Midwest Trading Group, Inc. v. GlobalTranz Enterprises, Inc. et al

Filing 49

MEMORANDUM Opinion and Order: GlobalTranz's motion for summary judgment, 18 is granted as to Midwest's negligence claim in Count II. The motion is denied as to the fraud claim in Count I and the breach of contract claim in Count III. The parties are directed to appear at a status hearing on 8/5/2014 at 09:00 a.m. to discuss a prompt trial date. Lead trial counsel should be present. Signed by the Honorable Thomas M. Durkin on 7/23/2014:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIDWEST TRADING GROUP, INC.,
Plaintiff,
v.
GLOBALTRANZ ENTERPRISES, INC.;
AMERICAN FREIGHT NETWORK, INC.;
AKOP KARAPETAN d/b/a V & R TRUCKING;
and EVERTEK, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. 12 C 9313
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Midwest Trading Group, Inc. (“Midwest”) seeks recovery against GlobalTranz
Enterprises, Inc. (“GlobalTranz”) for a loss arising out of the theft of two shipments
of Android tablet computers during interstate motor transit. Other Defendants in
the case, American Freight Network, Inc. (“American Freight”), AKOP Karapetan
d/b/a V & R Trucking, Inc. (“V & R Trucking”), and Evertek, Inc. (“Evertek”), have
not participated in the case and do not have an attorney appearance on file. It also
appears that they have never been served. GlobalTranz has moved for summary
judgment. For the reasons discussed below, GlobalTranz’s motion for summary
judgment, R. 18, is granted in part and denied in part.
BACKGROUND
In late January 2012, West Coast Imports, Inc. (“West Coast”), acting as
Midwest’s agent, contacted GlobalTranz in order to arrange for the shipment of two
loads of Android tablet computers. R. 1-1 ¶ 9; R. 30 ¶ 5. West Coast and Midwest

had previously conducted business with GlobalTranz. Midwest had directly utilized
GlobalTranz’s services on one prior occasion, R. 20-2 ¶ 11; R. 20-3 at 18; while West
Coast had previously booked over 100 shipments with GlobalTranz on various
occasions for other customers. R. 36-2 ¶ 10; R. 36-5. On the bottom of “GlobalTranz’s
Credit Application,” a document that is provided to the parties GlobalTranz does
business with, the following language appears:
THE ABOVE INFORMATION is for the purpose of obtaining credit
and is warranted to be true. I/we hereby authorize the firm to whom
this application is made to investigate the references listed pertaining
to my/our credit and financial responsibility. A copy of this document
shall be the original. BY SIGNING THE APPLICATION, THE
APPLICANT CONSENTS TO THE TERMS AND CONDITIONS
FOUND ON WWW.CARRIERRATE.COM.
Id. at 1-2. Similar language appears on many payment invoices that are sent to
parties after a shipment has been processed. R. 45 ¶ 2. Carrierrate.com is
GlobalTranz’s website. On the website are the “Freight Broker Agreement Terms
and Conditions” (“the “Terms and Conditions”). See R. 20-3 at 19-22. As discussed in
more detail below, these Terms and Conditions contain various clauses regarding
liability, insurance, a disclaimer of warranties, and rates. Id. In particular,
paragraph 10, which contains an insurance disclaimer, provides that “GlobalTranz
may have optional Shippers Interest Contingent Cargo Liability Insurance (‘Third
Party Insurance’) available for purchase by Customer.’” R. 20-3 at 20.
GlobalTranz has submitted a copy of the credit application that was allegedly
signed in May 2010 by an agent of West Coast (Nuria Coronado, a West Coast
employee) and another that was allegedly signed by an agent of Midwest (Rashid

2

Aziz, President of Midwest) in August 2010. R. 20-2 ¶¶ 3-4; R. 20-3 at 1-2. Both
Coronado and Aziz deny having signed the credit application. 1 R. 25-3; R. 25-4.
Nevertheless, GlobalTranz contends that West Coast was aware of the language
referring to the Terms and Conditions due to the numerous invoices that it received
for other shipments. R. 45 ¶¶ 1-4
Regarding the shipments at issue here, one load of Android tablets was to be
transported to zip code 78218, R. 20-3 at 34; the second load was to be transported
to zip code 27536, id. at 31. Gengler, on behalf of GlobalTranz, quoted Coronado, on
behalf of West Coast, a price, which the parties agreed upon. Gengler and Coronado
reached the agreement through direct email correspondence. R. 44-1 ¶ 3. According
to the sworn declaration of Vinay Saboo, the President of West Coast, West Coast
was told that GlobalTranz would purchase insurance on the shipments. R. 29-2 ¶ 6.
Coronado also said that it was her “understanding based on [her] experience with
GlobalTranz that the quote [for the shipments] included the cost of insurance.” R.
44-1 ¶ 4. Gengler denies that GlobalTranz ever offered West Coast such insurance
for the shipments. R. 30 ¶ 8. The invoices do not list “insurance” under the
description of services included and there is no explicit charge listed for insurance.
R. 20-3 at 17-18. Midwest claims that it would not have entered into the shipping
agreement with GlobalTranz if insurance had not been included in the transaction.
See R. 29-1 ¶ 4.
GlobalTranz now claims that Shawn Gengler, a GlobalTranz employee, prepared
and signed the credit applications “with the authorization of West Coast and
Midwest.” R. 45 ¶ 21.
1

