Union Pacific Railroad Company v. Beemac Trucking, LLC et al

Filing 196

MEMORANDUM AND ORDER granting in part 149 Motion for Summary Judgment - Plaintiff Union Pacific provided to the Defendants sufficient notice of its Carmack Amendment claim; Plaintiff Union Pacific Railroad Company's motion is otherwise de nied. The 144 Motion for Summary Judgment and 147 Motion for Summary Judgment are granted in part, as follows: a) The following state law claims, asserted by Plaintiff Union Pacific Railroad Company against the Defendants, are dismissed wit h prejudice: i. "NEGLIGENCE AS TO ALL DEFENDANTS", Filing No. 1 20-24; ii. "CONTRACTUAL INDEMNITY AS TO DEFENDANT BEEMAC", id. at 25- 29; iii. "COMMON LAW INDEMNITY AS TO ALL DEFENDANTS", id. at 30-34; iv. "BREA CH OF CONTRACT AS TO BEEMAC", id. at 35-38; b) Plaintiff Union Pacific Railroad Company's claim for attorney fees is dismissed with prejudice; and The Defendants' motions are otherwise denied. Ordered by Chief Judge Laurie Smith Camp. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNION PACIFIC RAILROAD COMPANY,

CASE NO. 8:11CV8

Plaintiff,
vs.

MEMORANDUM
AND ORDER

BEEMAC TRUCKING, LLC, LANDSTAR
RANGER, INC., and EDWARD SAMUEL
EDLING,
Defendants.

This matter is before the Court on the Motion for Summary Judgment (Filing No.
149) filed by Plaintiff Union Pacific Railroad Company (“UP”), and the Motions for
Summary Judgment filed by Defendant Beemac Trucking, LLC (“Beemac”) (Filing No.
147), and Defendants Landstar Ranger, Inc. (“Landstar”), and Edward Samuel Edling
(“Edling”) (Filing No. 144). For the reasons discussed below, all three motions will be
granted in part and denied in part.
FACTUAL BACKGROUND
Unless otherwise noted, the following facts are those that are stated in the
parties’ briefs in support of and in opposition to the cross-motions for summary
judgment and supported by pinpoint citations to admissible evidence in the record, that
the parties have admitted, and that the parties have not properly resisted as required by
NECivR 56.1 and Fed. R. Civ. P. 56.
UP is a Delaware corporation with its principal place of business in Omaha,
Nebraska. Beemac is a limited liability company with its principal place of business in
Pennsylvania. Landstar is a Florida corporation with its principal place of business in
Florida. Edling is an individual who, at all relevant times, was a resident of Salem, Ohio.

In June 2009, UP and Beemac entered into an agreement titled, “Motor Carrier
Transportation Agreement” (the “MCTA”) (Filing No. 152-15), under which Beemac
agreed to provide “motor carrier transportation services" for UP. Within the MCTA,
Beemac represented that it was “a duly qualified and authorized contract carrier” that
could “lawfully provide [UP] all of the transportation and related services set forth [in the
MCTA] in accordance with the terms and conditions of th[e] [MCTA], in each case as a
carrier of general commodities in interstate and foreign commerce.” (Id. at § 1.A.)
Section 5 of the MCTA states:
A.
Each Shipment shall be evidenced by a . . . bill of lading . . . or
other form of document containing the applicable information as outlined
in Exhibit B, which shall be signed by [Beemac] or [Beemac]’s agent or
employee describing the kind and quantity of freight tendered as
described in the shipping document . . . received by [Beemac] at origin. . .
. In the event of any conflict between the terms and conditions of such
documentation and the terms and conditions of this Agreement, the terms
and conditions of this Agreement shall govern.
B.
Upon the delivery of a Shipment, [Beemac] shall obtain a receipt in
a form specified or approved by [UP] showing the kind and quantity of
[UP]’s Defined Goods delivered to the consignee of the Shipment at the
destination specified by [UP]. [Beemac] shall also show on the receipt the
date of delivery of the Shipment and shall have each receipt signed by the
applicable consignee or by consignee’s employees or agents.
(Id. at § 5.) Section 15 of the MCTA states:
Neither party shall be allowed to assign or transfer its interest in this
Agreement in whole or in part without the prior written consent of the other
party[.] . . .
This Agreement shall be governed, construed and enforced in accordance
with the laws of the State of Nebraska. . . .
No modification or amendment to this Agreement shall be of any force or
effect unless made in writing, signed by [Beemac] and [UP] and specifying
the nature and extent of such modification or amendment.
(Id. at § 15.B., C., G.) Sections 10 and 11 of the MCTA provide that Beemac was
required to procure insurance for UP and indemnify UP for certain harms. (See Id. at §§
10, 11.)
2

Beemac contends that despite the MCTA’s delivery terms, UP had a common
practice or procedure for deliveries of equipment, such as trucks, that applied when no
one from UP was present to accept delivery, i.e., leaving the keys to the equipment on
the equipment’s dipstick, and that the common practice or procedure applied to the
shipment at issue in this case. (See Dep. of Eugene Tietz, Filing No. 150-1 at 30:13-19;
Dep. of David Hanner, Filing No. 150-4 at 80:20-82:5, 99:17-100:17, 101:10-23.)
In 2010, UP needed one of its grapple trucks moved from Benedict, Kansas, to
Riverton, Louisiana. On January 8, 2010, UP solicited bids from a number of carriers
with whom it had previous agreements.

UP’s request for bids listed certain

requirements and terms for the shipment, including some delivery terms. In a section
titled “COMMENT/SPECIAL INSTRUCTION,” the bid request stated “EMPLOYEES
WILL LOAD AND UNLOAD BOTH LOCATIONS. GANG WILL ACTUALLY UNLOAD
RIVERTON, LA ABOUT 5 MILES NORTH OF COLUMBIA, LA.” (Filing No. 152-12 at
2.) The bid request also indicated that UP wanted the shipment delivered between 9:00
a.m. and 12:00 noon, Central Standard Time, on January 10, 2010. (Id. at 1.)
Beemac submitted the winning bid, but did not have a truck available to carry the
shipment. Beemac posted the job on a “load board,” and received a response from a
Landstar agent, and arranged to have Landstar handle the shipment. UP contends that
Beemac “subcontracted” the shipment to Landstar. Beemac asserts that it “forwarded”
the shipment of the grapple truck to Landstar.
Landstar and Beemac agreed that Landstar would act as the carrier and
transport the grapple truck from Kansas to Louisiana.

Landstar and Beemac had

entered into a “CARRIER/BROKER TRANSPORTATION AGREEMENT” (the “CBTA”)
3

on or about June 19, 2008, for the purpose of having Landstar “satisfy some of
[Beemac’s] transportation needs[.]

(Filing No. 166-2.)

