Opp v. Wheaton Van Lines, 99-3015

• Citation: 231 F.3d 1060
• Decision Date: 03 November 2000
• Docket Number: No. 99-3015,99-3015
• Parties: (7th Cir. 2000) Shelley Opp, an individual, Plaintiff-Appellant, v. Wheaton Van Lines, Incorporated, d/b/a Wheaton World Wide Moving, an Indiana corporation, and Soraghan Moving & Storage, Incorporated, an Illinois corporation, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1060

231 F.3d 1060 (7th Cir. 2000)

Shelley Opp, an individual, Plaintiff-Appellant, v. Wheaton Van Lines, Incorporated, d/b/a Wheaton World Wide Moving, an Indiana corporation, and Soraghan Moving & Storage, Incorporated, an Illinois corporation, Defendants-Appellees.

No. 99-3015

In the United States Court of Appeals For the Seventh Circuit

Argued May 9, 2000

Decided November 3, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 7781--Arlander Keys, Magistrate Judge. [Copyrighted Material Omitted]

Before Manion, Kanne, and Rovner, Circuit Judges.

Manion, Circuit Judge.

Shelley Opp sued two carriers, Wheaton Van Lines and Soraghan Moving and Storage, alleging fraud and seeking to recover the full value of her property that was damaged during shipment. The carriers moved for summary judgment, arguing that there was no evidence of fraud, and that their liability for damaging Ms. Opp's property was limited as set forth in the bill of lading that was signed by her ex-husband, Mr. Opp. The district court granted the defendants' motions, finding no evidence of fraud, and concluding that Mr. Opp had the authority to bind Ms. Opp to the terms of the bill of lading. Ms. Opp appeals. We affirm the grant of summary judgment on the fraud claim, but reverse and remand on the property damage claim.

I.

Shelley Opp lived in California with her husband, Richard Opp, until they sought a divorce in August 1996, and Ms. Opp moved to Illinois. In June 1997, Ms. Opp contacted Soraghan Moving and Storage (an agent of Wheaton Van Lines) to move her personal property from California to Illinois. She provided Soraghan with a list of her items, and Linda Kloempken (a Soraghan employee) phoned Ms. Opp to give her an estimate of the moving charges. Ms. Opp then notified Kloempken that she wanted to insure her property for its full value of $10,000.00. And Soraghan movers conducted a "walk-through" of the California residence at which Mr. Opp presided at Ms. Opp's request.

Kloempken then faxed to Ms. Opp an "Estimate/Order for Service" form which included the following: "NOTICE: ACTUAL DECLARED VALUE MUST BE DETERMINED BY SHIPPER PRIOR TO LOADING AND SO INDICATED IN THE BILL OF LADING." The estimate form also contained the following printed and handwritten information: "SHIPPER INTENDS TO DECLARE A VALUATION OF: /s (shipper to advise $10,000 Full Replacement 85, 65, 45)." Ms. Opp signed the form. According to Kloempken, she explained to Ms. Opp that the phrase "shipper to advise" meant that Ms. Opp or her representative must advise the mover at the time the shipment was picked up whether Ms. Opp would like full replacement coverage of $10,000.00. According to Ms. Opp, she was never informed that the person releasing her property in California would have to sign anything, declare any value for her property, or do anything other than give the movers access to her belongings. The estimate form also provided a location where Ms. Opp could designate someone as her "true and lawful representative," but she made no such designation.

On the day of the move, the movers in California called Ms. Opp in Illinois to notify her that their arrival at the California home would be delayed by a half-hour due to a flat tire. Ms. Opp then phoned Mr. Opp at his office and asked him to go to the house, open the door, and "let the movers in." Ms. Opp also told Kloempken that "someone" would be at the California home to give the movers access to her property. While the movers were loading Ms. Opp's property from the California home, Mr. Opp signed the bill of lading on a line that indicated that he was Ms. Opp's authorized agent, and he allegedly agreed to limit the carriers' liability for her property at $.60 per pound.¹ Mr. Opp also signed an inventory of the property that indicated that he was its "owner or authorized agent." After the movers left, Mr. Opp called Ms. Opp to tell her that the movers "picked up your stuff."

On July 8, 1997, the truck carrying Ms. Opp's belongings was struck by a train, damaging most of her property. On that same day, a Soraghan employee (Pamela Comparin) phoned Ms. Opp to request her to bring a check to Soraghan's office to pay for the shipment. Ms. Opp brought a cashier's check to the office that same day. Comparin notified Ms. Opp about the damage to her property on July 14, 1997, and she returned Ms. Opp's check on July 15.

