Opinion

Varney v. United Parcel Service

Court
Superior Court of Maine
Filed
Aug 7, 2005
Status
Unpublished
On the bench
Jeffrey L. Hjelm
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE O F MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket KO. AP-05-1

William L. Varney,

Plaintiff

Order on Appeal

[i SUPERIOR COURT

United Parcel Service,

Defendant I PENOBSCOT COUNTY I I

Pursuant to 4 M.R.S.A. 5 105(3)(B) and M.R.Sm.CI.P. 1 l(a), defendant United

Farce1 Service (UPSj appeais from a judgment entered in the District Court (Bangor,

Robert Murray, J.) for plaintiff William L. Varney i n a small claims action. The court 1

has considered the parties' submissions on this appeal.

The record on appeal includes the written decision issued by the District Court

and exhibits that apparently were presented at trial. UPS has not prepared or submitted a

transcript of the trial proceedings. In its notice of appeal, UPS stated that neither party

had requested that the trial proceeding be recorded and that, consequently, the parties

could not submit a statement of the evidence pursuant to M.R.Civ.P. 76F(c). Despite this

assertion, UPS then did file a statement ostensibly pursuant to that rule, and Varney

submitted a proposed amendment to UPS' statement. The court cannot and does not

consider the factual assertions i n these submissions to constitute a part of the record on

this appeal. As UPS correctly noted in the notice of appeal, a rule 76F(c) statement is

proper in cases where electronic recordings are routine or where such a recording was

timely requested. The notation in the notice of appeal confirms that the parties did not

request a recording, although the applicable trial rules allow a party to make such a

request anytime prior to the hearing. See M.R.Sm.CI.P. 6(a). Further, in small claims

actions, electronic recordings cannot be considered "routine." The very provision in rule

6(a) suggests that recording is not a routine aspect of a small claims hearing, because if ~t

were, the rule would not place a burden on the parties to request that recording process.

Further, the applicable administrative order does not include small claims hearings

among those proceed~ngswhere electronic recordings are required. Rather, the order

refers to a small claim party's responsibility to request the recording. See Administrative

Order DC-90-10 (September 12, 1990). Therefore, because electronic recordings of

small claims hearings are not routine, and because it was not requested here, the parties

are not authorized to supplement the record as they may be seen to have attempted here,

and the record on appeal does not extend to these post-appeal submissions.

In its order, the District Court issued several findings of fact. In the absence of a

transcript, this court assumes that the trial record fully supported those findings. See

Rothstein v. Maloney, 2002 ME 179,g 11, 8 16 A.2d 8 12, 8 13-14. Further, because

neither party moved the court to issue further findings of fact and conclusions of law, this

court assumes that the trial court "made all the factual findings necessary to its decision."

Shostak v. Shostak, 2004 M E 75, 22; 851 A.2d 515,520

Here, the District Court found that Varney traveled to Colorado on a hunting trip.

He shot an elk and prepared the meat to be shipped back to Maine. He delivered 70

pounds of frozen elk meat to a UPS facility in Colorado. At Varney's request, UPS

agreed to ship the meat by its "next day air" service. However, the meat was transported

by a ground shipment, and when it arrived in Maine, it was spoiled and worthless. The

UPS tariff and shipping documents provided that UPS "does not provide a protective

service for the transportation of perishable commodities requiring protection from heat or

cold. Such commodities shall be accepted for transportation solely at the shipper's risk

for damages caused by exposure to heat or cold." See defendant's exhibit 3 , g 535.

The trial court declined to enforce any ostensible limitations on UPS' liability for

the loss because, it concluded, UPS had failed to allow Varney a reasonable opportunity

to choose between the rate he paid and a higher rate that would bind UPS to a higher

level of liability. The court found that UPS had failed to properly limit its liability under

the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. $ 14706 (1997 &

Supp. 2004), because it had fa~ledto provide Varney with "an opportunity to

meaningfully choose between at least two or more rates, or two or more liability coverage

options . . . ." Accordingly, the court found UPS liable to Varney for the actual loss. The

court then assessed Varney's damages based on a value of $40 per pound, in addition to

expenses of $205 for preparing the elk meat, and $213.66 for the shipping charges

themselves. On this basis, the court entered judgment for Varney in the amount of

$3,218.66. UPS then filed the appeal at bar.

This case is governed by federal law and, in particular, by the Carmack

Amendment to the Interstate Commerce Act. 49 U.S.C. $ 14706. The Carmack

Amendment was enacted in 1906 "to create a national scheme of carrier liability for

goods damaged or lost during interstate shipment under a valid bill of lading." Ward v.

