United States District Court, D. Nebraska
[Copyrighted Material Omitted]
For Union Pacific Railroad Company, Plaintiff, Cross Defendant: JoAnna S. Thomas, John M. Walker, Kyle Wallor, LAMSON, DUGAN LAW FIRM, Omaha, NE; Raymond J. Hasiak, UNION PACIFIC - LAW DEPARTMENT, Omaha, NE.
For Beemac Trucking, LLC, Defendant, Cross Defendant, Counter Claimant: Dan H. Ketcham, Michael L. Moran, ENGLES, KETCHAM LAW FIRM, Omaha, NE; Jennifer D. Tricker, BAIRD, HOLM LAW FIRM, Omaha, NE.
For Landstar Ranger, Inc., Edward Samuel Edling, Defendants, Cross Claimants: Jennifer D. Tricker, BAIRD, HOLM LAW FIRM, Omaha, NE.
For Landstar Ranger, Inc., Counter Defendant, Cross Claimant: Jennifer D. Tricker, BAIRD, HOLM LAW FIRM, Omaha, NE.
MEMORANDUM AND ORDER
Laurie Smith Camp, Chief United States District Judge.
This matter is before the Court on the Motion for Summary Judgment (Filing No. 149) filed by Plaintiff Union Pacific Railroad Company (" UP" ), and the Motions for Summary Judgment filed by Defendant Beemac Trucking, LLC (" Beemac" ) (Filing No. 147), and Defendants Landstar Ranger, Inc. (" Landstar" ), and Edward Samuel Edling (" Edling" ) (Filing No. 144). For the reasons discussed below, all three motions will be granted in part and denied in part.
Unless otherwise noted, the following facts are those that are stated in the parties' briefs in support of and in opposition to the cross-motions for summary judgment and supported by pinpoint citations to admissible evidence in the record, that
the parties have admitted, and that the parties have not properly resisted as required by NECivR 56.1 and Fed.R.Civ.P. 56.
UP is a Delaware corporation with its principal place of business in Omaha, Nebraska. Beemac is a limited liability company with its principal place of business in Pennsylvania. Landstar is a Florida corporation with its principal place of business in Florida. Edling is an individual who, at all relevant times, was a resident of Salem, Ohio.
In June 2009, UP and Beemac entered into an agreement titled, " Motor Carrier Transportation Agreement" (the " MCTA" ) (Filing No. 152-15), under which Beemac agreed to provide " motor carrier transportation services" for UP. Within the MCTA, Beemac represented that it was " a duly qualified and authorized contract carrier" that could " lawfully provide [UP] all of the transportation and related services set forth [in the MCTA] in accordance with the terms and conditions of th[e] [MCTA], in each case as a carrier of general commodities in interstate and foreign commerce." ( Id. at § 1.A.) Section 5 of the MCTA states:
A. Each Shipment shall be evidenced by a . . . bill of lading . . . or other form of document containing the applicable information as outlined in Exhibit B, which shall be signed by [Beemac] or [Beemac]'s agent or employee describing the kind and quantity of freight tendered as described in the shipping document . . . received by [Beemac] at origin. . . . In the event of any conflict between the terms and conditions of such documentation and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern.
B. Upon the delivery of a Shipment, [Beemac] shall obtain a receipt in a form specified or approved by [UP] showing the kind and quantity of [UP]'s Defined Goods delivered to the consignee of the Shipment at the destination specified by [UP]. [Beemac] shall also show on the receipt the date of delivery of the Shipment and shall have each receipt signed by the applicable consignee or by consignee's employees or agents.
( Id. at § 5.) Section 15 of the MCTA states:
Neither party shall be allowed to assign or transfer its interest in this Agreement in whole or in part without the prior written consent of the other party[.] . . .
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Nebraska. . . .
No modification or amendment to this Agreement shall be of any force or effect unless made in writing, signed by [Beemac] and [UP] and specifying the nature and extent of such modification or amendment.
( Id. at § 15.B., C., G.) Sections 10 and 11 of the MCTA provide that Beemac was required to procure insurance for UP and indemnify UP for certain harms. ( See Id. at § § 10, 11.)
Beemac contends that despite the MCTA's delivery terms, UP had a common practice or procedure for deliveries of equipment, such as trucks, that applied when no one from UP was present to accept delivery, i.e., leaving the keys to the equipment on the equipment's dipstick, and that the common practice or procedure applied to the shipment at issue in this case. ( See Dep. of Eugene Tietz, Filing No. 150-1 at 30:13-19; Dep. of David Hanner, Filing No. 150-4 at 80:20-82:5, 99:17-100:17, 101:10-23.)
In 2010, UP needed one of its grapple trucks moved from Benedict, Kansas, to Riverton, Louisiana. On January 8, 2010, UP solicited bids from a number of carriers
with whom it had previous agreements. UP's request for bids listed certain requirements and terms for the shipment, including some delivery terms. In a section titled " COMMENT/SPECIAL INSTRUCTION," the bid request stated " EMPLOYEES WILL LOAD AND UNLOAD BOTH LOCATIONS. GANG WILL ACTUALLY UNLOAD RIVERTON, LA ABOUT 5 MILES NORTH OF COLUMBIA, LA." (Filing No. 152-12 at 2.) The bid request also indicated that UP wanted the shipment delivered between 9:00 a.m. and 12:00 noon, Central Standard Time, on January 10, 2010. ( Id. at 1.)
Beemac submitted the winning bid, but did not have a truck available to carry the shipment. Beemac posted the job on a " load board," and received a response from a Landstar agent, and arranged to have Landstar handle the shipment. UP contends that Beemac " subcontracted" the shipment to Landstar. Beemac asserts that it " forwarded" the shipment of the grapple truck to Landstar.
