Petition for Writ of Certiorari — Atlas Van Lines, Inc. v. Lewis (No. 08-901)
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
mfp ae TT vs WA.
2
&) No. 08-_____- 0. 8-9! 17 = 2009
OFFICE JF THE CLERK
In The
Supreme Court of the Anited States
2
ATLAS VAN LINES, INC.,
Petitioners,
RICHARD J. LEWIS AND PATRICIA L. LEWIS,
Respondents.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit
PETITION FOR WRIT OF CERTIORARI
@
JAMES A. WESCOE
RAWLE & HENDERSON
The Widener Building
One South Penn Square
Philadelphia, PA 19107
(215) 575-4200
Counsel for Petitioners
(OOK LAW RRIEP PRINTING ©) (S001 229-6964
OK CALL COLLECT 12) 542-2831
QUESTION PRESENTED FOR REVIEW
Did the United States Court of Appeals for the
Third Circuit err in ruling that the respondents’
October 26, 2004 letter to Atlas Van Lines, Inc., an
interstate motor carrier, in which respondents failed
to assert any dollar amount or estimated dollar
amount or range of dollar amounts for their damages,
nonetheless satisfied the federal claim-filing re-
quirements of 49 U.S.C. §14706 and 49 C.F.R.
§ 370.3(d)(3), and, as a consequence, undermine the
intent and purpose of the Carmack Amendment by
establishing a new, third standard for determining
the sufficiency of interstate cargo claims that further
defeats and contradicts the goal of uniform and cost-
effective claim settlement practices for shippers and
carriers throughout the United States?
i
PARTIES TO THE PROCEEDINGS
Pursuant to Supreme Court Rule 14.1, petitioner
states that all parties to the proceedings in the court
whose judgment is sought to be reviewed are listed in
the caption.
RULE 29.6 STATEMENT
The parent company of petitioner Atlas Van
Lines, Inc. is Atlas World Group, Inc., which is not a
public company. No publicly held company owns more
than 10% of petitioner’s stock.
ili
TABLE OF CONTENTS
Page
Question Presented for Review .......................0068 1
SMPLION CO CMO PLOCROGIIAGN 6..co. oececccsisevizcncasdacsveavess i
De re OG niss ssccge cede sens nessacesvapeencineasenes ii
IIE stein sec itrantncs sorcarriiectcesaeean Vv
IS PMI osu ieinve-cknssueTcnpsavepinieszenemeabbesbriaees 1
IIE 65 dass soxietcenindiekbutcvacensicanemeanadenaoeke 2
Statutes and Regulations Involved ..................... 2
BIA MOAt Of MS CANS ..0..cccscccssrccciscsesccscscvansseseces 3
Reasons Why the Writ for Certiorari Should Be
IE sinssccsnticis eccxascismmnesssen dats eel 10
Io Siitihiisinkelcctisacaveeeans saan 32
Appendix
Opinion of the United States Court of Appeals
for the Third Circuit dated September 9,
2008 vacating the Order of the District Court
and remanding for further proceedings con-
membernt WICH CHO COPIOP 5.5 .ccccscnsasscenccscressnssossenes App. 1
Opinion of the United States District Court for
the Middle District of Pennsylvania, dated
EM DO OE iNisxnicinisnstiicinurcetinvsakeseliebsbleess App. 23
Opinion of the United States Court of Appeals
for the Third Circuit dated October 9, 2008
denying the Petition for Rehearing and/or
PCO TE THY eiincstiessisceiciiocnsecdcaverteacoueee App. 38
Statutes and Regulations Involved................... App. 40
Complaint with Attached Exhibits ................... App. 50
TABLE OF CONTENTS — Continued
Page
I ii el catiedixvaterincessievindaaviareeulens App. 87
COOCOROE BS, BOE Lt oe ccsicceccssscccsccssevsseccesees App. 123
November 4, 2004 Letter.................cceeeese eens App. 126
November §, 2005 Latter. ...........00.0..cccssshroceesses App. 128
TABLE OF AUTHORITIES
Page
CASES
Adams Express Co. v. Croninger, 226 U.S. 491
= ES SE AAO teeter PEED OR Pe SEMIS 12, 13, 14
Atchinson T:. & S.F. Ry. v. Harold, 241 U.S. 371
SERIA ee ROR RB eo SCE deere RO ey Ieee 14
Charleston & Western Carolina Ry. Co. v.
Varnville Furniture Co., 237 U.S. 597 (1915)......... 14
Cleveland v. Beltman North American Van
Lines Co., Inc., 30 F.3d 379 (2d Cir. 1994) ............. 15
Coughlin v. United Van Lines, LLC, 362
¥. Supp. 2d 1166 (C.D. Cal. BO0S)...cccccccsccccsccssccseecs 15
Culver v. Boat Transit, Inc., 782 F.2d 1467 (9th
Rn CAIN «bc cac'a 3 sicshcaabavasdad (ea doaadasaaeacedsthnbstabetanaeiakesee 21
Ford Moior Co. v. Transport Indem. Co., 795
Be OO CO CAE, WG on ovcvincvcniciescsivicescccssosvesescovens 17
Fulton v. Chicago, Rock Island & P.R. Co., 481
Brae Ge I RNS. BIFFY Spas ccc cee Rckce hecticicgssceanncndons 15
Georgia, Florida & Alabama Ry. Co. v. Blish
Milling Co., 241 U.S. 190 (1916)......... ieieuccrxat 13, 14
Hoskins v. Bekins Van Lines, 343 F.3d 769 (5th
RN NEY 9234 chiemcsicdacsgs cadakecacidsstemunteicen take ae ta daokinanes 15
Hughes v. United Van Lines, 829 F.2d 1407 (7th
es EO a cviddstestasienticssastideeitoNana serie reuedeviadi esa 16
Hughes Aircraft v. North American Van Lines,
970 F.2d 609 (9th Cir. 1992)
TABLE OF AUTHORITIES — Continued
Page
Ins. Co. of N. Am. v. G.I. Trucking Co., 1 F.3d
903 (9th Cir. 1993), cert. denied, 510 U.S.
tie iso csdusetiatcnaapinedcdigniepeshssbanleikeshvas neste: 21
Intech, Inc. v. Consolidated Freightways, Inc..,
ee Be SI CEBE CAG, LOGT) vcccscsessesscscesscesssecesscescees 15
Kvaerner E&C Metals v. Yellow Freight Sys.,
Inc., 180 Fed.Appx. 172 (9th Cir. 20085) ................. 21
Louisville & Nashville R. Co. v. Rice, 247 U.S.
NE rns cos Saco tanassncgvereseuardsbseausuvadsedsndqueheieasses 14
McLaughlin Transportation Systems, Inc. v.
Rubinstein, 2005 U.S. District LEXIS 19932
IN I oreo dg sce colnsiecadaceusnchvaceveaiaes oineuarks sea 22
Missouri Pacific Ry. Co. v. Elmore & Stahl, 375
AN I 0 as cied iva 25 didn iaadsus nave veaeaeherecsdasaian 15
Moffit v. Bekins Van Lines Co, 6 F.3d 305 (5th
als te tone siauecs gobaguauiaelceniauneainasins 15
Myrick v. Michigan Central R.R., 107 U.S. 102
SNE Pasta cet thd csacse dei duacdicaeyeeedansiane Giacsbaiasaciarsbin’ 14
Nedlloyd Lines B.V. Corp. v. Harris Transport
Co., 922 F.2d 905 (ist Cir, 1991)...............ccsc0es. 22, 26
New York, N.H. & H.R. Co. v. Nothnagle, 346
ee <n es cnsls co pkuenespcaviuesehduveaenasesesoendenes 14
New York, New Haven & Hartford Railroad Co.
v. Nothne zle, 346 U.S. 128, 73 S.Ct. 986
EN Fee oe a ocad ata Weeki aden auaseaGaveuers ai
Paper Magic Group v. J.B. Hunt Transport, 318
eee Ue COE GEE, IIR os ceveckscndescvcaccoccnconsenncevesesechs 15
Vii
TABLE OF AUTHORITIES — Continued
Page
Pathway Bellows, Inc. v. Blanchette, 630 F.2d
900 (2d Cir. 1980), cert. denied, 450 U.S. 915
CE or er anise haces is aetiekiceccdipeeinediolaaioveen 17, 22, 26
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
SI Tididuithesdiciadnrcathenkusateses tent deeuninisodissuaieamiedsacgsdiais 14
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
CRT aii: cincideladscisiateesdencddacsncesekcelesns mbes cauntaudonareaiiacsns 32
Rint v. United Van Lines, Inc., 104 F.3d 502,
cert. denied, 118 S.Ct. 51, 522 U.S. 809, 139
EE IEEE isto wan qd sronaiiacapenccuenaase dav anediewasarneaiaeietuas 28
Salztein v. Bekins Van Lines, Inc., 993 F.2d
Bee AGRE ae, RI inv cn vice co cisncivicennavncaunveredrsvieces 22, 26
Seimens Power Transmission & Distribution, Inc.
v. Norfolk Southern Railway Company, 420
F.3d 1243 (Lith Cir. 2008).................0.ceccee0. 22, 26, 28
S&H Hardware Supply Co. v. Yellow Transp.,
Inc., 432 F.34: 560 (Sd Cir. ZOOS)..........ccscccccscesesscess 23
Shao v. Link Cargo (Taiwan) Limited, 986 F.2d
Re I aris OED ah scat cs canna cise naseedencsessuaaeaieaesievannss 15
Smith v. United Parcel Service, 296 F.3d 1244
ee IS IE ixicccas-senciudshivccs vdvdnnsacanavcacbaaeindeatuns 15, 16
Suarez v. United Van Lines, Inc., 791 F. Supp.
ee eee IS 2, 2, <c., pca sh eed svccensvannsr ub mease tool 28
Taisho Marine & Fire Ins. Co. v. Vessel
Gladiolus, 762 F.2d 1364 (9th Cir. 1985) ............... 22
Taylor v. Mayflower Transit, Inc., 161 F. Supp. 2d
Se We re Ng cat ac sy ac tac cans ocueuen uauks is eectenneasaes 3
Vill
TABLE OF AUTHORITIES — Continued
Page
Thurston Motor Lines, Inc. v. Jordan K. Rand,
Bs, Ee Ee OE FAO) cntncrerccnsncoccrsicsaincessresscessess 14
Trepel v. Roadway Express, Inc., 194 F.3d 708
SAM IE odds icse acct hd vehindashvipabeunndsdivceiabisnensosvuds 22
Underwriters at Lloyds of London v. North
American Van Lines, 890 F.2d 111 (10th Cir.
a cvs oe hous eeeaktsdenieduncssayesasiauthapod cevankcknxtess 16
W.D. Lawson & Company v. Penn Central
Company, 456 F.2d 419 (6th Cir. 1972).................. 16
STATUTES
I Os du boadin on badenedne kebeuene 2
Se I: ON PIII cn waa conidia debut snunncasevenisnevsacdianmnedinonensbasel 7
aE RE OI ons tices Gabush dedtunddusiensounsssaddedueumeneh 7
Se I a ca. bes cacubsaecesscick’asawavessouasanssnceseel
es Oe I ities i vty ks dannchecssectnswictedawwgnivees 2, 12
FS BO ne nna vcecaccnvenstevescvnvzexssnsvececs 17, 29
RULES
United States Supreme Court Rule 10(a)............31, 32
oes hoa ay San anne aa puny aides Aduaconeen 18
i ee I coins conc pan cis ullndrossiientelacanceoesssuiveds 2,5
ME BTR) ei csescstvesscccdccncecccntscscscecessccsnsess 18, 29
BEEF Be. FST vis eveccsccrccccsvcvcaivsssrcene 7, 20, 23, 25, 29
ix
TABLE OF AUTHORITIES — Continued
Page
49 C.F. © ai iisccseseccvesesvees passim
4D C.F BR. BB eae eit a dikcbacinccsscecceseccecc sees. 28
OTHER AUTHORITIES
Ex Parte No. 263: Rules, Regulations, and
Practices of Regulated Carriers with Respect
to the Processing of Loss and Damage
Claimrp, S40 LG Gee ita tecrecsercccsccssccscocccesees 28
Sorkin, Goods in Transit - Selected Regula-
tions, Statutes and Treaties, Vol. 2, § 7.09[3]......... 23
1
PETITION FOR WRIT OF CERTIORARI
To the Honorable, the Chief Justice and the
Associate Justices of the Supreme Court of the
United States:
Petitioner Atlas Van Lines, Inc. respectfully
prays that a Writ of Certiorari issue to review the
judgment of the United States Court of Appeals for
the Third Circuit entered on September 9, 2008,
rehearing denied on October 9, 2008, which vacated
the May 30, 2007 judgment and opinion of the United
States District Court for the Middle District of Penn-
sylvania, wherein the Court dismissed plaintiffs’
Complaint pursuant to Federal Rule of Civil Proce-
dure 12(b)(6) and remanded the case to the District
Court for further proceedings and, in support thereof,
represents as follows.
OPINIONS BELOW
By Order and Opinion dated May 30, 2007, the
United States District Court for the Middle District
of Pennsylvania dismissed respondents’ Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
The District Court’s ruling is reported at 2007 WL
1576452 (M.D. Pa. May 30, 2007). Respondents filed a
timely appeal to the United States Court of Appeals
for the Third Circuit, and the Precedential Opinion
was issued on September 9, 2008. The Precedential
Opinion is reported at 542 F.3d 403 (3d Cir. 2008).
The District Court ruling and the ruling of the United
2
States Court of Appeals for the Third Circuit are
reproduced in the Appendix hereto, at App. 1 and
App. 23, respectively. The judgment of the United
States Court of Appeals for the Third Circuit denying
the Petition for Rehearing is also reproduced in the
Appendix hereto. (App. 21).
+
JURISDICTION
The Order and Precedential Opinion of the
United States Court of Appeals for the Third Circuit
was entered on September 9, 2008. The Petition for
Rehearing and/or Rehearing En Banc was denied on
October 9, 2008. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1254(1).
«
STATUTES AND REGULATIONS INVOLVED
The Carmack Amendment to the Interstate
Commerce Commission Termination Act of 1995, 49
U.S.C. § 14706; and,
Part 370.3 of Title 49 of the United States Code,
at 49 C.F.R. § 370.3, specifically 49 C.F.R. § 370.3(b 3).
The pertinent texts of the foregoing statute and
regulation are set forth in the Appendix pursuant to
Rule 14(f), at App. 40 and App. 46, respectively.
.
3
STATEMENT OF THE CASE
Respondents are now residents of Alpine, New
York. (App. 50). Petitioner Atlas Van Lines, Inc.
(“Atlas”) is an interstate motor carrier that transports
household goods in interstate commerce, with its
principal place of business in Evansville, Indiana.
(App. 50).
Respondents entered into a contract to sell their
Pennsylvania residence to a non-party purchaser on
or before August 27, 2004. (App. 51). The sales con-
tract required respondents to supply a vacant house
to the non-party purchasers at the time of closing.
(App. 52).
Respondents contracted with Atlas to pack, load
and transport their household goods from their old
residence in Pennsylvania to their new residence in
New York. (See Bili of Lading at App. 52). Pursuant to
the Bill of Lading, Atlas, through its disclosed agent,
Warner’s Moving & Storage, packed, loaded and
transported respondents’ household goods on, during
and between August 23, 2007 and September 3, 2004.
' At all times material hereto, Warner’s Moving & Storage
was a disclosed houschold goods agent for defendant/petitioner
Atlas Van Lines, Inc. Therefore, pursuant to 49 U.S.C. § 13907,
which states that only the motor carrier can be held liable for
damages arising from interstate shipment, Atlas Van Lines, Inc.
is the sole proper defendant/petitioner in this case. See, ey.,
Taylor v. Mayflower Transit, Inc., 161 F. Supp. 2d 651, 658
(W.D.N.C. 2000).
4
In preparation for the move, Atlas confirmed that
respondents’ goods would be packed on August 23,
2004 and August 24, 2004 and loaded onto delivery
trucks on August 25, 2004 and August 26, 2004. (App.
52). However, for reasons not relevant to the instant
analysis, Atlas did not complete the loading process
before the August 27, 2004 settlement date on the
Pennsylvania residence. Allegedly, as an unforeseen
consequence of this slight delay, the sale of the resi-
dence did not occur. However, the respondents’ goods
were ultimately loaded and were delivered on Sep-
tember 3, 2004. The Bill of Lading provided that “asa
condition precedent to recovery, a claim for any
damage ... or delay, must be filed within nine
months after delivery. .. . (App. 96).
The following month, on October 26, 2004, re-
spondents’ attorney sent a letter to Atlas, wherein he
advised Atlas that his clients intended to pursue a
claim based on Atlas’ actions in failure to remove all
of the goods from the respondents’ Pennsylvania
home by August 27, 2004.°
* Although not averred in the Complaint, it is believed and
therefore averred by petitioner herein that the sale of respon-
dents’ Pennsylvania residence had nothing to do with the failure
of the Lewises to provide a vacant property on August 27, 2004.
Rather, the prospective buyers reneged on the sale contract
because they learned prior to the closing date that they would
not be able to home school their young children in the Common-
wealth of Pennsylvania as they had done at their prior home.
5
Specifically, the October 26, 2004 letter to Atlas
stated:
As a result of your failure to perform your
contractual obligation, Mr. and Mrs. Lewis
were unable to meet the terms of the sale of
their house, closing of which was scheduled
at 4:00 p.m. on August 27, 2004. Since they
were not able to close, they lost that sale and
have not been able to resell their house.
(App. 123). Further, respondents’ attorney stated in
his October 26, 2004 letter:
Mr. and Mrs. Lewis’ losses include, but are
not limited to, loss of profit on the sale of
their residence, additional mortgage pay-
ments that Mr. and Mrs. Lewis have had to
pay on two mortgages on their Pennsylvania
residence which otherwise would have been
paid off at closing, and various other miscel-
laneous expenses they would not have oth-
erwise incurred.
(App. 124). There was no dollar amount included
in this letter and neither respondents nor their
attorney attached additional information, documenta-
tion, receipts or invoices to the October 26, 2004
letter from which Atlas could have ascertained or
determined the amount of their alleged damages or
even a reasonable approximation thereof. Atlas did
not treat the respondents’ October 26, 2004 letter as a
claim under the regulations applicable to claims for
loss, damage or delay made against interstate motor
carriers found in 49 C.F.R. § 370.3 as the letter did
6
not make a “claim for the payment of a specified or
determinable amount of money... .”
