Total Quality Logistics, LLC v. Balance Transp., LLC, NO. 2017-CVH-000970

CourtCourt of Common Pleas of Ohio
Writing for the CourtRichard P. Ferenc, Judge
Citation122 N.E.3d 691
Parties TOTAL QUALITY LOGISTICS, LLC, Plaintiff, v. BALANCE TRANSPORTATION, LLC, Defendant
Decision Date01 April 2019
Docket NumberNO. 2017-CVH-000970

122 N.E.3d 691

TOTAL QUALITY LOGISTICS, LLC, Plaintiff,
v.
BALANCE TRANSPORTATION, LLC, Defendant

NO. 2017-CVH-000970

Court of Common Pleas of Ohio, Clermont County, Ohio.

Filed April 1, 2019


David T. Bules and Alexandra R. Forkosh, Calfee Halter & Griswold LLP, 2800 First Financial Center, 255 East Fifth Street, Cincinnati, Ohio 45202, Attorneys for Plaintiff

John C. Scott and Tracy E. Schwetschenau, Faulker & Tepe, LLP, One West Fourth Street, Ste. 2050, Cincinnati, Ohio 45202, and Robert S. Crowder, Tressler LLP, 1901 Avenue of the Stars, Ste. 450, Los Angeles, California 90067, Attorneys for Defendant

DECISION AND ENTRY

Richard P. Ferenc, Judge

122 N.E.3d 692

Before the Court for determination, are cross-motions for summary judgment filed by Plaintiff, Total Quality Logistics, LLC ("TQL") and Defendant, Balance Transportation, LLC. ("Balance"). For the detailed reasons set forth below, the Court grants Balance's motion as to the three claims asserted against it by TQL, and thereby denies TQL's motion as to the same claims. The Court grants TQL's motion as to Balance's counterclaim and thereby denies Balance's motion as to its counterclaim.

Factual and Procedural Background

TQL is an interstate freight broker who is in the business of facilitating the transportation of freight It locates motor carriers to pick up and deliver the freight of its customers at times and places specified by them. Balance is an interstate motor carrier. On August 10, 2009, TQL entered into a Broker/Carrier Agreement (the "Agreement") with Balance for the latter to provide freight services to TQL's customers. The Agreement, in part, required Balance, as a carrier, to timely and properly deliver each load tendered to it by TQL.

In June, 2016, in accord with the Agreement, TQL arranged with Balance to deliver one truckload of granite for its customer C & C North America, Inc. ("C & C"). TQL claims that Balance breached this Agreement by failing to properly deliver the cargo and/or refusing to pay the amounts due TQL. Specifically, TQL alleges that Balance failed to timely and properly deliver the cargo, a load of granite slabs, to the intended destination in good condition as required by the Agreement.

C & C submitted a cargo claim to TQL for the cost of its damaged cargo in the amount of $ 30,641.11. TQL paid that amount to C & C. In exchange, C & C's released and assigned its claim against Balance to TQL. Under an offset provision of the Agreement, TQL applied an open invoice due Balance, $ 1,900, as partial payment of the C & C claimed loss. This offset reduced TQL's claim to $ 28,741.11. TQL seeks judgment in this amount, with interest, attorney's fees, expenses, and costs.

TQL's complaint, filed August 7, 2017, alleges the following: Count I, recovery in accord with the Carmack Amendment; Count II, Breach of Contract; and Count III, Breach of Bailment Duty. In its counterclaim, filed October 6, 2017, Balance seeks recovery of the $ 1,900 open invoice, alleging it was misappropriated by TQL as partial payment for C & C's claimed loss.

Both parties now seek summary judgment on their respective claims and counterclaim. (Individually, referred to as "TQL MSJ" and "Balance MSJ" and collectively referred to as "the Motions").

Summary Judgment Standard

Summary judgment is proper when: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in its favor.

122 N.E.3d 693

Ward v. Graue , 12th Dist., 2013-Ohio-1107, 987 N.E.2d 760, ¶¶ 10-11.

The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Id. at ¶ 11, citing, Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

Ohio law further requires that when the moving party has met its burden under Dresher , the nonmoving party may not rest upon the mere allegations of his or her pleadings, but the response, by affidavit or otherwise, must set forth specific facts showing the existence of a genuine triable issue. Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996).

The following evidentiary materials are properly before the Court for consideration pursuant to Civ. R. 56(C) : i) the affidavit of TQL's Risk Manager, Marc Bostwick, executed February 13, 2019; ii) Marc Bostwick's deposition of September 5, 2018; iii) Amber Simons' deposition of January 28, 2019; iv) Adrian Bernal's deposition of August 30, 2018; and v) Jose Bernal, Sr.'s deposition of August 30, 2018.

The Motions

A. TQL MSJ

TQL's first count asserts it is entitled to judgment under the Carmack Amendment, 49 U.S.C. § 14706. The sub-section applicable here is (a)(1), which, in pertinent part reads as follows:

[a] carrier providing transportation or service ... shall issue a receipt or bill of lading for property it receives for transportation under this part That carrier and any other carrier that delivers the property and is providing transportation or service ... are 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 (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 ....

In TQL v. Red Chamber Co. , 12th Dist., 2017-Ohio-4369, 92 N.E.3d 62, at ¶ 11, the court held:

Accordingly, the Carmack Amendment creates a federal statutory remedy on a bill of lading against both the originating and destination carrier. To assert a prima facie case pursuant to the Carmack Amendment, one must demonstrate (1) delivery to the carrier in good condition, (2) delivery failure or arrival in damaged condition, and (3) the amount of damages caused by the loss. Camar Corp. v. Preston Trucking Co. , 221 F.3d 271, 274 (1st Cir. 2000).

Of the evidentiary materials before the Court identified above, it is clear that the only evidence relative to the material events giving rise to this litigation is found in the deposition testimony of Adrian Bernal.1

Adrian was employed as a truck driver for Balance and delivered the cargo at issue on its behalf. He picked up fee cargo at La Porte, Texas and delivered it to Sun City Granite ("Sun City") in El Paso, Texas. After the shipper loaded the cargo on Balance's flatbed trailer, Adrian strapped the load and signed the bill of lading acknowledging the carrier's, Balance, receipt of the cargo in good condition. Balance does not dispute the fact that the cargo was in good condition upon its receipt in

122 N.E.3d 694

La Porte. Adrian T 18-22. Therefore, TQL has satisfied the first factor of Red Chamber.

TQL's satisfaction of Red Chamber's second factor, delivery failure or arrival in damaged condition, requires closer scrutiny of the credible evidence before the Court at this juncture.

Adrian transported the cargo from La Porte to Sun City in El Paso. When he arrived, he parked his truck on the street in front of Sun City's building. He did not immediately unstrap the cargo upon his arrival at Sun City. Rather, he immediately went to Sun City's office. There, he met a lady employed by Sun City. (the "Sun City lady"). He presented the bill of lading to her, she signed and dated it June 17, 2016, and gave it back to him. The Sun City lady signing fee bill of lading did not write anything else on the bill of lading at that time. Adrian T. at 48-49, 70-71. Adrian then sent a photocopy of this bill of lading to Balance...

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