United States District Court,

N.D. Ohio, Eastern Division.

Drew Schneider, Plaintiffs,

v.

Fifth Wheel, LLC, et al. Defendants.

CASE NO. 1:15–cv–1176

|

Signed 08/22/2016

 

 

OPINION & ORDER

Kenneth S. McHargh, United States Magistrate Judge

*1 On July 25, 2016, the undersigned held a bench trial to determine liability on the above-captioned case. Plaintiff, Drew Schneider, (hereinafter “Plaintiff”) was present, represented by attorney James R. Russell, as well as attorney William M. Kovach, who appeared on behalf of Defendant Fifth Wheel, LLC (hereinafter “Fifth Wheel” or “Defendant”), owned by sole proprietor Geno Pikulik. Defendant’s appearance at trial was previously excused by this Court.

 

At the conclusion of the trial, the Court made the following findings of fact:

(1) Plaintiff purchased a 1957 Mercedes Benz (hereinafter “the vehicle”) from Joseph Saladin (hereinafter “Seller”) for $57,000.00.

(2) Defendant was commissioned through a broker to deliver the vehicle to Plaintiff, shipping it from Spokane Valley, WA, to Medina, OH.

(3) The vehicle’s selling price was based on its condition as released to Defendant, with cracks in the paint, but with no spots or stains on the paint or cloth top, as is consistent with the testimony of Seller.

(4) Defendant loaded and secured the vehicle onto the lower level of a dual-deck open flatbed trailer made to transport multiple vehicles, with no covering or protective barriers from its surrounding environment.

(5) A bill of lading was signed by Seller at the time Defendant obtained possession of the vehicle, prior to shipment. Plaintiff was not presented with the bill of lading until after delivery of the vehicle.

(6) Seller was not an agent of Plaintiff.

(7) Defendant did not effectively limit its liability for damage caused by leaking fluids by contacting Plaintiff prior to taking possession or transporting the vehicle.

(8) While in possession of Defendant, the exterior of the vehicle was damaged due to fluid leaking from another car being transported by Defendant.

(9) The vehicle was damaged when delivered to Plaintiff, and not in the same condition as it was when possession was transferred to Defendant for shipment.

(10) The cost to repair the defects in the exterior of the vehicle caused by Defendant’s negligence is $12,383.00, according to Plaintiff’s expert, Tom Hissen.

 

 

Law and Analysis

This case is properly determined under the Carmack Amendment, 49 U.S.C. 11706, which “makes a motor carrier fully liable for damage to its cargo unless the shipper has agreed to some limitation in writing.” Exel, Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140, 148 (6th Cir. 2015) (citing 49 U.S.C. 11706(a), (c), 14101(b)). To establish a prima facie case under Carmack, a Plaintiff must show (1) delivery of the goods to the carrier in good condition, (2) arrival of the goods in damaged condition, and (3) the amount of damages caused by the loss. Mitsui Sumitomo Ins. Co. v. Daily Express, Inc., No. 1:15–cv–316, 2015 WL 6506546 (S.D. Ohio Oct. 28, 2015) ; Custom Rubber Corp. v. ATS Specialized, Inc., 633 F. Supp. 2d 495 (N.D. Ohio 2009)  (citing Plough, Inc. v. Mason & Dixon Lines, 630 F.2d 468 (6th Cir. 1980)). Once a shipper establishes its prima facie case, the carrier is liable unless it can establish (1) that it was free from negligence, and (2) that the damage to the cargo “was caused solely by: ‘(a) the act of God[;] (b) the public enemy; (c) the act of the shipper himself; (d) public authority; [or] (e) [ ] the inherent vice or nature of the goods.’ ” Custom Rubber Corp., 633 F. Supp. 2d at 509(quoting Plough,630 F.2d at 470 (citing Missouri Pacific R.R. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S. Ct. 1142, 12 L.Ed.2d 194 (1964))).