The CBTA controlled the

relationship between Beemac and Landstar. Section 9 of the CBTA states:
[W]hile freight is under [Landstar’s] care, custody, or control, [Landstar]
shall assume common carrier (i.e. Carmack Amendment) liability for actual
loss, damage or injury to Customers’ freight[.] . . . The measure of the
loss, damage, or injury shall be the lesser of the actual replacement cost
or the cost of repair, . . . (2) for shipments of commodities in other than
new condition, including but not limited to . . . used machinery or parts, not
to exceed the lesser of $1.00 per pound of $50,000 per truckload
shipment.
[Landstar] shall not be liable for indirect, special or
consequential damages, or other special economic losses, regardless of
its knowledge. . . . [Beemac] agrees to indemnify [Landstar] from any
claim, loss, damage, cost, including reasonable attorney fees, or cause of
action from [Beemac]’s Customers if [Beemac] enters into an agreement
with its Customers specifying a liability standard other than that in this
paragraph.
(Id. at CM/ECF p. 5 § 9.) Landstar’s agent gave Edling’s telephone number to Beemac
so Beemac could contact Edling, Landstar’s driver, about the shipment.
independent contractor operating agreement

An

governed Edling and Landstar’s

relationship.
On January 9, 2010, Edling picked up the grapple truck in Kansas. The truck
was not in any type of container that would have prevented Edling from inspecting it,
and it was driven up ramps onto Edling’s trailer. Edling filled out a bill of lading (Filing
No. 152-17) that indicated the property was received in apparent good order. No one
from UP signed the bill of lading’s “Shipper Certification” line.
Edling did not deliver the load on January 10, 2012, as requested in UP’s bid
request. Instead, Edling arrived at the delivery site at 9:45 p.m., Central Standard Time,
on January 12, 2010. UP was aware the delivery would not be made as specified in the
bid request, but contends it was not aware the delivery would occur after daylight hours
on January 12, 2010. (Dep. of David Hanner, Filing No. 150-4 at 46:1-49:17.) UP
4

believed Edling was prohibited from traveling with the oversized load after daylight. (Id.
at 40:2-11, 49:11-20.)
When Edling arrived at the delivery site, the UP foreman for the site, David
Hanner, was not present, and none of Hanner’s employees requested overtime to work
that evening. While Edling was at the site, someone showed up and helped him unload
the grapple truck. This man did not provide Edling with any form of identification, and
the man was not wearing a reflector vest or a hardhat, which UP employees are
supposed to wear any time they work on or near a railroad track. After the man helped
Edling unload the grapple truck, Edling left the truck’s keys on its dipstick. Edling stated
in his deposition that when he picked up the grapple truck in Kansas, a UP employee
instructed him to follow this procedure. (Dep. of Edward Edling, Filing No. 150-3, 83:1319.) The man who had helped Edling unload the truck was standing next to Edling at
the time and could see where Edling placed the truck’s keys.
The bill of lading, referenced above, contained a “receiver certification” signature
line for the consignee to sign acknowledging receipt of the property described in the bill
of lading in good condition, “except as noted.” Nobody from UP signed the “receiver
certification” signature line. Beemac contends UP does not always sign a bill of lading
when equipment is delivered even if someone from UP is present at the time. (See
Dep. of David Hanner, Filing No. 150-4 at 122:13-123:8.)
The man who helped Edling unload the truck remained at the delivery site after
Edling left. Edling did not call anyone at UP after unloading the truck. (Dep. of Ed
Edling, Filing No. 150-3 at 185:18-186:1.)

5

At approximately 2:00 a.m. on January 13, 2010, a UP train collided with the
grapple truck, which was parked on the railroad tracks, and the truck was destroyed.
UP contends the value of the truck was $268,689.33, based on receipts indicating that
UP purchased the truck for $94,190.00 and spent $147,499.33 for modifications. (See
Filing No. 152-14.)1 The Defendants assert that the truck’s value was $95,100.002 prior
to the collision, and its salvage value was $15,212.00, making the actual loss
$79,888.00. They point to an expert report to support this assertion. (See Filing Nos.
166-1 at CM/ECF p. 52, 170-1 at CM/ECF p. 15.)
Two UP employees, L.R. Reed and Roy Brown, were operating the train at the
time it collided with the truck, and suffered injuries as a result. Both employees made
claims against UP under the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51 et
seq. UP settled the matter with Reed for $65,000.00, and the matter with Brown for
$217,603.43.

On the date of the collision, UP’s trains were also delayed “AS A

RESULT OF AN INCIDENT,” resulting in UP incurring $8,025.48 in expenses. (Filing
No. 152-10).
Although Beemac disputes the quality of the investigation UP made in its attempt
to identify the man who helped Edling unload the grapple truck, it is uncontroverted that
UP took steps to determine the identity of the man, but was unsuccessful.

On

1

To the extent UP contends that the value of the grapple truck is equal to the amount it spent to
purchase and modify it for improvements, the Court notes that the evidence to which UP has pointed
seems to indicate that the grapple truck’s value was $241,689.33, not $268,689.33.
2

The Defendants contend that $95,100.00 was the “actual cash value” of the grapple truck
immediately prior to the collision. The Defendants suggest this value takes into account that the grapple
truck depreciated in value after UP purchased it and spent money to improve it, whereas the value UP set
forth only takes into account the truck’s purchase price and the cost of improvements. The value the
Defendants set forth, which is only $910.00 more than the price at which UP purchased the truck, “is
based on a [sic] internet search of truckpaper.com as well as a phone conversation with Rowdy Yeates
with Yeates Equipment located in Byram, MS.” (Filing No. 166-1 at CM/ECF p. 52.)

6

September 24, 2010, UP sent a letter to Beemac. (See Filing No. 152-11.) The letter
stated, in part:
This letter serves as notice of [UP]’s claim against Beemac for all losses,
damages, and liabilities arising from the train-vehicle incident on January
13, 2010 in Riverton, Louisiana. As you are aware, a [UP] train collided
with a [UP] Grapple truck at approximately 2:00 a.m. on January 13, 2010
in the Riverton, Louisiana rail yard. The Grapple truck was wrongfully
parked on the track at the time of the collision. The Grapple truck had
been delivered to the Riverton rail yard just two hours earlier by Landstar
driver Ed Edling. Mr. Edling transported the . . . truck in his tractor trailer
from Kansas to Riverton, Louisiana.
(Id. at 1.) The letter also indicated what UP claimed to be the grapple truck’s purchase
price and salvage value; UP’s potential FELA liability resulting from the incident; and the
cost of train delays resulting from the incident. (Id. at 2-3.)
UP filed its Complaint (Filing No. 1) on January 12, 2011, asserting five causes
of action: (1) negligence against all the Defendants; (2) contractual indemnity against
Beemac; (3) common law indemnity against all the Defendants; (4) breach of contract
against Beemac; and (5) a claim under the Carmack Amendment to the Interstate
Commerce Act, 49 U.S.C. § 14706 et seq., against Beemac and Landstar. With respect
to its negligence claim, UP alleges that the
Defendants breached their duty to [UP] as follows:
a.