Landstar and Beemac agreed that Landstar would act as the carrier and transport the grapple truck from Kansas to Louisiana. Landstar and Beemac had entered into a " CARRIER/BROKER TRANSPORTATION AGREEMENT" (the " CBTA" ) on or about June 19, 2008, for the purpose of having Landstar " satisfy some of [Beemac's] transportation needs[.] (Filing No. 166-2.) The CBTA controlled the relationship between Beemac and Landstar. Section 9 of the CBTA states:
[W]hile freight is under [Landstar's] care, custody, or control, [Landstar] shall assume common carrier (i.e. Carmack Amendment) liability for actual loss, damage or injury to Customers' freight[.] . . . The measure of the loss, damage, or injury shall be the lesser of the actual replacement cost or the cost of repair, . . . (2) for shipments of commodities in other than new condition, including but not limited to . . . used machinery or parts, not to exceed the lesser of $1.00 per pound of $50,000 per truckload shipment. [Landstar] shall not be liable for indirect, special or consequential damages, or other special economic losses, regardless of its knowledge. . . . [Beemac] agrees to indemnify [Landstar] from any claim, loss, damage, cost, including reasonable attorney fees, or cause of action from [Beemac]'s Customers if [Beemac] enters into an agreement with its Customers specifying a liability standard other than that in this paragraph.
( Id. at CM/ECF p. 5 § 9.) Landstar's agent gave Edling's telephone number to Beemac so Beemac could contact Edling, Landstar's driver, about the shipment. An independent contractor operating agreement governed Edling and Landstar's relationship.
On January 9, 2010, Edling picked up the grapple truck in Kansas. The truck was not in any type of container that would have prevented Edling from inspecting it, and it was driven up ramps onto Edling's trailer. Edling filled out a bill of lading (Filing No. 152-17) that indicated the property was received in apparent good order. No one from UP signed the bill of lading's " Shipper Certification" line.
Edling did not deliver the load on January 10, 2012, as requested in UP's bid request. Instead, Edling arrived at the delivery site at 9:45 p.m., Central Standard Time, on January 12, 2010. UP was aware the delivery would not be made as specified in the bid request, but contends it was not aware the delivery would occur after daylight hours on January 12, 2010. (Dep. of David Hanner, Filing No. 150-4 at 46:1-49:17.) UP believed Edling was prohibited from traveling with the oversized load after daylight. ( Id. at 40:2-11, 49:11-20.)
When Edling arrived at the delivery site, the UP foreman for the site, David Hanner, was not present, and none of Hanner's employees requested overtime to work that evening. While Edling was at the site, someone showed up and helped him unload the grapple truck. This man did not provide Edling with any form of identification, and the man was not wearing a reflector vest or a hardhat, which UP employees are supposed to wear any time they work on or near a railroad track. After the man helped Edling unload the grapple truck, Edling left the truck's keys on its dipstick. Edling stated in his deposition that when he picked up the grapple truck in Kansas, a UP employee instructed him to follow this procedure. (Dep. of Edward Edling, Filing No. 150-3, 83:13-19.) The man who had helped Edling unload the truck was standing next to Edling at the time and could see where Edling placed the truck's keys.
The bill of lading, referenced above, contained a " receiver certification" signature line for the consignee to sign acknowledging receipt of the property described in the bill of lading in good condition, " except as noted." Nobody from UP signed the " receiver certification" signature line. Beemac contends UP does not always sign a bill of lading when equipment is delivered even if someone from UP is present at the time. ( See Dep. of David Hanner, Filing No. 150-4 at 122:13-123:8.)
The man who helped Edling unload the truck remained at the delivery site after Edling left. Edling did not call anyone at UP after unloading the truck. (Dep. of Ed Edling, Filing No. 150-3 at 185:18-186:1.)
At approximately 2:00 a.m. on January 13, 2010, a UP train collided with the grapple truck, which was parked on the railroad tracks, and the truck was destroyed. UP contends the value of the truck was $268,689.33, based on receipts indicating that UP purchased the truck for $94,190.00 and spent $147,499.33 for modifications. ( See Filing No. 152-14.)  The Defendants assert that the truck's value was $95,100.00  prior to the collision, and its salvage value was $15,212.00, making the actual loss $79,888.00. They point to an expert report to support this assertion. ( See Filing Nos. 166-1 at CM/ECF p. 52, 170-1 at CM/ECF p. 15.)
Two UP employees, L.R. Reed and Roy Brown, were operating the train at the time it collided with the truck, and suffered injuries as a result. Both employees made claims against UP under the Federal Employers Liability Act (" FELA" ), 45 U.S.C. § 51 et seq. UP settled the matter with Reed for $65,000.00, and the matter with Brown for $217,603.43. On the date of the collision, UP's trains were also delayed " AS A RESULT OF AN INCIDENT," resulting in UP incurring $8,025.48 in expenses. (Filing No. 152-10).
Although Beemac disputes the quality of the investigation UP made in its attempt to identify the man who helped Edling unload the grapple truck, it is uncontroverted that UP took steps to determine the identity of the man, but was unsuccessful. On September 24, 2010, UP sent a letter to Beemac. ( See Filing No. 152-11.) The letter stated, in part:
This letter serves as notice of [UP]'s claim against Beemac for all losses, damages, and liabilities arising from the train-vehicle incident on January 13, 2010 in Riverton, Louisiana. As you are aware, a [UP] train collided with a [UP] Grapple truck at approximately 2:00 a.m. on January 13, 2010 in the Riverton, Louisiana rail yard. The Grapple truck was wrongfully parked on the track at the time of the collision. The Grapple truck had been delivered to the Riverton rail yard just two hours earlier ...