Judicial District of New Haven.

David BURKE, Administrator of the Estate of Timothy Burke,

v.

DIAMOND GROUP d/b/a Beverage Transportation, Inc. et al.

Nov. 4, 2003.

ARNOLD, J.

Pursuant to Practice Book § 10-39, the defendant Diamond Group has moved to strike the Second Count of the plaintiff’s complaint to the extent that said Second Count seeks double or treble damages from the Diamond Group. Diamond Group argues that General Statutes § 14-295, which provides for double or treble damages, applies only to operators of motor vehicles and not to defendants whose sole liability is based on respondeat superior.

The present matter arises from a motor vehicle accident occurring on March 20, 2001, in which the plaintiff’s decedent was killed. Defendant Wilfredo Lopez was the operator of one of the vehicles involved in the accident. The plaintiff has alleged that Lopez was either negligent and/or reckless in causing the accident. The defendant Diamond Group has been named as a defendant solely on the basis of the alleged agency relationship between Lopez and the Diamond Group. The plaintiff has further alleged that Diamond Group is vicariously liable for double or treble damages pursuant to General Statutes § 14-295. The plaintiff has alleged that Lopez was operating a vehicle as “the agent, servant and/or employee of his employer, the defendant, The Diamond Group d/b/a Beverage Transportation, Inc., and was operating said tractor trailer with the full permission and authority of his employer, within the scope of his employment with the employer, in furtherance of the business of the employer and/or for the benefit of the employer.” The plaintiff has further alleged that Lopez caused the decedent’s injuries, losses and subsequent death by operating the tractor trailer truck with “reckless disregard in violation of General Statutes § 14-218a, § 14-219 and/or § 14-222.”

In ruling on a motion to strike the court first reviews the standard of law applicable to motions to strike. “The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint … to state a claim upon which relief can be granted.” Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if “the plaintiff’s complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law.” Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).

A motion to strike “admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis omitted.) Id. “A motion to strike is properly granted where a plaintiff’s complaint alleges legal conclusions unsupported by facts.” Id. “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike “is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged.” (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).

Upon deciding a motion to strike, the trial court must construe the “plaintiff’s complaint in [a] manner most favorable to sustaining its legal sufficiency.” Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). “The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail.” Mingachos v. CBS, Inc., supra, 196 Conn. at 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v.. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

The Diamond Group argues that General Statutes § 14-295 does not expressly impose vicarious liability on an owner. Connecticut Statutes § 14-295 provides “[i]n any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.” While recognizing that there is a split among the trial judges who have addressed the issue, Diamond maintains that the statute should be narrowly construed because it is punitive in nature. Diamond cites Maisenbacker v. Society Concordia, 71 Conn. 369, 379-80, 42 A. 67 (1899), for the common-law rule that the principal is not vicariously liable for punitive damages resulting from the acts of his agent. Diamond acknowledges that the Connecticut Supreme Court has created an exception to that rule when it determined liability for owner/lessors pursuant to General Statutes § 14-154a. General Statutes § 14-154a provides “[l]iability of owner for damage caused by rented or leased car. Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.” In Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984) the court determined that the treble damages provisions of § 14-295 were applicable to the lessor of a motor vehicle. However, Diamond claims that this exception does not apply to this case because Hunt is an employer, not a lessor.

Some analysis of the statutory scheme regulating motor vehicle operation is in order. General Statutes § 52-183 provides that, “In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of a motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”

“In accordance with established principles of statutory construction, our paramount objective is to ascertain and give effect to the apparent intent of the legislature … If the words of a statute are unambiguous, we assume that they express the legislature’s intent.” Stein v. Hillebrand, 240 Conn. 35, 39, 688 A.2d 1317 (1997). Public Act 03-154 states, “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of the text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” The court has reviewed the various cases recited by counsel in their briefs reflecting the split authority on this issue in the Superior Court. The court adopts the reasoning set forth in Zacru v. Keith, No. CV97 0057132S, judicial district of Ansonia-Milford at Milford (Jun. 26, 1997) (Flynn, J.), 19 CLR 663 which sets forth that the plain language of General Statutes § 52-183 creates a specific presumption of agency and, unless rebutted, evinces the legislature’s intent to permit an employer to be sued for the negligent and reckless operation of a motor vehicle by its employee.

