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Diezelski v. All My Sons Moving & Storage of Baton Rouge, Inc.

United States District Court, M.D. Louisiana

June 25, 2018

KATIE VON DIEZELSKI AND PAUL DIEZELSKI
v.
ALL MY SONS MOVING & STORAGE OF BATON ROUGE, INC.

          RULING

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion for Partial Summary Judgment (R. Doc. 20) filed on March 15, 2018. The motion is opposed. (R. Doc. 23).

         I. Background

         This action involves an interstate move of personal property from Baton Rouge, Louisiana to Houston, Texas. Katie von Diezelski and Paul von Diezelski (collectively, “Plaintiffs”) allege that Ms. von Diezelski initially contracted with All My Sons Moving & Storage of Baton Rouge, Inc. (“Defendant” or “AMS”) on or about July 13, 2016 regarding the move. (R. Doc. 1 at 7).[1] There is no dispute that AMS picked up the property in Baton Rouge, Louisiana on July 30, 2016, [2] and unloaded the property in Houston, Texas on July 31, 2016. Plaintiffs allege that the shipped property was damaged in transit, and seek recovery for property damage, mental anguish, loss of enjoyment of life, and all other recoverable damages. (R. Doc. 1 at 7-9).

         AMS removed the action based on the Court's jurisdiction under the 49 U.S.C. § 14706 (the “Carmack Amendment” to the Interstate Commerce Act). (R. Doc. 1). AMS asserts that while it charged Plaintiffs $2, 871.75 for the move, the amount in controversy, exclusive of interest and costs, exceeds $10, 000, as required by 28 U.S.C. § 1337. (R. Doc. 1 at 2). There is no dispute that the Court has jurisdiction pursuant to 49 U.S.C. § 14706 and 28 U.S.C. § 1337. There is no also no dispute that both Plaintiffs have standing to sue under the Carmack Agreement. See Banos v. Eckerd Corp., 997 F.Supp. 756, 762 (E.D. La. 1998) (“[C]onsignors, holders of the bills of lading issued by the carrier, and persons beneficially interested in the shipment although not in possession of the actual bill of lading, in addition to shippers, have standing to sue under the Carmack Amendment.”).

         AMS now moves for partial summary judgment for the purpose of clarifying the substantive law governing this dispute; to establish that AMS's liability for damaged property is limited to sixty (60) cents per pound per article; and to obtain dismissal of Plaintiffs' general damage claims for “past and future mental anguish and emotional distress.” (R. Doc. 20-2 at 3).

         In support of partial summary judgment, AMS relies on an Affidavit of Brandon Pollard, AMS's Operations Manager (R. Doc. 20-3), and the following documents: the Order for Service (R. Doc. 20-1); the Uniform Household Goods Bill of Lading and Freight Bill (“Uniform Bill of Lading”) (R. Doc. 20-5); and the Combined Uniform Household Goods Bill of Lading and Freight Bill (“Combined Uniform Bill of Lading”) (R. Doc. 20-6). Mr. Pollard, asserts that each of the foregoing documents “were reviewed and signed by the shipper [Katie von Diezelski] or her father, Paul Von Diezelski.” (R. Doc. 20-3 at 2). Mr. Pollard further asserts that the Combined Uniform Bill of Lading “contains Valuation causes which were approved by the shipper” and that “state the carrier's standard liability is sixty (60) cents per pound per damaged item.” (R. Doc. 20-3 at 2). Finally, Mr. Pollard asserts that the shipper, Ms. von Diezelski, “was provided with the opportunity to obtain insurance from a third party to protect the shipment but chose not to do so.” (R. Doc. 20-3 at 2).

         The Combined Uniform Bill of Lading provides, in relevant part, the following language in its “Valuation” clause:

CUSTOMER (SHIPPER) IS REQUIRED TO DECLARE IN WRITING THE RELEASED VALUE OF THE PROPERTY. THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE CUSTOMER (SHIPPER) AND CONFIRMED BY THEIR SIGNATURE HEREON TO BE NOT EXCEEDING 60 CENTS PER POUND PER ARTICLE UNLESS SPECIFICALLY EXCEPTED. THE CUSTOMER (SHIPPER) HEREBY DECLARES VALUATIONS IN EXCESS OF THE ABOVE LIMITS ON THE FOLLOWING ARTICLES:
SHIPPER-IMPORTANT-READ WHAT YOU ARE SIGNING[.]

(R. Doc. 20-6 at 1). The “Valuation” clause is signed, but there are no articles or valuations listed. The Combined Uniform Bill of Lading also provides, in relevant part, the following language regarding obtaining insurance and the carrier's standard liability:

1. ALL MY SONS ADVISES YOU TO OBTAIN ADDITIONAL INSURANCE TO PROTECT YOURSELF FROM LOSS AND/OR DAMAGE OF GOODS. HOUSEHOLD GOOD CARRIER'S LIABILITY FOR LOSS OR DAMAGES TO ANY SHIPMENT IS 60 CENTS PER POUND PER ARTICLE, UNLESS THE CARRIER AND SHIPPER AGREE, IN WRITING, TO A GREATER LEVEL OF LIABILITY . . . . INITIAL ___.
60 CENTS PER POUND PER ARTICLE (THIS IS NOT INSURANCE). INITIAL ___.

(R. Doc. 20-6 at 3). The foregoing spaces are initialed, and the document is signed and dated July 30, 2016. (R. Doc. 20-6 at 3). Plaintiffs have neither confirmed nor denied, however, that one of them initialed and signed the Combined Uniform Bill of Lading on July 30, 2016.

         AMS argues that in light of the foregoing language in the documents presented to Plaintiffs prior to the shipment, and the signatures obtained, the Court must find that AMS's liability is limited to sixty (60) cents per pound per article. AMS also seeks a ruling providing that Plaintiffs' general damage claims for past and future mental anguish and emotional distress are preempted by the Carmack Agreement.

         In opposition, Plaintiffs rely on an Affidavit of Paul von Diezelski (R. Doc. 23-2), [3] and focus on the Order for Service and the Uniform Bill of Lading. Mr. von Diezelski submits that he signed these documents, under protest, on July 31, 2016, the day the shipped items were unloaded in Houston, Texas. (R. Doc. 23-2 at 1). The Uniform Bill of Lading contains a “Valuation” clause providing two options. At an additional cost, Option 1 provides the shipper with “full replacement value protection, ” which provides coverage of the value declared or six (6) dollars per pound per article shipped. Option 2 provides that the shipper with the opportunity to waive “full replacement value protection, ” and agree to limit the shipper's liability to sixty (60) cents per pound per article shipped. The affidavit does not state whether one of the Plaintiffs signed the Combined Uniform Bill of Lading prior to the move.

         Plaintiffs represent that prior to unloading the items, an AMS mover told Mr. von Diezelski to sign ‘Option 2' under the carrier's liability section. Mr. von Diezelski refused, and instead signed “Option 1, ” adding the following statement in handwriting: “I am not sure what this is but I'll sign so I can get my stuff - I am not waiving any damage done.” (R. Doc. 20-5 at 1). Mr. von Diezelski also added the following statement above his signature on the Order of Service: “Note: My ...


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