3

At some point, GlobalTranz issued two “short form” bills of lading for the
shipments to “Westcoast Imports.” R. 20-3 at 13-14. It is unclear as to when exactly
they were issued. One “long form” bill of lading was issued to “MIDWEST
TRADING GROUP C/O WCI”; another was issued to Midwest Trading Group, C/O
West Coast Imports.” Id. at 15-16. GlobalTranz was listed as a third party on the
long form bill of lading for the second load—i.e., the shipment to zip code 27536. 2 Id.
at 15.
After GlobalTranz accepted the order, which was placed by Midwest through
West Coast, GlobalTranz brokered the shipment of the loads to American Freight.
R. 8 ¶ 14. American Freight re-brokered the shipment of the loads to V & R
Trucking. Id. ¶ 15. A few days later, on February 2, 2012, a driver for V & R
Trucking picked up the two loads of Android tablet computers. R. 1-1 ¶ 16. Shortly
thereafter, while the driver was out of the truck eating lunch, the tractor and trailer
containing the tablets were stolen. Id. ¶ 17. Midwest alleges that “Evertek came
into possession of part of the stolen loads” at some point and later sold them. Id. ¶¶
42-43.
Gengler and Saboo exchanged emails on February 2, 2012, after the Android
tablets were stolen. R. 44-3. As discussed further below, Saboo raised the issue of
insurance on the loads, to which Gengler responded in a manner indicating that
West Coast had indeed purchased insurance. Id. Midwest eventually submitted a

The “long form” bills of lading contain more specific information about the
particular loads to be shipped and the shipping instructions. Compare R. 20-3 at 1314, with id. at 15-16.
2

4

claim to GlobalTranz for $170,000 for the first load, R. 20-3 at 33, and for $440,000
for the second, id. at 30. Midwest contends that it never received any compensation
in return for its claims. R. 32-2 ¶ 12.
Midwest filed this suit in the Circuit Court of Cook County, Illinois, on
November 20, 2012. R. 1. GlobalTranz removed the suit to federal court on
November 21, 2012, R. 6, and the case was reassigned to the undersigned Judge on
January 14, 2013. R. 14. The complaint includes four counts. Count I is for fraud
against GlobalTranz. Count II is for negligence against GlobalTranz, American
Freight, and V & R Trucking. Count III is for breach of contract against
GlobalTranz. Count IV is for unjust enrichment against Evertek. No motion to
dismiss was ever filed, and limited discovery was taken. Certain documents and
affidavits have been submitted in support of, and in opposition to, GlobalTranz’s
motion for summary judgment as to Counts I, II, and III.
LEGAL STANDARD
Summary judgment under Federal Rule of Civil Procedure 56 is appropriate
if “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.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary judgment,
the non-moving party must produce more than a “mere scintilla of evidence,”
meaning “evidence on which [a] jury could reasonably find for the non-moving
party.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (2013) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). In ruling on the motion, the Court considers

5

the entire evidentiary record and “view[s] all facts and draw[s] all inferences in the
light most favorable to the non-moving party.” Ball v. Kotter, 723 F.3d 813, 821 (7th
Cir. 2013); Egan Marine Corp. v. Great Am. Ins. Co., 665 F.3d 800, 811 (7th Cir.
2011).
When federal court jurisdiction is premised on diversity, the Court applies
the law of the state in which it sits when neither party raises a conflict of law issue.
Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 838 (7th Cir. 2010). Accordingly,
the Court will apply Illinois law to Midwest’s claims. Both parties agree with this
approach. See R. 42; R. 43.
ANALYSIS
GlobalTranz contends it is entitled to summary judgment for several reasons:
(1) Midwest lacks standing to pursue the fraud and breach of contract claims
(Counts I and III); (2) the fraud and negligence claims (Counts I and II) are
preempted by federal statute; and (3) there is no issue of material fact as to any of
the elements required for the claims in Counts I, II, or III. Additionally,
GlobalTranz argues that Midwest’s damages are limited to $3,450 on the breach of
contract claim.
I.

Summary Judgment Based on Standing
GlobalTranz argues that Midwest lacks standing to pursue the fraud and

breach of contract claims because GlobalTranz did not have an agreement with
Midwest. R. 19 at 1-2. GlobalTranz claims that all of its communications regarding
the shipments were with West Coast, and therefore, GlobalTranz could not have

6

entered into an agreement with Midwest. R. 19 at 9. In addition, the Terms and
Conditions, which GlobalTranz claims applies to the shipping agreement at issue,
contain a clause stating,
No Other Parties to Benefit. This Agreement is made for the sole
benefit of the Parties hereto and their successors and permitted
assigns. Except as expressly provided herein, no other person or
entity is intended to or shall have any rights or benefits hereunder,
whether as third-party-beneficiaries or otherwise.
R. 20-3 at 21, ¶ 19.
The relationship between Midwest and West Coast is relevant. Initially,
assuming the Terms and Conditions are a part of the agreement between the
parties (which is in dispute, as discussed below), a third-party beneficiary would
lack standing to pursue the claims at issue. Nevertheless, an agent may bind a
principal to a contract while acting within the scope of its authority. Lynch v. Bd. of
Ed. of Collinsville Cmty. Unit Dist. No. 10, 412 N.E.2d 447, 461-62 (Ill. 1980).
Illinois courts define “agent” as “one who undertakes to manage some affairs to be
transacted for another by his authority, on account of the latter, who is called the
principal, and to render an account.” Wargel v. First Nat’l Bank, 460 N.E.2d 331,
334 (Ill. App. Ct. 5th Dist. 1984). Whether one is an agent for another is generally a
question of fact, though it becomes a question of law when the facts are undisputed.
Id. There is no dispute in this case that West Coast was Midwest’s agent or that
West Coast was acting on behalf of Midwest when it negotiated, and entered into,
the contract with GlobalTranz. See R. 32-2 ¶ 2. Thus, Midwest is not a third-party
beneficiary, so the provision in the Terms and Conditions that GlobalTranz relies on

