ROBERT C. LEUBA, JTR.

UNPUBLISHED OPINION

Conway Londregan Sheehan & Monaco P., New London, for Steven R. Miller.

Fontaine Alissi P.C., Hartford, for Air Van Lines, Inc. et al.

ROBERT C. LEUBA, JTR.

This vigorously contested matter involves a plaintiff who shipped his household goods from Connecticut to Hawaii and the various companies involved in the shipping and packing. The plaintiff is Steven Miller (hereafter plaintiff). The defendants are Air Van Lines Incorporated (hereafter AVL), SIRVA Global Services, Inc., d/b/a North American Van Lines Incorporated (hereafter NAI), and Sterling Moving and Storage, Inc. (hereafter Sterling). After various interlocutory pleadings a court trial was held on October 23, 2012, before this court at New London. All parties were well represented by counsel, presented evidence and argument with respect to their various claims. An extensive array of exhibits were filed by the parties. A briefing schedule was agreed upon and briefs were filed on or about November 21, 2012.

Background

On or about October 13, 2005, the plaintiff, Steven Miller, entered into a written contract with AVL and/or NAI whereby AVL and NAI agreed to arrange for and/or broker transportation and shipment of the plaintiff's personal property in a shipping container from Gales Ferry, Connecticut to Kailua-Kona, Hawaii. Plaintiff's Exhibit 5. The agreement provided that AVL and/or NAI were responsible for using reasonable care in the selection of carriers, forwarders, agents and others to whom it may entrust the shipment. Pursuant to that agreement, AVL and/or NAI hired Sterling as its agent to perform the necessary work in Connecticut.

The plaintiff purchased Transit Coverage for his property and when he did so he valued his total property that he was shipping at $113, 711.00. This total valued amount was an aggregate of his evaluation of the individual items he was shipping derived solely from the plaintiff's personal declaration of the value for each item. Plaintiff's Exhibit 9. The plaintiff's property was loaded into a shipping container by Sterling employees and it ultimately arrived at its destination in Kailua-Kona on or about December 21, 2005. Upon arrival, the plaintiff discovered damage to certain items of his property. Thereafter the plaintiff was paid the value he declared as to each item damaged for a total of $17, 854. Plaintiff's Exhibit 1.

The defendants declined to make additional payments with respect to the alleged damaged items. This litigation ensued.

Finding of Facts and Discussion

From the evidence, including reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following facts are found. The findings will be incorporated with the discussion of the claims of the plaintiff.

1. Count One Against Sterling

In Count One of the operative Complaint the plaintiff alleges that Sterling is liable for negligence pursuant to the Carmack Amendment, 49 U.S.C. § 14706 (hereafter Carmack Amendment). Sterling claims that at trial the plaintiff failed to prove the necessary elements to support such a cause of action.

In Count One the plaintiff alleges that Sterling was negligent and careless in one or more of the following ways:

a. failed to properly wrap the items of personal property;

b. failed to properly strap down the items of personal property;

c. failed to use reasonable care in packing the items of personal property because they did not properly warp and strap down these items;

d. failed to use proper materials to warp and strap down the items of personal property;

e. failed to take into consideration that items could move in transit if not properly strapped down and wrapped;

f. failed to pack the items of personal property in such a manner as to prevent them from moving and being damaged in transit; and

g. failed to use reasonable care in protecting items of personal property from the likelihood of being damaged during transit.

The plaintiff's evidence on this issue was insufficient. The plaintiff testified as to his respective claims. The plaintiff had no experience in the field of international transportation and shipping. The plaintiff introduced numerous photographs (Plaintiff's Exhibit 2) which show evidence that when the shipment of household goods arrived there was considerable damage to many of the items. The plaintiff asks the court to infer from the evidence of damage that the packing process by Sterling constituted negligence. Whatever emotional response those photographs elicit, this case will have to be decided on the application of the law. The only testimony regarding the actions of Sterling relating to the actual packing was from Mark Dutka, Sterling's Vice-President and General Manager. Mr. Dutka testified and it is found that Sterling undertook efforts to wrap, stack and strap the plaintiff's property into the shipment container pursuant to their regular practice for a shipment of this nature. There was no direct evidence to refute or contradict Mr. Dutka's testimony. Nor can any be reasonably inferred from the damage done. The plaintiff was not present during the packing of his household goods.

There was no expert or other testimony to support the allegations that Sterling failed to follow industry standards or proper procedures in the packaging and loading of his personal property. There was no evidence to identify what the " industry standards" were in that situation.

