Hinesville Bank v. Pony Exp. Courier Corp., 88-8366
| Decision Date | 30 March 1989 |
| Docket Number | No. 88-8366,88-8366 |
| Citation | 868 F.2d 1532 |
| Parties | The HINESVILLE BANK, Plaintiff-Appellee, v. PONY EXPRESS COURIER CORP., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Stephen Harris, Savannah, Ga., John F. Pendergast, Jr., Atlanta, Ga., for defendant-appellant.
G. Brinson Williams, Jones, Osteen, Jones & Arnold, J. Noel Osteen, Hinesville, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before JOHNSON, HATCHETT and COX, Circuit Judges.
In this diversity case, we apply the law of Georgia to affirm the district court's ruling that a common carrier is liable for the full amount one of its customer's lost because of the negligence of the common carrier.
Pony Express Courier Corporation (Pony Express) provides courier services for banks and other financial institutions to transport non-negotiable documents inexpensively. Prior to the advent of ground courier services, banks and financial institutions shipped non-negotiable documents by mail or armored car service.
Pony Express provided ground courier services for the Hinesville Bank at Hinesville, Georgia. Pony Express computed the cost of the service on a weight-based fee. The arrangement between Pony Express and the Hinesville Bank required that Pony Express pick up a courier bag containing the bank's "cash letter" and related materials (cash letter) for next day delivery to the Citizens and Southern National Bank (C & S) in Atlanta, Georgia. 1
On September 19, 1986, the Hinesville Bank prepared its $767,425.93 cash letter bag for shipment. Pony Express picked up the cash letter, signed the waybill, and left a copy for the Hinesville Bank; but, Pony Express lost the cash letter bag before it reached the C & S Bank in Atlanta.
The Hinesville Bank maintained records to reconstruct cash letters if a cash letter was lost in transit or otherwise unavailable for redemption. 2 The Hinesville Bank used a microfilm camera to photograph each instrument comprising the cash letter before releasing it for shipment. On September 19, 1986, however, the microfilm proved to be indecipherable. In the absence of decipherable microfilm, the Hinesville Bank reviewed deposit receipts and contacted customers to inquire about the origins of checks that had been credited to their accounts. The Hinesville Bank asked its customers to tender duplicate instruments when it was able to identify the drafters. Although the Hinesville Bank reconstructed and recovered a significant portion of the lost instruments, it failed to recover
items with a total value of $302,669.31. 3
On September 10, 1987, the Hinesville Bank filed this diversity action against Pony Express, a Delaware corporation, to recover the value of the lost instruments, expenses associated with reconstruction, and lost interest, which totalled $335,219.45. Pony Express filed its answer and denied liability. The parties entered a consolidated pretrial order, and the Hinesville Bank filed a motion to strike and/or for summary judgment. On March 24, 1988, the district court granted summary ment to the Hinesville Bank on liability and damages, but denied attorney's fees.
On April 1, 1988, Pony Express filed a motion to alter or amend judgment based, in part, upon the Hinesville Bank's failure to provide competent evidence in support of its damages. The district court granted Pony Express's motion, deleted that portion of its prior order which addressed the amount of damages, and directed the Hinesville Bank to submit evidence supporting the exact sums claimed. The Hinesville Bank filed its response to the court's order, and Pony Express filed its objections. On May 2, 1988, the district court entered judgment awarding damages in the amount of $335,219.45.
Pony Express contends that the district court erred in granting summary judgment to the Hinesville Bank on the issues of liability and damages because several issues of material fact remain for evaluation by a jury. First, Pony Express argues that genuine issues of material fact exist as to whether the Hinesville Bank's failure to maintain adequate and proper reconstruction capabilities constituted a breach of their oral contract. Second, it argues that a question of material fact remains concerning the effect of the waybill. Third, it contends that several questions of material fact remain concerning the exact amount of damages the bank is entitled to recover.
We address the following issues:
(1) whether the Hinesville Bank breached an oral contract with Pony Express by failing to maintain adequate and proper reconstruction capabilities;
(2) whether the Hinesville Bank's acceptance and use of preprinted waybills precludes or limits the award of damages;
(3) whether the district court erred in granting summary judgment in favor of the Hinesville Bank for the face amount of the non-reconstructed items of the cash letter; and
(4) whether the district court erred in granting summary judgment in favor of the Hinesville Bank for the bank's reconstruction expenses.
