Build 4 Impact, Inc. v. Panther II Transportation, Inc.

Filing 65

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Greg N. Stivers on 8/29/2024. Plaintiff's Motion for Partial Summary Judgment DN 37 is GRANTED. Defendant's Motion to Defer Ruling on Plaintiff's Motion for Summary Judgment or for an Extension of Time DN 40 is DENIED. Defendant's Motion for Summary Judgment DN 53 is GRANTED IN PART, and Plaintiff's requests for consequential damages and attorney's fees are dismissed. cc: Counsel (DeW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:22-CV-00228-GNS-RSE
BUILD 4 IMPACT, INC.

PLAINTIFF

v.
PANTHER II TRANSPORTATION, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Partial Summary Judgment by Plaintiff
Build 4 Impact, Inc. (“Build”) (DN 37), and a Motion for an Extension of Time (DN 40), and
Motion for Summary Judgment (DN 53) on behalf of Defendant Panther II Transportation, Inc.
(“Panther”).1 The motions are ripe for adjudication.
I.

BACKGROUND

In 2019, nonparties Sunteck/TTS Inc. (“TTS”) and ArcBest II, Inc. (“ArcBest”) entered
into a Ground Expedite Rate Agreement (the “Agreement”) that included a provision limiting the
liability of ArcBest or its service providers. (Motter Aff. Ex. 1, at 1, DN 43-2 [hereinafter
Agreement]).
Build constructs exhibits and loans them out for display in museums. (See Cleveland
Dep. 22:23-24:18, Nov. 15, 2023, DN 53-3). In early 2021, Build and the Arizona Science

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Panther moved to defer the ruling on Build’s partial summary judgment or in the alternative for
an extension of time to respond, arguing that Build’s motion was premature. (Def.’s Mot.
Extension Time 3-4, DN 40). Later, after an opportunity to conduct discovery, Panther moved
for summary judgment, addressing the same issues raised in Build’s motion. (See Def.’s Mem.
Supp. Mot. Summ. J., DN 53-1; Pl.’s Mem. Supp. Mot. Partial Summ. J., DN 37-1). Given the
overlapping subject matter of the motions, Panther has had an adequate opportunity to address
these issues, and no extension of time or amended response to Build’s motion for summary
judgment appears to be necessary.
1

Center agreed for Build to loan its “Science of Arachnids” exhibit (the “Exhibit”) to the Arizona
Science Center from May 28, 2021, to January 2, 2022. (Cleveland Dep. 48:3-17; Def.’s Mot.
Summ. J. Ex. 2 (PageID # 519-528), DN 53-3). Build contacted TTS, a freight broker it had
used since 2016, to arrange transportation of the Exhibit from a storage facility in Kentucky to
the Arizona Science Center. (See Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at 1, DN 43-4;
Cleveland Dep. 57:14-22). TTS requested a rate from ArcBest for “20 Pallets 20,000 lbs” and
ArcBest responded with a rate of $8100.00. (Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at
1-2). ArcBest selected Panther as the service provider for the shipment. (See Def.’s Resp. Pl.’s
Mot. Partial Summ. J. Ex. B, at 7).
The Exhibit was initially stored in Texas, where some of it was wrapped in dark-colored
shipping blankets, some was packed into shipping containers, and certain foam boulders were
left completely unwrapped. (See Cleveland Dep. 82:5-85:2). The Exhibit remained wrapped
throughout the time it was in storage and as it was loaded into Panther’s trailer in Kentucky for
transport to Arizona.

(Cleveland Dep. 80:7-21, 87:19-25).

A bill of lading was issued

containing only the word “Displays” in the section titled “Commodity Description.” (Compl.
Ex. 1, at 1, DN 1-1).
In transit to Arizona, Panther’s trailer broke down, and the Exhibit was transferred to a
trailer operated by nonparty Maybach International Group, which completed the shipment. (Pl.’s
Mot. Partial Summ. J. Ex. 1 (PageID # 96), DN 37). Build alleges that Panther and Maybach
improperly transferred the Exhibit, which was damaged upon delivery in Arizona, and had to
undergo repairs before it could be displayed at the Arizona Science Center. (See Cleveland Dep.
89:4-14; Pl.’s Mot. Partial Summ. J. Ex. 3 (PageID # 106), DN 37; Cleveland Decl. ¶ 9, DN 37).