On November 4, 2004, Atlas sent a letter to the
Lewises’ attorney, wherein it acknowledged the
October 26, 2004 letter and requested additional
information and documentation. (App. 126). Despite
the request for additional information contained in
the November 4, 2004 correspondence, neither re-
spondents nor their attorney provided Atlas with
additional information regarding the amount of their
alleged claims until November 9, 2005, which was
well beyond the nine-month claim-filing deadline.
(App. 128).
Atlas delivered respondents’ household goods on
September 3, 2004. Thus, the nine-month deadline for
filing a proper claim was June 3, 2005. Respondents
signed an Agreement of Sale for their Pennsylvania
home to new purchasers on March 14, 2005, which
was well within the nine-month claim-filing period.
The Agreement of Sale contained the new sale price
for the Pennsylvania residence and the date on which
the transfer would occur (June 3, 2005). Thus, re-
spondents were able to ascertain the exact amount of
their alleged damages on or before March 14, 2005.
Moreover, as noted, the closing date for the subse-
quent sale of respondents’ Pennsylvania residence
was June 3, 2005. (App. 131). This date also fell
within the nine-month claim-filing period. Thus, by
June 3, 2005, respondents knew, or should have
known, the exact amount of damages allegedly
caused by the delayed pick up of their goods. The
7
information provided to Atlas on November 9, 2005
confirms that the respondents were clearly capable of
determining — and indeed did determine — the exact
amount of their alleged loss arising from the delayed
sale of their Pennsylvania residence during the nine-
month claim-filing period. (App. 135).
Atlas rejected the November 9, 2005 letter in
accordance with the claim-filing provisions of the
subject Bill of Lading, which stated that claims
arising from the transportation of respondents’
household goods must be filed within nine months of
delivery, and in accordance with 4S C.F.R. § 370.3(b),
which requires that notice of a claim to a carrier must
be filed within the time limits specified in the Bill of
Lading.
Respondents subsequently commenced a timely
civil lawsuit against petitioner in the Court of Com-
mon Pleas for York County, Pennsylvania [Civil
Action Number 06-SU-2696-401] on August 23, 2006.
(App. 50). Petitioner removed the case to the United
States District Court for the Middle District of Penn-
syivania. Exclusive federal jurisdiction over this
controversy, and petitioner’s removal thereof, was
based on 28 U.S.C. § 1331 and 28 U.S.C. § 14706
because the claims alleged by respondents against
petitioner originate from the transportation of goods in
interstate commerce, and Atlas is an interstate carrier
for hire, regulated in part under 28 U.S.C. § 14706.
(App. 23).
On October 10, 2006, Atlas filed a Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), wherein it
8
contended that respondents’ failure to provide it with
a specific or determinable claim for damages as
required by 49 C.F.R. § 370.3(b)\3) precluded their
lawsuit. On January 30, 2007, United States District
Judge John E. Jones, III erroneously’ concluded that
the Carmack Amendment did not apply to the instant
case and, as a result, refused to consider whether
respondents’ notice was timely or sufficient. (App. 23-
24). Petitioner filed a Motion for Reconsideration,
wherein it contended that the District Court’s ruling
regarding application of the Carmack Amendment
was a clear error of law for which reconsideration was
warranted. (App. 24). On May 30, 2007, in response
to petitioner’s Motion for Reconsideration and the
respondents’ response thereto (App. 24), Judge Jones
issued a Memorandum and Order granting peti-
tioner’s Motion for Reconsideration. (App. 23). In
addition to ruling that the Carmack Amendment did,
indeed, apply to this controversy, Judge Jones deter-
mined that respondents failed to provide proper
notice of their alleged loss to Atlas and, consequently,
dismissed their case. (App. 37).
Respondents filed a timely Appeal of Judge
Jones’s May 30, 2007 Memorandum and Order on
September 24, 2007. Oral argument took place on
June 3, 2008 before United States Circuit Judges
* Judge Jones acknowledged that the Court committed a
“clear error of law in holding that the Carmack Amendment did
not apply to the instant controversy ...” at Page 10 of his May
30, 2007 Memorandum.
9
Fisher and Jordan, and United States District Court
Judge Yohn, sitting in designation.
On September 9, 2008, a panel of the United
States Court of Appeals for the Third Circuit issued a
Precedential Opinion, wherein it ruled that respon-
dents’ October 26, 2004 letter provided Atlas with
sufficient notice of their claim. The panel found that
the District Court’s ruling to the contrary was in
error, vacated the May 30, 2007 Order dismissing
respondents’ Complaint, and remanded the case to
the District Court for further proceedings. Specifi-
cally, the panel found that the October 26, 2004 letter
satisfied the claim-filing requirements of 49 C.F.R.
§ 370.3(b)(3) because it provided Atlas with notice of a
claim for a “specific or determinable amount of
money.” (App. 14). The panel differentiated between
“specific” and “determinable” as found in 49 C.F.R.
§ 370.3(b)\3) and found that notice of a claim is “de-
terminable” when it meets the following criteria:
A claim for a “determinable amount of
money” need not explicitly state the dollar
amount claimed. Instead, a claim is “deter-
minable” if the amount of money claimed is
merely “[caplable of being determined or as-
certained.” (App. 14).
The panel further distinguished and defined a
“determinable” claim as one that:
. need not include any dollar amount at
all. Instead, all that is required is that the
claim provide enough information to make it
possible to assign a dollar amount to the
10
claim at some point after the claim itself is
filed. (App. 14).
The panel therefore rejected Atlas’s argument
that a claim “must include some dollar amount” in
order to satisfy 49 C.F.R. § 370.3(b)(3). Petitioner filed
a timely Petition for Rehearing and/or Rehearing En
Banc, which was denied on October 9, 2008. This
timely Petition follows.
e
REASON WHY THE WRIT FOR
CERTIORARI SHOULD BE GRANTED
I THE DECISION BELOW CREATS A THIRD
STANDARD FOR DETERMINING THE SUF-
FICIENCY OF AN INTERSTATE CARGO
CLAIM UNDER 49 C.E.R. § 370.3(b)(3), AND
FURTHER CONTRADICTS AND UNDER-
MINES THE PURPOSE AND INTENT OF
CONGRESS IN ENACTING THE CARMACK
AMENDMENT AND STANDS IN DIRECT
OPPOSITION TO THE RULINGS OF THE
UNITED STATES SUPREME COURT WITH
RESPECT TO THE PRIMACY AND UNI-
FORMITY OF THE CARMACK AMEND-
MENT.
A. Introduction
In ruling that a shipper need not provide the
carrier with any dollar amount whatsoever, even an
estimate or range of potential damages, in order to
satisfy the provisions of 49 C.F.R. § 370(b)(3), the
11
panel below placed the last straw on the camel’s back
with respect to undermining the purpose and goal of
Congress and the United States Supreme Court in
establishing and maintaining a uniform, consistent
and predictable regime for the efficient resolution of
interstate cargo claims. The ruling below creates
serious, wide-ranging and potentially devastating
consequences for carriers and shippers alike, as it
creates a new, third standard for resolving interstate
cargo claims that will ultimately prevent the settle-
ment of claims without litigation. The panel has, in
effect, made a bad situation worse for shippers and
carriers and has presented this Honorable Court with
an opportunity to restore order, uniformity and
efficiency to this critical area of federal transporta-
tion law.
B. Purpose and Goal of the Carmack
Amendment
The Carmack Amendment is the key element in
the comprehensive scheme to bring uniformity to the
area of interstate cargo claim management. Congress
enacted the Carmack Amendment to the Interstate
Commerce Act in 1906, in response to the chaotic
disparity that resulted from the application of vary-
ing state laws to interstate shipping.” The Carmack
“The ICC Termination Act of 1995 contains separate
Carmack Amendment Provisions for rail carriers, motor carmers
and freight forwarders. Each of these provisions contains a
provision concerning notice of claim and they are all identical.
‘Continued on following page)
12
Amendment defined the parameters of carrier liabil-
ity for loss and damage to goods transported under
interstate bills of lading, bringing uniform treatment
to the carrier-shipper relationship. The Amendment,
set forth at 49 U.S.C. § 14706, states in relevant part:
A carrier providing transportation or service
. shall issue a receipt or bill of lading for
property it receives for transportation under
this part. That carrier... is liable to the per-
son entitled to recover under the receipt or
bill of lading. The liability imposed under
this paragraph is for the actual loss or injury
to the property. ...
Within a few years of the Carmack Amendment’s
passage, the United States Supreme Court addressed
its dual goals of uniformity and preemptive scope. In
the seminal case of Adams Express Co. v. Croninger,
226 U.S. 491, 505 (1913), the United States Supreme
Court discussed Carmack preemption over state law
theories of recovery in the broadest terms:
Almost every detail of the subject [interstate
carrier liability] is covered so completely that
there can be no rational doubt that Congress
intended to take possession of the subject,
As to rail carmers, motor carriers, and freight forwarders, they
remain the same as in the prior versions of the Carmack
Amendment. Each states that the carrier may not provide by
rule, contract or otherwise a period of less than nine months for
filing a claim against it. For purposes of the discussion herein,
the Carmack Amendment ts discussed as found in the ICC
Termination Act of 1995.
13
and supersede all state regulation with ref-
erence to it.
Id. at 505-506. Adams Express held that claims
arising out of loss or damage to property transported
in interstate commerce are governed by the Carmack
Amendment and that all state law claims are pre-
empted. The Court explained the primary objective of
the statute is the establishment of a uniform national
policy governing liability of interstate carriers.
This branch of interstate commerce was be-
ing subjected to such a diversity of legislative
and judicial holding that it was practically
impossible for a carrier engaged in a busi-
ness that extended beyond the confines of his
own state, or a carrier whose lines were
extensive, to know, without considerable in-
vestigation and trouble, and even then often-
times with but little certainty, what would be
the carrier’s actual responsibility as to the
goods delivered to it for transportation from
one state to another. The congressional ac-
tion has made an end to this diversity.
Id. at 505.
Three years later, the United States Supreme
Court reaffirmed Adams Express in Georgia, Florida
& Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190
(1916). In Blish Milling, the United States Supreme
Court ruled that the Carmack Amendment is “com-
prehensive enough to embrace responsibility for all
loss resulting from failure to discharge a carrier's
14
duty as to any part of the agreed transportation....”
241 U.S. at 196.
Each succeeding Supreme Court ruling interpret-
ing the scope of the Carmack Amendment has re-
peated the principles enunciated in Adams Express
and Blish Milling, which was the comprehensiveness
of application and uniformity of treatment regardless
of state laws. See, e.g., Thurston Motor Lines, Inc. v.
Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983),
quoting Louisville & Nashville R. Co. v. Rice, 247 U.S.
201, 203 (1918) (“As to interstate shipments, ... the
parties are held to the responsibilities imposed by the
federal law, to the exclusion of all other rules of
obligation.”); New York, N.H. & H.R. Co. v. Nothnagle,
346 U.S. 128, 131 (1953); Charleston & Western
Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S.
597 (1915) (holding that preemption applies not only
to state law claims which directly contradict the
procedures or remedies set forth in the Carmack
Amendment, but also encompasses state causes of
action which supplement Carmack relief); Atchinson
T. & SF. Ry. v. Harold, 241 U.S. 371, 378 (1916).
Indeed, as tne following cases clearly establish, it
is settled federal law that the remedies provided
under the Carmack Amendment preempt all causes of
action secking redress for loss or damage to goods
moving through interstate commerce, whether those
remedies are predicated on state common law, state
statutory law or federal common law. U.S. CONST.,
Art. VI, cl.2; Myrick v. Michigan Central R.R., 107
U.S. 102 (1882); Rice v. Santa Fe Elevator Corp., 331
15
U.S. 218 (1947); Missouri Pacific Ry. Co. v. Elmore &
Stahl, 375 U.S. 811 (1963); Coughlin v. United Van
Lines, LLC, 362 F. Supp. 2d 1166 (C.D. Cal. 2005);
Smith v. United Parcel Service, 296 F.3d 1244 (11th
Cir. 2002); Paper Magic Group v. J.B. Hunt Trans-
port, 318 F.3d 458 (3d Cir. 2003); Hoskins v. Bekins
Van Lines, 343 F.3d 769 (5th Cir. 2003).
Moreover, all United States Courts of Appeals,
including the Third Circuit, which have addressed
the issue of Carmack preemption, have unanimously
held that the Carmack Amendments’ broad scope
preempts all state law claims. See, e.g., Paper Magic
Group v. J.B. Hunt Transport, 318 F.3d 458 (3d Cir.
2003); see also, Fulton v. Chicago, Rock Island & P.R.
Co., 481 F.2d 326, 331 (8th Cir. 1973) (“The cases
make it clear that when damages are sought against
a carrier for failure to properly perform, or for negli-
gent performance of, an interstate contract of car-
riage, the Carmack Amendment governs.”); Intech,
Inc. vw. Consolidated Freightways, Inc., 836 F.2d 672,
677 (lst Cir. 1987) (“The Carmack Amendment pro-
vides the exclusive remedy ... ”); Cleveland ov.
Beltman North American Van Lines Co., Inc., 30 F.3d
379 (2d Cir. 1994) (Carmack preempted federal
common law claim for punitive damages based upon
bad faith claims handling.); Shao v. Link Cargo
(Taiwan) Limited, 986 F.2d 700, 706-707 (4th Cir.
1993) (“[I]f the Interstate Commerce Commission had
jurisdiction over the shipment in this case, Shao’s
common law claims are preempted by the Carmack
Amendment.”); Hoskins v. Bekins Van Lines, 343 F.3d
769 (Sth Cir. 2003); Moffit v. Bekins Van Lines Co, 6
16
F.3d 305, 306-07 (5th Cir. 1993) (Carmack Amend-
ment preempted claims of misrepresentation, fraud,
gross negligence, intentional infliction of emotional
distress and violation of Texas Deceptive Trade
Practices Act.); W.D. Lawson & Company v. Penn
Central Company, 456 F.2d 419, 421 (6th Cir. 1972)
(“As to the ... issue ... lof] whether or not the Car-
mack Amendment preempted common law suits ...
we hold that it did.”); Hughes v. United Van Lines,
829 F.2d 1407, 1415 (7th Cir. 1987) (“[We] hold that
the remedy provision of the Carmack Amendment
preempts all state and common law remedies incon-
sistent with the Interstate Commerce Act ... ”);
Hughes Aircraft v. North American Van Lines, 970
F.2d 609, 613 (9th Cir. 1992) (“Hughes [the shipper]
wisely conceded that federal law preempts any state
common law action against ... a common carrier.”);
Underwriters at Lloyas of London v. North American
Van Lines, 890 F.2d 1111, 1120 (10th Cir. 1989)
(“|T|he Carmack Amendment preempts state common
law remedies against a carrier for negligent damage
to goods shipped under a proper bill of lading.”),
Smith v. United Parcel Service, 296 F.3d 1244, 1246-
49 (llth Cir. 2002) (Carmack preempted plaintiffs’
claim for damages due to the carrier’s alleged failure
to provide services to plaintiffs.).
As the foregoing cases clearly establish, the
primary purpose of the Carmack Amendment is to
promote uniformity in the field of federal transporta-
tion law, including most importantly the investigation
and resolution of cargo damage claims. Foremost
17
among these goals is the avoidance of unnecessary
and costly litigation. It is well-established that the
purpose in promulgating regulations for claim-filing
was to encourage the parties to settle claims rather
than engage in costly and time-consuming litigation.
Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d
Cir. 1980), cert. denied, 450 U.S. 915 (1981). More-
over, the regulations were promulgated to encourage
the voluntary disposition of loss and damage claims
in an amicable manner, privately, between the carrier
and the claimant, without the intervention of the
courts. Ford Motor Co. v. Transport Indem. Co., 795
F.2d 538 (6th Cir. 1986).
The issue of uniformity cannot be emphasized
enough, because it provides carriers and shippers
with knowledge and expectation that a claim or
dispute that arises from the interstate transportation
of goods will be considered and, if necessary, litigated,
pursuant to a single, uniform standard. Uniformity, if
enforced by the circuit courts, promotes expeditious
and economical settlements and prevents forum
shopping. The need for uniformity is even more
pronounced when one considers that 49 U.S.C.
$ 14706(d)1) states that an interstate motor carrier
may be sued in any state “through which the defen-
dant carrier operates.”
As discussed below, the panel's ruling has created
a situation where an interstate motor carrier cannot
manage, investigate or settle a claim until a lawsuit
is filed by the shipper since it will not know the
standard by which it must evaluate the sufficiency of
18
the shipper’s notice of claim until after the lawsuit is
filed and after venue is learned. This new reality
established by the panel below is completely contrary
to Carmack and must be resolved by this Honorable
Court.
C. The Panel’s Ruling Established a Third
Standard to an Already Muddled, Un-
predictable and Unworkable Status
Quo
The applicable federal regulations governing the
filing and processing of claims for loss, damage or
delay in the delivery of goods (whether household
goods or otherwise) are found at 49 C.F.R. § 370,
entitled PRINCIPLES AND PRACTICES FOR THE
INVESTIGATION AND VOLUNTARY DISPOSI-
TION OF LOSS AND DAMAGE CLAIMS AND
PROCESSING SALVAGE. The provisions of 49 C.F.R.
§ 370 are also incorporated into Atlas’s tariffs, which
are incorporated into the Bill of Lading for the re-
spondents’ shipment, attached hercto.
49 C.F.R. § 370.3(a) sets forth the basic require-
ments for interstate motor carriage claims when it
provides that:
A claim for loss or damage to baggage or for
loss, damage, injury, or delay to cargo shall
not be voluntarily paid by a carrier unless
filed, as provided in paragraph (b) of this sec-
tion, with the receiving or delivering carrier
. Within the specified time limits applica-
ble thereto and as otherwise required by law,
19
the terms of the bill of lading or other con-
tract of carriage and all tariff provisions ap-
plicable thereto.
49 C.F-R. § 370.3(b)(3) sets forth the following
specific requirements for filing a loss, damage or
delay claim with a carrier:
(b)
Minimum filing requirements. A written
or electronic communication (when agreed to
by the carrier and shipper or receiver in-
volved) from a claimant, filed with a proper
carrier within the time limits specified in the
bill of lading or contract of carriage or trans-
portation and:
(1)
(2)
(3)
Despite, and expressly contrary to, the clearly
stated goals and mandates of Congress and this
Honorable Court, the circuit courts of the United
Containing facts sufficient to identify
the baggage or shipment (or shipments)
of property,
Asserting liability for alleged loss, dam-
age, injury or delay, and,
Making claim for the payment of a speci-
fied or determinable amount of money,
shall be considered as sufficient compli-
ance with the provisions for filing claims
embraced in the bill of lading or other
contract of carriage; Provided, however,
That where claims are electronically
handled, procedures are established to
ensure reasonable carrier access to sup-
porting documents.
