ORDER
LEE R. WEST, District Judge.
This matter comes before the Court on the Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment filed by defendants Allied Van Lines, Inc. (Allied), Emrick’s Van and Storage Company (Em-riek) and Robert Flinn Moving and Storage Company (Flinn) pursuant to Rule 56, F.R.Civ.P. Plaintiff Mary L. Clair a/k/a Mary L. Latos, D.O., has responded to the motion and the defendants have filed a reply. Based upon the record, including the following undisputed facts,
the Court makes its determination.
1. Allied is engaged in the nationwide business of transporting household goods. Contracting for Allied’s services is accomplished through local agents, such as Emriek, which is located in Oklahoma City, Oklahoma, and Flinn, which is located in Naples, Florida. The actual transport is accomplished by licensed drivers, who are independent contractors for the various Allied agents.
2. Clair contracted with Flinn to move her household goods from Fort Myers Beach, Florida, to a house, then owned by Clair’s son, Robert Clair, in Yukon, Oklahoma.
3. Through Flinn, Clair, in turn, entered into a contract with Allied by Clair’s execution on March 27, 1996, of an “Order for Service” and a “Household Goods Bill of Lading and Freight Bill” (Bill of Lading).
4. The Order for Service read in part that Clair’s household goods would be loaded on April 5, 1996, in Fort Myers Beach, Florida,
and delivered to Yukon, Oklahoma, on or about April 13,1996.
5. Clair indicated on the Order for Service that the shipment had a value of $45,-000.00 and she marked that part of the document that read “Optional: Extra Care Protection Pledge.”
6. Clair selected that option because she wanted protection consisting of repair or replacement of her household goods in the amount of $45,000.00, which she thought would be over and above any existing and applicable homeowner’s insurance coverage.
7. Clair discussed valuations with Flinn representative Peter Flinn and although knowing she could select a higher level of coverage, agreed upon the $45,000.00 figure because she thought it was reasonable at the time.
8. Clair reviewed the Order for Service before she signed it and she was aware of the provisions of the Extra Care Protection Pledge.
9. Peter Flinn surveyed Clair’s household goods so he could quote Clair the cost of the move. A price was set forth in the Guaranteed Price Pledge signed by Peter Flinn on March 27,1996.
10. By her signature on the Order for Service, Clair acknowledged that she had received the following documents: “Your Rights and Responsibilities When You Move, Including Allied’s Complaint & Inquiry Handling Procedure,” “Dispute Settlement Program” and Allied’s Annual Performance Report.
11. On April 8, 1996, a driver loaded a majority of Clair’s household goods onto a trailer. He listed the goods on a form entitled “Household Goods Descriptive Inventory” and Clair signed it. When the goods were delivered to Yukon, Oklahoma, on April 13, 1996, Robert Clair likewise signed the form.
12. The remainder of Clair’s household goods, which had an approximate weight of 4540 pounds, was eventually loaded onto a second trailer on April 9, 1996, and transported from Florida to Oklahoma.
13. This second trailer arrived on April 15 or 16, 1996, at Emrick. Because delivery to the designated location could not be accomplished, the trailer was taken to defendant Central States Thermo King of Oklahoma (Central States), where it was subject to a required Department of Transportation inspection.
14. On April 18, 1996, a Central States employee noticed a crack in the middle deck box of the trailer and he attempted to weld it. During the welding process, the contents of the trailer ignited.
15. After the fire, Clair contacted Harvey Washington, an Allied claims adjuster, regarding her loss. Nine forms, each entitled “Presentation of Loss and Damage Claim Form,” were forwarded to Clair. On. July 24, 1996, Clair returned to Allied one page of the nine claim forms, on which Clair had written: “Shipment Never Delivered. Inventory in Progress.” No other information was sent by Clair to Allied during 1996 or 1997.
16. Clair gave counsel for Allied the completed forms at her deposition on November 23,1998.
17. Clair testified at .the deposition that she did not return the completed claim forms to Allied because she first wanted to resolve any claims she had against her homeowner’s insurance carrier, defendant Travelers Insurance Company (Travelers).
Clair brought suit against Allied, Flinn, Emrick, Central States and Travelers and in her amended complaint, she alleged a claim for breach of contract against Flinn, Allied and Emrick and a claim of negligence against Emrick.