Allied Van Lines, Inc., 231 F.3d 135, 138 (4th Cir. 2000). Pursuant to this statute, once a

carrier, such as UPS, accepts property for transportation and issues a bill of lading, it

becomes responsible for the "actual loss or injury to the property caused" by the carrier.

4 9 U.S.C. $ 14706(a)(l). A carrier "1s liable for damage to goods transported by it unless

it can show that the damage was caused by (a) the act of God; (b) the public enemy; (c)

the act of the shipper himself; (dl public authority; (el or the inherent vice nr nature of the

goods." Missouri Paci$c Railroad Co. v. Elinore & Stahl, 377 U.S. 134, 137 (1964);

Ward, 23 1 F.3d at 139-40.

T o present a prima facie case for recovery under the Carmack Amendment, a

shipper "must show 1) delivery to the carrier in good condition; 2) arrival in damaged

condition; and 3) the amount of damages caused by the loss." Camar Corp. v. Preston

Trucking Co. lnc., 221 F.3d 271,274 (1st Cir. 2000). Once a shipper establishes a prima

facie case, the burden then shifts to the carrier to show 1) that it was free of negligence,

and 2) that the damages were caused by one of the above exceptions. Allied Tube &

Conduit Corp. v. Southern Pacific Transportation Co., 21 1 F.3d 367, 370-71 (7th Cir.

2000); U.S. Aviation Underwriters, lnc. v. Yellow Freight System, /nc., 296 F. Supp. 2d

1322, 1339 (S.D. Ala., 2003).

Here, the District Court found that Varney delivered the meat to UPS in good

condition; that UPS delivered the meat to Varney in a damaged condition; and that the

value of the meat, which was a total loss, was $2,800. These factual findings correspond

to the elements of Varney's prima facie case. For the reasons noted above, this court

assumes that the evidence supported each of these findings. The District Court did not

explicitly rule that the UPS had failed to meet its burden of proving that it was free of

negligence or that the damage was caused by one of the applicable exceptions. However,

as is also noted above, this court assumes that the trial court made those findings, which

were necessary to support its judgment.

The point of focus in the parties' arguments is the trial court's conclusion that

UPS could not benefit from the limitations on liability otherwise available under the

Carmack Amendment. Section 14706(a)(1) renders a carrier liable for the "actual loss or

injury to the property. . . ." However, under the Carmack Amendment, carriers may limit

that liability for the loss to shipped products: "a carrier providing transportation or

service . . . may . . . establish rates for the transportation of property . . . under which the

liability of the carrier for such property is limited to a value established by written or

electronic declaration of the shipper or by written agreement between the carrier and

shipper if that value would be reasonable under the circumstances surrounding the

transportation." 49 U.S.C. 3 14706(c)(l)(A) (emphasis added). Many federal courts,

including the First Circuit: have construed the emphasized language as creating a

requirement that the agreement between the shipper and the carrier must "afford the

shipper 'a reasonable opportunity to choose between the regular rate and a rate reflecting

a higher level of liability."' Kemper Ins. Cos., v. Federal Express Corp., 252 F.3d 509,

515 (1st Cir. 2001) (quoting Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 276

(1st Cir. 2000). See also Hill Construction Corp. v. American Airlines, Inc., 996 F.2d

13 15, 1317 (1st Cir. 1993); Diero v. American Airlines, Inc., 816 F.2d 1360, 1365 (9th

1987); First Pa. Bank v. Eastern Airlines lnc., 73 1 F.2d 11 13, 11 16 (3rd Cir. 1984).

The District Court correctly concluded that the UPS tariff and shipping

documents controlling the parties' transaction did not give Varney a reasonable

opportunity to choose between UPS' regular shipping rate and a rate that created a higher

level of liability that UPS would accept. Indeed, the germane provisions of the

agreement imposed on Varney all risk of loss from heat or cold, which the District Court

was entitled to find was the cause of the meat spoliation.' I n other words, not only did

I In its brief on appeal, UPS recognizes that Varney's elk meat required protection from

heat.

Varney not have a reasonable opportunity to make the choice that is a necessary predicate

to any statutory lim~tationof UPS' liability, but Varney had no such opportunity at all.*

UPS argues that the "Fair Opportunity Doctrine" is no longer applicable in light

of amendments to section 14706 that became effective in 1996. This argument has been

rejected through analyses that are persuasive to this court. See, e.g., Sassy Doll

Creations, Inc. v. Watkins Motor Lines, Inc., 33 1 F.3d 834, 841 (1 lLh

Cir. 2003); Emerson

Electric Sc~pplyCo. v. Estes Express Lines Corp., 324 F.Supp.2d 7 13, 726 (W.D.Pa.