7

to argue that Midwest lacks standing to sue under the contract is of no help.
GlobalTranz alternatively contends that even if Midwest was West Coast’s
principal, Midwest still lacks standing because West Coast never disclosed
Midwest’s interest in the transaction when the shipments were booked—only
learning of it after the shipments were stolen and Midwest submitted its claim to
GlobalTranz, R. 20-4 ¶¶ 4-5. Contrary to GlobalTranz’s argument, however, one of
the long form bills of lading lists GlobalTranz as a third party, see R. 20-3 at 15, so
it is at least conceivable that GlobalTranz was aware of Midwest’s interest in the
transaction. Nevertheless, even assuming Midwest was an “undisclosed principal,”
GlobalTranz’s argument is still unavailing. Illinois courts have explained the legal
significance of being an undisclosed principal:
[W]hereas an undisclosed principal may step into the shoes of his
agent and assume all the rights and obligations of a contract that
the agent has entered into on the undisclosed principal’s behalf
(Brunswick Leasing Corp. v. Wisconsin Cent., Ltd., 136 F.3d 521,
526 (7th Cir. 1998)), third parties are not afforded such a right.
Reid v. Wells, 721 N.E.2d 163, 166 (Ill. App. Ct. 3rd Dist. 1999). Furthermore, not
only is Midwest an undisclosed principal, it is the sole undisclosed principal to the
shipping agreement at issue between West Coast and GlobalTranz. It is thus
“unquestionable that it [can] enforce the contract in its own right.” Brunswick, 136
F.3d at 527 (citing Rush-Presbyterian-St. Luke’s Med. Cntr. v. Hellenic Republic,
980 F.2d 449, 452-53 (7th Cir. 1992); People ex rel. Ames v. Marx, 18 N.E.t2d 915,
919 (Ill. 1938); O’Connor v. Vill. of Palos Park, 333 N.E.2d 276, 281 (Ill. App. Ct. 1st
Dist. 1975); Jovan v. Starr, 231 N.E.2d 637, 639 (Ill. App. Ct. 1st Dist. 1967)). Thus,

8

Midwest has standing to pursue its claims. 3
II.

Summary Judgment Based on Preemption
GlobalTranz argues that it is entitled to summary judgment on the fraud and

negligence claims in Counts I and II because the Interstate Commerce Commission
Termination Act, 49 U.S.C. § 14501(c)(1) (the “ICCTA”), preempts all state law
claims against transportation brokers like GlobalTranz, except those for breach of
contract. R. 19 at 6-8. GlobalTranz argues that because claims such as fraud and
negligence (Counts I and II) seek to impose conditions on a motor carrier’s rates,
routes, and services which exceed those voluntarily agreed upon by contract, Counts
I and II are prohibited by the ICCTA. R. 19 at 7.
The ICCTA provides, in relevant part, that “a State . . . may not enact or
enforce a law, regulation, or other provision having the force and effect of the law
related to a price, route, or service of any motor carrier . . . or any motor private
carrier, broker, or freight forwarder with respect to the transportation of property.”
49 U.S.C. § 14501(c)(1). This preemption provision is part of a broader deregulatory
effort by Congress that covers both air and motor transportation. Accordingly, “the
Supreme Court has generally taken the position that the statutes deregulating the
airline industry and those deregulating the trucking industry should be construed
consistently with one another.” S.C. Johnson & Son, Inc. v. Transp. Corp. of Am.,
Inc., 697 F.3d 544, 548 (7th Cir. 2012). Thus, the Airline Deregulatory Act (“ADA”)

West Coast states that it is “ready, willing, and able to join the lawsuit whereby
Midwest is seeking damages from GlobalTranz should it be determined necessary.”
R. 32-2 ¶ 16.
3

9

and the ICCTA preemption provisions will be addressed together, with the task of
determining which of Midwest’s state law claims qualifies as “a law, regulation, or
other provision having the force and effect of law related to a price, route or
service.” Id. at 549.
A. Case Law Interpreting the Regulations
The Supreme Court began its interpretation of the ADA in Morales v. Trans
World Airlines, Inc., 504 U.S. 374 (1992). In Morales, members of the National
Association of Attorneys General (“NAAG”) attempted to enforce guidelines
regulating airline advertising, the awarding of premiums to “frequent fliers,” and
the payment of compensation to passengers who voluntarily yield their seats on
overbooked flights pursuant to their powers under their states’ consumer protection
statutes. Id. at 379-80. The Supreme Court held that the ADA preempted all state
enforcement actions that have “a connection with or reference to airline ‘rates,
routes, or services,” regardless of whether the laws specifically referred to the
airline industry. Id. at 384 (citing 49 U.S.C. App. § 1305(a)(1)). Therefore, because
the NAAG guidelines “establish[ed] binding requirements as to how [airline] tickets
may be marketed if they are to be sold at given prices,” the Court determined that
the regulations related to airline fares. Morales, 504 U.S. at 388.
However, the Court specifically disclaimed any intent to read the statute as
preempting all state laws that might indirectly affect fares, routes, or services. For
example, the Court indicated that state laws against gambling and prostitution
would not be preempted as applied to airlines, and it specifically reserved the