In failing to exercise reasonable care in attempting to deliver the
Grapple Truck to [UP];

b.

In failing to exercise reasonable care to properly store the Grapple
Truck until it was physically delivered to [UP];

c.

In failing to exercise reasonable care in handling the Grapple Truck
until it was physically delivered to [UP]; and

d.

In failing to exercise reasonable care in parking the Grapple Truck
until it was physically delivered to [UP].

(Id. at ¶ 22.) UP alleges that it sustained various losses proximately resulting from this
alleged negligence. (Id. at ¶¶ 23-24.) With respect to its contractual indemnity claim
7

and breach of contract claims, UP contends that the MCTA required Beemac to
indemnify UP for the losses resulting from the performance of the MCTA and to obtain
insurance coverage for those loses, but that Beemac failed to do so. (Id. at ¶¶ 25-29,
35-38.) With respect to its common law indemnity claim, UP contends it was obligated
to pay Reed and Brown for the injuries they sustained in the train collision with the
grapple truck, and, under the circumstances, justice requires that Defendants indemnify
UP for that liability. (Id. at ¶¶ 30-34.) UP acknowledges that “[t]his case involves a
claim brought under [the Carmack Amendment]. The state law claims arise from the
same underlying transaction.” (Pl.’s Br., Filing No. 151 at CM/ECF p. 4 ¶ 5.)
The parties filed their cross motions for summary judgment on January 4, 2013.
UP seeks to establish that it is entitled to judgment as a matter of law with respect to
each of its claims. In its Answer, Beemac alleged as an “affirmative defense” to UP’s
Carmack Amendment claim that UP failed to provide notice of that claim as required by
statute. (Filing No. 26 at ¶ 55.) In its motion, UP also seeks to establish that it provided
the required notice. In their cross-motions, the Defendants seek to establish that UP
failed to point to evidence sufficient to support its Carmack Amendment claim. If the
Court finds that UP has pointed to evidence sufficient to support that claim, the
Defendants seek to establish that the damages UP may recover under the Carmack
Amendment are limited to the actual damage caused to the grapple truck.

The

Defendants also seek to establish that UP’s state law claims are preempted by the
Carmack Amendment and, therefore, must be dismissed. If the Court finds they are not
preempted, the Defendants seek to establish that UP failed to point to evidence

8

sufficient to support those claims. Landstar and Edling also seek to establish that their
liability under the Carmack Amendment is limited by the terms of the CBTA.
STANDARD
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the non-moving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). However, “'facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).
“If the moving party will bear the burden of persuasion at trial, that party must
support its motion with credible evidence . . . that would entitle it to a directed verdict if
not controverted at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986).

.

“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue
. . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the
kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Id. at 324 (emphasis added).
In response to the movant’s showing, the nonmoving party’s burden is to produce
“evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.
at 331. “[T]he absence of an adequate response by the nonmovant, even after the
9

moving party has carried its initial burden of production, will not automatically entitle the
movant to entry of summary judgment.” Lawyer v. Hartford Life & Acc. Ins. Co., 100 F.
Supp. 2d 1001, 1008 (W.D. Mo. 2000) (citing Celotex, 477 U.S. at 331). Instead, “the
moving party must show that the evidence satisfies the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id.
(citing Celotex, 477 U.S. at 331).
In other words, where the Court finds that “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party”–where there is no “'genuine
issue for trial'”–summary judgment is appropriate. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
I. Carmack Amendment Claim
The Carmack Amendment “essentially provides that a carrier is liable for the
actual loss or injury it causes to a shipper's property.”

Cont'l Grain Co. v. Frank

Seitzinger Storage, Inc., 837 F.2d 836, 839 (8th Cir. 1988).3 “To make a prima facie

3

See 49 U.S.C. § 14706(a)(1):

A carrier providing transportation or service subject to jurisdiction under subchapter I or III
of chapter 135 shall issue a receipt or bill of lading for property it receives for
transportation under this part. That carrier and any other carrier that delivers the property
and is providing transportation or service subject to jurisdiction under subchapter I or III of
chapter 135 or chapter 105 are liable to the person entitled to recover under the receipt
or bill of lading. The liability imposed under this paragraph is for the actual loss or injury
to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C)
another 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 of lading and, except in the case of a freight forwarder,
applies to property reconsigned or diverted under a tariff under section 13702. Failure to
issue a receipt or bill of lading does not affect the liability of a carrier. A delivering carrier

10

case under the Carmack Amendment, a plaintiff must show 1) delivery to the carrier in
good condition; 2) arrival in damaged condition; and 3) the amount of damages caused
by the loss.” Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 274 (1st Cir.
2000) (citing Mo. Pac. R. Co. v. Elmore & Stahl, 1964, 377 U.S. 134, 138 (1964)); see
also Cont'l Grain Co., 837 F.2d at 839. The Carmack Amendment does not require the
plaintiff to prove negligence. Just Take Action, Inc. v. GST (Americas) Inc., No. 043024 ADM/RLE, 2005 WL 1080597, at *4 (D. Minn. May 6, 2005).
If the shipper establishes its prima facie case, “to avoid liability the carrier must
prove that it was not negligent and that the damage was caused by an act of God, the
public enemy, the act of the shipper himself, public authority, or the inherent vice or
nature of the goods.” Cont'l Grain Co., 837 F.2d at 839.
UP contends that it has presented evidence sufficient to establish all three
elements of its Carmack Amendment claim. The Defendants do not dispute that they
received the grapple truck from UP in good condition. They argue, however, that the
is deemed to be the carrier performing the line-haul transportation nearest the destination
but does not include a carrier providing only a switching service at the destination.
See also § 13501(1)(A) (stating that jurisdiction is proper under subchapter I of chapter 135 “to the extent
that passengers, property, or both, are transported by motor carrier . . . between a place in . . . a State
and a place in another State[.]”); § 13531(a)(1) (stating that jurisdiction is proper under subchapter III of
chapter 135 “over service that a freight forwarder undertakes to provide, or is authorized or required
under this part to provide, to the extent transportation is provided in the United States and is between . . .
a place in a State and a place in another State[.]”). See also § 13102(3) (“The term ‘carrier’ means a
motor carrier, a water carrier, and a freight forwarder.”); § 13102(23):
The term “transportation” includes—
(A) a motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility,
instrumentality, or equipment of any kind related to the movement of passengers or
property, or both, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including arranging for, receipt, delivery,
elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing,
unpacking, and interchange of passengers and property.

