CINCINNATI INSURANCE COMPANY et al v. UNCOMMON CARRIER, INC.

Filing 26

OPINION. Signed by Judge Jose L. Linares on 3/22/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CINCINNATI INSURANCE COMPANY AND
FORAN SPICE COMPANY, fNC.,,
Plaintiffs,

Civil Action No.: 1 52297 (JLL) (JAD)

v.

OPINION

UNCOMMON CARRIER, INC.
Defendant.

LINARES, District Judge.
This matter comes before the Court by way of a motion for summary judgment filed by
Uncommon Carrier, Inc. (“Defendant”), pursuant to Federal Rule of Civil Procedure 56. (ECF

No. 22). Plaintiffs Cincinnati Insurance Company (“Cincinnati”) and Foran Spice Company, Inc.
(“Foran Spice”) filed an opposition to the instant motion on March 4, 2016, and Defendant filed
a
reply to same on March 14, 2016. (ECF Nos. 24, 25). The Court has considered the parties
’
submissions and decides this matter without oral argument pursuant to Rule 78 of the Federa
l
Rules of Civil Procedure. For the reasons set forth below, the Court denies Defendant’s motion
for summary judgment.

BACKGROUND’

These background facts are taken from Complaint (ECF No. 1, “Compl.”) as well as
the parties’ statements of
material facts, filed pursuant to Local Civil Rule 56.1. (ECF No. 22-3, Defendant’s Rule
56.1 Statement of Facts
(“SMF”); ECF No. 24-1, Plaintiffs’ Responses to Defendant’s Statement of Material Facts
(“Opp. SMF”); ECF No.
24-2, Plaintiffs’ Supplemental Statement of Material Facts (“SSMF”)).
“[Tihe Court will disregard all factual and
legal arguments, opinions and any other portions of the 56.1 Statement which extend beyond
statements of facts.”
Globespanvirata, Inc. v. Tex. Instrument, Inc., Civ. No. 03-2854, 2005 WL 3077915, at
2 (D.N.J. Nov. 15, 2005);
see also L. Civ. R. 56.1 (“Each statement of material facts
shall not contain legal argument or conclusions of
.

1

.

.

This action initiates from a claim by Plaintiffs Foran Spice Company, Inc. (“Foran”) and
Foran’ s insurer, Cincinnati Insurance Company (“Cincinnati”), for damage allegedly caused to
Foran’s property stored in a warehouse (“the Warehouse”) owned and operated by Defendant
Uncommon Carrier (“Deferidant” or “Uncommon Carrier”). (Compi.

¶J 20-24). Foran is a

company engaged in the business of creating customized spice and seasoning blends. (Id.

¶ 7).

Prior to 2012, Foran and Uncommon Carrier had a business relationship that spanned ten years
whereby Foran would store some of its product in Defendant’s Warehouse located in Kearny, New
Jersey, (Opp. SMF ¶J 5; Compl. ¶7).
Plaintiffs now allege that some of Foran’s product was damaged in Defendant’s Warehouse
on October 29, 2012—the date that Hurricane Sandy struck New Jersey.

(Compl.

¶ 11).

Specifically, Plaintiffs allege that Defendant failed to heed warnings about the path of Hurricane
Sandy and therefore “did not take any precautionary measures to protect the product of Foran Spice
from the known danger of flooding and rising water from the approaching Hurricane.” (Id.

¶ 19).

As a result of the alleged product damage, Plaintiffs state that Foran incurred uninsured losses in
excess of $400,000 and that Cincinnati, as its insurer, suffered a loss in excess of $500,000
in
property damage coverage. (Id. ¶J 37-3 8). Accordingly, Plaintiff brings claims against Defendant
for negligence and bailment and seeks damages over $900,000 in damages. (Id. at 4-7).
LEGAL STANDARD
Summary judgment is appropriate when, drawing all reasonable inferences in the non

movant’ s favor, there exists no “genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 250 (1986).

law”).

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To succeed on a motion for summary judgment, the moving party must first show that no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
burden then shifts to the non-moving party to present evidence that a genuine issue of material fact
compels a trial. Id. at 324. The non-moving party must offer specific facts that establish a genuine
issue of material fact and may not simply rely on unsupported assertions, bare allegations, or
speculation. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); see also Groman v. Twp. ofManalapan, 47 F.3d 628, 637 (3d Cir. 1995). The Court must,

however, consider all facts and their reasonable inferences in the light most favorable to the nonmoving party. See Pa. Coal Ass ‘n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). If a reasonable
juror could return a verdict for the non-moving party regarding material disputed factual issues,
summary judgment is not appropriate. See Anderson, 477 U.S. at 242-43 (“At the summary
judgment stage, the trial judge’s function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.”).

ANALYSIS

Defendant argues that Plaintiff’s action is untimely and thus should be dismissed with
prejudice. (ECF No. 22-4, Defendant’s Moving Brief, “Mov. Br.” at 5). Specifically, Defendant
contends that during the entirety of Foran and Defendant’s ten-year business relationship, Foran
received hundreds of Warehouse receipts, each containing identical language directing
the
recipient to “[v]isit www.uncornmoncarner.com for current warehouse terms and conditions.”
(Id.
at 2; ECF No. 22-1, Declaration of Tony Barattucci, General Manager of Uncommon Carrier, Inc.,
“Baratucci Decl.”