10

question of whether laws regulating the non-price aspects of fare advertising, such
as laws preventing obscene depictions, would similarly survive preemption. Id. at
390. The Court reaffirmed a prior holding that “‘some state actions may affect
[airline fares] in too tenuous, remote, or peripheral a manner’ to have pre-emptive
effect.” Id. (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983)).
Morales thus demonstrates that preemption is not a “simple all-or-nothing question;
instead, the court must decide whether the state law at issue falls on the
affirmative or negative side of the preemption line.” S.C. Johnson, 697 F.3d at 550.
Three years later, in American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995),
the Court had an opportunity to further expound on its analysis in Morales. The
Wolens case involved participants in an airline’s frequent flyer program who alleged
that retroactive changes to the program violated Illinois’ Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505, and constituted a breach of
contract. Wolens, 513 U.S. at 224-25. The Court held that “[t]he ADA’s preemption
prescription bars state-imposed regulation of air carriers, but allows room for court
enforcement of contract terms set by the parties themselves.” Id. at 222. In doing so,
the Court rejected a distinction between those activities that are peripheral to the
operations of an airline and those that are essential. Id. at 226. The Court
explained:
[T]he [Illinois] Consumer Fraud Act serves as a means to guide and
police the marketing practices of the airlines; the Act does not simply
give effect to bargains offered by the airlines and accepted by airline
customers. In light of the full text of the preemption clause, and of the
ADA’s purpose to leave largely to the airlines themselves, and not at
all to States, the selection and design of marketing mechanisms
11

appropriate to the furnishing of air transportation services, we
conclude that § 1305(a)(1) preempts plaintiffs’ claims under the
Consumer Fraud Act.
Id. at 228.
Like the decision in Morales, however, the Court in Wolens held that there
are limits to the scope of preemption. While the ADA was designed to remove the
states’ authority to regulate the selection and design of marketing mechanisms,
breach of contract claims fall outside the scope of the ADA's preemption provision.
Id. Rather, the Court held that the ADA was designed to promote “maximum
reliance on competitive market forces,” id. at 230 (quoting 49 U.S.C. App. §
1302(a)(4)), and that “[m]arket efficiency requires effective means to enforce private
agreements,” id. at 230. Therefore, because “[a] remedy confined to a contract's
terms simply holds parties to their agreements -- in this instance, to business
judgments an airline made public about its rates and services,” such claims are not
preempted. Id. at 228-29 (“We do not read the ADA’s preemption clause . . . to
shelter airlines from suits alleging no violation of state-imposed obligations, but
seeking recovery solely for the airline’s alleged breach of its own, self-imposed
undertakings.”) (emphasis added).
In Rowe v. New Hampshire Motor Transport Association, 522 U.S. 364, 369
(2008), which dealt with preemption under the ICCTA, a group of carrier
associations challenged a Maine statute that placed elaborate licensing and
verification requirements on tobacco retailers. The Court, relying significantly on its
decision in Morales, explained that the ICCTA preempts state actions that either

12

have a “connection with, or reference to” carrier rates, routes, or services; or that
have a “‘significant impact’ related to Congress’ deregulatory and pre-emptionrelated objectives.” Id. at 370-71. The Court also explained, however, that as in the
case of the ADA, “federal law might not pre-empt state laws that affect fares in only
a tenuous, remote, or peripheral manner.” Id. at 371 (quoting Morales, 504 U.S. at
390). Focusing on those parameters, the Court held that the regulation of shippers
of tobacco imposes significant obligations on carriers if they are to contract with
tobacco shippers by requiring them to offer services that they may not now provide,
even if it does not directly affect motor carriers. Id. at 372. It concluded, “The Maine
law thereby produces the very effect that the federal law sought to avoid, namely, a
State’s direct substitution of its own governmental commands for ‘competitive
market forces’ in determining (to a significant degree) the services that motor
carriers will provide.” Id.
In the most recent Supreme Court case addressing the issue, Dan's City Used
Cars, Inc. v. Pelkey, the Court held that although the ICCTA’s preemption provision
largely tracks that of the ADA, “the [ICCTA] formulation contains one conspicuous
alteration—the addition of the words ‘with respect to the transportation of
property.’ That phrase ‘massively limits the scope of preemption ordered by the
[Federal Aviation Administration Authorization Act of 1994 (“FAAAA”)].” 4 ___ U.S.
___, 133 S. Ct. 1769, 1778 (2013) (quoting City of Columbus v. Ours Garage &
“[Section] 601(c) of the FAAAA supersedes state laws ‘related to a price, route, or
service of any motor carrier . . . with respect to the transportation of property.’” Dan’s
City Used Cars, 133 S. Ct. at 1776 (quoting 49 U.S.C. § 14501(c)(1)) (emphasis in
original).

4

13

Wrecker Serv., 536 U.S. 424, 449 (2002) (Scalia, J., dissenting)). Thus, in order to be
preempted, a state law must relate to a carrier’s rates, route, or service, as well as
concern a motor carrier’s “transportation of property.” Dan’s City Used Cars, 133 S.
Ct. at 1778-79. Drawing on that additional caveat, the Court held that a plaintiff’s
claims for negligence and breach of statutory duties related to a towing company’s
improper disposal of a car were not preempted because the claims related to conduct
that occurred after the car was towed, not to the towing itself. Id. at 1779. The
Court’s attention was on when the claim arose—when the services were rendered or
at some other point in time, i.e., either before the transportation of property or
after.
The Seventh Circuit has also had an opportunity to explain the scope of
preemption. In Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d
1423, 1432 (7th Cir. 1996), the court interpreted the Supreme Court precedent at
the time—Morales and Wolens—as indicating that a law “relates to” airline rates,
routes, or services, “either [1] by expressly referring to them or [2] by having a
significant economic effect upon them.” In that case, a travel agency sued an airline
for breach of contract, defamation, tortious interference, intentional infliction of
emotional distress, and fraud after the airline made statements to the travel
agency’s customers impugning its business reputation and refused to transport
customers that booked their tickets through the travel agency, rather than directly
from the airline. Id. at 1427-28. In addition to the contract claims that were plainly
permitted under Morales and Wolens, the court upheld the plaintiff’s claims for

