furthers.” It is beyond argument that trading up one tractor for another (or attempting to do so) “further[ed]” or “contribute[d] to the growth or prosperity of” Mr. Singh’s truck leasing business.

Since Mr. Singh is the insured, engaged in the business of leasing tractors, and further since the act of traveling from Harrisburg to Chester “contribute [d] to the growth or prosperity of” or “further[ed]” i.e., “promote[d]” the business purposes of Mr. Singh’s leasing business, the losses resulting from the accident fall within the exclusion of the Underwriters policy. Under the undisputed facts, Underwriters is entitled to summary judgment. [FN4]

FN4. In addition to the argument that coverage was properly denied under exclusion 8 of its policy, Underwriters argues that coverage was also properly denied because Mr. Singh, as the insured, failed to procure an “effective” lease agreement with BIR for the Tractor, a condition precedent to coverage Underwriters’ view. Underwriters further argues that coverage under its policy was secondary to coverage under Canal’s policy. Because the Court finds that coverage was properly denied under the “Business Use” exclusion of Underwriters’ policy, the Court need not address these issues.

C. Canal’s Motion for Summary Judgment.

Rather than offering a reasonable alternative interpretation, Canal argues that the phrase “promotes the business purposes of the Insured” is ambiguous and unclear as demonstrated by the uncertainty in coverage presented by the following hypothetical: if the Tractor were being driven to the grocery store with an empty trailer in tow, and on a whim, the driver decided to trade it in or sell it at a dealership or buy a quart of oil for the Tractor, Lloyd could deny coverage under its business use exclusion because the Tractor was used to promote the business purposes of the insured. The Court shall construe this hypothetical as an argument that the sweep of the exclusion renders it ambiguous.

In Madison, an insured made a similar argument before the Supreme Court of Pennsylvania with regard to an exclusion clause in a general commercial liability policy. 735 A.2d at 100. At issue there was whether the term “pollutants” in an exclusion, which provided that the policy did not provide coverage for bodily injury caused by the “discharge, dispersal, seepage, migration, release or escape of pollutants,” was ambiguous. Id. at 102-03. The insured argued that the term was ambiguous because, as summarized by the court, the term “is so broad that virtually any substance, including many useful and necessary products, could be said to come within its ambit.” Id. at 107.

The Supreme Court of Pennsylvania rejected this approach teaching instead that a court’s inquiry into the matter should be “guided by the principle that ambiguity (or the lack thereof) is to be determined by reference to a particular set of facts.” Id. (emphasis added). Applying these teachings, the Pennsylvania Supreme Court in Madison found that, under the particular facts of the case (and not by reference to some general hypothetical), the exclusion at issue applied to the substance in question. Id. at 108.

Similarly here, the issue is not whether under certain facts hypothesized by plaintiff the exclusion may or may not apply. The issue is whether under the specific facts of this case the insurer has met its burden of establishing that the exclusion applies. Madison precludes plaintiff’s argument that, because under some extreme facts the applicability of the exclusion is less than certain, the exclusion should be deemed categorically ambiguous.

Canal also argues that Underwriter’s position is precluded by the doctrine of “reasonable expectations of the insured” as that doctrine has developed under Pennsylvania law. The Court disagrees. The Supreme Court of Pennsylvania has held that the “polestar” for determining the parties’ intent is the language of the policy itself. Madison, 735 A.2d at 106. To that end, the Superior Court of Pennsylvania has noted that, “generally, courts cannot invoke the reasonable expectation doctrine to create an ambiguity where the policy itself is unambiguous.” Matcon Diamond v. Pennsylvania Nat’l Ins. Co., 2003 Pa.Super. 22, 815 A.2d 1109, 1114 (2003) (citing Williams v. Nationwide Mut. Ins. Co., 2000 Pa.Super. 110, 750 A.2d 881, 886 (2000)). As recognized by the Matcon court, the highest court in Pennsylvania has limited the argument that the reasonable expectations of the insured trump the clear and unambiguous language of a policy to two occasions: (1) protecting non-commercial insureds from policy terms which are not readily apparent; and (2) protecting non-commercial insureds from deception by insurance agents. Id. (citing Madison, 735 A.2d at 109 n. 8).

