2018 WL 5840716

United States District Court, W.D. Wisconsin.
ROEHL TRANSPORT, INC., Plaintiff and Counter Defendant,
v.
JEFFREY MORRISON, Defendant and Counter Claimant.
18-cv-511-slc
|
Filed: 11/08/2018

OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge
*1 This declaratory judgment action arising in diversity involves a dispute between a trucker, Jeffrey Morrison, and a trucking company, Roehl Transport, Inc., over whether the company was obliged to provide underinsured motorist insurance coverage to Morrison for injuries he suffered while hauling freight for the company. This dispute has spawned a host of motions: Roehl has moved to dismiss Morrison’s counterclaim for benefits and for judgment on the pleadings, Morrison has moved for summary judgment, and Roehl has moved to strike Morrison’s amended counterclaim and his affidavit. Dkts. 12-14, 21-22.

Looking at the number and length of the parties’ submissions, one might think this is a complicated case. It isn’t. Roehl Transport had no obligation under state or federal law to provide the insurance coverage Morrison is seeking. Accordingly, I am granting Roehl Transport’s motions for judgment on the pleadings and to dismiss the counterclaim, and I am denying Morrison’s motion for summary judgment. Morrison’s amended counterclaim will be stricken as untimely and futile.

One preliminary evidentiary matter requires mention: the facts set out below are drawn from the parties’ pleadings, which include by reference two contracts: (1) an Owner Operator Operating Agreement (“Operating Agreement”)between Morrison and plaintiff, Roehl Transport; and (2) a Lease Agreement entered into between Morrison and Roehl Leasing, LLC, a nonparty to this action. The only other evidence in the record is an affidavit from Morrison, see attachment to dkts. 15, 16, 23, but I am granting Roehl Transport’s request to strike it. Dkt. 22. As Roehl points out, several paragraphs of Morrison’s affidavit contain inadmissible hearsay. Further, to the extent that Morrison describes the parties’ discussions leading up to execution of the Operating Agreement, such discussions constitute improper parol evidence that the court may not consider in light of the agreement’s merger clause, which I discuss below. See, e.g., Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis.2d 600, 607, 288 N.W.2d 852 (1980) (when parties to contract embody their agreement in writing and intend the writing to be the final expression of their agreement, terms of the writing may not be varied or contradicted by evidence of any prior written or oral agreement in the absence of fraud, duress, or mutual mistake.).1 The remainder of the affidavit consists of facts that bolster Morrison’s argument that Florida, not Wisconsin, law should apply, but those facts are irrelevant because his claim for UM benefits fails even under Florida law. Therefore, I have not considered Morrison’s affidavit in deciding the pending motions.

The following material facts are undisputed:

FACTS
*2 Plaintiff and counterclaim defendant Roehl Transport, Inc. is incorporated in Wisconsin with its principal place of business in Wisconsin. Defendant and counterclaim plaintiff Jeffrey Morrison is a resident of Florida.

In April 2013, Morrison entered into agreements with two different Roehl entities, only one of which is a party to this action. First, Morrison entered into an Equipment Lease Agreement to lease a 2012 International ProStar tractor from Roehl Leasing, LLC, the non-party. See Equipment Lease with Trac Option, at 1, 13, attached to Answer to Counterclaim, dkt. 9-2. Under the terms of the Equipment Lease, Morrison—as the lessee—was required to maintain property insurance on the tractor, and he agreed to indemnify and hold harmless Roehl Leasing—the lessor—for any claims that might arise from Morrison’s operation of the tractor. Id. at 7. Under paragraph 5 of the Equipment Lease, Morrison agreed to enter into an Owner Operator Operating Agreement with Roehl Transport, Inc., for the purpose of providing transportation services pursuant to the Federal Highway Administration’s leasing regulations.

After leasing the tractor from Roehl Leasing, Morrison entered into an Owner Operator Operating Agreement (“Operating Agreement”) with Roehl Transport––the plaintiff in this action—under which Morrison (the “Owner Operator”) leased the tractor to Roehl Transport (the “Carrier”) and agreed to “render motor freight transportation services on behalf of [Roehl Transport].” Op. Agreement, attached to Answer to Countercl., dkt. 9, Exh. A, at 1. The Operating Agreement explicitly follows and incorporates the duties and requirements set forth in the Federal Motor Carrier Safety Act Leasing Regulations, 49 U.S.C. § 376 et seq. Id.

