Yakubu v. Atlas Van Lines
| Decision Date | 16 July 2004 |
| Docket Number | No. CIV.A.6:03 CV 00012.,CIV.A.6:03 CV 00012. |
| Citation | 351 F.Supp.2d 482 |
| Parties | Samson and Elizabeth YAKUBU, Plaintiffs, v. ATLAS VAN LINES, Defendants. |
| Court | U.S. District Court — Western District of Virginia |
James Frederick Watson, Caskie & Frost, David Byron Bice, Lynchburg, VA, for Plaintiff.
Jane Siobhan Glenn, Melissa Walker Robinson, Mark K. Cathey, Jones, Glenn & Robinson, PLC, Roanoke, VA, for Defendants.
The plaintiffs, Samson and Elizabeth Yakubu ("Plaintiffs") commenced this action in the Circuit Court for Bedford County, Virginia, naming Atlas Van Lines and Knight Moving and Storage as the defendants. The case was removed to this Court on February 27, 2003 and, on July 18, 2003, the Court dismissed Knight Moving and Storage as a party to this lawsuit. Thus, the sole remaining defendant was Atlas Van Lines ("Defendant"). A bench trial was conducted on January 6, 2004.
1. Defendant is, and all times relevant to this action was, a professional moving company engaged in the business of moving household goods in interstate commerce.
2. In May of 2001, Plaintiffs contacted Defendant, as well as another moving company, seeking their potential services to move their family from Forest, Virginia to Plano, Texas.
3. The first face-to face meeting between the parties occurred in May of 2001 when Ed Landis, Defendant's agent, came to Plaintiffs' home to provide an estimate for the move.1
4. As a result of that meeting,23 a written Order/Estimate was prepared and
mailed to Plaintiffs (the "Estimate").4
5. Two boxes appear at the top of the Estimate. Next to the first box is the term "Non-binding." Next to the other box is the term "Binding." Neither box is checked.
6. The top portion of the Estimate also includes a chart detailing the "Estimated Cost of Containers, Packing and Unpacking Services." This chart was completed by Defendant to include: (i) the estimated number of containers and the corresponding cost; (ii) the estimated number of containers to be packed and the corresponding cost and (iii) the estimated number of containers to be unpacked and the corresponding cost. Below this section, on the right-hand side of the form, are two columns.
7. The first column, untitled, lists a total weight in pounds of 19,000, a transportation charge of $16,155.00, an additional transportation charge of $522,50, a fuel surcharge of $646.20, a charge for one flight of stairs of $323.00, an appliance charge of $130.40 and a piano charge of $95.65, all totaling $17,872.75. The amount of $17,872.75 is also reflected in the Estimate Summary, as noted in item 9, below. The next column is entitled "Non-binding Items." No charges are included within this section. The initials W/A appear next to the first item "Valuation."
8. On the lower right hand corner of the Estimate, the amount of $9,694.07 is filled in under the words "Total Estimated Charges." Under that box is another box entitled "Binding Charges." This box was left blank.
9. Also in the lower right portion of the Estimate is a column entitled "Estimate Summary." This column contains the following descriptions and charges:
(i) Cost of Containers: $ 2,492.55
(ii) Cost of Packing: $ 2,069.45
(iii) Cost of Unpacking: $ 109.60
(iv) Total Line 11: $17,872.75
(v) Subtotal Lines a thru d: $22,544.35
(vi) BLD 157 ($12,850.28)
(vii) Subtotal e and f: $ 9,694.07
10. The bottom of the form contains a line for the customer's signature.5
11. The lower right-hand section of the Estimate features a box next to a sentence that reads as follows: "I have received a copy of Publication OE — 100 `Your Rights and Responsibilities When You Move,'" and a summary of Atlas' Dispute Settlement Program.6
12. It is disputed whether Defendant clearly identified the shipment and all services to be provided pursuant to the Estimate.7
13. On the reverse side of the Estimate provides a form entitled "Table of Measurements." This form was left blank.8
14. Plaintiffs' next contact with Defendant occurred on July 12, 2001 when Defendant's agent, driver Charles Hearn, went to Plaintiffs' home in Forest, Virginia to pack and load Plaintiffs' household goods.9
15. Prior to departure, Mr. Hearn prepared and presented a single Bill of Lading for the goods to be shipped. The Bill of Lading was blank with respect to the cost of the move.10,11 16. On July 18, 2001, Defendant's truck, operated by Charles Hearn, arrived at Plaintiffs' new residence in Plano, Texas.
