Court of Appeals of Michigan.

SEVAN MAROKY, Plaintiff-Appellant,

and

TOTAL HEALTH REHAB CO, Intervening Plaintiff,

v

ENCOMPASS INDEMNITY CO, Defendant-Appellee.

No. 333489

|

October 19, 2017

Wayne Circuit Court

LC No. 14-012476

Before: GLIECHER, P.J., and FORT HOOD and SWARTZLE, JJ.

Opinion

PER CURIAM.

 

*1 In this no-fault insurance action, contesting the priority of insurers, plaintiff Sevan Maroky appeals as of right the trial court’s June 7, 2016 Order granting summary disposition to defendant Encompass Indemnity Co under MCR 2.116(C)(10). We affirm.

 

 

1. BACKGROUND

The essential facts of this dispute are not contested. In 2013 and early 2014, plaintiff was working as a long-haul truck driver. Plaintiff was the sole member of a corporate entity, Envoy Trucking, and that entity owned a 2006 Peterbuilt semi-truck, which weighed more than 10,000 lbs. Plaintiff and Envoy Trucking entered into an owner-operator agreement with ADM Transit under which Envoy Trucking leased the semi-truck to ADM Transit, and ADM Transit agreed to pay plaintiff 18 cents for every loaded mile he drove on behalf of ADM Transit. Thereafter, plaintiff worked approximately four days per week for ADM Transit, hauling loads cross country.

 

ADM Transit obtained a “trucking” policy on its fleet of leased vehicles with OOIDA Risk Retention Group, Inc. (OOIDA). A “trucking” policy covers a vehicle while it is actively hauling freight. This policy covered the semi-truck owned by Envoy Trucking. In late 2013, however, ADM Transit and OOIDA executed a policy endorsement listing plaintiff as an excluded driver on the OOIDA policy. Plaintiff also obtained a “bobtail” policy on the semi-truck with Hudson Insurance Company (Hudson). A “bobtail” policy covers a semi-truck when it is not actively hauling freight. Plaintiff’s personal vehicles were insured through a policy with defendant. Defendant’s policy specifically excluded from coverage personal injury to any person covered under the policy resulting from that person’s occupation of a vehicle weighing 10,000 pounds or more or a vehicle used for the covered person’s “business.”

 

On January 22, 2014, plaintiff was driving the semi-truck in Texas, hauling a trailer of freight to New Mexico on behalf of ADM Transit. Plaintiff proceeded properly through an intersection when another semi-truck ran a stop sign and struck the side of plaintiff’s semi-truck. Plaintiff was air-lifted to the hospital and incurred significant medical costs, including some $22,000 for rehabilitation services to intervening-plaintiff Total Health Rehab, LLC.

 

Plaintiff sued defendant and Hudson for unpaid personal injury protection (PIP) benefits on September 28, 2014. Plaintiff, however, stipulated that Hudson should be dismissed from the lawsuit with prejudice on October 26, 2015. Sometime after January 22, 2015,1 plaintiff initiated a separate lawsuit against OOIDA for recovery of PIP benefits resulting from the January 22, 2014 accident. This lawsuit was dismissed with prejudice under the one-year-back rule, MCL 500.3145.

 

On March 21, 2016, defendant moved for summary disposition, arguing that plaintiff was precluded from collecting benefits under defendant’s policy because he was driving a vehicle for business at the time of the accident. Defendant further argued that it was not liable for plaintiff’s PIP benefits because OOIDA was the insurer of highest priority under MCL 500.3114(3). The trial court agreed with defendant on both arguments, and granted summary disposition to defendant under MCR 2.116(C)(10). Plaintiff now appeals as of right.

 

 

1. ANALYSIS

*2 This Court reviews “a grant of summary disposition de novo.” Peters v Department of Corrections, 215 Mich App 485, 486; 546 NW2d 668 (1996). “Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. “A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue on which reasonable minds could differ.” Campbell v Kovich, 273 Mich App 227, 230; 731 NW2d 112 (2006).

 

MCL 500.3114 sets the insurer priority for PIP benefits under the no-fault act. This section provides:

(1) Except as provided in subsections (2), (3), and (5), a personal protection insurance policy described in section 3101(1) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident. A personal injury insurance policy described in section 3103(2) applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motorcycle accident. When personal protection insurance benefits or personal injury benefits described in section 3103(2) are payable to or for the benefit of an injured person under his or her own policy and would also be payable under the policy of his or her spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and is not entitled to recoupment from the other insurer.

* * *

 

(3) An employee, his or her spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer, shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.

 

This appeal is directly controlled by this Court’s opinion in Besic v Citizens Ins Co of the Midwest, 290 Mich App 19; 800 NW2d 93 (2010). In Besic, the plaintiff truck driver was the sole member of a corporation, Besic Express, which owned a semi-truck and registered the vehicle in Michigan. Id. at 21-22. The plaintiff entered into an owner-operator agreement with MGR Express, Inc (MGR) and leased the semi-truck to MGR, who purchased commercial liability insurance on the vehicle from Lincoln General Insurance Company. Id. The plaintiff obtained bobtail insurance on the semi-truck from Clearwater Insurance Company, and held a personal insurance policy on his household vehicles with Citizens Insurance Company. Id. at 22. The plaintiff was injured while hauling a load in Ohio, and sought recovery of his PIP benefits from each of the three insurers. Id. at 21-22.

 

Similarly, in the case at hand, plaintiff’s corporation, Envoy Trucking, owned the 2006 Peterbuilt semi-truck which appears to have been registered in Michigan. Plaintiff and his corporation entered into an owner-operator agreement with ADM Transit and ADM Transit obtained a commercial no-fault insurance policy for the semi-truck through OOIDA. Plaintiff obtained bobtail insurance on the semi-truck through Hudson and personally insured his household vehicles through defendant. Plaintiff was injured while hauling a load in Texas, and sought recovery of his PIP benefits from each of the three insurers, among others. Accordingly, because the case at hand is nearly factually identical to Besic, the holding in Besic controls this Court’s decision here. MCR 7.215(J)(1).

