The opinion of the court was delivered by: HART
This case involves a dispute over who is responsible for two boxcars of dry milk becoming spoiled when shipped from Houston, Texas to Vermont. Each of four parties denies it was responsible for the spoilage while pointing the finger at one or more of the other parties. There does not seem to be any serious contention that the seller of the milk, plaintiff Byrton Dairy Products, Inc., is responsible. The milk could have been spoiled by its warehouser, defendant Harborside Refrigerated Services, Inc., either by deficient storage, the manner of loading the boxcars, or by contributing to a delay in delivery. Fingers are also pointed at defendant Robbins Fleisig Forwarding, Inc., which arranged for the transportation of the milk, and defendant Atchison, Topeka & Santa Fe Railway Company, a carrier of the milk, based on claimed delays in transporting the milk and for choosing to transport the milk in unrefrigerated boxcars.
There is complete diversity of citizenship and the amount in controversy exceeds $ 50,000. The counts of Byrton's First Amended Complaint are as follows. Count I is a bailment claim against Harborside alleging the milk was damaged and water soaked when delivered to the interstate carriers. Count II is a statutory claim against Robbins pursuant to 49 U.S.C. § 11706 and/or § 14706. It is alleged that Robbins is a freight forwarder and that the milk was in good condition at the time plaintiff contracted with Robbins. Count III is a breach of contract claim that Robbins acted with unreasonable delay in arranging for shipment thereby causing the milk to become spoiled. Count IV is a claim against Santa Fe pursuant to § 11706, claiming that Santa Fe received the milk in good condition and that the milk was spoiled when it arrived in Vermont. Count V is a bailment claim against Santa Fe and again alleges Santa Fe received the milk in good condition.
Presently pending are various motions for summary judgment brought by each defendant. Defendants seek to dismiss or limit the claims against them by plaintiff, as well as to dismiss or limit some of the cross claims between the defendants. Harborside relies in part on the contention that the undisputed facts show it did not cause the spoilage. The motions of Robbins and Santa Fe are not based on factual contentions as to which party caused the spoilage.
On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir. 1997). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 132 L. Ed. 2d 257, 115 S. Ct. 2249 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Before the milk was purchased by Byrton, Robbins, on behalf of the then owner of the milk, had arranged to have it transported to Harborside's Houston warehouse for storage. The milk remained there when purchased by Byrton. In December 1994, Byrton contracted to sell 1,600 tons of the milk for use at a baby food plant in Vermont. One hundred twenty-five tons was transported by truck and Byrton retained Robbins to make arrangements to transport the other 1,475 tons by rail to a train yard in Vermont near the baby food plant. By February 1995, 16 boxcars had been sent to Vermont. The remaining milk, which was in approximately 8,700 55-pound bags, was enough for three more boxcars. On May 5, 1995, three empty boxcars were spotted at a siding for Harborside's warehouse. Harborside was responsible for loading the boxcars. The parties agree the boxcars were loaded by May 9 and that they nevertheless remained in Houston until the end of May or early June. The last three boxcars each arrived separately in Vermont from the beginning of June to the end of June. The first to arrive contained unspoiled milk. The last two to arrive contained spoiled milk unfit for human consumption. The spoiled milk was sold as salvage to an animal feed processor.
Harborside contends it is entitled to summary judgment on the ground that the undisputed evidence shows it properly loaded the last two cars and provided them to Santa Fe in unspoiled condition. Byrton contends that there is a genuine factual dispute because there is evidence from which it can be inferred that the milk was damaged by rain either during loading or while sitting in a staging area before being loaded. Santa Fe contends there are also genuine factual disputes that: (1) some damage that would have caused further spoilage during shipping had occurred while the milk was still at the warehouse, (2) Harborside did not properly load the milk, including by not packing it in shrinkwrap, and (3) Harborside caused delays in notification of Santa Fe that the boxcars had been loaded, thus contributing to the delay in the boxcars arriving in Vermont.
Harborside does not respond to Santa Fe's contentions. Therefore, Santa Fe's contentions will be taken as true for purposes of Harborside's motion for summary judgment. It is also found that a genuine factual dispute exists as to whether Harborside's loading of the milk contributed to the milk becoming wet from rain or humidity. Because a genuine factual dispute exists as to whether Harborside was a cause of the spoilage of the milk, Harborside is not entitled to summary judgment. Its summary judgment motion will be denied.
Santa Fe seeks partial summary judgment dismissing the claims and cross claims against it that are based on the Carmack Act. It contends that all claims against it must be directly based on its contract with Robbins, which incorporates Santa Fe's "Boxcar Circular." However, the Seventh Circuit has held that such claims are considered to be under the Carmack Act. Tokio Marine & Fire Insurance Co. v. Amato Motors, Inc., 996 F.2d 874 (7th Cir. 1994). Santa Fe contends Tokio Marine was wrongly decided. That, however, is not an issue for this court, which is bound to follow the decisions of the Seventh Circuit unless powerfully convinced that the Seventh Circuit would rule otherwise at the first opportunity. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987); Brenner v. Brown, 814 F. Supp. 717, 718 (N.D. Ill. 1993); Sokaogon Chippewa Community v. Exxon Corp., 805 F. Supp. 680, 695 n.14 (E.D. Wis. 1992), aff'd, 2 F.3d 219 (7th Cir. 1993), cert. denied, 510 U.S. 1196, 127 L. Ed. 2d 655, 114 S. Ct. 1304 (1994). No court, either within this circuit or outside it, has directly criticized or questioned the decision in Tokio Marine. No sufficient basis is presented for declining to follow Tokio Marine. Santa Fe's motion for summary judgment will be denied.
Robbins moves for partial summary judgment as against Byrton dismissing the Carmack Act claim on the ground that Robbins was not acting as a freight forwarder and therefore that Act is inapplicable to it. Robbins further contends that the remaining common law contract claim would then be subject to a contractual limit of liability of $ 50 per shipment.
The term "freight forwarder" is defined in the statute.
(8) The term "freight forwarder" means a person holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for ...