Sokhos v. Mayflower Transit, Inc., Civ. A. No. 87-1648-S.

• Decision Date: 15 June 1988
• Docket Number: Civ. A. No. 87-1648-S.
• Parties: Joanne SOKHOS, Plaintiff, v. MAYFLOWER TRANSIT, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

691 F. Supp. 1578

Joanne SOKHOS, Plaintiff, v. MAYFLOWER TRANSIT, INC., et al., Defendants.

Civ. A. No. 87-1648-S.

United States District Court, D. Massachusetts.

June 15, 1988.

Steven R. Kruczynski, Robert Marcus & Associates, Boston, Mass., for plaintiff.

F. Anthony Mooney, Hale & Dorr, Boston, Mass., for defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

SKINNER, District Judge.

Plaintiff Joanne Sokhos brought this action in the Massachusetts Superior Court against defendant Mayflower Transit, Inc. d/b/a Aero Mayflower Transit Company. The action was removed to this court under 28 U.S.C. § 1441 on the basis of diversity jurisdiction. In the spring of 1986, plaintiff contracted with defendant to ship her household goods from California to Massachusetts. In her complaint, plaintiff alleges that the goods were not delivered when contracted for, that numerous items were damaged or not delivered, and that as a result of these acts or omissions, defendant has committed breach of contract (Count I), breach of warranty (II), negligence (III), unfair acts and deceptive practices in violation of M.G.L. c. 93A (IV), negligent or intentional misrepresentation in the inducement of the contract (V), and unfair claim settlement practices in violation of M.G.L. c. 176D (VI).

Defendant now moves to dismiss this action under Fed.R.Civ.P. 12(b)(6), or in the alternative, that summary judgment be granted, on the ground that the so-called Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707, preempts every count in plaintiff's complaint as each count is inconsistent with the provisions of the Carmack Amendment. Plaintiff opposes the motion, on the ground that this action seeks relief under several alternative state common and statutory law theories that are not inconsistent with the Carmack Amendment. For the reasons set forth in this opinion, defendant's motion is allowed in part and denied in part.

Background

As defendant relies upon matters outside the pleadings in its motion to dismiss, I treat this motion as a motion for summary judgment, Fed.R.Civ.P. 12(b). Viewing the record before me in the light most favorable to plaintiff, and considering all inferences favorable to plaintiff, Emery v. Merrimack Valley Wood Products, 701 F.2d 985, 986 (1st Cir.1983), citing Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), the following facts could reasonably be found. On or about March 15, 1986, plaintiff and defendant entered into a contract whereby defendant agreed to move plaintiff's belongings from California to Massachusetts. The parties executed a non-negotiable bill of lading which provided for a delivery date between March 24 and March 28, 1986. Defendant was obligated under 49 C.F.R. § 1056.2(a) to furnish plaintiff with Publication OCP-100, "Your Rights and Responsibilities When You Move," but plaintiff never received this publication.

Defendant offered plaintiff the "Mayflower Green Light Guarantee," a replacement value insurance policy whereby Mayflower would reimburse plaintiff $15,000 or $3.50 per pound of shipped weight, whichever was greater, in the event of damage or loss to the goods. Defendant informed plaintiff that her belongings weighed 4,800 pounds, thereby having a total valuation of $16,800, and plaintiff purchased the policy with no deductible at a rate of $.85 per $100.00.

In the course of preparing plaintiff's belongings for shipment and loading the moving van, defendant prepared a "Household Goods Descriptive Inventory." However, this inventory was not shown to plaintiff until after the moving van had been fully loaded. When the moving van finally arrived in Boston, it was difficult for plaintiff to determine initially whether the shipment arrived whole due to the prevailing conditions — delivery was made on April 3, six days after the last projected delivery date, at 11:20 p.m. during a rainstorm.

The following day, plaintiff determined that numerous articles were lost in transit and other items suffered various degrees of damage. Plaintiff immediately contacted defendant and was instructed to fill out a claims form. Plaintiff also asked defendant to send a representative to her home to inspect her shipment. Defendant did not send an inspector until July 23, 1986, fully three and one-half months after plaintiff received the shipment. In the meantime, plaintiff began to inventory her damages and losses and requested that a tracer be placed on her missing items. On September 15, 1986, plaintiff submitted her completed claims forms, claiming that $9,695 in items were never delivered, other items sustained $9,869.65 in damage, and that she incurred over $1,000 in lodging and food expenses due to late delivery of her belongings. Defendants denied liability on September 18 for all but $4,669.04 of plaintiff's claim with very little explanation other than reference to a repair report, a copy of which was not provided to her. Soon thereafter, plaintiff retained counsel to pursue her rights.

Discussion

In order to prevail on a motion for summary judgment, the moving party must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law, Fed.R.Civ. P. 56(c). Where the movant has met this burden, summary judgment should be granted, unless the nonmovant can present affirmative evidence in support of an essential element of her case on which she will bear the burden of proof at trial, Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 273 (1986). Cf. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976) (nonmovant must establish the existence of an issue of fact by substantial evidence that is both genuine and material). A dispute about a material fact will be "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). In essence, the standard for summary judgment is the same as that for directed verdict. Id., 477 U.S. at 250, 106 S.Ct. at 2512, 91 L.Ed.2d at 213.

As a preliminary matter, Counts VII through X state claims against Aero Mayflower Transit Co., Inc. that are identical to Counts I, II, III, and V. In its answers to plaintiff's complaint, Mayflower Transit stated that Aero Mayflower is no longer in existence but that Mayflower Transit does business under the name "Aero Mayflower Transit Co." Plaintiff appears to concede this in all papers filed subsequent to defendant's answer, and makes no reference to Counts VII through X in her opposition to this motion. Therefore, pursuant to Fed.R.Civ.P. 12(f), I strike Counts VII through X from plaintiff's complaint as they are redundant.

Defendant contends that 49 U.S.C. § 11707 acts to preempt the remaining six counts in the complaint. Section 11707(a)(1) provides:

A common carrier providing transportation ... subject to the jurisdiction of the Interstate Commerce Commission ... shall issue a receipt or bill of lading for property it receives for transportation under this subtitle. That carrier ... that delivers the property and is providing transportation ... is liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property caused by (1) the receiving carrier, (2) the delivering carrier, or (3) another carrier ... when transported under a through bill of lading ...

Further, section 11707(c)(4) provides that

A common carrier may limit its liability for loss or injury of property transported under section 10730 of this title.

Finally, section 10730 allows common carriers of household goods to limit their liability for loss or damage to a value established by written declaration of the shipper, or by a written agreement.

Defendant claims that it has complied with all of the statutory requirements set forth above, and that on the uniform household goods bill of lading, plaintiff executed a written agreement to the effect that the entire shipment would be released to a value equal to $3.50 per pound, or approximately $16,800. Plaintiff does not dispute this. However, plaintiff relies on 49 U.S.C. § 10103, which provides that

except as otherwise provided in this subtitle, the remedies provided under this subtitle are in addition to remedies existing under another law or at common law.

Plaintiff contends that,...