McGinn et al v. JB Hunt Transport Inc et al

Filing 48

ORDER signed by Judge J P Stadtmueller on 1/17/12 denying 35 defendants' - NYK Logistics (Americas) Inc., and Tokio Marine & Nichido Fire Insurance Company Ltd. - Motion for Summary Judgment; denying 39 defendant JB Hunt Transport's Motion for Summary Judgment. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS MCGINN and
SHARON MCGINN,
Plaintiffs,

Case No. 10-CV-610-JPS

and
TARGET CORPORATION,
Involuntary Plaintiff,
v.
JB HUNT TRANSPORT, INC., NYK
LOGISTICS (AMERICAS), INC. and
TOKIO MARINE & NICHIDO FIRE
INSURANCE COMPANY, LTD.,

ORDER

Defendants.

This case stems from an accident that occurred when plaintiff, Thomas
McGinn (“McGinn”), attempted to unload merchandise from a trailer
delivered by defendant JB Hunt Transport, Inc. (“JB Hunt”) to the Target
Distribution Center in Oconomowoc, Wisconsin. McGinn alleges that he
sustained severe personal injuries when the merchandise fell and struck him
as he entered the trailer. McGinn and his wife filed a complaint against JB
Hunt, as well as NYK Logistics (Americas), Inc. (“NYK”), who provided
transloading services for the merchandise and NYK’s insurer, Tokio Marine
& Nichido Fire Insurance Company, Ltd. (“Tokio Marine”). All three
defendants have filed motions for summary judgment on the grounds that
McGinn’s common law negligence claims are preempted by 49 U.S.C.

§ 14706, commonly referred to as the Carmack Amendment. With the benefit
of the parties’ written submissions, the court is now prepared to rule on the
motions.
1.

Standard of Review
“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991).
“Material facts” are those under the applicable substantive law that “might
affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over
a “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. In other words, in
determining whether a genuine issue of material fact exists, the court must
construe all reasonable inferences in favor of the non-movant. Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th
Cir. 1983). However, where the non-moving party “fails to make a showing
sufficient to establish the existence of an element essential to that party's
case,” there is no genuine dispute as to any material fact because a complete
failure of proof “necessarily renders all other facts immaterial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of

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the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4). Where a party fails to address another party's assertion of
fact, the court may deem it undisputed for purpose of the motion and may
grant summary judgment if the movant is so entitled. Fed. R. Civ. P. 56(e)(2),
(3); Civ. L. R. 56(b)(4).
2.

Background
Here, the material facts are undisputed and are taken from the parties’

briefs and proposed statements of facts, unless otherwise noted. On May 28,
2007, NYK contracted with Target Corporation (“Target”)1 to perform
transloading services in California for the transport of gas grills to Target’s
distribution center in Oconomowoc, Wisconsin. A bill of lading was issued
identifying Target as the shipper and JB Hunt as the trucking company in
charge of domestic transport. On May 28, 2007, NYK loaded the grills onto
the trailer owned by JB Hunt. On June 2, 2007, JB Hunt delivered the grills
to Target’s distribution center in Wisconsin. Two days later, McGinn, an
employee of Target, was about to begin unloading the trailer when he
noticed several wet cardboard boxes at the back of the trailer. McGinn and

1

The involuntary plaintiff, Target, is only a party to this action based on its
statutory interest pursuant to Wis. Stat. § 102.29 for payment of worker’s
compensation benefits.

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a fellow employee observed a hole in the trailer’s roof and witnessed one of
the boxes spilling out of the trailer onto the loading dock floor. McGinn and
his co-worker immediately contacted their supervisor. The supervisor
arrived and the three discussed whether or not it was feasible to unload the
trailer. At first, they decided to unload the waterlogged product by hand, but
later determined that using a forklift may be safer because it would allow the
workers to stand further away. While McGinn’s co-worker went to retrieve
the forklift, McGinn attempted to move an empty pallet from the loading
dock area to the back of the trailer. As he was moving the pallet, McGinn
turned his back to the open trailer. While in this position, some of the boxes
fell from the trailer striking him on the back of the neck. According to
McGinn, the boxes fell on him because of the manner in which the
defendants loaded and operated the trailer and because of the lack of proper
maintenance of the trailer.
3.

Discussion
At its core, the issue before the court concerns the appropriate scope

