ERVIN YOUNG, ETAL VERSUS GREGORY WALLER, ET AL

 

CIVIL ACTION NO. 1:14-3030

 

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, ALEXANDRIA DIVISION

 

2017 U.S. Dist. LEXIS 173592

 

 

October 19, 2017, Decided

October 19, 2017, Filed

 

 

COUNSEL:  [*1] For Ervin Young, Individually and on behalf of M Y, on behalf of X Y, Ashley Dauzat, Individually and on behalf of M Y, on behalf of X Y, Plaintiffs: Cory P Roy, LEAD ATTORNEY, Benjamin David James, Brandon Jude Scott, Roy & Scott, Marksville, LA.

 

For Gregory Waller, Murrays Trucking Inc, Defendants: Lottie L Bash, LEAD ATTORNEY, Laura Beth Matthews, Faircloth Melton & Sobel, Alexandria, LA.

 

For Flames Logistics Inc, Tower Insurance Co of New York, Defendants: Lance R Rydberg, LEAD ATTORNEY, Mitchell Hasenkampf, Hangartner Rydberg & Terrell, New Orleans, LA.

 

JUDGES: JAMES T. TRIMBLE, JR., UNITED STATES DISTRICT JUDGE. MAG. JUDGE HORNSBY.

 

OPINION BY: JAMES T. TRIMBLE, JR.

 

OPINION

 

MEMORANDUM RULING

Before the court is a “Motion for Summary Judgment” (R. #71) wherein defendant, Flames Logistics, Inc. and Tower Ins. Company seek to be dismissed with prejudice from the instant lawsuit pursuant to Federal Rule of Civil Procedure 56.

 

STATEMENT OF FACTS

This matter arises out of a motor vehicle accident which occurred on April 25, 2014 involving a 2005 Volvo truck driven by Gregory Waller and a 2004 Chrysler automobile driven by plaintiff, Ashley Dauzat. Ervin Young and his minor children M.Y. and X. Y. were passengers.

On October 18, 2013, Norma Spence, the principal [*2]  and owner of Defendant, Flames Logistics, Inc. entered into a Volvo Truck Sale Agreement (the “Agreement”)1 on behalf of Flames Logistics to sell the 2005 Volvo tractor to Defendant, Murray’s Trucking. Flames Logistics asserts that it did not own, operate or direct the operation of the 2005 Volvo truck involved in the accident, nor did Flames Logistics employ or contract the driver of the Volvo truck involved in the accident. Flames Logistics notes that Plaintiffs named two separate trucking companies as responsible defendants in this lawsuit.

 

1   Defendants’ exhibit B.

The Agreement entered on October 18, 2013 provided that the final payment of the purchase price was July 18, 2015; the Agreement further required Murray’s, who is designated as the “contractor”, to maintain liability insurance, DOT tags, DOT titles, DOT licensure and to use the truck for its designed purpose and cover all expenses through the payment terms.2

 

2   Defendant’s exhibit B, R. #71-4.

The Motor Vehicle Traffic Crash Report identifies the carrier as Murray’s Trucking, the owner, as Norma Spence, and the insurer, as Tower.3

 

3   Defendant’s exhibit A, R. #71-3; Tower Ins. Co. of NY has been liquidated and Georgia Insurers Insolvency Pool (“GILA”) has stepped into the shoes of Tower pursuant to Georgia law, O.C.G.A. § 33-36-9.

 

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the [*3]  affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.4 A fact is “material” if its existence or nonexistence “might affect the outcome of the suit under governing law.”5 A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party.6 As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party’s claim.”7 Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.8 The burden requires more than mere allegations or denials of the adverse party’s pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.9 There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier [*4]  of fact could find for the non-moving party.10 If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.11 The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.12

 

4   Fed. R. Civ. P. 56(c).

5   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

6   Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).

7   Vera v. Tue, 73 F.3d 604, 607 (5th Cir. 1996).

8   Anderson, 477 U.S. at 249.

9   Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

10   Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

11   Anderson, 477 U.S. at 249-50.

12   Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)

 

LAW AND ANALYSIS

In the instant motion, Defendants, Flames Logistics and Tower move to be dismissed because there is no causal connection between Flames Logistics and the accident at issue, and there is no viable legal theory under which Flames Logistics can be held vicariously liable. Defendants allege that the Volvo truck operated by Mr. Waller at the time of the accident was owned by Flames Logistics prior to the date of the accident, and that prior to the date of the accident, Flames Logistics had transferred possession and ownership of the truck to Murrays. Defendants further assert that Mr. Waller was not employed, controlled or directed by Flames Logistics at the time of the accident.