In paragraph 8 of the Operating Agreement, the parties agreed as follows:
8. General Insurance Requirements
The responsibilities and obligations between Carrier and Owner Operator involving insurance shall be as set forth in Exhibit E. Carrier shall have no insurance responsibilities pertaining to Owner Operator or the Equipment other than those expressly stated in this Agreement or mandated by law.

In Exhibit E, titled “Insurance,” Roehl Transport agreed to “carry and maintain in force and effective insurance coverage for the protection of the public pursuant to 49 U.S.C. § 13906 … with regard to liability for personal and bodily injury (including death), property damage and … cargo damage at all times while the Equipment is being operated on behalf of Carrier.” Id., Exh. E, at ¶1. Morrison agreed to maintain insurance coverage for liability and property damage when the equipment was not being operated, worker’s compensation insurance, and rider insurance. Id. at ¶2(a)-(c). Paragraph 2(d) of Exhibit E further provides:
Other Insurance
In addition to the insurance coverage’s [sic] required under this Agreement, it is Owner Operator’s responsibility to procure, carry and maintain any fire, theft, loss of business, uninsured and/or underinsured motorist, and physical damage (collision), or other insurance coverage that Owner Operator may desire for the Equipment of for Owner Operator’s health care or other needs. Carrier has no responsibility to procure, carry, or maintain any insurance covering loss of or damage to Owner Operator’s Equipment, trailer, or other property. Owner Operator acknowledges that Carrier may, and Owner Operator hereby authorizes Carrier to, waive and reject no-fault, uninsured, and underinsured motorist coverage from Carrier’s insurance policies to the extent allowed under Wisconsin law (or such other state law where the Equipment is principally garaged), and Owner Operator shall cooperate in the completion of all necessary documentation for such waiver, election, or rejection.
*3 Id. at ¶2(d) (emphasis added).

Paragraph 3 of Exhibit E provides that Morrison could obtain the required insurance coverages from any carrier of his choosing, or he could purchase coverage through Roehl Transport’s Carrier Insurance Program. Paragraph 3(a) provides that “[n]othing herein shall be construed as requiring Owner Operator to purchase such insurance coverage through Carrier or through Carrier’s recommended insurance providers, agents or underwriters,” explaining that Roehl had agreed to make such insurance coverages available for the purposes of “affording Owner Operator the favorable terms or rates which may not be otherwise available to Owner Operator.”

The Operating Agreement includes an Entire Agreement clause, which states:
This Agreement (including the Exhibits and Appendices and any addendums) constitutes the entire Agreement and understanding between the parties pertaining to the subject matter contained herein and fully replaces and supersedes all prior and contemporaneous agreements, representations, and understandings. This Agreement shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties, except as otherwise provided with respect to changes in compensation and deductions in the Appendices and Exhibits hereto.
Id. at ¶38.

Pursuant to Federal Motor Carrier Safety Administration regulations and federal law, Roehl Transport maintains a certificate of self-insurance of $1 million under the federal Uniform Registration System. This certificate of self-insurance was issued in the state of Wisconsin. See Cert. of Self-Insurance, dkt. 1, Ex. A. Roehl Transport does not provide underinsured or uninsured motorist coverage as part of its self-insurance program, nor was it required to do so under federal law.

On January 30, 2015, Morrison was operating his tractor for the benefit of Roehl Transport in Henry County, Georgia when he was involved in an accident with Charlie Jefferies. Morrison was injured in this accident. Jefferies subsequently filed a lawsuit against Morrison; Morrison counterclaimed, alleging that Jefferies’s negligence caused the accident and Morrison’s injuries. After settling with Jefferies’s insurance carrier for the policy limits, Morrison filed a demand against Roehl Transport, seeking $1 million in uninsured/underinsured motorist (“UM”) coverage under Roehl’s self-insurance plan.

This prompted Roehl Transport to file suit in the Northern District of Georgia, seeking a declaration that it neither provided nor was it required to provide such coverage to Morrison. Dkt. 1. Morrison counterclaimed for the UM coverage, asserting that Florida law requires vehicle lessors providing automobile liability insurance for the benefit of lessees to also provide uninsured motorist coverage. Dkt. 8. Roehl subsequently moved to dismiss Morrison’s counterclaim for benefits and for judgment on the pleadings, and Morrison moved for summary judgment. Dkts. 12-14. Morrison also filed an amended counterclaim. Dkt. 17.

