Strong v. Passport Auto Logistics, LLC
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE [DOC. 14]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-14169
PASSPORT AUTO LOGISTICS, LLC
d/b/a PASSPORT TRANSPORT,
HON. AVERN COHN
MEMORANDUM AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANT’S MOTION FOR SANCTIONS FOR SPOLIATION OF
EVIDENCE (Doc. 14)1
This is a negligence case. Plaintiff Andrew Strong (Strong) is suing defendant
Passport Auto Logistics, LLC d/b/a Passport Transport (Passport) claiming that it
damaged the convertible top of his 2006 Ferrari Spider F430 (Ferrari) while it was in its
custody. Strong’s claim is grounded in state bailment law.
Before the Court is Passport’s motion for summary judgment on the grounds that
Strong has no admissible evidence showing Passport caused the damage. Also before
the Court is Passport’s motion for sanctions for spoliation of evidence on the grounds
that Strong repaired the convertible top before Passport was given the opportunity to
inspect it, thus preventing the ability to determine the cause of the damage. For the
Upon review of the parties’ papers, the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
reasons that follow, Passport’s motion for summary judgment will be granted and its
motion for sanctions will be denied.
The material facts as gleaned from the parties’ papers follow:2
Strong purchased the Ferrari in March of 2012 or 2013.
In August 2015, Strong participated in the Ferrari Club of America International
Annual Meet, which was held that year in Monterey, California.
On July 28, 2015, Strong delivered the Ferrari to Cauley Ferrari (Cauley), a
dealership located in West Bloomfield Township, Michigan.
Cauley arranged for the Ferrari to be shipped to California by Passport.
Passport loaded the Ferrari on August 3, 2015 at Cauley.
Passport delivered the Ferrari to its warehouse in Salinas, California on August
On August 15, 2015 at approximately 5:00p.m., Strong arrived at the warehouse
in California and took possession of the Ferrari. He did not observe any defects with
the convertible top at the time he picked it up.
Strong drove the Ferrari to a Hilton Hotel in Monterey, California the evening of
August 15, 2015. He parked the Ferrari in an outside parking lot at the Hilton Hotel
The parties partially, at best, complied with the Court’s motion practice
guidelines for a motion for summary judgment. Passport filed a statement of material
facts not in dispute (Doc. 15) with citations to the record. Strong responded to the
statement within the body of its response brief, not in a separate document as required.
Also, there is no joint statement of material facts as required. Neither party highlighted
their exhibits. Finally, Passport relies on the affidavits of James Miller and Ed Watts of
Passport. Neither affidavit is signed or notarized. Be that as it may, the record is
sufficiently complete so as to enable a decision on the motion.
The next morning at 10:00a.m., Strong attempted to engage the convertible top;
it would not open.
Strong did not witness the loading of the Ferrari onto a Passport trailer for
shipping to California. Strong did not see the unloading of the Ferrari from the Passport
trailer after it was delivered to the warehouse in California.
Passport transported the Ferrari back to Cauley in Michigan at some point in late
August. On September 10, 2015, an employee from Cauley emailed Strong about the
Ferrari’s top, stating it was “not sure how this happened” and it “does not occur
naturally” and that he was “not sure how the transport driver could have caused this
unless something interfered with the tonnea cover during the opening/closing process
causing the linkage to bend.”
Strong later stored the Ferrari for the winter at Studio 47 in Columbus, Ohio, a
warehouse facility which also does repairs. On October 6, 2015, Strong directed Studio
47 to perform several repairs on the Ferrari, including repairs to the convertible top. A
document from the owner of Studio 47, undated, regarding the condition of the top and
Upon taking delivery of Mr. Strongs 430 it was immediately apparent that
the convertible top boot cover was severely misaligned. After further inspection it
appeared that it had been pushed toward to rear of the car while it was partially
open. This caused the cover to bow up in the center and slightly bend the lift
arms. There are areas that shown that it made symmetrical contact on both
sides of the leading edge of the cover. We were able to make adjustments so
the top is functional but were unable to make the panel gaps correct. It is my
estimation that the lift arm mechanisms will need to be replaced and the cover
will need to be repaired or replaced. As is takes factory diagnostic equipment to
calibrate these tops the work must be done at a recognized Ferrari repair facility.
Strong later took the Ferrari to Cauley for an inspection. On May 31, 2016, the
same Cauley employee which first described the convertible top emailed him about the
inspection results, stating in part:
we have inspected your convertible top damage and believe that there
must have been an incident where the tonneau boot was trying to open but was
blocked by something in it’s path of operation and we have found a few areas on
the tonneau lid that indicate that it has in fact impacted something causing the
mechanisms on the left and right side to the tonneau lid have been bent out of
proper position and not allowing the tonneau lid to move open enough to allow
the convertible top to come out of the boot.