Plaintiffs assert that on the date of the accident, Flames Logistics/ Norma Spence was still the owner of the vehicle pursuant to the Agreement, Tower was the liability insurer, and ownership of the truck [*5]  had not been transferred to Murrays. Plaintiffs argue that the Agreement sounded more in lease than in sale because ownership would not be transferred until the last payment was made, and because the Agreement required Murrays to maintain liability insurance, DOT tags, DOT titles, DOT licensure, and that Murrays was to use the truck for the purpose for which it was designed. In other words, Plaintiffs maintain that Flames Logistics retained ownership until Murrays made the final payment. Plaintiffs remark that because the Uniform Motor Vehicle Crash Report listed Mr. Waller as the driver, Murrays as the carrier, and Norma Spence as the owner, Mr. Waller was apparently driving the truck under the employment of either Flames Logistics or Murrays. Thus, Plaintiffs assert that there is a genuine issue of fact for trial as to whether ownership had transferred to Murrays, and whether Murrays was acting as the agent of Flames Logistics.

Plaintiffs rely on Louisiana Civil Code article 2623 which defines a bilateral promise of sale or a contract to sell as “[a]n agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some [*6]  obligation by either party.” Such an agreement gives either party the right to demand specific performance. A contract to sell must set forth the thing and the price, and to meet the formal requirements of the sale it contemplates.”

Revised Comment (c) to article 2623 states “[i]n a contract to sell, ownership and risk remain with the vendor, since a contract to sell does not effect a transfer of ownership.” Thus, Plaintiffs maintain because a contract to sell was entered into by the parties, ownership remained with Flames Logistics at the time of the accident.13

 

13   Citing Rourke v. Cloud, 398 So.2d 57 (La. App. 3 Cir. 1981); Harris v. Olivier’s Contractors, 155 So.3d 652 (La. App. 3 Cir. 12/10/14); Hewitt v. Safeway Ins. Co. of Louisiana, 787 So.2d 1182 (La.App. 3 Cir. 6/6/01).

In Hewitt v. Safeway Ins. Co. of Louisiana,14 the Third Circuit Court of Appeal reversed the trial court’s finding that an agreement with payment plans was a contract to sell pursuant to Louisiana Civil Code article 2623. The appellate court determined that based on the parties’ actions immediately after execution of the agreement (taking possession of the subject vehicle and using it as their own) that they intended more than just an agreement to sell the vehicle in the future. The defendant insurer argued that the agreement was a conditional sale agreement, and as such, ownership of the vehicle transferred immediately to the purchaser. The Third Circuit agreed. [*7]

 

14   Id.

The transfer of ownership of property in Louisiana takes place “as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.15 “Louisiana has declined to recognize the common law concept of conditional sale of movables where the vendor attempts to retain ownership until the purchase price is paid in full.”16 In Haymon v. Hollidav,17 the court explained:

 

Accordingly, if the parties have agreed on the thing and the price, the sale is complete. The parties cannot validly agree that the seller will retain title to the object until payment of the purchase price, as Louisiana does not recognize the common law conditional sales contract for movable property. The effect of this law is that the seller is divested of ownership as soon as the buyer is unconditionally bound to pay the purchase price, and such contractual attempts to retain title until payment are of no effect.

 

 

 

 

15   Louisiana Civil Code article 2456.

16   Security Ctr. Protection Servs., Inc. v. All-Pro Sec., Inc., 703 So.2d 806 (La. App. 4 th Cir. 11/26/97).

17   405 So.2d 1304 (La.App. 3 Cir. 1981)(citations omitted).

Moreover, an attempted conditional sale agreement is simply “treated as a credit sale in which ownership of the object of the sale passes at the time the contract is entered into.”18 The parties contemplated [*8]  that title would be transferred upon compliance with the payment schedule contained in the Agreement. Thus, the court finds that the Agreement was not a lease, nor was it a contract to sell. Ownership passed once the Agreement was executed.