11

grapple truck was not damaged when it was “delivered.” If the Court finds that there is
evidence indicating the truck was damaged before it was “delivered,” the Defendants
assert that there is a material issue of fact relating to the amount of damage caused to
the truck. They also argue that the train delay costs and FELA settlement amounts are
not recoverable as special damages because they were not foreseeable at the time they
agreed to transport the truck from Kansas to Louisiana. In other words, at issue is
whether UP has pointed to evidence sufficient to support the second element of its
prima facie Carmack Amendment case and, if it has, the extent of the actual loss or
damage caused to the grapple truck and whether UP may recover as special damages
its train delay costs and the amount it paid to settle the FELA claims.
A. Arrival in Damaged Condition
“The liability of a carrier for damages to goods shipped through interstate
commerce extinguishes upon delivery” of the goods to the proper party. Intech, Inc. v.
Consol. Freightways, Inc., 836 F.2d 672, 674 (1st Cir. 1987) (citing Republic Carloading
& Distributing Co. v. Mo. Pac. R. Co., 302 F.2d 381, 386 (8th Cir.1962)); see also
Republic Carloading, 302 F.2d at 386 (emphasis added) (“Common carrier liability
ceases upon delivery of the shipment to the consignee.”); PolyGram Group Distribution,
Inc. v. Transus, Inc., 990 F. Supp. 1454, 1458 (N.D. Ga. 1997) (“Liability under both [the
Carmack Amendment and the Federal Bills of Lading Act, 49 U.S.C. § 80111(a),]
ceases upon delivery of the goods to the proper person.”). “Generally, the spotting of a
shipment at the consignee's place of business constitutes delivery regardless of
whether the consignee has accepted or rejected the goods.” Intech, 836 F.2d at 674.
The spotting of a shipment at the consignee’s place of business, however, “is not [a]
12

final delivery if anything remains to be done by the carrier in order to effectuate a
delivery.” Id. (internal citations and quotation marks omitted). Ultimately, the contract
between the parties, as interpreted according to the parties’ intentions, controls the
issue of when delivery occurs. See Menlo Logistics, Inc. v. W. Express, Inc., 269 F.
App'x 715, 718 (9th Cir. 2008)4; Intech, 836 F.2d at 674 (first alteration in original)
(quoting Ga., F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 195 (1916)) (“‘[D]elivery’
must mean delivery as required by the contract [of carriage],’ (i.e., the bill of lading and
the tariffs)[.]”).
UP contends that the grapple truck was not “delivered” before the train collided
with it because the grapple truck was not delivered according to the terms of the MCTA
and bid documents.

Therefore, UP argues that the truck arrived in a damaged

condition. UP also argues that even if the MCTA’s delivery terms did not apply to the
shipment, the record reflects that the circumstances present at the time Edling unloaded
the grapple truck required him to do something more than place the keys on the truck’s
dipstick to effect a valid and final delivery. The Defendants assert that UP waived
compliance with the delivery terms set forth in the MCTA and bid documents when its
employees in Kansas represented to Edling that he could deliver the truck after hours
by leaving the keys to the truck on the truck’s dipstick, and they argue that Edling

4

It is the contract that controls when delivery occurs. In general, delivery occurs when one
party surrenders-and the other party accepts-possession, custody, and control of the
goods involved. But, [i]f the intent of the parties . . . requires more . . . then delivery is not
complete by a mere surrender and acceptance.
Id.

13

effected a valid and final delivery prior to the train colliding with the grapple truck, by
following those instructions.5
The record reflects, and the Defendants do not seem to dispute, that Edling did
not comply with the delivery terms of the MCTA or bid documents.6 While the MCTA
states that attempts to modify its terms would be effective only if in writing, “[a] party
may waive a written contract in whole or in part, either directly or inferentially” through
“express declarations manifesting the intent not to claim an advantage.”

D & S Realty,

Inc. v. Markel Ins. Co., 789 N.W.2d 1, 17-18 (Neb. 2010). Generally, “to establish a
waiver of a legal right, there must be a clear, unequivocal, and decisive act of a party
showing such a purpose, or acts amounting to an estoppel on his or her part.” Id.
Based on the evidence to which the Defendants have pointed in the record, a
reasonable finder of fact could conclude that UP waived the need for compliance with
the delivery terms of the MCTA and bid documents. The Defendants have pointed to

5

Landstar and Edling also argue that they were not bound by the terms of the MCTA. As will be
explained below, even if the MCTA’s delivery provisions did not apply to the shipment of the grapple
truck, a material issue of fact exists with respect to whether a valid, final delivery had been effected.
Therefore, whether Landstar and Edling are bound by the MCTA does not affect the disposition of the
present Motions. Nevertheless, the Court notes that it appears Landstar and Edling are bound by the
MCTA. See United States v. Miss. Val. Barge Line Co., 285 F.2d 381, 389 (8th Cir. 1960) (“The
indisputable effect of the Carmack amendment is to hold the initial carrier . . . as having contracted for
through carriage to the point of destination, using the lines of connecting carriers as its agents[.]”);
Tempel Steel Corp. v. Landstar Inway, Inc., No. 98 C 6839, 1999 WL 519412, at *4 (N.D. Ill. July 9,
1999), aff'd, 211 F.3d 1029 (7th Cir. 2000) (“But under the Carmack Amendment, connecting carriers are
deemed to be agents of the originating carrier.”). Cf. Tex. & P. Ry. Co. v. Leatherwood, 250 U.S. 478,
479 (1919) (finding subsequent carriers could use a “through bill of lading” that the original carrier
provided to the shipper as a defense in a suit brought by the shipper against the subsequent carriers,
reasoning that “[t]he bill of lading given by the initial carrier embodies the contract for transportation from
point of origin to destination; and its terms in respect to conditions of liability are binding upon the shipper
and upon all connecting carriers[.]”).
6

The MCTA indicates Edling was required to obtain a signed receipt from UP. (Filing No. 152-15
at § 5.B.) The bill of lading also seems to anticipate that someone from UP would sign it to certify that UP
received the grapple truck “IN GOOD CONDITION EXCEPT AS NOTED.” (Filing No. 152-17.) Neither of
the Defendants have pointed to any evidence indicating Edling received a signed receipt from UP or had
someone from UP sign the bill of lading when he unloaded the grapple truck at the delivery site.

14

evidence indicating that Edling received instructions from UP employees suggesting
that Edling could effect a delivery of the truck by unloading it at the delivery site and
leaving the keys to the truck on its dipstick, consistent with UP policy in place at the
time. A reasonable finder of fact could conclude that, through those instructions, UP
manifested an intent not to require compliance with the MCTA’s and bid documents’
delivery terms or that the instructions amounted to an estoppel on UP’s part. As a
result, Edling’s failure to comply with the delivery terms of the MCTA and bid documents
does not mean judgment should be entered in UP’s favor as a matter of law.7 However,
the evidence to which the Defendants have pointed in support of waiver is not “so
powerful that no reasonable jury would be free to disbelieve it.” See Lawyer, 100 F.
Supp. 2d at 1008 (citing Celotex, 477 U.S. at 331). Therefore, there is a material issue
of fact with respect to whether UP waived the MCTA’s delivery provisions for purposes
of delivering the grapple truck.
Even if UP waived the need for compliance with the delivery terms of the MCTA
and bid documents, a material issue of fact still exists with respect to whether Edling
effected a final and valid delivery of the grapple truck. It is undisputed that the grapple
truck had not sustained any damages at the time Edling unloaded it at the delivery site.
Viewing the evidence in the light most favorable to the Defendants and making all
reasonable inferences in their favor, the record reflects someone from UP may have
been present at that time, helped unload the truck, and accepted the truck from Edling.
Although no one from UP signed the “shipper certification” signature line, the
Defendants have pointed to evidence indicating UP does not always sign bills of lading
7

See 13 Williston on Contracts § 39:21 (4th ed.) (stating that “the existence of . . . facts [sufficient
to constitute a waiver] in a given case is a question of fact to be decided by the fact finder.”).

