Petition for Writ of Certiorari — Burlington Air Express, Inc. v. Georgia Pacific Corp.
Supreme Court brief1995
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Supreme Court, U.S.
FILED
95° 540 OCT 2 - 1995
OFFICE Ur int CLERK
In The
Supreme Court of the Hnited States
o
October Term, 1995
BURLINGTON AIR EXPRESS, INC.,
Petitioner,
vs.
GEORGIA PACIFIC CORPORATION and BTL SPECIALTY
RESINS CORPORATION,
Respondents.
Petition for a Writ of Certiorari to the Supreme Court
of the State of Georgia
PETITION FOR A WRIT OF CERTIORARI
FRED S. CLARK
Counsel of Record
CLARK AND CLARK
Attorneys for Petitioners
P.O. Box 8151
Savannah, Georgia 31412
(912) 233-0300
(800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21
STiicebens Do intslis lel
eS RRR
i
QUESTIONS PRESENTED FOR REVIEW
In the instant case, Georgia courts allowed attorneys fees in
an air cargo case which they held was authorized by the Interstate
Commerce Act, although the Airline Deregulation Act placed air
cargo carriers outside the jurisdiction of any regulatory
commission or agency. The questions presented by the rulings of
the Georgia appellate courts in this case are:
(a) Areaircargocarriers controlled by the provisions of the
Interstate Commerce Act as stated in the rulings in this
case?
(b) Are air cargo carriers subject to the provisions of the
Airline Deregulation Act?
(c) Are air cargo carriers controlled by Federal Common
law without the application of any specific act?
(d) Where no law or interpretation of law presently allows
attorneys fees in air cargo claims (other than the rulings
being appealed in this case), may attorneys fees be
properly awarded in an air cargo claim case?
ii
PARTIES TO THE PROCEEDINGS
All parties to this proceeding and all parent companies and
nonwholly owned subsidiaries are included in the caption of this
case.
iii
TABLE OF CONTENTS
Page
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Reasons for Granting the Writ .................0000 9
The Georgia courts have allowed shippers of air
Cargo to recover attorneys fees with the erroneous
application of the Interstate Commerce Act to air
siinedee scent te séceeeecseeesss 9
Cot ha Chews dGuewsedsehceecceccsedes 10
TABLE OF CITATIONS
Cases Cited:
Arkwright-Boston v. Great Western Airlines, 767 F.2d 425
SE SES ber aa 8,9
iv
Contents
Page
Burlington Air v. Georgia Pacific, 211 Ga. App. 113, 438
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Vv
Contents
Page
Rules Cited:
Supreme Court Rule 10.1(b) ....................... 3
Supreme Court Rule 10.1(c)........................ 3
APPENDIX
Appendix A — Order of the Supreme Court of Georgia
Dated September 1, 1995 ........................ la
Appendix B — Order of the Court of Appeals of Georgia
SPIE I, SOND 6 boos des dece ce. 2a
Appendix C — Order of the Supreme Court of Georgia
tile eiseten, hh, PUP oon an a a 3a
Appendix D — Order of the Supreme Court of Georgia
ST Oy IE ken cdncoicaecc ics, 4a
Appendix E — Order of the Court of Appeals of Georgia
SME ITT OY BOO oo os nk bo ohh ss cov daecevcns, Sa
Appendix F — Order of the Court of Appeals of Georgia
RT IE vg. vowicas oooh cnet 6a
Appendix G — Order of the Superior Court of Fulton
County, State of Georgia Filed May 12, 1994
Se eT eT ST ee EL eS Ce CN ey ae 10a
Appendix H — Order of the Supreme Court of Georgia
Dated February 18,1994 ........................ l4a
a
vi
Contents
Page
Appendix I — Order of the Supreme Court of Georgia
Dated January 28, 1994 ......... cece cece ee eneee 1Sa
Appendix J — Order of the Court of Appeals of Georgia
Dated November 23, 1993 ........0-ceeeeeeeeeees 16a
Appendix K — Order of the Court of Appeals of Georgia
Dated September 27, 1993 .........22 ee eee eeeeeee 17a
Appendix L — Order of the Superior Court of Fulton
County, State of Georgia Dated November 10,1992 .. 22a
]
No.
In The
Supreme Court of the United States
4-
October Term, 1995
BURLINGTON AIR EXPRESS, INC.,
Petitioner,
vs.
GEORGIA PACIFIC CORPORATION and BTL SPECIALTY
RESINS CORPORATION,
Respondents.
Petition for a Writ of Certiorari to the Supreme Court
of the State of Georgia
PETITION FORA WRIT OF CERTIORARI
Burlington Air Express, Inc. respectfully petitions for a writ
of certiorari to review the judgment of the of the Court of Appeals
of the State of Georgia.
2
OPINIONS BELOW
1. Superior Court of Fulton County Order granting Final
Partial Summary Judgment to Plaintiffs and Denying
Defendant’s Cross Motion for Partial Summary Judgment dated
November 10, 1992. This is unreported.
2. Court of Appeals of Georgia decision on Motion for
Reconsideration dated September 27, 1993. Judgment affirmed
in part, reversed in part. Reported at 211 Ga. App. 113, 438 S.E.
2d 97.
3. Court of Appeals of Georgia denying Motion for
Reconsideration dated November 23, 1993. Unreported.
4. Supreme Court of the State of Georgia denied Petition for
Certiorari dated January 28, 1994. Unreported.
5. Supreme Court of Georgia, denial of Motion for
Reconsideration dated February 18, 1994. Unreported.
6. Superior Court of Fulton County — Final Judgment dated
May 12, 1994. Unreported.
7. Court of Appeals of Georgia — Decision dated April 5,
1995, reported in 217 Ga. App. 312, 457 S.E. 24219.
8. Court of Appeals of Georgia — Motion for
Reconsideration denied April 24, 1995. Unreported.
9. Supreme Court of Georgia — Petition for Certiorari
denied July 14, 1995. Unreported.
10. Supreme Court of Georgia Motion for Reconsideration
denied July 28, 1995. Unreported.
3
11. Court of Appeals of Georgia — Motion for Supersedeas
denied August 24, 1995. Unreported.
12. Supreme Court of Georgia — Motion for Supersedeas
denied September 1, 1995. Unreported.
STATEMENT OF JURISDICTION
The Court of Appeals of the State of Georgia entered its
judgment on April 5, 1995. The Court of Appeals denied
reconsideration on April 24, 1995. The Supreme Court of Georgia
denied certiorari on July 14, 1995. The Supreme Court denied
reconsideration on July 28, 1995. The Court of Appeals denied
supersedeas on August 24, 1995. The Supreme Court denied
supersedeas on September 1, 1995. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1257(a) and Supreme Court Rules
10.1(b) and (c).
