Security Insurance v. Old Dominion Freight Line, Inc.

391 F.3d 77, 2004 U.S. App. LEXIS 24894
CourtCourt of Appeals for the Second Circuit
DecidedDecember 2, 2004
DocketDocket No. 03-7981
StatusPublished
Cited by1 cases

This text of 391 F.3d 77 (Security Insurance v. Old Dominion Freight Line, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Security Insurance v. Old Dominion Freight Line, Inc., 391 F.3d 77, 2004 U.S. App. LEXIS 24894 (2d Cir. 2004).

Opinion

KEARSE, Circuit Judge.

Defendant Old Dominion Freight Lines, Inc. (“Old Dominion”), appeals from a judgment entered in the United States District Court for the Southern District of New York, Gerard E. Lynch, Judge, ordering it to pay $237,963.01 in damages and prejudgment interest to plaintiff Security Insurance Company of Hartford (“Security”) as subrogee of the shipper of goods carried by Old Dominion that were stolen prior to delivery to their final destination. The district court, in an Opinion and Order dated August 20, 2003 (“District Court Opinion”), granted summary judgment in favor of plaintiff, ruling, inter alia, that, under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 (“Carmack Amendment”), Old Dominion was strictly liable for the loss of the goods and that plaintiff had presented suf[79]*79ficient evidence as to the quality and quantity of the goods delivered to Old Dominion for carriage. The court also rejected Old Dominion’s contention that the present suit was not timely. On appeal, Old Dominion contends principally that the district court erred (1) in rejecting its untimeliness argument, (2) in ruling that Old Dominion was subject to strict liability, rather than to a negligence standard, and (3) granting summary judgment despite the presence of genuine issues of fact to be tried as to the contents and condition of the shipment when delivered to Old Dominion. We reject Old Dominion’s first two contentions substantially for the reasons stated in the District Court Opinion at 9-14, 17-19. We find merit in the third contention for the reasons that follow.

I. BACKGROUND

The facts of this case are largely undisputed. Old Dominion, a trucking company, and RJ Reynolds Tobacco Company (“RJR”) were parties to a contract for the carriage of goods from RJR’s Central Distribution Center in Winston-Salem, North Carolina (“RJR Distribution Center” or “Distribution Center”). Pursuant to the contract, on July 13, 1999, a shipment of Winston cigarettes and Camel Light cigarettes was loaded onto an Old Dominion truck at the Distribution Center and was to be transported to RJR’s consignee, RJR-Macdonald, Inc. (“RJR-Macdonald”), in Montreal, Canada (the “July 13 shipment”). Through a subcontractor, Old Dominion transported the cigarettes to the Canadian border; there the shipment was stopped by Canadian customs officials, who ordered it detained until it received clearance. Pending customs approval of its release, the cargo was placed in a bonded warehouse. The cargo was stolen, by persons unknown, from the warehouse.

When the July 13 shipment failed to arrive at its final destination, RJR-Mac-donald investigated and reported the theft to the Montreal police. The Canadian Mounties ultimately recovered some of the cargo; however, due to concerns about the quality of the recovered cigarettes, those cigarettes were destroyed.

RJR filed a claim with Old Dominion seeking compensation for the stolen cargo, and RJR-Macdonald filed an insurance claim with its insurer, Security. Security eventually paid RJR-Macdonald $195,938 for the loss and brought the present suit as subrogee of RJR’s claim against Old Dominion, requesting $195,938 in damages, plus interest, costs, and attorneys’ fees.

A. Security’s Motion for Summary Judgment

Security moved for summary judgment on its claim, submitting, to the extent pertinent to the merits, an affirmation by its attorney Michael J. Slevin and an affidavit by Walter F. Nowicki, who in July 1999 was a distribution manager at the RJR Distribution Center. Thereafter, Security also submitted the affidavit of Robert McMaster, who in 2002 was Director of Taxation and Insurance of the JTI-Mac-donald Corp. (formerly called RJR-Mac-donald). The Slevin affirmation, dated January 21, 2003 (“Slevin Aff.”), briefly summarized the events and attached (1) the bill of lading for the July 13 shipment, (2) a chronology of the events surrounding that shipment, which Slevin described as having been prepared by (unidentified) RJR-Macdonald employees, (3) the contract between Old Dominion and RJR, and (4) correspondence between Old Dominion and RJR with respect to Old Dominion’s rejection of RJR’s claim.

The Nowicki affidavit described procedures generally used at the RJR Distribu[80]*80tion Center to prepare shipments for transport:

4. The process used to retrieve and ship cigarettes is as follows:
When the carrier’s truck arrives, an order is activated in our Central Distribution Management system and our automated retrieval system begins to send the product through a series of conveyor systems directly to the truck loading dock at which the carrier’s truck is parked.
The movement of the product is monitored until it is confirmed arrived at the loading dock.
The product is then removed from the storage pallet and loaded on the floor of the truck.
Once the truck is loaded, the order is confirmed as being complete, “closed out” and shipped in the Central Distribution Management system. At this point the Bill of Lading is printed. An order cannot be “closed out” or confirmed “shipped” unless 100% of the required product has been delivered to the appropriate truck dock.
Once the order is confirmed shipped in the Central Distribution Management system, our inventory records are decremented [sic ] by the amount loaded and shipped. This is confirmed through our inventory reconciliation process. Our inventories are reconciled to the book inventory daily as required by the Bureau of Alcohol Tobacco and Firearms.
When the Bill of Lading is printed, it is presented to the carrier for a signature and date and becomes our proof of shipment. The truck is then released to the carrier’s driver.

(Affidavit of Walter Nowieki dated January 22, 2003 (“Nowieki Aff.”), ¶ 4.)

As to the July 13 shipment in particular, Nowieki stated only that the shipment was tendered to Old Dominion Freight Lines (“ODFL”) for carriage from Winston-Salem, NC to the premises of RJR-Macdonald Inc. in Montreal, Quebec, Canada. Invoice # 84897903 was a “made to order” invoice. The two items shipped on this invoice were unique to this order and produced to a specific quantity. A true copy of the bill of lading for this shipment is attached hereto as Exhibit A. A representative of ODFL, presumably the driver of the truck, signed this document on July 13, 1999.

(Nowieki Aff. ¶ 5.) Although Nowieki stated that he was familiar with these procedures (see id. ¶ 3), he did not state that he had any personal knowledge as to the July 13 shipment.

The McMaster affidavit indicated that McMaster had no personal knowledge with respect to the July 13 shipment; a different RJR-Macdonald employee had been responsible for filing claims with the trucker and the insurer, and McMaster had subsequently assumed that employee’s duties; McMaster stated that he had reviewed RJR-MacDonald’s business records with respect to that shipment.

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391 F.3d 77, 2004 U.S. App. LEXIS 24894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-insurance-v-old-dominion-freight-line-inc-ca2-2004.