Schultz v. Auld, CV92-345-S-MHW.

• Decision Date: 25 October 1993
• Docket Number: No. CV92-345-S-MHW.,CV92-345-S-MHW.
• Citation: 848 F. Supp. 1497
• Parties: Genevieve Osterdale SCHULTZ, Plaintiff, v. Gary AULD, individually; Jean E. Peeters, jointly and severally; Peeters Transportation Co., Inc., jointly and severally; Mayflower Transit, Inc., jointly and severally; and John Parcher, individually, Defendants.
• Court: U.S. District Court — District of Idaho

848 F. Supp. 1497

Genevieve Osterdale SCHULTZ, Plaintiff, v. Gary AULD, individually; Jean E. Peeters, jointly and severally; Peeters Transportation Co., Inc., jointly and severally; Mayflower Transit, Inc., jointly and severally; and John Parcher, individually, Defendants.

No. CV92-345-S-MHW.

United States District Court, D. Idaho.

October 25, 1993.

Robert Korb, III, Sheila P. John, for plaintiff Genevieve Osterdale Schultz.

William A. McCurdy, Michael P. Stefanic, II, for defendants Gary Auld, Jean E. Peeters, Peeters Transp. Co., Inc., Mayflower Transit, Inc., and John Parcher.

WILLIAMS, United States Magistrate Judge.

Introduction

This matter is before the Court by consent of the parties and Judge Harold L. Ryan's Order of Reassignment pursuant to 28 U.S.C. § 636(c). Currently before the Court is Defendants' Motion to Dismiss (Dkt. # 38). Defendants move the Court under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's Complaint on the grounds that it failed to state a claim upon which relief can be granted. As Defendants have included matters outside the pleadings, the Court will consider this motion as one for summary judgment under Rule 56.

Procedural History

Plaintiff filed her original Complaint in this action on August 10, 1992, in the Fifth Judicial District of the State of Idaho. Defendants removed it by Notice of Removal filed with this Court on August 28, 1992. Plaintiff filed her Amended Complaint and Demand for Jury Trial on May 20, 1993, and her Second Amended Complaint and Demand for Jury Trial on August 11, 1993.

The Second Amended Complaint alleges: violations of the Idaho Consumer Protection Act (First and Second Causes of Action); negligence (Third, Fourth, Eleventh and Twelfth Causes of Action); breach of contract (Fifth, Eighth and Ninth Causes of Action); and intentional torts of misrepresentation, fraud, and conversion (Sixth and Seventh Causes of Action). Plaintiff's Tenth Cause of Action seeks attorney fees and costs of litigation.

Defendants have moved to dismiss all claims against them on the basis that Plaintiff's state and common law claims are preempted by the Carmack Amendment, 49 U.S.C. § 11701, et seq.

Background

In early July 1991, Plaintiff contacted Mayflower Transit, Inc. (Mayflower), through its agent Peeters Transportation, Inc. (Peeters), to inquire about moving her household belongings from San Francisco, California, to her new residence in Hailey, Idaho.

On or about July 8, 1991, John Parcher, a Peeters representative, met with Plaintiff at her apartment in San Francisco. After having viewed and inspected Plaintiff's household effects, he wrote a table of measurements.¹ Defendants claim, and Plaintiff disputes, that during this meeting, Parcher explained the carrier's legal liability of 60 cents per pound, per article, as well as other value protections available to her, including declared value protection and full replacement value protection. Defendants maintain that Plaintiff specifically chose the 60-cents-per-pound, per-article valuation for the move. Defendants also claim, and Plaintiff disputes, that Parcher provided Plaintiff with a moving kit as required under 49 C.F.R. § 1056.2(a), which included a booklet, known as Publication OCP-100, entitled "Your Rights and Responsibilities When You Move."²

Following the meeting, Parcher returned to his office where he calculated the "Estimated Charges," based on 60 cents per pound, per article. Parcher then returned to Plaintiff's apartment and hand delivered the Estimated Charges to her. As Peeters' estimate was lower than the others Plaintiff had received, she contacted Peeters and authorized the move. Parcher then prepared a document entitled "Order for Service," in which he wrote the carrier's legal liability to be 60 cents per pound, per article. The terms of the Order of Service provided an additional opportunity to chose between full replacement value protection, declared value protection, or carrier's legal liability of 60 cents per pound, per article.³

On July 16, 1991, Parcher returned to Plaintiff's apartment and presented her with the Order for Service. Plaintiff signed the Order for Service along with a credit card slip in the amount of $1,817.47 to charge the cost of the move to her American Express account. Plaintiff specifically signed the Order for Service in the space which limits the carrier's legal liability to 60 cents per pound, per article. However, she claims to have received no information whatsoever with respect to options of liability limits and also maintains that she was not informed that she had the responsibility to select the limit to apply in case of loss or damage to her goods during the move.

