Kimsey v. SML Relocation Services et al
Filing
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ORDER GRANTING DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT. Defendants Motion for Partial Summary Judgment ECF No. 20 is GRANTED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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RONALD KIMSEY,
NO: 2:15-CV-0209-TOR
Plaintiff,
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ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT
v.
SML RELOCATION SERVICES; and
SIMPLE MOVERS, LLC.,
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Defendants.
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BEFORE THE COURT is Defendants’ Motion for Partial Summary
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Judgment Re Limitation of Damages Under the Carmack Amendment (ECF No.
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20). This matter was heard with oral argument on September 9, 2016, in Spokane,
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Washington. Derek T. Taylor appeared on behalf of Plaintiff Ronald Kimsey.
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Justin R. Boland appeared on behalf of Defendants SML Relocation Services and
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Simple Movers, LLC. The Court—having reviewed the briefing, the record, and
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files therein and heard from counsel—is fully informed.
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ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT ~ 1
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BACKGROUND
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This action stems from an agreement between Plaintiff Ronald Kimsey
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(“Plaintiff”) and Defendants SML Relocation Services and Simple Movers, LLC
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(collectively, “Defendants”) to transport Plaintiff’s personal effects from Las
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Vegas, Nevada to Spokane, Washington. On May 15, 2015, Plaintiff filed a
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Complaint against Defendants in the Washington State Superior Court for Spokane
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County styled, Ronald Kimsey v. SML Relocation Services, et al., case no. 15-2-
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01863-3. ECF No. 1-1. Defendant Simple Movers, LLC subsequently removed the
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action to this Court pursuant to this Court’s jurisdiction under 28 U.S.C. § 1441, 28
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U.S.C. § 1446, and 49 U.S.C. § 14706, ECF No. 1. On January 22, 2016, Plaintiff
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filed his Second Amended Complaint for Damages asserting negligence and
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breach of contract, and adding a third cause of action pursuant to the Carmack
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Amendment, 49 U.S.C. § 14706. ECF No. 18.
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In the instant motion, Defendants move for partial summary judgment on all
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of Plaintiff’s claims. ECF No. 20 at 7. Defendants argue that Plaintiff’s (1) claims
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are preempted by the Carmack Amendment; and (2) damages are limited pursuant
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to the Full Service Move Valuation Options form signed by Plaintiff. ECF No. 20.
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Plaintiff concedes that breach of contract and negligence claims are preempted by
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the Carmack Amendment. ECF No. 23 at 4. However, Plaintiff avers that his
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damages should not be limited to a maximum of $0.60 per pound per article
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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because Defendants failed to issue a bill of lading prior to the move and the
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damages limitation is not reasonable under the circumstances. Id. at 4-8. 1
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FACTS
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The following are the undisputed material facts unless otherwise noted.
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Plaintiff hired Defendants to move his personal effects from Las Vegas, Nevada to
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Spokane, Washington in 2013. ECF No. 20 at 2; see ECF No. 23 at 2 (undisputed).
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On June 24, 2013, Plaintiff signed and returned a Quote to Defendants requesting
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relocation services to transport Plaintiff’s personal belongings from July 13, 2013
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through July 16, 2013. ECF No. 20 at 2; ECF No. 21 at 6-7; see also ECF No. 22
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at 5 (undisputed). That same day, Plaintiff initialed, signed, and returned a Full
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Service Move Valuation Options form to Defendants. ECF No. 20 at 6-7; ECF No.
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21 at 9-10; see also ECF No. 22 at 5-6.
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The Full Service Move Valuation Options form provides “two types of
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valuation options” for the full service move: an Increased Carrier Valuation and a
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Released Value Valuation. ECF No. 21 at 9-10. Plaintiff selected the Released
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Plaintiff argues that even if his damages are contractually limited, in the
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alternative, he is entitled to reasonable attorney fees under 49 U.S.C. § 14708(d) as
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the prevailing party. ECF No. 23 at 8-10. This request is neither ripe nor properly
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before this Court; accordingly, the Court will not consider it at this time.
