Schrader v. Tex. Farm Bureau Underwriters
Court of Appeals of Texas, Thirteenth District, Corpus Christi – Edinburg
April 5, 2018, Delivered; April 5, 2018, Filed
NUMBER 13-17-00309-CV

Reporter
2018 Tex. App. LEXIS 2445 *; 2018 WL 1633575
WILLIAM ROBERT SCHRADER, Appellant, v. TEXAS FARM BUREAU UNDERWRITERS, Appellee.
Prior History: [*1] On appeal from the 130th District Court of Matagorda County, Texas.

MEMORANDUM OPINION
Memorandum Opinion by Justice Contreras
Appellant William Robert Schrader sued appellee Texas Farm Bureau Underwriters (TFB), his insurer, for refusing to cover losses sustained from the theft of two tractors. The trial court granted summary judgment in favor of TFB. By one issue, Schrader argues that there was an issue of material fact concerning whether his loss occurred while the subject policy was in effect. We affirm.

I. BACKGROUND
Schrader alleged in his original petition that two farming tractors and related equipment, with a combined insured value of $60,000, were stolen from him sometime between December 5 and 13, 2013. He made a claim on his TFB inland marine policy in January of 2014, but TFB denied the claim on grounds that the policy “was not in force for the date of loss.” Schrader alleged in his suit that the policy “was undeniably in force until midnight on December 6 and should have been reinstated retroactively to November 20, 2013, as premiums were forwarded via Defendant’s agent.” [*2] He asserted claims of breach of contract, deceptive trade practices, and common law fraud.
TFB filed a traditional and no-evidence motion for summary judgment, arguing that Schrader’s policy came up for annual renewal in November 2013 and that he was required to pay his annual premium of $1,774 by November 20, 2013 in order to renew the policy. TFB asserted that there is no evidence Schrader paid the premium on or before that date; therefore, the policy had lapsed and was not in effect at the time of the loss. According to TFB, Schrader’s insurance agent John Hendrix filed an application to reissue the policy along with Schrader’s premium payment on December 16, 2013, and TFB issued a new policy effective that day. In support of its motion, TFB attached several pieces of evidence, including a past due notice sent by TFB to Schrader on November 25, 2013 which states: “The payment on your inland marine policy is past due. Please send the payment so that it will reach our office by 12-05-13. If we do not receive the amount due by the date listed above, all coverage afforded by this policy will be cancelled effective 12:01 A.M., 12-05-13.”
In response, Schrader argued that TFB did not establish [*3] as a matter of law that the original policy had lapsed at the time of the loss because, according to the past due notice, the policy was effective until 12:01 a.m. on December 5, and the tractors “could have been stolen on or before” that date. To support this assertion, he attached an affidavit in which he stated that the last time he saw the tractors was “approximately November 30, 2013.”
In the alternative, Schrader argued that there was no lapse in coverage because he “relied upon [Hendrix’s] promise on December 2, 2013 that if [Schrader] just mailed a second check [Hendrix] would make sure coverage did not lapse even if the check was actually received after December 5, 2013.” Schrader attached deposition testimony in which he stated that he first wrote a check for the premium amount on November 15, 2013 and sent it to TFB that same day. He also provided an affidavit stating that, when he received the past due notice on December 2, he told Hendrix that he had already sent the premium payment, but Hendrix “said he never received the check and then told me to just send another check directly to his office and that he would make sure the policy was renewed so there would be no lapse [*4] in coverage.” Per Hendrix’s instructions, Schrader wrote a second premium check—dating it November 15, 2013 “because that was the date the original check was written”—and sent it to Hendrix’s office. Schrader argued in his summary judgment response that TFB “cannot now claim [the] policy lapsed after December 5, 2013 because it processed [Schrader’s] policy renewal premium after December 5, 2013.”
The trial court granted TFB’s motion and rendered judgment that Schrader take nothing by way of his suit. This appeal followed.