20
States have left for dead the goal and concept of
uniformity in their varied, inconsistent and wholly
incompatible interpretations of what constitutes “a
specific or determinable amount of money” when
examining the sufficiency of notice under 49 C.F.R.
§ 370.3(b). The situation that existed before the
ruling below was untenable, as the circuit courts had
created two wholly separate and distinctive stan-
dards for determining the sufficiency of a claim. The
situation created by the panel’s ruling below has
added to the confusion, unpredictability and uncer-
tainty by establishing a new, and third, interpretation
of the regulation. As discussed below, the ruling below
creates a standard where a shipper need not provide
any dollar amount, whether in the form of an esti-
mate or range of potential damages, in order to
satisfy 49 C.F.R. § 370.3(b)(3). This new standard
cannot be reconciled with the previously adopted
standards and creates a mish-mash of conflicting
standards whose reconciliation is based solely on
where the shipper decides to file suit. The rulings of
the circuit courts, and in particular the panel below,
mock the assertions and mandates of Congress and
this Honorable Court in their brazen disregard for
uniformity and predictability in the field of federal
transportation law. This Honorable Court is pre-
sented with the opportunity herein to remedy this
untenable situation and restore order where none
presently exists.
21
1. The Pre-Lewis Conflict Among the
Circuit Courts
As discussed above, the circuit courts have disre-
garded Congress’s desire for uniformity by adopting
widely divergent interpretations of 49 C.FR.
§ 370.3(b)(3) with respect to whether a shipper must
provide a carrier with an exact dollar amount of its
claim or, in the alternative, whether a shipper must
merely provide the carrier with an estimate or range
of potential damages.’
Prior to the issuance of the ruling below, the
federal circuits were split as to how specific the dollar
amount included in a claim had to be to be legally
sufficient under 49 C.F.R. § 370.3(b)(3). The Sixth,
Seventh, Ninth and Eleventh Circuits have held that
“substantial compliance” is sufficient. See, e.g., Ins.
Co. of N. Am. v. GI. Trucking Co., 1 F.3d 903 (9th Cir.
1993), cert. denied, 510 U.S. 1044 (1994); Culver v.
Boat Transit, Inc., 782 F.2d 1467 (9th Cir. 1986);
Kvaerner E&C Metals v. Yellow Freight Sys., Inc., 130
* The analysis herein is focused on those situations where
the shipper is able to calculate, ascertain or determine its
damages during the applicable claim-filing period. The discus-
sion herein does not focus on those situations where the shipper
is not able -- after reasonable efforts — to determine its damages
during the claim-filing period. These situations, where the
requirements of 49 C.F.R. § 370.3(b\(3) cannot be satisfied due to
“impossibility,” do not apply here, since the respondents knew
the exact amount of their damages within the nine-month claim-
filing period yet provided Atlas only with the vague references to
potential future claims in their October 26, 2004 letter.
22
Fed.Appx. 172 (9th Cir. 2005); Taisho Marine & Fire
Ins. Co. v. Vessel Gladiolus, 762 F.2d 1364 (9th Cir.
1985) and Trepel v. Roadway Express, Inc., 194 F.3d
708 (6th Cir. 1998). Under the “substantial perform-
ance” standard, the shipper need not provide the
carrier with an exact dollar amount of its claim.
Rather, the shipper need only provide the carrier with
an estimate or range of potential values, in dollars,
for the damage so that the carrier receives “enough
information to begin processing the claim.” Seimens
Power Transmission & Distribution, Inc. v. Norfolk
Southern Ratlway Company, 420 F.3d 1243 (11th Cir.
2005) (where the Eleventh Circuit adopted the “sub-
stantial performance” standard).
Standing in stark contrast to the Sixth, Seventh,
Ninth and Eleventh Circuits are the First, Second
and Fifth Circuits, which require the shipper to
provide an exact dollar amount to the carrier as a
condition precedent for recovery. This is the “strict
compliance” standard. See, e.g., Salztein v. Bekins Van
Lines, Inc., 993 F.2d 1187, 1190-91 (5th Cir. 1993);
Pathway Bellows, Inc. v. Blanchette, 630 F.2d 900 (2d
Cir. 1980), cert. denied, 450 U.S. 915 (1981); Nedlloyd
Lines B.V. Corp. v. Harris Transport Co., 922 F.2d 905
(Ist Cir. 1991); and McLaughlin Transportation
Systems, Inc. v. Rubinstein, 2005 U.S. District LEXIS
19932 (D.Mass. 2005). The circuit courts have ac-
knowledged the split among them, most recently in
Seimens Power Transmission & Distribution, Inc. v.
Norfolk Southern Railway Company, 2005 U.S. App.
LEXIS 17202 (11th Cir. 2005).
23
Prior to the panel’s ruling below, the United
States Court of Appeals for the Third Circuit had not
squarely adopted the “strict compliance” or “substan-
tial performance” standard. However, it is nonethe-
less recognized that, in S&H Hardware Supply Co. v.
Yellow Transp., Inc., 432 F.3d 550 (8d Cir. 2005), the
Court noted its preference for the substantial per-
formance standard in dicta. Id., at 554 (see, Sorkin,
Goods in Transit — Selected Regulations, Statutes and
Treaties, Vol. 2, § 7.09[3], p. 7-59.) Nevertheless, when
given the opportunity to do so in the case herein, the
Third Circuit did not embrace or adopt either the
strict compliance or substantial performance stan-
dard. Rather, the Third Circuit created a third stan-
dard to further muddle an already unpredictable field
of law.
2. The Ruling Below Creates a Third
Standard
As the foregoing cases clearly demonstrate, the
circuit courts have strayed well off of the reservation
in their efforts to maintain uniformity in the field of
interstate cargo claim management with their diver-
gent interpretations of 49 C.F.R. § 370.2(b). The Third
Circuit, however, went well beyond the already aban-
doned reservation and struck out for even more
remote territory in its unique and heretofore unstated
interpretation of the regulations. As demonstrated
below, the panel ruled that no amount of money need
be claimed by a shipper when making a claim to the
carrier:
24
The plain meanings of “specified” and “de-
terminable” reveal a key difference between
them and hence between the kinds of claims
permitted by the regulation. A claim for a
“specified amount of money” is a claim that
explicitly gives the dollar amount of money
being claimed. However, a claim for a “de-
terminable amount of money” need not ex-
plicitly state the dollar amount claimed.
Instead, a claim is “determinable” if the
amount of money claimed is' merely
“icaplable of being determined or ascer-
tained.” Notably, because a claim for a “spe-
cific amount of money” must state the
amount explicitly, such claims must be re-
duced to an exact dollar amount at the time
the claim is made. By contrast, a claim
that is “determinable” need not include
any dollar amount at all. Instead, all
that is required is that the claim pro-
vide enough information to make it pos-
sible to assign a dollar amount to the
claim at some point after the claim itself
is filed. (App. 14).
Were we to accept Atlas’s invitation to re-
quire that every claim must provide some
dollar amount to comply with subsection
(b\(3), we woald be treating the term “deter-
minable” as merely redundant of the term
“specified,” and would be ignoring the use of
the word “or” between the two terms.
(App. 14-15). (emphasis added).
25
Despite its statements to the contrary, it is
nonetheless apparent that — as a result of the panel’s
ruling below — a claim to a carrier in the Third Cir-
cuit need not contain any dollar amount whatsoever;
mere categories of loss or damage are sufficient.
Thus, regardless of how the panel below sought to
distinguish its ruling as separate and distinct from
the “strict compliance” versus “substantial perform-
ance” analysis, it is nonetheless obvious — from a
legal and practical perspective — that the panel did, in
fact, make new law and create a new, heretofore
unstated and previously rejected, third standard for
notice. The panel’s interpretation of 49 C.FR.
§ 370.3(b) has effectively rendered the requirement
that a shipper provide a written communication
making claim for the payment of an amount of
money, whether it be specified or determinable,
superfluous and without effect. A shipper may now
provide only some vaguely “determinable” basis for a
future dollar amount rather than diligently work to
provide an actual claim for the payment of an amount
of money to which a carrier can respond by either
paying the claim or denying the claim. In addition,
under the panel’s reasoning, the “or” in 49 C.FR.
§ 370.3(b\3) effectively eviscerated and made irrcle-
vant the term “specified.” If the panel’s reasoning is
applied to a claim, the shipper may completely ignore
the requirement for a specified amount of money in
its claim, so long as it provides the carrier with some
information about the types of losses being claimed
the value of which are “capable of being determined
or ascertained ... at some point after the claim itself
is filed.” (App. 14).
26
Indeed, the Eleventh Circuit identified and
recognized this heretofore rejected third standard
when it acknowledged the failure of those claims “in
which the shipper provided the carrier with no dam-
age amount at all.” Seimens Power Transmission &
Distribution, Inc. v. Norfolk Southern Railway Com-
pany, 420 F.3d 1243 (11th Cir. 2005), citing Salztein v.
Bekins Van Lines, Inc., 993 F.2d 1187, 1190-91 (5th
Cir. 1993) and Nedlloyd Lines B.V. Corp. v. Harris
Transport Co., 922 F.2d 905 (1st Cir. 1991).
Nonetheless, in the ruling below, the panel chose
to ignore the well-established rule that — as stated
clearly in Siemens Power Transmission & Distribu-
tion, Inc. v. Norfolk Southern Railway Company, —-
shippers who provide “no damage amount at all”
when making a claim for damages are precluded from
recovery. 420 F.3d at 1249, citing Salztein v. Bekins
Van Lines, Inc., 993 F.2d 1187, 1190-91 (5th Cir.
1993); Pathway Bellows, Inc. v. Blanchette, 630 F.2d
900 (2d Cir. 1980), cert. denied, 450 U.S. 915 (1981);
and Nedlloyd Lines B.V. Corp. v. Harris Transport
Co. , 922 F.2d 905 (1st Cir. 1991).
Respondents herein did not provide Atlas with
any dollar amount whatsoever, either in their October
26, 2004 letter or at any time during the nine-month
claim-filing period (even though they learned of their
exact claim amount well within the nine-month
period). It is absolutely clear that such non-
performance would have’ precluded respondents’
recovery in the First, Second and Fifth Circuits,
27
which, as noted, require the shipper to provide the
carrier with an exact dollar amount within the claim-
filing period. It is equally certain that respondents’
claim would have failed in the Sixth, Seventh, Ninth
and Eleventh Circuits, since they failed to provide
even an estimate or range of potential dollar damages
to petitioner during the claim-filing period. Despite
the panel’s reasoning to the contrary, there was no
standard satisfied by the respondents in their Octo-
ber 26, 2004 letter or at any time in the claim-filing
period. Indeed, the only standard by which respon-
dents’ claim could proceed was under a new standard,
adopted in the case herein, which allowed respon-
dents’ to file suit even though they did not provide
Atlas with any dollar amount whatsoever. This
standard can be described as the “no compliance” or
“no performance” standard, and it stands in stark
contrast to the previously existing standards of “strict
compliance” and “substantial performance.”
3. The Effect of the Panel’s Ruling is
Broad, Severe and Will Undermine
the Purpose and Goal of the Car-
mack Amendment
As discussed, the Carmack Amendment was
enacted in 1906 to promulgate and ensure the effi-
cient transportation of goods in interstate commerce,
and to create a national policy regarding an inter-
state carrier’s liability for damages arising from the
interstate transportation of goods. New York, New
Haven & Hartford Railroad Co. v. Nothnagle, 346
28
U.S. 128, 181, 73 S.Ct. 986 (1953). Thus, while the
principal purpose of the Carmack Amendment is to
achieve national uniformity in assigning liability to
carriers Rini v. United Van Lines, Inc., 104 F.3d 502,
cert. denied, 118 S.Ct. 51, 522 U.S. 809, 189 L.Ed.2d
16, its more important practical and commercial
effect is to “secure reasonable notice” to the carrier to
promote the timely and cost-effective resolution of
damage claims. See, Seimens Power Transmission &
Distribution, Inc. v. Norfolk Southern Railway Com-
pany, 420 F.3d 1243 (11th Cir. 2005). Indeed, 49
C.F.R. § 370.3(b)(3), initially promulgated as 49
C.F.R. § 1005.2, was enacted in 1972 by the Interstate
Commerce Commission to “combat carriers’ attempts
to discriminate among shippers in their payment of
claims, to encourage prompt investigation and
voluntary settlement, and to facilitate more
‘harmonious relationships’ between carriers
and claimants.” See, Ex Parte No. 263: Rules, Regu-
lations, and Practices of Regulated Carriers with
Respect to the Processing of Loss and Damage Claims,
340 I.C.C. 515, 547-548, 553 (1972) (emphasis added).
By establishing a national, uniform regime for
the resolution of interstate cargo claims, the Carmack
Amendment enables carriers to assess their risks and
exposures and to predict their potential liability for
damages, regardless of where the loss, injury or delay
occurs. Suarez v. United Van Lines, Inc., 791 F. Supp.
815 (D.Colo. 1992). This “national scheme of carrier
hability” promotes and effectuates the predictable
29
and efficient flow of goods by providing carriers with
well-defined parameters within which they can
evaluate claims, manage risk and predict future
exposure.
The foregoing differences with respect to the
judicial interpretation of 49 C.F.R. § 370.3(b)(3)
contravene and undermine the purpose of Carmack,
since an interstate motor carrier cannot, under the
panel’s reasoning, reliably ascertain, predict or man-
age its risk or exposure to loss if it has to factor the
location of the loss into its evaluation. Rather, just as
the drafters of Carmack sought to avoid, the value of
a claim will, and does, depend upon where the par-
ticular lawsuit is filed.
Moreover, the conflicting interpretations of 49
C.F.R. § 370.3(b)(3) put carriers in an impossible
“Catch-22” situation: under 49 C.F.R. § 370.3(a), a
carrier cannot voluntarily pay a claim unless it meets
the requirements of § 370.3(b), but the carrier dues
not now know if a claim meets the requirements of
§ 370.3(b) until it is sued. This will effectively pre-
clude a carrier from attempting to settle a claim until
a lawsuit is filed. In the instant case, for example,
respondents moved from Pennsylvania to New York.
Pursuant to 49 U.S.C. § 14706(d)(1), respondents
could have filed suit against Atlas in New York or
Pennsylvania (or, for that matter, in any of the other
judicial districts in the United States as Atlas, like
many carriers, operates in all of them). Had respon-
dents filed their lawsuit in New York, their October
26, 2004 letter would have certainly and undeniably
30
failed to satisfy the requirements of 49 C.F.R.
§ 370.3(b)(3). As noted, New York, as part of the
Second Circuit, is a “strict compliance” jurisdiction,
which requires that the shipper provide the carrier
with an exact dollar amount of a claim as a condition
of recovery. Since respondents filed their lawsuit in
Pennsylvania, the controversy was controlled by the
law of the Third Circuit, which, as a result of the
ruling below, requires nothing more from the shipper
but a vague description of a right to a future recovery.
In an even more remarkable scenario, had Atlas
moved the respondents from Ohio (a Sixth Circuit
“substantial performance” jurisdiction) through
Pennsylvania to New York, any one of three stan-
dards for proper notice under 49 C.F.R. § 370.3(b)(3)
[strict compliance, substantial performance or the
“no-performance” standard adopted by the panel
below], could have applied.
The clearly stated and undeniable purpose of the
federal claim-filing regulations is, as noted, to pro-
mote the fair and efficient resolution of claims and,
equally important, to avoid the costs and delays of
litigation. However, under the present reality, the
only way that Atlas, or any other motor carrier, can
determine whether notice from a shipper complies
with 49 C.F.R. § 370.3(b\(3) is to wait until after a
lawsuit if filed so that venue and jurisdiction are
revealed. The sheer impracticality and overwhelming
absurdity of the present situation mandates review
by this Honorable Court.
31
It is also important to note that, although the
case sub judice involves unsophisticated shippers of
household goods, the effect and consequences of the
ruling are not so limited. Every day, goods worth
billions of dollars are transported by thousands of
carriers, large and small, for commerciai shippers
and household goods shippers. The conflicting stan-
dards among the circuit courts present sophisticated
shippers with the opportunity to forum shop when
bringing suit against a carrier, particularly since a
delivering carrier is subject to suit under Carmack in
any federal district in which it operates. The inherent
unfairness of this situation is obvious, since it places
carriers at an unfair disadvantage when attempting
to resolve claims. Moreover, the costs to society and
the economy as a whole are, and will continue to be,
enormous, as carriers will avoid efforts to resolve
claims until venue is established and shippers will
forum shop and proceed directly to litigation in order
to secure the best opportunity fer recovery.
4. The Ruling Below Presents an Op-
portunity to Re-Assert the Uniform-
ity and Primacy of Carmack and of
this Honorable Court
In setting forth the reasons this Fionverabie Court
will consider in determining whether to grant certio-
rari, United States Supreme Court Rule 10(a) states
foremost that certiorari will be granted when a deci-
sion of a court of appeals of the United States “is in
conflict with the decision of another United States
32
court of appeals on the same important matter.” Sup.
Ct. R. 10(a); see also, Rice v. Sioux City Memorial
Park Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614, 99
L.Ed. 897 (1955). The ruling below certainly concerns
a matter of significant national importance, as it
muddies an already murky sea of conflicting stan-
dards as to what constitutes a sufficient clam under
a federal regulation drafted primarily to ensure
national uniformity and efficient, fair claim settle-
ment processes.
Thus, the panel’s ruling below presents this
Honorable Court with the opportunity to address the
inherent illogicality and commercially impractical
consequences of the aforementioned split among the
circuit courts.
CONCLUSION
The primary purpose of the Carmack Amend-
ment and the Code of Federal Regulations Part 370 is
to promote, protect and promulgate the uniform
management, administration and resolution of loss,
damage and delay claims arising from the interstate
transportation of goods, including household goods.
The circuit courts have interpreted 49 C.FR.