It also appears that the canvas on the convertible top may have also been
damage [sic] as a result of the softop trying to come out when the tonneau lie
was “not” in the proper position and had damaged the softop cloth as well during
. . . . there is a very high possibility that this may have occurred by an
operator trying to open or close your convertible top while it was in the cargo
area of the transporter and became damaged at that point and was not revealed
to you until later after you of course attempted to use the top and found the
malfunction top problem.
On August 12, 2016, Strong filed this lawsuit.
At some point prior to December 1, 2016, the Ferrari was transported to Naples,
Florida by Reliable Transportation for a Ferrari event on December 1, 2016.
On March 10, 2017, Passport’s expert inspected the Ferrari. As to the
convertible top, the report states the following damage was observed:
Cuts on the driver’s side convertible top
Impact damage from the convertible top to the underside of the rear
passenger compartment cover
The report goes on to state:
the cause(s) of the damage observed at the ESi inspection is related to
operation of the top with a potentially compromised hydraulic system and
subsequent damage from contineud operation of the convertible top in this
The subject vehicle was not preserved in the alleged post incident
condition by the owner of the vehicle. As a result, ESI’s analysis is limited to the
information and photographs provided in combination with the inspection of the
The repair records provided reflect problems and repairs to the convertible
top on the subject vehicle nominally a year prior to the alleged incident.
III. Summary Judgment
"The court shall grant summary judgment 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). A moving party may meet that burden "by
'showing'-that is, pointing out to the district court-that there is an absence of evidence to
support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Rule 56 provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits, or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence
to support a fact.
Fed. R. Civ. P. 56(c)(1).
The Court must decide “whether the evidence presents a sufficient disagreement
to require submission to a [trier of fact] or whether it is so one-sided that one party must
prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the Court
“must view the evidence in the light most favorable to the non-moving party.” Employers
Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).
Although not raised by Passport, there is a threshold question as to whether
Strong’s state law bailment claim is preempted under the Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. § 11706.3 Originally enacted in 1906, the Carmack
Amendment provides standardized rules of common-carrier liability for interstate
shipments on roads and rails. CNA Ins. v. Hyundai Merch. Marine Co., Ltd., 747 F.3d
339, 354 (6th Cir. 2014). The Carmack Amendment “created a national scheme of
carrier liability for loss or damages to goods transported in interstate commerce.” Exel,
Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140, 148 (6th Cir. 2015). The Carmack
Amendment “fully preempt[s] state law concerning the liability of interstate rail and road
carriers.” Id. (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505–06 (1913)).
The Carmack Amendment covers “[a]lmost every detail of the subject” of liability
49 U.S. Code § 11706, entitled “Liability of rail carriers under receipts and bills of
lading” provides in part:
(a) A rail carrier providing transportation or service subject to the jurisdiction of
the Board under this part shall issue a receipt or bill of lading for property it
receives for transportation under this part. That rail carrier and any other carrier
that delivers the property and is providing transportation or service subject to the
jurisdiction of the Board under this part are liable to the person entitled to recover
under the receipt or bill of lading. The liability imposed under this subsection is
for the actual loss or injury to the property caused by—
(1) the receiving rail carrier;
(2) the delivering rail carrier; or
(3) another rail carrier over whose line or route the property is
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
between shippers and carriers engaged in interstate transport of goods so “that there
can be no rational doubt but that Congress intended to take possession of the subject
and supersede all state regulation with reference to it.” W. D. Lawson & Co. v. Penn
Cent. Co., 456 F.2d 419, 422 (6th Cir. 1972). “[T]he Carmack Amendment has
completely occupied the field of interstate shipping” and its “preemptive force [is]
exceedingly broad.” Certain Underwriters at Interest at Lloyds of London v. United
Parcel Serv. of Am., Inc., 762 F.3d 332, 333 (3d Cir. 2014). “When it applies, the
Carmack Amendment ‘provide[s] the exclusive cause of action for loss or damages to
goods arising from the interstate transportation of those goods by a common carrier ...
[and] the complete pre-emption doctrine applies.’ ” Solectron USA ex rel. Fid. & Deposit
Co. of Md. v. Fedex Ground Package Sys., Inc., 520 F. Supp. 2d 904, 907–08 (W.D.
Tenn. 2007) (quoting Hoskins v. Bekins Van Lines, 343 F.3d 769, 778 (5th Cir. 2003))
(emphasis omitted); see also Am. Synthetic Rubber Corp. v. Louisville & N. R. Co., 422
F.2d 462, 466 (6th Cir. 1970) (affirming dismissal of state-law breach-of-contract and
negligence claims because “when damages are sought against a common carrier for
failure to properly perform, or for negligent performance of, an interstate contract of
carriage, the Carmack Amendment governs”); W. D. Lawson & Co., 456 F.2d at 421
(vacating district court order denying motion to dismiss and remanding for dismissal
because the “Carmack Amendment preempted common law suits”); Certain
Underwriters, 762 F.3d at 333 (“[T]he Carmack Amendment preempts all state law
claims for compensation for the loss of or damage to goods shipped by a ground carrier
in interstate commerce.”). The Carmack Amendment only applies to shipping contracts
that begin in one state and terminate in another. It does not apply to shipping contracts
where shipment begins and ends in the same state. CNA Ins., 747 F.3d 339 at 354.
