Konst v. Florida East Coast Ry. Co.

• Decision Date: 04 January 1996
• Docket Number: No. 94-4440,94-4440
• Citation: 71 F.3d 850
• Parties: Harry N. KONST, Kalianthe Konst, his wife, Plaintiffs-Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, a/k/a Florida Express Carrier, Inc., a/k/a F.E.C. Railway Company, a/k/a F.E.C. Highway Dispatch Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 850

71 F.3d 850

Harry N. KONST, Kalianthe Konst, his wife, Plaintiffs-Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, a/k/a Florida Express Carrier, Inc., a/k/a F.E.C. Railway Company, a/k/a F.E.C. Highway Dispatch Company Defendant-Appellee.

No. 94-4440.

United States Court of Appeals Eleventh Circuit.

Jan. 4, 1996.

Richard B. Austin, Miami, FL, for appellants.

Lawrence Roberts, Hinshaw and Culbertson, Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and FAY, Senior Circuit Judge.

ANDERSON, Circuit Judge:

The common law has long recognized a rebuttable presumption that an item properly mailed was received by the addressee. Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir.1995). The "presumption of receipt" arises upon proof that the item was properly addressed, had sufficient postage, and was deposited in the mail. The presumption is, of course, rebuttable. ¹ The single issue raised in this appeal is whether the presumption can be invoked by railway customers attempting to prove they "filed" a claim with a rail carrier.

This case is on appeal from the district court's order granting the defendants' motion for summary judgment. Thus, we will review the grant of summary judgment de novo applying the same legal standard applied by the district court in the first instance. Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir.), modified on other grounds and reh'g denied, 30 F.3d 1347 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995). Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In March of 1990, appellants Harry and Kalianthe Konst ("the Konsts") contracted for the shipment of their furniture by rail from Tucson, Arizona, to Jupiter, Florida. Mr. Konst signed a bill of lading which constituted the contract of carriage. Section 2(b) of the bill of lading required that any claim for damages be filed with either the delivering or receiving rail carrier within nine months after delivery of the shipment to its destination. ²

The Konsts received their belongings on March 21, 1990, after having sustained heavy water damage in transit. Under the bill of lading, the Konsts had until December 21, 1990 (nine months) to file their claim with one of the rail carriers. In this case, the "receiving" rail carrier was Southern Pacific Transportation Company ("SP") and the "delivering" rail carrier was Florida East Coast Railway Company ("FEC"). Both are defendants-appellees. Both SP and FEC deny receiving a timely claim. ³ The Konsts argue that their claim should be deemed filed because they mailed a claim ⁴ on September 10, 1990, well within the nine month period, to SP at an address in San Francisco, California.

In their Memorandum in Opposition to Summary Judgment and in another document filed with the court entitled "Concise Statement of Material Facts Which Create an Issue," the Konsts asserted that the September 10, 1990, letter along with an attached loss and damage claim form were filed with SP. ⁵ Both pleadings were signed by Mr. Konst himself because the Konsts were proceeding pro se at the time. The defendants filed the affidavit of Byron MacDonald, an employee working in SP's Denver Claims Department. The affidavit stated that it was MacDonald's responsibility to "acquire each and every document involved in the carriage of a shipment which pertains to a freight claim case," that he searched his files, that he did not find the Konst's September 10 form, and that the company never received that form.

The defendants moved for summary judgment on the grounds that no claim form had been timely filed. The magistrate judge entered an order denying the defendants' summary judgment on the grounds that the Konsts had invoked the presumption of receipt by setting forth facts in two of their pleadings, both of which were signed by Mr. Konst. The district court, although initially adopting the magistrate judge's report and recommendation, rejected the argument on motion for reconsideration and held that the presumption should not apply in this context where a bill of lading requires a claim to be "filed" with a carrier.

On appeal, the appellees do not contend that the Konsts did not set forth facts sufficient to raise the presumption. Rather, the appellees argue that the presumption is not applicable in the instant context--i.e., where the "applicable federal regulation requires that claims be filed with the carrier." The appellees argue that delivery can never be sufficient to constitute filing. We are not persuaded by this argument.