 

*3 Regarding the priority of insurers in Besic, this Court first looked to Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996), in which our Supreme Court held:

it is most consistent with the purposes of the no-fault statute to apply [MCL 500.3114(3)] in the cases of injuries to a self-employed person. The cases interpreting that section have given it a broad reading designed to allocate the cost of injuries resulting from use of business vehicles to the business involved through the premiums it pays for insurance. [Besic, 290 Mich App at 31.]

This Court then looked to the holding in State Farm Mut Auto Ins Co v Sentry Ins, 91 Mich App 109, 114-115; 283 NW2d 661 (1979), in which “this Court set forth the same rationale later adopted in Celina” as follows:

The exceptions in [MCL 500.3114(2)] and (3) relate to “commercial” situations. It was apparently the intent of the Legislature to place the burden of providing no-fault benefits on the insurers of these motor vehicles, rather than on the insurers of the injured individual. This scheme allows for predictability; coverage in the “commercial” setting will not depend on whether the injured individual is covered under another policy. A company issuing insurance covering a motor vehicle to be used in a (2) or (3) situation will know in advance the scope of the risk it is insuring. The benefits will be speedily paid without requiring a suit to determine which of the two companies will pay what is admittedly due by one of them. [Besic, 290 Mich App at 31-32.]

 

This Court then concluded as follows:

Besic owned the truck and worked as a self-employed independent contractor for MGR. Consistently with the Michigan Supreme Court’s analysis in Celina, 452 Mich at 89, the priority language in MCL 500.3114(3) extends to the self-employment situation of Besic. With respect to the additional language comprising MCL 500.3114(3), Besic suffered “accidental bodily injury while an occupant of a motor vehicle owned or registered by his employer,” given that MRG had leased Besic’s truck. [MCL 500.3101(2)(k)(i)] (including in its definition of “owner” “[a] person renting a motor vehicle or having the use thereof, under a lease or otherwise, for a period that is greater than 30 days”). Because MCL 500.3114(3) applies to the undisputed facts of this case, it dictates that Besic “shall receive personal protection insurance benefits to which [he] is entitled from the insurer of the furnished vehicle.” [Besic, 290 Mich App at 32.]

 

Accordingly, in Besic, the insurer of highest priority would have been the commercial liability insurer, Lincoln General. See id. Nonetheless, this Court determined that MGR’s policy with Lincoln General did not extend to personal injury no-fault benefits. Id. at 25-26, 27-30. This Court then concluded that the specific language of the bobtail insurer’s policy extended coverage for PIP benefits while the injured party was trucking and no other trucking insurance policy provided coverage. Id. at 24-27. Therefore, because the commercial liability policy through Lincoln General did not extend to no-fault coverage, this Court concluded that Clearwater, the bobtail insurer, was the insurer of highest priority. Id. at 32.

 

*4 Applying Besic to the circumstances at issue here, it is clear that OOIDA is the insurer of highest priority. Plaintiff was self-employed and working under an owner-operator agreement with ADM Transit. Given this, the priority language of MCL 500.3114(3) applies to plaintiff’s self-employment situation consistent with our Supreme Court’s analysis in Celina, 452 Mich at 89. See Besic, 290 Mich App at 32. Further, plaintiff leased the semi-truck at issue to ADM Transit for a period of greater than 30 days. Therefore, ADM Transit was a constructive owner of the semi-truck under MCL 500.3101(2)(k)(i). Plaintiff was then injured while driving the semi-truck constructively owned by ADM Transit. Accordingly, plaintiff suffered “accidental bodily injury while an occupant of a motor vehicle owned or registered by his employer” and “shall receive personal protection insurance benefits to which [he] is entitled from the insurer of the furnished vehicle.” Id. at 32 (internal quotation marks and citation omitted). ADM Transit’s insurer was OOIDA under a policy that included PIP benefits. Accordingly, OOIDA is the insurer of highest priority per MCL 500.3114(3).

 

In an unrelated argument before the trial court, defendant argued that OOIDA’s policy endorsement excluded plaintiff from coverage. The trial court concluded that the endorsement was ineffective because it did not contain the standard warning required under MCL 500.3009(2). Neither party appears to challenge this conclusion on appeal. Even had the parties challenged this conclusion, the trial court did not err in its conclusion that the exclusion was ineffective.

 

MCL 500.3009(2) provides:

If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. An exclusion under this subsection is not valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:

Warning—when a named excluded person operates a vehicle all liability coverage is void—no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.

The portions of ADM Transit’s policy with OOIDA that were included in the record do not contain the warning required by MCL 500.3009(2). Accordingly, the policy endorsement is invalid and OOIDA is the insurer of highest priority under MCL 500.3114(3).

 

Plaintiff argues that Besic was implicitly overruled by Adanalic v Harco Nat Ins Co, 309 Mich App 173, 190-191; 879 NW2d 731 (2015), in which this Court stated that “[f]or purposes of MCL 500.3114(3), whether an injured party was an employee is determined by applying the economic reality test.” (Internal quotation marks and citation omitted). Taken out of context, this quote appears to suggest that the economic reality test is always used under MCL 500.3114(3). The suggestion, however, is ill-advised for two reasons. First, Besic is a straightforward application of our Supreme Court’s holding in Celina, which this panel cannot overrule. Moreover, key facts of Adanalic are different from Besic, such that this Court’s decision does not run contrary to Besic.

 

In Adanalic, the plaintiff was injured when loading parts into a trailer attached to a semi-truck. Adanalic, 309 Mich App at 177. The plaintiff owned the semi-truck personally, but the trailer was registered to Trailer X-Press, Inc. Id. at 177 n 1. The plaintiff leased his semi-truck to DIS Transportation and entered into an owner-operator agreement through which he would haul loads for DIS Transportation. Id. Trailer X-Press, Inc also leased the trailer to DIS Transportation. Id. Both the semi-truck and the trailer were insured by defendant under a commercial policy. Id. at 177. The plaintiff was injured while on dispatch from DIS Transportation. Id.

 

After concluding that plaintiff was not precluded from recovery of no-fault PIP benefits because he was loading the trailer instead of driving the semi-truck, or because he could recover worker’s compensation benefits, this Court applied MCL 500.3114(3) to determine priority. Id. at 180-190. In addressing who insured the “furnished vehicle” under MCL 500.3114(3), this Court concluded that because “it [was] undisputed that Harco was the no-fault insurer … of both the semi-truck and semi-trailer used by [the plaintiff] at the time of the accident,” “Harco was the insurer of the ‘furnished vehicle.’ ” Id. at 190.