Here, Strong has sued for damages arising from the interstate transportation of
goods from Michigan to California. Passport is an interstate common carrier as shown
by the bill of lading for the transport of the Ferrari. As such, Strong’s bailment claim
must be dismissed as preempted by the Carmack Amendment.
However, in an abundance of caution, the Court will consider Passport’s
summary judgment argument which is essentially that no reasonable juror could find for
Strong on his bailment claim based on the undisputed facts.
A bailment exists when a bailor delivers personal property to a bailee “in trust for
a specific purpose, with a contract, express or implied, that the trust shall be faithfully
executed and the property returned or duly accounted for when the special purpose is
accomplished.” Goldman v. Phantom Freight, Inc., 162 Mich. App. 472, 479-80 (1987).
To establish a prima facie case of negligence on behalf of the bailee, the bailor must
establish the existence of a bailment and that the property is returned in a damaged
condition, thus creating a presumption of negligence. Columbus Jack Corp v. Swedish
Crucible Steel Corp, 393 Mich. 478, 483-484 (1975). The bailee may rebut that
presumption by proving that the bailee exercised due care under the circumstances. Id.
Here, Passport says that Strong is not entitled to a presumption of negligence
because Passport did not have exclusive control of the Ferrari during the relevant time.
The Court agrees. The Ferrari was dropped off at Cauley on July 28, 2015. Passport
did not pick up the Ferrari until a few days later, on August 3, 2015. The Ferrari was
then transported to a Passport warehouse in California. Strong picked it up on August
15. He did not notice the damage until the next morning, August 16. Thus, Passport
was not in exclusive control during the entire relevant time. As such, Strong is not
entitled to a presumption of negligence and instead must show that Passport was
To succeed on a negligence claim in Michigan, a plaintiff must prove that “(1) the
defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3)
the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of
the plaintiff's damages.” Hill v. Sears, Roebuck and Co., 492 Mich. 651, 660 (Mich.
2012) (quoting Loweke v. Ann Arbor Ceiling & Partition Co., L.L.C., 489 Mich. 157, 162
(Mich. 2011)). The general standard of care applicable in negligence cases is the care
that a reasonably careful person would use under the circumstances. Case v.
Consumers Power Co., 463 Mich. 1, 7 (2000) (citing Moning v. Alfono, 400 Mich. 425,
443 (1977); Detroit & M.R. Co. v. Van Steinburg, 17 Mich. 99, 118–119 (1868)).
Passport says that Strong cannot establish that it was negligent based on the
record. Passport says that the cause of the damage to the convertible top is
speculative at best. Passport says that Strong’s deposition testimony, the statements
from the Cauley employee, and the statement from Studio 47 do not establish that
Passport was negligent in transporting the Ferrari. The Court agrees. From this record,
no one knows what caused the damage or when it was damaged. Neither Strong, the
Cauley employee, or the owner of Studio 47 are purported to be experts able to opine
on what caused the damage or when it occurred. The statements, set forth above,
merely say what they think might have happened. This is insufficient. Further
complicating the issue is the fact that Strong had some repairs made to the convertible
top before Passport’s expert inspected it. Thus, it is virtually impossible to determine
the cause because the Ferrari was not in the same condition as when Strong first
discovered the top was non-functional. Moreover, Passport offers the affidavits, albeit
unsigned, from the Passport employees who actually transported the Ferrari. They
state that at no time during loading, transporting, or unloading did they engage the
Strong also argues that even if the cause of the damage cannot be determined,
he can prevail under the doctrine of res ipsa loquitur. It is not clear whether the doctrine
applies in Michigan, see McLennan v. Home Depot U.S.A., Inc., 10 F.Supp.2d 837, 839
(E.D. Mich.1998) (noting that “though Michigan does not purport to follow the doctrine of
res ipsa loquitur, it achieves the same result by allowing negligence to be inferred from
circumstantial evidence.”). Assuming the doctrine applies, res ipsa loquitur generally
involves the following elements:
1. The event must be of a kind which ordinarily does not occur in the absence of
2. The event must have been caused by an agency or instrumentality within the
exclusive control of the defendant.1
3. The event must not have been due to any voluntary action or contribution on
the part of the plaintiff.
4. Evidence of the true explanation of the event must be more readily accessible
to the defendant than to the plaintiff.
Gadde v. Michigan Consolidated Gas Co., 377 Mich. 117, 124 (1966). The doctrine
does not apply for the simple reason that, as explained supra, Passport did not have
exclusive control over the Ferrari during all relevant times.
For the reasons stated above, Strong’s claim is preempted. And even absent
preemption, no reasonable juror could find for Strong based on the record. Passport’s
motion for summary judgment is GRANTED. This case is DISMISSED. In light of this
determination, the Court in its discretion DENIES Passport’s motion for sanctions.
UNITED STATES DISTRICT JUDGE
Dated: January 10, 2018
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