17. On July 18, 2001, after unloading the truck, Defendant had Mrs. Yakubu sign the Bill of Lading.
18. On July 18, 2001, Mr. Hearn advised Plaintiffs that the cost of the move was $12,345.57 and further stated that he could not unload their household goods unless they immediately paid Defendant $10,663.00, an amount equal to 110% of the $9,694.07 estimated charges.12
19. The Plaintiffs also agreed to pay the remaining balance within thirty days.
20. Subsequently, Plaintiffs paid Defendant an additional $1,846.92 after Defendant, by letter dated August 16, 2001, advised plaintiffs that the cost was not $12,345.57, but $12,509.92.
21. A second truck also left Plaintiffs' home sometime between July 12, 2004 and July 14, 2004. These goods were taken to Defendant's office in Lynchburg, Virginia, where they were ultimately placed in storage.1314
22. Defendant never transported Plaintiffs' remaining household goods to Plano, Texas.15
23. Defendant kept the goods in storage until Plaintiffs came to pick them up. Ultimately, Defendant agreed to waive its claim for $7,234.09 in storage fees and released Plaintiffs' remaining household goods to Plaintiffs on June 6, 2002.1617
24. Plaintiffs submitted a written claim to Defendant on or about September 27, 2001.
25. Defendant denied Plaintiffs' claim by letter dated January 11, 2002.
26. Plaintiffs state that as a direct result of Defendant's violation of the Carmack Amendment, Plaintiffs have suffered damages in the amount of $20,000.00. Plaintiffs' Proposed Findings of Fact, ¶ 48. Plaintiffs also contend that, as a direct result of Defendant's violation of the Carmack Amendment, they have incurred costs, including reasonable attorney fees, in excess of $15,000.00.
27. Plaintiffs provided an itemized list for estimated costs incurred as a result of Defendant's failure to deliver all of their household goods that totaled $16,287.00. In support of their claim, Plaintiffs have provided no receipts for replacement items purchased or evidence from any employer regarding any lost wages.
28. Defendant provided an original Estimate to Plaintiffs of $9,694.07. The final cost for moving the household goods that arrived in Plano, Texas on July 18, 2001, was $12,509.92. The difference between the Estimate and the final cost was $2,815.85.
1. An action for damages lies under the Carmack Amendment where goods are not transported with reasonable dispatch. Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 81 L.Ed. 20 (1936) (citing New York, Philadelphia & Norfolk Railroad v. Pennsylvania Produce Exchange, 240 U.S. 34, 38-39, 36 S.Ct. 230, 60 L.Ed. 511 (1916)) ("The statute thus applies to damages caused by delay in making delivery."); Richter v. North American Van Lines, Inc., 110 F.Supp.2d 406, 412-13 (D.Md.2000) (). Thus, Plaintiffs have stated a viable cause of action under the Carmack Amendment.
2. Based on the weight of the evidence, it appears that there were two shipments. The first was the shipment of household goods that arrived at Plaintiffs new residence in Plano, Texas on July 18, 2001 (the "First Shipment"). The second shipment consisted of the household goods that were loaded onto Defendant's truck on July 14, 2001 and that were ultimately stored in Defendant's warehouse.
3. The First Shipment does not appear to have been dispatched with "unreasonable delay" in violation of the Carmack Amendment. Nevertheless, federal regulations that implement the Carmack Amendment provide for a carrier to issue either a "binding estimate," see 49 CFR § 375.3(a)(2001), or a "non-binding estimate," see 49 CFR § 375.3(b) (2001).
4. A binding estimate must be clearly indicated as such on its face. 49 C.F.R. § 375.403(a)(3). A binding estimate must clearly describe the shipment and the services provided. 49 C.F.R. § 375.403(a)(4). If it appears that an individual shipper has tendered additional goods or requires additional services that were not identified in the binding estimate, the carrier is not required to honor the estimate. 49 C.F.R. § 375.403(a)(5). A carrier who services the new shipment must (i) reconfirm the binding estimate, (ii) negotiate a revised binding estimate or (ii) agree with the shipper in writing that the original estimate was not binding. Id. Once the shipment is loaded, a carrier who fails to comply with the items noted above may not collect more than the original binding estimate. 49 C.F.R. § 375.403(a)(6).
5. A non-binding estimate must provide a reasonably accurate estimate of the weight or volume of the shipment and services. 49 C.F.R. § 375.405(b)(1). The non-binding estimate must be clearly indicated as such on its face. 49 C.F.R. § 375.405(b)(5). A non-binding estimate must clearly describe the shipment and the services provided. 49 C.F.R. § 375.405(b)(6). If it appears that an individual shipper has tendered additional goods or requires additional services that were not identified in the non-binding estimate, the carrier is not...
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...action for damages lies under the Carmack Amendment where goods are not transported with reasonable dispatch." Yakubu v. Atlas Van Lines, 351 F. Supp. 2d 482, 489 (W.D. Va. 2004) (quoting Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 81 L.Ed. 20 (1936) (ci......
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