Opinion
Case No. 99-2933-CIV-HUCK/BROWN
May 3, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Laurie Libby (hereinafter "Libby"), brings this action for damages sustained to her household goods while being transported from California to Florida by Defendant, ABF Freight Systems, Inc. (hereinafter "ABF"). ABF has filed a Renewed Motion for Summary Judgment which, in essence, seeks enforcement of a limitation of liability released rated contained in ABF's rate tariff and other documents relating to the subject shipment.
Background
The material dispositive facts are not in dispute. Libby engaged Money Savings Moving, Inc. (hereinafter "MSM"), a broker in the business of arranging transportation for moving household goods, to arrange transportation of her belongings from California to Florida. MSM in turned engaged ABF, as a common cater, to transport Libby's shipment. ABF transported Libby's goods by truck. The shipment commenced in Mission Viejo, California on July 27, 1998, and arrived in Key Biscayne, Florida on August 10, 1998. Libby's goods sustained water damage en route from California to Florida, while being transported by ABF.
Prior to July 27, 1998, ABF entered into an agreement with MSM as MSM's contract carrier provide wholesale transportation services to MSM's customers, such as Libby. This agreement contemplated MSM generating contracts for the shipment of household goods throughout the United States as a freight forwarder/broker, and then arranging those shipments through ABE The pricing and liability terms of the agreement between ABF and MSM included a limitation of liability released rate of ten cents ($0.10) per pound for household goods in accordance with ABF's applicable tariff This agreement applied to the subject shipment of Libby's goods.
As part of her arrangement with MSM, Libby signed a bid dated June 17, 1998. Libby's arrangement with MSM was memorialized in writing on MSM's Customer and Bid Sheet. The bid sheet, in its first paragraph, contained the statement: "Money Savings Moving, Inc. is a broker. Your belongings will be moved through a standard commercial carrier, ABF. Your belongings will have an insured value of only $.10 per pound covering only fire, accident, and theft. You may wish to make arrangements for additional coverage." Libby signed this Customer Bid Sheet on July 31, 1998, while her goods were already en route to its destination. Libby was told by MSM that failure to sign would cause the shipment of her goods to terminate immediately.
Libby claims that she had no knowledge of the terms of this bid sheet prior to the commencement of the transportation of the goods on July 27, 1998, and that she was never given an opportunity to read and determine the significance of such terms. Libby maintains that she signed the document because she feared that her shipment would be terminated en route.
MSM invoiced Libby under Invoice #9810302-51, dated July, 27, 1998, in the amount of $1782.00. MSM's invoice was submitted to Libby by facsimile and signed by heron July 31, 1998 after transportation of commenced. The invoice provided the opportunity to purchase additional insurance for her shipment. Libby declined such optional coverage by initialing a portion of the invoice stating: "No I am not purchasing additional coverage." Libby paid the MSM invoice.
In furtherance of its acting as Libby's broker, MSM prepared a straight bill of lading for Libby, listing her as both the shipper and the consignee. On July, 27, 1998, MSM faxed a copy of the bill of lading to ABF. The limitation of liability released rate of $0.10 per pound in accordance with the MSM/ABF contract and ABF's tariff is incorporated into the bill of lading issued by MSM. Consequently, the household goods were to be transported by ABF, as a contract carrier, at the agreed released rate of ten cents ($0.10) per pound. The bill of lading was submitted to ABF by MSM on July 29, 1998, two days after transportation had commenced. Libby claims the bill of lading contained her forged signature. Libby had no knowledge of the existence of any bill of lading prior to delivery of her goods.
Prior to shipment, Libby inspected ABF's trailer for any loose dirt or dust, which could possibly blemish her goods. Nor further inspection was made because the trailer was delivered at approximately 9:00 p.m. and departed that same night. On August 10 Libby's goods arrived at Key Biscayne, Florida at approximately 9:00 p.m. ABF's driver gave Libby a receipt to sign, acknowledging arrival of the goods. ABE's driver immediately left the scene leaving the trailer behind. Libby had no opportunity to, and did not, open the trailer to inspect her goods for damage before the driver left. The trailer was opened approximately one hour later by Henry Rodriguez. Upon inspection, Rodriguez noticed that a repair had been attempted to the trailer's roof which allowed water to seep into the trailer and damage Libby's goods. Subsequently, Libby reported the damage to ABE at its Miami terminal. ABE assured Libby that her damages would be paid and waived its right to inspect the damaged goods.