14

defamation because the defendant’s defamatory statements about the travel agency
were not “services” for which the parties bargained. Id. at 1433. The Court stated,
“It is difficult for us to envision how allowing tort claims based on an airline's
knowingly false statements about a travel agency would have even a ‘tenuous,
remote or peripheral’ economic effect on the rates, routes, or services that the
airline offers.” Id. at 1433. On the other hand, the court held that the plaintiff’s
claims for tortious interference, intentional infliction of emotional distress, and
fraud were more closely related to the defendant’s services (and, therefore,
preempted) because they dealt with the ticketing and transport of passengers. Id. at
1434-35. Although the plaintiffs argued that the actions of the defendant airline’s
employees “were not taken in the normal exercise of its business judgment,” the
court noted that the “subjective motivations of [the defendant airline’s] employees
[were] irrelevant to determining what constitutes ‘services’ within the meaning of
the ADA.” Id. at 1434. In short, the focus in determining preemption is on whether
the claims relate to the way in which the defendant carried out the contracted-for
“services.” If they do, the claims will generally be preempted.
In S.C. Johnson, the Seventh Circuit had the benefit of its decision in Travel
All Over the World, as well as the Supreme Court’s decisions in Morales, Wolens,
and Rowe. 697 F.3d at 557. The case involved a customer who brought state law
claims against a shipping company for fraudulent misrepresentation, bribery, and
violations of the state racketeering statute, alleging that the company engaged in a
scheme of bribery and kickbacks that artificially raised prices. Id. at 545. In

15

addressing whether the FAAAA preempted the claims, the court concluded that the
fraudulent misrepresentation claim was preempted, reasoning that the purpose of
deregulation was to free carriers from the state-by-state imposition of consumer
protection standards. Id. at 557. However, the court also concluded that the other
claims were not preempted—i.e., the statutory claims under Wisconsin law for
bribery and racketeering—because neither the bribery statute nor the racketeering
statute “provide[d] non-bargained alternatives to the contractual terms that the
parties selected.” Id. at 558-61. The court stated:
We have here state laws of general application that provide the
backdrop for private ordering; it is not necessary or even helpful to lard
a contract with clause after clause promising not to violate such laws,
whether those laws are the anti-gambling laws to which the Supreme
Court referred in Morales or they are minimum wage laws, safety
regulations (as recognized in Rowe), zoning laws, laws prohibiting theft
and embezzlement, or laws prohibiting bribery or racketeering. As
Rowe put it, these are state regulations “that broadly prohibit[] certain
forms of conduct” and that affect transportation companies (whether
air or surface carriers) only in their capacity as members of the public.
Id. at 558 (quoting Rowe, 552 U.S. at 375).
B. Application to This Case
1. Count II: Negligence
Midwest alleges that GlobalTranz did not take the requisite degree of care in
arranging for the shipment of the Midwest’s cargo. Specifically, it alleges that the
Defendants “breached their duty in failing to take steps necessary to assure the
[l]oads were not stolen.” R. 1-1 ¶ 32. Thus, as in Travel All Over the World, this
allegation seeks to impose liability on the defendant for the manner in which it
carried out its contracted-for services. See 73 F.3d at 1434. Additionally,
16

GlobalTranz’s service in brokering cargo for shipment in interstate transit clearly
concerns the transportation of property. See Dan's City Used Cars, 133 S. Ct. at
1778-79. The claim relates to what happened during the shipment of the tablets, as
opposed to what may have occurred before or after their transit. Midwest’s
negligence claim in Count II is, therefore, preempted. 5
2. Count I: Fraud
Midwest’s fraud claim presents a closer question. Midwest alleges that
“GlobalTranz feigned that it would actually provide insurance on the [l]oads when it
in fact knew that it would not,” and as a result “Midwest detrimentally relied on
GlobalTranz[‘s] misrepresentation that GlobalTranz would actually provide
insurance for the [l]oads.” R. 1-1 at 8. It is true that, in some sense, Midwest’s fraud
allegation seeks to impose a state requirement that parties not make knowing
misrepresentations to each other when entering into a contract. For this reason, the
precedent cited above is consistent in preempting actions based on consumer fraud
statutes. See Wolens, 513 U.S. at 228. However, in this case, Midwest’s claims do
not relate to GlobalTranz’s conduct in brokering the cargo. Rather, Midwest is
claiming it was fraudulently induced into entering into a contract with
GlobalTranz—i.e., it would not have paid GlobalTranz and allowed GlobalTranz to
transport its shipments of Android tablets if it knew GlobalTranz would not procure
Midwest alleges that GlobalTranz, American Freight, and V & R Trucking had a
duty to “ensure that the Loads were insured at all times while the Loads were in
their possession.” R. 1-1 ¶ 31. This duty could only arise if the parties contracted for
insurance, so it is really a breach of contract claim disguised as a negligence claim.
This allegation in Count II is duplicative of the allegations in Count III and, thus,
does not preclude the dismissal of Count II as a whole.

5

17

insurance. That claim relates to pre-transportation conduct, as opposed to how any
contracted-for services of GlobalTranz were carried out. Accordingly, because posttransportation conduct is not preempted, as it does not concern the transportation
of property (or relate to contracted-for services), see Dan's City Used Cars, 133 S. Ct.
at 1779; Travel All Over the World, 73 F.3d at 1433-34, neither is the pretransportation conduct at issue here. The fraud claim does not relate to a “service”
that a motor carrier provides its customers. See id.
Moreover, Midwest is seeking compensation for a violation of the common law
prohibition on fraudulently misrepresenting the terms of an agreement, rather than
seeking to enforce a state’s statutory rules governing contracts. Accordingly,
enforcing the common law prohibition on fraud in this case will simply hold the
parties to their bargained-for expectation. See Rowe, 552 U.S. at 372. It will not
involve imposing a state’s substitution of its own governance for competitive market
forces. Just as the bribery statute in S.C. Johnson was not preempted because it
merely “provide[d] the backdrop for private ordering,” 697 F.3d at 558, prohibiting
parties from misrepresenting the terms of a contract provides a generally-applicable
rule that affects a carrier’s rates and service only in its capacity as a member of the
general public. Allowing Midwest’s fraud claim to proceed is appropriate given it
simply holds parties accountable for their representations of material fact when
entering into an agreement, which is no different than what parties must do in any
other market. This is consistent with the goal of the ICCTA: to promote “maximum
reliance on competitive market forces.” See Wolens, 513 U.S. at 230.