§ 370.3(b)(3) to require either an exact dollar amount
from the shipper [strict compliance] or a range or
estimate of damages [substantial performance] to the
carrier in order to constitute a sufficient claim. In
redefining the meaning of the term “determinable” in
33
49 C.F.R. § 370.3(b)(3), the panel established and
adopted a third and heretofore unrecognized standard
that eliminates altogether the shipper’s obligation
and duty to provide the carrier with some dollar
amount, whether an estimate, range of values or
exact figure, within the claim-filing period. The
panel’s interpretation of 49 C.F-R. § 370.5(b)(3) was so
expansive and novel that it established a new, third
standard, wherein a shipper need not provide any
dollar amount whatsoever to the carrier at any time
during the nine-month claim-filing period. This new
standard stands in sharp contrast to the two previ-
ously existing standards of interpreting 49 C.F.R.
§ 370(b)(3) and has made an already muddled legal
environment even worse by adding even more uncer-
tainty and delay into the claim-filing and settlement
process.
For the foregoing reasons, petitioner respectfully
requests this Honorable Court to issue a Writ of
Certiorari to review the decision of the Court below
and to review the conflict that has developed with
this Court’s holdings, as well as the holdings of other
circuits, regarding the shipper’s duties pursuant to
34
49 C.F.R. § 370.3(b)(3) to file a timely and sufficient
claim to the carrier.
Respectfully submitted,
RAWLE & HENDERSON, LLP
JAMES A. WESCOE, ESQUIRE
Attorneys for Petitioner
Atlas Van Lines, Inc.
The Widener Building
One South Penn Square
Philadelphia, PA 19107
(215) 575-4200
Dated: January 7, 2009
App. 1
PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2688
RICHARD J. LEWIS;
PATRICIA A. LEWIS
Appellants,
v.
ATLAS VAN LINES, INC.
On Appeal! from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-1862)
District Judge: Honorable John E. Jones, III
Argued June 3, 2008
Before: FISHER, JORDAN, Circuit Judges and
YOHN*, District Judge.
(Filed: September 9, 2008)
* Honorable William H. Yohn, Jr., Senior Judge, United
States District Court for the Eastern District of Pennsy!vania,
sitting by designation.
App. 2
James J. West [ARGUED]
105 N. Front Street — #205
Harrisburg, PA 17101
Counsel for Appellants
James A. Wescoe [ARGUED]
Rawle & Henderson
1339 Chestnut Street — 16th FI.
Philadelphia, PA 19107
Counsel for Appellant
OPINION
JORDAN, Circuit Judge.
This appeal involves a claim by Richard and
Patricia Lewis against Atlas Van Lines, Inc. (“Atlas”)
for damages incurred as a result of Atlas’s failure to
live up to its promise to move the Lewises’ household
belongings by a date certain. The District Court
dismissed the Lewises’ claim, concluding that they
had failed to comply with the procedural require-
ments of 49 U.S.C. § 14706, also known as the “Car-
mack Amendment,” or, for purposes of this opinion,
the “Amendment.” While we agree with the District
Court as to one aspect of its ruling, as more fully
explained herein, we disagree that the Lewises’ claim
for damages in the amount of additional mortgage
payments they had to make and the lost profit on the
sale of their home was insufficient to comply with the
Carmack Amendment and applicable regulations. We
App. 3
will therefore vacate the District Court’s order dis-
missing the case and remand for further proceedings.
I. Standard of Review & Jurisdiction
The District Court had jurisdiction pursuant to
28 U.S.C. § 1331. We have jurisdiction under 28
U.S.C. § 1291. The standard of review for a dismissal
under Federal Rule of Civil Procedure 12(b)(6) is de
novo. Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008). In conducting our review, we must
“accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable read-
ing of the complaint, the plaintiff may be entitled to
relief.” Id. at 233.
II. Background
Consistent with our standard of review, we recite
the facts of the case in the light most favorable to the
Lewises. The Lewises owned and lived in a house in
Glen Rock, Pennsylvania. On July 19, 2004, as part of
a planned move to New York, they entered into a
contract to sell that residence. The sales agreement
provided that the Lewises would deliver “a vacant
building” to the buyer at the time of the closing,
which was scheduled for August 27, 2004. (Appellee
App. at A24 qq 6-8.) Well aware of the need to move
their belongings quickly to comply with the terms of
the sales agreement, the Lewises solicited a bid from
Atlas’s local agent, Warners Moving and Storage
i
App. 4
(“Warners”), explicitly informing Warners that their
house had to be empty before August 27. The Lewises
also informed Warners that they had purchased a
new home in New York and that they intended to use
the proceeds from the sale of their Pennsylvania
home to pay for it.
Warners assured the Lewises that, if hired, it
—————would have their Pennsylvania residence emptied by
August 26, the day before the closing was scheduled
to occur. On July 27, 2004, a Warners sales represen-
tative executed an agreement with the lLewises
providing that “Warners Moving and Storage will
arrive at your home on 8/23 & 8/24 to box the house-
hold belongings with loading the household effects on
8/25 & 8/26. Delivery is scheduled for 8/31 or 9/1.”
(Appellee App. at A42.)
However, notwithstanding its explicit promise,
made with full awareness of the Lewises’ obligation to
present an empty home at closing on August 27 and
their need to pay for their new home in New York,
Warners dramatically failed to fulfill its commitment.
On August 23 and 24, Warners did pack the Lewises’
belongings as required, and on August 25, Warners
did provide a moving van at the Lewises’ residence,
and began loading the belongings into the van. De-
spite its obligation to complete the loading by the
following day, though, and knowing full well the
possible consequences to the Lewises, Warners ad-
vised the Lewises that the moving van was leaving
that evening because the tractor and crew were
App. 5
needed to handle a move to North Carolina for an-
other customer the next day.
The Lewises were still left believing that another
crew would appear with a tractor trailer to finish
their move as scheduled. But, on August 26, the day
it had agreed to complete the loading, Warners failed
to show up at the Lewises’ home. Obviously con-
cerned, the Lewises attempted to contact Warners. No
one from Warners appeared at the Lewises’ home that
day, and no one from Warners offered any explanation
for the delay. Nor did Warners appear on August 27,
the day of the closing. Aware that the real estate
transaction was in serious jeopardy, the Lewises
again tried to contact Warners and eventually spoke
to Jeff Warner at around noon on August 27.' Mr.
Warner advised the Lewises that there were no
licensed drivers available to deliver a moving van to
their residence.
Later that day, the Lewises attended the sched-
uled closing. Not surprisingly, given Warners’ failure
to perform as promised, the Lewises were unable to
deliver a vacant home to the purchasers. The pur-
chasers refused to go theough with the sale. Warners
did not complete the loading of the Lewises’ belong-
ings until August 29, and did not deliver them to New
York until September J, 2004.
' We are unable to tell fro. 1 the record whether Joff Warner
was a principal of Warners or simp / an employee.
App. 6
When the Lewises’ belongings arrived at their
new home in New York, Richard Lewis acknowledged
their receipt by signing a Household Goods Bill of
Lading and Freight Bill. That document provided
that “as ~ condition precedent to recovery, a claim for
any damage ... or delay, must be filed within nine
months after delivery.... When a claim is not filed
in accordance with the foregoing provisions,
carrier shall not be liable and such a claim shall not
be paid.” (Appellee App. at A139.)
The following month, on October 26, 2004, the
Lewises’ attorney sent a letter to Warners requesting
compensation for losses incurred because of Warners’
failure to timely perform as promised under the
parties’ agreement. The letter requested damages
equal to the “loss of profit on the sale of their resi-
dence, additional mortgage payments that Mr. and
Mrs. Lewis have had to pay on two mortgages on
their Pennsylvania residence which otherwise would
have been paid off at closing, and various other
miscellaneous expenses they would not have other-
wise incurred.” (Appellee App. at A150.) The letter
went on to explain that the Lewises could not provide
an exact dollar amount for their losses “until they are
able to sell their Pennsylvania residence.” (Appellee
App. at Ald1.) Shortly thereafter, on November 4,
2004, Warners’ counsel sent a letter to the Lewises’
alltorney acknowledging receipt of the October 26,
2004 letter, and requesting additional information
and documentation.
App. 7
On March 14, 2005, the Lewises entered into a
new contract to sell their Pennsylvania property. The
sale closed on June 3, 2005, at a price approximately
$35,000 lower than the amount the Lewises would
have received under the prior sales agreement, had
that transaction been completed. During the nine-
month period between the delivery of their belongings
to New York and the sale of their Pennsylvania
residence, the Lewises paid approximately $9,000 in
mortgage payments on the Pennsylvania residence,
approximately $1,600 in additional utility bills, and
over $28,000 in additional taxes.”
On November 9, 2005, the Lewises sent a letter
to Warners fully explaining their damages and pro-
viding a detailed spreadsheet showing the expenses
incurred because of Warners’ failure to keep its
promises. Warners refused to pay, and the Lewises
were compelled to file suit.
In their complaint filed on August 23, 2006
against Atlas in its capacity as Warners’ principal, the
Lewises asserted claims for breach of contract and
negligence and sought approximately $72,000 in
* While $28,000 may seem an extraordinary tax liability
under these circumstances, the Lewis's explained in a November
9, 2005 letter to Atlas that approximately $20,000 of that figure
represented fedcral income taxes that they were required to pay
as a penalty for withdrawing money from a 401(k) account. They
assert that they withdrew the money so that they could pur-
chase their home in New York, a step they would not have had to
take if they had been able to sell their Pennsylvania home as
planned.
App. 8
damages. Atlas, relying on the Carmack Amendment,
removed the case to the United States District Court
for the Middle District of Pennsylvania. Atlas then
filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). It argued that the Lewises’
state law claims were preempted by the Amendment
and that the Lewises could not obtain relief under
that statute because they had not complied with an
associated regulation, 49 C.F.R. § 370.3, which re-
quires a shipper to file a claim “for a specified or
determinable amount of money” with the carrier
within the time limits specified in the bill of lading.
On January 30, 2007, the District Court denied
Atias’s motion to dismiss, concluding that the Car-
mack Amendment did not preempt the Lewises’ state
law claims. However, on May 30, 2007, the District
Court granted Atlas’s motion for reconsideration and
dismissed the case. In doing so, the District Court
agreed with Atlas that the Lewises’ state law claims
were preempted and that the Lewises had not com-
plied with the cited regulation. This appeal followed.
Il. Discussion
Subsection (a)(1) of the Carmack Amendment, 49
U.S.C. § 14706(a)(1), provides in relevant part that:
A carrier providing transportation or service
. shall issue a reccipt or bill of lading for
property it receives for transportation... .
That carrier ... [is] liable to the person enti-
tled to recover under the receipt or bill of
App. 9
lading. The liability imposed under this
paragraph is for the actual loss or injury
to the property. ...
At oral argument, counsel for the Lewises cor-
rectly conceded that the Amendment preempts the
Lewises’ state law claims against Atlas.’ See, e.g., Ga.,
Fla. & Atlantic Ry. Co. v. Blish Milling Co., 241 U.S.
190, 196 (1916) (explaining that the Carmack
Amendment covers “all losses resulting from any
failure to discharge a carrier’s duty as to any part of
the agreed transportation”); Moffit v. Bekins Van
Lines Co., 6 F.3d 305, 306 (5th Cir. 1993) (holding
that the Carmack Amendment preempted state law
claims by a consumer shipper against a moving
company based on late delivery of the shipper’s
belongings).
* Although the Lewises concede that the Carmack Amend-
ment governs their claims, they urge us to exempt them entircly
from complying with the claim filing requirements sey out in 49
C.E.R. § 370.3. Relying on Wisconsin Packing Co. v. Indiana
Refrigerator Lines, Inc., 618 F.2d 441 (7th Cir. 1980), the
Lewises contend that § 370.3 does not apply to them because
Atlas has chosen to contest their claim. Were we writing on a
clean slate, the Lewises’ argument might have greater force
because, as the Seventh Circuit pointed out in Wisconsin
Packing, § 370.3 explicitly refers only to claims paid “voluntar-
ily” by a carrier. Jd. at 445. However, the Lewises’ reading of the
regulation is foreclosed by our recent decision in S & H Hard.
ware & Supply Co. v. Yellow Transp., Inc., 432 F.3d 550, 556 (3d
Cir. 2005) (explaining that “[a]s a matter of public policy, the
[regulation] is intended to provide carriers with an opportunity
to investigate claims, so it reaches its full usefulness precisely
when a carrier wishes to contest a claim”).
App. 10
As to claims under the Carmack Amendment
itself, subsection (e)(1) provides that “a carrier may
not provide ... a period of less than 9 months for
filing a claim against it under this section. ...” 49
U.S.C. § 14706(e)(1). The contents of a valid claim are
set forth in 49 C.F.R. § 370.3.‘ Pursuant to subsection
(b) of that regulation, a claim for “loss, damage, or
delay to cargo” must include:
A written or electronic communication ...
from a claimant, filed with a proper carrier
within the time limits specified in the bill of
lading... and:
(1) Containing facts sufficient to
identify the baggage or shipment (or
shipments) of property,
(2) Asserting liability for alleged
loss, damage, injury, or delay, and
* The regulations found in 49 C.F.R. § 370.3 went into effect
in 1997 and are also found in 49 C.F.R. § 1005.2. As a result,
several of the cases we discuss in this opinion cite to 49 C.F.R.
§ 1005.2 rather than 49 C.F.R. § 3270.3. However, the two
provisions are identical. See Motor Carricr Routing Regulations;
Disposition of Loss and Damage Claims and Processing Salvage;
Preservation of Records, 62 Fed.Reg. 32040-0)1 (June 12, 1997)
(explaining that, due to the passage of the Interstate Commerce
Commission Termination Act of 1995, it was necessary to “ada| |
to 49 CFR chapter III certain motor carrer transportation
regulations, also codified in 49 CFR chapter X.”) For clarity’s
suke, we will refer to the regulation as 49 C.F.R. § 370.3
throughout this opinion.
App. 11
(3) Making claim for the payment
of a_ specified or determinable
amount of money,
shall be considered as sufficient compliance
with the provisions for filing claims em-
braced in the bill of lading. . . .
Consistent with subsection (e)(1) of the Amend-
ment, the bill of lading that Atlas gave to the Lewises
required that, “as a cendition precedent to recovery, a
claim for any damage ... or delay, must be filed
within nine months after delivery. ... When a claim
is not filed ... in accordance with the foregoing
provisions, carrier shall not be liable and such a claim
shall not be paid.” (Appellee App. at A139.) Atlas
delivered the Lewises’ belongings to their new home
in New York on September 3, 2004. Thus, pursuant to
the bill of lading and the Amendment, the Lewises
had until June 3, 2005 to provide Atlas with notice of
their claim in a manner that complied with 49 C.F.R.
§ 370.3(b).
On appeal, the parties do not dispute that the
October 26, 2004 letter sent by the Lewises’ attorney
to Atlas satisfies the requirements found in
§ 370.3(b1) and (b)(2). They disagree, however, on
" We note that the bill of lading docs not appear to contain
any reference to the regulation or any requirement that the
claim be for a specified or determinable amount of money. We do
not imply that such a reference is legally required, but its
inclusion may have assisted in the resolution of this dispute
before litigation.
App. 12
whether that letter makes a claim for a “specified or
determinable amount of money,” as required by
§ 370.3(b)\(3). The Lewises argue that the letter
makes a claim for a determinable amount of money
because it identifies their losses as the “loss of profit
on the sale of their residence, additional mortgage
payments that [they] have had to pay on two mort-
gages on their Pennsylvania residence which other-
wise would have been paid off at closing, and various
other miscellaneous expenses they would not have
otherwise incurred.” (Appellee App. at A150.) Accord-
ing to the Lewises, listing the nature of their dam-
ages renders their claim “determinable” because
those damages are “susceptible of being determined,
found out, definitively decided upon, or settled.”
(Appellant Br. at 17.) Atlas responds that, to make a
claim for a determinable amount of money, the
Lewises’ claim must include, at minimum, some
dollar amount, and the October 26 letter fails to
provide “any dollar amount whatsoever.” (Appellee
Br. at 9, 26.) We agree with the Lewises that the
October 26, 2004 letter stated a claim for a determin-
able amount of money as to the amount of their extra
mortgage payments and the difference between the
price at which they would have sold their Pennsyl-
vania home, but for Warners’ actions, and the lower
price at which the home ultimately sold. However, a
claim for “miscellaneous” expenses is too vague to
constitute a claim for a determinable amount of
money, as contemplated by the regulation, and hence
Atlas is not liable for those expenses.
App. 13
We begin our analysis of § 370.3 with the rule
that “[t]he basic tenets of statutory construction
apply to construction of regulations and ‘our starting
point on any question concerning the application of a
regulation is its particular written text.’” Pa. Fed’n.
of Sportsmen’s Clubs, Inc. v. Kempthorne, 497 F.3d
337, 351 (3d Cir. 2007) (quoting Wilson v. U.S. Parole
Comm’n, 193 F.3d 195, 197 (38d Cir. 1999)). In examin-
ing a regulation’s text, “lilt is a fundamental canon of
. construction ... that unless otherwise defined,
words will be interpreted as taking their ordinary,
contemporary, common meaning.” CSX Transp. Co. v.
Novolog Bucks County, 502 F.3d 247, 257 (3d Cir.
2007) (citations and internal quotation marks omit-
ted).
As noted already, § 370.3(b)(3) requires that a
valid claim include a “written communication
[mJaking [a] claim for the payment of a specified
or determinable amount of money.” 49 C.FR.
§ 370.3(b)(3) (emphasis added). Because the regula-
tion does not define the meaning of the term “speci-
fied” or the term “determinable,” we must apply the
ordinary meaning of those words. “Determinable”
simply means “lajble to be determined or ascer-
tained.” Black’s Law Dictionary (8th ed. 2004). “Spec-
ify,” by contrast, means “to mention or name in a
specific or explicit manner: tell or state explicitly or in
detail.” Webster’s Third New International Dictionary,
2187 (Philip Babcock Gove, ed. 1961) (1986). The
plain meanings of “specified” and “determinable”
reveal a key difference between them and hence
App. 14
between the kinds of claims permitted by the regula-
tion. A claim for a “specified amount of money” is a
claim that explicitly gives the dollar amount of money
being claimed. However, a claim for a “determinable
amount of money” need not explicitly state the dollar
amount claimed. Instead, a claim is “determinable” if
the amount of money claimed is merely “[caplable of
being determined or ascertained.” Notably, because a
claim for a “specific amount of money” must state the
amount explicitly, such claims must be reduced to an
exact dollar amount at the time the claim is made. By
contrast, a claim that is “determinable” need “et
include any dollar amount at all. Instead, all that is
required is that the claim provide enough information
to make it possible to assign a dollar amount to the
claim at some point after the claim itself is filed.
