United States District Court, E.D. Pennsylvania
ALTERRA AMERICA INS. CO., Plaintiff
DAILY EXPRESS, INC., et al. Defendants
STENGEL, C. J.
an action under the Carmack Amendment, a federal law
regulating interstate shipping. Plaintiff Alterra America
Insurance Company, brings its claim as the subrogee of Dozier
Crane & Machinery, Inc. (“Dozier Crane”), a
company that sells and leases construction equipment. In the
Spring of 2014, Dozier Crane hired Defendant Daily Express,
Inc. (“DXI”), to transport several components of
a crane from Iowa to Georgia. Near the end of the trip, the
defendant's driver discovered that one of the components
had been damaged. The plaintiff is seeking compensation for
the cost of the damaged part.
parties have filed cross motions for summary judgment: the
plaintiff requests partial summary judgment on its prima
facie case and the defendant moves for summary judgment
in full. For the following reasons, I will grant the
plaintiff's motion and deny the defendant's motion.
Spring of 2014, Dozier Crane bought a crane and several boom
components from RTL Equipment, Inc., a company that, like
Dozier Crane, sells and leases construction equipment.
(Pl.'s Mot. for Part. Summ. J. Ex. D (Goodwin Dep.)
7:16-18, Doc. No. 43-7; id. Ex. C (Email Chain, Mar.
31, 2014), Doc. No. 43-6; id. Ex. A (Watson Dep.)
10:11-18, Doc. No. 43-3.) Dozier Crane then hired DXI, a
carrier, to transport the parts from two RTL facilities in
Iowa to two of Dozier Crane's customers' facilities
in South Carolina and Georgia. (Watson Dep. 10:11-18).
Wilkinson, a truck driver for the defendant, picked up the
boom components from RTL on April 1, 2014, in Grimes, Iowa.
(Id. Ex. H (Wilkinson Dep.) 7:20-9:12, Doc. No.
43-10). He looked over the parts and saw no damage.
Id. at 12:23- 13:4, 13:20-14:13, 15:4-15. He signed
a bill of lading,  and did not note any damage. (Def.'s
Mot. for Summ. J. 24 & Ex. D (Grimes Bill of Lading, Apr.
1, 2014), Doc. No. 53-4.) The bill of lading stated that the
shipper “hereby certifies that he is familiar”
with and agrees to the carrier's applicable tariffs.
Id. One of those tariffs stated that the
carrier's liability was limited to $5, 000 per ton of
cargo weight. (Id. & Ex. E (Tariff: Released
Value-Released Rates, Item 848-15, issued Sept. 19, 1995,
revised Mar. 1, 2012), Doc. No. 53-5).
loading the truck, Wilkinson observed that the ties meant to
prevent a large cable that ran through the boom from swinging
or rubbing against the other equipment appeared inadequate
for the task. (Wilkinson Dep. 17:2-11, 39:10-20). The straps
were narrow plastic zip ties. Id. at 17:1-11.
Wilkinson voiced his concern to the RTL employees and they
reportedly replied, “That's the way we always do
it.” Id. at 39:17.
the drive, Wilkinson frequently checked that the load was
secure. (Wilkinson Dep. 96:5-97:17). He did not notice that
anything was loose or broken until he arrived in South
Carolina. Id. at 43:10-15, 48:21-49:24, 52:2-53:14.
There, after removing some of the parts from his truck, he
saw a rub mark on the boom and a cable hanging beside the
mark. (Id. at 35:15-36:21; Pl.'s Mot. for Part.
Summ. J. Ex. L (Photographs of Boom, Georgia), Doc. Nos.
43-14 & 43-15). He surmised-and experts later
confirmed-that the cable had broken loose from the plastic
zip ties and rubbed against the boom, wearing away paint and
metal. (Wilkinson Dep. 25:4-13, 34:7-17;Watson Dep.
37:16-21; Goodwin Dep. 31:12-20; Pl.'s Mot. for Part.
Summ. J. Ex. K (Rowe Dep.) 8:1-6, Doc. No. 43-23; Ex. N
(Shores Memo), Doc. No. 43-18).
called his supervisor and reported the damage. (Wilkinson
Dep. 68:24- 69:11). The worn spot on the boom made it unsafe
for use, and Dozier Crane would have to order a replacement.
(Pl.'s Mot. for Part. Summ. J. Ex. O (Kobelco Bulletin),
Doc. No. 43-19 (warning that damage that reduces a metal
strut's radius by more than eleven percent is
irreparable); Ex. M (Brack Dep.) 10-25, Doc. No. 43-17
(explaining that he measured the struts of the boom and the
radius had been reduced by more than eleven percent), Ex. N
(Shores Memo), Doc. No. 43-18, Ex. P (Heavy Iron, LLC
Estimate, Apr. 15, 2014), Doc. No. 43-20).
Crane's employee Rhonda Barkley emailed one of the
defendant's claims adjusters, Vicki Witter, about the
damage. (Pl.'s Br. in Opp. to Def.'s Mot. for Summ.
J. Ex. P (Emails between Barkley and Witter, Apr. 4, 2014),
Doc. No. 57-15 (describing the damage, to which Witter
responded with follow-up questions). The defendant then
investigated the incident. (Id. Ex. Q (Witter's
Claims Log), Doc. No. 57-16 (describing the arrangement of an
investigation into the damage)). At the conclusion of the
investigation, Dozier Crane sent the defendant an estimate
that stated that the cost of replacing the damaged parts was
$59, 994.75. (Id., Ex. R (Estimate by Heavy Iron,
LLC, Apr. 15, 2014), Doc. No. 57-17; Witter's Claims Log,
Doc. No. 57-16 (noting the estimated cost)).