*4 In an order entered on June 26, 2018, the district court for the Northern District of Georgia found that because the parties’ operating agreement contains a choice of law and forum provision requiring the application of Wisconsin law, the case should be transferred to this court. Dkt. 30. The parties have agreed that no formal discovery is necessary and that this case can be resolved on the pending motions. Dkt. 34, ¶4.

OPINION
As noted above, there is no dispute that Roehl Transport was not required under federal law to provide UM coverage to Morrison. There also is no dispute that Roehl Transport was not required to provide such coverage under Wisconsin law. As Roehl points out, Wisconsin does not require self-insured entities to provide uninsured motorist coverage. Classified Ins. Co. v. Budget Rent-A-Car, 186 Wis. 2d 478, 483-84, 521 N.W. 2d 177, 179 (Ct. App. 1994) (finding that Wis. Stat. § 632.32, Wisconsin’s statute requiring insurance companies issuing policies in Wisconsin to provide uninsured motorist coverage, was “inapplicable to … a self-insured entity.”).

Given that the parties’ agreement calls for Wisconsin law to govern any disputes arising thereunder, one would think that settles the question. However, Morrison insists that Florida law applies because he lives in Florida, his tractor was primarily garaged there, and he executed many of the terms of the contract there. Dkt. 14, at 7-11.

It is unnecessary to delve into the choice of law question because Morrison cannot prevail even under Florida law. As support for his claim that Roehl Transport was required to offer UM coverage, Morrison relies on Fl. St. § 627.727, which provides:
When a motor vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage or to select lower limits than the bodily injury liability limits, regardless of whether the lessor is qualified as a self-insurer pursuant to s. 324.171.
This statute appears to be broader than Wisconsin’s in that it does not exempt self-insurers. Nonetheless, it is of no help to Morrison. Under its plain terms, the statute applies only when the “lessor … provides liability coverage on the leased vehicle[.]” Under the terms of his Operating Agreement with Roehl Transport, however, Roehl Transport is the lessee and Morrison is the lessor of the vehicle. Operating Agreement, ¶3(a) (“In rendering Freight Transportation Services during the term of this Agreement, Owner Operator shall lease to Carrier the tractors, trailers and other related equipment …”) (emphasis added). As the lessee, Roehl Transport had no obligation under Florida’s statute to provide UM coverage to Morrison. Instead, as expressly called for under the parties’ Operating Agreement, it was Morrison’s “responsibility to procure, carry and maintain any fire, theft, loss of business, uninsured and/or underinsured motorist, and physical damage (collision), or other insurance coverage that Owner Operator may desire for the Equipment of for Owner Operator’s health care or other needs.”

Recognizing his error, Morrison takes a new approach in his response briefs, attempting to cobble together a coverage theory by pointing to the Lease Agreement between Morrison and a different entity, Roehl Leasing. This agreement, so the theory goes, imposed insurance responsibilities on Roehl Leasing that Roehl Transport “assumed” when it entered into the Operating Agreement with Morrison.

*5 Neither plank of this argument is sound. First, nothing in the Leasing Agreement required Roehl Leasing to provide UM coverage to Morrison. Morrison relies on Paragraph 13, but that paragraph required Morrison, as the lessee in that contract, to maintain “insurance covering the Equipment[.]” There are no other provisions concerning insurance in the Lease Agreement. Moreover, to the extent Morrison appears to suggest that Roehl Leasing, the lessor, was required to provide UM coverage under Fl. Stat. 627.727, he is incorrect: under the statute, a lessee has the sole right to waive UM coverage only when “the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle.” Morrison does not point to any terms in the Leasing Agreement that required Roehl Leasing to provide liability coverage on the leased tractor, and I have found none.

Nor is there any support for Morrison’s argument that “Roehl Transport contractually stands in the shoes of Roehl Leasing.” Dkt. 15, at 5; Dkt. 16, at 7. Morrison hangs his legal hat solely on the ground that, under his Leasing Agreement with Roehl Leasing, he was required to enter into an Operating Agreement with Roehl Transport, Inc.2 Yet Morrison never explains why that condition is tantamount to an agreement by Roehl Transport to assume Roehl Leasing’s obligations–which say nothing about UM coverage in any event–under the Leasing Agreement. Certainly, there is no language in either contract to this effect.