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The Exhibit was displayed at the Arizona Science Center for the full duration and Build received
full payment for the Exhibit. (Cleveland Dep. 48:12-50:3).
Build filed this lawsuit, asserting a claim under 49 U.S.C. § 14706, which is known as the
Carmack Amendment, for carrier liability. (Compl. ¶¶ 21-25, DN 1).
II.

JURISDICTION

The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331
because a federal question is presented.
III.

STANDARD OF REVIEW

In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of material fact that would preclude entry of judgment for the moving party as
a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of stating
the basis for the motion and identifying evidence in the record that demonstrates an absence of a
genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party satisfies its burden, the non-moving party must then produce specific evidence
proving the existence of a genuine dispute of fact for trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-49 (1986).
While the Court must view the evidence in the light most favorable to the non-moving
party, the non-moving party must do more than merely show the existence of some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific
facts proving that a genuine factual dispute exists by “citing to particular parts of the materials in
the record” or by “showing that the materials cited do not establish the absence . . . of a genuine
dispute . . . .” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support

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of the [non-moving party’s] position will be insufficient” to overcome summary judgment.
Anderson, 477 U.S. at 252.
IV.

DISCUSSION

“The Carmack Amendment is a federal statute that governs liability for damages to goods
‘transported in the United States or from a place in the United States to a place in an adjacent
foreign country when transported under a through bill of lading[.]’” EMCO Corp. v. Miller
Transfer & Rigging Co., No. 22-3376, 2023 WL 1305110, at *2 (6th Cir. Jan. 31, 2023)
(alteration in original) (quoting 49 U.S.C. § 14706(a)(1)). “The Amendment ‘makes a motor
carrier fully liable for damage to its cargo unless the shipper has agreed to some limitation[]’ . . .
[by] ‘reliev[ing] shippers of the burden of determining which carrier caused the loss as well as
the burden of proving negligence.’” Id. (internal citation omitted) (quoting Exel, Inc. v. S.
Refrigerated Transp., Inc. (Exel I), 807 F.3d 140, 148 (6th Cir. 2015)).
Claims under the Carmack Amendment are resolved under a burden shifting framework
where the plaintiff carries the initial burden of establishing a prima facie case demonstrating:
“(1) delivery to the carrier in good condition, (2) arrival in damaged condition, and (3) the
amount of damages owed.” Id. (citing Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138
(1964)). If the plaintiff establishes a prima facie case:
[T]he burden shifts to the defendant-carrier to show both that it was not negligent
and that the damage was instead due to one of five excepted causes: (1) an act of
God; (2) an act of terrorism or war; (3) an act of the shipper itself; (4) an act of
public authority; or (5) the inherent vice or nature of the goods.
CNA Ins. Co. v. Hyundai Merch. Marine Co., 747 F.3d 339, 353 (6th Cir. 2014) (citing Mo. Pac.
R.R. Co, 377 U.S. at 137-38). “If the defendant-carrier meets this burden, it wins. If not, then
the shipper prevails based on its establishing the—very low threshold—prima facie case.” Id.

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Build moves for summary judgment as to the first two elements of its prima facie case,
and Panther argues that Build has insufficient evidence to establish a prima facie claim. (Pl.’s
Mem. Supp. Mot. Partial Summ. J. 9; Def.’s Resp. Pl.’s Mot. Partial Summ. J. 10-15, DN 43;
Def.’s Mem. Supp. Mot. Summ. J 7-9, 19-22). The parties both move for summary judgment on
whether Panther’s liability is limited by the Agreement. (Pl.’s Mem. Supp. Mot. Partial Summ.
J. 9-12; Def.’s Mem. Supp. Mot. Summ. J. 9-10). Panther also moves for summary judgment on
Build’s claim for consequential damages. (Def.’s Mem. Supp. Mot. Summ. J. 16-19).
A.

Build’s Prima Facie Case
1.