The federal regulations governing the minimum requirements for making a damages claim against a common carrier describe the process as "filing" a claim. ⁶ However, the same regulations indicate that it is the receipt of the claim by the carrier, not the physical filing of the claim, which triggers the carriers' responsibilities to the claimant. The regulations establish the following: (1) the duty to acknowledge the receipt in writing or electronically within 30 days after the date of its receipt, 49 C.F.R. Sec. 1005.3(a); (2) the duty to create a separate file, 49 C.F.R. Sec. 1005.3(b); (3) the duty to cause the date of receipt to be recorded on the face of the claim; (4) the duty to "cause the claim file number to be noted on the shipping order," 49 C.F.R. Sec. 1005.3(b) ⁷; (5) the duty promptly to investigate the claim if such has not been done prior to receipt of the claim, 49 C.F.R. Sec. 1005.4(a); (6) the duty to "pay, decline or make a firm compromise settlement offer in writing or electronically to the claimant within 120 days after receipt of the claim," 49 C.F.R. Sec. 1005.5(a); and (7) the duty to record the amount of money and other details relevant to shipments which were salvaged, 49 C.F.R. Sec. 1005.6(c). Because receipt triggers all of the carriers' duties toward the claimant under the federal regulations, we construe the word "filing" in the bill of lading to mean receipt. This construction is consistent with Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900, 902 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357, 67 L.Ed.2d 340 (1981), which held that filing of a damages claim with a common carrier occurs when the claim has been delivered to and received by the carrier. ⁸

Having determined that the governing regulations contemplate receipt as the trigger for processing a claim, we see no reason that the presumption of receipt should not apply in this case. ⁹ It is simply a traditional means of weighing evidence in order to determine whether receipt occurred. The presumption is applied in many different contexts. See Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir.1995) (presumption used to determine whether party entitled to receive notice of final judgment or order had not received notice within twenty-one days and, thus, could invoke Fed.R.App.P. 4(a)(6) which allows a district judge to extend time to file notice of appeal); Wiley v. United States, 20 F.3d 222 (6th Cir.1994) (presumption applied to determine whether IRS sent taxpayer statutorily required notice of tax deficiency); American Casualty Reading Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 734 (2d Cir.1994) (presumption invoked to determine whether particular notice from insurer, required under Vermont insurance law, was received by Department of Motor Vehicles); Godfrey v. United States, 997 F.2d 335 (7th Cir.1993) (noting government entitled to rebuttable presumption in determining whether IRS mailed taxpayer's refund check when it raises proper evidence of mailing); In re East Coast Brokers & Packers, Inc., 961 F.2d 1543 (11th Cir.1992) (presumption may be utilized to determine whether creditor sent notice of intent to preserve trust benefits against a debtor as required by federal regulations and the Perishable Agricultural Commodities Act, 7 U.S.C. Sec. 499e(c)); Anderson v. United States, 966 F.2d 487 (9th Cir.1992) (applying the presumption where taxpayer presented evidence that she properly mailed tax return to IRS); In re Bucknum, 951 F.2d 204 (9th Cir.1991) (applying presumption to determine whether bankruptcy court had mailed debtor notice of time fixed for filing complaint to determine dischargeability of debt where notice required by bankruptcy rules); Doolin v. United States, 918 F.2d 15 (2d Cir.1990) (applying rebuttable presumption where IRS presented evidence it mailed taxpayer's refund check); In re Longardner & Associates, Inc., 855 F.2d 455 (7th Cir.1988), cert. denied, 489 U.S. 1015, 109 S.Ct. 1130, 103 L.Ed.2d 191 (1989) (applied in determining whether notice of plan confirmation hearing was received by creditor's counsel in Chapter 11 proceedings); Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939 (10th Cir.1987) (proper mailing of summons and complaint raises presumption); Betancourt v. FDIC, 851 F.Supp. 126 (S.D.N.Y.1994) (applying presumption to determine whether creditor received notice of appointment of receiver in context of FIRREA, 12 U.S.C. Sec. 1821(d)(5)(C)(ii), an exception to time limit for filing claims where creditors do not receive notice of receiver's appointment).

Some courts have not applied the rebuttable presumption of receipt in cases involving filing requirements. However, the cases doing so are distinguishable from the case at bar. In some cases, courts have construed filing to mean more than mere receipt, and, thus, have refused to...