In the instant case, plaintiff has advanced no argument that Underwriters’ policy terms were not readily apparent or that there was deception by the insurance agents. Given that none of the recognized exceptions to the general principles of insurance policy interpretation has been invoked by Canal, the Court declines to look beyond the plain and unambiguous language of the policy in order to scrutinize what Mr. Singh’s expectations may have been regarding coverage. [FN5]

FN5. Plaintiff also argues that public policy supports its argument that the phrase is ambiguous. For this proposition, plaintiff cites Lincoln General Ins. v. Liberty Mut. Ins. Co., 2002 Pa.Super. 208, 804 A.2d 661 (Pa.Super.2002) and Connecticut Indemnity Co. v. Stringfellow, 956 F.Supp. 553 (M.D.Pa.1997). The Court will assume that indeed there is a public policy to ensure a source of compensation for injured parties when a lease agreement, common in the trucking industry, might create confusion over who would be responsible for accidents. However, there are statutory and regulatory mandates, such as those discussed in Prestige Casualty, 99 F.3d at 1342 and Carolina Casualty Ins. Co. v. Ins. Co. Of North America, 595 F.2d 128, 134-35 (3d Cir.1979) in place in recognition of this policy. Moreover, given that the injured parties in this case have already been compensated, the public policy favoring compensation has been vindicated.

Finding that there are no genuine issues of material fact, and that exclusion 8 of the Underwriters policy applies to the incident involving the Tractor, the Court concludes that coverage was properly denied by Underwriters. Therefore, Canal’s motion for summary judgment is denied.

III. CONCLUSION

Based on the foregoing, defendant Underwriters’ motion for summary judgment is granted. Plaintiff Canal’s cross motion for summary judgment is denied.

United States District Court,

C.D. California.

ATLANTIC MUTUAL INSURANCE COMPANY, Plaintiff,

v.

YASUTOMI WAREHOUSING AND DISTRIBUTION, INC., Defendant.

Filed Dec. 10, 2002.

July 8, 2004.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

BAIRD, J.

I. INTRODUCTION

Plaintiff Atlantic Mutual Insurance Company (“Atlantic”) filed suit against Defendant Yasumtomi Warehousing and Distribution, Inc. (“Yasumtomi”) seeking reimbursement from Yasumtomi for a payment Atlantic made to its insured, Unirex Corporation (“Unirex”), after Unirex’s shipping container was stolen. Yasumtomi has filed the instant partial summary judgment motion against Atlantic seeking a finding that Atlantic’s damages are limited to $0.50 per pound pursuant to the terms of its bill of lading and that the Carmack Amendment preempts Atlantic’s state law claims.

II. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Defendant Yasutomi Warehousing and Distribution transported cargo for Unirex Corporation from approximately 1999 to 2002. Oda Decl. ¶ 4. For every transaction with Unirex, Defendant used an identical bill of lading which limited its liability, stating: “Unless indicated the released value is agreed to be $50.00 per shipment or 50 cents per L.B. Excess valuation charges will be 10 cents per $100.00 valuation.” Oda Decl. ¶ 9. Between May 26, 2000 and April 6, 2001, Defendant delivered approximately 101 containers along with 101 identical bills of lading. Oda Decl. ¶ 10. From 1999 to 2002, Unirex never declared a value other than the stated released value, indicated on Defendant’s bill of lading. Id.

On April 3, 2001, Defendant received an order to retrieve and deliver five shipping containers from the Port of Long Beach to Unirex’s facility in Vernon, California. Oda Decl. ¶ 5. The containers originated from Hong Kong. Id.; Oda Decl., Exhibit 1. Defendant delivered four of the five containers on April 5 and 6, 2001, all without incident and with the same bills of lading. Oda Decl. ¶ 6. Defendant could not deliver the fifth and final container until approximately 5:00pm on April 6, 2001, because of delays. Oda Decl. ¶ 7. Unirex did not want to pay its workers overtime, so it instructed Defendant to hold the container in Defendant’s facility over the weekend and deliver it to Unirex on Monday, April 9, 2001. Oda Decl. ¶ 7. The container, the chassis on which it was mounted, and a tractor were stolen from Defendant’s facility sometime between the evening of Friday, April 6, 2001 and the morning of Monday, April 9, 2001. Oda Decl. ¶ 8. Defendant’s fifth and final bill of lading was misplaced and not delivered to Unirex. Oda Decl. ¶ 9. Plaintiff became subrogated to the instant matter after making a payment to Unirex, its insured. Compl. ¶ 7.

B. Procedural History

Plaintiff Atlantic Mutual filed its complaint on December 10, 2002, alleging claims for damage to cargo, negligence, breach of contract, breach of duty to care for property in bailment, breach of warranty and declaratory relief. Defendant filed its answer on May 29, 2003, denying the allegations of the complaint and raising various affirmative defenses. On May 26, 2004, Defendant filed this Motion for Partial Summary Judgment. Atlantic has failed to oppose Yasumtomi’s motion for partial summary judgment. [FN1]

III. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment 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 judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

The party moving for summary judgment bears the initial burden of informing the district court of the basis of the summary judgment motion and of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Katz v. Children’s Hosp. of Orange County, 28 F.3d 1520, 1534 (9th Cir.1994). On an issue for which the nonmoving party has the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.