II. DISCUSSION
HN1[ ] We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). HN2[ ] The party moving for summary judgment bears the burden of proof. Id. “Though these burdens vary for traditional and no-evidence motions, the summary judgment motion here was a hybrid motion and both parties brought forth summary judgment evidence; therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue exists.” Id. (citing Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012)). A fact issue exists, precluding summary judgment, if there is more than a scintilla of probative evidence to support the plaintiff’s claim. Id.; see Tex. R. Civ. P. 166a(c), (i). Evidence is more than a scintilla if it “rises to a level that would enable reasonable and fair-minded [*5] people to differ in their conclusions.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). Evidence is less than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion that the fact exists.” Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010). HN3[ ] We review the summary judgment evidence in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Neely, 418 S.W.3d at 60. An inference is not reasonable if it is based only on evidence that is “susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion.” Suarez v. City of Texas City, 465 S.W.3d 623, 634-35 (Tex. 2015).
Schrader contends on appeal that a fact issue exists regarding whether the policy was in effect at the time the tractors were stolen because he complied with TFB’s renewal instructions. He cites case law establishing that, “where the custom of the parties authorizes a payment by mail or where payment by mail has been authorized, payment is made when a letter containing the remittance, properly addressed and with postage prepaid, is deposited in the mail.” Cox v. Gulf Ins. Co., 858 S.W.2d 615, 616 (Tex. App.—Fort Worth 1993, no writ) (noting that this rule “may apply even when the company’s notice to its insured states that reinstatement of the policy is conditional upon receipt of payment by a definite time”); Am. Cas. Co. of Reading, Pa. v. Conn, 741 S.W.2d 536, 538 (Tex. App.—Austin 1987, no writ). Schrader argues [*6] that his deposition testimony—in which he stated that he mailed the premium payment to TFB on November 15, 2013—therefore creates a fact issue as to whether the policy was effectively renewed, even though it is undisputed that TFB never received that payment.
We cannot reverse the trial court’s judgment on this basis because Schrader did not raise this argument before the trial court in response to TFB’s summary judgment motion. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). Schrader’s response argued that he “relied upon” Hendrix’s “misrepresentation” on December 2, 2013 that “if [Schrader] just mailed a second check [Hendrix] would make sure coverage did not lapse even if the check was actually received after December 5, 2013.” Although Schrader’s deposition testimony regarding the November 15 payment was attached to his response, nowhere did Schrader argue before the trial court that the mailing of this payment was effective to renew the policy. See id.
Schrader further argues on appeal, as he did in response to the summary judgment motion, that even if there was a lapse [*7] in coverage beginning on December 5, his affidavit testimony—in which he stated that he last saw the tractors on November 30—creates a fact issue as to whether his loss occurred before the lapse.
We disagree. Schrader stated in his affidavit that “[t]he last time I saw the stolen tractors before they were stolen was approximately November 30, 2013,” but this statement, even taken as true, does no more than create a mere surmise or suspicion that the tractors were stolen during the policy period.1 See Regal Fin. Co., 355 S.W.3d at 603. In particular, though this statement may support a finding that the tractors were stolen sometime between November 30 and December 13, it does not support a reasonable inference that the tractors were stolen before 12:01 a.m. on December 5, because it is at least equally probable that the tractors were stolen after that time. See Suarez, 465 S.W.3d at 634-35 (noting that HN4[ ] an inference is not reasonable if it is based only on evidence that is “susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion”). In other words, it would be unreasonable for the fact-finder to infer, based on this statement alone, that the tractors were stolen before 12:01 a.m. on December [*8] 5, 2013.2 Accordingly, Schrader did not produce more than a scintilla of evidence supporting his claim that the loss occurred during the policy period. Summary judgment was proper on this basis.
We overrule Schrader’s issue on appeal.

III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Justice
Delivered and filed the
5th day of April, 2018.

2018 WL 1468997

United States District Court, N.D. Illinois, Eastern Division.
COYOTE LOGISTICS, LLC, Plaintiff,
v.
CONCORD SERVICES, INC., Defendant.
No. 16 C 11155
|
Signed March 25, 2018
|
Filed 03/26/2018
Attorneys and Law Firms
Joel H. Steiner, Paul Anthony Gajewski, Axelrod, Goodman, Steiner & Bazelon, Chicago, IL, for Plaintiff.
James A. Foster, Scott J. Brown, Cassiday Schade LLP, Chicago, IL, for Defendant.
Opinion

MEMORANDUM OPINION AND ORDER
Hon. Virginia M. Kendall, United States District Judge
*1 Plaintiff Coyote Logistics, LLC (“Coyote”), on its own behalf and as subrogee of Prime Metals Recovery, Inc. (“Prime”), filed suit against Defendant Concord Services, Inc. (“Concord”) pursuant to 28 U.S.C. §§ 1331, 1337, and the Carmack Amendment, 49 U.S.C. § 14706, in order to recover $93,849.39, which is the value of freight material that Concord failed to deliver under a shipping agreement between Coyote and Concord. Coyote seeks summary judgment arguing there is no genuine dispute of material facts, to which Concord failed to respond. (Dkt. Nos. 20; 20-1.) For the following reasons, the Motion for Summary Judgment is granted. [20.]

