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OPP v. WHEATON VAN LINES
July 12, 1999
SHELLEY OPP, AN INDIVIDUAL, PLAINTIFF,
WHEATON VAN LINES, INC., D/B/A WHEATON WORLD WIDE MOVING, AN INDIANA CORPORATION, AND SORAGHAN MOVING AND STORAGE, INC., AN ILLINOIS CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Keys, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff's and Defendants' respective
Motions for Summary Judgment on Count I of the Amended Complaint.
Also before the Court is the Motion for Summary Judgment of
Defendant Soraghan Moving and Storage, Inc. ("Soraghan") as to
Count II of the Amended Complaint. For the following reasons,
this Court grants the Defendants' Motion and denies the
Plaintiff's Motion as to Count I,*fn1 and grants Soraghan's
Motion as to Count II.
Plaintiff Shelley Opp is an individual currently residing in
Tinley Park, Illinois. (Pl.'s 12(M) ¶ 1.) Ms. Opp had lived with
her husband, Richard Opp, in Anaheim Hills, California from 1992
through August of 1996. (Defs.' Mem.Supp.Mot.Summ.J. ["Defs.'
Mem.Supp."], Ex. B, Deposition of Plaintiff ["Pl.'s Dep."] at 8.)
In October of 1996, Ms. Opp moved to Tinley Park, Illinois.
(Pl.'s Dep. at 9.)
Defendant Wheaton Van Lines ("Wheaton") is a foreign
corporation with offices in Indianapolis, Indiana. (Pl.'s 12(M) ¶
2.) Defendant Soraghan is an Illinois corporation and an agent of
Wheaton, doing business in Tinley Park, Illinois. (Pl.'s 12(M) ¶
In August of 1996, Mr. and Ms. Opp had agreed to seek a divorce
when she left the Anaheim Hills house ("the House") that they
previously shared. (Pl.'s Dep. at 8-9.) Though she did not live
there at any point after that date, many of her belongings were
still in the House. (Pl.'s Dep. at 9-10.) When the House was sold
in June of 1997, Ms. Opp decided to move her personal property to
her residence in Illinois. (Pl.'s Dep. at 10.) She contacted
Soraghan through her brother, Greg Grant, an employee of
Soraghan, and specified the items she wished to move. (Pl.'s Dep.
at 12-13.) Mr. Grant gave a list of the items to Linda Kloempken,
another Soraghan employee. (Pl.'s Dep. at 13.) Ms. Kloempken then
contacted Ms. Opp via telephone and gave her an estimate of the
moving charges. (Pl.'s Dep. at 14-15.) Ms. Kloempken also filled
out an "Estimate/Order for Service" and sent it to Ms. Opp via
fax. (Pl.'s Dep. at 15.) Ms. Opp did not sign the Estimate/Order
for Service. (Pl.'s Dep. at 20.)
Subsequently, Ms. Opp revised the list of the items she wanted
to have moved, and sent that list to Ms. Kloempken via fax, and
Ms. Kloempken sent Ms. Opp a revised estimate of the moving
charges and a revised Estimate/Order for Service form. (Pl.'s
Dep. at 16, 18.) Ms. Opp did not sign the revised form. (Pl.'s
Dep. at 20.) Ms. Kloempken then told Ms. Opp via telephone that
it would be necessary for an agent in California to do a
"walk-through" of the House in order to inspect the property to
be moved. (Pl.'s Dep. at 18.) At that time, Ms. Kloempken and Ms.
Opp discussed declaring the value of her property for insurance
purposes, and Ms. Opp indicated that she would want to insure the
property for $10,000. (Pl.'s Dep. at 19-20.)
Ms. Kloempken told Ms. Opp that someone would need to be
present at the House when the walk-through happened. (Pl.'s Dep.
at 32.) Ms. Opp told Mr. Opp about the walk-through and asked him
to be present when the walk-through took place, and also told him
that an agent of Wheaton would contact him directly. (Pl.'s Dep.
at 32.) An agent of Wheaton then came to the House, examined the
boxes that were to be moved, and made some notes.*fn2 (Pl.'s
Dep. at 35.)
Ms. Kloempken then faxed a new Estimate/Order for Service to
Ms. Opp, who signed it. (Pl.'s Dep. at 20.) In the space marked
"Shipper Intends to Declare a Valuation of" on the signed copy
were the handwritten words "Shipper to Advise ($10,000 Full
Replacement 85, 65, 45)." (Pl.'s Mot.Summ.J., Ex. A.) Ms.