STATUTES INVOLVED
49 U.S.C.A. § 105260(a) 8B:
(T)he Interstate Commerce Commission
does not have jurisdiction under this Chapter
Transportation of Property (including
baggage) by motor vehicle as a part of a
continuous movement which, prior or
subsequent to such part of the continuous
movement, has been or will be transported by
an air Carrier...
4
Airline DeRegulation Act of October 24, 1978, 92 Stat. § 1705
repealed the Federal Aviation Act of 1958, 49 U.S.C. §§ 1301,
et seq., 49 U.S.C. §§ 1371, 1376.
49 U.S.C.A. § 41501:
... [E]very carrier and foreign air carrier
shall establish, comply with and enforce
1. Reasonable prices, classifications, rules
and practices related for foreign air
transportation; and
2. For joint prices established for foreign air |
transportation reasonable divisions of those |
prices among the participating air carriers for ;
foreign air carriers withcut unreasonably .
discriminating against any other carriers.
-—
49 U.S.C. § 40101:
—_ >.
... [I]n carrying out Sub-part II of this part
and those provisions of Sub-part IV :
applicable in carrying our Sub-part II, the
Secretary of Transportation shall consider the
following matters among others as being in
the public interest and consistent with public
convenience and necessity:
* * * ;
(6) placing maximum reliance on
competitive market forces and on
actual and potential competition — (a)
to provide for the need Air
5
Transportation System; and (b) to
encourage efficient and well-managed
air carriers to earn adequate profits
and attract capital considering any
material differences between
interstate air transportation and
foreign air transportation.
© * ”
4. The availability of a variety of
adequate, economic, efficient and
low priced services without
unreasonable discrimination or
unfair or deceptive practices.
9. Preventing unfair deceptive,
predatorial, anti-competitive
prices in air transportation.
12. Encouraging, developing
and maintaining an _ air
transportation system relying on
actual and potential competition
a. To provide efficient
innovation and low prices;
b. To decide ona variety
and quality of and determine
prices for air transportation
services.
6
Public Laws 95th Congress, Second Session 1978, 92 Stat.
§§ 3(a) & 102(a) of The Federal Aviation Act of 1958, (49
U.S.C. § 1302) (a)) as amended to read as follows:
Factors for interstate and overseas air
transportation.
Section 102(a) in the exercise and
performance of its powers and duties under
this act with respect to interstate and overseas
air transportation, the Board shall consider
the following, among other things, as being in
the public interest, and in accordance with the
public convenience and necessity...
* * *
(3) The availability of a variety of
adequate, economic, efficient, and low price
services by air carriers without unjust
discrimination, undue preferences or
advantages or unfair or deceptive
practices ...
Public Laws 95th Congress, Second Session 1978, 92 Stat.
§ 1707, “Federal Preemption”
Section 4(a) Title I — Under the Federal
Aviation Act of 1958 (49 U.S.C. § 301, et
seq.) as amended by adding at the end thereof
the following new section:
Federal Preemption
Preemption
49 U.S.C. § 1305(a)(1):
... [E)xcept as provided in paragraph 2 of
this sub-section, no state of political
subdivision thereof and no interstate agency
or other political agency of two or more states
shall enact or enforce any law, rule,
regulation, standard or other provision
having the force and effects of law relating to
rates, routes or services of any air carrier
having authority under Title IV of this act to
provide interstate air transportation.
49 U.S.C. § 10762(a)(1):
... [A] carrier providing transportation for
service subject to the jurisdiction of the
Interstate Commerce Commission under
Chapter 105 of this title shall publish and file
with the Commission tariffs containing the
rates and (A) if a common carrier,
classifications, rules and practices related to
those rates, and (B) if a contract carrier, rules
and practices related to those rates
established under this Chapter for
transportation or service it may provide under
this sub-title.
STATEMENT OF THE CASE
This case was initiated as a claim for lost cargo. On
November 10, 1992, the Honorable Judge of the Superior Court
of Fulton County, Georgia granted partial summary judgment to
the Respondents on the cargo loss claim and allowed proof of
attorneys fees and punitive damages before a jury.
8
On appeal, the Court of Appeals of Georgia reversed the
ruling and granted the Petitioner’s Motion for Summary
Judgment on the claim for punitive damages, but allowed the
Respondents the damages for the lost cargo and allowed the
Respondents to present to the jury the question for attorneys fees.
Certiorari was applied for to the Georgia Supreme Court which
was denied [January 28, 1994] as was the Motion for
Reconsideration. [February 18, 1994]
After atrial, the Superior Court awarded attorneys fees. The
award was affirmed on appeal to the Georgia Court of Appeals
with rehearing denied [April 24, 1995] and the Petition for
Certiorari to the Georgia Supreme Court and Motion for
Rehearing denied [July 14, 1995] [July 28, 1995}.
In its ruling, the Georgia Court of Appeals stated, “although
DeRegulation took Air Cargo Carriers outside the jurisdiction of
any regulatory commission or agency, the body of laws and
principles expressed in the Act continues to be applicable to air
carriers as Federal Common Law.” See also, First Pennsylvania
Bank, N.A. v. Eastern Airlines, 731 F.2d 1113 (3rd Cir. 1984);
Burlington Air v. Georgia Pacific, 211 Ga. App. 113, 438 S.E. 2d
97.
The Petitioner herein brought to the Court’s attention the
case of Arkwright-Boston v. Great Western Airlines, 767 F.2d 425
(8th Cir. 1985). This case held that the Interstate Commerce Act
has never applied to air carriers.
9
REASONS FOR GRANTING THE WRIT
THE GEORGIA COURTS HAVE ALLOWED
SHIPPERS OF AIR CARGO TO RECOVER
ATTORNEYS FEES WITH THE ERRONEOUS
APPLICATION OF THE INTERSTATE COMMERCE
ACT TOAIR CARGO CASES.
By applying the Interstate Commerce Act, the Georgia
courts essentially rendered the Airline Deregulation Act void in
Georgia courts. Moreover, this interpretation gives a preference
to shippers in Georgia by allowing attorneys fees which are not
available to shippers in other states. This is contrary to all of the
Airline Deregulation Act provisions and purposes. In addition, it
is contrary to the ruling of the United States Court of Appeals for
the Eighth Circuit in the case of Arkwright-Boston v. Great
Western Airlines, 767 F.2d 425 (8th Cir. 1985) which holds that
the Interstate Commerce Act has never applied to air cargo
claims. No law or interpretation of law presently allows attorneys
fees in air cargo claims.
The case is important to all air cargo carriers who operate in
the State of Georgia who are subjected to claims for attorneys
fees for lost or damaged cargo which is not allowed in any other
state or foreign country.
