Cook v. N.Y. Moving & Storage
| Decision Date | 28 September 2020 |
| Docket Number | Case No. 2:19-cv-00098-DBB-JCB |
| Parties | CATHERINE J. COOK, Plaintiff, v. NEW YORK MOVING & STORAGE, INC. d/b/a NY MOVING GROUP; NY INTERNATIONAL SHIPPING, INC. d/b/a NY MOVING GROUP; NY INTERNATIONAL SHIPPING, LLC d/b/a NY MOVING GROUP; DEPENDABLE ENTERPRISES, INC. d/b/a DEPENDABLE MOVING; WHITE GLOVE MOVING AND STORAGE, INC.; and DOES 1 THROUGH 10, Defendants. NEW YORK MOVING & STORAGE, INC.; and NY INTERNATIONAL SHIPPING, INC., Cross Claimants, v. DEPENDABLE ENTERPRISES, INC.; and WHITE GLOVE MOVING AND STORAGE, INC., Crossclaim Defendants. |
| Court | U.S. District Court — District of Utah |
Plaintiff hired Defendant New York Moving & Storage (NYMS) to move her household effects from New York to Utah. When Plaintiff's household items arrived in Utah, she discovered many items damaged and others missing. Movers or goods carriers are generally liable for damage to goods entrusted to their transport. However, in exchange for lower shipping rates, they may limit their liability if certain conditions are met.
Before the court are three motions for partial summary judgment primarily addressing whether Defendants effectively limited their liability for the damage to Plaintiff's shipment.1 Defendant White Glove Moving & Storage (White Glove) also requests dismissal of claims against it, contending it played no part in the move.2 Having considered the briefing and relevant law, the court grants Defendants' motions for partial summary judgment and denies Plaintiff's motion for partial summary judgment.
On April 1, 2014, New York Moving and Storage (NYMS) adopted a set of standard contractual rates, classifications, rules, and practices applicable to interstate transportation of household goods.3 In this document, referred to as a tariff, NYMS requires consumers ("shippers") to select one of two types of protection for their shipped goods—standard or extended coverage.4 The tariff defines "Coverage" to mean "the type of protection selected by the shipper for their goods, and is not to be confused with the mandatory insurance requirements of a licensee." Under the section "Payment Terms," the tariff provides:5
FULL REPLACEMENT INSURANCE RATES ($5000 min coverage)
| Deductible |
| up to 30 days |
| Above 30 days needs to |
| purchase storage insurance |
| $0 |
| 3% + $65 processing |
| 1.50% |
| $500 |
| 2.5% + $65 processing |
| 1% |
In late 2016, Plaintiff, the shipper, sought help moving furniture, paintings, and antiques, among other household goods, from New York to Utah.6 Plaintiff selected the services of the New York Defendants for the move.7 On September 29, 2016, the New York Defendants sent Plaintiff a written estimate (the Binding Estimate) that estimated the volume of items to be shipped at 1033 cubic feet and the cost at $6,160.8 The Binding Estimate provided two "Valuation Coverage" options: (1) "Standard movers minimum liability coverage of $0.60 per pound per lost/damaged article;" and (2) 9 The Binding Estimate also provided the following in red ink (the rest of the Binding Estimate was in black or blue ink):
WARNING: If a moving company loses or damages your goods, there are 2 different standards for the company's liability based on the types of rates you pay. BY FEDERAL LAW, THIS FORM MUST CONTAIN A FILLED-IN ESTIMATE OF THE COST OF A MOVE FOR WHICH THE MOVING COMPANY IS LIABLE FOR THE FULL (REPLACEMENT) VALUE OF YOUR GOODS in the event of loss of, or damage to, the goods. This form may also contain an estimate of the cost of a move in which the moving company is liable for FAR LESS than the replacement value of your goods, typically at a lower cost to you. You will select the liability level later, on the bill of lading (contract) for your move. Before selecting a liability level, please read "YourRights and Responsibilities When You Move," provided by the moving company, and seek further information at the government website www.protectyourmove.gov.10
Plaintiff eventually signed the Binding Estimate on a line immediately underneath the foregoing red-ink warning.11
On October 10, 2016, Plaintiff emailed NYMS and expressed concern about the quoted price changing: 12 Plaintiff also asked for pricing at various higher cubic foot volumes.13 That same day, NYMS responded to her email and provided the higher cubic foot volume pricing Plaintiff requested.14
On October 13, 2016, Plaintiff emailed NYMS with more cost concerns, stating, 15
On October 19, 2016, NYMS arrived to pick up Plaintiff's household goods. After loading the shipment, NYMS provided Plaintiff a Uniform Household Goods Bill of Lading and Freight Bill (Bill of Lading). The NYMS foreman indicated Plaintiff had fifteen minutes to review and complete the Bill of Lading or delay charges would accrue. The Bill of Lading incorporated NYMS's tariffs and noted they would be provided on request.17 It also contained two options for liability in a provision explaining, in red ink:
CARRIER LIABILITY - IT IS NOT INSURANCE.18
Option 1 provided "Full (Replacement) Value Protection," which was "the most comprehensive plan available for protection of your goods."19 Under this option, the cost of the move would be "composed of a base rate plus an added cost reflecting the cost of providing this full value cargo liability protection" to the shipment.20 Option 1 provided a space for Plaintiff to declare the value of the shipment and noted that a nominal shipment value of $6,000 would be applied if Plaintiff did not declare a value. Plaintiff did not declare a value or select Option 1.21
Option 2 was the "WAIVER of Full (Replacement) Value Protection," which offered a "lower level of protection . . . at no additional cost beyond the base rate."22 This option provided "only minimal protection that is considerably less than average value of household goods."23 The settlement value for a lost or damaged item would be the weight of the article multiplied by $0.60. Plaintiff signed her initials next to the statement: "I wish to Release My Shipment to a MAXIMUM VALUE of 60 Cents per Pound per Article."24 Plaintiff also signed Option 2 acknowledging her waiver of the Full Value Protection option and indicating receipt of the "Your Rights and Responsibilities When You Move" brochure.25 NYMS then moved the goods to storage, combined them with some of Plaintiff's other stored goods, and then temporarily housed the shipment before the cross-country move.26
On October 22, 2016, Plaintiff indicated she was heading to Utah and requested a final assessment of the volume of the shipment.27 Plaintiff also stated she "will have to pass on the insurance, so deduct that," thanked NYMS for its work, and noted, "If the big mover is that cautious, I'm sure I won't need to worry."28
Two days later, NYMS again recommended additional coverage: and sent Plaintiff a copy of the insurance forms a few days later.29
On November 7, 2016, NYMS requested that Plaintiff "advise if you wish to insure your items."30 Three days later, Plaintiff responded 31
Under an agreement with NYMS, Dependable transported the shipment to Utah, arriving December 15, 2016.32 The vehicle identified Dependable as the operator and on the side of the trailer were the words "White Glove Service."33 White Glove Service is a term of art in the moving and logistics industry referring to a type of full-service move experience offered to customers including unpacking items, putting items into cabinets and clothes in drawers.34 Dependable rented the truck but owns and operates the trailer.35 Upon delivery, Plaintiff discovered additional damage36 to many of her goods and determined that some items were not delivered.37
Summary judgment must be granted "if 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."38 The moving party bears the initial burden and, if the burden is satisfied, "the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts, identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein, from which a rational trier of...
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