Michael Fergin, & Ace Am. Ins. Co. v. Westrock Co.

• Decision Date: 15 June 2018
• Docket Number: 8:16CV26
• Parties: MICHAEL FERGIN, and ACE AMERICAN INSURANCE CO, Plaintiffs, v. WESTROCK COMPANY, MAGNUM LTL, INC., XPO, and MAGNUM DEDICATED, INC., Defendants.
• Court: U.S. District Court — District of Nebraska

MICHAEL FERGIN, and ACE AMERICAN INSURANCE CO, Plaintiffs, v. WESTROCK COMPANY, MAGNUM LTL, INC.,XPO, and MAGNUM DEDICATED, INC., Defendants.

8:16CV26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

June 15, 2018

MEMORANDUM AND ORDER

This matter is before the Court on the Motion for Summary Judgment, ECF No. 146, filed by Defendants Magnum LTL, Inc., and Magnum Dedicated, Inc., (collectively, Magnum Defendants); the Motion to Defer Ruling on the Motion for Summary Judgment, ECF No. 150, filed by Defendant XPO; the Motion to Amend, ECF No. 171, filed by Magnum Defendants; and the Statement of Objection, ECF No. 173, filed by Magnum Defendants. For the reasons stated below, the motion for summary judgment will be granted, the motion to defer ruling will be denied, the motion to amend will be granted, and the statement of objections will be overruled.

BACKGROUND

The following facts are those stated in the parties' briefs, supported by pinpoint citations to evidence in the record, and admitted, or not properly resisted, by the opposing party as required by NECivR 56.1¹ and Federal Rule of Civil Procedure 56.²

On January 4, 2010, Magnum Dedicated, Inc., entered into an agreement (Transportation Agreement) with Westrock Company—formerly known as RockTenn—whereby Magnum Dedicated was to transport a load of corrugated cardboard to Becton Dickinson. Under Section 3(a) of the Transportation Agreement, Magnum Dedicated agreed "to accept and transport, pursuant to the terms of this Agreement, all Shipments within the scope of Services . . . ." ECF NO. 147-2, Page ID 871. Defendant XPO—formerly known as Jacobson Warehouse—loaded the pallets of stacked cardboard, manufactured by Westrock, from XPO's warehouse facility in Sioux City, Iowa, into a semi-trailer that was ultimately delivered by Magnum Defendants to Becton Dickinson's dock in Columbus, Nebraska, on February 18, 2013. The transportation was performed pursuant to a Bill of Lading, No. 43186609213.

On February 19, 2016, Plaintiff Michael Fergin, an employee of Becton Dickinson, began unloading the pallets of cardboard from the semitrailer delivered by Magnum. ECF No. 123, Page ID 654. Fergin opened the right trailer door and started to "walk it back to the left side of the trailer" when a stack of cardboard fell on him, knocking him to the ground and fracturing his left shoulder. Id., Page ID 655.

Fergin filed this action in the District Court of Platte County, Nebraska, in August of 2015, and Westrock removed to this Court on January 19, 2016. Fergin filed his Second Amended Complaint, ECF No. 64, on February 27, 2017. In the SecondAmended Complaint, Fergin alleged, among other things, that defendants "failed to inspect the pallets used to stack the [cardboard]," "employed a damaged pallet on which to stack and ship [the cardboard]," "failed to strap or otherwise secure the stack of [cardboard] to keep it from shifting and toppling before it could be properly unloaded." ECF No. 64, Page ID 317. Fergin alleged that "[a]s a result of Defendants' negligence"³ he incurred medical expenses, lost wages, and permanent disability. Id., Page ID 317-18.

DISCUSSION

I. Motion for Summary Judgment

A. Standard of Review

"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)). "Summary judgment is not disfavored and is designed for every action." Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor." Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, "Rule 56(e) permits a proper summary judgment motion tobe opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing "the absence of a genuine issue of material fact." Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, "the burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

In response to the moving party's showing, the nonmoving party's burden is to produce "specific facts sufficient to raise a genuine issue for trial." Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial." Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). "[T]here must be more than the mere existence of some alleged factual dispute" between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

In other words, in deciding "a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at1042). Otherwise, where the Court finds that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," there is no "genuine issue of material fact" for trial and summary judgment is appropriate. Whitney, 826 F.3d at 1076 (quoting Grage v. N. States Power Co.-Minn., 813 F.3d 1051, 1052 (8th Cir. 2015)).

B. Carmack Preemption

Magnum Defendants argue that Fergin's negligence claim against them is preempted under the Carmack Amendment, 49 U.S.C. § 14706. Under that Amendment, a carrier providing interstate transportation is "liable to the person entitled to recover under the receipt or bill of lading." 49 U.S.C. § 14706(a). "The liability imposed under this paragraph is for the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) another carrier over whose line or route the property is transported in the United States." Id.

"The Carmack Amendment thus expressly recognizes the right of a shipper and carrier to establish an agreed value of the goods to be shipped which limits the carrier's liability . . . ." Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369, 1372 (8th Cir. 1974) (citing Strickland Transp. Co. v. United States, 334 F.2d 172 (5th Cir. 1964)). "The United States Supreme Court has described the words of the Carmack Amendment as 'comprehensive enough to embrace all damages resulting from any failure to discharge a carrier's duty with respect to any part of the transportation to the agreed destination.'" Id. (quoting Se. Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29 (1936)); see Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196 (1916); Adams Express Co. v. Croninger, 226 U.S. 491, 505-06 (1913) ("Almost every detail of the subject is covered so completely [by the Carmack Amendment] that therecan be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it."). Thus, "when damages are sought against a common carrier for failure to properly perform, or for negligent performance of, an interstate contract of carriage, the Carmack Amendment governs." Fulton v. Chicago, Rock Island & P. R. Co., 481 F.2d 326, 332 (8th Cir. 1973) (quoting Am. Synthetic Rubber Corp. v. Louisville & N. R. Co., 422 F.2d 462, 466 (6th Cir. 1970)).

Circuit court decisions examining Carmack preemption of personal injury claims generally fall under one of two theories—those that look to the harm alleged and those that look to the carrier's conduct. White v. Mayflower Transit, L.L.C., 543 F.3d 581, 585 (9th Cir. 2008) (citing Smith, 296 F.3d at 1248-49; Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 1997); Rini v. United Van Lines, Inc., 104 F.3d 502, 506 (1st Cir. 1997); Moffit v. Bekins Van Lines Co., 6 F.3d 305, 306 (5th Cir. 1993)); Krauss v. IRIS USA, Inc., No. CV 17-778, 2017 WL 5624951, at *5 (E.D. Pa. Nov. 22, 2017); Union Pac. R. Co. v. Beemac Trucking, LLC, 929 F. Supp. 2d 904, 922-23 & n.20 (D. Neb. 2013).

Under the harm-based approach, "a personal injury claim is not preempted when the plaintiff alleges 'separate and independently actionable harms that are distinct from the loss of, or the damage to, the goods.'" Krauss, 2017 WL 5624951, at *5 (quoting Gordon, 130 F.3d at 289). While under the conduct-based approach, "the only claims that escape preemption are those 'based on conduct separate and distinct from the delivery, loss of, or damage to goods.'" Id. (quoting Smith, 296 F.3d at 1248-49). Thus, under the conduct-based approach, state-law claims for personal injuriesresulting from damage to cargo caused by the carrier's negligence are preempted. See, e.g., Moffit, 6 F.3d at 306 (holding that a claim for intentional infliction of emotional distress is preempted "to the extent that it arises from the same...