Great West Cas. Co. v. Flandrich
| Citation | 605 F.Supp.2d 955 |
| Decision Date | 31 March 2009 |
| Docket Number | Case No. 2:07-CV-1002. |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | GREAT WEST CASUALTY CO., Plaintiff, v. Wayne FLANDRICH dba J & W Transport, et al., Defendants. |
James M. Wherley, Jr., Black, McCuskey, Souers & Arbaugh, Canton, OH, for Plaintiff.
Michael Hrabcak, Selig & Hrabcak, Heidi A. Smith, Hrabcak & Co. LPA, Worthington, OH, for Wayne Flandrich.
John Curtis Albert, Crabbe Brown & James, Columbus, OH, for Kevin's Towing.
James Keith Reuss, Lane Alton & Horst, Columbus, OH, for OOIDA Risk Retention Group, Inc.
This matter comes before the Court on: (1) Plaintiff Great West Casualty Company's ("Great West") Motion for Partial Summary Judgment on the Carmack Amendment claim and/or breach of contract claim and attorney's fees request against Defendant/Third Party Plaintiff Wayne Flandrich ("Flandrich") dba J & W Transport ("J & W Transport") (doc. no. 30); (2) Flandrich's Motion for Summary Judgment against Great West on the Carmack Amendment claim (doc. no. 32); (3) Flandrich's Motion for Summary Judgment against Third-Party Defendants Risk Retention Group, Inc., Commercial Truck Claims Management, and Owner-Operator Services, Inc. (collectively referred to as "OOIDA") on the coverage claim (doc. no. 33); (4) OOIDA's Motion for Summary Judgment against Flandrich on the coverage claim and breach of duty to defend claim (doc. no. 31); and (5) Flandrich's Motion for Summary Judgment against Third Party Defendant OOIDA on the bad faith claim (doc. no. 38). For the reasons set forth below, this Court: (1) GRANTS Great West's Motion against Flandrich on the Carmack Amendment claim, but DENIES Great West's Motion against Flandrich on the breach of contract claim and request for attorney's fees; (2) DENIES Flandrich's Motion against Great West on the Carmack Amendment claim; (3) DENIES Flandrich's Motion against OOIDA on the coverage claim; (4) DENIES OOIDA's Motion against Flandrich on the coverage claim but GRANTS OOIDA's Motion against Flandrich on the breach of duty to defend claim; and (5) DENIES Flandrich's Motion against OOIDA on the bad faith claim.
Great West is a corporation in the insurance business. Great West provided a policy of insurance coverage to American Food Groups ("American Foods"), a Minnesota based corporation. J & W Transport is a dba of Flandrich, and is a trucking business based in Georgia. OOIDA is Flandrich's insurance coverage provider and provides him with a Commercial Inland Marine Motor Truck Cargo Liability policy.
On December 17, 2003, American Foods and J & W Transport entered into a transportation agreement (the "Transportation Agreement"), whereby J & W Transport would transport goods for American Foods. The Transportation Agreement establishes that "Carrier [J & W Transport] shall be responsible for all claims for loss, damage, injury, or delay." (Transportation Agreement at § 3). Liability for losses commences when J & W Transport signs the relevant bill of lading and receives the goods for transport. (Id.)
The Transportation Agreement also contains an indemnification clause, which establishes that J & W Transport will indemnify and hold American Foods harmless,
from and against any and all loss, damages, cost, expense, including reasonable attorney's fees, which may be incurred by [American Foods] ... resulting from any acts, or omissions, negligent or otherwise, of [J & W Transport] or its employees in performing or failing to perform the transportation services specified hereunder....
On November 14, 2006, American Foods retained J & W Transport to pick up a load of meat from American Foods. The load consisted of approximately 16,000 pounds of ground beef. J & W Transport was to deliver the load to The Kroger Company ("Kroger") in Delaware, Ohio and Meijer, Inc. ("Meijer") in Tipp City, Ohio [collectively referred to as "Buyers"].
In picking up the load, Flandrich, J & W Transport's driver of the load, signed bills of lading ("Bills of Lading") attesting that the meat was in "apparent good order." Flandrich testified that he had no reason to believe that the goods were damaged when they were transferred into his possession from American Foods.
The Bills of Lading stated, "Buyer assumes all risk of loss upon Seller's delivery of the goods to the carrier at the Shipping Point and Seller shall have no further responsibility for the goods." (Bills of Lading at p. 2). In addition, the Bills of Lading stated that:
[i]t is mutually agreed, as to each carrier of all or any of said property over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to the terms and conditions of [this] Uniform Domestic Straight Bill of Lading....
(Id.) The Bills of Lading also assured that, "[s]hipper hereby certifies that he is familiar with all the terms and conditions of said bill of lading," and that "these terms and conditions of sale shall exclusively govern the purchase and sale of the goods...." (Id.)
The Bills of Lading, however, were only agreements between American Foods and J & W Transport, and were signed by representatives of each company. The Bills of Lading were never signed by either of the Buyers or even seen by them. The Buyers never contractually agreed to shifting the risk of loss to the Buyers when American Foods delivered the goods to American Foods' own carrier. In fact, the price American Foods charged the Buyers was the price of goods delivered to the Buyers, as American Foods hired and paid the carrier, J & W Transport.