By applying the Interstate Commerce Act in air cargo cases,
the Georgia courts have also given shippers an argument in favor
of requiring air cargo carriers to publish their rates in tariffs filed
with the Interstate Commerce Commission as required by that
Act. 49 U.S.C. § 10762. This is contrary to the Airline
Deregulation Act provision which only required the air cargo
carrier to provide for the availability of a variety of “adequate
economic and low price services by air carriers without unjust
discrimination, undue preferences or advantages or unfair
deceptive practices.” 92 Stat. § 3(a)(3).
10
It is important to nullify the dichotomy created by this
erroneous application of the Interstate Commerce Act created by
the Georgia appellate courts.
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted.
FRED S. CLARK
Counsel of Record
CLARK AND CLARK
Attorneys for Petitioners
P.O. Box 8151
Savannah, Georgia 31412
(912) 233-0300
la
APPENDIX A— ORDER OF THE SUPREME COURT OF
GEORGIA DATED SEPTEMBER 1, 1995
SUPREME COURT OF GEORGIA
Case No. $95C1278
Atlanta September 1, 1995
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed.
BURLINGTON AIR EXPRESS v. GEORGIA PACIFIC CORP.
Upon consideration of appellant’s Motion for Supersedeas,
it is ordered that the motion is denied, as it is without merit, and as
this Court is without jurisdiction over this matter, the remittitur
having been transferred to the Court of Appeals.
SUPREME COURT OF THE STATE OF GEORGIA,
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
s/ Lynn M. Stinchcomb, Chief Deputy Clerk
2a
APPENDIX B — ORDER OF THE COURT OF APPEALS
OF GEORGIA DATED AUGUST 24, 1995
Court of Appeals
of the State of Georgia
ATLANTA, AUG 24 1995
The Honorable Court of Appeals met pursuant to adjournment.
The following order was passed:
A95A0462. BURLINGTON AIR EXPRESS, INC. v.
GEORGIA PACIFIC CORP. et al.
Upon consideration of appellant’s motion for supersedeas,
the motion is hereby DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta AUG 24 1995
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above
written.
Clerk.
s/ William C. Martin
3a
APPENDIX C — ORDER OF THE SUPREME COURT
OF GEORGIA DATED JULY 28, 1995
SUPREME COURT OF GEORGIA
Case No. S95C1278 Atlanta, July 28, 1995
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
BURLINGTON AIR EXPRESS, INC. V. GEORGIA PACIFIC
CORP., ET
Upon consideration of the Motion for Reconsideration filed
in this case, it is ordered that it be hereby denied.
All the Justices concur, except Hines, J., not participating.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I hereby certify that the above is a true extract from
the minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
s/ Sherie M. Welch, Clerk.
4a
APPENDIX D — ORDER OF THE SUPREME COURT
OF GEORGIA DATED JULY 14, 1995
SUPREME COURT OF THE STATE OF GEORGIA
CLERK’S OFFICE
ATLANTA
DATE: July 14, 1995
Fred S. Clark
CLARK & CLARK
P.O. Box 8151
Savannah GA31412
Case No. $95C 1278
BURLINGTON AIR EXPRESS, INC. V. GEORGIA PACIFIC
CORP., ETAL.
COURT OF APPEALS CASE NO. A95A0462
The Supreme Court today denied the petition for certiorari in
this case.
Benham, C.J., Fletcher, P.J., Sears, Hunstein, Carley and
Thompson, JJ., concur.
Sincerely,
Sherie M. Welch, Clerk
Sa
APPENDIX E — ORDER OF THE COURT OF APPEALS
OF GEORGIA DATED APRIL 24, 1995
Court of Appeals
of the State of Georgia
ATLANTA, APRIL 24, 1995
The Honorable Court of Appeals met pursuant to adjournment.
The Following order was passed.
Case No. A95A0462
BURLINGTON AIR EXPRESS, INC. V. GEORGIA PACIFIC
CORPORATION ET AL
Upon consideration of the motion for reconsideration filed
in this case, it is ordered that It be hereby denied.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta APR 241995
I certify that the above is a true extract from the
minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
s/ William C. Martin Clerk.
6a
APPENDIX F — ORDER OF THE COURT OF APPEALS
OF GEORGIA DATED APRIL 5, 1995
SECOND DIVISION
BIRDSONG, P. J.,
JOHNSON and SMITH, JJ.
NOTICE: MOTIONS FOR RECONSIDERATION
MUST BE RECEIVED IN OUR CLERK’S
OFFICE WITHIN TEN DAYS OF THE DATE OF
DECISION to be deemed timely filed. (Court of
Appeals Rules 4 and 37, January 1, 1995)
April 5, 1995
In the Court of Appeals of Georgia
A95A0462. BURLINGTON AIR EXPRESS, INC. ev.
GEORGIA-PACIFIC CORPORATION, etal.
SM-031
SMITH, Judge.
This is the second appearance of this case before us. In
Burlington Air Express v. Georgia-Pacific Corp., 211 Ga. App.
113 (438 SE2d 97) (1993) (Burlington I), this court affirmed a
grant of partial summary judgment to Georgia-Pacific for
compensatory damages for breach of contract, including pre-
judgment interest. The issue of Burlington’s liability for attorney
fees was reserved for determination at trial. Burlington now seeks
review of the court’s final judgment, entered following a bench
trial, awarding to Georgia-Pacific its litigation expenses and
attorneys’ fees in the amount of $25,295.35.
7a
Appendix F
Burlington contends the trial court erred by denying its
motion for directed verdict on the claim for attorney fees under
OCGA § 13-6-11 and awarding attorney fees to Georgia-Pacific.
Burlington argues its refusal to pay in excess of $500 for Georgia-
Pacific’s claims was founded on a bona fide defense, it further
maintains that the attorney fees award should be vacated because
it was based on inadmissible evidence concerning settlement
negotiations between the parties.
“ ‘The issue of attorney fees under OCGA § 13-6-11 is a
question for the (factfinder) and an award will be upheld if any
evidence is presented to support the award. (Cit.)’ [Cit].”
Leventhal v. Seiter, 208 Ga. App. 158, 164 (7) (430 SE2d 378)
(1993). “OCGA § 13-6-11 provides for expenses of litigation
where the defendant has acted in bad faith, has been stubbornly
litigious, or has caused the plaintiff unnecessary trouble and
expense.” McDonald v. Winn, 194 Ga. App. 459, 459 (1) (390
SE2d 890) (1990). Bad faith warranting an award of attorney fees
“must have arisen out of the transaction on which the cause of
action is predicated.” Id. Moreover, we have noted that “there
may be bad faith in carrying out the provisions of the contract
sufficient to support the award.” Jordan Bridge Co. v. I. S. Bailey
Jr. Inc., 164 Ga. App. 124, 126 (5) (296 SE2d 107) (1982).
Finally, “[dJespite the existence of a bona fide controversy as to
liability, a [factfinder] may find that defendant ‘acted in the most
atrocious bad faith in his dealing with the plaintiff.’ [Cits.]”