Received in Good Condition

The parties dispute whether the Exhibit was in good condition when Panther received it.
Panther argues that Build has failed to establish that the Exhibit was in good condition when
Build supplied it to Panther. (Def.’s Resp. Pl.’s Mot. Partial Summ. J. 10-13; Def.’s Reply Mot.
Summ. J. 2-4, DN 64). Panther contends that Build cannot establish that the Exhibit was in good
condition because it was wrapped in early March of 2021, and stored for two months before
being loaded onto Panther’s trailer while still wrapped. (Def.’s Reply Mot. Summ. J. 2).
While a clean bill of lading usually satisfies this element of a shipper’s prima facie case,
that is only where a carrier has the opportunity to inspect the goods before shipment. See, e.g.,
Hoover Motor Express Co. v. United States, 262 F.2d 832 (6th Cir. 1959) (“[T]he statement in
the bill of lading as to ‘apparent good order’ was prima facie evidence only that, as to parts
which were open to inspection and visible, the goods were in good order at the point of origin.”);
A.I.G. Uru. Compania de Seguros, S.A. v. AAA Cooper Transp., 334 F.3d 997 (11th Cir. 2003)
(“Where goods are shipped under seal, the condition of the goods cannot be within the carrier’s
knowledge. A bill of lading accordingly can attest only to apparent or external good condition,

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and . . . the shipper may reasonably be required to present some additional evidence of the
condition of the goods at the time of delivery.” (quoting Pillsbury Co. v. Ill. Cent. Gulf R.R., 687
F.2d 241, 244 (8th Cir. 1982))). Build does not attempt to argue that Panther had an opportunity
to inspect the Exhibit prior to shipping but contends that it has provided sufficient proof of the
Exhibit’s good condition to satisfy this element of its prima facie case. (Pl.’s Resp. Def.’s Mot.
Summ. J. 9, DN 63; Pl.’s Reply Mot. Partial Summ. J. 7, DN 44).
Panther compares Build’s claim to other cases premised on damage to wrapped goods.
(See Def.’s Resp. Pl.’s Mot. Partial Summ. J. 11-13). Panther cites to Ohio Star Transportation
LLC v. Roadway Express, Inc., No. 2:09-CV-00261, 2010 WL 3666982 (S.D. Ohio Sept. 14,
2010), where a sister court found a shipper had failed to establish a that the carrier received its
shipment in good condition because it only provided a clean bill of lading and an affidavit that
discussed the post-delivery condition of the goods. Id. at *3. Ohio Star is clearly distinguishable
from this case because Build’s representative Richard Cleveland (“Cleveland”) testified to the
condition of the Exhibit before it was packed in Texas and testified that the Exhibit, although
still wrapped in cloth and shrink wrap, was in the same condition when it was loaded onto
Panther’s truck. (See Cleveland Dep. 80:16-24, 147:23-148:25). Further, Cleveland stated that
the Exhibit had never been damaged before during transport. (Cleveland Dep. 43:25-44:3).
Panther’s citation to Northrich Co. v. Group Transportation Services, Inc., No. 1:13-CV-1161,
2015 WL 1291447 (N.D. Ohio Mar. 23, 2015), is unavailing for the same reasons. Id. at *5-6.
Ohio Star and Northrich Co. do not stand for the proposition that carrier must have
inspected goods for a shipper to establish a prima facie case of good condition, but that a shipper
must provide more than simply a clean bill of lading if a carrier did not have an opportunity to
inspect the goods. See Ohio Star, 2010 WL 3666982, at *3; Northrich Co., 2015 WL 1291447,

6

at *5-6. Build has done so. Panther has produced no evidence of any intervening incident which
could allow a reasonable juror to conclude that the Exhibit pieces, which Cleveland testified
were in the same good condition when they were wrapped in Texas as when they were when
loaded into Panther’s truck, suffered some change of condition. Furthermore, parts of the
Exhibit that suffered damage, replica boulders, were not wrapped when loaded into Panther’s
truck. (Cleveland Dep. 42:23-43:4). All of this, in addition to the clean bill of lading, is enough
to meet the “very low threshold” required to establish this element of Build’s prima facie case.
See CNA Ins., 747 F.3d at 353.
2.