Plaintiff flew from San Francisco to Hailey the next day, having asked her son, Geoffrey, to be present at her apartment on the day Peeters arranged to load her shipment. On July 19, 1991, Defendant Gary Auld (an independent contract truck driver on Mayflower's dispatch) was dispatched to Plaintiff's San Francisco apartment to pick up Plaintiff's household goods. Geoffrey was there, let Auld in, and proceeded to help him load boxes. Geoffrey filled in the words ".60/ L.B." in the space releasing his mother's shipment to that value on the Bill of Lading, dated it and signed his name as shipper. Geoffrey claims that Auld instructed him to fill in ".60/L.B." and that he had no reason to question that instruction as he believed his mother had concluded all the arrangements for her move.

Auld arrived in Hailey, Idaho, on July 26, 1991, with Plaintiff's shipment. He met Plaintiff and her son, Chris, at Plaintiff's apartment. Plaintiff and Chris decided that some of her belongings were to be taken to a mini storage unit. Over the course of the afternoon, Auld and Chris made several trips with excess furniture to the storage facility and unloaded the items into the storage unit.

Auld unloaded the rest of Plaintiff's personal property at her apartment, including all of the cardboard wardrobe boxes. At some point, Plaintiff informed Auld that one wardrobe box had been damaged and that four brass legs were missing from a piece of furniture.

Defendants claim that Auld returned to Plaintiff's apartment the next morning; Plaintiff claims that he did not return until August 1, 1991. When he did return, Auld delivered the missing cabinet legs. He also inquired whether Plaintiff had received a headboard by mistake. Plaintiff told him it was not in her apartment, but that he could check her storage unit in case it had accidentally been left there.

Defendants claim that Plaintiff then asked Auld to help her empty clothes from a damaged wardrobe (which had been crushed on one side and contained mainly skiwear) into an empty undamaged wardrobe and remove various other items of winter clothing from Plaintiff's closet and add them to the undamaged wardrobe. Plaintiff claims that Auld had suggested combining the wardrobes but that she had only opened the top of the second wardrobe in order to identify its contents. She maintains that it contained designer clothes, some of which were new with the retail tags still attached.

Plaintiff then asked Auld to transport the wardrobe boxes to the storage facility, and he agreed to do so. No formal paperwork was exchanged between Auld and Plaintiff with respect to this arrangement.

According to Plaintiff, Auld loaded the two wardrobes onto his van and drove them, along with Plaintiff, to the storage unit. She claims that she was unable to open the unit, so she and Auld returned to her apartment, with the wardrobes left in the van. Plaintiff then tried to contact Chris from her apartment to have him open the storage unit lock. She maintains that Auld stayed in her apartment for several hours and the two engaged in small talk. Eventually Auld asked Plaintiff if he could borrow a broom in order to sweep out his van. When he returned from the van, he brought a box which contained Plaintiff's best china. He then unloaded some custom bedspreads and pads.

By late in the afternoon, Chris had neither arrived nor called. Plaintiff claims that it was at this point that Auld told her that he needed to get on his way and suggested that he could combine the contents of both wardrobes into one and leave it at the storage facility.

Auld claims that he arrived at the storage facility and waited there for Chris for approximately two hours. At that point, Auld asked an employee of the storage facility if he could leave Plaintiff's wardrobe box in the custody of the facility and explained that Chris was expected to arrive shortly. The employee agreed and placed Plaintiff's wardrobe in a room adjacent to the storage company's business office. Auld understood that this room, which contained tools and other miscellaneous boxes, was accessible only to the facility's personnel. Auld then left Hailey en route to another delivery.

The next day Plaintiff realized that both wardrobes had been quite full and believed it would have been impossible to combine their contents. She went to her storage unit to see if both wardrobes were safe and asked Bing Copeland, one of the owners, to accompany her to her storage unit. They found only the crushed wardrobe which had contained mostly skiwear, some of which Plaintiff claims was missing. The second wardrobe was not there.

Plaintiff claims that she was extremely upset and alarmed at the loss of her very expensive designer clothing and immediately telephoned Peeters in San Francisco. She told the person who answered that the driver had left with a wardrobe containing very expensive clothing and demanded that he be intercepted; the person hung up on her.

Over the next several weeks, Plaintiff finished unpacking. During this process she discovered that a laptop combination radio/television and a box of spices was missing. She also discovered breakage and damage to various other articles.

Plaintiff alleged...