 

*2 Although the Carmack Amendment has a default posture imparting full liability on the carrier for goods damaged during shipment, the statute provides a narrow exception whereby a carrier may limit its liability. Exel, Inc. 807 F.3d at 150 (citing Toledo Ticket Co., v. Roadway Express, Inc., 133 F.3d 439, 442 (6th Cir. 1998)); see ABB Inc. v. CSX Transp., Inc., 721 F.3d 135 (4th Cir. 2013) (“The Carmack Amendment’s exception allowing for limited liability is ‘a very narrow exception to the general rule’ imposing full liability on the carrier.”) (quoting Toledo Ticket, 133 F.3d at 442). In order to limit its liability, a carrier must:

(1) maintain approved tariff rates with the ICC; (2) provide the shipper with a fair opportunity to choose between two or more levels of liability;

(3) obtain the shipper’s written agreement as to its choice of liability; and

(4) issue a receipt or bill of lading prior to moving the shipment.

Id. (citing, e.g., Trepel v. Roadway Express, Inc., 194 F.3d 708, 715 (6th Cir. 1999); Toledo Ticket, 133 F.3d at 442) (internal page numbers omitted). Further, “the carrier must provide the shipper with both reasonable notice of any options that would limit the liability of the carrier and the opportunity to obtain the information about those options that will enable the shipper to make a deliberate and well-informed choice.” Id. (quoting Toledo Ticket, 133 F.3d at 442). A carrier holds the burden to prove that it complies with these requirements. Id. (citing  OneBeacon Ins. Co. v. Haas Indus., 634 F.3d 1092, 1099 (9th Cir. 2011)).

 

Accordingly, based on the above findings of fact in this case, the Court finds Defendant carrier is liable to Plaintiff for damages incurred to the vehicle while in transport under the Carmack Amendment. Defendant was commissioned to deliver the vehicle to Plaintiff after he purchased it from Seller. Testimony and photographs in evidence show the vehicle was delivered to Defendant with some cracking and wear to the exterior paint job, but otherwise in good condition. Defendant does not contest that the vehicle sustained exterior damage due to fluid leaked from another automobile while in possession of Defendant, and was thereby delivered to Plaintiff in a damaged condition.

 

This Court finds no merit to Defendant’s argument that it is not liable under Carmack. First, although the parties do not dispute that the vehicle was transported in a manner customary in the industry—namely, a dual-deck open flatbed trailer—Defendant has not met its burden to show it was both free from negligence and that one of the requisite causes of the damage applied in this case. Defendant’s argument that the damage was caused due to the inherent vice or nature of cars as a class to leak fluid is not persuasive. Case law in the Sixth Circuit shows that this exception may apply where the damage was caused by the inherent nature of the shipped product itself. See generally Plough, 630 F.2d at 471 (considering the qualities of the shipped product itself to determine whether the inherent vice exception under Carmack applied). Accordingly, as related to the inherent nature of a car to leak fluid, this exception would apply if the damage to the vehicle was caused by its own propensity to leak fluid, regardless of whether cars in general, by their nature, leak fluid. Here, however, the damage was due to the leaking fluid of another car also transported by Defendant, and Defendant has not provided any authority in support of its argument that this exception requires only a showing that cars, as a class of goods, have an inherent tendency to leak fluids. Further, Defendant has failed to provide any authority to support its argument that Plaintiff’s decision to have the product shipped in a customary method establishes that he, therefore, was the sole cause of the damage, without having taken any affirmative action or inaction that led directly to fluid leaking from another car onto the vehicle. See generally Super Service Motor Freight Co. v. United States, 350 F.2d 541, 546–47 (6th Cir. 1965) (“Within the [acts of the shipper] exception fall such acts as the improper or faulty packing and preparation for shipment [by the shipper]…when the loss or injury occurs by reason of the fact that the goods have been improperly or defectively packed, the carrier is relieved of liability.”). Indeed, Plaintiff had no contact with the vehicle until after the damage was incurred, as the point of delivery was the first time Plaintiff had access to the vehicle. Further, evidence established the Defendant was responsible for loading the vehicle and preparing it for transport, leading to its positioning, uncovered, beneath the car that subsequently leaked the damage-causing fluids.

