Opinion
No. 99 Civ. 9798 (AJP).
April 14, 2000.
OPINION AND ORDER
In this diversity action, plaintiff Herbert Horowitz, who is an attorney, has sued defendant Jacoby Moving Storage Inc. and others for damages to Horowitz's goods while in storage. Presently before the Court is defendant Jacoby's summary judgment motion. All parties consented to decision of the motion by a Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On February 29, 1999, I denied the Minsky defendants' motion to dismiss and for summary judgment and the Wolkoff defendants' motion to dismiss for lack of the federal jurisdictional amount in controversy. (Dkt. No. 41: 2/29/00 Order; 2/29/00 Conf. Tr.)
For the reasons set forth below, Jacoby's summary judgment is DENIED because it is not clear whether the Bill of Lading contract was to cover only moving or also the storage of Mr. Horowitz's property at the mover's warehouse.
FACTS
Plaintiff Herbert Horowitz is a practicing trial attorney. (Kolb Aff. Ex. C: Horowitz Dep. at 6, 113.) Horowitz, who was moving as a result of getting a divorce, hired Jacoby to move personal property from 250 East 65th Street and to store the property at Jacoby's warehouse. (Jacoby Horowitz 56.1 Stmts. ¶¶ 1, 3; Kolb Aff. Ex. D: Bill of Lading Contracts; Horowitz Dep. at 14-16, 31.) The move took place on September 7 and 15, 1996. (Jacoby Horowitz 56.1 Stmts. ¶ 2.) Horowitz placed a $100,000 valuation figure on the Bill of Lading (and paid a fee for such increased liability), increasing the contractual limitation on Jacoby's liability to that amount. (Jacoby Horowitz 56.1 Stmts. ¶¶ 4-5; Bills of Lading; Horowitz Dep. at 202, 206-07.) Horowitz only expected to have his property in storage for a short time, but delays concerning his new apartment caused the property to remain in storage for much longer. (See Horowitz Dep. at 35-36.) Horowitz understood that the first month's storage was free and that he would be charged a storage fee thereafter. (Horowitz Dep. at 42.)
On January 23, 1997, Horowitz received a letter from Jacoby stating that his property may have suffered water damage on October 19, 1996. (Jacoby Horowitz 56.1 Stmts. ¶ 7; Kolb Aff. Ex. E: Jacoby Letter.) Around that same time, Horowitz received a January 14, 1997 letter from the representative of Jacoby's insurance carrier. (Jacoby Horowitz 56.1 Stmts. ¶¶ 10-11; Kolb Aff. Ex. H.) On January 24, 1997, Horowitz responded to Jacoby and the representative of Jacoby's insurance carrier. (Jacoby Horowitz 56.1 Stmts. ¶ 8; Kolb Aff. Exs. F-G: Horowitz 1/24/97 Letters.) Horowitz wrote that he believed Jacoby "was not only negligent, but grossly negligent. However, that is not the purpose of this letter." (Kolb Aff. Ex. G at 1.) Horowitz described certain missing items of clothing, such as "suits, sport jackets and shirts, slacks," etc. and stated that "an itemized list, will, of course, be furnished to you." (Id. at 2.) Horowitz also explained that because one of the boxes had "contained [his] personal and business records . . . [he was] now at a loss to even attempt to determine the costs and dates of purchase of many of the items." (Id.) He further described other property that was destroyed or damaged in the flood, including a mirror and painting. (Id. at 2-3.) He ended by asking the insurance representative to contact him "so that we can work out what has to be done." (Id. at 3.)
By letter dated March 7, 1997, GRE Insurance responded to Horowitz's January 24, 1997 letters. (Jacoby Horowitz 56.1 Stmts. ¶¶ 12-13; Kolb Aff. Ex. I: 3/7/97 GRE Letter.) GRE stated that "[a]s of this writing, we regret we have not received your fully documented claim for our review. We ask that you do this within the next 15 days. . . . Should you wish not to pursue this matter any longer, you need not reply to this inquiry." (Kolb Aff. Ex. I.)
Horowitz did not provide a written response until his May 17, 1999 letter, over two years later, itemizing his damage and requesting payment of his claim. (Jacoby Horowitz 56.1 Stmts. ¶¶ 16-17; Kolb Aff. Ex. J: 5/17/99 Horowitz Letter.) Horowitz wrote that "[i]t has taken [him] much longer than [he] had anticipated in trying to put together all of the items of [his] loss and find many of the bills pertaining to such loss." (Kolb Aff. Ex. J at 1.) He listed 79 items or groups that were damaged or missing and listed eleven other items or groups that were damaged and were in Horowitz's home available for inspection. (Id. at 1-3.) Next to each item was a dollar value, and Horowitz ended the letter by requesting "a check as soon as possible." (Id. at 3.)