These three defendants have first argued that Clair’s claims are preempted by federal law. Clair does not argue to the contrary. The Court therefore finds Clair’s claims for breach of contract and negligence are preempted by the Carmack Amendment to the Interstate Commerce Act,
e.g., Underwriters at Lloyds of London v. North American Van Lines, 890
F.2d 1112 (10th Cir.1989), and holds that Clair’s rights and obligations and these defendants’ obligations and liabilities will be determined in accordance
with the Carmack Amendment and case law interpreting the same.
Allied, Flinn and Emrick have further argued that Clair’s claims are barred because she failed to comply with certain notice provisions.
Title 49, section 14706(e)(1) of the United States Code provides that
“[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 two 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).
The backside of each and every page of the Bills of Lading, which Clair signed, contained the following language:
“SECTION 6. As a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face hereof, or in ease of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice.
Free access — add to your briefcase to read the full text and ask questions with AI
ORDER
LEE R. WEST, District Judge.
This matter comes before the Court on the Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment filed by defendants Allied Van Lines, Inc. (Allied), Emrick’s Van and Storage Company (Em-riek) and Robert Flinn Moving and Storage Company (Flinn) pursuant to Rule 56, F.R.Civ.P. Plaintiff Mary L. Clair a/k/a Mary L. Latos, D.O., has responded to the motion and the defendants have filed a reply. Based upon the record, including the following undisputed facts,
the Court makes its determination.
1. Allied is engaged in the nationwide business of transporting household goods. Contracting for Allied’s services is accomplished through local agents, such as Emriek, which is located in Oklahoma City, Oklahoma, and Flinn, which is located in Naples, Florida. The actual transport is accomplished by licensed drivers, who are independent contractors for the various Allied agents.
2. Clair contracted with Flinn to move her household goods from Fort Myers Beach, Florida, to a house, then owned by Clair’s son, Robert Clair, in Yukon, Oklahoma.
3. Through Flinn, Clair, in turn, entered into a contract with Allied by Clair’s execution on March 27, 1996, of an “Order for Service” and a “Household Goods Bill of Lading and Freight Bill” (Bill of Lading).
4. The Order for Service read in part that Clair’s household goods would be loaded on April 5, 1996, in Fort Myers Beach, Florida,
and delivered to Yukon, Oklahoma, on or about April 13,1996.
5. Clair indicated on the Order for Service that the shipment had a value of $45,-000.00 and she marked that part of the document that read “Optional: Extra Care Protection Pledge.”
6. Clair selected that option because she wanted protection consisting of repair or replacement of her household goods in the amount of $45,000.00, which she thought would be over and above any existing and applicable homeowner’s insurance coverage.
7. Clair discussed valuations with Flinn representative Peter Flinn and although knowing she could select a higher level of coverage, agreed upon the $45,000.00 figure because she thought it was reasonable at the time.
8. Clair reviewed the Order for Service before she signed it and she was aware of the provisions of the Extra Care Protection Pledge.
9. Peter Flinn surveyed Clair’s household goods so he could quote Clair the cost of the move. A price was set forth in the Guaranteed Price Pledge signed by Peter Flinn on March 27,1996.
10. By her signature on the Order for Service, Clair acknowledged that she had received the following documents: “Your Rights and Responsibilities When You Move, Including Allied’s Complaint & Inquiry Handling Procedure,” “Dispute Settlement Program” and Allied’s Annual Performance Report.
11. On April 8, 1996, a driver loaded a majority of Clair’s household goods onto a trailer. He listed the goods on a form entitled “Household Goods Descriptive Inventory” and Clair signed it. When the goods were delivered to Yukon, Oklahoma, on April 13, 1996, Robert Clair likewise signed the form.
12. The remainder of Clair’s household goods, which had an approximate weight of 4540 pounds, was eventually loaded onto a second trailer on April 9, 1996, and transported from Florida to Oklahoma.
13. This second trailer arrived on April 15 or 16, 1996, at Emrick. Because delivery to the designated location could not be accomplished, the trailer was taken to defendant Central States Thermo King of Oklahoma (Central States), where it was subject to a required Department of Transportation inspection.