of Carmack Amendment preemption. Specifically, the court must resolve
whether the Carmack Amendment preempts the McGinn’s claims for
personal injury. The Amendment deals with the liability of carriers for lost
or damaged goods and provides in pertinent part:
A common carrier...subject to the jurisdiction of the Interstate
Commerce Commission...shall issue a receipt or a bill of lading
for property it receives for transportation.... That carrier...and
any other common carrier that delivers the property and is
providing transportation or service subject to the jurisdiction
of the Commission...are liable to the person entitled to recover
under the receipt or bill of lading. The liability imposed under
this paragraph is for actual loss or injury to the property
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caused by (A) the receiving carrier, (B) the delivering carrier,
or (C) another carrier over whose lines or route the property is
transported into the United States....
49 U.S.C. § 14706(a)(1). It is well established that the Carmack Amendment
preempts state law with respect to carrier liability for the loss or damage of
goods in interstate commerce. Charleston & W. Carolina Ry. Co. v. Varnville
Furniture Co., 237 U.S. 597, 603 (1915); Southeastern Express Co. v. Pastime
Amusement Co., 299 U.S. 28 (1936). However, in the Seventh Circuit, the
Carmack Amendment does not preempt claims by shippers2 that allege
liability on grounds that are separate and distinct from the loss of, or damage
to, goods that were shipped in interstate commerce. Gordon v. United Van
Lines, 130 F.3d 282, 289 (7th Cir. 1997).
In Gordon, the plaintiff sued her carrier after it failed to deliver, and
ultimately destroyed, several heirlooms during her relocation. 130 F.3d at
284. The plaintiff asserted several grounds of relief for the destruction of her
property, including fraud, breach of contract, and willful and wanton
conduct. Id. The Seventh Circuit held that the Carmack Amendment
preempted all of those claims because those claims were essentially based on
“the contract of carriage, in which the harm arises out of the loss of or
damage to goods.” Id. at 284, 289 (citing Hughes v. United Van Lines, Inc., 829
F.2d 1407 (7th Cir.1987). However, the Seventh Circuit held that the plaintiff's

2

The parties dispute whether McGinn was a shipper within the meaning of
the Amendment. The defendants claim that as an agent of Target, the indisputable
shipper in this case, McGinn’s claims may be subject to Carmack Amendment
preemption. McGinn disagrees. However, because the court ultimately concludes
that McGinn’s claims are not preempted by the Carmack Amendment on other
grounds, it is unnecessary to address this issue in depth. Suffice it to say that the
court assumes McGinn is a shipper for purposes of this Order.

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claim for intentional infliction of emotional distress survived Carmack
Amendment preemption. Id. at 289; But see Hughes, 829 F.2d at 1410, 1412 n.
5 (holding that the Carmack Amendment preempted state common law
remedies, including negligent infliction of emotional distress). The Seventh
Circuit reasoned that “a number of situations” may exist “in which a carrier
might remain liable to a shipper for certain kinds of separate and
independently actionable harms that are distinct from the loss of, or the
damage to the goods.” Id. at 289.
This is one such situation. Here, based on the Seventh Circuit’s
holding in Gordon, the court finds that the plaintiffs’ claims are not
preempted by the Carmack Amendment because they allege a separate,
independently actionable harm from the loss of or damage to the goods. In
the case at hand, the harm is infliction of bodily injury, not property loss or
damage. Supporting this finding, is the fact that the plaintiffs’ potential
measure of damages is not at all correlative to the loss or damage to the
goods. Indeed, it is not even clear that the goods involved in the accident
were, in fact, damaged. The bottom line is that McGinn is not seeking a
remedy for damaged or lost goods. He is seeking a remedy for bodily injuries
sustained due to NYK’s negligent loading of the goods and JB Hunt’s failure
to maintain and inspect the trailer on which the goods were transported.
To be clear, the plaintiffs’ claims certainly have some association with
the transfer of goods. Indeed, McGinn would not have been injured but for
his unloading of goods that were shipped in interstate commerce. Yet, the
relevant inquiry is not whether there is some association between the claim
and the transport but, rather, whether the state law claim is really a claim for

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damages to the shipper’s goods in disguise. See Gordon, 130 F.3d at 289. For
this inquiry, it is necessary to ask what damages are being sought.
While some courts have chosen a broader scope for Carmack
Amendment preemption, looking to whether the conduct underlying the
claim is separate and distinct from the delivery, loss of, or damage to goods,
instead of asking whether the resulting harm is separate and distinct, this
court finds such an interpretation of the Carmack Amendment’s scope of
preemption to be flawed. See Smith v. United Parcel Service, 296 F.3d 1244
(11th Cir. 2002) (all state law claims are preempted by Carmack unless they
are based on “separate and distinct conduct rather than injury.”). For one
thing, the plain language of the statute limits the carrier's liability to the
“actual loss or injury to the property” damaged en route. 49 U.S.C.
§ 14706(a)(1). Moreover, the purpose of the Carmack Amendment was to
“establish uniform federal guidelines designed in part to remove the
uncertainty surrounding a carrier's liability when damage occurs to a
shipper's interstate shipment.“ Hughes, 829 F.2d at 1415. Thus, to expand
Carmack Amendment preemption to cases in which a plaintiff seeks to hold
a carrier liable, not for damage or loss of the goods, but rather for personal
injuries allegedly caused by the carrier’s negligence in the transport of those
goods, would seem to be at odds with both the plain language of the statute
and the purpose behind its enactment. The Seventh Circuit’s decision in
Gordon recognizes as much. Therefore, this court declines to expand the
scope of Carmack Amendment preemption to the circumstances of this case.
Accordingly, the court will deny the defendants’ motions for summary
judgment.

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Accordingly,
IT IS ORDERED that defendants’ – NYK Logistics (Americas) Inc.,
and Tokio Marine & Nichido Fire Insurance Company Ltd. – motion for
summary judgment (Docket #35) be and the same is hereby DENIED; and
IT IS ORDERED that defendant JB Hunt Transport Inc.’s motion for
summary judgment (Docket #39) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 17th day of January, 2012.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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