¶J 3-5). Defendant has submitted a Warehouse receipt dated September 12,

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2012 (“Exhibit 1”), which includes the above language. (ECF No. 22-2). The referenced “terms
and conditions” provide as follows:
NOTICE OF CLAIM AND FILING SUIT

-

Sec. 13

(b) No action may be maintained by the depositor or others against the warehouseman
for loss or injury to the goods stored unless timely written claim has been given as
provided in paragraph (a) of this section and unless such action is commenced either
within nine months after date of delivery by warehouseman or within nine months after
depositor of record or last holder of a negotiable warehouse receipt is notified that loss
or injury to part or all of the goods has occurred, whichever time is shorter.
(Opp. SMF ¶ 12) (emphasis added).
Based upon the above language, Defendant maintains that Plaintiffs should have filed suit
within nine months after learning of the damage to Foran’s product. Defendant argues that Plainti
ff
was notified of the damaged property several days after the October 29, 2012 storm, but did
not
file the instant action until 2 years and 5 months later—well after the nine-month limitations period
allegedly provided for in each of Defendant’s Warehouse receipts expired. (Mov. Br. at
3).
Accordingly, Defendant states that summary judgment is appropriate in this matter as Plaintiffs’
claims are undoubtedly time-barred. (Id.).
In response, Plaintiffs argue that sufficient, credible evidence exists to establish a genuine
issue of material fact for trial. (ECF No. 24, Plaintiff’s Opposition Brief, “Opp. Br.” at 1-2).
That
is, Plaintiff argues that, contrary to Defendant’s representations, not every Warehouse receipt
contains language referencing the Defendant’s terms and conditions. (Id. at 3-4). In support
of
this position, Plaintiff has submitted two receipts, dated June 26, 2012 (ECF No. 24-3) and
July
27, 2012 (ECF No. 24-6), that are devoid of reference to Defendant’s website.
In its reply brief, Defendant states that the two Warehouse receipts that Plaintiffs submitted
“do not relate to the cargo in the [W]arehouse at the time of the alleged loss and [P]lain
tiff does
not claim otherwise.” (ECF No. 25, “Reply Br.” at 4). However, Defendant has not offered
any
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evidence to support its position that these two receipts do not relate to the damag
ed product at
issue in this matter. Defendant also states, for the first time in its reply brief, that it “has
provided
an affidavit from an individual with knowledge and warehouse receipts [specifically,
2
Exhibit I]
for the cargo in the warehouse at the time ofthe alleged loss, all of which refer to a 9-mon
th time
to sue requirement.” (Id. at 4) (emphasis in original). Yet, Defendant has not offered any
evidence,
via affidavit or otherwise, to support its position that Exhibit I relates to the product at
issue. The
Court notes that the declaration of Mr. Barattucci, Defendant’s General Manager, does
not state or
otherwise suggest that Exhibit 1 is a receipt for the cargo that Plaintiffs allege was damag
ed; rather,
Mr. Barattucci states generally that: “[a] true and correct copy of the front side of one of
the issued
Warehouse Receipts is attached hereto as Exhibit I

.“

(Barattucci Decl.

¶ 4). Moreover, nowhere

in Defendant’s moving brief does it argue that Exhibit 1 is a receipt for the alleged
ly damaged
product. In any event, this new representation is not substantiated by any affidav
it or other
evidence filed with Defendant’s reply brief.
In its reply brief, Defendant also argues that “[Pjlaintiff goes to great lengths to try
to avoid
giving an outright admission that it has notice of Uncommon Carrier’s standa
rd terms and
conditions, which includes” the nine-month limitation.

(Reply Br. at 3).

Yet, although

Defendant’s moving brief notes the lengthy relationship between it and Foran, Defend

ant fell short

of arguing (what it appears to argue for the first time in reply) that, notwithstand
ing the contents
of the Warehouse receipts for the products at issue, the Plaintiffs were aware
of the nine-month
requirement. The Court declines to impose on Plaintiffs the obligation to refute
an argument that
was not clearly offered by Defendant in its moving papers.

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Defendant has only submitted one sample receipt. (See ECF No. 22-2).

5

This Court agrees with Plaintiff that there is a disputed issue of material fact as to whether
the operative Warehouse receipts contained a reference to the terms and conditions. Defendant’s
argument that every receipt contained a reference to its terms and conditions, supported by a single
receipt, is undermined by Plaintiffs’ submission of two receipts, issued in June and July of 2012,
evidencing an absence of that language. This is the most basic form of a genuine issue of material
fact.
As discussed above, summary judgment should only be granted when there is no disputed
issue of fact or when there is only one reasonable conclusion to be reached from the facts before
the Court. Accordingly, the Court denies Defendant’s motion for summary judgment.
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CONCLUSION

For the reasons stated herein, the Court denies Defendant’s motion for summary judgment.
An appropriate Order accompanies this Opinion.

DATED

March, 2016
—

“

—

—

JO,SE U. LIRARES
1$TTED STATES DISTRICT JUDGE

Because this Court has found that there is a disputed issue of material fact with regards to the
contents of the operative
Warehouse receipt, the Court need not reach the question of whether the presence of a website
address on a receipt is
sufficient, in and of itself, to give Plaintiff notice of a nine-month limitations period.

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