 

*5 Accordingly, because the plaintiff in Adanalic was injured while loading the trailer and he did not own the entirety of the “furnished vehicle,” this Court could not apply Besic to the facts at issue. Instead, the court applied the generally applicable economic realities test to determine whether DIS Transportation was the plaintiff’s employer. Id. at 190-194. In the case at hand, however, the trailer attached to plaintiff’s semi-truck is not at issue for purposes of MCL 500.3114(3) because plaintiff was injured when another vehicle struck the semi-truck that plaintiff was driving. Accordingly, plaintiff owned the entirety of the “furnished vehicle” at issue for the purposes of MCL 500.3114(3), and this Court’s application of Besic is appropriate.

 

Therefore, because OOIDA is the insurer of highest priority under Besic and ADM Transit had a valid policy with OOIDA covering plaintiff’s PIP benefits, defendant is not liable for plaintiff’s PIP benefits. Accordingly, the trial court properly granted summary disposition to defendant under MCR 2.116(C)(10). Because we conclude that the trial court properly granted summary disposition to defendant on its order of priority, we need not reach plaintiff’s argument that defendant’s policy exclusion violates the public policy of the no-fault act.

 

Unfortunately for plaintiff, his case against OOIDA was dismissed with prejudice because he failed to file the case within one year of suffering the injuries under MCL 500.3145. Therefore, plaintiff will likely be unable to recover PIP benefits from any source; however, plaintiff’s error does not change the order of priority or render defendant liable.

 

Affirmed.

 

Elizabeth L. Gleicher

 

Karen M. Fort Hood

 

Brock A. Swartzle

 

All Citations

Not Reported in N.W.2d, 2017 WL 4700030

 

 

Footnotes

1

The record does not provide an exact date.

United States District Court,

C.D. California.

KRYSTAL INC. and Kede Group, Inc., Plaintiffs,

v.

CHINA UNITED TRANSPORT, INC., dba C.U. Transport, Inc.; and Does one through Ten, Defendant.

5:16–cv–02406–RSWL–SP

|

Signed 09/26/2017

Attorneys and Law Firms

Andrew D. Kehagiaras, Theodore Hall Adkinson, Cameron W. Roberts, Roberts and Kehagiaras LLP, Long Beach, CA, for Plaintiffs.

Desiree Torchy Washington, Lisa Kralik Hansen, Joan Elaine Cochran, Cochran Davis and Associates, Palos Verdes, CA, for Defendant.

 

 

ORDER RE: PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [45]

RONALD S.W. LEW, Senior U.S. District Judge

*1 Currently before the Court is Plaintiffs Krystal Inc. (“Krystal”) and Kede Group, Inc.’s (“Kede”) (collectively, “Plaintiffs”) Motion for Summary Judgment (“Motion”) [45]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS Plaintiffs’ Motion as to liability under their breach of contract claim, DENIES as MOOT Plaintiffs’ Motion as to liability under their negligence claim, and DENIES Plaintiffs’ Motion as to the amount of damages.

 

 

1. BACKGROUND
2. Factual Background

Plaintiffs are owners, sellers, and exporters of motor vehicles. Compl. ¶ 7, ECF No. 1. Defendant is a licensed non-vessel-operating common carrier who provides ocean transportation of cargo from the United States to foreign countries. Id. ¶ 8.

 

Plaintiffs allege that they agreed to sell a Mercedes Benz Sprinter van (the “Cargo”) to Krystal Dalian Automotive Sales Co., Ltd. (“Dalian”) for $72,980.00. Decl. of Jack Xu (“Xu Decl.”) ¶ 5, Ex. A, ECF No. 45–7. The invoice, however, names Grand Union Autotrade Group Corporation (“Grand Union”) as the buyer. Decl. of Ruby Hu (“Hu Decl.”), Ex. 2, ECF No. 47–3. According to Qiuchen Wang, Director of Dalian, Dalian agreed to sell the Cargo to Tangwei Xu, a Chinese buyer, for 1,350,000.00 Chinese Yuan Renminbi (“CNY”), equal to $217,678.74. Decl. of Quichen Wang (“Wang Decl.”) ¶ 5, Ex. A, ECF No. 45–3.

 

On November 5, 2015, Plaintiffs contracted with Defendant to transport the Cargo from the United States to China. Compl. ¶ 9. On November 18, 2015, Defendant issued a “Clean on Board” Bill of Lading, the contract for shipment, to Krystal, stating that the Cargo was loaded into an “open top” shipping container. Xu Decl., Ex. B, ECF No. 45–8.

 

Section Six of the Bill of Lading, labeled “Extent of liability,” states, “C.U. Transport Inc. shall be liable for loss or damage to the goods occurring between the time when he received the goods into his charge and the time of delivery.” Id. The Bill of Lading also states,

When C.U. Transport Inc is liable for compensation in respect of loss or of damage to the goods, such compensation shall be calculated by reference to the value of such goods at the place and time they are delivered to the consignee in accordance with the contract or should have been so delivered.

The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, by reference to the normal value of goods of the same kind of quality.

C.U. Transport Inc. shall hold a single carrier’s liability for cargo transported under Through Bill of Lading. The carrier’s liability is limited to US $2.00 per kilogram or US $100.00 per shipment which ever is smaller.

Id.

 

On December 1, 2015, Ruby Hu, working for Defendant, emailed Jenny Chao at Kede to inform Ms. Chao that the Cargo had been damaged. Decl. of Jenny Chao (“Chao Decl.”), Ex. C, ECF No. 45–12. On January 12, 2016, Dalian United International Inspection Co., Ltd. conducted a survey of the Cargo. Hu Decl., Ex. 3. The Report of Survey concluded, “the cargo were damaged partly.” Id.

 

 

1. Procedural Background

*2 Plaintiffs filed their Complaint on November 21, 2016 against Defendant [1]. The Complaint alleges two causes of action against Defendant, breach of contract and negligence. See Compl.

 

Plaintiffs filed their Motion on August 4, 2017 [45]. Defendant filed its Opposition on August 15, 2017 [47]. Plaintiffs filed their Reply on August 22, 2017 [48].