Arrival in Damaged Condition

Panther argues that Build has failed to supply sufficient evidence of the Exhibit’s
condition when it arrived in Arizona to establish this element of its prima facie case. (Def.’s
Resp. Pl.’s Mot. Partial Summ. J. 13-15). Panther bases its argument on the fact that Cleveland
was not there when the Exhibit was unloaded from Panther’s truck and therefore lacks personal
knowledge of any damage to the Exhibit. (Def.’s Resp. Pl.’s Mot. Partial Summ. J. 14). Build
supplied the bill of lading, which lists several damaged components of the Exhibit, signed and
dated by an individual purported to be the truck driver who delivered the package. (See Pl.’s
Mot. Partial Summ. J. Ex. 3 (PageID # 106), DN 37; Pl.’s Reply Mot. Partial Summ. J. 7).
Further, Cleveland discussed the damages to the Exhibit in his deposition. (See Cleveland Dep.
137:8-146:16). Build has raised sufficient evidence to establish this element of its prima facie
case, and Panther has failed to raise any evidence other than suggesting “metaphysical doubt” as
to Build’s proof. Matsushita Elec. Indus., 475 U.S. at 586.

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3.

Actual Loss

Panther argues that Build has failed to establish the amount of its actual loss incurred
from any alleged damage to the Exhibit. (Def.’s Mem. Supp. Mot. Summ. J. 7-9). Generally,
“actual loss” is calculated as “the difference between the market value of the goods at destination
if timely delivered without damages and the market value of the goods as actually delivered.”
CSX Transp., Inc. v. Meserole St. Recycling, 618 F. Supp. 2d 753 (W.D. Mich. 2009) (citing
Jessica Howard Ltd. v. Norfolk S. R.R. Co., 316 F.3d 165, 168 (2d Cir. 2003)). This general rule,
however, “has little bearing on any individual case because how the shipper’s loss should be
measured depends on the circumstances.” Exel, Inc. v. S. Refrigerated Transp. (Exel II), 905
F.3d 455, 465 (6th Cir. 2018) (citations omitted); Ill. Cent. R. Co. v. Crail, 281 U.S. 57, 64
(1930) (“The test of market value is at best but a convenient means of getting at the loss suffered.
It may be discarded and other more accurate means resorted to, if, for special reasons, it is not
exact or otherwise not applicable.” (citations omitted)).
Panther asserts that because Cleveland admitted that a market exists for goods like the
Exhibit, any alleged damages would need to be measured by difference in market value. (Def.’s
Mem. Supp. Mot. Summ. J. 7-9).

Build responds that repair or replacement cost is the

appropriate measure of damages. (Pl.’s Resp. Def.’s Mot. Summ. J. 10-11).
Much of the case law discussing the proper measure of damages is inapplicable to the
facts of this case because the typical Carmack Amendment case involves goods being
transported for sale, while this case involves a museum exhibit that Build was in the business of
loaning. (See Cleveland Dep. 24:2-11). For example, the Sixth Circuit noted that “several courts
have ‘held that the burden of proving that the market value rule will not result in a just measure
of actual damage is on the carrier.’” Exel II, 905 F.3d at 465 (quoting Great Atl. & Pac. Tea Co.

8

v. Atchison, T. & S. F. Ry. Co., 333 F.2d 705, 708 (7th Cir. 1964)). This is because “mere
replacement costs deprive a manufacturer of expected profit which he is on the verge of earning
and do not compensate him for what he ‘would have had if the contract [of delivery] had been
performed . . . .’” Polaroid Corp. v. Schuster’s Express, Inc., 484 F.2d 349, 351 (1st Cir. 1973)
(alteration in original) (quoting Chi., M. & St. P. Ry. Co. v. McCaull-Dinsmore Co., 253 U.S. 97,
100 (1920)). Here, it would be inappropriate to place the burden of justifying deviation from the
market value rule on the carrier, Panther, which is arguing for application of that rule, and it
would be equally improper to require that Build’s “actual loss” be calculated in terms of the
market value of an object that Build was in the business of lending.
Panther insists market value must be used because the Exhibit has a market value and
because Build did not act immediately to replace the Exhibit. (Def.’s Mem. Supp. Mot. Summ.
J. 7-9). Panther cites Project Hope v. M/V IBN SINA, 250 F.3d 67 (2d Cir. 2001), in support of
the assertion that “[r]eplacement cost can be a measure of damages if there is no market value for
the damaged goods.” (Def.’s Mem. Supp. Mot. Summ. J. 7 (citing Project Hope, 250 F.3d at
77)). A review of Project Hope makes clear that the Second Circuit found that lack of market
value was sufficient to justify departure from the market value rule but makes no holding that
lack of a market value is necessary to do so. See Project Hope, 250 F.3d at 77 (“While it is true
that damages under the Carmack Amendment should generally be based on the fair market value,
we have held that it need not be applied if ‘circumstances suggest a more appropriate
alternative.’” (internal citation omitted) (citation omitted)). Accordingly, Cleveland’s admission
that a marketplace exists for museum exhibits does not render market value the only appropriate
measure of damages.