Flames Logistics maintains that Plaintiffs have failed to submit summary judgment evidence to establish that the driver, Mr. Waller was directed and/or controlled by Flames Logistics in order to prove vicarious liability. Flames Logistics submits the affidavit of Noram Spence which establishes that Mr. Waller was not employed, controlled or directed by Flames Logistics at the time of the accident.19 Plaintiffs rely solely on the Agreement and the Vehicle Crash Report. Plaintiffs have failed to present any summary judgment evidence to create a genuine issue of material fact for trial as to whether Mr. Waller was directed and/or controlled by Flames Logistics; therefore there can be no claim of vicarious liability as to Flames Logistics.

 

18   Succession of Dunham, 408 So.2d 888, 896 (La. 1981).

19   Defendants’ exhibit C, R. #71-5.

 

CONCLUSION

For the reasons set forth above, the motion for summary judgment will be granted dismissing with prejudice Plaintiffs claims against defendants, Flames Logistics Inc. and Tower Insurance Company of New York [*9]  (due to insolvency, now referred to as Georgia Insurers Insolvency Pool). The Court determines that there is no just reason for delay and will direct entry of final judgment under rule 54(b) of the Federal Rules of Civil Procedure.

THUS DONE AND SIGNED in Alexandria, Louisiana on this 19th day of October, 2017.

/s/ James T. Trimble, Jr.

JAMES T. TRIMBLE, JR.

UNITED STATES DISTRICT JUDGE

LAMEX AGRIFOODS, INC., Plaintiff, -v- MSC MEDITERRANEAN SHIPPING COMPANY S.A., Defendant.

 

16-CV-8462 (JPO)

 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

 

2017 U.S. Dist. LEXIS 175211

 

 

October 23, 2017, Decided

October 23, 2017, Filed

 

 

COUNSEL:  [*1] For Lamex Agrifoods, Inc., Plaintiff: James Paul Krauzlis, Martin F Casey, LEAD ATTORNEYS, Gregory George Barnett, Casey & Barnett, LLC, New York, NY.

 

For MSC Mediterranean Shipping Company S.A., Defendant: Garth S. Wolfson, Mahoney & Keane, LLP, New York, NY.

 

JUDGES: J. PAUL OETKEN, United States District Judge.

 

OPINION BY: J. PAUL OETKEN

 

OPINION

 

OPINION AND ORDER

1. PAUL OETKEN, District Judge:

This maritime case involves a container of frozen peaches shipped from Thessaloniki, Greece, to La Porte, Texas. The peaches thawed before their time. The question in this case is which party is responsible for the damage. According to the customer–Lamex, our Plaintiff–it is the shipper’s responsibility. According to the shipper–MSC, our Defendant–the customer bears the risk of loss. MSC moves for judgment on the pleadings. For the reasons that follow, the motion is granted.

 

1. Background

The relevant contract is the bill of lading, which provided that MSC would ship a refrigerated container of frozen peaches from the port of Thessaloniki to the port of Houston. It also provided that MSC would supply a refrigerated container and maintain the container at a temperature of -20 degrees Celsius.

After the container arrived in Houston, [*2]  it was loaded onto a truck for inland shipping. Importantly, while the trucker was contracted by Lamex, the peaches were still in MSC’s container. On the way from the port of Houston to La Porte, Texas, the freezer malfunctioned, and the peaches thawed. Although the peaches were later refrozen, Lamex was unable to sell them at market value, suffering a $48,000 loss.

Lamex filed this action on October 31, 2016. In the Complaint, Lamex asserts claims for breach of contract and negligence. MSC answered, then moved for judgment on the pleadings.

Because this is an admiralty and maritime action, this Court has subject matter jurisdiction under 28 U.S.C. § 1333.

 

1. Legal Standard

A party is entitled to judgment on the pleadings under Federal Rule of Civil Procedure 12(c) if it establishes that it is entitled to judgment as a matter of law and that no material issue of fact remains unresolved. See Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990). “‘The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim,’ and, as in a 12(b)(6) motion, the Court takes the facts alleged in the complaint as true.” Zurich Ins. Co. v. Crowley Latin Am. Servs., LLC, No. 16 Civ. 1861, 2016 U.S. Dist. LEXIS 175872, 2016 WL 7377047, at *2 (S.D.N.Y. Dec. 20, 2016) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)).