Libby's goods sustained water damage in the amount of $44,725.00. She demanded that ABF pay for her damages. ABF tendered $582.40, the amount allowed under the released rate contained in the ABF's tariff, the ABF/MSM contract and the bill of lading. Libby rejected ABF's tender and brought this action seeking $44,725.00 in damages.
Legal Standard
Summary judgment is appropriate if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "material" if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 E.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, at 646.
While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment).
Discussion
The determinative issue here is whether, as a matter of law, ABF's limitation of liability released rate of $0.10 per pound contained in its tariff, its contract with Libby's broker, MSM, and the bill of lading issued by MSM binds Libby in her claim against ABE. This Court finds that it does.
By virtue of her negotiations and agreement with MSM, Libby was the customer and shipper of MSM, not ABF. Libby had no privity or other contractual relationship with ABE. MSM acted as Libby's agent, thus binding her to the limitation of liability contained in ABF's tariff, the ABF/MSM contract and the bill of lading for the shipment. Libby, understandably, contends otherwise. While conceding that she hired MSM as her agent for the purpose of transporting her goods, Libby asserts that because she was unaware of the existence of ABF's tariff, the ABE/MSM contract and the bill of lading, and because she did not agree to the limitation of ABF's liability prior to shipment, she cannot be bound by the limitation. However, the law is otherwise. James N. Keily, PTY Ltd., et al. v. Norfold Southern Railway Company, 71 F. Supp.2d 1363 (N.D.Ga. 1998) ( citing Great Northern Railway Co. v. O'Conner, 232 U.S. 508, 34 S.Ct. 380 (1914) ("One who contracts with others to make arrangements for the transportation of his goods is bound by the terms of the contract entered into on his behalf [including limitation of liability clauses in the agent's contract with the carrier]")); Harrah v. Minnesota Mining and Manufacturing Cmpany, 809 F. Supp. 313, 319 (D.NJ. 1992) (rejecting plaintiff, addressee's assertion that he was not bound by tariff provision limiting amount of defendant carrier's liability incorporated into contract between carrier and shipper because he was not a party to the contract, was not aware of its tariff provision and was not in possession of bill of lading); Burnell v. Butler Moving Storage, 826 F. Supp. 65 (N.D.N.Y. 1993) (where customer sued both the moving company, with which it had a contract for shipping and the motor carrier, which had a contract only with moving company, motor carrier was entitled to benefit of, and customer was bound by, the limitation of liability for damages clause contained in agreement between moving company and motor carrier)
In an effort to avoid the consequences of ABF's imitation of liability provision, and thus ABF's summary judgment, Libby counters with two suggested issues which she claims raise issues of material fact: 1) the limitation of liability released rate relates only to damages resulting from fire, accident or theft and 2) ABF's failure to provide a suitable trailer for transportation of her goods constitutes such a fundamental breach of the contract for transportation that ABE may not enforce its contractual released rate.
First, as to the argument that the limitation applies only to fire, accident and theft, not to water damage cause by ABF's defective trailer, Libby has not offered material support in the record, either factual or legal, sufficient to establish this as an exception to ABF's contracted-for release rate. The operative documents in respect of ABF's liability, the ABF tariff, the ABF/MSM and the bill of lading, do not restrict the limitation of liability to only fire, accident and theft. It is true that the Customers Instructions And Bid Sheet, binding Libby and MSM, but not ABF, stated, "Your belongings will have an insured value of only $.10 per pound covering only fire, accident and theft." However, this statement, even if it means what Libby contends it means, cannot bind ABF. Libby has cited no applicable legal authority, and the Court has found none, to support her position that such a statement contained in the bid would establish an exception to the release rate to which MSM and ABF agreed and upon which ABF relied in undertaking to transport Libby's goods.
Of course, Libby may prevail on this issue in respect of any claim she should bring against her privy, MSM, but that matter is not before the Court.
Libby next argues that under the ABF/MSM contract, of which she is an intended beneficiary, ABF had a duty to use a leakproof trailer to transport her goods, that ABF breached that duty, and that ABF's breach is so fundamental to the contract that it forfeits ABF's right to assert its contractual limitation of liability. However, the Court finds that the cases cited by Libby do not support this theory. Moreover, the Court has not found any pertinent authority supporting the legal proposition that allowing goods to be water damaged while in transit is so fundamental to the bargain that it negates the carrier's contractually established released rate.
Conclusion
For the foregoing reasons, the Court hereby finds that the contractual limitation of liability released rate applies to Libby's claim and that her claim is limited to $582.40 plus interest to the date that sum was tendered by ABF. It is therefore
ORDERED AND ADJUDGED THAT Defendant's Motion for Summary Judgment [DE # 29-1] is hereby GRANTED.