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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Value Valuation method of valuation computation, rather than the Increased
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Carrier Valuation. ECF No. 20 at 2-3; ECF No. 21 at 9-10; see also ECF No. 23 at
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2 and ECF No. 22 at 6 (undisputed). The “Released Value Valuation provides
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repair or replacement for up to a maximum of $.60 per pound per article.” ECF No.
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21 at 9-10.
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On July 13, 2013, Plaintiff’s personal belongings were loaded in a moving
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truck in Las Vegas on July 13, 2013, and unloaded in Spokane on July 16, 2013.
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ECF No. 20 at 3; see ECF No. 23 at 2-3 (undisputed). On July 13, 2013 and July
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16, 2013, Plaintiff received and signed a Household Goods Proposal/Contract for
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Moving Services. ECF No. 20 at 3-4; ECF No. 21 at 12; see ECF No. 22 at 5
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(undisputed).2 The Household Goods Proposal/Contract for Moving Services
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Plaintiff admits in his opposition to Defendants’ summary judgment motion that
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he signed the Household Goods Proposal/Contract for Moving Services, but
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denies—for the first time—that he received a copy prior to the truck leaving on
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July 13, 2013. ECF No. 23 at 2-3. Yet, on March 30, 2016, Plaintiff verified a
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Request for Admission admitting that he signed and received the same on July 13,
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2013 and July 16, 2013. ECF No. 22 at 5. Plaintiff has not moved the Court to
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withdraw or amend his admission. See Fed. R. Civ. P. 36(b). Accordingly, for
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purposes of the instant motion, the Court deems the issue admitted. See O'Campo
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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references the $0.60 per pound per article carrier liability limitation. ECF No. 21 at
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12.
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After Defendants transported Plaintiff’s personal belongings to Spokane,
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Plaintiff noticed that certain items were damaged and others missing. ECF No. 20
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at 4; see ECF No. 23 at 3.
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DISCUSSION
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A. Standard of Review
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Summary judgment may be granted to a moving party who demonstrates
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“that there is no genuine dispute as to any material fact and the movant is entitled
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to judgment as a matter of law.” Fed. R. Civ. P. 36(a). The moving party bears the
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initial burden of demonstrating the absence of any genuine issues of material fact.
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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
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non-moving party to identify specific facts showing there is a genuine issue of
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material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The
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mere existence of a scintilla of evidence in support of the plaintiff's position will be
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v. Hardisty, 262 F.2d 621, 624 (9th Cir. 1958) (finding that a district court may
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grant summary judgment based on deemed admissions); 999 v. C.I.T. Corp., 776
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F.2d 866, 869–70 (9th Cir. 1985) (“Evidence inconsistent with a Rule 36
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admission is properly excluded.”).
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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insufficient; there must be evidence on which the jury could reasonably find for the
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plaintiff.” Id. at 252. For purposes of summary judgment, “[i]f a party fails to
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properly support an assertion of fact or fails to properly address another party's
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assertion of fact as required by Rule 56(c), the court may . . . consider the fact
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undisputed.” Fed. R. Civ. P. 56(e)(2); see also L.R. 56.1(d) (“[T]he Court may
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assume that the facts as claimed by the moving party are admitted to exist without
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controversy except as and to the extent that such facts are controverted by the
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record set forth [in the non-moving party's opposing statement of facts]”).
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For purposes of summary judgment, a fact is “material” if it might affect the
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outcome of the suit under the governing law. Id. at 248. A dispute concerning any
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such fact is “genuine” only where the evidence is such that the trier-of-fact could
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find in favor of the non-moving party. Id. “[A] party opposing a properly supported
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motion for summary judgment may not rest upon the mere allegations or denials of
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his pleading, but must set forth specific facts showing that there is a genuine issue
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for trial.” Id. (internal quotation marks and alterations omitted); see also First Nat’l
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Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968) (holding that a party
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is only entitled to proceed to trial if it presents sufficient, probative evidence
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supporting the claimed factual dispute, rather than resting on mere allegations).