18

Requiring parties to be honest and forthright about their services might
cause a legitimate company to charge higher prices than one that is not so
scrupulous—i.e., a company that intentionally dupes its customers into paying for
services that are not actually provided. However, such an effect is, at most,
tenuously related to a carrier’s rates with respect to the preemption elements. And
the Seventh Circuit has explicitly rejected the claim that any state law that
increases the cost of doing business is preempted. See S.C. Johnson, 697 F.3d at 558
(explaining that “minimum wage laws, worker-safety laws, anti-discrimination
laws, and pension regulations” ultimately affect the costs of market transactions,
“[y]et no one thinks that the ADA or the FAAAA preempts these and the many
comparable state laws”). The important question is whether a plaintiff’s state law
claims are an attempt to “change the bargain that the parties had reached.” Id. A
contract claim is not preempted simply because holding a party to its agreement
might cause the party to charge more for its services than if it were free to simply
walk away from any contract that became unprofitable. The same logic applies to
Midwest’s fraud claim, which is not preempted simply because it requires parties to
be truthful when negotiating terms, even if it may later impose additional costs on
the party that was not.
III.

Summary Judgment Based on Uncontested Facts
A. Count I: Fraud
GlobalTranz alternatively argues that it is entitled to summary judgment on

Midwest’s fraud claim in Count II because there is no dispute as to any issue of

19

material fact. To prove a claim for fraudulent misrepresentation in Illinois, a
plaintiff must show: (1) a false statement of material fact; (2) knowledge or belief of
the falsity by the person making it; (3) intention to induce the other party to act; (4)
action by the other party in reliance on the truth of the statements; and (5) damage
to the other party resulting from such reliance. Jane Doe-3 v. McLean Cnty. Unit
Dist. No. 5 Bd. of Dirs., 973 N.E.2d 880, 889 (Ill. 2012).
Midwest claims that (1) GlobalTranz knowingly misrepresented that it would
insure Midwest’s cargo in order to induce the Plaintiff to use its brokerage services;
(2) that Midwest relied on this claim in choosing to contract with GlobalTranz; and
(3) that Midwest has not been able to recover its losses from the theft of its cargo
because of the misrepresentation. R. 1-1 ¶¶ 20-28. In support of these allegations,
Midwest submitted the affidavit of Saboo who asserts: “GlobalTranz quoted a price
which included insurance against the loss or theft of tablets during shipment. This
was confirmed by GlobalTranz’s employee Gengler.” R. 29-2 ¶ 6. Additional evidence
in support of the fraud claim are e-mails between Gengler and Saboo on February 2,
2012, in which Saboo asked Gengler to “confirm[] that we did pay the additional
premium on freight in order to cover the value of the goods which I told you was
$800,000 or so.” R. 44-3 at 2. Gengler responded, “Vinay with Westcoast (sic)
Imports purchased addtl insurance: For the NC load, $800.00 insurance was
purchased. For the TX shipment, $250.00 was purchased.” Id. Saboo requested
clarification on the dollar amount of the insurance and Gengler responded:
“Westcoast (sic) Imports purchased addtl insurance for HEB and Variety Wholesale.

20

HEB - $250,000 insurance was purchased. Variety Wholesale - $450,000 was
purchased.” Id. at 1. Furthermore, Saboo states in his affidavit, “Midwest instructed
me to not ship the loads with GlobalTranz if GlobalTranz was unwilling or unable
to insure the loads.” R. 29-2 ¶ 5. Aziz confirms that in his affidavit, stating,
“Midwest would not have agreed to ship the loads with GlobalTranz if GlobalTranz
[was] unwilling or unable to insure the loads” and that it only told West Coast to
place its order after receiving confirmation of insurance. R. 29-1 ¶ 4. In contrast,
GlobalTranz denies ever making any statement offering to insure Midwest’s
shipments. There is no dispute that GlobalTranz did not, in fact, insure the
shipments.
Whether GlobalTranz made a false statement of material fact is an essential
element of Midwest’s fraud claim. McLean Cnty., 973 N.E.2d at 889. Therefore,
because there is a contested issue of fact as to whether any statement or assurance
regarding insurance was made, summary judgment in favor of GlobalTranz on
Count I is denied.
B. Count III: Breach of Contract
To recover on a claim for breach of contract, a plaintiff must establish “(1) the
existence of a valid and enforceable contract; (2) substantial performance by the
plaintiff; (3) a breach by the defendant; and (4) resultant damages.” TAS Distrib.
Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 631 (7th Cir. 2007); see Finch v.
Ill. Cmty. Coll. Bd., 734 N.E.2d 106, 110 (Ill. App. Ct. 5th Dist. 2000). When
reviewing a contract, a court must consider the contract as a whole as well as