BACKGROUND
The following facts are undisputed and accepted as true based upon review of the Coyote’s Rule 56.1 Statement of Uncontested Material Facts as well as upon Concord’s failure to respond or file its own motion for summary judgment with a supporting statement of facts.

Coyote, a licensed property broker by the United States Department of Transportation Federal Motor Carrier Safety Administration (“FMCSA”), is an Illinois-based company that arranges for the transportation of freight by for-hire carriers in interstate or foreign commerce. (Dkt. Nos. 1, ¶ 1; 20-1, ¶ 1.) Prime is a company that contracted with Coyote for the transportation of approximately 44,000 pounds of metal loaded into boxes and placed on pallets to go from Orangeburg, South Carolina to Pine Hall, North Carolina. (Dkt. No. 20-2, Ex. 1.) Concord is a North Carolina company registered by the FMCSA as a for-hire carrier of property in interstate commerce. (Dkt. No. 20-1, ¶¶ 2-3.)

On July 19, 2016, Coyote contracted with Concord to transport 41,045 pounds of copper chops1 belonging to Prime, valued at $93,849.39, from Orangeburg, South Carolina to Pine Hall, North Carolina. (Id. at ¶ 5; Dkt. No. 20-2, ¶ 12; Ex. 2.) Concord hired Ernesto Acosta, an independent owner-operator of a tractor-trailer, to complete the delivery. (Dkt. No. 20-5, at 2.) Acosta took control of the shipment on July 19, 2016, and signed a Bill of Lading acknowledging that the shipment was in good condition and consisted of 41,045 pounds of copper chops. (Dkt. No. 20-1, ¶ 6; Dkt. No. 20-5, at 2.) While in transit the truck carrying the shipment suffered mechanical issues, forcing Acosta to stop for repairs in Charlotte, North Carolina. The truck was separated from the trailer while in repairs over night and (Dkt. No. 20-2, Ex. 6.) the next morning Acosta discovered the trailer had been stolen. (Id.; Dkt. No. 20-5, at 3.)

Prime submitted a claim for loss and damage to Coyote on July 21, 2016, requesting $93,849.39. (Dkt. No. 20-2, Ex. 6.) In order to make its client whole, Coyote paid Prime $93,849.39 in exchange for the assignment of all of its right, title, and interest to the subject shipment. (Dkt. No. 20-1, ¶ 11; Dkt. No. 20-2, ¶ 12; Dkt. No. 20-2, Ex. 3.) This amount also represents the value of the copper chops to be delivered in accordance with the agreements between Coyote and Prime, and between Coyote and Concord. (Dkt. No. 20-1, ¶ 10.) The assignment also released Coyote from further liability as a result of the lost shipment. (Dkt. No. 20-2, Ex. 3.) Concord has since continuously denied Coyote’s demands to pay for the full actual loss “on account of the damage to the subject shipment.”2 (Id. ¶ 12.) As a result of failure to pay for the lost shipment, Coyote filed this Complaint pursuant to the Carmack Amendment, 49 U.S.C. § 14706, seeking to recover the full value of the shipment from Concord. See (Dkt. No. 1).

LEGAL STANDARD
*2 Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment, the Court must construe all evidence and make all reasonable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court’s primary function is not to “evaluate the weight of the evidence or to determine the truth of the matter,” but to determine whether there is a genuine issue of triable fact. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). “A factual dispute is ‘genuine’ only if a reasonable jury could find for either party.” Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 599 (7th Cir. 2014) (internal quotation marks and citation omitted). The party moving for summary judgment bears the initial burden of production to show that no genuine issue of material fact exists. Outlaw, 259 F.3d at 837 (citing Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996)). The burden may be discharged by showing “an absence of evidence to support the nonmoving party’s case.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Upon such a showing, the nonmoving party must set forth specific facts showing a genuine issue for trial. Id. (citing Fed. R. Civ. P. 56(e)). However, a movant’s facts that go uncontested by the non-moving party are accepted as true by the district court. Meadows v. Rockford Housing Authority, 861 F. 3d 672, 673 n.1 (7th Cir. 2017). In sum, the facts must demonstrate that the genuine issue is material and not simply a factual disagreement between the parties; otherwise the movant is entitled to summary judgment as a matter of law. Id. 259 F.3d at 837 (quoting Logan, 96 F.3d at 978). The “nonmovant fails to demonstrate a genuine issue for trial ‘where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’ ” Id. (citations omitted).