Fidelity National Bank v. Kneller, 194 Ga. App. 55, 63 (3) (390
SE2d 55) (1989).
The underlying litigation in this case arises from
Burlington’s handling, as self-insurer, of claims by Georgia-
Pacific and BTL Specialty Resins for the declared value of five
lost shipments of scrap silver screen sent via Burlington Air
8a
Appendix F
Express to a refinery in Massachusetts to be refined and
ultimately reused in the manufacture of formaldehyde. Despite
having collected extra value charges for four of the five insured
shipments, Burlington refused to pay their declared value on the
basis of a tariff restriction in small print on the back of the airbills
that limits the carrier’s liability for shipments of “precious
metals” to $500. See Burlington I, supra, at 114-115 (2). Georgia-
Pacific and BTL were not made aware of the tariff restrictions
before shipment and were not provided a copy of the tariff itself
until well after Burlington had denied liability in excess of $500
on each claim. Id.
The small print on the back of the airbills also provided that
shipments of manufactured articles or components containing
precious metals with a functional rather than a decorative or
ornamental use would be accepted with a maximum declared
value of $25,000. The trial court found that Burlington exhibited
bad faith when it attempted to limit to $500 its liability for
Georgia-Pacific’s lost shipments of scrap silver screens as
“precious metals” without reference to the possible applicability
of this exception for nondecorative precious metals. The court
also found Buriington caused Georgia-Pacific unnecessary
trouble and expense in litigation, warranting the recovery of
attorney fees, by continuing to rely on the tariff’s limitation of
liability to less than the declared value of Georgia-Pacific’s
shipments in the face of clear legal authority in the Eleventh
Circuit prohibiting such limitations unless the shipper was made
specifically aware the tariff restrictions were incorporated in the
carrier contract.
Our review of the record reveals evidence supporting the
trial court’s finding that Burlington exhibited bad faith by
attempting to limit its liability for each of the five shipments to
no Te = os ues
9a
Appendix F
$500 under its tariff without disclosure of the tariff’s terms to the
shipper. Although Burlington maintains the correspondence
between it and Georgia-Pacific regarding the shipper’s attempt to
recover the declared value of its lost cargo concerned settlement
negotiations and was therefore inadmissible, the correspondence
evidences the carrier’s bad faith in carrying out the terms of the
carrier contract between the parties and is admissible for that
purpose. See Ostroff v. Coyner, 187 Ga. App. 109, 116 (5) (369
SE2d 298) (1988). Since the record contains some evidence of
bad faith, Burlington’s argument regarding the existence of a
bona fide controversy is irrelevant. Kneller, supra.
Judgment affirmed. Birdsong, P. J. and Johnson, J., concur.
10a
APPENDIX G — ORDER OF THE SUPERIOR COURT
OF FULTON COUNTY, STATE OF GEORGIA
FILED MAY 12, 1994
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
CIVIL ACTION FILE
NO. D90701
GEORGIA-PACIFIC CORPORATION and BTL SPECIALTY
RESINS CORPORATION,
Plaintiffs,
v.
BURLINGTON AIR EXPRESS, INC.,
Defendant.
FINAL JUDGMENT
This matter came before the Court for trial on May 3, 1994.
Most of the case had been resolved in Plaintiffs’ favor on
summary judgment, which Judgment against Defendant was
affirmed, in relevant part, on appeal. The only issue to be resolved
at trial was Plaintiffs’ claim for attorney’s fees and expenses
against Defendant pursuant to O.C.G.A. § 13-6-11.
The parties waived trial by jury, having the Court to sit as fact
finder. The Court considered all evidence presented by both
sides, and the parties waived findings of fact and conclusions of
law.
The Court rules in Plaintiffs’ favor, and against Defendant,
lla
Appendix G
finding that Defendant acted in bad faith toward Plaintiffs, under
the meaning set forth in O.C.G.A. § 6-13-11, in the carrying out of
the agreements entered into by the parties. Defendant's repeated
representations to Plaintiffs as to the terms of its tariff that
allegedly limited Defendant’s liability were inconsistent with the
actual language of the tariff, as Plaintiffs discovered when the
tariff was finally produced by Defendant. The Court also finds
that Defendant was stubbornly litigious, in that Defendant
accepted Plaintiffs’ shipments, charged Plaintiffs’ therefor,
including excess value charges to insure the shipments, and then
Defendant refused to pay the full insured values of the shipments,
without any just reason or defense, when Defendant lost the
shipments. This constitutes stubborn litigiousness and caused
Plaintiffs unnecessary trouble and expense within the meaning of
O.C.G.A. § 13-6-11. Thus, the Court finds that Plaintiffs are
entitled to a Judgment against Defendant for their attorney’s fees
and expenses incurred in this litigation pursuant to O.C.G.A.
§ 13-6-11.
The Court finds the amount of Plaintiffs’ attorney’s fees and
expenses to be reasonable, particularly in light of the strenuous
defenses set up by Defendant, many of which were wholly
unrelated to the tariff excuse given by Defendant prior to
litigation, and all of which the Court invalidated on summary
judgment, finding no bona fide dispute. Thus, the Court awards
Plaintiffs a Judgment against Defendant in the following
amounts:
$20,963.78 Attorney’s fees and expenses for Parker,
Johnson, Cook & Dunlevie before trial
2,000.00 Attorney’s fees for Michael Whitcombe’s trial
preparation and expense
12a
Appendix G
731.57 Airfare and hotel expense for Michael
Whitcombe
600.00 Attorney’s fees for Douglas Roberto’s trial
appearance
900.00 Attorney’s fees for Parker, Johnson, Cook &
Dunlevie for trial
100,00 Expenses for Parker, Johnson, Cook &
Dunlevie for trial
$25,295.35 TOTAL FINAL JUDGMENT
This Judgment is final and resolves this entire case. The
Judgment shall bear interest from the date of this Final Judgment
at the legal rate. Plaintiffs are also awarded costs of this action as
a part of this Judgment.
SO ORDERED, this 11th day of May, 1994.
s/ Thelma Wyatt Cummings-Moore
HON. THELMA WYATT CUMMINGS-MOORE
SUPERIOR COURT OF FULTON COUNTY
Presented by:
PARKER, JOHNSON, COOK & DUNLEVIE
By: _ s/ Everett W. Gee
Everett W. Gee III, Esq.
State Bar No. 288586
Attorneys for Plaintiffs
13a
Appendix G
Suite 700
1275 Peachtree Street N.E.
Atlanta, Georgia 30309
(404) 872-7000
Agreed to as to form:
CLARK & CLARK
By: FredS. Clark
Fred S. Clark, Esq.
State Bar No.