On November 15, 2006 at approximately 1:45 a.m., J & W Transport's tractor-trailer was involved in a one-vehicle accident around U.S. 42 in Union County, Ohio. The accident occurred after J & W Transport picked up the load of meat from American Foods, and before it was delivered to the Buyers. Flandrich testified that he swerved to avoid some deer, and his tractor-trailer overturned on the side of the road and slid approximately 100 feet on its side.
When the meat left American Foods, the temperature inside the Thermo Unit containing the meat was listed at 28 degrees. About 45 minutes after the accident, Flandrich shut off the Thermo Unit. About two hours after the accident, Flandrich checked the temperature of the Thermo Unit, which registered approximately 30 degrees. According to Flandrich, at that time, the structural "integrity of the trailer was still all entirely intact." (Flandrich dep. at p. 41). The Ohio State Highway Patrol ("OHP") arrived on the scene and took photographs of the scene and the damage to the tractor-trailer.
The Union County Sheriff's Department called Kevin Holt ("Holt") dba Kevin's Towing to the scene to tow the tractor-trailer. Holt arrived at the scene about 45 minutes after the accident. Holt took videotape of the truck before attempting to upright it. He alleges there was a tear in the left front top corner, approximately a foot, which he videotaped. The hole was not big enough for any of the packages of meat to come out of, but it was big enough for dirt to get in. He testified regarding the structural integrity of the trailer:
The entire left side of the trailer the structural integrity was compromised, because all the ribs that go from the bottom of the trailer to the top of the trailer were bent at a certain degree and the bottom of the trailer was the same shape of the drainage ditch, so the entire left side had been compromised, as well as the seam between the top of the trailer and the side of the trailer was split.
(Holt dep. at 46). Once cargo was removed from the trailer, Holt saw dirt inside.
To tow the trailer, Holt first needed to unload part of the meat onto a separate box truck. The seal to the doors of the trailer had to be broken to unload the meat. It took him several hours to off-load the cargo of meat onto his box truck, which was not refrigerated. By the time he began trying to upright the trailer at around 7:00 a.m., the Thermo Unit had been turned off for about five hours. Holt hooked up the trailer, and on his first attempt to raise it, the front end of the wrecker lifted about five feet in the air, but he was unable to move the trailer. He then set everything back down and repositioned. There was no damage caused by the towing wrecker to the trailer at that point.
After rehooking to get a different angle, Holt began trying to lift the trailer again. It came about three feet off the ground, then the main support of the trailer on the roof where the strap went across snapped, which caused the trailer's side to split from top to bottom. According to Flandrich, this was "the first time that there had been any violation of the structural integrity of the trailer." (Flandrich dep. at 64). The OHP took photographs of the damage to the trailer after it was split.
Two hours later, a second towing service, Rusty's Towing, arrived at the scene and loaded the cargo of meat onto a reefer trailer. Rusty's Towing eventually removed the truck, trailer, and remaining cargo from the scene, and took it to its lot. Rusty's Towing would not release the meat without payment of its towing/salvage bill. Flandrich, his insurer (OOIDA), and Kevin's Towing could not agree on responsibility for paying the bill to Rusty's Towing or what to do with the meat. Consequently, the trailer and the meat sat at Rusty's Towing. American Foods was not given the opportunity to access the meat until after it was completely spoiled.
Both Buyers had set dates and times for the delivery of cargo to arrive. Due to the accident, Flandrich...
To continue reading
Request your trial
-
Ingram Barge Co. v. Bunge N. Am., Inc.
..."A bill of lading is ‘the basic transportation contract between the shipper-consignor and the carrier.’ " Great W. Cas. Co. v. Flandrich , 605 F. Supp. 2d 955, 964 (S.D. Ohio 2009) (quoting S. Pac. Transp. Co. v. Commercial Metals Co. , 456 U.S. 336, 342, 102 S.Ct. 1815, 72 L.Ed.2d 114 (198......
-
Exel, Inc. v. S. Refrigerated Transp., Inc.
...to recover under the bill lading and/or through an assignment of a claim or by subrogation. See e.g., Great West Cas. Co. v. Flandrich, 605 F.Supp.2d 955, 966–67 (S.D.Ohio 2009) (breach of contract claims alleged by meat shipper's insurer against carrier seeking damages for spoiled meat wer......
-
Renouf v. Aegis Relocation Co. Corp.
...(2) the arrival of goods in damaged condition, and (3) the amount of damages measured by actual loss. Great W. Cas. Co. v. Flandrich, 605 F.Supp.2d 955, 966 (S.D. Ohio 2009) (citing Mo. Pac. R.R. v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964)). The Carmack Amendm......
-
Direct Connect Logistix, Inc. v. Rd. Kings Trucking Inc., Case No. 1:16-cv-01006-AWI-SKO
...included the defendant's "express agreement to pay [the plaintiff's] reasonable attorney's fees"). But see Great W. Cas. Co. v. Flandrich, 605 F. Supp. 2d 955, 968 (S.D. Ohio 2009) ("There is no case law precedent that a contract other than the bill of lading can be used to award attorney's......