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Moreover, “[c]onclusory, speculative testimony in affidavits and moving papers is
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insufficient to raise genuine issues of fact and defeat summary judgment.”
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Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also
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Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere
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allegation and speculation do not create a factual dispute for purposes of summary
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judgment.”).
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In ruling upon a summary judgment motion, a court must construe the facts,
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as well as all rational inferences therefrom, in the light most favorable to the non-
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moving party, Scott v. Harris, 550 U.S. 372, 378 (2007), and only evidence which
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would be admissible at trial may be considered, Orr v. Bank of Am., NT & SA, 285
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F.3d 764, 773 (9th Cir. 2002). See also Tolan v. Cotton, 134 S. Ct. 1861, 1863
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(2014) (“[I]n ruling on a motion for summary judgment, the evidence of the
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nonmovant is to be believed, and all justifiable inferences are to be drawn in his
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favor.” (internal quotation marks and brackets omitted)).
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B. Preemption Under the Carmack Amendment
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Defendants move for partial summary judgment on all of Plaintiff’s claims,
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and assert that all are preempted by the Carmack Amendment, 49 U.S.C. § 14706.
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ECF No. 20 at 7. Plaintiff concedes that the Carmack Amendment preempts breach
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of contract and negligence claims. ECF No. 23 at 3-4. The Court agrees.
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Briefly, the Carmack Amendment to the Interstate Commerce Act governs
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the liability of carriers for damage to goods transported in interstate commerce and
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defines the right to limit or disclaim liability imposed under the Amendment. 49
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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U.S.C. § 14706. It is well settled that the Carmack Amendment is the exclusive
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cause of action for interstate shipping contract claims alleging loss or damage to
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property, providing “a uniform national liability policy for interstate carriers.”
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Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 613 (9th Cir. 1992)
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(holding that preemption under the Carmack Amendment requires dismissal of a
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negligence claim); see also Hall v. North Am. Van Lines, 476 F.3d 683, 688-89
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(9th Cir. 2007) (affirming dismissal of a breach of contract claim due to
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preemption under the Carmack Amendment).
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Accordingly, the Court finds that the Carmack Amendment preempts
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Plaintiff’s breach of contract and negligence causes of action; Defendants are
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entitled to summary judgment on both claims.
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C. Limitation of Damages Under the Carmack Amendment.
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The Court turns its attention to whether Plaintiff’s damages are limited to a
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maximum of $0.60 per pound per article under the Carmack Amendment. Plaintiff
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avers that his damages should not be limited because Defendants did not issue a
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bill of lading prior to the move on July 13, 2013, and because the damage
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limitation is not reasonable under the circumstances. ECF No. 23 at 4-8.
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At the outset, a carrier is subject to the requirements of the Carmack
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Amendment and required “to issue a receipt or bill of lading for property it
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receives for transportation.” 49 U.S.C. § 14706(a)(1); see also OneBeacon Ins. Co.
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v. Haas Industries, Inc., 634 F.3d 1092, 1097 (9th Cir. 2011). In turn, a “bill of
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lading” is characterized as a contract between the carrier and the shipper. 634 F.3d
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at 1098. A carrier is “liable to the person entitled to recover under the receipt or
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bill of lading” for any damage or loss to the property caused by the carrier during
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shipment calculated by the actual loss or injury to the property. § 14706(a)(1).
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However, a carrier and shipper may agree to a "reasonable" value of the
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goods, for which the carrier will be liable in the event of damage or loss, in lieu of
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the actual value of the goods. § 14706(c)(1)(A). A carrier may “establish rates for
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the transportation of property . . . under which the liability of the carrier for such
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property is limited to a value established by . . . written agreement between the
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carrier and shipper if that value would be reasonable under the circumstances
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surrounding the transportation.” § 14706(c)(1)(A). A carrier is liable for the full
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value of household goods, unless the shipper waives, in writing, the carrier’s
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maximum liability. See § 14706(f)(3).