As the plaintiff's brief points out the " general thrust of the Interstate Commerce Act [and Carmack Amendment] plac[es] on the carrier absolute liability for loss or damage [to a shipper's goods] ." See Novelty Textile Mills, Inc. v. C.T. Eastern, Inc., 743 F.Supp. 212, 216 (S.D.N.Y.1990). The Carmack Amendment imposes liability upon the motor carrier and in favor of a " shipper" of goods for " actual loss or injury to the property ..." 49 U.S.C. § 14706(a)(1). " In order to make out a prima facie case, [plaintiff] needs to show (1) delivery (of the goods) to the carrier in good condition, (2) arrival in damaged condition, and (3) the amount of damage caused by this loss." See Design X Mfg. v. ABF Freight Sys., 584 F.Supp.2d 464, 468 (D.Conn.2008): United Van Lines LLC v. Marks, (2005) 404 F.Supp.2d 954.

Although the Carmack Amendment imposes liability on a carrier for the actual loss or injury to property caused by the carrier, 49 U.S.C. § 14706(a)(1), the statute also permits a carrier to limit its liability " to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and the shipper if that value would be reasonable under the circumstances surrounding the transportation." (Emphasis added). Id. § 14706(c)(1)(a).

To prevail on a claim based on a violation of the Carmack Amendment, the plaintiff must prove all three of the elements. The plaintiff testified and it is found that his goods were delivered to Sterling in good condition and the photographs established and the court finds that some of the goods arrived at their destination in damaged condition. However it is found that the plaintiff failed to establish credible evidence of the value of the damage. The court simply could not credit the plaintiff's testimony concerning his value of the damaged property. While an owner may testify about the value of his property such testimony must be credible. The testimony here simply was not.

Moreover, even if the values given in the plaintiff's testimony were credited, which it was not, the plaintiff could not recover on this count because he had agreed to limit his recovery to the amounts stated for each item in his inventory so as to obtain a reduced cost. The court finds that the plaintiff was aware of this limitation of liability and agreed to its terms and, further, that the limitations were reasonable. (Plaintiff's Exhibits 5, 8, 9 and 15.) The plaintiff's testimony that he was not aware of the limited liability clause in the Certificate of Insurance does not help him. He did testify and it is found that he was aware that the amount of coverage that he had for his items of property was limited to the value for those items which he listed on his Valued Inventory Form. The plaintiff intentionally undervalued his items so as to pay a lower premium for the coverage and took the risk upon himself that they would not be damaged beyond the amounts he determined to list them. The plaintiff has already been paid the full declared value of his damaged goods as he stated on his Valued Inventory Form.

For these reasons, Sterling is entitled to judgment in its favor as to Count One of the plaintiff's Complaint.

2. Count Two Against Air Van Lines, Inc.

In Count Two, the plaintiff alleges that AVL is liable to him for negligence. Specifically, in Count Two, Paragraph 17, the plaintiff alleges that AVL was negligent and careless in one or more of the following ways in that they:

a. failed to prepare proper documentation for transportation and/or forwarding of Plaintiff's goods;

b. failed to use reasonable care in selecting motor carriers for packaging and transporting Plaintiff's goods;

c. failed to use reasonable care in selecting freight forwarders for packaging and transporting Plaintiff's goods;

d. failed to use proper procedures and protocols for reviewing motor carriers for safe and proper transportation of Plaintiff's goods;

e. failed to use proper procedures and protocols for reviewing freight forwarders for safe and proper transportation of Plaintiff's goods;

f. used or arranged for use of air and land transportation methods that caused the Plaintiff's personal property to move around and shift violently during transit; and

g. used subcontractors, freight forwarders and/or transportation companies that were not qualified to handle, package and ship the items of personal property.

The court finds no evidence to support these allegations. There was no evidence that AVL failed to prepare proper documentation or that AVL failed to use reasonable care in selecting Sterling for the packaging and transportation of his goods. No evidence is found as to what the " proper" procedures and protocols for reviewing and selecting motor carriers or freight forwarders were or how AVL had violated these procedures and protocols.

There also was no evidence as to how AVL's selection of Sterling and Sterling's method of transportation caused the Plaintiff's personal property to move around and shift violently during transit.

Finally, there was no evidence that Sterling was not qualified to handle, package and ship the items of personal property.

In its brief the plaintiff brings up for the first time a claim of bailment. The court does not find bailment to have been alleged in the operative complaint, nor was it mentioned in the Joint Trial Management Report or the Supplement thereto. The heading for Count Two states that it is a negligence count and the allegations which follow comport with that representation. But even if the court did apply the law of bailment to these circumstances the plaintiff has not established credible evidence as to his damages.

The court's analysis as to the absence of evidence as to the plaintiff's damages and as to the limitation of the liability discussed above with respect to the first count equally applies to the claims raised in this count.