Pony Express contends that the district court erred in granting summary judgment to the Hinesville Bank on the issue of liability and in its award of damages. We must independently review the district court's order granting summary judgment and determine whether any genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Mercantile Bank and Trust v. Fidelity and Deposit Co., 750 F.2d 838, 841 (11th Cir.1985). We apply the same legal standards that control the district court's determination when examining a decision granting summary judgment. Mercantile Bank and Trust v. Fidelity and Deposit Co., at 841. A party seeking summary judgment bears the burden of demonstrating that no genuine dispute exists as to any material fact in the case. Mercantile Bank and Trust v. Fidelity and Deposit Co., at 841;
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In determining whether a movant has met this burden, we review the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Mercantile Bank and Trust v. Fidelity and Deposit Co., at 841; Adickes v. S.H. Kress & Co., 398 U.S. at 157, 90 S.Ct. at 1608. All reasonable doubts about the facts are resolved in favor of the nonmovant. Mercantile Bank and Trust v. Fidelity and Deposit Co., at 841. If reasonable minds might differ on the inferences arising from undisputed facts, then we should deny summary judgment. Mercantile Bank and Trust v. Fidelity and Deposit Co., at 841
Pony Express contends that the Hinesville Bank breached their oral contract through its failure to maintain adequate and proper reconstruction capabilities. The oral contract provided that Pony Express would serve as the Hinesville Bank's ground carrier in the transportation of non-negotiable instruments based upon the bank's representation that it would maintain adequate means of reconstruction. Pony Express relies on the affidavit of its Southeastern Manager, Steve Devine, to argue that the bank was required, as a condition precedent to its oral contract with Pony Express, to establish and maintain adequate records sufficient to reconstruct the cash letter in the event of its loss during transit. Pony Express cites O.C.G.A. Sec. 13-3-4 to argue that the bank failed to fulfill its condition precedent of maintaining adequate reconstruction capability. 4
Pony Express contends that the bank's acceptance and use of the preprinted waybills, which expressly limit its liability to $50, precludes an award of damages in excess of that amount. Pony Express notes that the waybills set forth in clear terms:
UNLESS A GREATER VALUE IS DECLARED HEREIN THE SHIPPER AGREES AND DECLARES THAT THE VALUE OF THE PROPERTY IS RELEASED TO AN AMOUNT NOT EXCEEDING $50 (DOLLARS) FOR ANY SHIPMENT.
Pony Express argues that the evidence in the record reflecting the parties' custom and usage with regard to the waybill and manner of shipments clearly proves that the bank knew of and accepted the waybill's terms and conditions.
The Hinesville Bank argues that no genuine issues of material fact existed in regard to Pony Express's liability. The bank argues that the district court addressed Pony Express's defenses relating to liability in detail. 5
The Hinesville Bank argues that the only issue properly before this court relates to the existence of an express contract between the parties. Although "[a]n express contract is one where the intention of the parties and the terms of the agreement are declared or expressed by the parties, in writing or orally, at the time it is entered into," the Hinesville Bank argues that no evidence exists of an express agreement. Thomas v. Lomax, 82 Ga.App. 592, 61 S.E.2d 790, 791 (1950). The Hinesville Bank also argues that the waybill relating to the shipment at issue, as a matter of law, cannot serve to limit Pony Express's The Hinesville Bank emphasizes that Pony Express is a common carrier subject to strict statutory regulation. 7 Its attempt to escape liability by alleging a breach of an oral contract fails as a matter of law because it was not presented in the district court. The Hinesville Bank stresses that a common carrier is allowed no defense whatever to limit its liability absent a prior affirmative showing that its negligence played no role in the bank's loss. O.C.G.A. Sec. 46-9-3. 8 The Hinesville Bank contends that Pony Express's arguments are at odds with O.C.G.A. Secs. 46-9-2 and 46-9-3.
liability. O.C.G.A. Sec. 46-9-2. 6
In sum, Pony Express argues that an express agreement existed with the Hinesville Bank by virtue of: an oral contract containing a condition precedent, the printed waybill limitation, and the Hinesville Bank's custom and usage of accepting the...
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