Opinion
No. CV-07-5003875
March 31, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 107)
On July 10, 2007, the plaintiff, Steven R. Miller, brought a four-count complaint against the defendants, Air Van Lines, Inc. (Air Van), North American Van Lines, Inc. (North American Van) and Sterling Moving and Storage, Inc. (Sterling) arising from damages allegedly sustained to the plaintiff's property while being transported by the defendants. In his complaint, the plaintiff alleges the following facts. The plaintiff entered a written contract with Air Van in which Air Van agreed to pack and transport shipping crates containing the plaintiff's property from Gales Ferry, Connecticut to Kailua-Kona, Hawaii. Air Van subcontracted some or all of the work to Sterling. When the crates arrived in Hawaii, some of the plaintiff's items were damaged or destroyed. The plaintiff alleges common-law negligence claims against Sterling in count one, and against Air Van and North American Van in count two. The plaintiff further alleges violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against Sterling in count three, and against Air Van and North American Van in count four.
North American Van Lines, Inc. was identified as SIRVA Global Services, Inc. d/b/a North American Van Lines, Inc. in the plaintiff's complaint. Hereinafter, the entity will be referred to as North American Van.
On February 7, 2008, the defendants filed a motion to strike the plaintiff's complaint in its entirety on the ground that Connecticut does not recognize a private cause of action for claims arising from damage to a shipper's goods during interstate shipment while under a carrier's control. The defendants filed a memorandum of law in support of their motion. On November 20, 2009, the plaintiff filed an objection to the defendants' motion. The defendants filed a reply memorandum in further support of their motion on December 11, 2009.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Comm. 277, 294, 914 A.2d 996 (2007). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendants argue that the plaintiff's claims are preempted by 49 U.S.C. § 14706, the Carmack Amendment, which Connecticut recognizes as the exclusive remedy for actions arising from interstate transportation services by carriers.
Title 49 U.S.C. § 14706 provides in relevant part: "A carrier providing transportation or service . . . shall issue a receipt or bill of lading for property it receives for transportation . . . That carrier . . . that delivers the property and is providing transportation . . . [is] liable to the person entitled to recover under the receipt or bill of lading. The liability imposed . . . is for the actual loss of the injury to the property . . ."
"[T]he Carmack Amendment has been held to preempt all state law on the issue of carrier liability." Commercial Union Ins. Co. v. Forward Air, Inc., 50 F.Sup.2d 255, 257 (S.D.N.Y. 1999). "[The Carmack Amendment] supersedes all the regulations and policies of a particular state upon the same subject . . . It embraces the subject of the liability of the carrier . . . and limits his power to exempt himself . . . Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulations with reference to it." Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913).
Connecticut courts have recognized the Carmack Amendment as the exclusive remedy for the loss of goods transported in interstate commerce. Dress Barn, Inc. v. The LTA Group, Inc., 822 F.Sup. 88 (D.Conn. 1993); see also Davis Shanaphy Group, Inc. v. Morse Moving, Co., Superior Court, judicial district of Stamford, Docket No. CV 96 0153385 (July 17, 1997, D'Andrea, J.) ( 20 Conn. L. Rptr. 101) (finding CUTPA claim was preempted by Carmack Amendment).
The plaintiff counters that the Carmack Amendment does not apply in the present case because the defendants failed to issue a receipt or bill or lading as required by 49 U.S.C. § 14706. Pursuant to the language of the Carmack Amendment, however, "[f]ailure to issue a receipt or bill of lading does not affect the liability of a carrier." 49 U.S.C. § 14706(a)(1)(C). Moreover, the court, in Dress Barn, Inc. v. The LTA Group, Inc., supra, 822 F.Sup. 88, found that the Carmack Amendment preempted Connecticut law despite the lack of "a contract embodied in a bill of lading, [where there existed the] loss of goods, an alleged freight forwarder, and transportation across state lines." Id., 89 n. 1. As a result, the defendant's alleged failure to issue a receipt or bill of lading does not prevent the Carmack Amendment's application in the present case.
The plaintiff further counters that the Carmack Amendment does not apply to his claims against Air Van and North American Van because they acted as brokers, rather than motor carriers, under the contract. "[T]he Carmack Amendment does not apply to brokers." AP Trucking, Inc. v. MKM Transportation Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV 04 0488687 (February 26, 2008, Cosgrove, J.). A broker is defined under 49 U.S.C. § 13102(2) as "a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation." A motor carrier, by contrast, is defined under 49 U.S.C. § 13102(14) as "a person providing . . . transportation for compensation."
The plaintiff argues that pursuant to a written agreement between the parties, which he attached to his objection, the activities to be completed by Air Van and North American Van under the contract did not involve the actual carriage of goods across interstate lines. However, "[i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). Pursuant to the facts alleged in the plaintiff's complaint, Air Van and North American Van "were negligent and careless in their handling, packaging and shipping" of the plaintiff's property. There are no allegations within the confines of the pleadings that could imply that Air Van and North American Van acted as brokers, rather than motor carriers, under the contract.
As a result, pursuant to the foregoing case law, the plaintiff's claims against the defendants for common-law negligence and violations of CUTPA are preempted by the Carmack Amendment.
CONCLUSION
Based on the foregoing, the court hereby grants the defendant's motion to strike the plaintiff's complaint in its entirety.