15

even when an employee or representative is there to accept delivery. Also, the fact that
no one from UP requested overtime on January 12, 2010, does not necessarily mean
that no one from UP was present to accept delivery from Edling that night.
Consequently, a reasonable finder of fact could conclude that the grapple truck did not
arrive at the delivery site in damaged condition, and UP’s Motion will be denied to the
extent UP seeks to establish the second element of its prima facie case.
On the other hand, UP has pointed to evidence in the record indicating that no
one from UP was present at the delivery site at the time Edling arrived. Hanner testified
that he was not present at that time, and it may reasonably be inferred from the fact that
none of his employees requested to work overtime on January 12, 2010, that none of
them were present either. UP has also pointed to evidence indicating that no one from
UP expected the delivery to be made after sunset. It is undisputed that the man who
helped Edling unload the truck did not provide any form of identification, and was not
wearing a reflector vest or hard hat, and UP has pointed to evidence indicating its
employees are supposed to wear a reflector vest and hard hat when working on or near
a railroad track. Viewing these facts in the light most favorable to UP and making all
reasonable inferences in UP’s favor, a reasonable finder could conclude that the man
who helped unload the grapple truck was not associated with UP, and that no one from
UP was present to accept delivery of the grapple truck.8
In other words, when viewing the facts in the light most favorable to UP and
making all reasonable inferences in UP’s favor, the record reflects that Edling left the
8

The Court notes the evidence to which the Defendants have pointed indicates UP had in place a
policy allowing for deliveries to be effected by leaving a piece of equipment’s keys on the equipment’s
dipstick, and that the policy applied only when no one from UP was present to accept the delivery.

16

grapple truck at the delivery site and, while an unknown individual watched, placed the
keys on the truck’s dipstick. Under these circumstances, even if the delivery terms of
the MCTA and bid documents did not apply and Edling was instructed to leave the keys
on the truck’s dipstick, a reasonable finder of fact could conclude something remained
to be done to effectuate a valid and final delivery of the grapple truck to UP. As a result,
the Defendant’s Motions will be denied to the extent they seek to establish UP failed to
point to evidence sufficient to prove the second element of its prima facie case.
B. Damages Caused by the Loss
As noted, § 14706(a)(1) of the Carmack Amendment states that “liability imposed
under this paragraph is for the actual loss or injury to the property.”

49 U.S.C. §

14706(a)(1). Nevertheless, the Supreme Court has interpreted the language of the
Carmack Amendment to be “comprehensive enough to embrace all damages resulting
from any failure to discharge a carrier's duty with respect to any part of the
transportation to the agreed destination.” Se. Express Co. v. Pastime Amusement Co.,
299 U.S. 28, 29 (1936). Therefore, several courts have found, and the parties seem to
agree, that “special damages” are recoverable under the Carmack Amendment under
certain circumstances.9
1. Actual Loss or Injury to the Grapple Truck
“The proper measure of ‘actual loss’ under the Carmack Amendment is the
difference between the market value of the property if it had been delivered according to
9

See, e.g., Contempo, 661 F.2d at 765; Spray-Tek, Inc. v. Robbins Motor Transp., Inc., 426 F.
Supp. 2d 875, 886 (W.D. Wis. 2006); Tayloe v. Kachina Moving & Storage, Inc., 16 F. Supp. 2d 1123,
1129 (D. Ariz. 1998); Main Rd. Bakery, Inc. v. Consol. Freightways, Inc., 799 F. Supp. 26, 28 (D.N.J.
1992); Starmakers Pub. Corp. v. Acme Fast Freight, Inc., 646 F. Supp. 780, 782 (S.D.N.Y. 1986). Cf.
Just Take Action, Inc. v. GST (Americas) Inc., No. 04-3024 ADM/RLE, 2005 WL 1080597, at *4 (D. Minn.
May 6, 2005) (“The Carmack Amendment incorporates common law principles of damages[.]”).

17

the contract, and the market value of the non-conforming goods.” See Camar Corp. v.
Preston Trucking Co., Inc., 18 F. Supp. 2d 112, 115 (D. Mass. 1998), aff'd, 221 F.3d
271 (1st Cir. 2000); Contempo Metal Furniture Co. of Cal. v. E. Tex. Motor Freight
Lines, Inc., 661 F.2d 761, 764 (9th Cir. 1981) (citing Gulf, Colo. & Santa Fe Ry. v. Tex.
Packing Co., 244 U.S. 31, 37 (1917)).
UP has pointed to evidence indicating that the grapple truck was worth
approximately $240,000.00 when the train collided with it.

The Defendants have

pointed to evidence indicating that the damage to the grapple truck equals
approximately $80,000.00. Therefore, assuming UP can establish its prima facie case,
and the Defendants fail to avoid liability by establishing one their available defenses,
see Cont’l Grain Co., 837 F.2d at 839, a material issue of fact remains with respect to
the amount of the “actual loss or injury” caused to the grapple truck.
2. Special/Consequential Damages
UP seeks to recover damages for the amounts it paid to settle the FELA claims
arising out of, and the train delays caused by, the train colliding with the grapple truck.10
The Defendants contend that these damages are not recoverable because they were
not reasonably foreseeable at the time Beemac agreed to transport the truck for UP.
“Special damages are those that the carrier did not have reason to foresee as
ordinary, natural consequences of a breach when the contract was made.” Contempo,

10

In its Complaint, UP also appears to seek recovery for the damage done to the train that
collided with the grapple truck. Landstar and Edling represent that “UP has indicated to Defendants that it
is no longer seeking damages for the property damage to the locomotive. However, the Complaint has
not been amended to reflect such statement.” (Landstar and Edling Br., Filing No. 145 at 13 n.4.) UP
has not asserted in its motion or any of its briefs that it seeks to recover for damage to the train.
Therefore, UP will be deemed to have abandoned the issue. See NECivR 39.2(c).

18

661 F.2d at 765. They are recoverable if the plaintiff can “show that the carrier had
notice of the special circumstances from which such damages would flow.”