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In Hughes, the Ninth Circuit set out a four-step inquiry for determining
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whether a carrier has effectively limited its liability under the Carmack
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Amendment. 970 F.2d at 611-12. A carrier may limit its liability, but it must:
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(1) at the shipper's request, provide the shipper with a written or electronic copy of
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the rate, classification, rules, and practices upon which any rate applicable to a
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shipment, or agreed to between the shipper and the carrier, is based; (2) give the
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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shipper a reasonable opportunity to choose between two or more levels of liability;
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(3) obtain the shipper's agreement as to his choice of carrier liability limit; and (4)
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issue a bill of lading prior to moving the shipment that reflects any such agreement.
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OneBeacon Ins., 634 F.3d at 1099-1100 (citing Hughes, 970 F.2d at 611-12)
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(amending the first prong of the Hughes four-part test to reflect a statutory
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change).
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Plaintiff challenges the reasonableness of Defendants’ rate and the fourth
prong of the Hughes test regarding issuance of the bill of lading prior to shipment.
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1. Rate Reasonableness
Plaintiff argues that due to the extraordinary nature and uniqueness of the
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damaged or missing items and Defendants’ actions, it is unreasonable to apply the
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$0.60 per pound valuation limitation. ECF No. 23 at 7-8. Plaintiff also contends
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that customers should not have to pay money to receive the actual value of their
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items. Id.
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The Full Service Move Valuation Options form provided Plaintiff with two
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options for the valuation of his property in the event the property became damaged
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or lost. ECF No. 21 at 9-10. The first option, the Increased Carrier Valuation,
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would have required Defendants to “offer one of the following for each item, up to
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the declared value: (1) repair the item to the extent necessary to restore to the
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condition when received; (2) replace with an item of like kind and quality; (3)
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make a cash settlement for the cost of repair or full (replacement) cost.” Id. This
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option allowed for the valuation of high value items, such as antiques and rare
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collectible items, “based on the maximum liability restriction of $100 per pound
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per article unless the Item(s) is declared by the customer on the High-Value Article
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Inventory List and accepted by Defendants prior to the agreed upon moving date.”
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Id. In other words, under the Increased Carrier Valuation, high value items would
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have been covered for damage based on their accepted value. See id.
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Instead, Plaintiff selected the Released Value Valuation option (at no cost)
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agreeing to accept “repair or replacement for up to a maximum of $.60 per pound
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per article.” Id. Plaintiff offered no legal authority in support of his contention
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that $0.60 per pound per article is unreasonable, only conclusive, speculative
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testimony, which is insufficient to raise genuine issues of fact and defeat summary
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judgment. Soremekun, 509 F.3d at 984. That Plaintiff could not afford the
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Increased Carrier Valuation option is irrelevant. ECF No. 24 at 1-2.
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Courts have limited carrier liability premised on rates ranging from $0.10 to
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$0.60 per pound. See e.g., Hath v. Alleghany Color Corp., 369 F. Supp. 2d 1116,
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1119 (D. Ariz. 2005) (limiting carrier liability to $0.10 per pound); OneBeacon
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Ins., 634 F.3d at 1100 (noting liability is limited to $50 or $0.50 per pound in the
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absence of a higher declared value); Hughes, 970 F.2d at 613 (affirming $0.60 per
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pound limited carrier liability).
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The Court finds that Plaintiff had reasonable notice and an opportunity to
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make an informed choice in selecting the liability limitation when he selected the
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Released Value Valuation on June 24, 2013. ECF No. 21 at 9-10. While the Court
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is certainly sympathetic to the loss of Plaintiff’s collectibles and his father’s
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remains, the Court finds that Plaintiff has made no offer of proof tending to show
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the unreasonableness of the agreed upon rate, nor a lack of choice between the $.60
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per pound liability limit and other options. Plaintiff’s testimony that he “did not
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understand it at the time” is belied by Plaintiff’s testimony that he selected the
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Released Rate Valuation because “[w]hen he signed the agreements [he] could not
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afford the Increased Carrier Valuation.” ECF No. 24 at 2-3.
