United States District Court,

M.D. Florida,

Fort Myers Division.

Chris Edelbrock, Plaintiff,

v.

TT of Naples, Inc., a Florida corporation, d/b/a Aston Martin of Naples; Gulf Coast Auto Services, LLC, a Florida limited liability corporation, d/b/a Gulf Coast Auto Storage and Transport, Defendants.

Case No: 2:15-cv-446-FtM-99MRM

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Signed 08/05/2016

 

 

ORDER1

 

SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

*1 This matter comes before the Court on Defendant TT of Naples’s Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #40) filed on March 24, 2016. Plaintiff Chris Edelbrock filed a Response to Defendant’s Motion to Dismiss (Doc. #44) on April 6, 2016. This matter is ripe for review.

 

 

BACKGROUND

In May of 2014, Plaintiff visited Defendant TT of Naples, d/b/a Aston Martin of Naples, and was advised by Joel, an agent or employee of TT of Naples, that Defendant could arrange to have Plaintiff’s vehicle, an Aston Martin DB9, transported from the Aston Martin dealership in Naples, Florida to an Aston Martin dealership in Troy, Michigan. (Doc. #36 at ¶¶ 7-8; Doc. #36-3 at 1). Subsequently, Plaintiff tendered his vehicle to Defendant TT of Naples for transport. (Id. at ¶ 9). On May 19, 2014, Joel executed a Bill of Lading, having selected Defendant Gulf Coast Auto Services, LLC (Gulf Coast), to transport the car. (Id. at ¶¶ 10, 12).

 

Sometime during the transport of Plaintiff’s vehicle, the carrier truck operated by Defendant Gulf Coast got into a traffic accident, which caused damage to Plaintiff’s vehicle. (Id. at ¶ 13). Plaintiff had to pay $27,688.71 to repair his vehicle, as well as lose approximately $30,000 in value from the car. (Id. at ¶¶ 14, 16). Plaintiff provided both Defendants with a written notice of claim for his loss, but both have failed to remit payment for the damages. (Id. at ¶¶ 19-20, 22-23).

 

 

STANDARD OF REVIEW

When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the reviewing court must accept all factual allegations in the complaint as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court has been clear on this point – a district court should dismiss a claim where a party fails to plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable inference, based on the facts pled, that the opposing party is liable for the alleged misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557 (internal quotation marks omitted)). A pleading sufficiently states a claim when it provides grounds for a court’s jurisdiction, a short and plain statement of a claim demonstrating entitlement to relief, and a demand for the relief sought. Fed. R. Civ. P. 8(a).

 

 

DISCUSSION

Defendant TT of Naples seeks to dismiss Plaintiff’s claim of liability under the Carmack Amendment (Count I). (Doc. #36 at ¶¶ 25-30). Alternatively, Plaintiff argues that Defendant is liable based upon a supplemental state negligence claim (Count III). (Id. at ¶¶ 37-41).

 

 

Count I: The Carmack Amendment

*2 In its second amended complaint, Plaintiff alleges that Defendant TT of Naples is a freight forwarder, and that Defendant should assume liability for damages under the Carmack Amendment, 49 U.S.C. § 14706. (Doc. #36 at ¶¶ 27-30). Defendant disagrees, arguing that it is not a freight forwarder but is more akin to a broker, and thus cannot be held liable under the Carmack Amendment.

 

The Carmack Amendment “makes common carriers liable for actual loss of or damage to shipments in interstate commerce.” Winn Dixie Stores, Inc. v. Aspen Transp., Inc., 2013 U.S. Dist. LEXIS 126799, at *8 (M.D. Fla. Sept. 5, 2013) (quoting A.I.G. Uruguay Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997, 2003 (11th Cir. 2003)). The Carmack Amendment applies to “carriers” and “freight forwarders,” but not “brokers.” Laing v. Cordi, 2012 U.S. Dist. LEXIS 101639, at *4 (M.D. Fla. July 23, 2012). See also 49 U.S.C. § 14706(a). The statutory definition of a freight forwarder is

a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for compensation and in the ordinary course of its business–– (A) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments; (B) assumes responsibility for the transportation from the place of receipt to the place of destination; and (C) uses for any part of the transportation a carrier subject to jurisdiction under this subtitle.

49 U.S.C. § 13102(8) (2016). A broker is defined as

a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.