Kloempken says that she told Ms. Opp that the valuation of the
property for insurance purposes had to occur at the time of
shipment. (Defs.' Reply Supp.Mot.Summ.J. ["Defs.' Reply Supp."],
Ex. 3, Affidavit of Linda Kloempken ["Kloempken Aff."] ¶ 7.) Ms.
Opp subsequently spoke with Pamela Comparin, an employee of
Soraghan, who asked her to send a check to Soraghan. (Pl.'s Dep.
at 42.) Ms. Opp then called Mr. Opp and asked him to make her
property available to the movers for transport. (Pl.'s Dep. at
UNLESS THE SHIPPER EXPRESSLY RELEASES THE SHIPMENT TO
A VALUE OF 60 CENTS PER POUND PER ARTICLE, THE
CARRIER'S MAXIMUM LIABILITY FOR LOSS AND DAMAGE SHALL
BE EITHER THE LUMP SUM VALUE DECLARED BY THE SHIPPER
OR AN AMOUNT EQUAL TO $1.25 FOR EACH POUND OF WEIGHT
IN THE SHIPMENT, WHICHEVER IS GREATER. The shipment
will move subject to the rules and conditions of the
carrier's tariff. Shipper hereby releases the entire
shipment to a value not exceeding[:]
(Defs.' Mem.Supp., Ex. A.) Below those words was a line, under
which were the words "(TO BE COMPLETED BY THE PERSON SIGNING
BELOW.)" (Defs.' Mem.Supp., Ex. A.) On the line was handwritten
"¢ .60/lb". (Defs.' Mem.Supp., Ex. A.) Underneath were the
NOTICE: THE SHIPPER SIGNING THE CONTRACT MUST INSERT
IN THE SPACE ABOVE, IN HIS OWN HANDWRITING, EITHER
HIS DECLARATION OF THE ACTUAL VALUE OF THE SHIPMENT,
OR THE WORDS "60 cents per pound per article,"
OTHERWISE THE SHIPMENT WILL BE DEEMED RELEASED TO A
MAXIMUM VALUE EQUAL TO $1.25 TIMES THE WEIGHT OF THE
SHIPMENT IN POUNDS.
(Defs.' Mem.Supp., Ex. A.) Below this was a line with Mr. Opp's
signature on it, dated "7/1/97." (Defs.' Mem.Supp., Ex. A; Pl.'s
Dep. at 59-60.) Underneath the line with Mr. Opp's signature were
the words "SHIPPER or LAWFUL REPRESENTATIVE." (Defs.' Mem.Supp.,
Ex. A.) Below this was a section for "REPLACEMENT VALUE
PROTECTION," with spaces to declare a deductible and the value of
the goods, and another space for a signature; none of those
spaces were filled in. (Defs.' Mem.Supp., Ex. A.) Ms. Opp alleges
that Mr. Opp told her that the van driver informed him that he
was required to release the property at ¢.60 per pound. (Pl.'s
Dep. at 60.) Ms. Opp also alleges that Mr. Opp told her that he
cannot remember whether he wrote "¢.60/lb" on the bill of lading.
(Pl.'s Dep. at 61.) Mr. Opp also signed the bill of lading on two
separate pages. (Defs.' Mem.Supp., Ex. A; Pl.'s Dep. at 62.) Mr.
Opp subsequently called Ms. Opp and informed her that the pickup
was complete. (Pl.'s Dep. at 50-51.) Ms. Opp's property was
weighed in Colton, California, at the House Grain Company, and
the weight was 1,700 pounds. (Defs.' 12(M) ¶ 11; Defs.' Reply
Supp., Ex. 2.)
On July 8, 1997, Ms. Comparin called Ms. Opp, told her that her
property was in transit, and asked her to bring a check to
Soraghan's office. (Pl.'s Dep. at 47.) Ms. Opp brought a
cashier's check to the office that same day and gave it to Ms.
Comparin. (Pl.'s Dep. at 48-49.) Ms. Opp had paid a fee to obtain
the cashier's check from Heritage Bank. (Pl.'s 12(N) for Count
II/Soraghan's Mot.Summ.J. ¶ 8.) On or about that same date, the
truck carrying Ms. Opp's belongings was struck by a train,
damaging much of her property. (Pl.'s 12(M) ¶¶ 15, 18.) Ms.
Comparin notified Ms. Opp about the damage on July 14, and Ms.
Opp inspected her property at Soraghan's Tinley Park office the
next day. (Pl.'s Dep. at 50, 56.) Ms. Comparin returned Ms. Opp's
check to her on July 15. (Pl.'s Dep. at 49.)