Blair v. Delta Air Lines, Inc., 71-1721-Civ-CF.

• Decision Date: 31 May 1972
• Docket Number: No. 71-1721-Civ-CF.,71-1721-Civ-CF.
• Citation: 344 F. Supp. 360
• Parties: Graham L. BLAIR, Plaintiff, v. DELTA AIR LINES, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

344 F. Supp. 360

Graham L. BLAIR, Plaintiff, v. DELTA AIR LINES, INC., a Delaware corporation, Defendant.

No. 71-1721-Civ-CF.

United States District Court, S. D. Florida.

May 31, 1972.

COPYRIGHT MATERIAL OMITTED

Richard W. Aschenbrenner, of the Law Offices of Fred A. Jones, Jr., Miami, Fla., for plaintiff.

William O. Mehrtens, Jr., of Smathers & Thompson, Miami, Fla., for defendant.

ORDER ON MOTION TO DISMISS AND

MOTION FOR SUMMARY JUDGMENT

FULTON, Chief Judge.

This cause came before the Court upon the defendant's motions to dismiss and for summary judgment. The original complaint was filed in state court and was removed to this Court by the defendant on November 9, 1971, on the basis of diversity of citizenship in accord with 28 U.S.C. § 1332.

The plaintiff alleges in the original complaint that the defendant airline was negligent in shipping and transporting the casket and remains of the plaintiff's deceased wife from Miami to Vicksburg, Mississippi. Plaintiff claims that as a result of defendant's negligence in loading and unloading the shipment was damaged by rain. Damages are sought for physical damage to the casket, the attempted restoration of the deceased and great mental anguish to the plaintiff. The defendant's answer set forth as an affirmative defense the tariff filed with the Civil Aeronautics Board hereinafter C.A.B. as constituting an absolute bar, or alternatively a limitation upon the damages recoverable by the plaintiff. Thereafter, with leave of Court the plaintiff filed an amended complaint. Count I thereof alleges substantially the same facts as the original complaint, charging the defendant with ordinary negligence. Count II alleges gross negligence on the part of the defendant through willful, wanton and malicious acts and through want of care or attention to duty or great indifference to the person, property or rights of the plaintiff and includes a claim for punitive damages.

Defendant's motions to dismiss and for summary judgment were filed May 4, 1972, and were accompanied by affidavits in support thereof, a copy of the airbill under which the remains of plaintiff's deceased wife were shipped, and a copy of the tariff of Delta Air Lines on file with the C.A.B., which tariff was in effect on the date of the shipment. Airbill No. 006-MIA-1311 2712 was issued May 3, 1970, as to one casket of human remains of Agnes Blair weighing 265 pounds at a charge of $54.48. No specific value was declared. The "Conditions of Contract" contained in the airbill provided, inter alia, as follows:

2. It is mutually agreed that the shipment described herein is . . . subject to governing classifications and tariffs in effect as of the date hereof which are filed in accordance with law. Said classifications and tariffs are available for inspection by the parties hereto and are hereby incorporated into and made a part of this contract.

3. Declared value is agreed and understood to be not more than the value stated in the governing tariffs for each pound on which charges are assessed, unless a higher value is declared herein and applicable charges paid thereon.

The provisions of the pertinent Official Air Freight Rules, Tariff No. 1-B filed with the C.A.B., are contained in Section III—Terms of Transportation and Section IV—Transportation Charges. "Exclusions From Liability" are set forth in Section III, Rule No. 30, and provide as follows:

(B) The carrier shall not be liable for loss, damage, deterioration, destruction, theft, pilferage, delay, default, misdelivery, non-delivery or any other result not caused by the actual negligence of itself, its servant or representative, acting within the scope of their authority. . . .

(C) . . . the carrier shall not be liable in any event for any consequential or special damages arising from transportation subject to tariffs governed by these rules, whether or not the carrier had knowledge that such damages might be incurred. (Emphasis added).

Rule No. 32 of Section III provides a "Limit of Liability" stating:

(A) In consideration of carrier's rate for the transportation of any shipment, which rate, in part, is dependent upon the value of the shipment as determined pursuant to Rule 52, the shipper and all parties having an interest in the shipment agree that the value of the shipment shall be determined in accordance with the provisions of Rule 52 and that the total liability of the carrier shall in no event exceed the value of the shipment as so determined.