Our conclusion that “specified” claims under
§ 370.3(b)(3) include exact dollar amounts while
“determinable” claims do not is not only consistent
with the ordinary usage of both terms, it is also
consistent with another canon of statutory and regu-
latory construction. We have explained that “[ilf
possible, we must give effect to every clause and word
of a statute, and be reluctant to treat statutory terms
as surplusage.” Vavarez v. Klingensmith, 372 F.3d
188, 190 (3d Cir. 2004) (citations and internal punc-
tuation and quotation marks omitted). Were we to
accept Atlas’s invitation to require that every claim
must provide some dollar amount to comply with
subsection (b)(3), we would be treating the term
“determinable” as merely redundant of the term
App. 15
“specified,” and would be ignoring the use of the word
“or” between the two terms.”
Atlas attempts to evade the ordinary meaning of
the regulation’s langvage and the basic rules of
textual construction by arguing that, while a “deter-
minable” claim need not include the exact amount of
the shipper’s claim, it must include some dollar
amount. We find no support for Atlas’s reading, either
in the text of the statute itself or in common sense.
Requiring a shipper to list some dollar amount pre-
sents the shipper with some limited options. The
shipper might list a single dollar amount, such as
“$100.00.” As we have already explained, such a claim
is a claim for a “specified” amount of money, not a
“determinable” amount of money. Second, a shipper
might list an estimate of its damages, for example, by
filing a claim for “$100 more or less.” Without further
amplification, such a claim is not for a specified or
determinable amount of money because 49 C.FR.
§ 370.3(d) provides that:
* Rather than focus on the regulation’s text, the Lewises
urge us to adopt a “substantial performance” standard to
evaluating claims under § 370.3(b). We have previously noted
the possibility of such a standard in dicta. See S & H Hardware,
432 F.3d at 554 (stating that “[clourts have construed the
written claim requirement liberally, however, and the standard
for determining sufficiency is one of substantial performance”)
(internal quotation marks and citations omitted). In this case,
we may resolve the Lewises’ appeal based on the plain meaning
of § 370.3(b)(3). Thus, while we do not reject the application of a
substantial performance standard in an appropriate case, we
have no reason to consider it here.
App. 16
[wjhenever a claim is presented ... for an
uncertain amount, such as ‘$100 more or
less,’ [the carrier] shall ascertain as nearly as
possible the extent, if any, of the loss or
damage for which it may be responsible. It
shall not, however, voluntarily pay [such] a
claim unless and until a formal claim in writ-
ing for a specified or determinable amount of
money shall have been filed in accordance
with the provisions of paragraph (b) of this
section.
The implication of the clause “until a formal claim in
writing for a specified or determinable amount of
money shall have been filed” is that a claim like
“$100 more or less” is different from and does not
mect the “specified or determinable” standard.
However, we do not read § 370.3(d) to bar all
claims that are less than fully specific regarding the
dollar amount at stake. Instead, the plain meaning of
the word “determinable” leads us to conclude that
§ 370.3(d) bars cle ms that include estimated dollar
amounts only whs. the claim does not contain suffi-
cient information to put the carrier on notice of the
nature and extent of its liability. Cf. Trepel v. Road-
way Exp., Inc., 194 F.3d 708, 712 (6th Cir. 1999)
(holding § 370.3(b\3) was satisfied when the nature
of the shipper’s damages was not in dispute and the
shipper estimated those damages at $150,000); Ins.
Co. of N. Am. v. G.I. Trucking Co., 1 F.3d 903, 904-05
(9th Cir. 1993) (applying a “substantial performance”
standard to §370.3(b) and holding that a claim
satisfied § 370.3(b)\(3) when the shipper identified the
App. 17
shipment at issue, provided supporting doeumenta-
tion, and estimated his damages at $100,000).
Beyond the unwarranted twist Atlas’s argument
gives to the plain meaning of “determinable,” t’
argument also violates an important purpose of the
statute. “The purpose of the written claim require-
ment is to insure that the carrier may promptly
investigate claims, and not to permit the carrier to
escape liability.” S & H Hardware & Supply Co. v.
Yellow Transp. Inc., 432 F.3d 550, 554 (3d Cir. 2005).
The “crux of the notice [under § 370.3(b)] is whether
it apprises the carrier of the basis for the claim and
that reimbursement will be sought.” Jd. Valid claims
are determinable not because they include some
dollar amount, but because they provide enough
information about the nature and extent of the car-
rier’s liability to allow the carrier to understand its
potential exposure to liability. See G.I. Trucking Co., 1
F.3d at 906 (explaining that “the form of the written
notice is less important than its adequacy in appris-
ing the carrier of the basis for the claim and the fact
that reimbursement will be sought.”). Thus, although
a valid claim will often include an estimate of the
shipper’s damages along with enough factual infor-
mation to inform the carrier of the basis for the claim,
a dollar amount is not an absolute requirement. See
id.(stating that “l|o|ther circuits ... have held that a
claini must specify an amount of damages to be
considered legally sufficient under the regula-
tions.... We expressly reject this conc!usion.”) (cita-
tions omitted).
App. 18
We conclude that, as to part of what they de-
manded, the Lewises’ October 26, 2004 letter provides
a sound example of how a shipper may give proper
notice to a carrier of a determinable claim without
including a dollar amount. The letter informed Atlas
that it was being asked to pay for the loss of profit on
the sale of their residence and for additional mort-
gage payments that Mr. and Mrs. Lewis would have
to pay on their Pennsylvania residence which other-
wise would have been paid off at closing. (Appellee
App. at A150.) The letter went on to explain that the
Lewises could not provide an exact dollar amount for
their losses “until they are able to sell their Pennsy]-
vania residence.” (Appellee App. at Al51.) Based on
the information provided to it by the Lewises, Atlas
knew the nature of that claim, and how the amount of
it would ultimately be determined.’ Section 370.3(b)
requires nothing more.
However, the Lewises’ additional demand that
they be reimbursed for “miscellaneous expenses”
requires different treatment. Unlike their claim
for lost profit and payment of additional mortgage
” Atlas also alleges that the Lewises failed to act in a timely
manner because they did not provide it with the final dollar
amount of their damages until November 2005, well after the
nine-month claim filing period specified in the bill of lading had
expired. Atlas’s argument misses the mark because, for the
reasons we have explained, the Lewises’ October 26, 2004 letter,
which was undisputedly sent within the nine-month period,
included a valid claim for a “determinable amount of money”
under § 370.3(b)(3).
App. 19
liability, that claim is not determinable because it
does not inform Atlas of the nature of the claim or the
extent of Atlas’s liability. Hence, with respect to that
claim, the Lewises did not file a “determinable” claim
within the nine months specified by the bill of lading,
and Atlas is not liable to them for whatever those
expenses may be.”
Finally, Atlas urges us to follow other Circuits
which, it insists, have held that claims which com-
pletely lack dollar amounts cannot satisfy § 370.3(b)(3).
We decline the invitation. As already explained, our
analysis of the text of the regulation persuades us
that a dollar amount is not required.”
* It was, for example, only after the nine-month time frame
that the Lewises described the tax penalty they faced by being
forced to withdraw funds from their 401(k) account.
* We note, however, that Atlas overstates the holdings of at
least two of the cases on which it relies. In Pathway Bellows Ince.
v. Blanchette, 630 F.2d 900 (2d Cir. 1980), the Second Circuit did
not explicitly hold that a doilar amount was required. Instead it
held that the shipper’s claim was “inadequate in form” when the
relevant portion of the shipper’s claim stated in its entirety that
“the purpose of this letter is to state, in writing, that we are in
the process of filing a claim for freight damage.” Jd. at 901, 904.
As we have explained, it is not the lack of a dollar amount that
dooms such claims, rather such claims are inadequate because
they do not provide a carrier with any information about the
nature of the damage incurred, or the extent of the carrier’s
liability. In addition, such claims are potentially open-ended in
the sense that they do not indicate to the carrier when, or how,
the shipper’s claim will be reduced to a dollar amount. In
Siemens Power Transmission & Distribution, Inc. v. Norfolk
Southern Ry. Co., 420 F.3d 1243, 1246 (11th Cir. 2005), the
(Continued on following page)
App. 20
IV. Conclusion
The District Court erred in concluding that the
Lewises’ request for reimbursement for additional
mortgage payments and loss incurred by virtue of the
decrease in the sale price of their Pennsylvania home
were not “determinable” claims under § 370.3(b)(3).
Hence, we will vacate the District Court’s order and
remand for further proceedings consistent with this
opinion.
Eleventh Circuit considered a claim that included an estimated
damages amount of $25,000, not a claim that entirely lacked a
dollar amount. The issue before the Eleventh Circuit was
whether “[§ 370.3(b)] could be construed to invalidate
estimated damages |claims] ... on the ground that such a
[claim] is not specified or determinable.” /d. at 1252. In the
course of deciding that estimated damages amounts were
permissible, the Eleventh Circuit noted that other circuit courts
had held a shipper’s claim invalid in “situations in which the
shipper provided the carrier with no damage amount at all.” Id.
(emphasis in original). However, contrary to Atlas’s contention,
nothing in Siemens indicates that the Eleventh Circuit adopted
the view that a dollar amount is always required. Instead, it
concluded that cases that did not include dollar amounts were
inapposite to the issue before it because the claim under consid-
cration included an estimated damages amount. /d. Thus,
Atlas’s reading of Siemens is overly broad.
App. 21
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2688
RICHARD J. LEWIS;
PATRICIA A. LEWIS
Appellants,
V
ATLAS VAN LINES, INC.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-1862)
District Judge: Honorable John E. Jones, III
Argued June 3, 2008
Before: FISHER, JORDAN, Circuit Judges,
and YOHN%, District Judge.
JUDGMENT
* Honorable William H. Yohn, Jr., Senior Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
App. 22
This cause came on to be considered on the
record from the United States District Court for the
Middle District of Pennsylvania and was argued on
June 3, 2008. On consideration whereof, it is now
hereby
ORDERED and ADJUDGED by this Court that
the Judgment of the District Court entered on May
30, 2007, be the same is hereby VACATED and
REMANDED, all of the above in accordance with the
opinion of this Court. Costs to be taxed against Appel-
lee.
ATTEST:
/s/ Marcia M. Waldron |
Marcia M. Waldron, Clerk
Dated: September 9, 2008
App. 23
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD J. LEWIS AND
PATRICIA A. LEWIS,
Plaintiffs, - No. 4:CV 06-1862
V. _ Judge Jones
ATLAS VAN LINES, INC. .
Defendant.
MEMORANDUM
May 30, 2007
THE BACKGROUND OF THIS MEMORANDUM
IS AS FOLLOWS:
Pending before the Court Defendant Atlas Van
Lines, Inc.’s Motion for Reconsideration, or, in the
Alternative, Motion for Entry of Final Order to Per-
mit Filing of Interlocutory Appeal) (“the Motion”) (doe.
20) riled on February 8, 2007.
For the following reasons, the Motion will be
granted.
PROCEDURAL HISTORY:
On January 30, 2007, this Court issued a Memo-
randum and Order ruling that the Carmack Amend-
ment, 49 U.S.C. § 14706, did not control the type of
injuries sustained by the Plaintiffs as a result of the
App. 24
Defendant’s conduct and denying the Defendant’s
Motion to Dismiss.
Following the entry of our January 30, 2007
Memorandum and Order, the Defendant filed the
pending Motion, arguing that the Court committed a
clear error of law in holding that the Carmack
Amendment was inapplicable to the case sub judice.
The Motion has been fully briefed by the parties and
is therefore ripe for our review.
STANDARD OF REVIEW:
Motions for reconsideration should be granted
sparingly as federal courts have a strong interest in
the finality of judgments. Burger King Corp. v. New
England Hood & Duct Cleaning Co., 2000 U.S. Dist.
LEXIS 1022, at *2 (E.D. Pa. 2000). “The purpose of a
motion for reconsideration ... is to correct manifest
errors of law or fact or to present newly discovered
evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (quoting Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert.
denied, 476 U.S. 1171 (1986)). “Accordingly, a judg-
ment may be altered or amended if the party seeking
reconsideration shows at least one of the following
grounds: (1) an intervening change in the controlling
law; (2) the availability of new evidence that was not
available when the court granted the motion; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice.” Jd. (citing North River
Ins. Co. v. CIGNA Retnsurance Co., 52 F.3d 1194,
App. 25
1218 (3d Cir. 1995)). “A motion for reconsideration is
not to be used as a means to reargue matters already
argued and disposed of or as an attempt to relitigate
a point of disagreement between the Court and the
litigant.” Abu-Jamal v. Horn, 2001 WL 1609761, at *9
(E.D. Pa. 2001).
FACTUAL BACKGROUND:
Plaintiffs Richard J. and Patricia A. Lewis
(“Plaintiffs”) entered into a contract to sell their
residence at 3143 Seaks Run Road, Glen Rock, York
County, Pennsylvania, with a settlement to be held
before August 27, 2004. The sales agreement provided
that the Plaintiffs would deliver “a vacant building”
at the time of the closing. In order to transport their
household possessions from their home in Pennsyl-
vania to their new home in New York, the Plaintiffs
entered into a contract with Warners Moving and
Storage (“Warners”), an agent of the Defendant with
Defendant Atlas Van Lines, Inc. (“Atlas”). Warner was
to box the household belongings of the Plaintiffs, load
the same on one or more appropriate motor vehicles,
and deliver the same to the Plaintiffs’ new residence
in Alpine, New York.
A letter memorializing this agreement, dated
July 27, 2004, was issued and executed by a sales
representative of Warners. In pertinent part, the
letter agreement provided as follows:
This letter is to confirm that Warners Mov-
ing and Storage will arrive at your home on
App. 26
8/23 & 8/24 to box the household belongings
with loading the household effects on 8/25 &
8/26. Delivery is scheduled for 8/31 or 9/1.
(Rec. Doc. 1, Ex. 2).
Plaintiffs allege that pursuant to the contract,
packers from Warners appeared on August 23 and 24,
2004 and boxed up the household belongings. At
approximately 12:00 noon on August 25, 2004,
Warners delivered a moving van to the Plaintiffs’
Pennsylvania residence and Warners engaged in
loading household belongings into the van until 5:00
p.-m., at which time Warners advised the Plaintiffs
that the moving van would be taken back to Warners’
place of business because the tractor and crew were
needed to handle a move to North Carolina on August
26, 2004. (Complaint, 914).
On August 26, 2004, Warners failed to appear
and Plaintiffs attempted several times to contact
Warners. Plaintiffs spoke with Joe Kilgore (“Kilgore”),
who allegedly told them that Warners was “working
on it and we'll take care of you.” (Affidavit of Richard
J. Lewis, Rec. Doc. 12, Ex. A at 75). Jo one appeared
on behalf of Warners on August 27, 2004 to complete
the loading of the van with Plaintiffs’ household
belongings. Plaintiffs allege they contacted Warners
on August 27, 2004 and spoke to Jeff Warner at
approximately 12:00 noon. Mr. Warner advised the
Plaintiffs that there were no licensed drivers avail-
able to deliver a moving van to the Plaintiff’s resi-
dence. (Complaint, 416). Plaintiffs alleged that
App. 27
Plaintiff Richard Lewis told Jeff Warner that his
“company was jeopardizing the sale of [his] property
and that ‘[he] would hold them responsible.’” (Plain-
tiff’s Aff., 46).
Because the Plaintiffs were unable to comply
with the terms of the agreement of sale of their
Pennsylvania residence by delivering a vacant home
to the purchasers, they were in default under the
sales agreement and the purchasers terminated the
transaction at approximately 5:00 p.m. on August 27,
2004. (Complaint, 917). Plaintiffs allege that they
contacted Mr. Warner a second time on August 27,
2004 and told him that the closing was not occurring
because the house was not vacant and were informed
that “the best he could do was to guarantee every-
thing would be out by 12:00 noon on Saturday, August
28, 2004.” Warners delivered a moving van to the
Plaintiffs’ residence on August 28, 2004 and Warners’
employees worked until approximately 9:00 p.m., and
completed loading the next day. (Plaintiff’s Aff. 7{7-
8).
Plaintiffs’ interstate shipment was moved pursu-
ant to Atias’ Household Goods Bill of tading and
Freight Bill Number C64174. (Rec. Doc. 5, Ex. B).
Plaintiffs allege that they were first shown the Bill of
Lading on August 26, 2004, when Plaintiff Richard
Lewis signed the document indicating he reviewed
the items to be shipped. Plaintiffs further allege that
it was signed again by Plaintiff Richard Lewis on
September 3, 2004 when the items were delivered in
New York.
App. 28
On October 26, 2004, Plaintiffs’ attorney sent a
letter to the Defendant making a claim for the losses
arising out of the breached contract, identifying those
losses as “loss of profit on the sale of their residence,
additional mortgage payments and that Mr. and Mrs.
Lewis have had to pay on two mortgages on their
Pennsylvania residence which otherwise would have
been paid off at closing, and various other miscella-
neous expenses they would not have otherwise in-
curred.” The letter goes on to explain that an exact
number for the loss could not be provided “until they
are able to sell their Pennsylvania residence.” (Rec.
Doc. 11, Ex. 2).
In response to the October 26, 2004 letter,
Warners, through counsel, sent a letter to Plaintiffs’
attorney dated November 4, 2004, wherein receipt of
the October 26, 2004 letter was acknowledged.
Warners’ letter requested additional information and
documentation from Plaintiffs in an effort to evaluate
the claim. (Rec. Doc. 5, Ex. D).
Plaintiffs allege that their Pennsylvania property
was sold on June 3, 2005 pursuant to an Agreement
of Sale executed on March 14, 2005. On November 9,
2005, Plaintiffs sent a letter to Defendant fully ex-
plaining the damages after the sale of Plaintiffs’
residence and providing a_ detailed spreadsheet
showing expenses incurred and losses because of the
breached contract. (Rec. Doc. 11, Ex. 4).
App. 29
DISCUSSION:
The Defendants argue that the actions and
alleged omissions related to the packing and loading
of Plaintiffs’ goods — and the alleged resultant failure
to remove all of the goods from the Plaintiffs’ Penn-
sylvania residence — are clearly and unquestionably
within the scope of the Carmack Amendment and this
Court’s ruling to the contrary was a clear error of law.