 

 

1. FINDINGS OF FACT
2. Plaintiffs delivered the Cargo to Defendant at the port of loading in good condition. Def.’s Stmt. of Genuine Issues in Opp’n to Mot. for Summ. J. ¶ 9; Chan Decl., Ex. 1.
3. The Cargo was discharged in damaged condition at the port of discharge. Chao Decl., Ex. C.

 

III. DISCUSSION

1. Legal Standard

Federal Rule of Civil Procedure 56 states that a “court shall grant summary judgment” when 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.” A fact is “material” for purposes of summary judgment if it might affect the outcome of the suit, and a “genuine issue” exists if the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence, and any inferences based on underlying facts, must be viewed in the light most favorable to the opposing party. Twentieth Century–Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983). In ruling on a motion for summary judgment, the court’s function is not to weigh the evidence, but only to determine if a genuine issue of material fact exists. Anderson, 477 U.S. at 255.

 

Under Rule 56, the party moving for summary judgment has the initial burden to show “no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). The burden then shifts to the non-moving party to produce admissible evidence showing a triable issue of fact. Nissan Fire & Marine Ins., 210 F.3d at 1102–03.

 

The standard for a motion for summary judgment “provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issues of material fact.” Anderson, 477 U.S. at 247–48.

 

 

1. Discussion
2. The Court GRANTS Plaintiffs’ Request for Judicial Notice

Plaintiffs seek judicial notice of the exchange rates for the CNY to the U.S. dollar from the Federal Reserve’s website. Pls.’ Req. for Judicial Notice (“RJN”) ¶ 1. A court may take judicial notice of a fact that is not subject to reasonable dispute because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Exchange rates listed on the Federal Reserve’s system are a “fitting subject of a request for judicial notice.” HostLogic ZRT v. GH Int’l, Inc., No. 6:13–cv–982–Orl–36KRS, 2014 U.S. Dist. LEXIS 88680, at *27, 2014 WL 2968279 (M.D. Fla. June 10, 2014)(taking judicial notice of Euro to U.S. Dollar exchange rate from Federal Reserve System). As such, the Court GRANTS Plaintiffs’ Request for Judicial Notice of the CNY to U.S. dollar exchange rate contained on the Federal Reserve’s website.

 

*3 Plaintiffs also seek judicial notice of a page from the Federal Maritime Commission’s website showing that Defendant is licensed to operate as a non-vessel-operating common carrier. See RJN ¶ 2. Defendant does not dispute that it has a non-vessel-operating common carrier license from the Federal Maritime Commission. See Def.’s Stmt. of Genuine Issues in Opp’n to Mot. for Summ. J. ¶ 6. The license shown on the Federal Maritime Commission’s website is a public record whose accuracy cannot reasonably be questioned. Consequently, the Court GRANTS Plaintiffs’ Request for Judicial Notice of Defendant’s license from the Federal Maritime Commission.

 

 

2. Defendant’s Evidentiary Objections to Plaintiffs’ Declarations Are OVERRULED in part and SUSTAINED in part
3. Chao Declaration

Defendant objects to Exhibits A and B to the Chao Declaration, the Booking Confirmation and Receipt of Cargo respectively. Defendant argues that Plaintiffs have failed to properly authenticate the Exhibits as a business record. Def.’s Evid. Objs. to Chao Decl. 2:6–10. However, as Plaintiffs point out in their Response to Defendant’s Evidentiary Objections, Defendant ignores Federal Rule of Evidence 901, which states that witness testimony can be used to authenticate evidence. Pls.’ Resp. to Def.’s Evid. Objs. 2:9–11; see Fed. R. Evid. 901(b)(1). Defendant has not objected based on hearsay, merely lack of authentication, and while a business record is self-authenticating, Ms. Chao can also authenticate the Exhibits through her testimony. Fed. R. Evid. 901(b)(1). Based on Ms. Chao’s personal knowledge of Kede’s business practices and procedures, Kede’s document retention system, and where Kede keeps its files in the ordinary course of its business, Ms. Chao can testify that the documents are what they purport to be. The Court therefore finds that there is sufficient indicia of authenticity to support the admissibility of Exhibits A and B and OVERRULES Defendant’s authenticity objection.

 

Defendant objects to paragraphs 5–7 of the Chao Declaration1 on the basis that Ms. Chao lacks personal knowledge of the events about which she is testifying. Def.’s Evid. Objs. to Chao Decl. 4:15–26. However, the Chao Declaration states that Ms. Chao is the Secretary of Kede, and as the Secretary, she “assists with the overall management of Kede’s business” and has “personal knowledge of Kede’s business practices and procedures.” Chao Decl. ¶¶ 3–4. In paragraphs 5–7, Ms. Chao is testifying to events that occurred during her employment and about which she would have known as Secretary of Kede. Redwind v. W. Union, LLC, No. 3:14–cv–01699–AC, 2016 U.S. Dist. LEXIS 57793, at *64, 2016 WL 1732871 (D. Or. May 2, 2016)(“Each statement to which Redwind objected for lack of personal knowledge was made about the declarants’ employment and events which occurred during the scope of that employment.”). Accordingly, the Court OVERRULES Defendant’s lack of personal knowledge objections.

 

Defendant objects to Ms. Chao’s testimony regarding the exhibits attached to her Declaration based on the best evidence rule. However, Ms. Chao is not testifying to the contents of the documents, she merely attaches them to her Declaration. Therefore, the Court should OVERRULE Defendant’s best evidence rule objections.

 

 

1. Xu Declaration

*4 Defendant objects to Exhibit A of the Xu Declaration, the invoice for the sale of the Cargo from Krystal to “Grand Union,” for lack of authentication. Def.’s Evid. Objs. to Xu Decl. 2:6–10. However, Defendant also attaches the Invoice as an exhibit to the Chan Declaration.2 See Chan Decl., Ex. 1. By offering the Invoice as evidence in support of its Opposition, Defendant is agreeing that the Invoice is authentic. Forest Labs., Inc. v. Ivex Pharm., Inc., 237 F.R.D. 106, 117 (D. Del. 2006)(overruling foundation objection where defendants offered the same exhibit to which they were objecting). Accordingly, the Court OVERRULES Defendant’s objection to Exhibit A to the Xu Declaration.