Crane filed a claim with its insurer, Plaintiff Alterra
America Insurance Company, which now brings this action under
the Carmack Amendment as Dozier Crane's subrogee.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute is “material” only
if it might affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For a
dispute to be “genuine, ” a reasonable
fact-finder must be able to return a verdict in favor of the
non-moving party. Id.
moving for summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party asserting that a fact cannot be genuinely disputed
must support the assertion by citing relevant portions of the
record, including depositions, documents, affidavits, or
declarations, or showing that the materials cited do not
establish a genuine dispute, or showing that an adverse party
cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c). The court must decide “not whether
. . . the evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.”
Anderson, 477 U.S. at 252.
reviewing a motion for summary judgment, the court does not
make credibility determinations and must view facts and
inferences in the light most favorable to the party opposing
the motion. Siegel Transfer v. Carrier Express, 54
F.3d 1125, 1127 (3d. Cir. 1995); Anderson, 477 U.S.
at 255 (explaining that the court must draw “all
justifiable inferences” in favor of the nonmoving
party). The nonmoving party, however, cannot avert summary
judgment with speculation or conclusory allegations; rather
it must present clear evidence from which a jury can
reasonably find in its favor. Ridgewood Bd. of Educ. v.
N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999).
Carmack Amendment to the Interstate Commerce Act makes
interstate carriers strictly liable to the shipper for
damages to the property they transport unless they can prove
certain defenses. See 49 U.S.C. §
14706; Certain Underwriters at Lloyd's
of London v. UPS of Am., Inc., 762 F.3d 332, 335 (3d
Cir. 2014). The plaintiff moves for summary judgment against
the defendant carrier on its prima facie case under
the Carmack Amendment, arguing that there is no genuine
dispute that the boom the carrier transported was damaged
during the trip. The defendant opposes the plaintiff's
motion and moves for summary judgment in its own right,
arguing that the plaintiff has not presented sufficient
evidence for a reasonable jury to conclude that the damage
occurred during, rather than before, the boom was
transported; that it is entitled to judgment as a matter of
law on its “act of shipper” defense; that the
plaintiff did not satisfy the Carmack Amendment's notice
requirement; that the plaintiff did not suffer an injury; and
that damages are limited by the defendant's tariff.
conclude that the record before me does not support the
defendant's arguments. Rather, I hold that the plaintiff
is entitled to summary judgment on its prima facie
case, and the parties are permitted to proceed to trial on
the issues raised in the defendant's motion, as well as
any other applicable defenses.
Prima Facie Case
establish a prima facie case against a carrier under
the Carmack Amendment, a shipper must prove (1) delivery of
goods to the initial carrier in good condition, (2) damage of
the goods before delivery to their final destination, and (3)
amount of the damages.” Paper Magic Group, Inc. v.
J. B. Hunt Transp., Inc., 318 F.3d 458, 461 (3d Cir.
2003). The parties agree that the plaintiff has presented
uncontroverted evidence supporting the second and third
elements, but the defendant challenges the plaintiff's
ability to show that there is no dispute about the first
element-that the parts were delivered to the defendant in
evidence before me, I find that there is no genuine dispute
about the first element either. The plaintiff presents
uncontroverted evidence from Steven Wilkinson that the boom
was not damaged when he picked it up in Iowa. (Wilkinson Dep.
12:23- 13:4.) His inspection in Grimes consisted of
“looking at it [and] walking all the way around
it.” Id. 13:20-14:13. When he was strapping
the boom to his truck, he looked at it again. Id.
“There was no bends, no cuts, nothing like that in
it.” Id. When he made the second stop in
Swisher, Iowa, he further handled the boom in order to attach
additional equipment, and again saw no defects. Id.
15:4-15. He signed the bill of lading without noting any
damage because “there was nothing other than normal
scratches and rust and stuff . . . . Nothing was
damaged.” Id. 77:23-78:22. The photos he took
of the parts on his truck in Iowa do not reveal any damage.
(Id. 19:11-16; Pl.'s Mot. for Part. Summ. J. Ex.
J (Photographs of Boom, Iowa), Doc. Nos. 43-12 & 43-13).
reached South Carolina three days later and removed some of
the parts from his truck, he saw a black “rub
mark” on the otherwise yellow-painted boom.
(Id. Ex. L (Photographs of Boom, Georgia), Doc. Nos.
43-24 & 43-15; Wilkinson Dep. 36:18-21). He called his
supervisor and reported the damage. Id. 68:24-69:11.
He then delivered the boom to one of Dozier Crane's
customers in Pooler, Georgia. When the customer saw the boom,
he noted “an obvious fresh rub mark where the paint had
been rubbed off down to the bare metal and it was shiny bare
metal so it was-you know, appeared to have just
happened.” (Rowe Dep. 8:1-6).
defendant argues that this evidence does not conclusively
show that the boom was in good condition when Wilkinson
loaded it in Grimes; rather, it argues that a reasonable jury
could conclude that Wilkinson did not notice the damage
before the trip because the damage could not be observed
without specialized inspection. But the testimony that the
defendant uses to support its argument is not about a
boom's hidden damage. The testimony of RTL's
corporate representative, Mark Watson, is about the proper
way to evaluate the damage that occurred after the travel. He
was asked the following question:
Q: And I think you said earlier, to your mind the photographs
weren't good enough to allow you to determine how badly
damaged the boom was?
(Watson Dep. 57:2-4.) At this point in Watson's
testimony, there had been no discussion of the boom being
damaged before the trip. It is therefore clear that this
question refers to the damage observed after the trip. Mr.
A: That is correct. A photograph-you cannot determine that
information from photographs. You would have to put say ...