21

determine the intent of the parties. See Wilson v. Wilson, 577 N.E.2d 1323 (Ill. App.
Ct. 5th Dist. 1991). Midwest’s claim is based on its assertion that its contract with
GlobalTranz required GlobalTranz to procure insurance on its behalf, yet
GlobalTranz did not do so. R. 1-1 ¶¶ 37-39. GlobalTranz argues it is entitled to
summary judgment on Midwest’s breach of contract claim because it did not have
any obligation under the contract regarding insurance, and thus, Midwest cannot
demonstrate that it breached the contract.
There is a clear factual dispute as to whether GlobalTranz and Midwest
(through West Coast) contracted for GlobalTranz to provide insurance for the
shipments at issue. As discussed regarding the fraud claim, the affidavits of Saboo
and Aziz support the notion that the contract must have included the requirement
that GlobalTranz obtain insurance because Midwest otherwise would not have
chosen GlobalTranz. See R. 29-1; R. 29-2. The emails between the parties from
February 2, 2012, see R. 44-3, also go towards whether insurance was included in
their contract. Again, in contrast, GlobalTranz has repeatedly denied that it offered
insurance on the shipments. R. 8 ¶ 12; R. 19 at 3; R. 20 ¶ 8. Notably, Gengler states
in his affidavit that he did not offer, nor did West Coast purchase, any insurance for
the loads. R. 20-4 ¶ 7.
The Court has not been provided with one explicit, written contract between
the parties encompassing all the terms of the agreement, so normally this
disagreement would constitute a material factual dispute and preclude summary
judgment. However, GlobalTranz argues that the parties (at least, GlobalTranz and

22

West Coast) have an extensive course of dealing and that each prior transaction was
accompanied by an invoice referencing the Terms and Conditions that appear on the
GlobalTranz website. R. 19 at 10-12; see R. 20-3 at 19-22. These Terms and
Conditions expressly disclaim GlobalTranz’s liability for lost shipments and state
that “the Customer will look solely to the insurance provided by the carrier for
damage to goods in transit.” R. 20-3 at 20. Therefore, GlobalTranz argues that the
disclaimers were implied terms of the contract through their course of dealing and
that, as a matter of law, GlobalTranz’s failure to insure the shipments cannot
constitute a breach of contract.
A course of dealing is a “sequence of previous conduct between the parties to
a particular transaction which is fairly to be regarded as establishing a common
basis of understanding for interpreting their expressions and other conduct.”
Capitol Converting Equip., Inc. v. LEP Transp., Inc., 965 F.2d 391, 395 (7th Cir.
1992) (quoting Ill. Rev. Stat. ch. 26, ¶ 1–205(1)). A course of dealing may become
part of an agreement either by “explicit provisions of the agreement or by tacit
recognition.” Capitol Converting Equip., Inc., 965 F.2d at 396 (quoting U.C.C.
Official Cmt. 3). Whether a course of dealing exists between parties to a transaction
is a question of fact. Gord Indus. Plastics Inc. v. Aubrey Mfg., Inc., 431 N.E.2d 445,
449 (Ill. App. Ct. 2d Dist. 1982). Nevertheless, while the parties’ previous conduct
may give “particular meaning to and supplement or qualify the terms of their later
agreement,” it does not modify the agreement. Capitol Converting Equip., 965 F.2d
at 395 (quoting Ill. Rev. Stat. ch. 26, § 1-205(1)). It simply “reveals the bargain of

23

the parties in fact . . . informing the nature and the extent of the parties’ obligation
to each other.” Id. at 396; see also In re Elcona Homes Corp., 863 F.2d 483, 487 (7th
Cir. 1988) (explaining that a practice does not modify a contract but may be
evidence of an obligation).
GlobalTranz is correct that a course of dealing can be sufficient to incorporate
terms and conditions contained in another document. Where an agreement is silent
on a particular term, a course of dealing may fill the void. See Gord Indus. Plastics,
431 N.E.2d at 449-50 (explaining that a course of dealing may “give particular
meaning to and supplement or qualify terms of an agreement” (quoting Ill Rev.
Stat. 1975, ch. 26, par. 1 -- 205(3))). Thus, in the absence of any expressed intent to
provide insurance, GlobalTranz’s disclaimer of any insurance obligation would
indeed inform the interpretation of the contract. However, the parties’ prior course
of conduct merely assists the court in interpreting the parties’ intent; it does not
prevent the parties from reaching an alternative agreement with different terms
than in the past—which they could have done here: the parties might have agreed
upon insurance for these two particular loads of Android tablets. Even paragraph
10 of the Terms and Conditions, which contains the insurance disclaimer, states:
“GlobalTranz may have optional Shippers Interest Contingent Cargo Liability
Insurance (“Third Party Insurance”) available for purchase by Customer.” R. 20-3 at
20. Additionally, GlobalTranz admits that it had only one prior transaction
involving Midwest, see R. 20-2 ¶ 11; R. 20-3 at 18, so its general course of dealing
with West Coast for other principals is certainly not dispositive. Saboo stated in his

24

affidavit, “For West Coast the contract or agreement between Midwest and
GlobalTranz is (a) the emails between the parties establishing the load descriptions,
the price, and the insurance, and (b) the bills of lading.” R. 32-2 ¶ 15. If Saboo’s
statement is true and that is all their agreement included, the Terms and
Conditions on GlobalTranz’s website, which include the general insurance
disclaimer and other contract terms, would not be included in the parties agreement
here.
Moreover, GlobalTranz essentially confirmed that it had obtained insurance
for Midwest’s shipments when Gengler stated in his emails that West Coast had
purchased additional insurance for the loads. See R. 44-3 at 2. While this admission
occurred after the shipments had been stolen, there is seemingly no reason for
GlobalTranz to expressly admit that it had obtained insurance if it (1) had not done
so, or (2) had no obligation to do so. Taking this fact in the light most favorable to
Midwest for the purposes of summary judgment, there is evidence that GlobalTranz
agreed to provide insurance on these shipments. This evidence, coupled with the
affidavits from Saboo and Aziz, demonstrates a disputed issue of material fact as to
whether the contract between Midwest and GlobalTranz included an obligation on
the part of GlobalTranz to obtain insurance for the shipment. Summary judgment is
thus denied as to Count III.
IV.