 

*3 Defendant also did not meet the requirements necessary in order to effectively limit its liability for damage incurred while the vehicle was in its custody. As set out above, the law requires that a shipper must be made aware of a carrier’s intent to limit its liability, must agree to the limitation in writing, and must be provided with the bill of lading prior to shipment. Defendant argues the bill of lading limited its liability for damage due to leaking fluids during transport, because the limitation was set forth in writing on the document, and signed by both the Seller and Plaintiff. However, the evidence shows Plaintiff was not made aware of this limitation, and thereby could not consent to it in writing prior to shipment; rather, he signed the document on receipt of the vehicle. Although the bill of lading was provided to, and signed by, Seller before the vehicle was transferred into the custody of Defendant, Seller was not established as an agent of Plaintiff and thus could not consent to the limitation on behalf of Plaintiff.

 

A successful plaintiff is entitled to recover its actual loss under the Carmack Amendment. The “actual loss” may be calculated as either the amount of reduction in market value due to the damage, or the costs of repairing the damaged goods. Custom Rubber, 633 F. Supp. 2d at 515–16. The Sixth Circuit has held it is “reasonable to use the cost of repair as the basis for determining the amount of” damages where the costs of repair “are readily ascertainable and a fairly reliable indicator of the reduction in market value at destination.” Id. at 516. Other courts have found that the measure of damages under Carmack is “often dependent on the special circumstances of an individual case,” and allow for application of another method of calculation that “will better compute actual damages.”  Complete Distrib. Servs. v. All States Transp., LLC,2015 WL 5764421, *2 (Dist. Ore. Sept. 30, 2015) (citing F. J. McCarty Co. v. S. Pac. Co., 428 F.2d 690, 692 (9th Cir. 1970)); see Crompton Greaves, Ltd. v. Shippers Stevedoring Co., 776 F. Supp. 2d 375, 394 (S.D. Tex. 2011) (“[D]ifferent factual situations may require the application of a different measure of damages.”). However, “[t]he owner of goods received in a damaged condition is not, in any event, entitled to a windfall,” and “the shipper’s compensation cannot exceed more than his injury: i.e. the actual loss of or to the cargo.”  Houmani v. Roadway Express, Inc., Case No. 3:07CV1552, 2008 WL 731497, *1 (N.D. Ohio Mar. 17, 2008) (citing Project Hope v. M/V IBN SINA, 250 F.3d 67, 77 (2nd Cir. 2001);  American Nat. Fire Ins. Co. v. Yellow Freight Systems, Inc., 325 F.3d 924 (7th Cir. 2003)).

 

This Court finds the cost of repair, and not the diminution of market value, is the appropriate measure of damages under the circumstances of this case. The record establishes the dynamic nature of the market for classic automobiles such as Plaintiff’s damaged vehicle, and that the vehicle may have increased in value despite the damage sustained while in the custody of Defendant. Further, Plaintiff has offered only his own opinion as to the potential resale value of the vehicle, acknowledging that “the market is up and down.” Despite the potential increase in market value of the car in its current condition, neither party has demonstrated determinative values so as show either the decrease in value caused by the damage at the time of delivery, nor that the value of the car could have increased more at this point had the damage never occurred.

 

Although Defendant argues, and Mr. Hissem confirms, the new paint job will leave the car with a higher quality paint job than it had at the time of purchase, Plaintiff has presented sufficient evidence to convince this Court that the award is reasonable under the particular circumstances of this case. Although Mr. Hissem admits this paint job is of a higher quality and cost than might be available through a different automotive body work provider, Defendant has offered no evidence of what that lower cost might be (e.g., an estimated quote from Maaco), beyond mere speculation. Further, Defendant has failed to effectively rebut Mr. Hissem’s testimony that, while a lower quality paint job might be acceptable for a different car, the method and quality paint job used as the basis for his quote is the industry standard for classic automobiles such as the vehicle at issue here. Accordingly, this Court orders Defendant to pay damages in the amount of twelve thousand, three hundred eighty-three dollars ($12,383.00), the quoted amount by Mr. Hissem as to the cost of repainting the vehicle.