Once this initial burden is satisfied, the non-moving party is required to “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate ‘specific facts’ showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations omitted); see also Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1544 (9th Cir.1988). Where the standard of proof at trial is preponderance of the evidence, the non-moving party’s evidence must be such that a “fair-minded jury could return a verdict for the [non-moving party] on the evidence presented.” Anderson, 477 U.S. at 252.

The court views all facts and draws all inferences therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962). The Court must accept the plaintiff’s view of all material disputed facts. LaLonde v. County of Riverside, 204 F.3d 947, 954 (2000). If, however, the nonmoving party’s evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at 249-50.

IV. ANALYSIS

The fact that no opposition is filed does not excuse the moving party from meeting its burden for summary judgment. See Federal Rule of Civil Procedure 56(e); Anchorage Assocs. v. Virgin Islands Board of Tax Review, 922 F.2d 168, 175 (3rd Cir.1990).

Under the Carmack Amendment, 49 U.S.C. § 14706(a), a motor carrier is liable for the actual loss or injury to property it carries in interstate commerce unless otherwise agreed with the shipper. See, e.g., Hughes Aircraft Co. v. North American Van Lines, Inc., 970 F.2d 609, 613 (9th Cir.1992). The Carmack Amendment also applies to the inland leg of an overseas shipment, even if that leg is entirely intrastate. Chubb Group of Insurance Cos. v. H.A. Transp., Sys., Inc., 243 F.Supp.2d 1064, 1068 n. 3 (C.D.Cal.2002). The Carmack Amendment absolutely preempts all state common law claims against carriers. Id. at 1068.

A motor carrier may limit its liability by entering into a contract with the shipper, agreeing to limit the carrier’s liability. 49 U.S.C. § 14101(b)(1). In order to limit its liability, a carrier must: (1) obtain an agreement with the shipper based on a choice of liability; (2) give the shipper a reasonable opportunity to choose between levels of liability; and (3) issue a bill of lading prior to shipment. [FN2] Consolidated Freightways Corp., 2003 WL 22159468 at 3; 3 Sorkin, Goods In Transit, § 13.04, pp. 13-72 to 13-72.1 (2004). A bill of lading containing the requisite language will constitute prima facie evidence that the shipper was offered a choice of rates. Goods In Transit, § 13.04[3], pp. 13-93 to 13-94. Failure to issue a bill of lading does not affect the liability of a carrier. 49 U.S.C. § 14706(a)(1). As long as there is a “course of dealing,” courts have only required that the bill of lading clearly state the [monetary] limitation and the method for avoiding it. Royal Insurance Co. v. Sea-Land Service Incorporated, 50 F.3d 723, 728 (9th Cir.1995).

In Insurance Co. of North America v. NNR Aircargo Service, Inc., insurer Insurance Company of North America (“INA”), acting on behalf of its insured, Dunlop Slazenger Corporation (“Dunlop”), sued carrier NNR Aircargo Service (“NNR”) to recover for the loss of $257,285.34 in stolen golf balls. Insurance Co. of North America v. NNR Aircargo Service, Inc., 201 F.3d 1111, 1112 (9th Cir.2000). Two weeks after the golf balls were stolen, NNR sent an invoice to Dunlop that was identical in its terms and conditions to the previous forty-seven transactions between NNR and Dunlop. Id. The Ninth Circuit ruled that the invoice terms and conditions could supplement shipping agreements if there was a sufficient “course of dealing.” Id. at 1113. The Court defined “course of dealing” as “a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” Id. (citing Cal. Com.Code § 1205(1) (1964)). Considering that NNR and Dunlop used the identical invoice for the past forty-seven transactions, the Court ruled that NNR and Dunlop had developed a sufficient course of dealing to supplement its shipping agreements. Id. at 1114. Furthermore, the Court ruled that such a course of dealing should have put Dunlop on notice of the terms and conditions contained in the invoice, thus holding Dunlop and INA to the limited liability listed on NNR’s invoice. Id. at 1116.