The plaintiff has failed to meet his burden of proof as to this count. For these reasons, the defendant Air Van Lines is entitled to judgment in its favor as to Count Two of the plaintiff's Complaint.

3. Count Three Against North American International, NA, Inc.

In Count Three, the plaintiff alleges that NAI is liable to him for negligence. In his brief the plaintiff incorporates the claims made with respect to the Second Count since it is claimed that AVL is the agent of NAI. The same findings of the court with regard to the evidence or lack thereof with respect to the second count and the limitations of liability are equally applicable to the Third Count.

For these reasons, the defendant North American International is entitled to judgment in its favor as to Count Three of the plaintiff's Complaint.

4. Counts Four & Five Against The Defendant Air Van Lines, Inc. and North American International, NA, Inc. (Respectively) CUTPA

In Counts Four and Five, the plaintiff alleges that AVL and/or NAI are liable to him based on an alleged violation of the Connecticut Unfair Trade Practices Act (hereinafter " CUTPA"), Connecticut General Statute § 42-110a, et seq.

The plaintiff sets forth the law in his brief. " It is well settled that in determining whether a practice violates CUTPA [our appellate courts] have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn.App. 509, 523, 967 A.2d 550 (2009). " Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy ... In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ..." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 321-22, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009). " [I]n order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury." Stevenson Lumber Co., Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 214, 932 A.2d 401 (2007).

" [T]he same facts that establish a breach of contract claim may be sufficient to establish a CUTPA violation ... when the aggravating factors present constitute more than a failure to deliver on a promise." (Citations omitted.) Greene v. Orsini, 50 Conn.Supp. 312, 315, 926 A.2d 708 (2007). The question therefore becomes whether the plaintiff has proven the substantial aggravating circumstances attending the breach of contract necessary to establish a CUTPA violation. " Conduct that has been held to be substantial aggravating circumstances sufficient to support CUTPA claims includes fraudulent representations, fraudulent concealment, false claims ... and multiple breaches of contract." (Citation omitted; internal quotation marks omitted.) Eclipse Systems, Inc. v. Harrell, Superior Court, judicial district of Middlesex, Docket No. CV 10 6003857 (May 25, 2011, Wiese, J.), copy attached.

" [K]nowledge of falsity [of a misrepresentation], either constructive or actual, need not be proven to establish a violation of CUTPA, " Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 363, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987). Moreover, following the reasoning in Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002), which found that a single act of misconduct can constitute a violation of CUTPA, Superior Courts have found that a single misrepresentation can support a CUTPA claim. See Greene v. Orsini, 50 Conn.Supp. 312, 317, 92.6 A.2d 708 (2007); Gray v. Sullivan Real Estate, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5012402 (May 18, 2010, Trombley, J.) , copies attached.

The plaintiff alleges that " [b]ased on the substantial damage and destruction to many of the items of personal property, the plaintiff believes that the Defendant AVL acted with such reckless disregard for the security of his personal property as to constitute an unfair method of conducting business in the moving and storage, transportation brokerage, and/or freight forwarding business." Specifically, the plaintiff alleged that AVL and/or NAI violated CUTPA because their " actions and conduct": (1) constituted unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce; (2) were immoral, unethical, oppressive or unscrupulous; and (3) offend the public policy of the State of Connecticut.

The plaintiff's CUTPA cause of action against AVL and/or NAI cannot succeed for four distinct and independent reasons.

First, as a matter of law, the plaintiff does not allege any facts, nor are any facts found established at trial, sufficient to state a cause of action based on a violation of CUTPA. " Plaintiffs must plead CUTPA claims with sufficient particularity." See S.M.S. Textile Mills v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn.App. 786, 787, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). The plaintiff's allegations and testimony at trial constituted a mechanical recitation of the statutory language and conclusory statements without factual support. The plaintiff testified that somehow, at some point during transportation from Connecticut to Hawaii, his property was damaged due to some negligent act or omission by the defendants. The plaintiff's brief (at page 21) argue " the extent of the damage supports the conclusion." The court declines to accept the plaintiff's claimed inference. There are simply too many possibilities as to what could have caused the damage (which was definitely evident) for the court to infer that it was some act or omission of these defendants.

Also, no evidence is found to support the claim as to how or what act(s) of the defendants were unfair or deceptive. The plaintiff's claim that promises were made to him about crating and packing are not credited by the court. The only documentary evidence is contrary to his claim. A conclusory statement without further elaboration and specific facts alleging how the acts are unfair or deceptive is insufficient to support a CUTPA claim. The plaintiff testified that he was told that his piano would be crated and the items on his Valued Inventory would be repackaged, but that testimony is not credited by the court. The only document produced at trial indicated that the " Customer has a piano that he says had already been prepared & packaged to ship." Plaintiff's Exhibit 4.