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Panther’s next contested point appears to rely on a sentence in Exel II where the Sixth
Circuit noted, “courts have recognized that ‘[r]eplacement cost is an appropriate measure of
damages where the injured party could mitigate the loss by replacing the goods.’” Exel II, 905
F.3d at 465 (alteration in original) (citation omitted). Again, the difference in context renders
this idea largely inapplicable here. In Exel II, the carrier successfully argued that replacement
cost was the appropriate measure of damages because the shipper did not lose any sales as a
result of a stolen shipment. See id. at 465-66. In the context of the transportation of goods for
sale, a prompt replacement that results in no loss in sales obviates the need for market value rule
because no loss in sales means no loss in profits. See, e.g., Eastman Kodak Co. v. Westway
Motor Freight, Inc., 949 F.2d 317, 319 (10th Cir. 1991) (applying the market value rule because
the plaintiff-shipper “produced evidence that it sells virtually all of its sensitized photographic
merchandise shortly after production is completed.

This evidence tends to show that any

damaged merchandise that could not be sold would result in lost profits.”). Requiring Build to
calculate its damages based on the market value of a one-of-a-kind item that it never intended to
sell would be a perverse interpretation of “actual loss.” Thus, the appropriate measure of
damages in this instance is the lesser of the repair or replacement cost of the Exhibit, and
Panther’s motion for summary judgment is denied as to this issue.
For the foregoing reasons, Build has satisfied the first two elements of its prima facie
case are satisfied. Panther’s motion is denied to this extent. An issue of fact remains as to
Build’s actual loss, which will be calculated as the cost to repair the damage caused during
transit or to replace the Exhibit. 2

2

If a trier of fact finds that Build has proven its actual loss at trial, Panther may still rebut
Build’s prima facie case by proving that it was not negligent and that the damage was due to one
10

B.

Limitation on Liability

Panther also argues that, regardless of whether Build has established its prima facie case,
Panther’s liability for any damage incurred is limited by ArcBest’s Tariff, Bill of Lading, and
Agreement. (Def.’s Mem. Supp. Mot. Summ. J. 10-16).
“[T]he ‘default posture’ of the Carmack Amendment is full liability on the carrier.” Exel
I, 807 F.3d at 150 (citation omitted). The procedure by which a carrier may limit its liability is
contained in 49 U.S.C. § 14706(c)(1), and courts have interpreted this section to require a carrier
to:
(1) maintain approved tariff rates with the ICC; (2) provide the shipper with a fair
opportunity to choose between two or more levels of liability; (3) obtain the
shipper’s written agreement as to its choice of liability; and (4) issue a receipt or
bill of lading prior to moving the shipment.
Exel I, 807 F.3d at 151 (citations omitted). A carrier has the burden of establishing its limitation
of liability. Id. (citation omitted)
The most hotly contested issue in this case is whether Build may be bound to the liability
limitation provision in a contract between its broker, TTS, and Panther’s owner, ArcBest. Build
points to the Sixth Circuit’s discussion in Exel I, where the court declined to enforce a contract
between a broker and carrier against a shipper because the Agreement “was not executed by the
shipper . . . and the carrier . . . .” Exel I, 807 F.3d at 151 (citation omitted). There, the broker
and carrier had entered into a Master Transportation Services Agreement (MTSA) nearly a year
before the shipper contracted with the broker to ship the goods at issue. See Exel I, 807 F.3d at
143. Likewise, here, the Agreement between TTS and ArcBest was executed in 2019, almost
two years before Build requested a quote to ship the Exhibit to Arizona. (See Agreement 1;