DISCUSSION
The purpose of the Carmack Amendment is to create a “nationally uniform rule of carrier liability concerning interstate shipments.” REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697 (7th Cir. 2008). The statute governs “liability of a common carrier to a shipper for loss of, or damage to, interstate shipment.” North American Van Lines, Inc. v. Pinkerton Security Systems, Inc., 89 F.3d 452, 455 (7th Cir. 1996). To establish a prima facie Carmack claim “a plaintiff must show (1) delivery [to a carrier] in good condition; (2) arrival [of the goods] in damaged condition; and (3) the amount of damages.” REI Transp., Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 699 (7th Cir. 2008) (quoting Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys., 325 F.3d 924, 929 (7th Cir. 2003)). The need to show the arrival in damaged condition includes liability “for the full actual loss” to property transported. North American Van Lines, Inc., 89 F.3d at 455; see also Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1413-14 (7th Cir. 1987) (explaining amendments to Carmack by the First Cummins Amendment discussing liability for both loss and damage of goods shipped in interstate commerce) (superseded by statute on other grounds). If the plaintiff establishes the prima facie case, the burden shifts to the defendant “to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.” REI Transp., Inc., 519 F.3d at 699. Those excepted causes include “acts of God, the public enemy, the act of the shipper himself, public authority, or the inherent vice or nature of the goods.” Am. Nat’l Fire Ins. Co., 325 F.3d at 930 (internal citations omitted).

Coyote establishes a prima facie Carmack claim. The first element—delivery of the shipment to the carrier in good condition—is clearly met as both parties admit that the shipment was in good order and condition and no goods were missing when Concord received it. Furthermore, both parties admit that the shipment did not arrive because it was stolen in transit, therefore satisfying the second element. Finally, Coyote asserted that the value of the shipment, and therefore the amount of damages Coyote sustained, is $93,849.39, and Concord does not dispute this. In support of these submissions, Coyote presented evidence in its Rule 56.1 Statement of Uncontested Material Facts that bolster a Carmack Amendment violation: (1) there was a Bill of Lading signed by Concord’s driver admitting receipt of the copper chops in good condition and an affidavit from Prime’s shipping supervisor showing that the shipment arrived in good condition; (2) the claim, filed by Prime, for presentation of loss and damage for the shipment that details loss of the trailer containing the copper chops, and undisputed admissions by Concord that the shipment was not delivered; and (3) Prime’s loss and damage claim, the assignment of loss between Coyote and Prime, and Coyote’s subsequent payment to Prime all verify the shipment’s value.

*3 Concord does not dispute any of the facts submitted by Coyote in its Rule 56.1 Statement of Uncontested Material Facts. Concord also did not file any cross-motion for summary judgment. Concord further does not contest any of the facts supporting the required elements for a prima facie case under the Carmack Amendment, nor does it submit any arguments or facts in its support upon the burden shift to prove that it was not negligent or that an exception to the application of the Carmack Amendment applies in this case. See REI Transp., Inc., 519 F.3d at 699. Based on all of these facts and applying them to the law, there exists no genuine material fact dispute warranting denial of summary judgment.

CONCLUSION
Because Coyote’s Motion for Summary Judgment and associated Statement of Uncontested Material Facts establish a prima facie violation of the Carmack Amendment by Concord, the Motion for Summary Judgment is granted. [20.] Concord, in violation of the Carmack Amendment, is liable as the carrier to Coyote for the loss of a shipment of goods in interstate commerce, and is required to pay damages in the amount of $93,849.39.

All Citations
Slip Copy, 2018 WL 1468997

Footnotes

1
As defined in Coyote’s Rule 56.1 statement, a copper chop is a small copper pellet.

2
The “damage” being that the shipment never made it to Pine Hall, North Carolina as per the agreement between Coyote and Prime.