 

*4 IT IS SO ORDERED.

 

All Citations

Slip Copy, 2016 WL 4424944

Court of Appeals of Ohio,

Seventh District, Mahoning County.

Robert L. DICKSON, Plaintiff–Appellant,

v.

The UPS STORE, et al., Defendants–Appellees.

No. 15 MA 0222.

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Decided Aug. 22, 2016.

Civil Appeal from Court of Common Pleas of Mahoning County, Ohio, Case No. 14 CV 2961.

Attorneys and Law Firms

James S. Gentile, Youngstown, OH, for plaintiff-appellant.

Cornelius O’Sullivan, Independence, OH, Roger Sugarman, Columbus, OH, for defendants-appellees.

Opinion

DONOFRIO, P.J.

 

*1 { ¶ 1}  Plaintiff-appellant, Robert Dickson, appeals the decision of the Mahoning County Common Pleas Court denying his motion for summary judgment and granting summary judgment to Defendants-appellees, United Parcel Service, Inc. and the UPS Store # 5808.

 

{ ¶ 2}  Appellant owned a Galaxy Saturn 2001 amplifier which was in need of repair. On January 18, 2008, Appellant contracted with Appellee, the UPS Store # 5808 (“TUPSS”), located in Austintown, Ohio, for shipment of the amplifier to Wilson Center Electronics in Johnson City, Tennessee for repairs. (Dickson Dep. 10, 15, Exhibits A and B; Pilolli Aff. ¶ 4–5). Appellant signed a Parcel Shipping Order (“PSO”). (Dickson Dep. 8–9, Exhibit A). On the PSO, Appellant stated a declared value for the amplifier of $4000.00. (Dickson Dep. 9, Exhibit A; Pilolli Aff. ¶ 6). Dickson testified that, as a part of this transaction, he purchased insurance to ship his amplifier, but does not know how much extra he paid for the insurance. (Dickson Dep. 9).

 

{ ¶ 3}  TUPSS arranged with Defendant-appellee, United Parcel Service, Inc. (“UPS”), for the transport of the amplifier to Tennessee. Appellant’s amplifier was successfully delivered by UPS to Wilson Center Electronics. (Dickson Dep. 15; 25).

 

{ ¶ 4}  After Wilson Center Electronics reported to Appellant that his amplifier had been repaired, he sought to have it returned to TUPSS. Appellant testified that he dealt with a UPS Store in Tennessee to have the amplifier repackaged and shipped to TUPSS. (Dickson Dep. 18). Patricia Pilolli, manager of TUPSS, signed an affidavit indicating that Appellant, on September 24, 2008, contracted with TUPSS to have the amplifier shipped back to TUPSS from Wilson Center Electronics. (Pilolli Aff. ¶ 7–8). Thus, it is somewhat unclear who contracted with a UPS Store in Tennessee to return the amplifier to TUPSS. The UPS system contains no records relative to this transaction because too much time has passed. (McDermott Aff. ¶ 6).

 

{ ¶ 5}  Appellant states that when he opened the box containing his amplifier, he discovered it was damaged. (Dickson Dep. 20). At some point, Appellant notified TUPSS that the amplifier was damaged. (Dickson Dep. 20–21; Pilolli Aff. ¶ 9). Appellant testified that TUPSS asked him if he purchased insurance. (Dickson Dep. 20–21). When he told them he had, Appellant claims TUPSS told him that the insurance company would take care of it and that they would get back in touch with Appellant. (Dickson Dep. 20–21). Pilolli testified that “As the shipper of record, TUPSS filed a claim on behalf of Plaintiff with UPS for damage to the Amplifier.” (Pilolli Aff. ¶ 10).

