Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SOMPO JAPAN INSURANCE INC. v. GEANTO'S TRUCKING COMPANY

August 24, 2005.

SOMPO JAPAN INSURANCE INC. as subrogee of VICTOR COMPANY OF JAPAN, LIMITED and JVC AMERICAS CORP., Plaintiff,
v.
GEANTO'S TRUCKING COMPANY, Defendant.



The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge

MEMORANDUM OPINION AND ORDER

Sompo Japan Insurance Inc. ("Sompo" or "Plaintiff") has filed a subrogation claim against Geanto's Trucking Company ("Geanto's" or "Defendant") on behalf of its insureds, Victor Company of Japan, Limited ("JVC") and JVC Americas Corp. ("JVC Americas"). Sompo seeks recovery for claims it paid to JVC and JVC Americas relating to the theft of two thousand JVC camcorders from a Geanto's truck. Geanto's now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, claiming that this Court does not have subject matter jurisdiction; that the Illinois Insurance Guaranty Fund Act precludes Sompo's claim; that Geanto's was not a bailee of the camcorders; that Geanto's was not negligent; and that Sompo cannot support its claim for conversion. For the reasons set forth below, we grant Geanto's motion with regard to the conversion claim and deny the motion on all other claims. Facts

The following facts are undisputed. JVC and Phillips contracted with Yamato Transport to ship $2,000 JVC camcorders from Malaysia to a JVC warehouse in Aurora, Illinois. On October 22, 2001, the camcorders were shipped to O'Hare International Airport. Yamato hired Geanto's to transport the camcorders to the warehouse in Aurora. In order to deliver the large shipment by 6:00 a.m. on October 27, 2001, Geanto's loaded it on to a tractor-trailer one day earlier and stored it at the Kintetsu World Express ("Kintetsu") parking facility overnight. Some time in the middle of the night, the tractor and trailer were stolen. The tractor was later recovered with its ignition torn out and its dashboard damaged. The culprit has not yet been found.

  The Kintestu parking facility is surrounded by a fence topped by barbed wire. A gate to the lot is locked at some point in the middle of the night when the last Kintetsu employee leaves for the day. It is lit and under the twenty-four hour surveillance of a system of security cameras. One of the cameras appears to have caught the theft on tape, though the camera was not trained on the tractor when the thief entered the lot. According to deposition testimony, the picture quality is low. A figure can be seen getting out of a car and moments later is inside the gate. The figure walks to the area where the tractor is parked. The video then shows the tractor being driven to the trailer containing the camcorders.

  There were only two sets of keys for the stolen trailer containing the camcorders. Both were in Geanto's possession when the truck was left in the Kintetsu lot. The keys to each of the eighteen tractors that Geanto's owned were kept on keyrings in the Geanto's dispatch office. Each key ring also held a copy of the Kintetsu gate key. Geanto's had no written policy against copying the Kintetsu gate keys. Kintetsu had only two of its own keys to its gate, with one kept in a locked box in a room accessible only to terminal managers, the other in a locked warehouse office when not in use. The gate was not damaged the morning after the theft.

  A Geanto's Trucking form ("Shipping Pro") lists Yamato as the shipper and JVC Americas as the consignee. In the corner of the document is a paragraph in regular font and surrounded by a box that reads: "The liability of Geanto's Trucking is limited to Fifty ($50.00) Dollars per shipment unless a greater value is declared hereon and charges for such greater value paid." (Def.'s Mot. Summ. J. Ex. L.)

  Sompo brings this diversity action on purely state law grounds, including breach of contract, bailment, conversion, and negligence.

  The Legal Standard

  To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id. Discussion*fn1

  Geanto's Limitation of Liability

  As a threshold matter, Geanto contends that the unsigned Shipping Pro partially filled out by Yamato limits Geanto's liability to fifty dollars, and as a consequence, this Court does not have jurisdiction in this diversity action. Because this case involves state claims and a domestic shipment that was, from its inception, intended to be intrastate, we will analyze the issue under Illinois law.*fn2 A carrier may limit its liability where: (1) the shipper may pay additional fees in exchange for an increase in the carrier's liability; (2) the shipper is afforded the opportunity to declare a higher value; and (3) the shipper is aware that it can declare a higher value. 810 Ill. Comp. Stat. § 5/7-309(2).

  Here, Defendant's limitation of liability provision reads: "The liability of Geanto's Trucking is limited to Fifty ($50.00) Dollars per shipment unless a greater value is declared hereon and charges for such greater value paid." This language sufficiently complies with the first requirement of § 7-309(2). The second and third requirements, however, have not conclusively been met.

  Plaintiffs argue that an issue of fact exists surrounding whether JVC was given a reasonable opportunity to declare a higher value. The words of the limiting provision do suggest that a shipper may opt to pay an additional sum in exchange for Geanto's increased liability for a shipment by writing that value on the form. However, the form does not contain a space to declare a higher value. Moreover, Geanto's does not provide any information explaining what the additional rates would be in proportion to its increased liability, either on the Shipping Pro or in a tariff. Thus, a reasonable jury could conclude that JVC did not have the opportunity to make an informed decision regarding whether or not to request a higher value. Therefore, Defendant is not entitled to summary judgment based on the liability limitation.

  With regard to the third requirement, Defendant argues that a course of dealing existed between Yamato and Geanto's involving hundreds of shipments in which the same Shipping Pro was filled out by Yamato. Defendant asserts that through this course of dealing, JVC was aware of and assented to the liability limitation. Where a shipper has engaged in a series of transactions governed by contracts or invoices containing the same term limiting liability, the provision will be enforced. Capitol Converting, 965 F.2d at 395; Indep. Mach., Inc. v. Kuehne & Nagel, Inc., 867 F. Supp. 752, 764 (N.D. Ill. 1994); see also Pac. Tall Ships Co. v. Kuehne & Nagel, Inc., 76 F. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.