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EDDIE BAUER, INC. v. FOCUS TRANSP. SERVS.

April 12, 1995

EDDIE BAUER, INC., and INDUSTRIAL RISK INSURERS, an unincorporated association, Plaintiff
v.
FOCUS TRANSPORTATION SERVICES d/b/a BAKER MOTOR EXPRESS, an Illinois corporation; CENTRAL OHIO SHIPPERS, COORDINATE CORPORATION, a corporation, and GULLY TRANSPORTATION, a corporation, Defendants.



The opinion of the court was delivered by: ROBERT W. GETTLEMAN

 Plaintiffs Eddie Bauer, Inc. and its insurer Industrial Risk Insurers (together, "Eddie Bauer"), bring this three count damages action against defendants Focus Transportation Services d/b/a Baker Motor Express, Inc ("Baker Motor") (Count I), Central Ohio Shippers, Coordinate Corporation ("Central Ohio") (Count II), and Gully Transportation ("Gully") (Count III), under the Carmack Amendment, 49 U.S.C. ยง 11707. *fn1" Before the court are multiple motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and multiple motions for summary judgment pursuant to Fed.R.Civ.P. 56. *fn2" For the reasons stated below, the Court denies all of the motions for judgment on the pleadings, grants Eddie Bauer's motion for summary judgment against Baker Motor, and grants Central Ohio and Gully's motions for summary judgment against Eddie Bauer.

 Facts3

 During the time period relevant to the events alleged in the complaint Eddie Bauer (the "shipper") had in effect an ongoing "shipper-carrier" contract with Baker Motor (a "carrier") to transport merchandise to Eddie Bauer stores on bills of lading issued to Eddie Bauer at the time of each shipment. Eddie Bauer also had in effect a "shipper-carrier" contract with Central Ohio (a carrier) for Central Ohio to transport goods from Eddie Bauer's distribution center in Columbus, Ohio to various points authorized by Eddie Bauer. Central Ohio had in effect an ongoing "Agreement for Motor Carrier Transportation Services" with Gully.

 On March 20, 1992, Eddie Bauer called for Central Ohio to pick up merchandise from Eddie Bauer's distribution center in Columbus, Ohio. Eddie Bauer transferred the merchandise to Central Ohio "in a good and undamaged condition in Ohio." (Complaint P 6.) Eddie Bauer issued Central Ohio a bill of lading that provided: "FROM: COS (Central Ohio), 1580 Georgesville Rd., Columbus, OH 43228;" "TO: Baker Motor Express, 5355 Walnut St. Downer's Grove, IL 60515." Central Ohio then contacted Gully to transport the goods from Central Ohio's facility to Baker Motor's facility in Downer's Grove. In accordance with the bill of lading, later that day, Gully picked up the merchandise and Central Ohio issued Gully a new bill of lading providing for shipment to Baker Motor at the same address listed on Eddie Bauer's bill of lading.

 On Saturday, March 21, 1992, Michael Watt ("Watt"), a Gully driver, dropped the trailer of Eddie Bauer goods at the terminal in Baker Motor's facility. Watt spotted *fn4" the trailer at Baker Motor's terminal dock door number 2, leaving the seal to the trailer doors intact. No Baker Motor representative was present at the time the trailer was spotted at Baker Motor's facility. Watt filled out a Gully delivery ticket and put the receipt into Baker Motor's mailbox.

 Later that day, upon arriving at Baker Motor's facility, Scott Bertrand, Baker Motor's Vice President and General Manager ("Bertrand"), saw the trailer, checked to make certain that the seal *fn5" was still in place, looked for the paperwork in the mailbox and went inside to attempt to call Gully and Central Ohio. Bertrand never reached anyone at either Gully or Central Ohio. Before leaving Baker Motor that evening, noting that the seal was still intact, Bertrand put a pinlock *fn6" on the trailer to help secure the trailer from being moved.

 On March 22, 1992, the trailer containing Eddie Bauer's merchandise was stolen from the Baker Motor terminal. The trailer was recovered on March 25, 1992. Eddie Bauer alleges that merchandise was missing from the returned trailer, and that it sustained $ 95,095.93 in damages.

 After the loss, Eddie Bauer filed a written claim with Baker Motor (the "Damage Claim"). In July, 1992, Baker Motor, through its insurer, denied coverage for the loss. In a letter dated December 16, 1992, Sam Shaw, Assistant Corporation Traffic Manager for Eddie Bauer, sent Central Ohio and Gully the following correspondence:

 
Enclosed is a copy of a loss and damage claim that I have filed with Baker Motor Express. His insurance company has requested that I also file this claim with you. Would you please formally decline this claim and return same to me ASAP.

 In its complaint, Eddie Bauer asserts that this letter, with an accompanying copy of the Damage Claim, constituted notice of the loss to both Central Ohio and Gully. In a letter from Central Ohio to Eddie Bauer regarding the loss, dated December 23, 1992, Central Ohio wrote:

 
Since we conformed to Bakers' request, performed the loading and the line haul and they had the goods in their custody, we respectfully decline your claim.

 On January 25, 1993, Gully denied Eddie Bauer's claim, stating Gully was not liable for the loss.

 On March 18, 1994, Eddie Bauer filed a three-Count complaint against Baker Motor, Central Ohio, and Gully for the damages from the events in March 1992. After the pleadings were closed, Eddie Bauer filed timely motions for judgment on the pleadings against Central Ohio and Gully. Subsequent to these motions, Eddie Bauer filed a motion for summary judgment against Baker Motor, and Gully and Central Ohio filed motions for summary judgment against Eddie Bauer.

 Summary Judgment

 Under Fed.R.Civ.P. 56(c), a court should grant a summary judgement motion if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp., 477 U.S. 317, 323, 106 S. Ct. 2548, 2552. The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). When reviewing a summary judgement motion, the court must read the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 Where the party opposing summary judgment bears the burden of proof on a dispositive issue, it must offer specific evidence demonstrating a factual basis on which it is entitled to relief. Id., 477 U.S. at 256. The party may not rely on conclusory allegations or speculation alone to oppose summary judgment. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 402 (7th Cir., 1992). In deciding a motion for summary judgment, the district court has "one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)


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