49 U.S.C. § 13102(2) (2016).

 

Plaintiff depended upon Defendant TT of Naples to provide transport for his Aston Martin, as had been done several times in the past, and the car was subsequently tendered to Defendant to be transported. (Doc. # 36 at ¶¶ 8-9). Unbeknownst to Plaintiff, Defendant TT of Naples selected Defendant Gulf Coast as the main carrier, subsequently executed a Bill of Lading with Gulf Coast, and turned the vehicle over to Gulf Coast to be transported. (Id. at ¶¶ 10-12). Defendant TT of Naples’s sole purpose in this transaction was to provide transportation for Plaintiff’s vehicle; the provided transport led to Plaintiff’s vehicle being damaged before it could reach its final destination. Here, the alleged facts, viewed in a light most favorable to the plaintiff, provide a reasonable inference that the Defendant could be liable for damages under the Carmack Amendment as a freight forwarder. That is sufficient at this point in the proceedings to survive the Defendant’s Motion to Dismiss.

 

 

Count III: Supplemental State Law Negligence Claim

Plaintiff, in Count III of its complaint, alleges alternatively that Defendant breached a duty to “ensure that his Aston Martin would be transported…in an appropriate and responsible manner, in accordance with the standards of care used by similar professionals in the industry under similar circumstances.” (Doc. #36 at ¶ 38). Defendant argues that Plaintiff “failed to allege an actionable breach of any purported duty to hire a ‘reputable’ carrier.” (Doc. #40 at 11).

 

*3 Count III is an alternative to Count I because the “Carmack Amendment preemption…embraces ‘all losses resulting from any failure to discharge a carrier’s duty as to any part of the agreed transportation….’ ” Smith v. United Parcel Service, 296 F.3d 1244, 1247 (11th Cir. 2002) (citation omitted). Even if it is found that the Carmack Amendment does not apply to Defendant, “the Defendant may be held liable for the alleged negligent conduct.” Hewlett-Packard Co. v. Brother’s Trucking Enters., 373 F. Supp. 2d 1349, 1352 (S.D. Fla. 2005).

 

The elements of negligence are: (1) duty, (2) breach of duty, (3) injury arising from the breach, and (4) damages caused by the injury. Vallot v. Logan’s Roadhouse, Inc., 567 Fed.Appx. 723, 726 (11th Cir. 2014). Plaintiff has alleged that Defendant failed in its duty to ensure that his vehicle was transported “in an appropriate and responsible manner, in accordance with the standards of care used by similar professionals in the industry” and that injury and damages to the vehicle resulted from Defendant’s breach. (Doc. #36 at ¶¶ 8-18, 38-41). Viewing the alleged facts in a light most favorable to Plaintiff, there is a plausible negligence claim against Defendant.

 

Accordingly, it is now

 

ORDERED:

 

Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #40) is DENIED.

 

DONE and ORDERED in Fort Myers, Florida on this 5th day of August, 2016.

 

All Citations

Slip Copy, 2016 WL 4157426

 

 

Footnotes

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their websites. Likewise, the Court has no agreements with any of these third parties or their websites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.

United States District Court,

E.D. Michigan, Southern Division.

Acuity a/s/o Michael S. Killam Enterprises, Inc., Plaintiff,

v.

Nick’s Trucking & Excavating, LLC, Defendant.

Civil Case No. 15-11907

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Signed 07/29/2016

Attorneys and Law Firms

Adam C. Zwicker, Kitch, Drutchas, Mt. Clemens, MI, for Plaintiff.

Joseph F. Fazi, Kallas & Henk PC, Bloomfield Hills, MI, for Defendant.

 

 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

LINDA V. PARKER, U.S. DISTRICT JUDGE

*1 Plaintiff Acuity (“Acuity”), as subrogee of its insured, Michael S. Killam Enterprises, Inc. (“Killam”), filed this lawsuit against Defendant Nick’s Trucking & Excavating, LLC (“Nick’s”), seeking to recover damages to cargo under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. On May 25, 2016, Nick’s filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 19.) The deadline for Acuity to file a response to the motion was June 20, 2016. See E.D. Mich. LR 7.1(e)(1)(B); Fed. R. Civ. P. 6(d). No response has been filed. On June 29, 2016, this Court issued a notice dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

 

 

1. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party’s case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

 

The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252.