Id.;

Schonfeld v. Hilliard, 218 F.3d 164, 172 (2d Cir. 2000) (internal quotation marks
omitted) (“The party breaching the contract is liable for those risks foreseen or which
should have been foreseen at the time the contract was made.”).

In other words,

special damages are recoverable only if they were “reasonably foreseeable to [the
carrier] when it undertook to transport the goods.” Id.11 The foreseeability of special
damages is a question of fact. See Nat'l Hispanic Circus, Inc. v. Rex Trucking, Inc., 414
F.3d 546, 550 (5th Cir. 2005). “Where [a] contract is silent on the subject [of special
damages], . . . common sense” is to be used to “determine what the parties intended by
considering the nature, purpose and particular circumstances of the contract known by
the parties . . . as well as what liability the defendant fairly may be supposed to have
assumed consciously.” Schonfeld, 218 F.3d 164, 172 (2d Cir. 2000).
UP contends that a carrier, agreeing to transport a heavy piece of equipment to a
shipper’s rail yard where trains are normally operated, would foresee at the time it
agreed to transport the equipment the possibility that an improper delivery could lead to
train delays and personal injuries to the shipper’s employees. The Defendants contend
that UP has failed to point to any evidence indicating that they could have foreseen that

11

See also 24 Williston on Contracts § 64:12 (4th ed.):

Consequential damages . . . include those damages that, although not an invariable
result of every breach of this sort, were reasonably foreseeable or contemplated by the
parties at the time the contract was entered into as a probable result of a breach. . . .
Stated another way, when a defendant has reason to know, before entering into the
contract in question, of facts indicating that particular, though unusual damages, will
follow or may follow the defendant’s failure to perform its agreement, the defendant is
liable for such damages.

19

train delays and injuries to employees might be caused by a breach of the agreement to
ship the grapple truck. Beemac argues that the claimed special damages are outside
the realm of foreseeability because the grapple truck had already been “delivered” when
the train collided with it, and nothing indicates that the grapple truck was unloaded onto,
or too close to, the railroad tracks such that one would expect a train to collide with it.
Viewing the facts in the light most favorable to UP and drawing all reasonable
inferences in UP’s favor, a reasonable finder of fact could conclude that, at the time the
Defendants’ agreed to transport UP’s grapple truck, it was foreseeable that a negligent
delivery of the truck to UP’s rail yard could result in a train colliding with the grapple
truck which, in turn, could cause personal injuries and train delays. The Defendants’
motions will be denied to the extent they seek to establish that UP cannot recover costs
associated with its FELA settlements and train delays as special damages.
3. Limitation of Liability
In their Motion for Summary Judgment (Filing No. 44), Landstar and Edling move
for summary judgment only with respect to UP’s claims.12 Landstar contends that its
liability is limited by the terms of the CBTA to “the lesser of $1.00 per pound or $50,000
per truckload.” (Landstar and Edling Br., Filing No. 145 at CM/ECF p. 15.)
The Carmack Amendment permits a carrier to limit its liability:

12

Landstar and Edling have filed cross-claims against Beemac (Filing No. 48), alleging Beemac
is required, pursuant to the CBTA, to indemnify them for any judgment entered against them in favor of
UP in excess of $50,000.00. Beemac has filed a Motion for Summary Judgment (Filing No. 153) seeking
judgment as a matter of law with respect to those cross-claims. The Court limits its discussion in this
Memorandum and Order to the damages UP seeks to recover from the Defendants, and whether any of
the Defendants have limited their liability with respect to UP. The Court will address whether Edling and
Landstar may seek indemnity from Beemac for any judgment entered against them and in favor of UP
that is in excess of $50,000.00 when it addresses the motion Beemac has directed toward Edling and
Landstar’s cross-claims, which it will do in a separate memorandum and order.

20

[A] carrier providing transportation or service . . . may . . . establish rates
for the transportation of property . . . under which the liability of the carrier
for such property is limited to a value established . . . by written agreement
between the carrier and shipper if that value would be reasonable under
the circumstances surrounding the transportation.
49 U.S.C. § 14706(c)(1)(A). To limit its Carmack Amendment liability, the carrier must:
(1) maintain a tariff within the prescribed guidelines of the Interstate
Commerce Commission; (2) obtain the shipper's agreement as to [the
shipper's] choice of liability; (3) give the shipper a reasonable opportunity
to choose between two or more levels of liability; and (4) issue a receipt or
bill of lading prior to moving the shipment.
MidAm. Energy Co. v. Start Enters., Inc., 534 F. Supp. 2d 930, 935 (S.D. Iowa 2008)
(citations omitted); see also Just Take Action, 2005 WL 1080597, at *7; Nelson v.
Bekins Van Lines Co., 779 F. Supp. 122, 125 (D. Minn. 1991) (citations omitted). The
carrier bears the burden of proving that it limited its liability. MidAm. Energy, 534 F.
Supp. 2d at 935; Just Take Action, 2005 WL 1080597, at *7.
The parties do not dispute that UP was not a party to the CBTA, or any other
agreement with Landstar and/or Edling that might limit their liability with respect to UP.
Therefore, Landstar and Edling’s Motion will be denied to the extent they contend they
limited their liability with respect to UP. See MidAm. Energy, 534 F. Supp. 2d at 935-36
(emphasis added) (internal citations omitted) (“[T]o limit liability under the Carmack
Amendment, the [second and] fourth prong[s] require[ ] the carrier to prove that it issued
a receipt or a bill of lading that reflects the agreement between the two parties to limit
liability” and that “[t]he bill of lading . . . must be issued prior to shipment.”).
C. Attorney’s Fees
The Defendants contend that UP is not entitled

to

recover

attorney

fees

because there is no statutory basis for such an award, nor is there a uniform course of
procedure that allows for the recovery of attorney fees.
21

UP has not contested the

Defendants’ motions with respect to its claim for attorney fees.

The Defendants’

motions will be granted to the extent they seek the dismissal of UP’s claim for attorney
fees. See NECivR 39.2(c). See also 49 U.S.C. § 14706 (containing no general attorney
fee provision)13; Tetherow v. Wolfe, 392 N.W.2d 374, 379 (Neb. 1986) (stating that,
under Nebraska law, attorney fees are recoverable in the very case being litigated “only
when provided for by statute or allowed in the uniform course of procedure.”).
D. Notice to Carriers14
Carriers may “impose contractual time limitations for bringing suit, subject only to
the statutory minimum of ‘9 months for filing a claim’ and ‘2 years for bringing a civil
action[.]’”