 

{ ¶ 6}  Appellant testified that his amplifier was then shipped by TUPSS to a repair shop in Pittsburgh. (Dickson Dep. 22). On May 15, 2009, UPS paid $1,789.69 to TUPSS for what is described by Pilolli as the replacement cost of the amplifier plus Appellant’s out-of-pocket shipping costs. (Pilolli Aff. ¶ 11). (There is no Civ.R. 56(C) evidence in the record to determine how the replacement cost was determined. Neither is there any evidence to suggest that this is the incorrect replacement cost or, if incorrect, what the correct amount would be. There is a letter from Patricia Pilolli, TUPSS, to Counsel for Appellant dated November 13, 2009, describing efforts made to determine a repair or replacement cost. The letter makes multiple references to insurance. The letter is attached to Appellant’s Motion in Opposition to Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment). On May 28, 2009, TUPSS mailed a check to Appellant in this amount indicating the check was for full and final payment of his claim. (Pilolli Aff. ¶ 13–14). Appellant rejected the check. (Pilolli Aff. ¶ 14).

 

*2 { ¶ 7}  Almost four years later, on April, 5, 2013, Appellant filed a complaint in Austintown County Court. The case was eventually transferred to Mahoning County Common Pleas Court. On March 3, 2015, Appellant filed a Second Amended Complaint against TUPSS and UPS. Appellant sets forth three claims. First, Appellant asserts a breach of contract claim against Appellees for damaging his electronic system in transit. Second, Appellant claims that Appellees engaged in fraud and misrepresentation by stating to Appellant that they were selling him insurance. Third, Appellant alleges Appellees have converted his amplifier since it has never been returned to him. Both UPS and TUPSS filed answers.

 

{ ¶ 8}  On August 10, 2015, UPS and TUPSS jointly filed a motion for summary judgment. Appellant responded and also filed a motion for summary judgment. UPS and TUPSS appear to have filed a joint reply, although the title of the reply suggests that only UPS replied. (See United Parcel Service, Inc.’s Reply to Plaintiff’s Motion in Opposition to Motion for Summary Judgment and United Parcel Service, Inc.’s Opposition to Plaintiff’s Motion for Summary Judgment [signed by counsel for both UPS and TUPSS]. In the reply, UPS [and TUPPS] emphasize that they are separate entities and not one in the same).

 

{ ¶ 9}  On November 25, 2015, the trial court granted summary judgment to both UPS and TUPSS. The trial court concluded that any claim against UPS was preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 14706; that Appellant’s claim against UPS was filed outside of the statute of limitations; that Appellant had no standing to sue UPS; that UPS’s liability is limited by federal law and the UPS Tariff; that UPS has already paid the maximum amount of the claim; and, with regard to TUPSS, that there was no evidence presented that TUPSS was negligent in any manner. The trial court denied Appellant’s motion for summary judgment because Appellant’s state law claims were preempted by federal law. Appellant filed a timely appeal.

 

{ ¶ 10}  Appellant presents one assignment of error which states:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS THE CARMACK AMENDMENT WAS NOT FOLLOWED AND THEREFORE WAIVED AND APPELLEE’S REMEDIES WERE NOT PREEMPTED.

 

{ ¶ 11}  An appellate court reviews the granting of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005–Ohio–4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.

 

{ ¶ 12}  A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist. No. 27799, 2015–Ohio–4167, ¶ 8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St .3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts to show that there is a genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 1993–Ohio–191, 617 N.E.2d 1129.

 

*3 { ¶ 13}  The trial court concluded that Appellant’s claims against UPS were governed by the Carmack Amendment and, after applying the same, UPS was entitled to summary judgment. The trial court furthered granted summary judgment to TUPSS because Appellant failed to produce any evidence that TUPSS was negligent. Appellant claims that the trial court’s error is that the Carmack Amendment was not followed and therefore its provisions were waived. Therefore, according to Appellant, his state law claims were not preempted.