Attorneys for Defendant
24 Drayton Street, Suite 500
Savannah, Georgia 31402
(912) 233-0300
14a
APPENDIX H — ORDER OF THE SUPREME COURT
OF GEORGIA DATED FEBRUARY 18, 1994
SUPREME COURT OF GEORGIA
ATLANTA, FEBRUARY 28, 1994
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Case No. $94C0346
BURLINGTON AIR EXPRESS, INC. V. GEORGIA-PACIFIC
CORP., ETAL.
Upon consideration of the Motion for Reconsideration filed
in this case, it is ordered that it be hereby denied.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
affixed the day and year last above written.
Sherie M. Welch, Clerk.
i
t
;
i
Nea nM or es
15a
APPENDIX I — ORDER OF THE SUPREME COURT
OF GEORGIA DATED JANUARY 28, 1994
SUPREME COURT OF THE STATE OF GEORGIA
CLERK’S OFFICE
ATLANTA
DATE: JANUARY 28, 1994
Fred S. Clark
CLARK & CLARK
P.O. Box 8151
Savannah GA 31412
Case No. $94C0346
BURLINGTON AIR EXPRESS, INC. V. GEORGIA-PACIFIC
CORP., ETAL.
COURT OF APPEALS CASE NO. A93A1153
The Supreme Court today denied the petition for certiorari in
this case.
All the Justices concur.
Sincerely,
Sherie M. Welch, Clerk
16a
APPENDIX J — ORDER OF THE COURT OF APPEALS
OF GEORGIA DATED NOVEMBER 23, 1993
Court of Appeals
of the State of Georgia
ATLANTA, NOVEMBER 23, 1993
The Honorable Court of Appeals met pursuant to adjournment.
The Following order was passed.
Case No. A93A1153
BURLINGTON AIR EXPRESS, INC. V. GEORGIA-PACIFIC
CORPORATION ET AL
Upon consideration of the motion for reconsideration filed
in this case, it is ordered that it be hereby denied.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta NOV 23 1993
I certify that the above is a true extract from the
minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
s/ Victoria M. Laughlin Clerk.
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17a
APPENDIX K — ORDER OF THE COURT OF APPEALS
OF GEORGIA DATED SEPTEMBER 27, 1993
SECOND DIVISION
POPE C.J.
BIRDSONG, P.J., ANDREWS, J.
NOTICE: MOTIONS FOR RECONSIDERATION MUST BE
RECEIVED IN OUR CLERK’S OFFICE WITHIN TEN DAYS
OF THE DATE OF DECISION to be deemed timely filed.
(Court of appeals rules 4 and 48, March 1, 1985)
In the Court of Appeals of Georgia
A93A1153. BURLINGTON AIR EXPRESS, INC. v. GEORGIA
PACIFIC CORPORATION et al.
POPE, Chief Judge. P-076
Plaintiffs Georgia Pacific Corporation (“GP”) and BTL
Specialty Resins Corporation (“BTL”) are producers of
formaldehyde. Silver is used as a catalyst in the production
process and after use, the scrap silver may be refined and reused.
In late 1989 and early 1990, plaintiffs contracted with defendant
Burlington Air Express, Inc., a common air carrier, to transport
five shipments of scrap silver to a refinery in Massachusetts.
When these shipments were lost, defendant refused to pay
plaintiffs the full declared value of the scrap silver, relying on
provisions of its airbill and governing tariff which defendant said
limited its liability. Plaintiffs then brought this action for
compensatory damages, punitive damages and attorney fees,
alleging breach of contract and conversion, and the parties filed
cross-motions for partial summary judgment. The trial court
denied defendant’s motion and granted plaintiffs’ motion for
18a
Appendix K
summary judgment with respect to defendant's liability for
compensatory damages, and defendant appeals.
1. Defendant contends the trial court erred in applying the
provisions of the Interstate Commerce Act, 49 USCA § 101 et
seq., to a case involving the transport of cargo by air. Specifically,
defendant contends that since the air transport industry has been
deregulated, it is not governed by the Act. In Ragsdale v. Airborne
Freight Corp., 173 Ga. App. 48 (1) (325 SE2d 428) (1984),
however, this court recognized (a) that since deregulation, federal
law continues to govern the enforceability of limitation
provisions in airbills and (b) that although deregulation took air
cargo carriers outside the jurisdiction of any regulatory
commission or agency, the body of laws and principles expressed
in the Act continues to be applicable to air carriers as federal
common law. See also First Pennsylvania Bank. N. A. v. Eastern
Airlines Inc., 731 F2d 1113 (3d Cir. 1984). Accordingly, the trial
court did not err in looking to the Act to answer various questions
raised in this case.
2. For each of the five shipments, the record contains an
airbill and invoice. The airbills and invoices for the first and third
shipments show a declared value of $8,000, a specific instruction
to insure the shipment for $8,000 and a charge assessed by
defendant for the extra value of the cargo. The documents for the
second shipment also show a declared value of $8,000 and a
specific instruction to insure for that amount, but the invoice does
not show an extra value charge. For the fourth shipment the box
on the airbill for declared value is left blank; however, there is a
special instruction to “insure for $6,500" above the empty
declared value box on the airbill. Moreover, the invoice for that
shipment lists a declared value of $6,500 and assesses an extra
value charge. The documents for the last shipment show 2
19a
Appendix K
declared value of $6,500, a special instruction to insure for
$6,500 and an extra value charge. The first three shipments were
from BTL; the latter two were from GP.
The airbills, in small print on their reverse side, incorporate
by reference the terms of defendant’s tariff. Defendant argues
that these terms limit recovery for a lost shipment of precious
metal to $500. Under federal common law as reflected in the
Interstate Commerce Act, however, a carrier cannot limit his
liability to less than the declared value of the shipment by the
inconspicuous incorporation of a tariff provision “unless it is
shown that the shipper was specifically aware of it.” Bio-Lab.
Inc. v. Pony Express Courier Corp., 911 F2d 1580, 1583 (11th
Cir. 1990). Moreover, this rule that the carrier is liable for the full
declared value applies even if, as appears to be the case with one
of BTL’s shipments, the carrier fails to charge a higher rate to
compensate for its higher risk. See id. at 1584. In this case, it is
undisputed that plaintiffs were not specifically aware of the tariff
provision defendant relies on; it follows, therefore, that it is not
enforceable against them.
Defendant asserts that at least the recovery for the GP
shipment for which the declared value box was left empty should
be limited, asserting that “[b]y leaving the declared value section
blank, [plaintiff] limited its expectation of recovery to an amount
[provided on the back of the airbill].” Uniden Corp. of Am. v.
Federal Express Corp., 642 FSupp 263 (M. D. Pa. 1986).
However, this assertion is belied by the presence of the special
instruction to insure for $6,500 above the empty declared value
box, the declared value of $6,500 on the invoice and the payment
of an excess value charge, all of which clearly show an
understanding on the part of GP that the declared value was
$6,500 and a willingness to pay a higher rate to obtain the
carrier’s liability for this higher value.