5K Logistics, Inc. v. Daily Exp., Inc., 659 F.3d 331, 336 (4th Cir. 2011)

(quoting 49 U.S.C. § 14706(e)(1)).15 This allows the carrier to promptly investigate
claims “while still preserving an adequate time for shippers to seek recompense for

13

The Court notes that the Carmack Amendment authorizes attorney fees under certain
circumstances when “household goods” are at issue. See 49 U.S.C. § 14708(d), (e). “Household” goods
do not appear to be at issue in this case.
14

While the issue of whether UP provided the required notice of its Carmack Amendment claim
has been presented as an affirmative defense, the Court notes that “lack of notice” might not actually be
an “affirmative” defense. See Ford Motor Co. v. Transp. Indem. Co., 795 F.2d 538, 547 (6th Cir. 1986)
(stating that “[t]he nine month filing provision of the Uniform Bill of Straight Lading at issue emanates from
[the Carmack Amendment],” and that compliance with that provision is a “prerequisite[ ] to the bringing of
an action under the bill of lading and [is] not subject to waiver or estoppel,” making the 9-month filing
requirement “an element of the cause of action” and not an affirmative defense). Cf. S & H Hardware &
Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 555 (3d Cir. 2005) (stating that the plaintiff had “the
burden of proof on the issue of whether it satisfied the [Carmack Amendment’s] notice requirement.”).
Nevertheless, as will be explained below, the Court finds, to the extent the issue has not been
abandoned, that the uncontroverted evidence in the record reflects UP provided the required notice.
15

A carrier may not provide by rule, contract, or otherwise, a period of less than 9 months
for filing a claim against it under this section and a period of less than 2 years for bringing
a civil action against it under this section. The period for bringing a civil action is
computed from the date the carrier gives a person written notice that the carrier has
disallowed any part of the claim specified in the notice.
49 U.S.C. § 14706(e)(1).

22

damaged cargo.” 5K Logistics, 659 F.3d at 336. To assert a claim “for loss, damage,
injury, or delay to cargo,” the shipper must file a claim “with the receiving or delivering
carrier, or carrier issuing the bill of lading . . ., or carrier on whose line the alleged loss,
damage, injury, or delay occurred, within the specified time limits applicable thereto[.]”
49 C.F.R. 370.3(a). Notice of the claim must be provided in a manner consistent with
49 C.F.R. § 370.3(b), which states:
Minimum filing requirements. A written or electronic communication (when
agreed to by the carrier and shipper or receiver involved) from a claimant,
filed with a proper carrier within the time limits specified in the bill of lading
or contract of carriage or transportation and:
(1) Containing facts sufficient to identify the baggage or shipment (or
shipments) of property,
(2) Asserting liability for alleged loss, damage, injury, or delay, and
(3) Making claim for the payment of a specified or determinable amount
of money, shall be considered as sufficient compliance with the
provisions for filing claims embraced in the bill of lading or other
contract of carriage; Provided, however, That where claims are
electronically handled, procedures are established to ensure
reasonable carrier access to supporting documents.
49 C.F.R. § 370.3(b); see also 49 C.F.R. § 1005.2(b).16 These requirements have been
interpreted “liberally,” and in light of their purpose, which is “to provide the carrier
adequate notice of the claim so that it can conduct an independent investigation of the
damage, not to relieve the carrier of liability.”

Siemens Power Transmission &

Distribution, Inc. v. Norfolk S. Ry. Co., 420 F.3d 1243, 1245 (11th Cir. 2005); see also S
& H Hardware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 554 (3d Cir. 2005).

16

See Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 408 (3d Cir. 2008) (noting “[t]he regulations
found in 49 C.F.R. § 370.3 went into effect in 1997 and are also found in 49 C.F.R. § 1005.2” and that
“the two provisions are identical,” and looking to cases interpreting either regulation to interpret § 370.3).

23

UP contends the letter it sent to Beemac17 on September 24, 2010, contained
information sufficient to satisfy the requirement of providing notice of its Carmack
Amendment claim to the carriers. None of the Defendants disputes that UP satisfied its
obligations under § 370.3 when it sent the September 24, 2010, letter to Beemac.
The letter UP sent to Beemac identifies the shipment of the grapple truck; asserts
liability for the alleged loss, injury, and delay; and indicates the amount of damages it
alleges it sustained as a result of the shipment. The Court finds, to the extent the
Defendants have not abandoned the issue, see NECivR 39.2(c), that UP has satisfied
its burden of providing adequate notice of its claim. UP’s motion will be granted to the
extent UP seeks to establish that it provided adequate notice of its Carmack
Amendment claim to the Defendants.
II. State Law Claims
The Defendants contend that UP’s state law claims must be dismissed because
they are preempted by the Carmack Amendment.

They argue that the Carmack

Amendment preempts UP’s state law claims because they are intricately tied to the
manner in which the grapple truck was transported, stored, handled, and parked. In
other words, the Defendants assert that the Carmack Amendment preempts UP’s state
law claims because through them, UP seeks damages arising out of the same conduct
that gave rise to its Carmack Amendment claim.

UP contends that the Carmack

Amendment does not preempt its state law claims because those claims do not relate to

17

See Overton v. Chicago, R.I. & G. Ry. Co., 160 S.W. 111, 111 (Tex. Civ. App. 1913) (“It has
been frequently held under the Carmack Amendment that in interstate shipments each connecting carrier
is an agent for the others, and of course notice to one is notice to all.”), cited in Pl.’s Br., Filing No. 151 at
CM/ECF p. 22. The Court notes that only Beemac has alleged that UP’s Carmack Amendment claim is
barred for lack of notice.

24

or arise out of the damage to the grapple truck; they relate to or arise out of injuries that
are separate and apart from the damage to the grapple truck.
“In adopting the Carmack Amendment, Congress intended to impose a single
uniform federal rule upon the obligations of carriers operating in interstate commerce.”
Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369, 1372 (8th Cir. 1974)
(citing New York, New Haven & Hartford R.R. Co. v. Nothnagle, 346 U.S. 128 (1953);
Atchison, Topeka & Santa Fe Ry. v. Harold, 241 U.S. 371 (1916); Adams Express Co.
v. Croninger, 226 U.S. 491 (1913)). The Carmack Amendment achieves this goal of
uniformity by “embrac[ing] all damages resulting from any failure to discharge a carrier's
duty with respect to any part of the transportation [of property] to the agreed
destination.” Se. Express, 299 U.S. at 29 (internal quotation marks omitted)18; see also
Blish Milling Co., 241 U.S. at 196 (“[T]he words of the [Carmack Amendment] are
comprehensive enough to embrace responsibility for all losses resulting from any failure
to discharge a carrier's duty as to any part of the agreed transportation, which, as
defined in the Federal act, includes delivery.”). Therefore, “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,” Fulton v.
Chicago, Rock Island & P. R. Co., 481 F.2d 326, 332 (8th Cir. 1973) (internal quotation
marks omitted), preempting19 any state-law causes of action arising from or based on
18

“The underlying principle is that the carrier is entitled to base rates upon value and that its
compensation should bear a reasonable relation to the risk and responsibility assumed.” Id.
19

