Caspe v. Aaacon Auto Transport, Inc.

• Decision Date: 10 September 1981
• Docket Number: No. 80-1604,80-1604
• Citation: 658 F.2d 613
• Parties: Lewis W. CASPE and Bernice W. Caspe, Appellees, v. AAACON AUTO TRANSPORT, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 613

658 F.2d 613

Lewis W. CASPE and Bernice W. Caspe, Appellees, v. AAACON AUTO TRANSPORT, INC., Appellant.

No. 80-1604.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1981.

Decided Sept. 10, 1981.

Ralph J. Zola, New York City, for appellant; Jack L. Cohen, Forest Hills, N. Y., argued, on the brief.

Davis, Hockenberg, Wine, Brown & Koehn, Jonathan C. Wilson, argued, and Jill S. Rolek, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, ROSS, Circuit Judge, and VAN PELT, ^* Senior District Judge.

VAN PELT, Senior District Judge.

This action was commenced by plaintiffs under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 20(11), ¹ when Aaacon Auto Transport, Inc. failed to deliver their car ² from Palm Springs, California, to Des Moines, Iowa. The trial court found in favor of the plaintiffs and their car insurance company which was an intervenor in the action. Although defendant lists eleven issues on appeal, some of them appear to be inapplicable ³ and others were never briefed and we consider them to be waived or abandoned. ⁴ We believe that the following is a fair statement of the issues before us: Whether the district court erred in awarding (a) an amount in excess of $50 for lost personal property; (b) accountants' fees for reconstructing lost business records; and (c) attorneys' fees as a result of defendant's vexatious conduct.

The facts of this case are very simple. Mr. and Mrs. Caspe own a home both in Des Moines, Iowa, and in Rancho Mirage, California (which the parties have referred to as Palm Springs because that is the mailing address). Lewis Caspe contracted with Aaacon to pick up their 1975 Cadillac in Des Moines on December 28, 1974 and deliver it to Palm Springs where they spent the remainder of the winter. When they were ready to return to Des Moines, Mr. Caspe again contacted Aaacon about transporting the car and entered into a contract whereby Aaacon would pick up the 1975 Cadillac in Palm Springs on April 1, and deliver it on approximately April 4, 1975, to Des Moines.

The bill of lading signed by Mr. Caspe contained a clause stating:

Unless a greater value is declared thereon above and additional tariff paid, shipper agrees that the declared value of all personal property in the vehicle is under fifty dollars and hereby releases carrier from all obligations for loss or damage thereto in excess of fifty dollars. In no event shall personal property exceed a designated value of $250.00.

The freight bill given to Caspe incorporated the terms of the bill of lading.

The car was never delivered as scheduled. It was found almost three months later abandoned, presumably by the driver hired by Aaacon, in the Atlanta, Georgia, airport parking lot. Mr. Caspe had testified an Aaacon representative had told him he could fill the trunk with anything he pleased and he had done so. When the car was recovered, the trunk contained a few of the Caspe's possessions, but the majority were missing including cameras, clothing, sporting equipment and gift items. Also missing was a briefcase containing certain commodities records which Mr. Caspe had placed in the interior of the car with the driver's permission. The car was ultimately sold by the Caspe's auto insurance company to the highest salvage bidder.

After several months of unsuccessful attempts to recover damages from Aaacon, Aaacon advised the Caspes that the extent of its liability was limited to $50. The Caspes filed suit in state district court in March of 1976. Defendant had the suit removed in April to federal court. The case was not tried until November of 1979, approximately three and one-half years after suit was filed. This was in large part due to Aaacon's constant resistance and footdragging, including failure to comply with an order requiring production of documents and answers to interrogatories. The actual trial to the court, not including preliminary matters in chambers, took less than four hours to complete. The district court found that the limitation of liability clause in Aaacon's bill of lading was invalid because it failed to comply with the applicable tariff and Interstate Commerce Commission (ICC) order, and awarded plaintiffs $6,667.16 for their lost personal property, $1,050.00 for accounting fees to reconstruct the lost records, and attorneys fees.