 

Defendant then objects that Mr. Xu’s testimony about Krystal’s sale of the Cargo to Dalian is inadmissible because the Invoice is the best evidence of the sale. Def.’s Evid. Objs. to Xu Decl. 6:7–14. As Defendant notes, the Invoice does not name Dalian as the buyer, but rather names Grand Union. Id. The Court agrees that the Invoice is the best evidence to prove the contents of the Invoice, not Mr. Xu’s testimony, and SUSTAINS Defendant’s objection to paragraph 5 of the Xu Declaration.

 

 

1. Wang Declaration

Defendant objects that the Wang Declaration fails to properly authenticate the three exhibits attached to the Declaration: (1) the sales contract between Dalian and the Chinese buyer of the Cargo, (2) the repair quote, and (3) the Assignment of Rights. See Wang Decl., Exs. A–C.

 

First, Ms. Wang testifies in her Declaration that she is the Director of Dalian and her duties include “assisting with the overall management of Dalian’s business.” Id. ¶ 3. Ms. Wang therefore has personal knowledge of the sales Dalian makes. Further, the sales contract names Dalian and the Chinese buyer and appears to be what Ms. Wang claims it to be. See Las Vegas Sands, Ltd. Liab. Co. v. Nehme, 632 F.3d 526, 533 n.6 (9th Cir. 2011) (“[A]uthentication sufficient for admissibility can be satisfied by the object’s ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’ ” (quoting Fed. R. Evid. 901(b)(4))). Therefore, Ms. Wang has authenticated the sales contract.

 

Second, the repair quotation also appears to be what Ms. Wang claims it to be. It specifically states that the quotation is for a 2014 Mercedes Benz Sprinter roof with the same VIN number as the Cargo. Accordingly, Ms. Wang has sufficiently authenticated the repair quotation.

 

Third, the Assignment of Rights contains Ms. Wang’s signature, and she testifies that the exhibit is a true and correct copy of the Assignment. See APL Co. Pte. Ltd. v. UK Aerosols Ltd., No. C 05–00646 MHP, 2007 U.S. Dist. LEXIS 12689, at *26, 2007 WL 607902 (N.D. Cal. Feb. 22, 2007)(overruling authentication objection when witness testified to personal knowledge of the agreement and the agreement had his signature on it). Therefore, Ms. Wang has sufficiently authenticated the Assignment of Rights exhibit.

 

Defendant’s lack of authentication objections to the exhibits attached to the Wang Declaration are therefore OVERRULED.

 

Defendant also objects to these Exhibits on the grounds that they are inadmissible hearsay. Def.’s Evid. Objs. to Wang Decl. 7:9–8:17. Plaintiffs briefly address the hearsay objection as it pertains to the repair quote, arguing that it is a business record. Pls.’ Resp. to Def.’s Evid. Objs. 7:15–24. However, to qualify as a business record, Federal Rule of Evidence 803(6) requires that a declarant state (1) that the record was made at or near the time of the event recorded (2) by a person with knowledge, (3) the record were kept in the course of a regularly conducted business activity, and (4) it was the regular practice of that business activity to make the record. Ms. Wang’s Declaration does not mention any of these four requirements in reference to any of the attached Exhibits. See Li v. Affordable Art Co., No. 1:12–CV–03523 RLV, 2014 U.S. Dist. LEXIS 190314, at *15, 2014 WL 11862796 (N.D. Ga. Feb. 10, 2014)(concluding that exhibits did not fall within the business records exception because the accompanying declaration did not include all four of the requirements under Rule 803(6)). Accordingly, Defendant’s hearsay objections to the Wang Declaration Exhibits are SUSTAINED.

 

*5 Defendant also objects to three statements Ms. Wang makes in her Declaration. It first objects to the statement, “Kede began to modify the Cargo to meet the requirements of Dalian’s Chinese buyer.” Wang Decl. ¶ 5. Ms. Wang does not provide any foundation for how she knows this information, much less that she has any connection to Kede. Ms. Wang has failed to provide any testimony of her personal knowledge of this statement. Therefore, Defendant’s objection to this statement is SUSTAINED.

 

Defendant also objects to paragraph 6 on the basis that Ms. Wang has not shown she has personal knowledge of Dalian obtaining a repair quotation for the Cargo. Def.’s Evid. Objs. to Wang Decl. 6:3–9. Paragraph 6 states: “Dalian obtained a repair estimate of CNY 534072.00, equal to $82,291.53 on the basis of the then-prevailing exchange rate.” Wang Decl. ¶ 6. Ms. Wang also testified that she is the Director of Dalian and is responsible for overseeing the management of the business. Id. ¶¶ 2–3. This is sufficient to establish personal knowledge. See Redwind, 2016 U.S. Dist. LEXIS 57793, at *64, 2016 WL 1732871. Therefore, Defendant’s lack of personal knowledge objection to paragraph 6 is OVERRULED.

 

Defendant objects to paragraph 7 on the basis that it is hearsay and Ms. Wang has not demonstrated that she has personal knowledge necessary to make this statement. Def.’s Evid. Objs. to Wang Decl. 6:9–13. Ms. Wang has not shown how she has any personal knowledge of the cost of the Cargo at origin or whether she was at all involved in determining the cost of the Cargo. Additionally, the fact that the repairs were not acceptable to the Chinese buyer of the Cargo is hearsay because it is the Chinese buyer’s out-of-court statement offered for its truth. Ms. Wang has not demonstrated that she participated in conversations with the Chinese buyer. Because she has failed to show how she has any personal knowledge of these statements, and Plaintiffs have failed to establish how the statements from the Chinese buyer fall within an exception to the hearsay rule, the Court SUSTAINS Defendant’s objections to paragraph 7.