 

When no response is filed to a summary judgment motion, the district court may rely upon the facts advanced by the movant. Spurlock v. Whitley, 79 Fed.Appx. 837, 839 (6th Cir. 2003) (unpublished). As the Sixth Circuit Court of Appeals stated in Spurlock:

Where no response to a summary judgment motion is properly before a district court, the court is under no duty to “search the entire record to establish that it is bereft of a genuine issue of material fact.” [Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989)]. Rather, the district court may rely upon the facts advanced by the movant. Id. Federal Rule of Civil Procedure 56[c] requires that the nonmoving party’s response designate specific facts demonstrating the existence of genuine issues of material fact. Fed. R. Civ. P. 56[c]. The nonmoving party is deemed to have waived its opportunity to designate facts in accordance with Rule 56[c] when it fails to properly file a response. [Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992)]. This court has stated that it is not the role of the district court to develop facts for the nonmoving party. Id. at 406.

*2 Spurlock v. Whitley, 79 Fed.Appx. 837, 839 (6th Cir. 2003) (unpublished).

 

 

1. Factual Background

On April 1, 2012, Nick’s and Balsam Branch Transport (“Balsam Branch”) entered into an Equipment & Permit Contract/Lease Agreement. (Def.’s Mot., Ex. B.) The agreement identified Balsam Branch as the contractor and Nick’s as the Lessor. (Id.)

 

On or about January 9, 2013, Killam sent a Freight Pick-Up Order to Cedric Freight Brokerage to pick up twenty-five skids of steel from Richland Metals in Chaska, Minnesota, for delivery to Continental Metals in Gibraltar, Michigan. (Id., Ex. C.) Cedric Freight Brokerage then contracted with Balsam Branch for the transport of the load of steel. (Id., Ex. D.)

 

A Balsam Branch representative signed the rate confirmation agreement on January 9, 2013, as the carrier. (Id.) A Straight Bill of Lading was then issued, identifying Balsam Branch as the carrier, Richland Metals as the shipper, and Continental Metals as the consignee. (Id., Ex. E.)

 

The load of steel was picked up on January 10, 2013, in Chaska, Minnesota, and delivered the following day in Gibraltar, Michigan. (Id.) A notation on the Bill of Lading provides: “3 Bundles on [b]ack of truck are wet.” (Id.)

 

Nick’s believes that Killam thereafter made a claim with Cedric Freight Brokerage for damage to three (3) skids of steel. Cedric Freight Brokerage completed a Standard Form for Presentation of Loss and Damage Claims on March 18, 2013, identifying Balsam Branch as the carrier for the three skids of damaged steel. (Id., Ex. F.) The total damages claimed were $2,347.61. (Id.)

 

Cedric Freight Brokerage completed an amended Standard Form for Presentation of Loss and Damage Claims on May 14, 2013, now claiming that all twenty-five skids of steel were damaged in transport. (Id., Ex. G.) Again, the carrier listed was Balsam Branch. (Id.)

 

At some point, a Cargo Claim Questionnaire was completed. The questionnaire identified Richland Metals as the shipper, Continental Metals as the consignee, and Killam as the cargo broker. (Id., Ex. H.)

 

On February 19, 2013, Killam filed a claim with its insurance carrier, Acuity, for damage to the shipment of steel. (Id., Ex. I.) The date of the loss was listed as February 18, 2013. (Id.) The loss is described as follows on the claim:

Client said that he bought steel with company in Gibralt[a]r MI and they sent steel directly to client and that it was not correct. Then it was shipped back but it was damaged by the carrier that our client contracted with to ship it back which was Cedric Freight Brokerage. But then they subcontracted to another carrier who then subcontracted to another carrier which was Nick’s Trucking. The goods are in the amount of $20,000 and the pallets got wet which then rusted the steel. The client has not paid the company in Gibralt[a]r yet. He is on good terms with the client in Gibralt[a]r and would like to notify Acuity of this pending claim.

Id.

 

On May 14, 2013, Brian Barth, a field claim adjuster at Great West Casualty Company sent a letter to Tim McAndrews at Cedric Freight Brokerage. (Id., Ex. J.) Great West insured Balsam Branch. (Id.) The letter was in response to Cedric Freight Brokerage’s claim for coverage for the damaged steel. (Id.) Great West denied coverage, concluding that it was impossible for the steel to rust in the 24-hour period it was in transport between Chaska, Minnesota and Gibraltar, Michigan. (Id.)