To the contrary, the Operating Agreement between Morrison and Roehl Transport contains a “merger” clause that expressly negates “all prior and contemporaneous agreements, representations, and understandings.” When, as here, the contract contains language that “unambiguously demonstrates the parties’ intent to exclude additional understandings or agreements not contained in the [written instrument],” the court may not consider additional agreements not contained in the written contract. Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶ 36, 330 Wis. 2d 340, 357–58, 793 N.W.2d 476, 484–85. In short, there is simply no basis to import any obligations from the Leasing Contract between Morrison and Roehl Leasing into the Operating Agreement between Morrison and Roehl Transport.

The upshot is that Morrison has no legal grounds to stand on. It does not help him to attempt to reframe his claim as a breach of contract claim, as he does in his belated Amended Counterclaim, dkt. 17. Morrison argues that Roehl Transport breached its promise in paragraph 8 of the Operating Agreement to comply with its insurance obligations as “mandated by law,” but this circles directly back to Morrison’s Florida law argument, which has no traction. Accordingly, I am granting Roehl Transport’s motion to strike the amended counterclaim on the grounds that it is not only untimely but also futile. The remainder of Roehl’s motions will be granted, and Morrison’s motion must be denied.

ORDER
IT IS ORDERED THAT:

1. Plaintiff Roehl Transport, Inc.’s motion to strike the affidavit of Jeff Morrison, dkt. 22, is GRANTED;

2. Plaintiff’s motion for judgment on the pleadings, dkt. 13, is GRANTED;

3. Plaintiff’s motion to dismiss the counterclaim, dkt. 12, is GRANTED;

4. Defendant’s motion for summary judgment, dkt. 14, is DENIED; and

5. Plaintiff’s motion to strike the amended counterclaim, dkt. 21, is GRANTED.

The clerk of court is directed to enter judgment for plaintiff and close this case.

Entered this 7th day of November, 2018.

All Citations
Slip Copy, 2018 WL 5840716

Footnotes

1
For what it’s worth, Morrison does not develop any argument suggesting that he did not understand the terms of the Operating Agreement or otherwise challenge its validity. To the contrary, he appears to concede its validity insofar as he argues that Roehl breached it.

2
Morrison also asserts, without support, that he was required under the Operating Agreement to “purchase insurance from Roehl Transport.” This is plainly incorrect. As noted in the facts, Morrison had the option of purchasing various types of insurance through Roehl Transport, but he was not required to do so.

2018 WL 5810496

United States District Court, D. Nebraska.
MICHAEL FERGIN, and ACE AMERICAN INSURANCE CO., Plaintiffs,
v.
XPO, Defendant.
8:16CV26
|
Filed: 11/06/2018

MEMORANDUM AND ORDER
Laurie Smith Camp Chief United States District Judge
*1 This matter is before the Court on the Motion for Summary Judgment, ECF No. 201, filed by Defendant XPO. For the reasons stated below, the Motion will be granted.

BACKGROUND
The following facts are those stated in the parties’ briefs, supported by pinpoint citations to evidence in the record, and admitted, or not properly resisted, by the opposing party as required by NECivR 56.11 and Federal Rule of Civil Procedure 56.

On January 4, 2010, Magnum Dedicated, Inc. (Magnum), entered into an agreement, ECF No. 147-2, with Westrock Company (Westrock) to transport corrugated cardboard manufactured by Westrock to Becton Dickinson, Plaintiff Michael Fergin’s employer. Pursuant to a separate agreement, ECF No. 201-2, Westrock leased storage space from XPO in XPO’s facility in Sioux City, Iowa, and XPO agreed to provide Westrock loading services at that facility.

On February 18, 2013, XPO loaded a semitrailer with pallets of stacked, Westrock-manufactured cardboard. That same day, Magnum picked up the loaded semitrailer and delivered it to Becton Dickinson’s loading dock. The transportation was performed pursuant to a Bill of Lading, No. 43186609213. On February 19, 2013, Fergin opened one of the trailer doors to begin unloading it when a stack of cardboard fell on him, knocking him to the ground. Fergin fractured his shoulder.

Fergin filed this action in the District Court of Platte County, Nebraska, in August of 2015, and Westrock removed to this Court on January 19, 2016. Fergin’s Second Amended Complaint alleged Westrock, Magnum, Magnum LTL, Inc., and XPO “failed to inspect the pallets used to stack the [cardboard],” “employed a damaged pallet on which to stack and ship [the cardboard],” “failed to strap or otherwise secure the stack of [cardboard] to keep it from shifting and toppling before it could be properly unloaded.” ECF No. 64, Page ID 317. As the Court noted in its previous Memorandum and Order, Fergin did not specifically caption or enumerate any causes of action but alleged that “[a]s a result of Defendants’ negligence he incurred medical expenses, lost wages, and permanent disability.” Mem. and Order, ECF No. 188, Page ID 1300 (quoting Second Amended Complaint, ECF No. 64, Page ID 317-18). Therefore, the Court construed Fergin’s Second Amended Complaint as stating a single claim of negligence under Nebraska law. Mem. and Order, ECF No. 188, Page ID 1300.