Limitation on Damages
GlobalTranz claims that even if Midwest could recover for breach of contract,

any resulting damages are limited to $3,450 because the Terms and Conditions

25

limit its liability to the fees paid under the contract. R. 37 at 11. The Terms and
Conditions provide in part:
Customer acknowledges that in order to provide competitive rates for
the services, that the parties have agreed as a material term of this
Agreement that the burden on any loss or damage incurred as a result
of GlobalTranz’s alleged liability has been shifted to the Customer, and
that in any event the maximum amount of GlobalTranz’s liability is
limited to the fees that GlobalTranz has earned with respect to the
subject shipment. Customer specifically acknowledges that
GlobalTranz shall have no liability for negligent acts or omissions of its
employees except to the extent such actions or omissions constituted
gross negligence.
R. 20-3 at 20, ¶ 9 (emphasis added).
As discussed above, GlobalTranz argues that the extensive course of dealing
between West Coast and GlobalTranz in which West Coast (for numerous other
transactions not involving Midwest) submitted payment on a form containing a
reference to the Terms and Conditions is sufficient to imply those terms into the
contract at hand. However, as with the matter of the insurance-obligation question,
the parties’ prior course of dealing merely informs the interpretation of a contract; it
does not modify negotiated terms. In this case, there is a dispute over whether the
parties contracted for insurance. There is also a dispute as to whether the Terms
and Conditions were a part of the agreement at issue here. See R. 32-2 ¶ 14 (“No
one at West Coast ever read the terms and conditions found on GlobalTranz website
www.carrierrate.com. West Coast did not consider them to be part of the contract or
agreement between Midwest and GlobalTranz.”); see also id. ¶ 15. Courts have held
that parties may be bound by terms that are incorporated into an agreement, even
if they are explained more fully somewhere else, if the party is given proper notice
26

and the parties intend for them to be a part of the agreement. See, e.g., One Beacon
Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258, 266-69 (5th Cir. 2011); see also
Lozano v. United Continental Holdings, Inc., No. 11 C 8258, 2012 WL 4094648, at
*3 (N.D. Ill. Sept. 17, 2012) (“As the Seventh Circuit has summarized, ‘a document
is incorporated by reference into the parties’ contract only if the parties intended its
incorporation.’” (quoting 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir.
2002)); but see Trujillo v. Apple Computer, Inc., 578 F. Supp. 2d 979, 989-95 (N.D.
Ill. 2008) (declining to enforce an arbitration clause due to a lack of notice and
reasonable access to the company’s “terms of service”). However, both Coronado (on
behalf of West Coast) and Aziz (on behalf of Midwest) deny having signed the credit
application, R. 25-3; R. 25-4, and despite GlobalTranz’s assertion that a customer
cannot book a shipment on-line without checking a box stating “I agree to terms of
agreement,” R. 36-2 ¶¶ 11-12, this shipment was not booked through GlobalTranz’s
website. Coronado did it via direct email with Gengler, R. 44-1 ¶ 3, which would not
have required her to check any box.
Moreover, a limit on GlobalTranz’s liability to a mere $3,450 would defeat the
purpose of an insurance agreement on the more than $600,000 worth of cargo. It
would not make sense for Midwest to pay a higher fee for added protection on the
shipments, yet not actually be entitled to afford themselves of that protection if
GlobalTranz did not satisfy its obligations under the agreement. Accordingly, the
dispute over whether the parties intended to contract for insurance is also material
as to whether the limitation on liability contained in the Terms and Conditions is a

27

term of the contract.
In sum, if West Coast and GlobalTranz agreed to certain terms that differed
from terms previously agreed to, the parties’ prior course of dealing cannot be said
to substitute those past terms for those actually agreed to in the transaction at
hand. Capitol Converting Equip., 965 F.2d at 395-96 (“Where . . . an agreement is
silent on a particular term, a course of dealing may fill the void. . . . Here, the
parties’ course of dealing supplemented their oral agreement which was silent as to
[the issue before the court].”). Thus, there is a factual dispute as to whether the
parties agreed to a damage-limitation clause for these particular shipments. 6
CONCLUSION
GlobalTranz’s motion for summary judgment, R. 18, is granted as to
Midwest’s negligence claim in Count II. The motion is denied as to the fraud claim
in Count I and the breach of contract claim in Count III.
As a final matter, under Illinois law, a breach of a contractual promise
“without more” does not constitute fraud. See Shaw v. Hyatt Int’l Corp., 461 F.3d
899, 901 (7th Cir. 2006); Firstar Bank, N.A. v. Faul, No. 00 C 4061, 2001 WL
1636430, at *4 (N.D. Ill. Dec. 20, 2001). “In other words, for a defendant to be liable
under both theories of breach of contract and fraud, the defendant must have
breached the contract in a fraudulent manner.” Oh. Nat’l Life Assurance Corp. v.
Davis, ___ F. Supp. 2d ___, No. 10 C 2386, 2014 WL 500539, at *4 n.4 (N.D. Ill. Feb.
7, 2014). There is no evidence of GlobalTranz “fraudulently” breaching any alleged
Any damage limitation that could be contained in the agreement would not apply
to the fraud claim in Count I.

6

28

term of the contract. Accordingly, at trial, Midwest may pursue both its fraud and
breach of contract claims, but it is legally impossible in this case for it to recover on
both. If the jury finds in favor of Midwest on its fraud claim, then the parties did not
have a valid contract that included insurance because there was no meeting of the
minds. Alternatively, if there was a contract that was breached, then there was no
disagreement on terms, and under these facts, GlobalTranz could not have
fraudulently induced Midwest to enter into a contract.
The parties are directed to appear at a status hearing on August 5, 2014, at
9:00 a.m. to discuss a prompt trial date. Lead trial counsel should be present.
ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: July 23, 2014

29