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WHITE v. UNITED VAN LINES

February 21, 1991

KATHY WHITE, Plaintiff,
v.
UNITED VAN LINES, INC., Defendant


John F. Grady, United States District Judge.


The opinion of the court was delivered by: GRADY

JOHN F. GRADY, UNITED STATES DISTRICT JUDGE

 This case, arising under the Interstate Commerce Act, comes before us on defendant's motion for summary judgment. For the reasons stated below, we grant defendant's motion.

 FACTS *fn1"

 In December 1984, plaintiff Kathy White ("White") hired United Van Lines ("United") to pack, store and transport her household goods from San Francisco to Chicago. At that time, White purchased United's "Gold Umbrella Full Value Protection" package, which limited United's liability on the shipment to $ 50,000.00. The "Gold Umbrella" contract incorporated all of the terms of the bill of lading. White signed the bill of lading on April 18, 1985, "subject to inspection," when United delivered her goods to Chicago.

 When her goods arrived in Chicago, White discovered that several items were damaged. On September 4, 1985, White filed a claim with United. Memorandum in Opposition to Motion for Summary Judgment and/or Dismissal ("Plaintiff's Memo"), Exhibit D. White and United communicated frequently over the next year, and United made two settlement offers, both of which White rejected. Finally, on October 27, 1986, United sent a detailed listing of its disposition of White's claims and offered $ 2,574 in allowances "in full and final settlement" of White's claim. Memorandum in Support of Motion for Summary Judgment and/or Dismissal ("Defendant's Memo"), Exhibit D.

 On January 27, 1987, United wrote White seeking a response to the October letter. About seven months later, on August 17, 1987, White's brother, lawyer William White ("Mr. White"), sent United a letter discussing liability under the "Gold Umbrella" policy. United responded on August 31, 1987, and included inventories to show White's goods had pre-existing damage. United's August 31 letter further stressed that the "Gold Umbrella-Full Value Protection" coverage did not apply while White's goods were in storage. On December 3, 1987, United claims to have sent Mr. White a letter requesting his acknowledgement of the earlier letter and expressing United's desire to resolve the claim under the terms of the October 1986 settlement offer. Mr. White states that he never received this letter. Plaintiff's Memo, Exhibit C. Nonetheless, more than two years passed without any further communication between White and United.

 On January 5, 1990, White's present counsel wrote United and requested that United prepare an additional inventory to aid "further evaluation" of White's claim. On January 10, United responded, noting that the claim was untimely since more than three years had passed since the final settlement offer of October 27, 1986. However, United stated that its final offer was still open. Plaintiff's Memo, Exhibit L.

 White filed this action on May 31, 1990. In Count I of the complaint, she alleges that United violated the terms of the bill of lading by refusing to pay her stated damages. In Count II, she alleges that United's "fraudulent, oppressive and . . . reckless" conduct in denying White's claim violated the terms of the "Gold Umbrella" liability package. United now moves for summary judgment on both counts, or dismissal of Count II pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 DISCUSSION

 Summary judgment is appropriate if there exists no genuine issue of material fact and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "A genuine issue of material fact exists only where 'there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.'" Dribeck Importers, Inc. v. G. Heileman Brewing Co., Inc., 883 F.2d 569, 573 (7th Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In determining a motion for summary judgment, we must view all inferences in the light most favorable to the non-moving party. Regner v. City of Chicago, 789 F.2d 534, 536 (7th Cir. 1986).

 The parties agree as to the basic course and timing of events. White argues that she cannot be bound by the limitations provision because she had no actual knowledge of the provision when the contract was formed. However, it is well established that a shipper is chargeable with knowledge of a carrier's tariff provisions that are properly filed with the Interstate Commerce Commission ("ICC"). As our court of appeals has observed, "In accordance with . . . the stringent language of the [Motor Carrier Act, 49 U.S.C. § 317] it has long been held that properly published tariffs are incorporated into any agreement between the shipper and carrier. . . . '[The shipper], as well as the carrier, must be presumed to know the law . . . .'" Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619, 621 (7th Cir. 1979) (citations omitted) (quoting Pittsburgh, Cincinnati, Chicago & St. Louis R.R. Co. v. Fink, 250 U.S. 577, 581, 63 L. Ed. 1151, 40 S. Ct. 27 (1919)).

 The Carmack Amendment (codified at 49 U.S.C. § 11707) states that a carrier may not establish a limitations period of less than two years for civil actions. Here, United's bill of lading contained a limitations period of two years and one day from the date of written disallowance. *fn2" Under the statute, "the period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice." 49 U.S.C. § 11707(e).

 We must determine whether United's written notice of disallowance of October 27, 1986, was sufficient to trigger the limitations period in the bill of lading and render this suit untimely. It is well established that a bill of lading's limitations period is triggered when the carrier's notice of disallowance is clear, final and unequivocal. John Morrell & Co. v. Chicago, Rock Island & Pacific R.R. Co., 495 F.2d 331, 333 (7th Cir. 1974). In considering whether the letter of disallowance is clear, ...


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