It has sometimes been theorized that the law should not impose statutory punitive damage liability on an employer or vehicle owner for intentional acts of an employee in which the employer did not participate, since the effect of doing so unfairly punishes a non-culpable party and such multiple damages are not needed to deter a party who never participated in the conduct sought to be discouraged. Although, in tort cases, reckless conduct is a form of negligence since the actor does not intend the resulting harm, it is intentional in that the actor intentionally performs the reckless act knowing that kind of harm is strongly probable consequence.

Id.

In passing on a motion to strike, “[t]he court must construe the facts in the complaint most favorably to the plaintiff.” Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). Inferences to be drawn from the complaint must be given the construction most favorable to the non-movant. The complaint sets out a specification that the truck was recklessly operated at a speed which violated § 14-218a. If one infers that the owner of a commercial vehicle, rather than its driver, determined where and when the cargo it carried would be picked up and also set the delivery destination and time of its arrival, then owner rather than driver may have had more to do with the vehicle’s allegedly excessive speed. Punitive damages could deter such future conduct on the part of an owner of such a vehicle who, by setting too tight a schedule, intends that the speed limit be exceeded by its driver knowing that a collision, which it does not intend, is a strongly probable consequence.

Zacru v. Keith, supra.

Accordingly for the reasons set forth herein, the motion to strike is denied.

Sixth Circuit.

AMERICAN ROAD SERVICE COMPANY, Plaintiff-Appellant,

v.

CONSOLIDATED RAIL CORPORATION, Defendant-Appellee.

Argued Sept. 9, 2003.

Decided and Filed Nov. 6, 2003.

OPINION

RICHARD MILLS, District Judge.

American Road Services Company (“American”) filed a subrogation action against Consolidated Rail Corporation (“Conrail”) seeking compensation for damaged property.

The district court concluded that American’s complaint was untimely and entered summary judgment for Conrail.

We AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

Larry Krueger, a Ford Motor Company (“Ford”) employee, was stationed on an overseas work assignment in the Czech Republic. At the conclusion of his stay, his household goods and personal belongings were packed, crated, and placed in a container by Interdean, an international moving company, and shipped to port at Bremerhaven, Germany. Mark VII, an international transportation company, issued a bill of lading to Interdean and forwarded the goods overseas via Maersk Sea Lines to port at Newark, New Jersey. Conrail transported Krueger’s goods by rail to their final destination in Detroit, Michigan. Two days later, Conrail employees discovered that the 45-foot container holding Krueger’s goods had been broken into and set on fire. American, an affiliate of Ford, paid Krueger $182,587.60 for his loss.

On September 23, 1998, American notified Conrail of its intent to pursue subrogation and on January 25, 1999 gave notice of the final amount of the claim. Conrail denied the claim on June 8, 1999. [FN1] On October 18, 2000, American filed suit in district court alleging a negligence claim and a claim pursuant to the Carmack Amendment.

On March 13, 2002, the district court entered summary judgment in favor of Conrail because American’s complaint was untimely.

On appeal, American claims that the district court erred when it failed to provide American notice and an opportunity to respond before entering summary judgment sua sponte. American also claims genuine issues of material fact precluded summary judgment. Finally, American argues that the district court erred when it considered testimony of a witness who was not disclosed in accordance with Rule 26 of the Federal Rules of Civil Procedure.

II. ANALYSIS

A. Sua Sponte

American claims that the district court’s order granting judgment in favor of Conrail was inappropriate because the time for filing dispositive motions had expired. American claims that the court entered summary judgment sua sponte and did not allow American an opportunity to respond.

“The clearly established rule in this circuit is that a district court must afford the party against whom sua sponte summary judgment is to be entered ten days notice and an adequate opportunity to respond.” Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir.1984). “Noncompliance with the time provision of the rule deprives the court of authority to grant summary judgment, unless the opposing party has waived this requirement, or there has been no prejudice to the opposing party by the court’s failure to comply with this provision of the rule.” Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.2001) (quoting Kistner v. Califano, 579 F.2d 1004, 1006 (6th Cir.1978)).

At the final pretrial conference, according to both parties, the district court requested that the parties brief certain dispositive issues. At the end of Conrail’s Brief, Conrail requested “the entry of judgment as a matter of law.” American responded to the issues raised and asked the court to deny Conrail’s request for judgment.

