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OPP v. WHEATON VAN LINES

July 12, 1999

SHELLEY OPP, AN INDIVIDUAL, PLAINTIFF,
v.
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.

FACTS

I. The Parties

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) ¶ 3.)

II. The Dispute

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 43-44.)

On July 1, 1997, an agent of Wheaton called Ms. Opp from California to inform her that the moving van had a flat tire, but that it would be repaired and that the van would then pick up her belongings. (Pl.'s Dep. at 44.) Ms. Opp then called Mr. Opp at his office and asked him to go to the House to unlock the door for the movers. (Pl.'s Dep. at 45.) When the movers arrived at the House, Mr. Opp signed a bill of lading authorizing Wheaton to accept Ms. Opp's belongings for transport. (Defs.' 12(M) ¶ 9; Defs.' Mem.Supp., Ex. A.) There was a space on the form marked "Carrier Liability," and below those words was the following:

  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 following words:

  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.)


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