14. On April 18, 1996, a Central States employee noticed a crack in the middle deck box of the trailer and he attempted to weld it. During the welding process, the contents of the trailer ignited.
15. After the fire, Clair contacted Harvey Washington, an Allied claims adjuster, regarding her loss. Nine forms, each entitled “Presentation of Loss and Damage Claim Form,” were forwarded to Clair. On. July 24, 1996, Clair returned to Allied one page of the nine claim forms, on which Clair had written: “Shipment Never Delivered. Inventory in Progress.” No other information was sent by Clair to Allied during 1996 or 1997.
16. Clair gave counsel for Allied the completed forms at her deposition on November 23,1998.
17. Clair testified at .the deposition that she did not return the completed claim forms to Allied because she first wanted to resolve any claims she had against her homeowner’s insurance carrier, defendant Travelers Insurance Company (Travelers).
Clair brought suit against Allied, Flinn, Emrick, Central States and Travelers and in her amended complaint, she alleged a claim for breach of contract against Flinn, Allied and Emrick and a claim of negligence against Emrick.
These three defendants have first argued that Clair’s claims are preempted by federal law. Clair does not argue to the contrary. The Court therefore finds Clair’s claims for breach of contract and negligence are preempted by the Carmack Amendment to the Interstate Commerce Act,
e.g., Underwriters at Lloyds of London v. North American Van Lines, 890
F.2d 1112 (10th Cir.1989), and holds that Clair’s rights and obligations and these defendants’ obligations and liabilities will be determined in accordance
with the Carmack Amendment and case law interpreting the same.
Allied, Flinn and Emrick have further argued that Clair’s claims are barred because she failed to comply with certain notice provisions.
Title 49, section 14706(e)(1) of the United States Code provides that
“[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 two 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).
The backside of each and every page of the Bills of Lading, which Clair signed, contained the following language:
“SECTION 6. As a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face hereof, or in ease of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice. Where a claim is not filed or suit is not instituted thereon in accordance with the foregoing provisions, carrier shall not be liable and such a claim will not be paid.”
The claim forms sent by Allied to Clair caution the claimant “[bjefore completing this form [to] read [the] attached instructions.” The instructions provide in pertinent part that the claimant,
inter alia,
is to indicate the declared value of the shipment, to describe the articles lost or damaged, to list the weight of each article, to list the purchase price and replacement price of each article and to set forth the dollar amount claimed.
The Interstate Commerce Commission (ICC) has promulgated regulations which “govern the processing of claims for loss ... [of or] damage ... to property transported ... in interstate ... commerce, by ... [common carriers].” 49 C.F.R. § 1005.1 (1998). These regulations provide in part that “[a] claim for loss or damage ... to cargo[ ] shall not be voluntarily paid by a carrier unless filed, as provided in ... [title 49, section 1005.2(b) of the Code of Federal Regulations], with the ... carrier ....
Id.
§ 1005.2(a).”
Section 1005.2(b) sets forth the minimum filing requirements and provides that
“[a] written ... communication ... from the claimant, filed with a proper carrier within the time limits specified in the bill of lading ... and: (l)[c]ontaining facts sufficient to identify the ... shipment ... of property, (2) asserting liability for alleged loss ... 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____”
Id.
§ 1005.2(b).
As the United States Court of Appeals for the Fifth Circuit has noted, the majority of courts which have addressed the issue require “strict compliance with the applicable filing regulations ....”
Salzstein v. Bekins Van Lines, Inc.,
993 F.2d 1187, 1189-90 (5th Cir.1993) (citations omitted).
Clair’s one-
page claim did not comply with either Allied’s written Instructions or the ICC regulations in that the document failed to set forth a request for payment of “a specified or determinable amount of money,” 49 C.F.R. § 1005.2(b), for the damaged property.
Because Clair did not submit a claim which met the minimum filing requirements within the nine-month period,
her claims against Allied, Flinn and Emrick are barred and she is not entitled to any relief from these three defendants for the loss of, or damage to, her household goods which are the subject of this lawsuit.
E.g., Salzstein,
993 F.2d at 1190-91.
Accordingly, the Court GRANTS the Motion for Summary Judgment filed by Allied, Flinn and Emrick on December 31, 1998.