United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the court on a motion to dismiss filed by defendants North American Van Lines, Inc. and Custard Insurance Adjusters, Inc., Filing No. 19. This is an action for damages to property in connection with the moving of household goods. The plaintiff asserts a claim under the Carmack Amendment to the Interstate Commerce Act ("ICA"), 49 U.S.C. § 14706, and a state-law tort claim for bad faith refusal to settle in connection with a policy of insurance, seeking attorney fees under Neb. Rev. Stat. § 44-359.
The defendants move to dismiss the state-law claim for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They contend that the state-law claim is preempted by the Carmack Amendment.
In her amended complaint, the plaintiff alleges that she contracted with defendant North American Van Lines, Inc. ("North American") to transport her personal property from Alabama to Nebraska and also alleges she procured insurance of her property from North American and defendant Custard Insurance Adjusters, Inc. ("Custard") for an additional payment. She states that, pursuant to the Bill of Lading, the parties agreed the total value of the property being transported was $125, 000.00. She alleges her property was damaged by water and mold. She also alleges that North American and Custard acted as insurers and entered into a contract with her wherein they agreed to insure the plaintiff's property and provide her an additional payment in the event of its loss.
The Bill of Lading includes a binding estimate that indicates, under "other services" an "insurance surcharge." Filing No. 21-2, at ECF p.4 Index of Evid., Ex. 2, Lambert Decl., Ex. A, Bill of Lading. Under the heading "protection options, " in a box labelled "Warning, " a maximum value protection of $125, 000.00 is shown and the option with a $250.00 deductible is circled. Id., Ex. A, Bill of Lading at 5. In addition, a page labelled "Customer Declaration of Value, " shows the plaintiff's signature under both Option 1 for "Standard Full Value Protection" and Option 2 for "Waiver of Full Replacement Value Protection." Id., at 22. The plaintiff's initials, however, are shown under Option 1, next to "$250 deductible" and the total value to be provided by the customer under Option 1 is handwritten as $125, 000. Initials are crossed out under Option 2. Also, the space labelled a monetary amount "to be provided by carrier" under Option 1 is not filled in.
Under the Federal Rules, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The rules require a "showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed.R.Civ.P. 8(a)(2)). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the plaintiff's obligation to provide the grounds for his entitlement to relief necessitates that the complaint contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in favor of the plaintiff. Id. "On the assumption that all the allegations in the complaint are true (even if doubtful in fact), " the allegations in the complaint must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555-56. In other words, the complaint must plead "enough facts to state a claim for relief that is plausible on its face." Id. at 547. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for relief is "a context-specific task" that requires the court "to draw on its judicial experience and common sense." Id. at 679.
A court considering a motion to dismiss may begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. Although legal conclusions "can provide the framework of a complaint, they must be supported by factual allegations." Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id.
The Carmack Amendment to the ICA, 49 U.S.C. § 14706, regulates the liability of common carriers engaged in interstate commerce. In re Atlas Van Lines, Inc., 209 F.3d 1064, 1066 (8th Cir. 2000); see Adams Express Co. v. Croninger, 226 U.S. 491, 503-05 (1913). The purpose of the Carmack Amendment is to establish a uniform federal guidelines designed in part to remove the uncertainty surrounding a carrier's liability when damage occurs to a shipper's interstate shipment. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013). The Carmack Amendment preempts state law claims against interstate motor carriers and provides the exclusive cause of action for loss or damages to goods arising from interstate transportation. Moffit v. Bekins Van Lines Co., 6 F.3d 305, 307 (5th Cir. 1993); Fulton v. Chicago, Rock Island & P. R.R., 481 F.2d 326, 332 (8th Cir. 1973) (holding that where damages are sought against a motor carrier for failure to properly perform an interstate contract of carriage, the Carmack Amendment governs and preempts any state-law causes of action arising from or based on the carrier's performance of the interstate contract of carriage).
When a plaintiff alleges "liability on a ground that is separate and distinct from the loss of, or the damage to, the goods, " however, the claim is not preempted. Gordon v. United Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 1997) (noting that that "a number of situations" may exist "in which a carrier might remain liable to a shipper for certain kinds of separate and independently actionable harms that are distinct from the loss of, or the damage to, the goods"). Similarly, a claim that does not arise from the same conduct as the claims for delay, loss or damage to shipped property will not be not preempted. Smith v. United Parcel Serv., 296 F.3d 1244, 1248-49 (11th Cir. 2002).
"With the enactment in 1906 of the Carmack Amendment, Congress superseded diverse state laws with a nationally uniform policy governing interstate carriers' liability for property loss." New York, N.H. & Hartford R.R. v. Nothnagle, 346 U.S. 128, 131 (1953). In substance, the Carmack Amendment provides that a carrier is strictly liable for the actual loss or injury to a shipper's property. See Continental Grain Co. v. Frank Seitzinger Storage, Inc., 837 F.2d 836, 839 (8th Cir. 1988).
The Carmack Amendment subjects motor carriers to absolute liability for "actual loss or injury to property" when transporting cargo in interstate commerce. 49 U.S.C. § 14706(a)(1). A carrier's liability under the Carmack Amendment includes all reasonably foreseeable damages resulting from the breach of its contract of carriage, "including those resulting from nondelivery of the shipped goods as provided by the bill of lading." Air Prods. & Chems., Inc. v. Illinois Cent. Gulf R.R. Co., 721 F.2d 483, 485 (5th Cir. 1983); see National Hispanic Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546, 549 (5th Cir. 2005) (noting that both general and special damages may be recovered under the Carmack Amendment); Paper Magic Group, Inc. v. J.B. Hunt Transp., Inc., 318 F.3d 458, 461-62 (3d Cir. 2003) (finding loss in value due to delay a reasonably foreseeable component of general damages); Contempo Metal Furniture Co. v. East Texas Motor Freight Lines, Inc., 661 F.2d 761, 765 (9th Cir. 1981) (stating that "[t]he Carmack Amendment has not altered the common law rule that special or consequential, damages, i.e., those that the carrier did not have reason to foresee as ordinary, natural consequences of a breach when the contract was made, are not usually recoverable in an action for breach of contract"). Accordingly, recovery of consequential damages under the Carmack Amendment is allowed when a plaintiff can show that the carrier had notice of the special circumstances from which such damages would flow. See, e.g., Contempo, 661 F.2d at 765 (allowing damages for delay); Hector Martinez & Co. v. Southern P. Transp. Co., 606 F.2d 106, 111 (5th Cir. 1979) (allowing claim for damages resulting from delay); John Morrell & Co. v. Burlington N., Inc., 560 F.2d 277, 281 (7th Cir. 1977) (stating that to recover special damages, a plaintiff must show that the defendant had notice of circumstances that might lead to such damages); Pillsbury Co. v. Illinois Cent. ...