Second, the plaintiff's allegations and the evidence offered at trial even if credited amount to mere negligence.

The defendants argue in their brief that " Mere allegations of ... negligence are inadequate to allege a CUTPA claim." Wang v. Griffin, 2004 Conn.Super. LEXIS 2367 (Conn.Super.Ct.2004) [ 37 Conn. L. Rptr. 727]; Ferrigno v. Pep Boys, 47 Conn.Supp. 580, 583, 818 A.2d 903 (Conn.Super.Ct.2003); Suffield Development Associates Ltd. Partnership v. National Loan Investors LLP, 260 Conn. 766, 781, 802 A.2d 44 (2002); LaRoche v. New Haven Savings Bank, Superior Court, judicial district of New Haven, Docket No.: CV 95-0375771 (October 30, 1995, Hadden, J.).

The court finds no evidence of aggravating circumstances sufficient to support a CUTPA claim.

Third, even if the Court were to find that the defendants violated CUTPA, which it does not, the defendants also argue that the plaintiff is unable to recover on Counts Four and Five because recent federal case law has confirmed that all state laws and causes of action, including actions brought against a broker, are impliedly preempted by the Carmack Amendment and expressly preempted by 49 U.S.C. § 14501(c)(1) which expressly provides for federal authority over intrastate transportation, citing Ameriswiss Technology, LLC v. Midway Line of Illinois, Inc., 2012 U.S. Dist. LEXIS 138880 (United States District Court for the District of New Hampshire, September 27, 2012) (held that the actions of a broker, including, but not limited to arranging for, receipt, delivery, storage, handling and packing of goods/property clearly fall within the Carmack Amendment as services related to the transportation of goods/property); See also York v. Day Transfer Co., 525 F.Supp.2d 289 (United States District Court for the District of Rhode Island, November 20, 2007) (held that a broker's role in hiring a freight forwarder/mover clearly falls within the Carmack Amendment).

The Court in Ameriswiss Tech recited with approval that " [t]he principle purpose of the Carmack Amendment was to achieve national uniformity in the liability assigned to carriers. Through the enactment, Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject. The Carmack Amendment exists to provide a measure of predictability for interstate carriers in the exposure to damages they face. To accomplish this goal, the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods. The Carmack Amendment, with few exceptions, provides the exclusive cause of action for loss or damage to goods arriving from the interstate transportation of those goods by a common carrier." (Internal quotations omitted.) Ameriswiss Technology, LLC v. Midway Line of Ill., Inc., 2012 DNH 173 (D.N.H.2012).

This court adopts the reasoning of Ameriswiss and the defendants' argument.

Counts Four and Five against AVL and NAI, respectively, are both impliedly preempted by the Carmack Amendment and expressly preempted by 49 U.S.C. § 14501(c)(1).

Fourth, this court's findings with regard to the lack of credible evidence of the plaintiff's claimed damages applies equally to these counts of the complaint. Without evidence of damages the CUTPA claims must fail.

For each and every one of these four reasons, the defendants Air Van Lines, Inc. and North American International, NA, Inc. are entitled to judgment in their favor as to Counts Four and Five of the plaintiff's Complaint.

5. Special Defense

The defendants in their Answer allege Special Defenses relating to the payments already received by the plaintiff. However, because of the conclusions reached with respect to the allegations of the complaint the court need not reach these claims.

Conclusion

For the various reasons stated above as to each allocation of the operative complaint, the court finds the issues for the defendant and enters judgment for the defendants and awards no damages. No costs are awarded to any party.

Counts Four and Five against AVE and NAI, respectively, are both impliedly preempted by the Carmack Amendment and expressly preempted by 49 U.S.C. § 14501(c)(1).

Fourth, this court's findings with regard to the lack of credible evidence of the plaintiff's claimed damages applies equally to these counts of the complaint. Without evidence of damages the CUTPA claims must fail.

For each and every one of these four reasons, the defendants Air Van Lines, Inc. and North American International, NA, Inc. are entitled to judgment in their favor as to Counts Four and Five of the plaintiff's Complaint.

5. Special Defense

The defendants in their Answer allege Special Defenses relating to the payments already received by the plaintiff. However, because of the conclusions reached with respect to the allegations of the complaint the court need not reach these claims.

Conclusion

For the various reasons stated above as to each allocation of the operative complaint, the court finds the issues for the defendant and enters judgment for the defendants and awards no damages. No costs are awarded to any party.