Ms. Opp inspected her damaged property on July 15, and estimated its full replacement value to be over $10,000.00. The carriers claimed that their liability was limited according to the bill of lading, and they tendered a check to Ms. Opp in the amount of $2,625.00, which she never cashed or returned.

Instead, Ms. Opp sued the carriers pursuant to the Carmack Amendment, 49 U.S.C. sec. 11707 et seq., seeking (in Count I of her Amended Complaint) to recover $10,000.00 for property damage, and alleging (in Count II of her Amended Complaint) that Soraghan committed fraud by requesting an immediate payment for the shipment on the same day that it allegedly learned about the damage to Ms. Opp's property. The carriers moved for summary judgment, arguing that Mr. Opp had the authority to sign the bill of lading and limit the carriers' liability. Soraghan also moved for summary judgment on the fraud claim, arguing that there was no evidence of fraud, and that Ms. Opp sustained no damages because Soraghan returned her uncashed check seven days after she delivered it to Soraghan. The district court granted the carriers' motions, finding that Mr. Opp had the actual and apparent authority to sign the bill of lading as Ms. Opp's agent, and concluding that Ms. Opp failed to establish a triable issue of fact to support her fraud claim. Ms. Opp appeals.

II.

"We review the district court's entry of summary judgment de novo," Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), viewing all of the facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party. Id. Summary judgment is proper if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999) (citing Fed. R. Civ. P. 56(c)). "A genuine issue for trial exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole." Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 149 (7th Cir. 1994).

A. The Property Damage Claim

Ms. Opp argues on appeal that the district court erred in granting summary judgment for the carriers on her claim of damages in the amount of $10,000.00--the full value of her property. She asserts that there is a genuine issue of material fact as to whether the carriers satisfied the conditions necessary to limit their liability under the Carmack Amendment. The Carmack Amendment makes carriers who transport goods liable for the "actual loss or injury to the property caused by [the receiving or delivering carrier]," 49 U.S.C. sec. 14706(a)(1), unless the carrier does the following to limit its liability: (1) maintain an appropriate tariff pursuant to 42 U.S.C. sec. 13710(a)(1), Jackson v. Brook Ledge, Inc., 991 F.Supp. 640, 645 (E.D.Ky. 1997); (2) obtain the shipper's agreement as to her choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment. Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir. 1987); 49 U.S.C. sec. 14706(c)(1)(A). According to Ms. Opp, the district court's decision to grant summary judgment was improper because she never authorized Mr. Opp to sign the bill of lading and limit the carriers' liability, and thus the carriers never obtained her agreement as to her choice of liability.

Ms. Opp's property damage claim requires us to apply the principles of agency law to determine whether Mr. Opp had the authority to act as Ms. Opp's agent and limit the carriers' liability when he signed the bill of lading. The district court recognized that "[i]t is not clear whether actions arising from the Carmack Amendment are governed by the federal common law of agency, or by the state common law," Opp v. Wheaton Van Lines, Inc., 56 F.Supp.2d 1027, 1035 n. 6 (N.D. Ill. 1999), and it applied Illinois law because "federal and Illinois laws of agency both recognize that an agent's authority can be actual or apparent." Id. The parties do not challenge the district court's application of Illinois law, and we will apply it as well. We also note that the Illinois law of agency, as well as the federal common law of agency, accord with the Restatement. See Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 865-66 n. 15 (7th Cir. 1998) (the federal courts have relied on the Restatement of Agency as a valuable source for establishing the federal common law of agency); see also National Diamond Syndicate, Inc. v. United Parcel Service, Inc., 897 F.2d 253, 259 (7th Cir. 1990) (the Restatement accords with Illinois agency principles of actual and implied authority); see also Emmenegger Const. Co., Inc. v. King, 431 N.E.2d 738, 742-43 (Ill. App. Ct. 1982) ("The law of agency in Illinois is in accord with the Restatement of Agency (Second) on the subject of apparent authority.").

"An agent's authority may be either actual or apparent, and actual authority may be express or implied." C.A.M. Affiliates, Inc. v. First American Title Ins. Co., 715 N.E.2d 778, 783 (Ill. App. Ct. 1999). And "[o]nly the words or conduct of the alleged principal, not the alleged agent, establish the [actual or apparent] authority of an agent." Id.

We first note that the record clearly demonstrates that Mr. Opp never received the express authority to represent Ms. Opp and to limit the carriers' liability. "An agent...