20a
Appendix K
3. Section 17 of the airbill provides that any action brought
on aclaim must be brought within one year of written notice that
the claim is disallowed in full or in part. Defendant argues that it
disallowed claims on four of the shipments more than one year
(but less than two) before this suit was filed. As discussed in
Division 1, however, the enforceability of this contractual
limitation is controlled by federal common law as reflected in the
Interstate Commerce Act, and the Act states that a carrier may not
provide by contract for a period of less than two years from
written disallowance of a claim for bringing an action against it.
See 49 USCA § 11707 (e). Thus, the airbill provision requiring
any action to be brought within a year of written disallowance is
unenforceable, and defendant’s argument is without merit.
4. Defendant sent BTL two checks with the following
language on the back: “Acceptance and endorsement of this
check by the payee acknowledges full settlement and release of
all claims against [defendant] . . . .” Because BTL accepted the
checks, defendant contends it was released from further liability
on at least the two claims referenced on the checks. The record
clearly shows, however, that BTL did not endorse the checks, as
the signature line for endorsement if BTL chose to release
defendant was left blank. Consequently, defendant was not
released, and this contention is also without merit. The cases cited
by defendant for the proposition that an actual endorsement is not
required are inapposite because the checks in those cases simply
stated that they represented full and complete settlement of a
claim and did not have the language requiring endorsement
quoted above — language that defendant itself drafted.
5. For these reasons, the trial court properly granted
plaintiffs’ motion for summary judgment and denied defendant's
motion for summary judgment with respect to defendant’s
2la
Appendix K
liability for compensatory damages for breach of contract,
including pre-judgment interest. See OCGA § 7-4-15.
Additionally, the trial court did not err in ruling that questions of
fact remained for the jury regarding whether an award of attorney
fees was warranted. OCGA § 13-6-11 (expenses of litigation may
be awarded plaintiff in contract action where defendant has acted
in bad faith, has been stubbornly litigious, or has caused plaintiff
unnecessary trouble and expense); see also Spring Lake Property
Owners Assn. v. Peacock, 260 Ga. 80 (390 SE2d 31) (1990)
(question of attorney fees under OCGA § 136-11 is question for
jury). However, there is no evidence of conversion in the record
and punitive damages cannot be awarded for breach of contract.
See OCGA § 13-6-10. The trial court therefore erred in denying
defendant’s motion for summary judgment with respect to
punitive damages, and this portion of the trial court’s order must
be reversed.
Judgment affirmed in part and reversed in part. Birdsong,
P.J., and Andrews. J., concur.
22a
APPENDIX L —- ORDER OF THE SUPERIOR COURT OF
FULTON COUNTY, STATE OF GEORGIA DATED
NOVEMBER 10, 1992
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
CIVILACTION FILE
NO. D90701
GEORGIA-PACIFIC CORPORATION and BTL SPECIALTY
RESINS CORPORATION,
Plaintiffs,
v.
BURLINGTON AIR EXPRESS, INC.
Defendant.
ORDER GRANTING FINAL PARTIAL SUMMARY
JUDGMENT TO PLAINTIFFS AND DENYING
DEFENDANT’S CROSS-MOTION FOR PARTIAL
SUMMARY JUDGMENT
FINDINGS OF FACT
1.
Plaintiffs Georgia Pacific Corporation (“GP”) and BTL
Specialty Resins Corporation (“BTL”) instituted this litigation
by filing their Complaint on June 14, 1991. After receiving an
extension of time, Burlington Air Express, Inc. (“Burlington”)
23a
| Appendix L
timely filed its Answer. The facts underlying this litigation are not
in dispute. This Order concerns Plaintiffs’ Motion for Summary
Judgment as to substantially all of the compensatory damages
sought and Defendant’s Cross-Motion for Partial Summary
Judgment. These Motions were fully briefed and the Court heard
oral argument on July 10, 1992.
2.
GP and BTL (collectively “Plaintiffs”) are business
corporations which, among other things, at all relevant times
engaged in the production of formaldehyde. Plaintiffs produced
formaldehyde in factories in Hampton, South Carolina. One
component used in producing formaldehyde is silver catalyst.
After being used in the production of formaldehyde, the scrap
silver may be refined and reused in the manufacturing process.
3.
Burlington is a national common carrier that provides
transportation of a shipper’s property in interstate commerce.
From September 1989 to February 1990, BTL and GP contracted
with Burlington to ship five (5) shipments of scrap silver used in
the manufacture of formaldehyde from Hampton, South
Carolina, to Plainville, Massachusetts, where the silver would be
refined. After the scrap silver was entrusted to Burlington,
Burlington failed to deliver any of the shipments to Plainville,
Massachusetts. It is undisputed that the scrap silver was lost or
stolen while the shipments were in Burlington’s possession. It is
also undisputed that GP and BTL specifically declared the values
of these shipments on the appropriate airbills and invoices which
have been attached to Plaintiffs’ Complaint as Exhibits. In one
instance, Burlington claims that GP did not set forth a declared
24a
Appendix L
value on an airbill, Exhibit “H” to the Complaint. However, the
declared value was listed on the invoice for this shipment, Exhibit
“G” to the Complaint, and the declared value does actually appear
on the airbill, Exhibit “H,” although not in the blank specified, by
the instruction “INSURE FOR $6,500.00.” Thus, the Plaintiffs
put declared values on each of the shipments entrusted to
Burlington.
4.
When Plaintiffs made demand upon Burlington to pay the
full declared values of the lost shipments of scrap silver,
Burlington refused for the stated reason that Burlington’s tariff
prevented Burlington from accepting these shipments and
limited Burlington’s liability according to terms set forth in fine
print on the back of Burlington’s airbills, which incorporated the
terms of said tariff. First, Plaintiffs had no actual notice of
Burlington’s tariff. Second, even if Plaintiffs are charged with
notice of the tariff, the language of the tariff itself does allow
Burlington to transport precious metals up to a declared value of
$25,000 so long as the metals are not ornamental in nature. It is
uncontroverted that the scrap silver entrusted to Burlington by
Plaintiffs was used in the manufacturing process, and was not
ornamental silver. The declared values of each of these shipments
did not exceed $25,000.
»
From the time Burlington lost Plaintiffs’ shipments,
Plaintiffs entered into negotiations with Burlington,
correspondence was exchanged, and telephone conferences were
held regarding Burlington’s obligation to pay the full declared
values of these shipments. Burlington offered partial payments to
25a
Appendix L
GP in amounts Burlington acknowledged it owed even under its
tariff. GP rejected these payments. Burlington made partial
payments to BTL for two (2) of these shipments. These payments
were via checks for amounts Burlington acknowledged that it did
owe BTL notwithstanding its defense based on Burlington's
tariff. BTL received and cashed checks dated March 27, 1990, in
the amount of $673.45, and April 27, 1990, in the amount of
$585.02.