The Defendants submit that the Court’s analysis of
whether the July 27, 2004 letter constituted a sepa-
rate “operative document” which controlled the
packing of Plaintiffs’ household goods is misplaced,
because the packing and loading services provided by
the Defendant are clearly within the exclusive scope
of the Carmack Amendment.
A. The Carmack Amendment
In 1906, Congress enacted the Carmack Amend-
ment which created a national policy regarding an
interstate carrier’s liability for damages arising from
the interstate transportation of goods. See 49 U.S.C.
§ 14706; New York, New Haven & Hartford Railroad
Co. v. Nothnagle, 346 U.S. 128, 131 (1953). The
Carmack Amendment “codifies the common-law rule
making a carrier liable, without proof of negligence,
for all damage to the goods transported by it, unless
it affirmatively shows that the damage was occa-
sioned by the shipper, acts of God, the public enemy,
public authority, or the inherent vice or nature of the
App. 30
commodity.” Secretary of Agriculture v. United States,
350 U.S. 162, 166 n. 9 (1956).
The Carmack Amendment provides the exclusive
remedy against an interstate common carrier for
breach of a carriage contract. Diamond Transp.
Group, Inc. v. Emerald Logistics Solutions, Inc., 2006
U.S. Dist. LEXIS 42918, *7 (E.D. Pa.). Under the
Carmack Amendment, carriers are fully liable for
actual loss or injury to property. Carmana Designs,
Lid. v. North Amer. Van Lines, Inc., 943 F.2d 316, 319
(3d Cir. 1991). To establish a prima facie case against
a carrier under the Carmack Amendment, a shipper
must prove (1) delivery of goods to the initial carrier
in good condition; (2) damage of the goods before
delivery to their final destination; and (3) the amount
of damages. Paper Magic Group, Inc. v. J.B. Hunt
Transport, Inc., 318 F.3d 458, 461 (3d Cir. 2003).
“Packing” and “loading” of household goods are
considered “transportation services” that fall within
the scope of the Carmack Amendment. 49 U.S.C.
§ 13102 specifically provides that “handling, packing
[and] u.»acking” are services included within the
definition of “transportation” for purposes of Car-
mack. Additionally, 49 U.S.C. § 13102(12) provides
that a “household goods motor carrier” offers within
its scope of services “protective packing and unpack-
ing of individual items at personal residences” and
“loading and unloading at personal residences.”
The scope of the Carmack Amendment's coverage
is broad. The United States Supreme Court succinctly
App. 31
described the breadth of the Carmack Amendment in
New York, Philadelphia and Norfolk R.R. Co. uv.
Peninsula Produce Exch. Of Md., 240 U.S. 34, 38
(1916), when it stated that the Carmack Amendment
is “comprehensive enough to embrace all damages
resulting from any failure to discharge a carrier’s
duty with respect to any part of the transportation to
the agreed destination.”
B. Reconsideration Analysis
In our January 39, 2007 Memorandum and
Order, we concluded that the Carmack Amendment
did not govern this action because the type of injury
sustained by Plaintiffs was not contemplated by
Carmack. Within the instant Motion, Defendants
argue that the alleged actions, omissions and result-
ing injuries are within the scope of the Carmack
Amendment.
The Defendant submits that once it began the
“transportation” services of packing and loading the
Plaintiffs’ household goods on August 23, 2004, the
controversy arising thereafter automatically fell
completely and exclusively within the scope of the
Carmack Amendment. Defendant further agues that
the existence or enforceability of the July 27, 2004
“letter agreement” does not affect whether the Car-
mack Amendment applies, but only bears relevance to
whether the Defendant has notice of the consequen-
tial damages which would apply if the transportation
services were not timely performed by it.
App. 32
As noted above, the Carmack Amendment is
“comprehensive” and specifically covers “packing” and
“loading” of household goods. See 49 U.S.C. § 13102.
Upon review of the Motion and supporting briefs, it is
clear to the Court that we committed an error of law
in holding that the Carmack Amendment did not
apply to the instant controversy inasmuch as our
reliance on the July 27, 2004 “letter agreement” was
misplaced. Plaintiffs’ damages, albeit unforeseen,
were incurred as result of the Defendant’s alleged
“failure to discharge [its] duty with respect to any
part of the transportation to the agreed destination.”
Peninsula Produce, 240 U.S. at 38.
C. Rule i2(b)(6) Analysis
In ruling that we erred in failing to apply the
Carmack Amendmeni. to the case sub judice, we must
now determine whether Plaintiffs’ claim should be
dismissed pursuant tio Fed. R. Civ. P. 12(b)(6) with the
overlay of the Carmack Amendment.
The Carmack Amendment itself does not state
what must be included in a claim against a carrier
but rather prohibits the carrier from shortening the
time for such a claim, stating that “a carrier may not
provide by rule, contract or otherwise a period of less
than nine months for filing a claim against it under
this section and a period of less than two years from
bringing a civil action against it under this section.”
49 U.S.C. § 14706(e). Federal regulations govern
the filing and processing of claims for delay in the
App. 33
delivery of household goods. See 49 C.F.R. § 370.
These regulations are incorporated into the Defen-
dant’s tariffs, which are incorporated into the Bill of
Lading. 49 C.F.R. § 370 sets forth the following re-
quirements for filing a delay claim:
(a) A written or electronic communication filed
within the time limits specified in the bill of
lading;
(b) The communication must contain facts suffi-
cient to identify the baggage or shipment at
issue;
(c) The communication must assert liability for
the loss, damage or delay against the carrier;
and,
(d) The communication must assert a claim for
the payment of a specified or determinable
amount of money.
Plaintiffs contend that the October 26, 2004
letter from Attorney Gent meets these requirements
because it contains facts sufficient to identify the
shipment, asserts liability and makes a claim for the
payment of a determinable amount of money, that
being “Mr. and Mrs. Lewis’ losses including, but are
not limited to, loss of profit on the sale of their resi-
dence, additional mortgage payments that Mr. and
Mrs. Lewis have had to pay on two mortgages on
their Pennsylvania residence which otherwise would
have heen paid off at closing, and various other
miscellaneous expenses they would not have other-
wise incurred.” Defendant argues that Plaintiffs
App. 34
failed to provide timely notice of a specified or deter-
minable claim to it or its agent within the time period
prescribed by the Bill of Lading.’ Defendant argues
that Plaintiffs, by their own admissions, became
aware of the “new” purchase of their Pennsylvania
residence when they executed the Agreement of Sale
on March 14, 2005, and therefore they had over two
and a half months (until June 3, 2005) to ascertain
their specific and determinable damages. Addition-
ally, Defendant argues that the closing on the Penn-
sylvania residence occurred exactly on June 3, 2005,
and surely the Plaintiffs would have knowr ‘nz exact
amount of damages allegedly caused by the delayed
pick up of their goods xt the completion of the closing
on June 3, 2005. Instead, Plaintiffs transmitted a
specified damages amount to the Defendant under
cover of letter dated November 9, 2005. The spread-
sheet indicating the amounts shows a transmission
date of July 8, 2005, but nonetheless, the Defendant
did not receive it until November 9, 2005.
There is a split in the federal circuit courts
concerning the standard to be used to determine
whether a shipper’s damages claim is sufficient. The
dueling standards are “strict compliance” and “sub-
stantial performance.” Plaintiffs cite to dicta con-
tained in S&H Hardware & Supply v. Yellow
’ Plaintiffs’ household goods were delivered to their resi-
dence in Alpine, New York on September 3, 2004. Pursuant to
the Bill of Lading, the deadline for filing a claim with the carrier
was nine months later, or June 3, 2005. (Rec. Doc. 5, Ex. B).
App. 35
Transport, 432 F.3d 550, 554 (3d Cir. 2005) to support
its contention that the Third Circuit has indicated it
would follow the “substantial performance” standard.
In Yellow Transport, the Third Circuit discussed the
applicability of the “substantial performance” stan-
dard as it related to whether a communication was to
be considered written notice at all. The case did not
address the contents, adequacy, sufficiency or deter-
minability of the notice of damages claim, and there-
fore is simply not persuasive on the point for which
Plaintiffs cite it.
The parties seem to concede that if the Court
utilized the “strict compliance” standard that Attor-
ney Gent’s letter would not be considered sufficient
notice because no firm dollar amount was included.
However, even if the Court applied the “substantial
performance” standard, the Plaintiffs have not cited
to, nor have we been able to find, any case where the
shipper provided the carrier with no dollar amount
whatsoever. What is clear is that the Plaintiffs failed
to provide the Defendant with any additional infor-
mation regarding the amount of their alleged claims
until November 9, 2005, which was over sixteen
months from the date of the alleged delay in the
pickup of their household goods and over five months
from the deadline created by the Bill of Lading. This
delay in communication occurred even though the
Plaintiffs knew of the sale price of their Pennsylvania
residence when they executed the Agreement of Sale
App. 36
on March 14, 2005 and closed on the sale on June 3,
2005.’ We can find no reason to excuse the Plaintiffs’
delay in communicating the specified damages to the
Defendant. Because Plaintiffs’ notice was insufficient
as a matter of law, their claim is time-barred and
shall be dismissed.
CONCLUSION:
Accordingly, for the foregoing reasons, we shall
grant the Defendant’s Motion as we made a clear
error of law in holding that the Carmack Amendment
did not apply to the instant action. In applying the
Carmack Amendment to the matter, we find that the
Plaintiffs have failed to state a claim upon which
relief can be granted. Their notice to the Defendant
was insufficient as a matter of law under Carmack
because it failed to state specified or determinable
damages. Therefore, the action shall be dismissed. An
appropriate Order shall issue.
* While an exception to timely notice is available to a
shipper who cannot, with “reasonable diligence” ascertain the
extent of its Joss, this is certainly not the case here for the
reasons stated herein. See Cherkis v. Atlas Van Lines, 59
F. Supp. 2d 203, 207 (D. Mass. 1999).
App. 37
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD J. LEWIS AND : No. 4:CV 06-1862
PATRICIA A. LEWIS,
Plaintiffs,
|
.
| ATLAS VAN LINES, INC.
Defendant.
Judge Jones
ORDER
May 30, 2007
In conformity with the Memorandum issued in
the above-captioned matter on today’s date, it is
hereby ORDERED that:
1. Defendant’s Motion for Reconsideration
(doc. 20) is GRANTED to the extent that
the Carmack Amendment applies to the
instant matter.
2. This action is DISMISSED for failure to
state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P.
12(b)(6).
3. The Clerk shal! CLOSE the file on this
case.
/s/ John E. Jones III
John E. Jones III
United States District Judge
App. 38
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2688
RICHARD J. LEWIS;
PATRICIA A. LEWIS
Appellants,
Vv.
ATLAS VAN LINES, INC.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-1862)
District Judge: Honorable John E. Jones, III
SUR PETITION FOR REHEARING
WITH SUGGESTION FOR
REHEARING EN BANC
Present: SCIRICA, Chief Judge, SLOVITER,
McKEE, RENDELL, BARRY, 4MBRO,
FUENTES, SMITH, FISHER, CHAGARES,
App. 39
JORDAN, and HARDIMAN, Circuit Judges,
and YOHN*, District Judge
The petition for rehearing filed by appellants in
the above-entitled case having been submitted to the
judges who participated in the decision of this Court
and to ali the other available circuit judges of the
circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing,
and a majority of the circuit judges of the circuit in
regular service not having voted for rehearing, the
petition for rehearing by the panel and the Court en
banc, is denied.
BY THE COURT:
/s/ Kent A. Jordan
Circuit Judge
Dated: October 9, 2008
TYW/smw/ce: James J. West, Esq.
James A. Wescoe, Esq.
* Honorable William H. Yohn, Jr., Senior Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation, limited to panel vote only
App. 40
STATUTES AND REGULATIONS INVOLVED
49 U.S.C. § 14706. Liability of carriers under
receipts and bills of lading
(a) General liability. -
(1) Motor carriers and freight forwarders.
—Acarrier providing transportation or service subject
to jurisdiction under sub-chapter I or III of chapter
135 shall issue a receipt or bill of lading for property
it receives for transportation under this part. That
carrier and any other carrier that delivers the prop-
erty and is providing transportation or service subject
to jurisdiction under subchapter I or III of chapter
135 or chapter 105 are liable to the person entitled to
recover under the receipt or bill of lading. The liabil-
ity imposed under this paragraph is for the actual
loss or injury to the property caused by (A) the receiv-
ing carrier, (B) the delivering carrier, or (C) another
carrier over whose line or route the property is trans-
ported in the United States or from a place in the
United States to a place in an adjacent foreign coun-
try when transported under a through bill of lading
and, except in the case of a freight forwarder, applies
to property reconsigned or diverted under a tariff
under section 13702. Failure to issue a receipt or bill
of lading does not affect the liability of a carrier. A
delivering earlier is deemed to be the carrier perform-
ing the line-haul transportation nearest the destina-
tion but does not include a carrier providing only a
switching service at the destination.
App. 41
(2) Freight forwarder. -— A freight forwarder
is both the receiving and delivering carrier. When a
freight forwarder provides service and uses a motor
carrier providing transportation subject to jurisdic-
tion under subchapter I of chapter 135 to receive
property from a consignor, the motor carrier may
execute the bill of lading or shipping receipt for the
freight forwarder with its consent. With the consent
of the freight forwarder, a motor carrier may deliver
property for a freight forwarder on the freight for-
warder’s bill of lading, freight bill, or shipping receipt
to the consignee named in it, and receipt for the
property may be made on the freight forwarder’s
delivery receipt.
(b) Apportionment. - The carrier issuing the
receipt or bill of lading under subsection (a) of this
section or delivering the property for which the
receipt or bill of lading was issued is entitled to
recover from the carrier over whose line or rovie the
loss or injury occurred the amount required to be paid
to the owners of the property, as evidenced by a
receipt, judgment, or transcript, and the amount of
its expenses reasonably incurred in defending a civil
action brought by that person.
(c) Special rules. -
(1) Motor carriers. -
(A) Shipper waiver. — Subject to the provi-
sions of subparagraph (B), a carrier providing transpor-
tation or service subject to jurisdiction under
subchapter I or III of chapter 135 may, subject to the
App. 42
provisions of this chapter (including with respect to a
motor carrier, the requirements of section 13710(a)),
establish rates for the transportation of property
(other than household goods aescribed in section
13102(10)(A)) 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 circum-
stances surrounding the transportation.
(B) Carrier notification. - If the motor
carrier is not required to file its tariff with the Board,
it shall provide under section 13710(a)(1) to the
shipper, on request of the shipper, a written or elec-
tronic copy of the rate, classification, rules and prac-
tices upon which any rate applicable to a shipment, or
agreed to between the shipper and the carrier, is
based. The copy provided by the carrier shall clearly
state the dates of applicability of the rate, classifica-
tion, rules or practices.
(C) Prohibition against collective estab-
lishment. — No discussion, consideration, or approval
as to rules to limit liability under this subsection may
be undertaken by carriers acting under an agreement
approved pursuant to section 13703.
(2) Water carriers. - If loss or injury to prop-
erty occurs while it is in the custody of a water car-
rier, the liability of that carrier is determined by its
bill of lading and the law applicable to water trans-
portation. The lability of the initial or delivering
App. 43
carrier is the same as the liability of the water car-
rier.
(d) Civil actions. -
(1) Against delivering carrier. - A civil
action under this section may be brought against a
delivering carrier in a district court of the United
States or in a State court. Trial, if the action is
brought in a district court of the United States is ina
judicial district, and if in a State court, is in a State
through which the defendant carrier operates.
(2) Against carrying responsible for loss. -
A civil action under this section may be brought
against the carrier alleged to have caused the loss or
damage, in the judicial district in which such loss or
damage is alleged to have occurred.
(3) Jurisdiction of courts. —- A civil action
under this section may be brought in a United States
district court or in a State court.
(4) Judicial district defined. - In this sec-
tion, “judicial district” means —
(A) in the case of a United States district court,
a judicial district of the United States; and,
(B) in the case of a State court, the applicable
geographic area over which such court exercises
jurisdiction.
App. 44
(e) Minimum period for filing claims. -
(1) In general. — A carrier may not provide by
rule, contract, or otherwise, a period of less than 9
months for filing a claim against it under this section
and a period of less than 2 years for bringing a civil
action ageinst it under this section. The period for
bringing a civil action is computed from the date the
carrier gives a person written notice that the carrier
has disallowed any part of the claim specified in the
notice.
(2) Special rules. — For the purposes of this
subsection —
(A) an offer of comprcemise shall not consti-
tute a disallowance of any part of the claim unless the
carrier, in writing, informs the claimant that such
part of the claim is disallowed and provides reasons
for such disallowance; and
(B) communications received from a car-
rier’s insurer shall not constitute a disallowance of
any part of the claim unless the insurer, in writing,
informs the claimant that such part of the claim is
disallowed, provides reason for such disallowance,
and informs the claimant that the insurer is acting on
behalf of the carrier.
(f) Limiting liability of household goods carri-
ers to declared value. -
(1) In general. - A carrier or group of carriers
subject to jurisdiction under subchapter I or IIl
of chapter 135 may petition the Board to modify,
App. 45
eliminate, or establizh rates for the transportation of
household goods under which the liability of the
carrier for that property is limited to a value estab-
lished by written declaration of the shipper or by a
written agreement.
(2) Full value protection obligation. - Unless
the carrier receives a waiver in writing under para-
graph (3), a carrier’s maximum liability for household
goods that are lost, damaged, destroyed, or otherwise
not delivered to the final destination is an amount
equal to the replacement value of such goods, subject
to a maximum amount equal to the declared value of
the shipment and to rules issued by the Surface
Transportation Board and applicable tariffs.
(3) Application of rates. -- The released rates
estabiished by the Board under paragraph (1) (com-
monly known as “released rates”) shall not apply to
the transportation of household goods by a carrier
unless the liability of the carrier for the full value of
such household goods under paragraph (2) is waived,
in writing, by the shipper.
(g) Modifications and reforms. —
(1) Study. - The Secretary shail conduct a
study to determine whether any modifications or
reforms should be made to the loss and damage
provisions of this section, including those related to
limitation of lability by carriers.
(2) Factors to consider. - In conducting the
study, the Secretary, at a minimum, shall consider —
App. 46
(A) the efficient delivery of transportation
services;
(B) international and intermodal harmony;
(C) the public interest; and
(D) the interest of carriers and shippers.
(3) Report. ~ Not later than 12 months after
January 1, 1996, the Secretary shall submit to Con-
gress a report on the results of the study, together
with any recommendations, for implemei.ting modifi-
cations or reforms identified by the Secretary as
being appropriate.