 

 

2. Plaintiffs’ Evidentiary Objections Are OVERRULED in part and SUSTAINED in part

Plaintiffs object to statements made in the Chan and Hu Declarations. Many of Plaintiffs’ objections “are boilerplate and devoid of any specific argument or analysis as to why any particular exhibit or assertion in a declaration should be excluded,” and therefore, the Court OVERRULES each of these objections. See United States v. HIV Cat Canyon, Inc., 213 F. Supp. 3d 1249, 1257 (C.D. Cal. 2016); see also Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013)(refusing to “scrutinize each objection and give a full analysis of identical objections”); Amaretto Ranch Breedables v. Ozimals, Inc., 907 F. Supp. 2d 1080, 1081 (N.D. Cal. 2012)(“This Court need not address boilerplate evidentiary objections that the parties themselves deem unworthy of development, and the Court accordingly summarily overrules the objections.” (internal citations omitted)). The Court will only address the objections for which Plaintiffs have provided specific argument.

 

Plaintiffs object to the statement in paragraph 3 of the Chan Declaration where Ms. Chan states, “[Jenny Xu of Plaintiff Krystal] acknowledged this,” when referring to Ms. Xu’s ability to purchase marine insurance for any cargo Defendant shipped. Whether Defendant provided Plaintiffs with an opportunity to purchase marine insurance is irrelevant to the analysis of Plaintiffs’ Motion. Because the Court does not rely on this statement in ruling on Plaintiffs’ Motion, the Court OVERRULES this objection as MOOT.

 

*6 Plaintiffs object to the statement, “Sharon Yu and Jenny Xu declined to obtain marine insurance, which would have resolved the issue,” which is contained in both the Chan and Hu Declarations. See Chan Decl. ¶ 8; Hu Decl. ¶ 6. As noted above, the offer of marine insurance is irrelevant to the Court’s ruling on Plaintiffs’ Motion. As such, the Court OVERRULES this objection as MOOT.

 

Plaintiffs make the same objection to several statements in both the Chan and Hu Declarations, which all state the declarant is “aware” of a certain fact. See Chan Decl. ¶¶ 8, 11, 14, 16–19; Hu Decl. ¶¶ 8–9, 12, 14–16. Plaintiffs argue that awareness is not sufficient for personal knowledge. Pls.’ Evid. Objs. to Chan Decl. 2:11–18. However, both declarants have established that they were directly involved in communicating with Plaintiffs’ employees about the shipment of the Cargo. Chan Decl. ¶¶ 3–4; Hu Decl. ¶ 2. Therefore, the declarants’ awareness of the statements to which they testify are based on adequate personal knowledge. The Court OVERRULES Plaintiffs’ lack of personal knowledge objections based on the use of the word “aware.”

 

Plaintiffs object to the following statement in the Chan Declaration, “In this instance, I am aware that neither the trucking company, nor US Lines, nor APM Terminals called C.U. Transport to alert C.U. Transport that the Sprinter was damaged while being transported to the APM Terminals,” Chan Decl. ¶ 16, on the grounds that Ms. Chan does not have personal knowledge of whether the entities called Defendant. Pls.’ Evid. Objs. to Chan Decl. 4:23–5:8. Ms. Chan has not established how she knows none of the entities called Defendant regarding the damage to the Cargo. As such, Plaintiffs’ objection to this statement is SUSTAINED.

 

Plaintiffs object to the statement, “In previous shipments, Krystal, Inc. also had the ability to declare a higher value on the bill of lading.” Hu Decl. ¶ 3. Plaintiffs argue that Ms. Hu has not established personal knowledge necessary to make this statement. Pls.’ Evid. Objs. to Hu Decl. 1:7–16. However, Ms. Hu testified in her Declaration that she had worked previously with Plaintiff Krystal, and the “course of dealing” between herself and Plaintiff Krystal “indicate [the] pattern for value declaration.” Hu Decl. ¶ 11. Based on her previous dealings with Plaintiff Krystal, Ms. Hu has shown personal knowledge of the statement she has made, and the Court OVERRULES this objection.

 

Plaintiffs object to the statement, “I am aware that Sharon Yu and Jenny Xu of Krystal, Inc. had the opportunity on numerous transactions to indicate a different value on the Bill of Lading yet never did,” Hu Decl. ¶ 11, on the grounds that Ms. Hu lacks personal knowledge of what the women “had the opportunity” to do. Pls.’ Evid. Objs. to Hu Decl. 4:4–11. However, Ms. Hu states that her prior course of dealing with the women provides evidence of this practice. Hu Decl. ¶ 11. As such, Ms. Hu has personal knowledge of what the women had the opportunity to do, and the Court OVERRULES the objection.

 

 

4. The Court GRANTS Plaintiffs’ Motion as to Breach of Contract Liability, DENIES as MOOT Plaintiffs’ Motion as to Negligence Liability, and DENIES Plaintiffs’ Motion as to Damages

The Court turns to the merits of Plaintiffs’ Motion.3

 

 

1. Liability for Damage to Goods Under COGSA

*7 In this matter, Plaintiffs bring breach of contract and negligence claims based on alleged damage that occurred to the Cargo during shipment. The parties do not dispute that COGSA governs the shipment in this matter and any potential liability for damage to the Cargo during shipment. See Mot. 3:25–4:6; Opp’n 9:18–19. COGSA “was enacted to allocate risk of loss and create predictable liability rules for ocean carriers and shippers.” Indem. Ins. Co. of N. Am. v. Totem Ocean Trailer Express, No. C13–6093 BHS, 2015 U.S. Dist. LEXIS 15488, at *6–7, 2015 WL 520059 (W.D. Wash. Feb. 9, 2015). “Every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of [COGSA].” 46 U.S.C.S. § 30701 note (Language of COGSA). Therefore, COGSA specifically governs the Bill of Lading in this matter and any potential breach of the Bill of Lading Plaintiffs are alleging.

 

“Generally under COGSA, a shipper establishes a prima facie case against the carrier by showing that the cargo was delivered in good condition to the carrier but was discharged in a damaged condition.” Taisho Marine & Fire Ins. Co. v. M/V Sea–Land Endurance, 815 F.2d 1270, 1274 (9th Cir. 1987).

 

Defendant disputes the fact that Plaintiffs delivered the Cargo to Defendant in good condition. See Stmt. of Genuine Issues in Opp’n to Mot. for Sum. J. ¶ 8. However, Defendant does not dispute that it issued a “Clean on Board” Bill of Lading. See id. ¶ 9. “[I]n the usual cargo-damage case the shipper makes a showing of good condition on shipment sufficient for its prima facie case by introducing a ‘clean’ bill of lading.” Daido Line v. Thomas P. Gonzalez Corp., 299 F.2d 669, 671 (9th Cir. 1962). Because there is a “clean” Bill of Lading, which Defendant does not dispute, Plaintiffs have established that they delivered the Cargo to Defendant in good condition.

