Schwarz v. National Van Lines, Inc.
| Decision Date | 22 June 2005 |
| Docket Number | No. 03 C 7096.,03 C 7096. |
| Parties | Sofia SCHWARZ, Plaintiff, v. NATIONAL VAN LINES, INC., Dwayne Schiesser, and Apex Relocation Specialists, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Jose Antonio Isasi, II, Carey L. Bartell, Raven Moore, Sachnoff & Weaver, Ltd., Chicago, IL, for Plaintiff.
Dennis E. French, Jonathan Patrick Stringer, Dombroff & Gilmore, Harlene G. Matyas, Matyas & Norris, Corey Patrick O'Dell, Patrick H. Norris, Meachum, Spahr, Cozzi, Postel, Zenz & Matyas, Chicago, IL, for Defendants.
Plaintiff Sofia Schwarz ("Schwarz") sued Defendant National Van Lines, Inc. ("National"), under a number of theories. The Court has dismissed all of Schwarz's claims except her federal claim for breach of contract under 49 U.S.C. § 14706 (the "Carmack Amendment"), and her state law claims of intentional and negligent infliction of emotional distress. See Schwarz v. National Van Lines, No. 03 C 7096, 2004 WL 1166632, *1 ; Schwarz v. National Van Lines, No. 03 C 7096, 2004 WL 1497804, *1 (N.D.Ill. July 2, 2004). National now moves for summary judgment, contending that the Carmack Amendment preempts Schwarz's two remaining state law claims, and, alternatively, that Schwarz cannot establish the underlying essential elements of those claims. For the reasons discussed below, the Court denies National's motion.
Schwarz is a resident and citizen of Oregon. . National, an Illinois corporation, is an authorized motor carrier engaged in the business of transporting household goods. (R. 80-1; Def.'s SMF at ¶ 1.) Defendant Dwayne Schiesser ("Schiesser") is a resident and citizen of Texas. (R. 3-1; First Am. Compl. ¶ 3.) Defendant Apex Relocation Specialists, Inc. ("Apex") is a defunct Texas corporation that provided interstate shipping of household goods as an agent of National and on its own behalf. (Id. at ¶¶ 4, 48.) Neither Apex nor Schiesser has answered the Complaint, and the Court entered default judgment against both parties.
In December 2000, Schwarz, a widow and 65 years old at the time, hired National to transport her personal household belongings from Scottsdale, Arizona to Salem, Oregon; Schwarz tendered her belongings under a Uniform Household Goods Bill of Lading & Freight Bill (the "Bill of Lading"). Two years prior, Schwarz had moved from her home in the Pacific Northwest to Scottsdale to attend the Scottsdale Culinary Institute. (R. 92-1; Pl.'s SAMF at ¶ 1.) After completing school and obtaining experience in a professional kitchen at the Four Seasons hotel in Scottsdale, Schwarz planned to move to Salem to open her own business, a cafe and pastry shop. (Id.) National did not transport Schwarz's shipment itself, but rather consigned the Bill of Lading to Apex. (Id. at ¶ 2.)
In performing its transportation services, National typically operates through a network of agents and drivers. (Id. at ¶ 3.) When, as in Schwarz's case, National has sold a move, but does not have an agent available to transport it, National will use what it refers to as an "interline carrier," such as Apex, rather than one of its own agents. (Id. at ¶¶ 4, 7.) To become an "interline carrier" for National, a company contacts National and requests to haul shipments for them. (Id. at ¶ 6.) The carrier then enters into an "interline agreement" with National — a document that primarily sets forth the terms of compensation between National and the carrier, rather than the carrier's obligations toward National's customers. (Id.) When the interline agreement is executed, National, as a matter of policy, is supposed to verify that the carrier has both appropriate insurance and the requisite authority to operate as an interstate carrier. (Id.) After execution, National does not periodically reassess whether that interline carrier's authority and insurance remain in good standing. (Id.) As to Apex specifically, National did not verify that Apex had appropriate authority or insurance, other than when Apex executed its interline agreement in December 1999. (Id. at ¶¶ 9, 10.) In addition, National did not check to see if anyone had filed a complaint against Apex with the Department of Transportation or the Better Business Bureau before entering into an interline agreement with Apex and giving it possession of Schwarz's belongings. (Id. at ¶ 9.) At the time of Schwarz's shipment, Apex's insurance had been cancelled and the United States Department of Transportation had revoked Apex's interstate operating authority.1 (Id. at ¶ 11.)