American therefore had notice, was aware of the relevant issues, had an opportunity to respond and did in fact respond to Conrail’s request for judgment as a matter of law. Accordingly, the Court rejects American’s characterization of the judgment in this case as sua sponte. [FN2]

B. Genuine Issue of Material Fact

The district court found that the Mark VII bill of lading was a through bill of lading and that the Carmack Amendment’s two-year period of limitation for filing a civil action therefore did not apply. The court then examined the Mark VII bill of lading to determine whether the time to commence a suit was limited by contract. Section XVIII of the Mark VII bill of lading states, “Carrier shall be discharged from all liability for loss of damage to goods unless suit is brought within 9 months after delivery of the goods.” Based on that language, the district court found American’s complaint, filed almost two years after the fire in the rail yard, was untimely.

American argues on appeal that the Carmack Amendment applies to this case and that a genuine issue of material fact precluded summary judgment. We review a district court’s grant of summary judgment de novo. Cherrington v. Skeeter, 344 F.3d 631, 636 (6th Cir.2003).

The Carmack Amendment was enacted in 1906 as an amendment to the Interstate Commerce Act of 1887 and addresses the liability of common carriers for goods lost or damaged during a shipment over which the Interstate Commerce Commission (“ICC”) has jurisdiction. Capitol Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d 391, 394 (7th Cir.1992). The Amendment requires, among other things, that a carrier transporting property issue a bill of lading to the shipper, and makes the carrier liable to the one entitled to recover under the bill of lading for loss of or injury to the property.

“A bill of lading issued in a foreign country to govern a shipment throughout its transportation from abroad to its final destination in the United States, is termed a ‘through’ bill of lading.” Capitol, 965 F.2d at 394. The ICC’s jurisdiction does not extend to a shipment under a through bill of lading unless a domestic segment of the shipment is covered by a separate domestic bill of lading. See 49 U.S.C. § 10501; Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 (11th Cir.1986); Capitol, 965 F.2d at 394; Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir.1993).

Determining whether a shipment is governed by a through bill of lading is a question of fact. Capitol, 965 F.2d at 394. In Capitol, LEP Transport was hired by Capitol to arrange for the transportation of machinery from Italy to Chicago. The machinery never arrived and Capitol sued LEP under the Carmack Amendment. The district court held that the shipment was governed by a through bill of lading, making the Carmack Amendment inapplicable, because the bill of lading was issued in Italy, showed Chicago as the place of delivery, was prepaid and was not followed by a separate, domestic bill of lading. Id.

Here, the district court concluded that the shipment was covered by a through bill of lading because (1) the final destination was included in the bill of lading issued by Mark VII to Interdean; (2) the freight was prepaid for the entire shipment to Detroit; and (3) no separate bill of lading was issued for the trip from Newark to Detroit.

American disputes the accuracy of the district court’s findings. Specifically, American claims there is evidence Conrail issued a domestic bill of lading. That evidence is found in Conrail’s claim notes, which state that “this document does not constitute a claim within the meaning of section 2(b) of bill of lading contract.” American states that a “section 2(b)” is not listed in the bills of lading issued by Maersk or Mark VII and argues “[w]hether there is a third Conrail bill of lading that also governs the transaction is a question of fact that precludes summary judgment.”

To support a claim under the Carmack Amendment, American must present some proof that a domestic bill of lading was issued. Speculation, unsupported by facts in the record, is insufficient to create a genuine issue of material fact and falls short of what is required to survive summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff”).

Without evidence to the contrary, the Court agrees with the district court’s finding that the Mark VII bill of lading was a through bill of lading. Such a finding renders the Carmack Amendment inapplicable to the shipment at issue. [FN3]

As a result, the Mark VII bill of lading’s nine-month period of limitation controls and American’s negligence claim, filed almost two years after the goods were destroyed by fire, was too late.

AFFIRMED.

FN The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by designation.

FN1. Conrail denied the claim because American failed to provide a more explicit description of its claim.

FN2. Even if it were possible to characterize the grant of summary judgment as sua sponte, American suffered no prejudice, as is evident in Section B of this opinion.

FN3. American raises another issue on appeal: whether the district court abused its discretion when it considered the deposition testimony of Maersk’s claims manager, Massoud Messkoub. American argues that the testimony was inadmissible because Conrail failed to disclose Messkoub’s identity until nine months after the witness disclosure deadline. The district court relied on Messkoub’s testimony to conclude that American’s complaint was untimely even if the Carmack Amendment applied. Because the Court has concluded the Carmack Amendment is inapplicable, a ruling on whether Messkoub’s testimony was admissible is unnecessary.