 

III. Discussion

MSC argues that the bill of lading disclaims any liability on the part of MSC for damage occurring while [*3]  the container was not in MSC’s control. Lamex responds by pointing to two potential claims: (1) that the peaches actually thawed onboard the ship, when they were still in MSC’s control, and (2) that even if the peaches thawed on the truck, MSC is liable for providing a faulty container. However, both claims fail.

Lamex’s first claim fails because it is not in the Complaint. The Complaint tells an unambiguous story: The container embarked from Thessaloniki, made a stop in Portugal, arrived in Houston, and was loaded onto a truck bound for La Porte. Lamex alleges that on November 4, 2015–the day after the container was delivered to the trucker–“the [refrigerating unit] on the . . . container failed, causing the refrigeration system within the container to shut down. The Container therefore was unable to maintain the prescribed temperature of -20°C from the time of the [unit’s] failure until the cargo was delivered [to La Porte].” (Compl. ¶¶ 11?12.) The Complaint concludes that, “[a]s a result of the foregoing, the cargo was found to have sustained physical damage.” (Compl. ¶ 14.) Nowhere does the Complaint allege that the peaches thawed on the ship. To the contrary, the Complaint affirmatively [*4]  alleges just the opposite. See Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985) (“A party’s assertion of fact in a pleading is a judicial admission by which it normally is bound throughout the course of the proceeding.”). Accordingly, Lamex cannot now assert in its opposition brief that the peaches thawed while in MSC’s control.

Lamex’s second claim fails because the bill of lading explicitly disclaims liability for any damage sustained while the container was not in MSC’s control. The bill of lading provides that MSC’s responsibility for damage “shall end when the Goods have been discharged from the Vessel.” (Dkt. No. 16-3 ¶ 5.1(a).) With respect to refrigerated containers, the bill of lading further provides that “[MSC] shall not be liable for any loss or damage to the Goods arising from latent defects, breakdown, defrosting, [or] stoppage of the refrigerating . . . of the Container.”1 (Id. ¶ 12.3.) Finally, the bill of lading provides that “[MSC] does not warrant refrigeration . . . machinery, but shall exercise care in its operation and maintenance while in the actual possession of [MSC].” (Id. ¶ 12.4.) Lamex’s opposition brief makes no attempt to explain why these provisions do not preclude its container-based claims.

 

1   This sentence contains a proviso that it only applies “. . . provided that [MSC] exercised due diligence before releasing the empty Container to [Lamex],” (Dkt. No. 16-3 ¶ 12.3), but the Complaint makes no allegations that implicate this proviso.

Instead, [*5]  Lamex argues that there may have been a separate contract for the container that is not affected by the clear language of the bill of lading. However, Lamex alleges no facts showing that such a contract existed. Moreover, the bill of lading explicitly provides that it “is the final contract between the parties which supersedes any prior agreement or understanding, whether in writing or verbal,” and “may not be changed orally.” (Dkt. No. 16-3 ¶ 23.) While bills of lading are presumed to be issued subject to custom, and evidence of custom and usage may be used to explain the language of a bill of lading, “custom and usage cannot be used to contradict the plain terms of the bills of lading.” Albany Ins. Co. v. M/V Sealand Uruguay, No. 00 Civ. 3497, 2002 U.S. Dist. LEXIS 14847, 2002 WL 1870289, at *3 (S.D.N.Y. Aug. 13, 2002); see also Expeditors Int’l of Wash., Inc. v. Crowley Amer. Transp., Inc., 117 F. Supp. 2d 663, 670 (S.D. Ohio 2000). Given the clear language of the bill of lading, Lamex fails to state a claim for damages arising out of the failure of the refrigerator while in the possession of Lamex’s trucker.

 

1. Conclusion

For the foregoing reasons, MSC’s motion for judgment on the pleadings is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 15 and close the case.

SO ORDERED.

Dated: October 23, 2017

New York, New York

/s/ J. Paul Oetken

1. PAUL OETKEN

United States District Judge