Part 370-PRINCIPLES AND PRACTICES
FOR THE INVESTIGATION AND VOLUNTARY
DISPOSITION OF LOSS AND DAMAGE
CLAIMS AND PROCESSING SALVAGE.
$370.1 Applicability of regulations.
The regulations set forth in this part shall govern
the processing of claims for loss, damage, injury, or
delay to property transported or accepted for trans-
portation, in interstate or foreign commerce, by each
motor carnmer, water carrier, and freight forwarder
(hereinafter called carrier), subject to 49 U.S.C.
subtitle IV, part B.
$270.3 Filing of claims.
(a) Compliance with regulations. A claim for
loss or damage to baggage or for loss, damage, injury
App. 47
or delay to cargo, shall not be voluntarily paid by a
carrier unless filed, as provided in paragraph (b) of
this section, with the receiving or delivering carrier,
or carrier issuing the bill of lading, receipt, ticket, or
baggage check, or carrier on whose line the alleged
loss, damage, iniury or delay occurred, within the
specified time limits applicable thereto and as other-
wise may be required by law, the terms of the bill of
lading or other contract of carriage, and all tariff
provisions applicable thereto.
(b) Minimum filing requirements. A written or
electronic communication (when agreed to by the
carrier and shipper or receiver involved) from a claim-
ant, filed with a proper carrier within the time limits
specified in the bill of lading or contract of carriage or
transportation and:
(1) Containing facts sufficient to identify the
baggage or shipment (or shipments) of prop-
erty,
(2) Asserting liability for alleged loss, damage,
injury or delay, and,
(3) Making claim for the payment of a specified
or determinable amount of money, shall be
considered as sufficient complhance with the
provisions for filing claims embraced in the
bill of lading or other contract of carriage;
Provided, however, That where claims are
electronically handled, procedures are estab-
lished to ensure reasonable carrier access to
supporting documents.
App. 48
(c) Documents not constituting claims. Bad
order reports, appraisal reports of damage, notations
of shortage or damage, or both, on freight bills, deliv-
ery receipts, or other documents, or inspections
reports issued by carriers or their inspection agen-
cies, whether the extent of loss or damage is indicated
in dollars or cents or otherwise, shall, standing alone,
not be considered by carriers as sufficient to comply
with the minimum claim filing requirements specified
in paragraph (b) of this section.
(d) Claims filed for uncertain amounts. When-
ever a claim is presented against a proper carrier for
an uncertain amount, such as $100 more or less, the
carrier against whom such claim is filed shall deter-
mine the condition of the baggage or shipment in-
volved at the time of delivery by it, if it was delivered,
and shall ascertain as nearly as possible the extent, if
any, of the loss or damage for which it may be respon-
sible. It shall not, however, voluntarily pay a claim
under such circumstances unless and until a formal
claim is filed in writing for a specific or determinable
amount of money shall have been filed in accordance
with the provisions of paragraph (b) of this section.
(e) Other claims. If investigation of a claim
develops that one or more other carriers has been
presented with a similar claim on the same shipment,
the carrier investigating such claim shall communi-
cate with each such other carrier and, prior to any
agreement entered into between or among them as to
the proper disposition of such claim or claims, shall
notify all claimants of the receipt of conflicting or
App. 49
overlapping claims and shall require further substan-
tiation, on the part of each claimant of his/her title to
the property involved or his/her right with respect to
such claim.
App. 50
IN THE COURT OF COMMON PLEAS OF
YORK COUNTY, PENNSYLVANIA
Richard J. Lewis & : NO.
Patricia A. Lewis :
XXX XXX XXX
Alpine, NY 14805
Plaintiffs
Vv. . Jury Trial Demanded
Atlas Van Lines, Inc.
1212 St. George Road
Evansville, IN 47711,
and
Defendant
COMPLAINT
NOW COMES, this 23rd day of August, 2006,
the Plaintiffs, Richard J. Lewis and Patricia A.
Lewis, by their attorneys, Douglas H. Gent, Es-
quive, and Eric R. Dutcher, Esquire, and file the
within Complaint, to wit:
1. Plaintiffs are adult individuals currently
residing at xxx xxx xxx, Alpine, NY 14805.
2. Defendant, Atlas Van Lines, Inc., (hereinaf-
ter referred to as “Atlas”) is an Indiana corporation
with its principal place of business located at 1212
St. George Road, Evansville, IN 47711. Atlas does
business in the Commonwealth of Pennsylvania by
providing moving and storage services to individual
homeowners.
App. 51
3. Defendant does business in York County,
Pennsylvania through its agent, Warners Moving and
Storage (hereinafter referred to as “Warner”) having
its principal place of business located on West Coun-
try Club Road, Red Lion, PA 17356.
4. Warners engages in the business of moving
and storing personal property including moving
household goods and other personalty of individuals
who are moving from one residence to another resi-
dence both intrastate and interstate. Warners is a
local agent for Atlas.
5. Plaintiffs owned and lived in a personal
residence located at xxx xxx xxx xxx, Glen Reck, PA
17327.
6. Plaintiffs entered into an Agreement of Sale
dated July 19, 2004, with Bruce D. and Crystal L.
Gibbons for the sale of the Plaintiffs’ residence lo-
cated at xxx xxx xxx xxx, Glen Rock, PA. Said Agree-
ment of Sale established that settlement was to occur
on or before August 27, 2004. A copy of said Agree-
ment of Sale is attached hereto as Exhibit A and
incorporated herein by reference as though set forth
in full.
Land
7. The Plaintiffs intended to move to their new
residence located at xxx xxx xxx, Alpine, NY 14805.
8. Paragraph 15 of the Agreement of Sale
states, in pertinent part, as follows:
App. 52
“a. Title shall be tendered by way of war-
ranty deed and possession is to be delivered
by keys to a vacant building... ”.
9. Pursuant to the Plaintiffs’ obligation under
paragraph 15 of the Agreement of Sale, and in order
to transport their personalty to their new residence in
Alpine, New York, the Plaintiffs entered into an oral
agreement with Warners Moving & Storage, as agent
for Atlas, to box the household belongings of the
Plaintiffs, load the same on one or more appropriate
motor vehicles, and deliver the same to the Plaintiffs’
new residence in Alpine, New York. It is believed, and
therefore averred that said agreement was an oral
agreement subsequently memorialized in writing by a
letter dated July 27, 2004, issued and executed by
Warners. A copy of said letter is attached hereto and
incorporated herein by reference as Exhibit B.
10. The terms of the contract set forth in the
letter of July 27, 2004, specifically state that Warners
would be at the Plaintiffs’ Pennsylvania residence on
August 23 and August 24 to box the household be-
longings, load the same onto one or more moving vans
on August 25 and August 26, 2004, and deliver the
same to the new residence in Alpine, New York on
September 1, 2004. Attached to said letter was a
document entitled “Household Goods Transportation
Estimate for Richard Lewis”.
ll. The letter of July 27, 2004, identifies
Warners as an interstate agent for Atlas.
App. 53
12. Settlement on the sale of the Plaintiffs’
Pennsylvania residence was scheduled for 4:00 p.m.
on August 27, 2004.
13. Pursuant to the terms of the contract,
packers for Warners appeared on August 23 and 24,
2004, to box up household belongings.
14. At approximately 12:00 noon on August 25,
2004, Warners delivered a moving van to the Plain-
tiffs residence and Warners engaged in loading
household belongings into the van until 5:00 p.m. At
said time, Warners advised the Plaintiffs that the
moving van would be taken back to Warners place of
business because the tractor and the crew were
needed to handle a move to North Carolina on August
26, 2004.
15. Warners failed to appear on August 26, 2004
to load the moving van in accordance with its contrac
tual obligations to the Plaintiffs. On August 26, 2004,
the Plaintiffs attempted several times to contact
Warners speaking with one Joe Kilgore, who did not
provide any satisfactory response.
16. No one appeared on behalf of Warners on
August 27, 2004, to complete loading the van with the
Plaintiffs household belongings. The Plaintiffs con-
tacted Warners on August 27, 2004, speaking with
one Jeff Warner at approximately 12:00 noon. Mr.
Warner advised the Plaintiffs that there was no
licensed driver available to deliver a moving van to
the Plaintiffs’ residence to load household effects
App. 54
17. As a result of the Plaintiffs’ inability to
comply with the terms of the Agreement of Sale for
their residence by delivering a vacant house to Mr.
and Mrs. Gibbons, the Plaintiffs were in default
under the Agreement of Sale. Mr. and Mrs. Gibbons
terminated the transaction at approximately 5:00
p.m. on August 27, 2004.
18. Warners delivered a moving van to the
Plaintiffs’ residence at approximately 9:00 a.m. on
August 28, 2004, and worked until approximately
9:00. p.m. At that time Warners advised the Plaintiffs
that a second moving van would be needed.
19. Warners delivered a second moving van to
the Plaintiffs’ residence on August 29, 2004, and
completed loading the household belongings of the
Plaintiff.
20. Warners delivered the Plaintiffs household
belongings to the Plaintiffs’ residence in Alpine, New
York on or about September 3, 2004.
21. On August 26, 2004, at approximately
5:00 p.m., Warners presented the Plaintiffs with a
Household Goods Bill of Lading and Freight Bill, a
copy of which is attached hereto as Exhibit C, and
incorporated herein by reference as though set forth
in full. Said Household Goods Bill of Lading and
Freight Bill indicates that the Plaintiffs had previ-
ously paid $10,473.19 under the terms of the contract
to guarantee peiformance by Warners of its obliga-
tions under its contract with the Plaintiffs. The
Plaintiff Richard J. Lewis was requested to execute a
App. 55
box on the left hand side of the Bill of Lading on
August 26, 2004, addressing the issue of adding items
to be shipped after a “survey” had been completed by
Warners of the quantity of household belongings to be
shipped. Subsequently, on September 3, 2004, the
Plaintiff Richard J. Lewis signed the bottom of the
Bill of Lading acknowledging receipt of shipment and
that the goods were in good condition.
22. The Plaintiffs immediately re-listed their
Pennsylvania residence for sale. On or about March
14, 2005, the Plaintiffs entered into a new Agreement
of Sale with Charles E. and Constance B. Patterson
for the sale of the Pennsylvania residence. Settlement
on the subsequent sale took place on June 3, 2005. A
copy of the Agreement of Sale is attached hereto as
Exhibit D and incorporated herein by reference as
though set forth in full.
23. The first Agreement of Sale was for a sale
price of $315,000.00 and the subsequent sale price
was $280,000.00 resulting in a loss to the Plaintiffs
on the sale of their Pennsylvania residence in the
amount of $35,000.00.
24. t the time of the sale of the Plaintiffs’
residence, they had a first mortgage with GMAC
Mortgage Corporation and a second mortgage with
Sovereign Bank. As a result of the delay in the sale
of the Plaintiffs’ Pennsylvania residence they paid
additional interest on their first mortgage in the
amount of $7,772.39 and on their second mortgage in
the amount of $1,070.78. As a result of the delay in
App. 56
the sale of the Plaintiffs’ Pennsylvania residence, the
Plaintiffs incurred the following additional costs:
a. Additional electric utility bills $435.00;
b. Additional telephone bills $249.20;
c. Additional ADT Security System charges
$206.55;
d. Additional homeowner’s insurance premium
$339.03;
e. Additional gas utility bills $371.70;
f. Additional County and Borough real estate
taxes $570.69;
g. Additional school district real estate taxes
$2,549.97.
25. Asa result of the reduced sale price on the
sale that took place on June 3, 2005, the Plaintiffs.
incurred a reduced cost for real estate commissions
and realty transfer taxes in the amount of $1,050.00.
Further, at the closing that took place on June 3,
2005, the Plaintiffs received a reimbursement of
$733.05 as a proration of the above-identified real
estate taxes.
26. The new residence of the Plaintiffs located
in Alpine, New York was a newly built house. The
Plaintiffs obtained a construction mortgage to con-
struct said house. If the sale of the Plaintiffs’ Penn-
sylvania residence had closed on August 27, 2004, as
planned, the Plaintiffs would have used a portion of
App. 57
the net proceeds to pay off the construction mortgage
in the amount of $87,946.48.
27. Asa result of the failure to close on the sale
of the Plaintiffs’ Pennsylvania residence on August
27, 2004, the Plaintiffs had to withdraw $87,946.48
from a 401(k) retirement plan to pay off the construc-
lion mortgage. This resulted in the Plaintiffs incur-
ring unplanned federal income taxes in the amount of
$19,328.27 and New York State income taxes in the
amount of $5,825.93.
28. On or about October 26, 2004 through
Plaintiff’s legal counsel, Plaintiff notified Warners,
agent for Atlas that the Plaintiffs would be present-
ing a claim for losses incurred by reason of Warners
and Atlas’ failure to perform their contractual obliga-
tions to the Plaintiff and/or arising out of their negli-
gence in failing to properly provide for adequate
licensed drivers and trucks to perform their contrac-
tual obligations on a timely basis.
29. On or about November 9, 2005, the Plain-
tiffs issued a letter to Warners and Atlas setting forth
in detail the extent of the Plaintiffs’ losses and a
demand for payment of the same. The Plaintiffs had
previously advised the Defendants that the specifics
of their claim would be presented subsequent to the
final sale of the Plaintiffs’ Pennsylvania residence.
30. On or about December 15, 2005, the Plain-
tiffs, through ilegal counsel, received notice from Atlas
and Warners rejecting the Plaintiffs’ claim for dam-
ages.
App. 58
31. The amount in controversy exceeds the
jurisdictional limits for compulsory arbitration in
York County, Pennsylvania.
COUNT I
LEWIS V. ATLAS
BREACH OF CONTRACT
32. Paragraph 1 through 31 are incorporated
herein by reference as though set forth in full.
33. Pursuant to the terms of the contract be-
tween the Plaintiffs and Warners, interstate agent for
Atlas, the Defendant was obligated to provide suffi-
cient personnel and moving vans no later than Au-
gust 25 and August 26, 2004 to fully and completely
load all of the household items and personalty of the
Plaintiffs for transport to Alpine, New York.
34. The Defendant breached the contract with
the Plaintiffs by failing to provide sufficient personnel
and moving vans on August 25 and August 26 to
perform its contractual obligations to the Plaintiffs.
35. The Defendant failed to provide adequate
personnel and moving vans until August 28, 2004.
36. As a result of the Defendant’s breach of
contract, the Plaintiffs have been damaged in the
amount of $71,729.91.
App. 59
37. Despite repeated requests, the Defendant
has failed to pay said sum to the Plaintiffs to compen-
sate for their losses arising out of the Defendant’s
breach of contract.
WHEREFORE, the Plaintiffs respectfully re-
quest the Honorable Court to enter judgment in their
favor and against the Defendant in the amount of
$71,729.91 plus reasonable attorney’s fees, costs,
expenses, and pre and post-judgment interest.
COUNT II
LEWIS V. ATLAS
NEGLIGENCE
38. Paragraphs 1 through 37 are incorporated
herein by reference as though set forth in full.
39. The Defendant, upon entering into a con-
tract with the Plaintiffs to move the Plaintiffs’ house-
hold personalty from their Pennsylvania residence to
their New York residence, owed the Plaintiffs a duty
to provide adequate personnel, trucks and moving
vans on a timely basis to vacate the Pennsylvania
residence.
40. The Defendant knew, based upon several
communications from the Plaintiffs, that the Plain-
tiffs were selling their Pennsylvania residence, clos-
ing om August 27, 2004, and had to have the
Pennsylvania residence vacated before said date
STE Seer ee ee eR
App. 60
pursuant to the Plaintiffs contractual obligations
with the purchasers of the Pennsylvania residence.
41. The Defendant was negligent in the per-
formance of its contractual duties. The Defendant’s
negligence consisted of the following:
a. Failure to provide adequate personnel to
load the moving van(s) on a timely basis;
b. Failure to provide adequate personnel,
including, but not limited to a licensed driver to
deliver one or more moving vans to the Plaintiffs’
Pennsylvania residence to load Plaintiffs’ household
personalty;
c. Failure to provide adequate personnel to
transport the Plaintiffs’ household personalty from
the Pennsylvania residence to the New York resi-
dence no later than August 26 and/or August 27,
2004.
42. Asa result of the negligence of the Defen-
dant as set forth above, the Plaintiffs have incurred a
loss of $71,729.91.
43. The neghgence of the Defendant is the
proximate cause of the Plaintiffs’ losses.
WHEREFORE, the Plaintiffs respectfully re-
quest the Honorable Court to enter judgment in their
favor and against the Defendant in the amount of
App. 61
$71,729.91 plus reasonable attorney’s fees, costs,
expenses, and pre and post-judgment interest.
Respectfully submitted
BY: /s/ Douglas H. Gent
Douglas H. Gent, Esquire
Sup. Ct. I.D. #29964
1157 Eichelberger Street
Hanover, PA 17331
(717) 632-4040
Attorneys for the Plaintiff
VERIFICATION
I, Patricia A. Lewis, verify that the statements
made in this Petition are true and correct. I under-
stand that false statements herein are made subject
to the penaltics of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Date: 7-17-06 _—__" /s/ Patricia A. Lewis
Patricia A. Lewis
VERIFICATION
I, Richard J. Lewis, verify that the statements
made in this Petition are true and correct. I under-
stand that false statements herein are made subject
to the penalties of 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Date: July 17, 2006 /s/ Richard J. Lewis
Richard J. Lewis
App. 62
IN THE COURT OF COMMON PLEAS
OF YORK COUNTY, PENNSYLVANIA
Richard J. Lewis & : NO.
Patricia A. Lewis
XXX XXX XXX
Alpine, NY 14805
Plaintiffs
Vv.
Atlas Van Lines, Inc.
1212 St. George Road
Evansville, IN 47711, and °
Warners Moving & Storage ;
P.O. Box 269
West Country Club Road
Red Lion, PA 17356
Defendants
: Jury Trial Demanded
CERTIFICATE OF SERVICE
The undersigned, being duly sworn, does hereby
state that a true and correct copy of the Complaint
was served by Certified Mail on Atlas Van Lines, Inc.,
to the following:
Todd A. Suter
Corporate Counsel
Atlas Van Lines, Inc.