6.
On the back of each of these Burlington checks was a
statement that, “Acceptance and endorsement of this check by the
payee acknowledges full settlement and release of all claims
against Burlington Air Express, Inc. and its agents and employees
for loss, damage, or delay arising in connection with the shipment
covered with the airbill referenced on the check statement.”
Underneath said language is a line for the payee to sign. Although
BTL accepted these two (2) payments, BTL did not endorse or
sign these checks in any way. Moreover, Burlington failed to raise
any affirmative defense based on release or accord and
satisfaction in its Answer. Burlington finally raised these
defenses in response to Plaintiffs’ Motion for Summary
Judgment and in support of Burlington’s Cross-Motion for
Partial Summary Judgment. Moreover, the copies of the checks
were attached without authentication of this documentary
evidence in affidavit form. Plaintiffs made a Motion to Strike
with the Court based on the insufficiency of this evidence and the
waiver of these defenses.
-
Burlington also raised as a defense to Plaintiffs’ Motion for
26a
Appendix L
Summary Judgment and in support of Burlington's Cross-Motion
for Partial Summary Judgment a limitation of action defense.
This defense was not raised in Burlington’s Answer. This defense
is based on certain language contained in fine print on the back of
Burlington’s airbills. Section 17 of the airbills provides,
“Forwarder shall not be liable in any action unless a claim has
been filed in such action and brought within one year after the
date written notice is given to claimant that forwarder has
disallowed the claim in full or in part.” Plaintiffs instituted this
action on June 14, 1991. Burlington argued that the checks it sent
to GP and BTL constituted written notice that it disallowed their
claims. Burlington also attached to its Brief two (2) letters it
claims were written notice of partial disallowance. However,
Burlington failed to proffer these letters via affidavit. Plaintiffs
objected by a Motion to Strike based on waiver of this affirmative
defense and improper authentication of business records.
Moreover, there is correspondence properly proffered by
Plaintiffs indicating that Burlington did not finally deny GP’s
claims until August 20, 1990. Burlington did not finally deny
BTL’s claims until August 20, 1990. Litigation was instituted
within one (1) year of these dates.
CONCLUSIONS OF LAW
Ll,
The facts underlying this litigation are not in dispute. This
litigation involves interpretation of contracts, a matter of law for
the Court particularly well-suited for summary adjudication. The
Court finds that federal law based upon the Interstate Commerce
Act applies to this litigation as Burlington is a carrier in interstate
commerce. Burlington initially submitted to the Court that this
act was applicable in trying to set forth certain affirmative
27a
Appendix L
defenses, not set forth in Burlington’s Answer, in response to
Plaintiffs’ Motion for Summary Judgment. Specifically,
Burlington relied on the Interstate Commerce Act in attempting
to fashion a limitations defense based on the language on the back
of its airbills that suit must be instituted within one (1) year after
Burlington denied Plaintiffs’ claims. Plaintiffs demonstrated that
the limitation period under the Interstate Commerce Act had to be
two (2) full years. 49 U.S.C. § 11707(e). In response, Burlington
changed its position on the applicability of the Interstate
Commerce Act, arguing that pursuant to 49 U.S.C.
§ 10526(a)(8)(B), Burlington is now exempt from the jurisdiction
under the Interstate Commerce Act. While it may be literally true
that air cargo carriers such as Burlington are exempt from the
jurisdiction of the Interstate Commerce Act, in that its industry
has been deregulated, the Court finds persuasive the line of
authority found in the case of First Pennsylvania Bank N.A. v.
Eastern Airlines Inc., 731 F.2d 1113 (3d Cir. 1984). In a well-
reasoned opinion discussing the effect of deregulation on air
carriers that ship goods in interstate commerce, the court held that
substantive provisions, such as statute of limitations, still applied
notwithstanding the regulation. Deregulation primarily allowed
air carriers freedom to compete via rates. Thus, the Interstate
Commerce Act applies to Burlington’s attempts to limit its
liability to Plaintiffs.
a
The public policy contained in the Interstate Commerce Act
strongly favors holding carriers liable for the loss of goods
shipped. Flying Tiger Line Inc. v. Pento Trucking Serv. Inc., 517
F. Supp. 1108 (E.D. Pa. 1991). Plaintiffs established an
undisputed case on the loss of their five (5) shipments of scrap
silver. Thus, the burden shifts to Burlington to show why it is not
28a
Appendix L
liable for the full declared values of these shipments. S.C.
Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d
253 (7th Cir. 1982). Burlington has failed to carry this burden.
a
The Court finds Burlington’s defense based on the language
of its tariff to be meritless. This is the only apparent affirmative
defense in Burlington’s Answer. Most importantly, the language
of the tariff allows Burlington to transport Plaintiffs’ scrap silver.
However, since Plaintiffs had no actual notice of the tariff, even if
the tariff prevented transportation of scrap silver, Burlington
probably could not limit its liability in this manner. First
Pennsylvania Bank. N.A. v. Eastern Airlines Inc., 731 F.2d 1113
(3d Cir. 1984). Moreover, in the Eleventh Circuit, when Plaintiffs
declared the value of their shipments on the airbills, Burlington
could not rely on contrary terms in fine print or in the tariff to
argue Plaintiffs agreed to a lesser value. Bio-Lab, Inc. v. Pony
Express Courier Corp., 911 F.2d 1580 (11th Cir. 1990).
4.
Burlington has recently raised two (2) affirmative defenses,
to wit, statute of limitations and release/accord and satisfaction.
With respect to Burlington’s statute of limitations defense, the
Court finds that Plaintiffs had a two (2) year period to institute
litigation despite the one (1) year provision on the back of
Burlington’s airbills due to the requirements of the Interstate
Commerce Act and 49 U.S.C. § 11707(e). Plaintiffs instituted suit
well within this two (2) year period. Alternatively, the Court finds
that by not raising the statute of limitations defense in its Answer,
Burlington has waived the defense. O.C.G.A. § 9-11-8(c).
Plaintiffs were surprised at Burlington’s raising of this defense at
29a
Appendix L
such a late stage in this litigation. To allow Burlington to raise this
defense at the late date would prejudice Plaintiffs. Slappey
Builders v. FDIC, 157 Ga. App. 343, 347 (1981). Burlington
offered no excuse why it did not initially raise this defense. The
facts upon which this defense is based was clearly known by
Burlington from the beginning. Additionally, Burlington failed to
properly authenticate the relevant documents for this defense by
affidavit. O.C.G.A. § 9-11-56(e). Plaintiffs objected to this
proffer in Plaintiffs’ Motion to Strike. Finally, the Court finds that
Burlington did not finally deny Plaintiffs’ claims until within one
(1) year of suit being instituted. Thus, even assuming the one (1)
year limitations period, Plaintiffs instituted litigation within said
period. Regardless, the Court finds that checks constituting
partial payment are not notices of disallowance. Capon Textile
Trading Co. v. Consolidated Rail Corp., 538 F. Supp. 1083
(S.D.N.Y. 1982).