 

{ ¶ 14}  Appellant contracted with TUPSS to ship his amplifier to/from Tennessee. The PSO signed by Appellant reflects that TUPSS was not the carrier and that TUPSS would employ UPS as the carrier. The Carmack Amendment to the Interstate Commerce Act governs the relationship between a shipper and a carrier and preempts all state laws with regard to a carrier’s liability. Adams Express Co. v. Croninger, 226 U.S. 491, 505–506, 33 S.Ct. 148, 57 L.Ed. 314 (1913). The Carmack Amendment provides, in pertinent part:

A carrier providing transportation * * * shall issue a receipt or bill of lading for property it receives for transportation under this part. That carrier and any other carrier that delivers the property * * * are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported * * * Failure to issue a receipt or bill of lading does not affect the liability of a carrier. * * *

49 U.S.C. 14706(a)(1). UPS is the carrier. As explained in the PSO signed by Appellant, TUPSS agreed to package and contract with UPS for the transportation of his amplifier. Thus, UPS, the “carrier”, is liable only to TUPSS.

 

{ ¶ 15}  In his sole assignment of error, Appellant asserts that the Carmack Amendment was not “followed,” was therefore “waived,” and thus Appellant’s claims pursuant to state law are not preempted by the Amendment. Appellant does not explain how the Carmack Amendment was not followed and why or how preemption is somehow waived. More importantly, Appellant cites no authority to support this assertion and/or what would legally constitute a waiver. Thus, the trial court’s conclusion that federal law preempts state law with regard to the relationship between shippers and carriers is correct and is affirmed. Both UPS and TUPSS complied with the Carmack Amendment. Pursuant to 49 U.S.C. 14706(a)(1) quoted above, UPS is only liable to TUPSS. Thus, here, Appellant had no standing to sue UPS.

 

{ ¶ 16}  Furthermore, the Carmack Amendment allows carriers to establish various terms regarding shipments, often referred to as “Tariffs”. Properly published tariffs are incorporated into any agreement between the shipper and the carrier. 49 U.S.C. 14706(a)(c); Aero Trucking Inc. v. Regal Tube Co., 594 F.2d 619, 621 (7th Cir.1979); Verhoogen v. United Parcel Service, Inc., 5th Dist. No. 12CA82, 2013–Ohio–2305, ¶ 14. Shawn McDermott, the Security Supervisor for UPS’s Great Lakes District, explained in an affidavit that UPS maintains and publishes a tariff and that the tariff applicable to the amplifier in this case, to which UPS and TUPSS are bound, is the “UPS Tariff/Terms and Conditions of Service for Small Package Shipments in the United States, Effective September 2, 2008” (“UPS Tariff”). (McDermott Aff. ¶ 7–10). The UPS Tariff is attached to McDermott’s affidavit and explains that third-party retailers and UPS authorized shipping outlets are independently owned and operated and not agents of UPS. (Exhibit C1, attached to McDermott Aff., UPS Tariff § III.C.). The Tariff states that UPS assumes no liability for lost, damaged, or delayed shipments sent via a third-party retailer other than to the third-party retailer. Id. UPS’s liability to the third-party retailer is subject to the limitations in the UPS Tariff. Id. The third-party retailers are solely responsible for refunds and claims to those who ship packages through the third-party retailer. Id. Thus, both the Carmack Amendment and the UPS Tariff prohibit Appellant from suing UPS. Only TUPSS can sue UPS.

 