It is undisputed that Plaintiff was aware of the availability of the higher
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release value. Id. The Full Service Move Valuation Options form delineates the
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monetary discount provided to Plaintiff in return for selecting the no cost lower
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release value. ECF No. 21 at 9-10. Plaintiff received the liability limitation
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options, and then elected, in writing, to waive the additional liability coverage. Id.
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Accordingly, the Court finds that the agreed upon $0.60 per pound rate is
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reasonable.
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2. Issuance of the Bill of Lading
Plaintiff contends that Defendants did not provide a copy of the bill of lading
to Plaintiff before or after the shipment of goods, which precludes the Court from
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finding that the Released Value Valuation damage limitation applies. ECF No. 23
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at 6-7.
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At the outset, the Court finds that Defendants have satisfied their burden to
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meet all four prongs of the Hughes test. Hughes, 970 F.2d at 611-12. First, it is not
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contested that Defendants made its tariff available upon request. See 49 U.S.C. §
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14706(c)(1)(B). Second, and as articulated above, Plaintiff had a “reasonable
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opportunity to choose between two or more levels of liability.” Hughes, at 611-12.
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Third, it is undisputed that Plaintiff simply chose not to purchase additional
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liability coverage, which effectively limited Defendants’ liability to $0.60 per
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pound per article. Finally, a bill of lading was issued prior to moving Plaintiff’s
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personal effects as evidenced by Plaintiff’s signature on the Household Goods
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Proposal/Contract for Moving Services on July 13, 2013, and his discovery
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admission in this action. See ECF No. 21 at 12; ECF No. 22 at 5. The Court finds
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Plaintiff’s assertion that he did not receive a copy of the bill of lading unpersuasive
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given that he admitted signing the bill of lading on the day of the move and again
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on completion of the move. See Gendler v. All Pro Van Lines, Inc., 464 F. Supp.2d
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925, 926 (D. Ariz. 2005) (noting that a claim that a party did not receive a copy of
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a bill of lading is contradicted by the bill of lading bearing the party’s signature).
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Plaintiff’s signature on the bill of lading is dispositive and forecloses further debate
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about whether Defendants issued a bill of lading prior to the move.
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Nevertheless, construing the evidence in the light most favorable to Plaintiff,
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failure to provide a copy of the bill of lading does not negate Defendants’ issuance
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of the bill of lading prior to the move. In other words, the fourth prong of the
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Hughes test does not require the shipper to receive a copy of a bill of lading; rather,
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issuance by the carrier prior to the move is all that is required, and the
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uncontroverted evidence—Plaintiff’s signature on July 13, 2013, and Plaintiff’s
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sworn discovery admission—is sufficient to establish that Defendants issued the
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bill of lading prior to moving the shipment. As a result, all Hughes factors are met
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and Defendants’ liability is validly limited.
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Because the Carmack Amendment preempts state law claims, summary
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judgment is granted to Defendant on Plaintiff’s first claim for negligence and his
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second claim for breach of contract. ECF No. 18. As to Plaintiff’s third claim
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under the Carmack Amendment, Plaintiff waived any increased valuation and
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effectively limited Defendants’ liability under the Carmack Amendment to “repair
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or replacement for up to a maximum of $.60 per pound per article.”
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ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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ACCORDINGLY, IT IS ORDERED:
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1. Defendants’ Motion for Partial Summary Judgment (ECF No. 20) is
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GRANTED.
2. The District Court Executive is hereby directed to file this Order and
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provide copies to counsel.
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DATED September 9, 2016.
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THOMAS O. RICE
Chief United States District Judge
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ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
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