 

Plaintiffs must then prove that the Cargo was discharged in a damaged condition. Taisho, 815 F.2d at 1274. Defendant does not dispute that the Cargo arrived in the port in China in a damaged condition, nor could they do so. Plaintiffs include as an exhibit to the Chao Declaration an email from Ruby Hu of Defendant to Jenny Chao of Plaintiff Kede in which Ms. Hu states, “Sorry to inform you that your car has been damaged.” Chao Decl., Ex. C. To prove liability, Plaintiffs need only show that the Cargo was discharged in a damaged condition. In re Complaint of Damodar Bulk Carriers, Ltd., 903 F.2d 675, 683 (9th Cir. 1990). Plaintiffs have met their burden to do so, and Defendant has offered no evidence to raise a genuine issue of material fact as to whether the Cargo was damaged upon arrival to port.

 

Ultimately, there is no genuine issue of material fact as to the two elements of liability under COGSA. As noted, COGSA governs Plaintiffs’ breach of contract claim, which alleges a breach of the Bill of Lading. Compl. ¶¶ 10–11. The Court GRANTS Plaintiffs’ Motion as to liability under their breach of contract claim. Because the Court has granted Plaintiffs’ Motion as to liability for their breach of contract claim, Plaintiffs’ Motion as to liability for their negligence claim is DENIED as MOOT.

 

 

1. Limitation of Liability in the Bill of Lading

After determining that no genuine issue of material fact exists as to whether Defendant is liable for a breach of contract under COGSA, the Court must determine whether a genuine issue of material fact exists as to the amount of damages for which Defendant is liable.

 

The focus of the parties’ arguments in regards to Plaintiffs’ Motion is whether the Bill of Lading properly limited the amount of Defendant’s liability. COGSA limits a carrier’s liability for loss and damage to goods shipped:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $ 500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.

*8 46 U.S.C.S. § 30701 note. This limitation only applies “if the shipper is given a ‘fair opportunity’ to opt for a higher liability by paying a correspondingly greater charge.” Nemeth v. Gen. S.S. Corp., 694 F.2d 609, 611 (9th Cir. 1982). “[T]he burden of proving ‘fair opportunity’ is initially upon the carrier.” Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806, 809 (9th Cir. 1982). “[T]he mere incorporation of COGSA by reference is not adequate.” Mori Seiki USA, Inc. v. M.V. Alligator Triumph, 990 F.2d 444, 449 (9th Cir. 1993). Instead, the bill of lading must explicitly include the specific limitation of liability language of COGSA or language “ ‘to the same effect’ as the statute.” Id. (citation omitted).

 

Prior to addressing whether Plaintiffs were provided with a fair opportunity to opt for higher liability, Defendant argues that it is under no obligation to alert Dalian, and therefore Plaintiffs as the assignees of Dalian, of the limitation of liability because Dalian was a consignee. Opp’n 10:11–15. It argues that the Ninth Circuit has determined that a carrier does not have to alert consignees or other third parties of the limitation of liability. Id. at 10:9–13 (citing Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 900–01 (9th Cir. 1989)). Relying on Carman, Defendant oddly argues that “without notice of the limitation of liability codified in COGSA, Dalian is bound by COGSA’s limitation of liability.” Opp’n 10:19–22.

 

However, Defendant misconstrues the holding of Carman. The court in Carman held that the carrier was not responsible for notifying every involved party of the limitation of liability as long as the limitation of liability language from COGSA was contained in the bill of lading. 871 F.2d at 901. Defendant specifically admits that the language of COGSA was not contained in the Bill of Lading. Opp’n 12:3–6. Therefore, the holding in Carman is irrelevant.

 

Defendant makes clear that it is not aiming to limit its liability to $500 as provided in COGSA. Id. at 12:25–26. Instead, it argues that its liability should be limited based on the $2.00 per kilogram limitation explicitly contained in the Bill of Lading. Id. at 12:26–13:2. The Bill of Lading states that Defendant’s liability is “limited to US $2.00 per kilogram or US $100.00 per shipment which ever is smaller.” Hu Decl., Ex. 1.

 

Defendant correctly acknowledges that the $100.00 limitation is unenforceable. Opp’n 13 n.2; see Tessler Bros. (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 443 n.6 (9th Cir. 1974)(noting that any clause that lessens the liability of the carrier below the $500 enumerated in COGSA is null and void). However, Defendant focuses on the limitation of $2.00 per kilogram. Opp’n 12:25–13:2. But focusing on the $2.00 per kilogram limitation ignores the full text of the limitation. The clause limits liability to $2.00 per kilogram or $100.00, “which ever is smaller.” Hu Decl., Ex. 1. Therefore, the only time the parties would rely on the weight-based portion of the clause is if the weight of the Cargo multiplied by $2.00 was less than $100.00. Put simply, the limitation of liability would never be over $100.00. Because this limitation lessens the liability to below the $500 limitation COGSA provides, it is “null and void.” Tessler Bros., 494 F.2d 438, 443 n.6.

 

Defendant also argues that Plaintiffs had actual knowledge of the limitation of liability based on past conduct and communications of the parties. Opp’n 11:6–10. However, in making this argument, specifically through the Chao and Hu Declarations, Defendant focuses on the $2.00 per kilogram limitation, not the $500 default limitation in COGSA. In fact, Ms. Hu’s Declaration notes that the $2.00 per kilogram limitation was included “in all bills of lading between [Defendant] and Krystal, Inc. in the past.” Hu Decl. ¶ 10. The Court has already determined that the limitation of liability clause in the Bill of Lading is null and void because it lessens liability to below the $500 default limitation in COGSA. Therefore, Defendant cannot argue that Plaintiffs were on “actual notice” of a void limitation of liability. Cf. Royal Exchange Assurance of Am., Inc. v. M/V Hoegh Dene, 1988 A.M.C. 868 (W.D. Wash. 1987) (holding that carrier could still meet its burden to show shipper had a “fair opportunity” to opt for higher liability by showing actual knowledge of the COGSA limitation through communications and prior practices, rather than just constructive knowledge through quoting COGSA’s limitation provision in the bill of lading, and such was an issue of fact).