*2 On March 12, 2018, the Court granted Westrock’s motion for summary judgment and dismissed it from this action because Fergin failed to provide sufficient evidence upon which a reasonable jury could conclude that Westrock was negligent. Mem. and Order, ECF No. 154. On June 15, 2018, the Court also granted Magnum and Magnum LTL, Inc.’s, motion for summary judgment and dismissed them from this action because the Carmack Amendment, 49 U.S.C. § 14706, preempted Fergin’s state-law claim against them. Mem. and Order, ECF No. 188. Thus, the only remaining defendant is XPO.

STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir. 2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) cert. denied, 132 S. Ct. 513 (2011)) (internal quotation marks omitted). In reviewing a motion for summary judgment, the Court will view “all facts and mak[e] all reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue … Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party’s claims by showing “the absence of a genuine issue of material fact.” Id. at 325. Instead, “the burden on the moving party may be discharged by ‘showing’ … that there is an absence of evidence to support the nonmoving party’s case.” Id.

In response to the movant’s showing, the nonmoving party’s burden is to produce specific facts demonstrating “ ‘a genuine issue of material fact’ such that [its] claim should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting Torgerson, 643 F.3d at 1042) (internal quotation marks omitted). “ ‘[T]he mere existence of some alleged factual dispute between the parties’ ” will not defeat an otherwise properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

In other words, in deciding “a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir. 2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotation marks omitted). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” there is no “genuine issue for trial” and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)) (internal quotation marks omitted).

DISCUSSION
*3 Relying on the Court’s previous ruling that the Carmack Amendment preempts Fergin’s negligence claim against Magnum and Magnum LTL, Inc., Mem. and Order, ECF No. 188, XPO argues the Carmack Amendment also preempts Fergin’s negligence claim against it. In its previous Memorandum and Order, the Court applied the conduct-based2 approach to its preemption analysis under the Carmack Amendment and concluded that Fergin’s negligence claim against Magnum and Magnum LTL, Inc., was preempted. ECF No. 188, Page ID 1304-06. Fergin argues the Carmack Amendment does not preempt his negligence claim against XPO, however, because (1) XPO is not a “carrier,” 49 U.S.C. § 14706(a), and (2) his injury occurred after the cardboard was delivered.

I. Carrier
For purposes of the Carmack Amendment, “carrier” is defined as “a motor carrier, a water carrier, and a freight forwarder,” 49 U.S.C. § 13102(3), and “motor carrier” is further defined as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14).
The term “motor vehicle” means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Secretary, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger transportation similar to street-railway service.
49 U.S.C. § 13102(16). “The term ‘transportation’ includes–
(A) a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and property.
49 U.S.C. § 13102(23).

The undisputed facts show that XPO provided services—storing cardboard and pallets and loading them into a semitrailer—related to the movement of property in interstate commerce by a motor vehicle. 49 U.S.C. § 13102(23)(B). Thus, XPO provided “motor vehicle transportation,” 49 U.S.C. § 13102(23), and was, therefore, acting as a “motor carrier,” 49 U.S.C. § 13102(14), which is included in the definition of a “carrier,” 49 U.S.C. § 13102(3). Heniff Transp. Sys., L.L.C. v. Trimac Transp. Servs., Inc., 847 F.3d 187, 191 (5th Cir. 2017) (analyzing the definition of a “carrier”).

Fergin contends that “XPO is not a carrier because its contract with Westrock is a contract to store and load, not to transport, [and] because [XPO] is not named as a carrier on the only bill of lading applicable to the shipment at issue and has not issued a receipt or a bill of lading itself.” Pl.’s Br., ECF No. 208, Page ID 1444. However, 49 U.S.C. § 13102(23) states “transportation” includes “services related to [the movement of property], including … storage, handling, packing, [and] unpacking … [,]” and the Carmack Amendment states “[f]ailure to issue a receipt or bill of lading does not affect the liability of a carrier,” 49 U.S.C. § 14706(a)(1). (emphasis added). Thus, Fergin’s argument is inconsistent with the definition of a carrier and with the Carmack Amendment itself. Heniff Transp., 847 F.3d at 191 n.4 (explaining that “loading” is encompassed by the plain language of 49 U.S.C. § 13102(23)(B)); see also id. at 192 (“The terms of the bill of lading and whether a bill is issued at all are irrelevant to the applicability of the Carmack Amendment.”).