2004). Indeed, one federal court has observed that, in the view of all courts that have

considered the issue, the 1996 amendment effected no change in the law governing a

Sassy Doll, 331 F.3d at 841.

carrier's right to limit its'liabi~it~.

UPS argues finally that the trial court erred in its assessment of damages. First, it

contends that the evidence was insufficient to support a finding that the meat had a value

of $40 per pound. However, due to the limited scope of the record on appeal, the court

attributes to the District Court a sufficient basis for its factual findings. UPS also argues

that the court erred as a matter of law because it awarded Varney the costs of freezing

and otherwise preparing the elk meat for shipment ($205). UPS does not challenge the

trial courts inclusion of shipping costs incurred by Varney as a component of recoverable

damages. Because the District Court could have concluded that preparation of the meat

for shipping was an integral part of the shipping process, it was also entitled to include

the related expense as a recoverable element of Varney's loss.

The entry shall be:

2

UPS gave Varney the opportunity to check the "declared value" box on the UPS

Shipping Document that would have established a value of more than the standard

$100.00 that UPS offers all shippers. UPS argues here that the declared value provisions

of the shipping agreement are inapplicable. If it is applicable, however, the UPS General

Tariff specifically excludes perishable items from this coverage. UPS argues that it

provided Varney a reasonable choice between coverages. Nonetheless, even if Varney

had declared a value greater than $100.00, such a declaration would not have been

material, because UPS' policy on shipping perishable goods required Varney to ship the

meat at his own risk no matter how much he declared the meat to be worth. Emer.ron

Electric Supply Co. v. Estes Express Lines Corp., 324 F.Supp.2d 7 13, 728 (W.D. Pa.

2004).

For the foregoing reasons, the judgment of the District Court is affirmed.

Dated: August 7, 2005

Date Filed 1/10/05 PENOBSCOT Docket No. AP-2005-1

County

Action DISTRICT COURT APPEAL

ASSIGNED TO JUSTICE JEFFREY L. EJELM

1 WILLIAM L. VARNEY VS.

UNITED PARCEL SERVICE INC.

Plaintiff's Attorney Defendant's Attorney

EATON PEABODY WEATHERBEE & BURLOCK

80 EXCHANGE ST P 0 BOX 1127

P 0 BOX 1210 BANGOR ME 04402-1127

BANGOR ME 04402-1210 BY: STEPHEN BURLOCK, ESQ.

BY: F. DAVID WALKER, ESQ. i CHRISTOPHER BROWN, ESQ.

MURTHA CULLINA

99 HIGH STREET, 20TH FLOOR

BOSTON, MA. 02110-2320 (admitted as a

visiting atty

Date of

a10 3/15/05)

Entry

1/10/05 Appeal from District Court, District 111, Southern Penobscot, Bangor,

ME (Small Claims Docket No. BANDC-SC-2004-315) The following pleadings

were received and filed.

1. Statement of Claim (Small Claims)

2. Notice of Hearing

3. Letter from Defendant requesting Electronic Recording.

4. Plaintiff's Exhibit 1, 2, 3 & 5.

5. ~efendant's Exhibit 1, 2 & 3.

6. Plaintiff's Final Argument

7. Defendant's Trial Memorandum

8. Order (Murray, J.)

9. Notice of Appeal (Small Claims) by Defendant.

10. Appellant's Statement pursuant to Rule 76F(c).

11. Correspondence (4)

12. Certified( Copy bf District Court Docket Entries.

1/12/05 Appellee's Statement Pursuant to Rule 76F(c) filed.

1/24/05 Notice and Briefing Schedule 76G Appeal of District Court Civil Action

filed. Copy forwarded to attorneys of record.

2/7/05 Defendant's Motion for Permission to Practice as a Visiting Attorney filed.

(Chkistopher Brown, Esq.) with Exhibit 1 and a proposed order. (Fee not

paid) (Fee paid on 2/9/05)

I

2/22/05 Memorandum of Law in Support of Appeal Frbm a Judgment in Favor of the

Plaintiff and Request for Reversal filed by Appellant.

3/15/05 Order filed. Defendant's Motion for Permission to Practice As a Visiting

Attorney is hereby granted, and Christopher Brown, Esq. is permitted to

practice as a visiting attorney in this action subject to the requirements

as outlined in M.R.Civ.P. Rule 89(b). (Hjelm, J.) Copy forwarded to all

attorneys of recrod.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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