The Court notes that while the Carmack Amendment contains a “savings clause,” see 49
U.S.C.A. § 13103 (“Except as otherwise provided in this part, the remedies provided under this part are in
addition to remedies existing under another law or common law.”), the “savings clause” preserves rights
and remedies only to the extent they are “not inconsistent with the rules and regulations prescribed by the
provisions of th[e] Act.” Adams, 226 U.S. at 507. As noted previously, the words of the Carmack

25

the common’s carrier’s performance20 of the interstate contract of carriage. See Adams
Express, 226 U.S. at 505-0621; Smith, 296 F.3d at 1246 (citing Adams Express, 226
U.S. at 505-06)22; M.I.S. Eng'g, Div. of Research & Dev. Corp. v. U.S. Exp. Enters., Inc.,

Amendment “are comprehensive enough to embrace responsibility for all losses resulting from any failure
to discharge a carrier’s duty as to any part of the agreed transportation[.]” Blish Milling Co., 241 U.S. at
196; see also 49 U.S.C. §13102(23) (defining “transportation” broadly); see also Smith v. United Parcel
Serv., 296 F.3d 1244, 1249 (11th Cir. 2002) (citing Blish Milling Co., 241 U.S. at 196) (“The Supreme
Court of the United States has described the preemptive effect of the Carmack Amendment very
broadly.”); Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112, 1116 (10th Cir. 1989)
(“[T]he Supreme Court and other authorities have described the Carmack Amendment in broad,
preemptive terms, and have relegated the [saving’s clause] to a category of almost total insignificance.”).
20

While there is authority that may support the proposition that the focus of a court’s Carmack
preemption analysis should be on the injury suffered, see, e.g., Rini v. United Van Lines, 104 F.3d 502,
506 (1st Cir. 1997) (stating, in dicta, “liability arising from separate harms-apart from the loss or damage
of goods-is not preempted. . . . Had [plaintiff] prevailed on her claim for intentional infliction of emotional
distress, it would not have been preempted.”); Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th
Cir. 1997) (relying on the dicta stated in Rini and concluding that the plaintiff’s claim of intentional infliction
of emotional distress was not preempted), the Eighth Circuit has indicated that the focus should be on the
conduct giving rise to the plaintiff’s claims. See Fulton, 481 F.2d at 332.
21

That the legislation supersedes all the regulations and policies of a particular state upon
the same subject results from [the Carmack Amendment’s] general character. It
embraces the subject of the liability of the carrier under a bill of lading which he must
issue, and limits his power to exempt himself by rule, regulation, or contract. Almost
every detail of the subject is covered so completely 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. Only the silence of Congress authorized the exercise of the
police power of the state upon the subject of such contracts. But when Congress acted in
such a way as to manifest a purpose to exercise its conceded authority, the regulating
power of the state ceased to exist.
To hold that the liability therein declared may be increased or diminished by local
regulation or local views of public policy will either make the provision less than supreme,
or indicate that Congress has not shown a purpose to take possession of the subject.
The first would be unthinkable, and the latter would be to revert to the uncertainties and
diversities of rulings which led to the amendment.
Id. (internal citations omitted).
22

To accomplish the goal of uniformity, the Carmack Amendment preempts state law
claims arising from failures in the transportation and delivery of goods. . . .
While we agree that situations may exist in which the Carmack Amendment does not
preempt all state and common law claims . . . , only claims based on conduct separate
and distinct from the delivery, loss of, or damage to goods escape preemption. . . . In

26

438 F. Supp. 2d 1056, 1061 (D. Neb. 2006) (“A Carmack Amendment claim is therefore
stated, and any state-law causes of action that might be asserted by M.I.S. based on
these same facts are completely preempted.”).
The Carmack Amendment preempts all UP’s state law claims because through
those claims, UP is seeking “damages . . . against . . . common carrier[s] for failure to
properly perform, or for negligent performance of, an interstate contract of carriage[.]”
Fulton, 481 F.2d at 332. With respect to its contract claims, UP seeks to recover
damages from the Defendants resulting from their alleged breach of the indemnity and
insurance provisions of the MCTA. (Filing No. 1 at ¶¶ 25-29, 35-38.) With respect to its
negligence claim, UP seeks to recover damages from the Defendants for their negligent
performance of the MCTA. (Id. at ¶ 22.) With respect to its common law indemnity
claim, UP seeks to recover for damages based on the FELA liability it incurred due to
the Defendants’ alleged improper and/or negligent performance of the MCTA. (Id. at ¶¶
30-34.) Because the Court finds that the Carmack Amendment preempts UP’s state
law claims, UP’s Motion will be denied to the extent it seeks to establish its state law
claims as a matter of law, and the Defendant’s Motions will be granted to the extent that
they seek the dismissal of UP’s state law claims.

The Court need not determine

whether UP has pointed to evidence sufficient to establish its state law claims.
CONCLUSION
UP has pointed to evidence sufficient to establish its Carmack Amendment claim.
Material questions of fact remain, however, with respect to: whether a valid delivery of
other words, separate and distinct conduct rather than injury must exist for a claim to fall
outside the preemptive scope of the Carmack Amendment.
Id. at 1248-49 (internal citations omitted).

27

the grapple truck was effected; and assuming a valid delivery was effected, the extent of
the “actual loss or injury” caused to the grapple truck and whether UP may recover any
amount of damages for train delays and its FELA liability resulting from the train
colliding with the grapple truck. The uncontroverted evidence in the record shows that
UP provided the Defendants with sufficient notice of it Carmack Claim. Although UP
may have pointed to evidence sufficient to support its state law claims against the
Defendants, they are preempted by the Carmack Amendment.
Accordingly,
IT IS ORDERED:
1. The Motion for Summary Judgment (Filing No. 149) filed by Plaintiff Union
Pacific Railroad Company, is granted in part, as follows:
Plaintiff Union Pacific provided to the Defendants sufficient notice of its
Carmack Amendment claim;
2. Plaintiff Union Pacific Railroad Company’s motion is otherwise denied;
3. The Motions for Summary Judgment filed by Defendant Beemac Trucking,
LLC (Filing No. 147), and Defendants Landstar Ranger, Inc., and Edward Samuel
Edling (Filing No. 144), are granted in part, as follows:
a)

The following state law claims, asserted by Plaintiff Union Pacific

Railroad Company against the Defendants, are dismissed with prejudice:
i.

“NEGLIGENCE AS TO ALL DEFENDANTS”, Filing No. 1 ¶¶ 20-24;

ii.

“CONTRACTUAL INDEMNITY AS TO DEFENDANT BEEMAC”, id.
at ¶¶ 25-29;

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iii.

“COMMON LAW INDEMNITY AS TO ALL DEFENDANTS”, id. at
¶¶ 30-34;

iv.

“BREACH OF CONTRACT AS TO BEEMAC”, id. at ¶¶ 35-38;

b) Plaintiff Union Pacific Railroad Company’s claim for attorney fees is
dismissed with prejudice; and
4.

The Defendants’ motions are otherwise denied.

Dated this 7th day of March, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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