*4 Accordingly, the Court finds that XPO was acting as a “carrier,” subject to the Carmack Amendment.

II. Post-delivery Injury
Fergin argues the Carmack Amendment does not apply and does not preempt his negligence claim because he was injured after Magnum delivered the cardboard to Becton Dickinson. Fergin’s argument relies on this Court’s statement in Beemac Trucking that “ ‘[t]he liability of a carrier for damages to goods shipped through interstate commerce extinguishes upon delivery’ of the goods to the proper party.” 929 F. Supp. 2d at 914 (quoting Intech, Inc. v. Consol. Freightways, Inc., 836 F.2d 672, 674 (1st Cir. 1987)); see also Republic Carloading & Distrib. Co. v. Mo. Pac. R.R. Co., 302 F.2d 381, 386 (8th Cir. 1962) (“Common carrier liability ceases upon delivery of the shipment to the consignee.”).3

It is undisputed, however, that the alleged negligent conduct which Fergin complains of occurred prior to the final delivery of the cardboard to Becton Dickinson. See Beemac Trucking, 929 F. Supp. 2d at 922 n.20 (explaining “the Eighth Circuit has indicated that the focus [of a court’s Carmack preemption analysis] should be on the conduct giving rise to the plaintiff’s claims”). Fergin’s Carmack preemption argument focuses on the harm or injury, an approach this Court declined to take in its previous Memorandum and Order. See supra note 2 (citing Mem. and Order, ECF No. 188). Because Fergin’s negligence claim is for conduct that occurred during the transportation of the cardboard by a carrier, the Carmack Amendment preempts that claim. Strike v. Atlas Van Lines, Inc., 102 F. Supp. 2d 599, 600-01 (M.D. Pa. 2000) (explaining Carmack preemption “extend[s] to claims like the plaintiffs’ involving personal injuries suffered as the result of changes made to shipped goods through negligence of the carrier and injuries resulting therefrom”). Accordingly,

IT IS ORDERED:
1. The Motion for Summary Judgment, ECF No. 201, filed by Defendant XPO, is granted;
2. The Motion to Extend Time Allowed for Plaintiff’s Disclosure Required by Rule 26(a)(2)(C), ECF No. 213, is denied as moot;
3. This action is dismissed, with prejudice; and
4. A separate judgment will be entered.

Dated this 5th day of November, 2018.

All Citations
Slip Copy, 2018 WL 5810496

Footnotes

1
See NECivR 56.1(b)(1):
The party opposing a summary judgment motion must include in its brief a concise response to the moving party’s statement of material facts. Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant’s statement of material facts that is disputed. Properly reference material facts in the movant’s statement are considered admitted unless controverted in the opposing party’s response.

2
In that Memorandum and Order, the Court stated that “[t]he Eighth Circuit Court of Appeals’ opinion in Fulton indicates its endorsement of the conduct-based approach [as opposed to the harm-based approach].” ECF No. 188, Page ID 1304 (citing Union Pac. R.R. Co. v. Beemac Trucking, LLC, 929 F. Supp. 2d 904, 922-23 & n.20 (D. Neb. 2013); See also Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326, 332 (8th Cir. 1973); Krauss v. IRIS USA, Inc., No. CV 17-778, 2017 WL 5624951, at *5 (E.D. Pa. Nov. 22, 2017) (applying the conduct-based approach rather than the harm-based approach); but see McGinn v. JB Hunt Transp., Inc., No. 10-CV-610-JPS, 2012 WL 124401, at *2-3 (E.D. Wis. Jan. 17, 2012) (applying to harm-based approach rather than the conduct-based approach).

3
Although this argument would have been equally applicable to Magnum and Magnum LTL, Inc.’s, previous motion for summary judgment, Fergin did not assert it. See Pl.’s Br., ECF No. 155, Page ID 985. Fergin made cursory statements that “the trip … was over when the accident happened[,]” and that “[t]he carriage had been completed[,]” but he did not provide any legal support for, or further discussion of, the argument he makes now, which is that the Carmack Amendment does not preempt negligence claims for a personal injury that occurred after the goods were delivered. Id.