1212 St. George Road
Evansville, IN 47711
App. 63
Respectfully submitted
BY: /s/ Douglas H. Gent
Douglas H. Gent, Esquire
Sup. Ct. I.D. #29964
1157 Eichelberger Street
Hanover, PA 17331
(717) 632-4040
Attorneys for the Plaintiff
Exhibit A
FORM#RAYAC-201
Rev, 08/03
AGREEMENT OF SALE
Form approved by REALTORS® Association of York and Adams Counties, Inc.
BROKER: Jack Gaughen ERA SALES ASSOCIATE = Mary Ann [Illegible]
Acting as: (¥) Buyer's Agent { ) Transaction Licensee
( ) Sub-Agent ( ) Dual Agent
( ) Designated Agent for Buyer with Broker as Dual Agent of Seller and Buyer
IN COOPERATION WITH
BROKER: CountryHome | SALES ASSOCIATE Ingrid Lochte
Acting as: (”) Sub-Agent { ) Transaction Licensee ( ) Dual Agent
( ) Designated Agent for Buyer with Broker es Dual Agent of Seller and Buyer
THIS AGREEMENT is made this 19th day of July 2004 _
1. PARTIES: Between Richard J. & Patricia Lewis
hereinafter called Seller, and Bruce D. & Crystal L. Gibbons
(residing at xxx xxx xxx, Md _____ Zip 21014 ) hereinafter called Buyer.
2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, who hereby agrees to
purchase: ALL THAT CERTAIN tract of ground with improvements thercon, if any, known as
XXX XXX XXX XXX, Glen Rock MLS 20401088
Municipality SpringfieldTwp. _,County York State PA Zip 17327
Identification: (Tax [D#; Parcel #; Dead Book/Page) ES 3 3iF a 7
3. ZONING: The ZONING CLASSIFICATION of the property is Agric. _. Failure of this
Agreement to contain the zoning classification ‘except in cases where the property and each
parcel thereof, if subdividable, is zoned fully or primarily to permit single family dwellings)
shall render this Agreement voidable at the option of the buyer, and, if voided, any deposit
tendered by the Buyer shall be returned to the Buyer without any requirement for court
action.
4. PURCHASE PRICE: The purchase price is $ 210,000 to 315,000 Three Hundred Fifteen
Thousand and no/100_ Dollars) to be paid in cash or equivalent at time of settlement.
DEPOSITS: Security for the purchase is to be as follows:
a) Caslvcheck at signing of this Agreement. $ 1,000.00
¢
or
bi Cashcheck onorbefore
ch Note/other (specify! balance at illegible} — 3 309,000.00
6. FINANCING CONTINGENCY: This sale is contingent upon the following financing for
Buyer: 5815 First'|Legible}
a’ The amount of financing $290,000.00 is for aterm of 30 pees. The type of financing
Cony. (Fixed/Adjustable‘Insured! Interest rate of -; however, Buyer agrees to
accept the | interest rate as may be committed by the morte ve lender, nol to exceed a
maximum interest rate at 6.25’.
vg ddy
b) The Seller agrees to pay Buyer's closing costs, including prepaid expenses in the
maximum amount of -0- .
c) The maximum financing placement, origination, or loan discount fees, or similar charges,
to be paid by BUYER shall not exceed -0- % of loan amount.
d) Unless otherwise agreed by Seller, Buyer's financing shall not be contingent upon sale
or settlement of any real estate owned by Buyer.
¢) Buyer shall make a completed application including payment for appraisal and credit report
to a responsible lending institution on or before PREAPPROVED 7/24/04. Should the
Buyer fail to make such completed application within the specified time, it shall be the
option of the Seller to declare this Agreement of Sale null and void at which time all deposit
monies paid on account shall be forfeited to the Seller as liquidated damages and all copies
of this Agreement shall be returned to the Seller's agent for cancellation. Financing terms
as stated above cannot be changed without written agreement of all parties.
f} Awritten mortgage commitment must be obtained by 8-15-04. Ifa written commitment
is not received by the above date, Buyer and Seller agree to o extend the commitment date
until Seller terminates this Agreement in writing; and in such event, any deposit shall
he returned to Buyer.
ADDITIONAL TERMS AND CONTINGENCIES ARE;
a) Written acceptance of all parties must be obtained on or before: July 21, 2004
b) Settlement is to be made on or before August 27, 2004
c) Possession is to be delivered: At settlement
d) Payment of transfer taxes will be divided equally between Buyer and Seller.
e) All income and expenses, including but not limited to real estate taxes, rents, water, sewer
and refuse charges, condo fees, homeowners association fees and similar charges, public or
private, shall be prorated to date of (settlement/possession) on a fiscal year basis.
fi Beware home is safe locked for settlement on 8/27/04. Mlegible] will provide Buyer with a
illegible] at settlement.
FIXTURES, TREES, SHRUBBERY, ETC.: All plumbing, heating, air conditioning and
electrical systems and fixtures and systems appurtenant thereto and forming a part thereof,
antennas, masts and rotor systems; screens, storm windows and/or doors, shades, awnings,
blinds, drapery and curtain rods and hardware; radiator covers, kitchen cabinets, built-in
appliances and wall-to-wall carpet, all trees, shrubbery, and plantings now on property, garage
door openers, storage sheds, remaining heating and cooking fuels, excluding propane, stored on
the property at ime of settlement, all items included in the Seller Disclosure Statement, and
iIllegible| system, lillegible}, illegible], ‘legible} shed, [illegible . | illegible
are INCLUDED in the sale and purchase price. The following items are EXCLUDED from the sale:
water softener
None of the above-mentioned included items shall be removed by ' Seller from premises after
the date of this Agreement. Seller hereby warrants that Seller will deliver good title to all the
articles deseribed in this paragraph, and any other fixtures or items of personally specifically
scheduled to be ineluded in this sale
cg ‘ddy
DISCLOSURES/ANSPECTIONS IF ANY: Buyer acknowledges receipt of the mandatory Seller
Disclosure Statement —{Illegible}; (initial) and of the following indicated written disclosures
and/or addenda, all of which are made a part of this Agreement.
\¥) Disclosure and Inspection Addendum (| Lead-based Paint Brochure _
} Dual Agency Addendum | lead-based paint Testing Contingency
)} FHA Home Inspection Notice (¥) Disclosure of Affiliated Business Relaticnships |
( ) VA/FHA Amendatory Clause (¥) Addendum for Property Not Connected to
Certification Pubic Sewer
e3 __ (¥) {Thlegible]
10. ASSESSMENTS AND NOTICES: As of the acceptance date of this Agreement, Seller
1]
represents the following:
a) No public assessment or notice of a future public assessment for any matter including
water, sewer, sidewalk or curbs, has been made against the property.
b) Buyer acknowledges that taxes may increase due to change of assessment or millage
rates.
¢) Nocondominium or homeowners’ association assessments, if any, remain unpaid.
d) Seller has no knowledge of any notice by any governmental or public authority relating
to violations of zoning, housing, building, safety or fire ordinances or codes.
e) Buyer is advised that access to a public road may require issuance of a highway
occupancy permit from the Department of Transportation.
f} Sellers of property enrolled in the Clean and Green program shall, as required by law,
give the county assessor 30 days notice of the pending sale. If prior to setilement Seller
receives any assessments or notices, as previously stated, then Seller shall
immediately give notice to Buyers. Unless otherwise prohibited by law, Buyer will be
responsible for any written notice served upon Seller after execution of this Agreement
and for the payment thereafter of any public improvement and condominium or
homeowners association assessments.
RIGHT-TO-FARM LAW 3 P. 8. SECTION 951-957; The property you are buying may he
located in an area where agricultural operations take place. Pennsylvania protects
agricultural resources for the production of food and agricultural products. The law limits
circumstances where normal agricultural operations may be subject to nuisance lawsuits or
restrictive ordinances
99 ddy
App. 67
12. TITLE AND COSTS:
a)
b)
Cc)
The Premises are to be conveyed free and
clear of all liens, encumbrances and ease-
ments, EXCEPTING HOWEVER: Existing
building restrictions, ordinances, easements
of roads, easements visible upon the ground,
privileges or rights of public service compa-
nies, if any; otherwise the title to the above-
described real estate shall be good and mar-
ketable and such as will be insured by a
reputable Title Insurance Company at the
regular rates.
If the Seller cannot give a good and market-
able title, such as will be insured by a repu-
table Title Insurance Company at regular
rates, then the Buyer has the option of tak-
ing such title as the Seller can give without
abatement of price or of being repaid all
monies paid by Buyer to Seller on account of
the purchase and the Seller will reimburse
the Buyer for any costs incurred by the
Buyer for inspections specified in paragraph
#9 and #12(c) items (1), (2), (3), and in para-
graph #12(d); and in the latter event there
shall be no further liability or obligation on
either of the parties hereto and this Agree-
ment shall become NULL AND VOID and all
copies will be returned to Seller’s agent for
cancellation.
The Buyer will pay for the following:
1) The premium for title insurance and/or
title search, or fee for cancellation of
same, if any.
13.
14.
App. 68
2) The premiums for flood insurance and/or
fire insurance with extended coverage,
insurance binder charges or cancellation
fee, if any.
3) Appraisal fees and charges paid in ad-
vance to mortgagee, if any.
4) Buyer’s normal settlement costs.
d) Any survey or surveys which may be re-
quired by the Title Insurance Company or
the abstracting attorney, for the preparation
of an adequate legal description of the prem-
ises (or the correction thereof), shall be se-
cured and paid for by the Seller. However,
any survey or surveys desired by the Buyer
or required by his/her mortgagee shall be se-
cured and paid for by the Buyer.
DOMESTIC RELATIONS LIEN: Pennsylvania
law requires county Domestic Relations Offices to
impose property liens for overdue child support.
If applicable, Buyer and Seller shall advise their
agent/licensee so verification of lien status can be
promptly determined.
DEPOSIT AND RECOVERY FUND: Deposits
or hand monies shall be paid to Listing Broker,
who shall retain the same until consummation or
termination of this Agreement in conformity with
all applicable laws and regulations. Listing Bro-
ker may hold any uncashed check tendered as
deposit pending the acceptance of this offer. In
the event of dispute for the return of deposit
monies, Listing Broker will distribute the monies
pursuant to a final order of court or the written
15.
App. 69
agreement of the parties. A real estate recovery
fund exists to reimburse persons who have suf-
fered monetary loss and have obtained an uncol-
lectible judgment due to fraud, misrepresentation
or deceit in a real estate transaction by a Penn-
sylvania licensee. For complete details, cail 717-
783-3658.
TENDER AND POSSESSION:
a)
Title shall be tendered by way of warranty
deed and possession is to be delivered by
keys to a vacant building (if any) broom
clean, free of debris or by deed and assign-
ment of existing lease(s) at time of settle-
ment if premises are tenant-occupied at the
signing of this Agreement, unless otherwise
specified herein.
Seller will not center into any new lcases,
written extension of existing leases, if any, of
the premises without expressed written con-
sent of the Buyer.
Formal tender of an executed deed and pur-
chase money is hereby waived.
Buyer reserves the right to make a pre-
settlement inspection of the subject prem-
ises.
MAINTENANCE AND RISK OF LOSS
a)
Seller shall maintain the property (including
all items mentioned in paragraph #8 herein)
and any personal property specifically sched-
uled herein in its present condition, normal!
wear and tear excepted.
ay.
18.
19.
App. 70
b) Seller shall bear risk of loss from fire, or
other casualties until time of settlement. In
the event of damage to any property included
in this sale by fire or by other casualties, not
repaired or replaced prior to settlement
Buyer should have the option of rescinding
this Agreement and receiving all monies paid
on account or of accepting the property in its
then condition together with the proceeds of
any insurance recovery obtainable by Seller.
Buyer is hereby notified that he may insure
his equitable interest in this property as of
the time of the acceptance of this Agreement.
RECORDING: This Agreement shall not be
recorded in the Office for the Recording of Deeds
or in any other office or place of public record.
ASSIGNMENT: This Agreement shall be bind-
ing upon the parties, their respective heirs, per-
sonal representatives, guardians and successors,
and to the extent assignable, on the assigns of
the parties hereto, it being expressly understood,
however, that the Buyer shall not transfer or as-
sign this Agreement without the written consent
of the Seller.
DEFAULT: Time shall be of the essence with
respect to performance of any obligation arising
under this Agreement. Compliance therefore
must be made by the specified date(s) or Seller
may, at Seller’s sole election, hold Buyer in
breach of this agreement. Should the Buyer: 1)
fail to make any additional payments, as speci-
fied in paragraph #5, or 2) furnish false or in-
complete information to the Seller, Seller’s Agent
App. 71
or the mortgage lender concerning the Buyers
legal or financial status, or fail to cooperate in
the processing of the mortgage loan application,
which acts would resuit in the failure to obtain
the approval of mortgage loan commitment, or 3)
violate or fail to fulfill and perform any of the
terms or conditions of this Agreement. The Seller
may, at Seller’s option, elect:
a) to declare the agreement of sale null and
void; and
b) to proceed against the buyer for Seller’s ac-
tual damages; or
c) to retain all deposit money paid on account
as liquidated damages which amount the
parties agree is a reasonable sum and not in
the nature of a penalty.
Should the Seller violate or fail to fulfill and
perform any of the terms and conditions of this
Agreement, Buyer may elect:
a) to pursue Buyer’s remedy for specific per-
formance of the Agreement; or
b) proceed against the Seller for Buyer’s actual
damages; or
c) receive a return of the deposit money and
also be entitled to receive an additional sum
equal to the deposit money paid on the ac-
count as liquidated damages which amount
the parties agree is a reasonable sum and
not in the nature of a penalty.
App. 72
20. REPRESENTATIONS: Seller represents that
Seller has informed Buyer of any hidden or la-
tent defects of which Seller has knowledge. It is
understood that the Buyer has inspected the
property and any personal property to be in-
cluded in the sale or hereby waives the right to
do so and has agreed to purchase it as a result of
such inspection and not because of or in reliance
upon any representations which were not in-
cluded in this agreement whether made by any
broker, transaction licensee or any of their re-
spective sales people, employees, officers and/or
partners.
Buyer agrees that any and all statements,
claims, advertisements, marketing, promotional
exhibits, building and subdivision plans made or
presented by Seller, brokers, their licensees, em-
ployees, officers, or partners are not incorporated
in this agreement of sale unless expressly so
stated to be made a part thereof. The Buyer has
agreed to purchase the property in its present
condition unless otherwise specified herein. It is
further understood that this Agreement contains
the whole Agreement between the Seller and the
Buyer and there are no other terms, obligations,
covenants, representations, statements or condi-
tions, oral or otherwise, of any kind whatsoever
concerning this sale. Furthermore, this Agree-
ment shall not be altered, amended, changed or
modified except in writing executed by the par-
ties.
RELEASE: Buyer hereby releases, quit-claims
and forever discharges seller, all agents, their
subagents, employees and any officer or partner
22.
23.
App. 73
of any one of them and any other person, firm or
corporation who may be liable by or through
them from any and all claims, losses or de-
mands, in Jaw or equity, including but not
limited to personal injuries, property damage
and any and all of the consequences thereof,
whether now known or not, which may arise from
the presence of irold, all wood-boring insects, ra-
don, lead-based paint hazards, environmental
hazards, any defects or deficiencies in the onlot
sewage disposal system and/or on-site water ser-
vice system, or any defects or conditions on the
property. This release shall survive settlement.
MEDIATION: The Buyers, Sellers and Brokers
agree that disputes relating to this Agreement
SHALL be submitted to mediation in accordance
with the rules and procedures of the dispute reso-
lution system established by the REALTORS®
Association of York and Adams Counties, Inc.,
and that if any agreement is reached by the Buy-
ers, Sellers and Brokers pursuant to a mediation
conference, it shall be binding upon them. Costs
of mediation to be shared equally by Buyers,
Sellers and Brokers named in the dispute. This
duty to mediate disputes shall survive final set-
tlement.
EXECUTION: This Agreement and any amend-
ments thereto, maybe executed by the parties by
way of transmission through a Facsimile (FAX)
machine; such a copy shall have the same legal
enforceability and binding effect upon the parties
as though it were signed by all parties in original
form.
App. 74
APPROVAL BY BUYER: The Buyers hereto, intend-
ing to be legally bound hereby, have hereunder set
their hands and seals the day and year first above
written.
WITNESS BUYER
/s/ Bruce Gibbons
(SEAL)
WITNESS
/s/ Mary Ann Panicho BUYER
/s/ Crystal Gibbons
WITNESS (SEAL)
BUYER
(SEAL)
APPROVAL BY SELLER: Seller hereby accepts/
counteroffers the above proposal this __ day of ’
The effective date of this Agreement shail be the date
on which the of-er or any counteroffer is accepted as
evidenced by the dated signature or dated initials.
WITNESS BUYER
/s/ Richard J. Lewis
(SEAL)
W 4
ITNESS | BUYER
/s/ (Illegible|j we
/s/ Patricia A. Lewis
WITNESS (SEAL)
Hapncen. See a
(SEAL)
RE: PROPERTY
SELLER:
BUYER:
App. 7)
FORM#RAYAC-2-2
Rey. 12/02
DISCLOSURES AND INSPECTION ADDENDUM
Form approved oy REALTORS® Association of York and Adams Counties, Ine.
DATE 7/17/04
Richard J. & Patricia A. Lewis
Bruce D, & Crystal L. Gibbons
It is understood and agreed that the above Agreement of Sale shall be endorsed as follows:
Seller and Buyer include the initialed paragraph(s) as supplemented by the applicable provisions on THE REVERSE SIDE OF
THIS DOCUMENT, as part of the above-captioned Agreement.
IN THE EVENT THE INSPECTIONS, TESTS AND/OR CERTIFICATIONS, INCLUDING WRITTEN RESULTS FURNISHED
TO SELLER, ARE NOT COMPLETED WITHIN THE PRESCRIBED TIME PERIOD STATED BELOW, THEN ALL PARTIES
ACKNOWLEDGE THAT BUYER'S RIGHT TO CONDUCT SAID INSPECTIONS SHALL BE WAIVED UNLESS PRESCRIBED
BY THE MORTGAGE LENDER. from whom buyer is securing ¢ loan, in accordance with the mortgage contingency clause in the
above-captioned Agreement.
1, Condominium or Planned Community
Seller Buyer Public offering statement or resale certificate and relatec documents as applicable for concominum or
“Seller
~ Seller
Planned Community to be received on/or before
These cocuments cannot be waived.
2. Wood Destroying Pest Inspection Completed on’or before 7/29/04
3, On-Lot Waste Water Treatment System = Complete
This text is long and has been trimmed here. Open the source document for the complete record.
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.