*4 { ¶ 17}  The Carmack Amendment also limits the liability of UPS, the carrier, to “the actual loss or injury to the property.” 49 U.S.C. 14706(a)(1). The Carmack Amendment allows a carrier to establish “rates for the transportation of property * * * under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper * * *.” 49 U.S.C. 14706(c)(1)(A). Here, UPS limited its liability through its Tariff. The Tariff provided, in pertinent part, that UPS’s maximum liability was the lesser of the following: $100.00 when no value in excess of $100.00 is declared; the declared value if in excess of $100.00 if the value charges are paid; the actual cost of the damaged or lost property; the replacement cost of the property at the time and place of the loss; or the cost of repairing the property. UPS Tariff § VI.G.5, p. 40. UPS, then, if liable, is liable only for the lesser of the above amounts. UPS tendered $1,789.69 to TUPSS. TUPSS forwarded a check in this amount to Appellant. He rejected it. Appellant presented no Civ.R. 56(C) evidence to demonstrate that this amount is incorrect. The trial court correctly concluded that even if Appellant could sue UPS, UPS’s liability is limited by the Tariff, that UPS paid what it concluded it owed under the Tariff to TUPSS, and TUPSS forwarded payment in this amount to Appellant. Appellant seemingly argues that by not paying the declared value of $4000.00, UPS failed to follow the Carmack Amendment and thus “waived” any ability to assert the same. Appellant has cited no legal authority to support this position. UPS’s liability is properly limited by the terms of the Carmack Amendment and the UPS Tariff. Absent evidence to the contrary as to the lesser of the above limits on liability, UPS paid TUPSS what it determined to be the appropriate amount. Again, Appellant does not specifically challenge this amount but, as noted above, asserts that UPS failed to follow the Carmack Amendment. The above facts indicate the contrary.

 

{ ¶ 18}  Appellant has failed to present any reason or cite any law to support his argument that UPS, or TUPSS, somehow failed to “follow” the Carmack Amendment and thereby “waived” it so as to reinstate any state law claims Appellant might otherwise have been able to make against UPS. Appellant and UPS here had no agreement. Appellant contracted with TUPSS. The relationship between TUPSS and UPS is governed by the Carmack Amendment. Each followed the terms of the Carmack Amendment and the accompanying UPS Tariff. Appellant did not have standing to sue UPS. It has made payment which TUPSS accepted as payment in full. TUPSS tendered the same amount to Appellant. Appellant has offered no evidence to demonstrate that this is the incorrect amount.

 

{ ¶ 19}  The trial court also granted summary judgment to TUPSS. The allegations in Appellant’s complaint against TUPSS are the same as those against UPS, i.e., breach of contract, fraud and misrepresentation, and conversion. Appellant makes little or no distinction between UPS and TUPSS. In fact, in the reply filed by UPS, and signed by counsel for both UPS and TUPSS, UPS complains of Appellant’s failure to make this distinction.

 

*5 { ¶ 20}  The trial court’s judgment entry granting summary judgment to TUPSS does not address the breach of contract, fraud and misrepresentation, and conversion claims. It, also, does not conclude that these state law claims are preempted by the Carmack Amendment or any other federal law. Instead, it concludes that TUPSS is entitled to summary judgment because Appellant “has not produced evidence that TUPSS was negligent”, i.e., that TUPSS caused the damage to Appellant’s amplifier. (Judgment Entry, p. 3). Appellant has not assigned this as an error. In fact, in its brief, TUPSS states as its legal argument that since Appellant has only assigned as error the trial court’s application of the Carmack Amendment to the defenses of UPS, it has no basis to file a brief.

 

{ ¶ 21}  However, in the body of his brief, Appellant cites Missouri Pac. R. Co. v. Elmore and Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964) for the proposition that negligence is not the applicable standard and that strict liability should be applied. Missouri is a case involving a dispute between a carrier and a shipper under the Carmack Amendment. This is not the relationship between Appellant and TUPSS. Missouri is not applicable to any claim Appellant makes against TUPSS. Further, it is noted that in regard to the transaction between UPS and TUPSS here there was never any discussion of negligence or strict liability. It seems that UPS acknowledged that as the carrier of goods that were delivered in a damaged state, it was obligated to pay for the damage as outlined in the Carmack Amendment and the UPS Tariff discussed above. UPS made a payment to TUPSS.

 

{ ¶ 22}  Appellant does not assign any error to the trial court’s denial of Appellant’s motion for summary judgment.

 

{ ¶ 23}  Based on the foregoing, Appellant’s assignment of error is without merit and is overruled. The trial court’s decision granting the motion of Appellees UPS and TUPSS for summary judgment and denying Appellant’s motion for summary judgment is affirmed.

 

DeGENARO and ROBB, JJ., concur.

All Citations

Slip Copy, 2016 WL 4527197, 2016 -Ohio- 5576