 

*3 On August 14, 2013, a representative on behalf of Killam entered into a release of all claims with Acuity for the consideration of $14,460.21, for loss that occurred “on or about the 18 day of February, 2013, at or near 19800 Gibralt[a]r Road, Gibralt[a]r, MI”. (Id., Ex. K.) On September 5, 2013, Jill M. White, Field Claims Representative at Acuity, sent a letter to Ken Zoliner of General Casualty Company of Wisconsin, which stated:

We have completed our investigation of the above referenced loss and find that the responsibility rest [sic] with your insured, Nick’s Trucking & Excavating. The steel sustained water damage when your insured was hauling the load back to the supplier.

(Id., Ex. L.)

 

On May 28, 2015, Acuity filed this lawsuit as Killam’s subrogee. (ECF No. 1.) The Complaint alleges a single claim, seeking damages under the Carmack Amendment. (Id.) The Summons and Complaint provided the first written notice of the loss to Nick’s. (Def.’s Mot., Ex. M.)

 

 

III. Applicable Law and Analysis

Nick’s asserts three arguments in support of its summary judgment motion. First, Nick’s contends that Acuity lacks standing to bring a claim under the Carmack Amendment. Next, Nick’s argues that Balsam Branch, not Nick’s, was the carrier of the steel. Lastly, Nick’s contends that notice was never sent to it, as required under the Carmack Amendment. Because Nick’s first argument provides grounds for granting its motion, the Court addresses only that argument.

 

“The Carmack Amendment…created a national scheme of carrier liability for loss or damages to goods transported in interstate commerce.” Exel, Inc. v. S. Refrigerated Transport, Inc., 807 F.3d 140, 148 (6th Cir. 2015). It made carriers strictly liable, thus relieving shippers of the burden of determining which carrier caused the loss or damage to the goods and of proving negligence. The Carmack Amendment allows “the person entitled to recover under the receipt or bill of lading” to bring a cause of action against the carrier of its cargo for damage to the cargo. 49 U.S.C. § 14101(b)(1). “Section 14706 simply provides that carriers providing transportation are liable to the person entitled to recover under the receipt or bill of lading for actual loss or injury to the property.” Trepel v. Roadway Express, Inc., 194 F.3d 708, 711 (6th Cir. 1999).

 

The Sixth Circuit Court of Appeals recently held that the Carmack Amendment does not provide a non-shipper broker with a direct right to sue under the statute. Exel, 807 F.3d at 148-49 (citing Edwards Bros., Inc. v. Overdrive Logistics, Inc., 581 S.E.2d 570, 572 (Ga. 2003) (stating that “the Carmack Amendment was enacted to protect the rights of shippers suing under a receipt or bill of lading, not brokers”)). The Exel court pointed out that “under the plain terms of the statute, only a ‘shipper and carrier’ can enter into an agreement waiving rights under the statute.” Exel, 807 F.3d at 149 (citing 49 U.S.C. § 14101(b)(1)).

 

With respect to the present matter, the Straight Bill of Lading identifies Balsam Branch as the carrier for the load of steel, Richland Metals as the shipper, and Continental Metals as the consignee. (ECF No. 19, Ex. E.) Killam, the broker, is not referenced. (Id.) Acuity, as subrogee of Killam, stands in Killam’s shoes and has no greater rights than Killam. See United States v. California, 507 U.S. 746, (1993) (“The subrogee, who has all the rights of the subrogor, usually cannot acquire by subrogation what another whose rights he claims did not have.”) (internal quotation marks and citation omitted); In re Lewis, 398 F.3d 735, 747 (6th Cir. 2005) (“the subrogee acquires no greater rights than those possessed by the subrogor….”).

 

*4 While concluding that the broker in Exel lacked standing to bring a direct cause of action under the Carmack Amendment, the Sixth Circuit concluded that the broker could bring a claim as the assignee of the shipper. 807 F.3d at 149. The court had before it a written assignment pursuant to which the shipper expressly assigned its claims against the carrier to the broker. Id. at 149, n.8. Here, however, Acuity is the assignee of the broker, not the shipper. Moreover, there has been no evidence presented to this Court of an assignment between Killam and Acuity.

 

The Court therefore holds that Acuity lacks standing to sue Nick’s under the Carmack Amendment.

 

Accordingly,

 

IT IS ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 19) is GRANTED.