of the five excepted causes. See CNA Ins., 747 F.3d at 353 (citing Mo. Pac. R.R. Co., 377 U.S. at
137-38)
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Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at 1). While there are certainly distinctions
between Exel and the instant case, the Sixth Circuit’s statement here is quite clear: “[A]n
agreement between a carrier and broker that does not establish the shipper’s assent cannot set the
carrier’s liability . . . .” Exel I, 807 F.3d 150-51.3
The email communications between Build and TTS and between TTS and ArcBest show
that ArcBest merely sent a flat rate quote of $8100.00 for the trip from Kentucky to Arizona.
(Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at 1). There was no mention of any liability
limitation, nor the option for another rate. See Exel II, 905 F.3d at 462 (“In fact, the very
purpose of the requirement that the carrier provide the shipper with a choice between levels of
liability is to allow the shipper to ‘obtain[] the lower of two or more rates of charges
proportioned to the amount of the risk.’” (alteration in original) (quoting Adams Express Co. v.
Croninger, 226 U.S. 491, 509-10 (1913))).

Panther has failed to point to any evidence

establishing that Build assented to any liability limitation, and therefore ArcBest’s Agreement
with TTS is insufficient to limit Build’s liability.
Panther also points to the value declared box on the bill of lading as evidence that Build
was given the choice between two or more liability options. (Def.’s Mem. Supp. Mot. Summ. J.
15-16). This argument was squarely rejected by the Sixth Circuit in Exel I. See Exel I, 807 F.3d
at 152-53. The value declared box on the bill of lading in this case stated that “[w]here the rate
is dependent on value, the shipper shall state specifically in writing the agreed or declared value
of the property . . . .” (Compl. Ex. 1, at 1). Like in Exel I, notwithstanding the value declared
3

Panther cites to Werner Enterprises, Inc. v. Westwind Maritime International, Inc., 554 F.3d
1319 (11th Cir. 2009), where the Eleventh Circuit, in similar circumstances, relied on Supreme
Court precedent outside the context of the Carmack Amendment and enforced the liability
limitation against the shipper. See id. at 1323-26. Certainly, application of Werner would
appear to lead to a different result here. Nonetheless, this Court is bound by Sixth Circuit
precedent.
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box, the bill of lading “[did] not offer an option to choose a higher level of coverage or state that
the carrier’s liability might be limited.” Exel I, 807 F.3d at 152-53. Further, by the plain
language of the value declared box, Build was not required to state the value because it was
paying a flat rate. (See Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at 7).
“[O]nly by granting its customers a fair opportunity to choose between higher or lower
liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery
to an amount less than the actual loss sustained.” Exel II, 905 F.3d at 462 (quoting N.Y., N.H. &
Hartford R.R. v. Nothnagle, 346 U.S. 128, 135 (1953)). There is insufficient evidence from
which a reasonable juror could conclude that Build had the opportunity to choose between two or
more levels of liability. Accordingly, Build is entitled to judgment as a matter of law on this
issue.
C.

Consequential Damages

Panther argues that Build’s claim for consequential damages must be dismissed because
Build’s consequential damages were not foreseeable. (Def.’s Mem. Supp. Mot. Summ. J. 1619).
Special or consequential damages are available under the Carmack Amendment, but the
shipper bears the burden of proving that the carrier “‘had reasonable notice or knowledge of the
special conditions rendering such damages the natural and probable result of the breach’ in order
to recover special or consequential damages.” Custom Rubber Corp. v. ATS Specialized, Inc.,
633 F. Supp. 2d 495 (N.D. Ohio 2009) (quoting Marquette Cement Mfg. Co. v. Louisville & N.
R. Co., 281 F. Supp. 944 (E.D. Tenn. 1967), aff’d, 406 F.2d 731 (6th Cir. 1969)); see also Am.
Synthetic Rubber Corp. v. Louisville & N. R. Co., 422 F.2d 462, 467 (6th Cir. 1970) (noting that
Marquette stated the correct standard for recovery of special or consequential damages). The