(B) By tendering the shipment to carrier for transportation, the shipper . . . agrees to the limitations set forth in these rules and regulations . . .

(C) Except as provided in paragraphs (D) and (E) of this Rule not applicable to this cause, the total liability of the carrier shall in no event exceed—

1. The value of the shipment as determined pursuant to Rule 52, or

2. . . . the actual value of the shipment, or

3. The amount of any damages actually sustained,

whichever is the least (emphasis added).

Rule No. 52 of Section IV states "Charges for Declared Value" as follows:

(A) Except as provided in paragraph (D) of this rule exception not applicable to this case, a shipment shall have a declared value of $0.50 per pound (but not less than $50.00) unless a higher value is declared on the Airbill at the time of receipt of the shipment from the shipper . . .

MOTION TO DISMISS

The defendant moves to dismiss the amended complaint pursuant to Rule 12(b) (6), Fed.R.Civ.P., for failure to state a claim in that (1) punitive damages sought in Count II of the amended complaint are not recoverable in this action under Florida substantive law, and, alternatively, (2) the tariff filed in this cause provides that plaintiff does not have a cause of action for his claim for tort damages of mental pain and anguish arising from the handling of his wife's remains by the carrier. As to the first basis of the motion to dismiss, the Supreme Court of Florida has held that in cases founded in tort punitive damages may be recovered where the wrongful act implies malice or where through want of care, attention to duty or great indifference to the rights of others, malice may be imputed. Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). In that case, the Court stated that the right to recover punitive damages is particularly appropriate where there has been a tortious interference with dead human bodies and resulting mental anguish to the surviving relatives. Kirksey v. Jernigan, supra, at 189.

The Fifth Circuit has considered the substantive Florida law of punitive damages, Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962), and has held that, even as to claims for punitive damages for a tortious violation of a contract, it is error to dismiss a claim for punitive damages in diversity cases applying Florida law for failure to state a claim on the basis of barebones pleadings where the complaint sets forth facts, although in broad, general terms, sufficient to support the claim. Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970); Shull v. Pilot Life Insurance Co., 313 F.2d 445 (5th Cir. 1963); Cf. Stanton v. Texas Company, 249 F.2d 344 (5th Cir. 1957); Gay v. Heller, 252 F.2d 313 (5th Cir. 1958). Further, the established rule in this Circuit is that:

a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim. Cook & Nichol v. Plimsoll Club, 451 F.2d 505, 506 (5th Cir. 1971)

Tested by this standard, Count II of the amended complaint sets forth sufficient facts to state a claim for punitive damages under Florida law and in all respects meets the requirements of Rule 8(a) Fed.R.Civ.P.

As to the second basis of the motion to dismiss, the defendant relies on the tariff filed with the C.A.B. to defeat the plaintiff's claim for mental anguish as a matter of law. In ruling upon a motion to dismiss, the Court is limited to matters appearing on the face of the complaint. Rule 12(b) provides:

. . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . .

Since the tariff relates to matters outside the pleadings, defendant's motion to dismiss the amended complaint is denied as to both grounds, and the second basis for the motion shall be considered with defendant's motion for summary judgment.

MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Rule 10(J), the defendant has filed a statement of material facts as to which there is no genuine issue to be tried reciting the plaintiff's allegations of damages as to the casket, the restoration of the deceased and the plaintiff's mental anguish. The plaintiff has filed no opposing affidavits setting forth specific facts demonstrating that there is a genuine issue for trial, and in fact only a question of law is presented. The basis for the defendant's motion for summary judgment is that the tariff filed with the C.A.B. pursuant to 49 U.S.C. § 1373 constitutes a limitation upon the damages recoverable by the plaintiff as a matter of law and that under the tariff provisions cited earlier the maximum liability of the defendant is $132.50. The plaintiff makes the following assertions: (1) that state law, not federal, is applicable to this lawsuit; (2) that this claim does not fall into the category covered by the defendant's tariff; and (3) that the tariff cannot bar a claim for gross negligence and that if such a bar exists, it is against public policy.

First, it is clear that a tariff, required by law to be filed, constitutes the law and is not merely a contract, Carter v. American Telephone and Telegraph Co., 365 F.2d 486, 496 (5th Cir. 1966); ...