The Bills of Lading
The Bills of Lading show that the goods were being picked up from 250 East 65th Street and delivered to "storage." (Kolb Aff. Ex. D: Bills of Lading.) The front of each Bill of Lading indicates it is subject to the conditions on the back thereof. (Id.) On the reverse, under the heading "Claims Procedure and Limitations," the Bill of Lading provides:
(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier possession of the property when the loss, damage, injury or delay occurred, within nine months after delivery of the property (or in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery then within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable and such claims will not be paid.
(Id., Contract Terms Conditions § 2(b).)
The Bill of Lading's "Contract Terms" also provide that all claims and disputes are subject to arbitration before the American Arbitration Association. (Id. § 10.) However, it appears that both parties may have waived this provision by their participation in this litigation. See PPG Indus., Inc. v. Webster Auto Parts Inc., 128 F.3d 103, 107-08 (2d Cir. 1997) (outlining standards for determining waiver of arbitration through participation in litigation).
Horowitz testified at his deposition that although he is a lawyer, he did not read the "Contract Terms and Conditions" on the back of the Bill of Lading. (Horowitz Dep. at 207-08.)
ANALYSIS
For discussions of the standards applicable to summary judgment motions, see e.g., Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3-4 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Weber v. Parfums Givenchy Inc., 49 F. Supp.2d 343, 352-53 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Vanguard Municipal Bond Fund, Inc. v. Cantor, Fitzgerald, L.P., 40 F. Supp.2d 183, 188-89 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387-88 (S.D.N Y 1998) (Stein, D.J. Peck, M.J.).
I. SUMMARY JUDGMENT IS DENIED BECAUSE THERE IS A MATERIAL ISSUE OF FACT AS TO WHETHER THE BILL OF LADING COVERS STORAGE AS WELL AS MOVING
Jacoby's summary judgment motion is based on Horowitz's alleged non-compliance with Section 2(b) of the Bill of Lading regarding the filing of a timely notice of claim. (Jacoby Br. at 5-8.) Alternatively, relying on the face of the Bill of Lading, Jacoby seeks partial summary judgment limiting its liability to a maximum of the $100,000 declared value. (Jacoby Br. at 9-11.)
Counsel for plaintiff Horowitz responds that the Bill of Lading is not applicable because "it was a moving contract and not a storage contract." (Horowitz Br. at 2.) Horowitz's brief continues:
An examination of these Bills of Lading reflects that these were intended to govern the moving of the plaintiff's goods from his residence at 250 East 65th Street in Manhattan to the storage facility operated by the defendant Jacoby. Thus, the Bills of Lading reflect a start time and a finish time for the moving work, indicate the number of trucks and the number of men who would be engaged in moving, contain such words as "shipper" and "carrier," and the entire tone and substance of these documents indicates they were intended to be the contract governing shipping of goods. Nothing in either of these Bills of Lading refers to the terms and conditions for storage of goods. These Bills of Lading are limited by their own terms to the shipping of goods, and these Bills of Lading were fully executed, over, and done with at the time goods were delivered to the storage facility.
(Horowitz Br. at 3.) The brief, however, is not accompanied by an affidavit from Horowitz as to his understanding of the Bill of Lading's scope.
Jacoby's counsel submitted the entire Horowitz deposition transcript (Kolb Aff. Ex. C), and the Court was forced to read it in its entirety, but there was no testimony as to Horowitz's understanding of the Bill of Lading's coverage.
In reply, Jacoby's counsel merely points to the face of the Bill of Lading, stating:
Plaintiff's allegation that the bills of lading pertain to moving services and not to storage services provided by defendant Jacoby Moving and Storage is inconsistent with the language printed on the face of the bills of lading.
The top front portion of the bills of lading state:
It is mutually agreed that every service to be performed hereunder shall be subject to all conditions not prohibited by law, whether printed or written, herein contained, including the conditions on back hereof, which are hereby agreed to by shipper and accepted for himself and his assigns.
Undoubtedly, storage service is conspicuously referred to on the front of each bill of lading. The word "storage" appears twice on the top front of each bill of lading next to plaintiff's address. The words "monthly storage fee" appear on the front of the bills as well. The bills are signed by Jacoby's warehouseman as received for storage on the bottom left front of each document. The above references to storage contradict plaintiff's unsupported allegation that the bills of lading "had nothing to do with storage."