 

*9 Accordingly, Defendant has failed to raise a genuine issue of material fact as to its limitation of liability in the Bill of Lading.

 

 

1. Proper Calculation of Damages

Because Defendant has failed to raise a genuine issue of material fact as to whether the Bill of Lading limited liability, the question then becomes what the correct value of the damages is.

 

Under COGSA, the “basis of recovery for the usual carriage of goods [is] the value at the point of destination.” Otis McAllister & Co. v. Skibs, 260 F.2d 181, 183 (9th Cir. 1958); see Ansaldo San Giorgio I v. Rheinstrom Bros. Co., 294 U.S. 494, 495–96 (1935)(affirming “damages [computed] on the basis of the market value of the goods at destination on the date of arrival”); Neptune Orient Lines, Ltd. v. Burlington N. & Santa Fe Ry. Co., 213 F.3d 1118, 1120 (9th Cir. 2000)(“ ‘Market value at destination’ is the proper measure of the actual loss ….”). However, the Neptune Orient Lines court noted that this formula for determining damages is appropriate where “the shipment is lost or destroyed.” 213 F.3d at 1120. Where the cargo is merely damaged, the measurement of damages is “the difference between the fair market value of the goods at their destination in the condition in which they should have arrived and the fair market value of the goods in the condition in which they actually did arrive.” Texport Oil Co. v. M/V Amolyntos, 11 F.3d 361, 365 (2d Cir. 1993).

 

Plaintiffs argue that the market value of the Cargo is $217,678.74, “the price Dalian’s buyer contracted to pay.” Mot. 8:4–8. However, Defendant points to the fact that Plaintiffs have not provided any evidence that Plaintiffs sold the Cargo to Dalian. Opp’n 2:13–17. The invoice Plaintiffs provided to Defendant named Grand Union as the buyer, and nowhere on the invoice does it reference a sale to Dalian. See Chan Decl., Ex. 2. Moreover, the invoice for the sale of the Cargo to Grand Union lists the sale price as $72,980.00, the purported fair market value of the Cargo. Id.

 

In response to Defendant’s Interrogatories, Plaintiffs claimed a total of $154,435.95 in damages, which included the $72,980.00 vehicle value, taxes, penalties paid to the buyer, and shipping. Decl. of Joan Cochran (“Cochran Decl.”), Ex. 5, at 22, ECF No. 47–4. It was not until Plaintiffs filed this Motion that they argued they were entitled to recover $217,678.74 in damages.4

 

Further, the only evidence Plaintiffs have provided to support their claim of $217,678.74 in damages is the contract for sale of the Cargo from Dalian to the Chinese buyer. See Wang Decl., Ex. A. As noted, Defendant objected to this Exhibit based on hearsay. See Def.’s Evid. Objs. to Wang Decl. 7:9–20. Ms. Wang did not lay the proper foundation in her Declaration for an exception to the hearsay rule, and therefore, the contract is inadmissible.5 Even if the contract was admissible evidence, Plaintiffs have failed to prove as a matter of law that this sale price is in fact the fair market value of the Cargo at the destination.

 

*10 Plaintiffs have offered different damage calculations throughout this litigation, only arguing the highest, $217,678.74, in the instant Motion. Plaintiffs have failed to provide evidence confirming the sale of the Cargo from Plaintiffs to Dalian and the true market value of the Cargo at destination. As such, genuine issues of material fact exist as to the calculation of damages, and the Court DENIES Plaintiffs’ Motion as to damages.

 

 

III. CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiffs’ Motion [45] as to the question of liability under their breach of contract claim, DENIES as MOOT Plaintiffs’ Motion as to liability under their negligence claim, and DENIES Plaintiffs’ Motion as to the amount of damages.

 

IT IS SO ORDERED.

 

All Citations

Slip Copy, 2017 WL 4339343

 

 

Footnotes

1

Defendant objects to the statement in paragraph 5, “Kede requested a quote for transportation of Cargo ….” Defendant objects to the statement in paragraph 6, “Kede accepted a quote and tendered the Cargo shipment.” Finally, Defendant objects to the statement in paragraph 7, “On November 5, 2015, C.U., received the Cargo from Kede in good order and condition attaching Exhibit B.”

2

The only difference between the two documents is that Plaintiffs attach as Exhibit A a copy of the Invoice that was attached to the Report of Survey regarding the potential damage to the Cargo, so the copy of the Invoice is on the Report of Survey letterhead. The contents of the two invoices are the same.

3

Defendant notes that it was not aware Plaintiffs were assignees of Dalian, to whom Plaintiffs sold the Cargo. Opp’n 9:25–10:1. Rather, the commercial invoice Defendant received named Grand Union as the buyer of the Cargo. Id. at 3:13–15. Defendant therefore included Grand Union on the Bill of Lading. Id. at 3:17–18. While Defendant argues that Plaintiffs failed to inform Defendant that Plaintiffs were suing as assignees of Dalian, Defendant does not argue that the Court should deny the Motion for that reason. Rather, Defendant simply states that “Plaintiffs stand in the shoes of their assignor and are subject to all of the defenses existing at the time of the assignment.” Id. at 10:3–6. As such, the Court addresses the merits of Plaintiffs’ Motion.

4

Plaintiffs claim that they provided the contract regarding the sale of the Cargo from Dalian to the Chinese buyer, which contained the $217,678.74 purchase price, in their Initial Disclosures. Reply 7:7–11. However, Plaintiffs did not include this number in any prior computation of damages, including their Complaint (loss of $142,841.15), Initial Disclosures (“Damages are based upon the cost of repair, freight charges, taxes and the amount of a contractual penalty PLAINTIFFS paid to the Cargo buyer.”), or responses to Defendant’s Interrogatories (total damages of $154,435.95).

5

Further, while Plaintiffs offer the Quotation Dalian received for repairs to the Cargo, see Wang Decl., Ex. B, they have not provided any evidence of what the value of the Cargo was when it arrived damaged in China. Therefore, there the Court cannot calculate the proper damages owed to Plaintiffs using the typical formula. See Texport Oil Co., 11 F.3d at 365.