5.
Burlington’s defense based on release/accord and
satisfaction also fails as a matter of law. This defense only applies
to two (2) shipments out of the five (5) shipments, belonging to
BTL. BTL accepted two (2) checks as partial payment for these
shipments. First, the Court finds that the language offered by
Burlington required BTL to both accept and endorse the checks
to agree to any compromise of BTL’s claims against Burlington.
A signature line was provided. BTL refused to endorse these
checks in any way. Burlington drafted the restrictive language on
the back of its checks. The language is construed against
Burlington. Flying Tiger Line Inc. v. Pen:o Trucking Serv., Inc.,
517 F. Supp. 1108 (E.D. Pa. 1981). Thus, no release occurred as a
matter of law because BTL refused to agree to Burlington’s
terms. Second, there is no consideration for such a defense.
30a
Appendix L
Burlington merely paid BTL what it admitted owing BTL despite
the language in its tariff. McLendon v. Johnson, 69 Ga. App. 214
(1943) (case overruled on another legal issue, Barfield v. Hilton,
238 Ga. 150, 152 (1977)). No accord and satisfaction occurred
because there is no bona fide dispute as to Burlington’s liability
for the full value of these shipments. O.C.G.A. § 13-4-103(b).
Moreover, Burlington waived the release of release/accord and
satisfaction by failure to raise it in its Answer. O.C.G.A. § 9-11-
8(c). Burlington raised these defenses too late in the litigation.
Allowing these defenses would prejudice Plaintiffs when the
facts were known from -the very beginning by Burlington.
Slappey Builders v. FDIC, 157 Ga. App. 343, 347 (1981).
Moreover, Burlington did not proffer the documents upon which
it bases these defenses in a receivable manner. Plaintiffs objected
to the proffering of these materials without the appropriate
affidavit authenticating these documents as business records in
Plaintiffs’ Motion to Strike. O.C.G.A. § 9-11-56(e). Burlington
proffered the Affidavit of Steven Shipler, but the record indicates
that there was a failure to attach business records to the Affidavit
as required by Georgia law although the Affidavit referred tc said
records. Further the Affidavit purported to be in support of
Burlington’s Cross-Motion for Partial Summary Judgment. The
Affidavit did not purport to be in opposition to Plaintiffs’ Motion
for Summary Judgment. Georgia law and O.C.G.A. § 9-11-56(c)
require that an affidavit in support of a motion for summary
judgment be properly put in the record thirty (30) days before the
time fixed for the hearing. Burlington had much more than thirty
(30) days in which to have this Affidavit on file. Indeed, the
record reflects that Burlington had a full two (2) months to have
this Affidavit on file thirty (30) days before the hearing, but failed
to do so.
3la
Appendix L
6.
Burlington’s defense that there is no declared value for one
of the shipments is without merit. The shipment at issue is a GP
shipment reflected in the invoice and airbill attached to Plaintiffs’
Complaint as Exhibits “G” and “H,” respectively. An
examination of these Exhibits shows the declared value recorded
on the invoice, and a value placed upon the airbill. Although the
declared value is not in the exact location on the airbill, it is clear
that Burlington was given notice in writing of the declared value.
Thus, this attempted limitation of liability finds no support as a
matter of fact. Moreover, any failure to charge an excess value
charge is solely the failure to Burlington, and in no way relieves
or lessens Burlington’s liability to Plaintiffs. Bio-Lab, Inc. v.
Pony Express Courier Corp., 911 F.2d 1580 (11th Cir. 1990).
r 3
Plaintiffs pray for prejudgment interest, attorneys’ fees, and
punitive damages. Burlington argues that these damages are not
recoverable. The Interstate Commerce Act at 49 U.S.C. § 10103
provides that, “[e]xcept as otherwise provided in this subtitle, the
remedies under this subtitle [Interstate Commerce Act] are in
addition to remedies existing under another law or at common
law.” There is no provision in the Interstate Commerce Act
prohibiting a shipper from recovering against a carrier
prejudgment interest, attorneys’ fees, or punitive damages. Thus,
the Court finds the better line of cases allow recovery of these
damages. Troute v. Aero Mayflower Transit Co., 89 Or. App. 564,
718 P.2d 745 (1986); A.7. Clayton & Co. v. Missouri-Kansas-
Texas R. Co., 901 F.2d 833 (10th Cir. 1990); Coliseum Cartage
Co. v. Carlen Distribution Svstem, Inc., 732 F. Supp. 1340
(M.D.N.C. 1989). Regardless, Burlington has been deregulated
32a
Appendix L
from the Interstate Commerce Act. The Court finds that to make
Plaintiffs whole, Plaintiffs are entitled at this summary
adjudication stage to an award of prejudgment interest assessed
at the statutory rate of seven percent (7%) per annum. O.C.G.A.
§§ 7-4-2; 7-4-15. Plaintiffs can offer proof at trial to attempt to
recover punitive damages and attorneys’ fees.
8.
The Court finds that there are no genuine issues of material
fact and that Plaintiffs are entitled to judgment as a matter of law.
Thus, Plaintiffs’ Motion for Summary Judgment is GRANTED.
Plaintiff GP is entitled to a judgment against Burlington in the
amount of $13,000.00 for principal and $2,509.39 for
prejudgment interest, for a total judgment of $15,509.39.
Plaintiff BTL is entitled to a judgment against Burlington in the
amount of $22,741.53 for principal and $4,358.90 for
prejudgment interest, for a total judgment of $27,100.43.
Postjudgment interest shall accrue thereupon at the statutory rate.
Pursuant to O.C.G.A. § 9-11-54(b), the Court directs entry of
final judgment on the above-stated amounts because there is no
just reason for delay. The Clerk is ORDERED to issue Fi Fa’s in
these amounts. Defendant’s Cross-Motion for Partial Summary
Judgment is DENIED. Plaintiffs will be allowed to proceed to
trial to present their claims for punitive damages and attorneys’
fees.
SO ORDERED, this 10th day of November, 1992-
s/ Thelma Wyatt-Cummings
HONORABLE THELMA WYATT-CUMMINGS
JUDGE
Superior Court of Fulton County
33a
Appendix L
Presented by:
PARKER, JOHNSON, COOK & DUNLEVIE
By: s/ Everett W. Gee III
Everett W. Gee III, Esq.
State Bar No. 288586
Attorneys for Plaintiffs
Suite 700
1275 Peachtree Street N.E.
Atlanta, Georgia 30309
(404) 872-7000
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