(Jacoby Reply Br. at 7.) Counsel for Jacoby, however, has not supplied any affidavit or other evidence as to Jacoby's intent and understanding as to the Bill of Lading's coverage, i.e., whether it covers storage as well as moving, nor any evidence as to Jacoby's usual business practice in connection with combined moving and storage jobs.
While Jacoby may well have the better argument if this were trial and the Court had no other evidence, this is summary judgment, and the Court cannot say that the Bill of Lading clearly and unequivocally covers storage. While there are references to storage in the Bill of Lading, it is telling that the "Monthly storage fee" line was left blank. (Kolb Ex. D: Bill of Lading.) There is a material question of fact as to whether the Bill of Lading was intended by the parties to be the contract covering storage as well as moving. The Court therefore denies Jacoby's summary judgment motion. The Court thus need not reach the question of whether Horowitz's notice of claim was timely under Section 2(b) of the Bill of Lading's Contract Terms Conditions or whether the $100,000 limitation on liability applies.
II. HOROWITZ IS PRECLUDED FROM USING THE AFFIDAVIT OR TESTIMONY OF EXPERT WITNESS BARRY BURNS AT TRIAL
In opposing Jacoby's summary judgment motion, plaintiff Horowitz submitted two affidavits from typesetter Barry Burns opining as to the size of the type in the Bill of Lading's Contract Terms Conditions page. Jacoby objected to the Burns affidavit. (Jacoby Reply Br. at 2-4.) The Court did not need to reach the type-size issue in deciding the summary judgment motion, but it is clear that Burns' testimony is expert testimony and should be (and is) precluded from use at trial.
There is no doubt that Burns is an expert — "a professional printer and trained typesetter . . . engaged in the printing and typesetting business for over 40 years." (Burns 3/13/00 Aff. ¶ 1.) Burns did not print the Bill of Lading at issue here, and clearly is not a "fact" witness. His affidavit describing what he was asked to do describes a request for expert testimony: "I have been asked to examine the printing on the back of the Jacoby Moving Storage `Uniform Household Goods Bill of Lading and Freight Bill.' Specifically, I have been asked to examine the paragraphs thereof labeled sections 2(a) and 2(b) and to determine the size of the type utilized in the printing of those paragraphs." (Burns 3/13/00 Aff. ¶ 2.) While plaintiff's counsel claims that Mr. Burns is not an expert because he is testifying to "facts" not "opinions" (Tolchin 3/22/00 Letter to the Court at p. 2), he is incorrect — under Rule 702, Burns is an expert.
Federal Rule of Evidence 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." The Advisory Committee Notes state that while "[m]ost of the literature assumes that experts testify only in the form of opinions[, t]he assumption is logically unfounded."
It is undisputed that Horowitz did not identify Burns in response to interrogatories seeking the identification of experts, nor produce the required Rule 26(a)(2)(B) expert report, and that discovery closed prior to the summary judgment motion. Accordingly, for failure to comply with expert discovery obligations, plaintiff Horowitz is precluded from offering testimony from Mr. Burns at trial (or on any other motion). Fed.R.Civ.P. 37(c)(1); see, e.g., In the matter of Illusions Holdings Inc., 189 F.R.D. 316, 320 (S.D.N Y 1999); Fund Comm'n Serv., II, Inc. v. Westpac Banking Co., 93 Civ. 8298, 1996 WL 469660 at *4 (S.D.N.Y. Aug. 16, 1996); Softel, Inc. v. Dragon Med. Scientific Communications, Inc., 87 Civ. 0167, 1990 WL 164859 at *7-8 (S.D.N.Y. Oct. 24, 1990), aff'd, 118 F.3d 955 (2d Cir. 1997), cert. denied, 523 U.S. 1020, 118 S.Ct. 1300 (1998).
CONCLUSION
For the reasons set forth above: (1) defendant Jacoby's summary judgment motion is DENIED and (2) plaintiff Horowitz is precluded from offering testimony from Mr. Burns in this action.
The Pretrial Order is due May 12, 2000 for all parties including third-party defendant Valor Roofing.
SO ORDERED.
Copies to:
Robert J. Tolchin, Esq. Kenneth R. Feit, Esq. Lee Hymowitz, Esq. Eugene Guarneri, Esq. Reed M. Podell, Esq.