Turning first to appellant's contention that its liability for personal property was limited to $50.00, we believe that the district court was correct in finding that the limitation clause was void for failure to fully comply with the tariff and ICC order. The tariff states in part:

(b) The bill of lading and shipping order and/or receipt issued for any shipment accepted for transportation at the released rates established and maintained under the authority of this order shall have printed in bold-face type on the face thereof, a statement reading substantially as follows:

"Unless a greater value is declared hereon, the shipper hereby agrees and declares that the value of the baggage, personal effects and sporting equipment described herein is released to a value not exceeding $50 per shipment."

(c) The released value must be entered on the shipping order and bill of lading and/or receipt in the following form:

"The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $ per shipment."

The released rates order contained the same provisions.

It seems obvious that the purpose of putting a limitation clause in bold-face type is to make it stand out and attract the reader's attention. It seems equally obvious that putting the entire agreement in densely packed bold-face type, such as Aaacon did, with the limitation clause buried in the middle of the agreement, does not achieve that purpose. Additionally, Aaacon's agreement provided no space for the shipper to declare the value of the property, as is contemplated by the tariff and order, and which would be a further means of attracting the shipper's attention by causing him to focus on the value of the shipment. We have no difficulty in finding the district court correctly decided that Aaacon's limitation of liability did not meet the required standards and was invalid under 49 U.S.C. § 20(11).

Turning to the issue of accountants' fees, the district court awarded the fees for reconstructing lost commodities records without any explanation of the basis for doing so. After discussing the invalidity of the limitation of liability clause, the district court simply stated:

Defendant is liable to plaintiffs for the loss of personal property in the amount of $6,667.16 and is liable to plaintiff Lewis Caspe in the additional amount of $1,050.00 for reconstructing the lost records.

In a supplemental brief requested by this court at oral argument, because neither party had briefed this issue, Aaacon has argued that the accountants' fees constitute special damages which are not recoverable. It contends that reconstruction

was not the necessary result of said loss. If the records had been copied beforehand, the reconstruction would not have been required.

Appellees in their supplemental brief contend that the fees represent actual damages, and that even if they are special damages they are still recoverable.

In general, actual damages are allowed when they are foreseeable and special damages are allowed only if actual notice was given the carrier of the possibility of injury. Reed v. Aaacon Auto Transport, Inc., 637 F.2d 1302 (10th Cir. 1981); Hector Martinez & Co. v. Southern Pacific Transportation Co., 606 F.2d 106, 108-09 (5th Cir. 1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980). The Tenth Circuit Court of Appeals considered the question of actual, special and consequential damages in Reed, supra. That case involved a similar situation where Aaacon's driver failed to deliver a car and it was found some time later at a sportscar dealership. However, the car was in such deplorable condition that the engine was ruined and restoration was impossible. The lower court had awarded special and consequential damages consisting of compensation to Reed for the loss of use of his automobile, and the reimbursement of monies expended in locating and ultimately disposing of the car. This was in spite of the fact that Aaacon's freight bill-order form stated that "Aaacon is not responsible for car rentals or any other special damages, including nonuse of the vehicle." The lower court found that this was an invalid attempt to limit liability, and the Court of Appeals agreed. ⁵ It concluded that Reed's expenses, including storage fees, damage estimate fees, and transactional costs associated with the ultimate disposition of the automobile, were the natural and probable consequence of the damage done to the automobile, and need not be classified as "special damages."

Reed, supra, at 1306.

We have been unable to find a single case dealing with accounting fees as a measure of damages, whether actual or special. Although the harm suffered here was not as foreseeable as the necessity of renting a car upon failure of delivery or costs to determine salvagability upon recovery, and the question is a close one, we believe that the accounting fees under the facts of this case constituted actual damages which may be recovered by plaintiffs.

Our conclusion is based upon these factors and closely follows Reed, supra. The Carmack Amendment provides that a shipper is entitled to recover his full actual loss. See Kaiser Aluminum Chemical v. Illinois Central Gulf Railroad Co., 615 F.2d 470, 474 (8th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 249, 66 L.Ed.2d 116 (1981). A carrier may only limit its liability by establishing a rate schedule dependent upon value. The district court here correctly found that Aaacon's attempt to limit its liability was invalid; thus any actual damages are recoverable. The court in Martinez,...