Although National claims it expects the same level of customer service from an "interline carrier" that it would from its own agents, it does not communicate any rules, requirements, or standards of service to such carriers beyond what is contained in the interline agreement. (Id. at ¶ 8; id., Ex. 5 at 2 ().) Further, while National's drivers and agents undergo criminal and employment background checks, (id. at ¶ 3), National does not conduct a similar review of interline carrier agents and drivers. (Id. at ¶ 5) National also does not verify that drivers for an interline carrier meet the "stringent" requirement imposed by federal regulations for background checks and other screening. (Id.) Even so, National remains responsible for all shipments that it assigns to an "interline carrier." (Id. at ¶ 4.)
For her move from Arizona to Oregon, Schwarz contacted National's local agent, Carl Carter of Central Moving and Storage ("Central"). (Id. at ¶ 12.) Although National agreed to pick up Schwarz's belongings between December 26 and December 30, 2000, no one arrived during that five-day period to pick them up. (Id.) On December 31, 2000, Schwarz called Carter several times to inquire when the driver would arrive to pick up her belongings. (Id. at ¶ 13.) After representing to Schwarz that he had spoken with National's headquarters, Carter informed her that the driver would arrive momentarily. (Id.) Several hours later, the driver still had not arrived. (Id. at ¶ 14.) Schwarz called Carter again to inform him that she had slept in her clothes the night before (having expected National to have already picked up her belongings), that she had no food, and that she had to vacate her residence by the end of the day. (Id.) Carter reassured Schwarz that the driver, Schiesser, had worked for National for nine years and during that time National had "never" had a problem with him. (Id.) Several hours later, Schwarz spoke with Carter again to request that he put her belongings into storage until National could find a more reliable driver. (Id. at ¶ 15.) Carter again assured Schwarz that Schiesser was "reliable," and, although Central was prepared to store Schwarz's belongings, Carter continued to reassure Schwarz that Schiesser would arrive. (Id.) At some point thereafter, Schiesser arrived in a Ryder rental truck. (Id. at ¶ 16.) Central's employees helped Schiesser load Schwarz's belongings, even though, as Carter testified, the use of a rental truck was not normal procedure. (Id.) After Central and Schiesser loaded Schwarz's belongings on the truck, Schiesser asked Schwarz for $400 cash, a proposition that National admits is improper. (Id. at ¶ 17.) Moreover, Schiesser did not deliver Schwarz's goods as scheduled. (Id. at ¶ 36.)
After Schiesser failed to deliver the shipment, Schwarz spoke with Bob Donnelly, National's Manager of Operations, who was unwilling to provide Schwarz with information regarding National's investigation into the whereabouts of Schiesser or Schwarz's property. (Id. at ¶ 19.) In addition, National's Safety Director, Rand Walker, who was "primarily responsible" for locating Schwarz's shipment, did not review National's files for information about Apex until Schwarz's shipment had been missing for several weeks. (Id. at ¶¶ 20, 23, Ex. 3 at 22.) Those files, in fact, contained contact information for Apex and Schiesser, including the location where Schwarz's belongings were ultimately located four months later. (Id. at ¶ 20.) After reviewing these files, National thus had reason to believe that Schiesser had taken Schwarz's belongings to his residence in Weatherford, Texas. (Id. at ¶ 22.) Walker, however, could not recall whether he had relayed this information to the police, Schwarz, or her attorneys. (Id.) Ten days after Schiesser picked up the shipment, Schwarz's son, Peter Frease, contacted Walker to determine what actions National was taking to locate the shipment. (Id. at ¶ 23.) Walker assured Frease that National was doing "everything in its power to locate and effect delivery of the shipment." (Id., Ex. 3 at 125.) National, however, had not yet called the police to report the shipment as missing. (Id. at ¶ 23.) National finally called the police on January 22, 2001. (Id. at ¶ 24.) Because Schwarz's shipment traveled interstate, National could have contacted the FBI, but did not, even though National told Schwarz that it had done so. (Id. at ¶ 26.)
National's Vice President of Operations testified that "standard procedure" when it could not locate a truck included sending out a bulletin to all members of the American Moving & Storage Association to remain on the look-out for the missing truck. (Id. at ¶ 27.) National, however, did not issue such a bulletin regarding Schwarz's missing shipment. (Id.)
Although National had never had a driver disappear...
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