In Chubb Group of Ins. Co. v. H.A. Trans. Sys., Inc., insurer Chubb Group of Insurance Companies (“Chubb”), acting as a subrogee of Cigarettes Cheaper!, sued the property broker, H.A. Transportation Systems, Inc. (“HA”), after a truck and trailer containing 1,200 cases of cigarettes from Spain were stolen. Chubb Group of Ins. Co. v. H.A. Trans. Sys., Inc., 243 F.Supp.2d 1064, 1066- 1067 (9th Cir.2002). HA was acting as the property broker for carriers Orozco Transportation, Inc. (“Orozco”) and R & G Trucking (“R & G”). Id. at 1067. Orozco subcontracted the load to R & G, and the cigarettes were stolen in a parking lot in South Gate, California while in route to Carson, California. Id. The Ninth Circuit ruled that the Carmack Amendment applies to “an inland leg of an overseas shipment regardless of whether the shipment is conducted under a single ‘through’ bill of lading or under separate bills of lading.” Id. at 1068 n. 3. Finally, the Court ruled that the Carmack Amendment preempts all state common law claims against such carriers. Id.

Defendant Yasutomi’s liability is limited under the Carmack Amendment. The shipment of goods originated in Hong Kong, and docked in Long Beach, California, before being delivered to Unirex. Defendant is a motor carrier within the definition of the Carmack Amendment. The fact that Defendant’s fifth and final bill of lading was “misplaced” is not fatal to Defendant’s motion for partial summary judgment. Defendant had 101 transactions with Unirex in the past year, using the exact same bill of lading for each transaction. Additionally, Defendant and Unirex conducted numerous transactions over a three-year period, from 1999 to 2003, using the same bill of lading. Before Unirex’s container was stolen, Defendant successfully transported four of the five containers to Unirex, accompanied by the identical bill of lading. Similar to Insurance Co. of North America v. NNR Aircargo Service, Inc., Defendant Yasutomi and Unirex possessed a sufficient and significant “course of dealing.” Because of this course of dealing, Plaintiff cannot claim that Unirex was without notice of the terms and conditions of the bill of lading. The Ninth Circuit has held that “actual possession of the bill of lading with the [liability] limit is not required before a party with an economic interest in the shipped goods can be held to the limitation.” Royal Insurance Co. v. Sea-Land Service, Inc., 50 F.3d 723, 727 (9th Cir.1995). Defendant and Unirex’s course of dealing created sufficient notice that Defendant’s liability would be limited in the event of theft or damage.

The fact that Unirex purchased insurance on its cargo demonstrates that it had notice about the limited liability contained in Defendant’s bill of lading. A party such as Unirex had an opportunity to make an informed choice between shipping with Defendant’s limited liability or by purchasing separate insurance, which Unirex did through Atlantic Mutual. The Ninth Circuit ruled that “the function served by notice of limited liability is accomplished if the shipper in fact purchases separate insurance, whether or not such notice is actually given.” Read-Rite Corp. v. Burlington Air Express, Ltd., 186 F.3d 1190, 1198 (9th Cir.1999). Unirex’s purchase of insurance through Plaintiff makes it clear that Defendant’s limited liability contained in its usual bill of lading is valid and enforceable.

The Carmack Amendment applies to the instant case, preempting all of Plaintiff’s state law claims of negligence, breach of contract, breach of duty to care, breach of warranty, and declaratory relief. The cargo originated from Hong Kong, and was intended for Unirex’s facility in Vernon, California. Even though the goods were stolen while “in transit” from Defendant’s facility in Long Beach, California, the Carmack Amendment applies. Just like Chubb, the cargo was stolen during an “inland leg of an overseas shipment,” even if it was entirely intrastate. Applying the Carmack Amendment, Plaintiff’s state law claims are all preempted. Additionally, pursuant to the bill of lading, Atlantic’s damages are limited to $0 .50 per pound of the lost goods. Therefore, Defendant’s motion for partial summary judgment is granted.

V. CONCLUSION

Defendant’s Motion for Partial Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

FN1. On June 15, 2004, this Court issued a Minute Order which provides, in relevant part:

Pursuant to this Court’s Standing Order … Plaintiff’s opposition to Defendant’s motion for partial summary judgment was due on June 7, 2004…. Failure to file an opposition by Thursday, June 17, 2004 at 5 p.m. will be considered non-opposition to the motion and may result in the Court granting Defendant’s Motion for Partial Summary Judgment.

June 15, 2004 Minute Order. Atlantic did not file an opposition by June 17, 2004.

FN2. The ICC Termination Act abolished an additional element requiring carriers to maintain an approved tariff. See Consolidated Freightways Corp. v. Travelers Ins. Co., No. 00-CV-20726, 2003 WL 22159468 at *3 (N.D.Cal. March 28, 2003).