13

shipper must show notice or knowledge existed at the time that the carrier agreed to ship the
cargo. Custom Rubber, 633 F. Supp. 2d at 516.
In its Fourth Supplemental Disclosures, Build identified the consequential damages it
seeks to recover, totaling $357,119.53 in wasted marketing expenses, storage, “husbandry fees to
care for the arachnid collection,” feed and supplies for the arachnid collection, utility bills for the
arachnid collection, and loss of revenue. (Def.’s Mot. Summ. J. Ex. 1, at 1-2, DN 53-2). Build
argues that Panther should have inferred that lost profits and consequential damages would result
from damage to the Exhibit because Panther knew that Build’s cargo was being delivered to a
museum, involved unique items, and required specialized loading and securement techniques,
citing Panther’s response to Build’s first set of interrogatories. (Pl.’s Resp. Def.’s Mot. Summ. J.
20). As an initial matter, Build, who bears the burden of proof for this claim, provides no
authority supporting the proposition that a carrier can be imputed with knowledge of potential
consequential damages based on a shipment’s destination or methods used to pack it. Further,
that Panther responded to an interrogatory describing the Exhibit as unique and discussing the
specialized loading procedures does not show Panther’s knowledge at the time that Panther
agreed to ship the cargo. (See Pl.’s Mot. Partial Summ. J. Ex. 1 (PageID # 94), DN 37). TTS’s
email requesting a quote from ArcBest merely lists the size, weight, starting point, and
destination of the cargo. (See Def.’s Resp. Pl.’s Mot. Partial Summ. J. Ex. B, at 1-2). The bill of
lading likewise contains no specialized information about the cargo other than the description
“Displays.” (Compl. Ex. 1, at 1). Build has provided no evidence that Panther was aware when
it agreed to ship the Exhibit that damage to the cargo could result in any of the special and

14

consequential damages it seeks.4

Accordingly, Panther’s motion for summary judgment is

granted as to Build’s claim for consequential damages.

See Dubow Textile, Inc. v. W.

Specialized, Inc., No. CV 18-2963 (DWF/LIB), 2021 WL 5505447, at *5 (D. Minn. Nov. 24,
2021) (declining to award damages for lost profits resulting from damages to a printer because
the shipper “was not informed of the Printer’s value, nor was it informed prior to its acceptance
of the Printer’s shipment that its acceptance included potential liability for Dubow’s lost profits
associated with any period of time that Dubow would not have an additional printer at its facility
should the Printer be damaged and not useable.”).
D.

Attorney’s Fees

Panther also moves for summary judgment on Build’s claim for attorney’s fees. (Def.’s
Mem. Supp. Mot. Summ. J. 19).

Build “concedes case law supports the proposition that

attorney’s fees are not recoverable as of right under a Carmack claim,” but maintains, without
elaboration, that “[a]ttorney’s fees would also be recoverable, if warranted, under [Fed. R. Civ.
P.] 11.” (Pl.’s Resp. Def.’s Mot. Summ. J. 22). Build has not demonstrated that it has any
colorable basis for recovery of attorney’s fees. Accordingly, summary judgment is granted to
Panther as to Build’s claim for attorney’s fees.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1.

Plaintiff’s Motion for Partial Summary Judgment (DN 37) is GRANTED.

2.

Defendant’s Motion to Defer Ruling on Plaintiff’s Motion for Summary Judgment

or for an Extension of Time (DN 40) is DENIED.
4

The Exhibit was displayed as scheduled at the Arizona Science Center, and Build received full
payment for loaning the Exhibit. (Cleveland Dep. 48:12-50:3). Build’s claim for consequential
damages relates to damages allegedly incurred after the Exhibit was removed from the Arizona
Science Center.
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3.

Defendant’s Motion for Summary Judgment (DN 53) is GRANTED IN PART,

and Plaintiff’s requests for consequential damages and attorney’s fees are dismissed.

August 29, 2024

cc:

counsel of record

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