ATWOOD v. U W FREIGHT LINE

127 F. Supp.2d 1155 (1999) | Cited 0 times | D. Idaho | November 29, 1999

ORDER AND REPORT and RECOMMENDATION

Currently before the Court for its consideration are: 1)Plaintiff's motion for summary judgment (docket # 57), filedMarch 18, 1999; 2) Defendant UW Freight's motion to strike(docket # 66), filed March 31, 1999; 3) Defendant Roadway'smotion for summary judgment (docket # 76), filed April 8, 1999;4) Defendant Roadway's motion to dismiss (docket # 91), filedJuly 6, 1999; and 5) Defendant U W Freight's motion for summaryjudgment against Defendant Roadway (docket # 114), filedSeptember 24,1999. Having reviewed all briefing submitted, as well as otherpertinent documents in the Court's file, and having heard oralarguments, the Court makes its Order and Report andRecommendation as follows.

REPORT

I.

Background.

Plaintiff Robert Atwood, d/b/a Northwest Carbide Sales &Service, conducts business in Emmett, Idaho. On April 23, 1997,Atwood contracted with Defendant carriers U W Freight Line, Incand/or Roadway Express, Inc. to transport a grinder from Emmettto Kirkland, Washington under the terms of a bill of lading. Itis not disputed that U W Freight moved the grinder from Emmett toBoise, at Roadway's request, and Roadway moved it from Boise toKirkland. The grinder arrived in Kirkland on May 1, 1997, butarrived in a damaged condition which Plaintiff alleges occurredwhile in the course of transportation due to the intentional,wilful, or negligent action of the carriers. However, there isnot a strong factual dispute between the carriers that there didnot appear to be any damage to the grinder at the time it wasdelivered to Roadway in Boise by U W Freight or that Roadwayaccepted the machine from U W Freight without question as to itscondition. In the notice of cargo loss and damage claim,Plaintiff stated that the machine was improperly placed on anunstable pallet and that no lanyards were used to secure thepallet to the inside of the trailer. Consequently the machinetoppled over during shipment. Roadway responded to Plaintiff'sloss claim by issuing a check in the amount of $2,031.93, whichcovered a refund of the shipping fees and damage caused to thegrinder paid at the rate of $1 per pound or $1,450.

Plaintiff alleges damages in the amount of $80,192.85 (the costto replace the grinder) and for other consequential damages suchas the costs Plaintiff incurred in hiring additional workmen tokeep up with his client's requests for saw sharpening serviceswithout the use of the grinder. Plaintiff has demanded paymentfrom both Defendants and both have refused to pay.

Defendants' position is that they have fully compensatedPlaintiff for the loss in accordance with the bill of lading andtariffs which applied to this particular shipment. Defendants'further deny that they are liable for any consequential damages.They have also filed cross claims against one another forindemnification if either is found liable for damages.

II.

Summary judgment standard.

Motions for summary judgment are governed by Fed.R.Civ.P. 56.Rule 56, which provides in pertinent part, that judgment "shallbe rendered forthwith if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law."1

The United States Supreme Court has made it clear that underRule 56, summary judgment is required if the nonmoving partyfails to make a showing sufficient to establish the existence ofan element which is essential to his case and upon which he/shewill bear the burden of proof at trial.2 If the nonmovingparty fails to make such a showing on any essential element ofhis case, "there can be `no genuine issue as to any materialfact,' since a complete failure of proof concerning an essentialelement of the nonmoving party'scase necessarily renders all other facts immaterial."3

Under Rule 56 it is clear that an issue, in order to precludeentry of summary judgment, must be both "material" and "genuine."An issue is "material" if it affects the outcome of thelitigation. An issue is "genuine" when there is "sufficientevidence supporting the claimed factual dispute . . . to requirea jury or judge to resolve the parties' differing versions of thetruth at trial,"4 or when the "evidence is such that areasonable jury could return a verdict for the nonmovingparty."5 The Ninth Circuit cases are in accord.6

In ruling on summary judgment motions, the court does notresolve conflicting evidence with respect to disputed materialfacts, nor does it make credibility determinations.7Moreover, all inferences must be drawn in the light mostfavorable to the nonmoving party.8 As the Ninth Circuit Courtof Appeals has stated, "[p]ut another way, if a rational trier offact might resolve the issue in favor of the nonmoving party,summary judgment must be denied."9

III.

Plaintiff's motion for summary judgment.

Plaintiff seeks summary judgment on the grounds that there areno genuine issues of material fact concerning: 1) that the sawgrinder was damaged while in possession of the motor carrierduring shipment; and 2) the liability of the motor carrier wasnot limited because there was no written agreement or otherdeclaration to limit liability pursuant to49 U.S.C. § 14706(c)(1)(A) to $1 per pound as asserted by the Defendants.

In 1906 Congress enacted the Carmack Amendment to the federalmotor carriers statute so as to create a national policyregarding an interstate carrier's liability for property loss. Atleast eight circuits have held that the Carmack Amendmentpreempts state and common law claims and remedies for cargodamaged in interstate transport. See, e.g., Hughes Aircraft Co.v. North American Van Lines, Inc., 970 F.2d 609, 613 (9th Cir.1992). The Carmack Amendment absolutely forbade carriers to limittheir liability to shipper for damage to goods. As a result ofthis legislation, the carriers increased shipping rates sharply.In 1915 Congress reacted to this rate increase by enacting theso-called Cummins Amendment10, now codified at49 U.S.C. § 14706(c)(1)(A), which allows a carrier to limit its liability ifit maintains appropriate tariffs.

Broadly, where freight has been damaged while in the possessionof the motor carrier, the carrier is liable for the "actual lossor injury to the property caused by (A) the receiving carrier,(B) the delivering carrier, or (C) another carrier over whoseline or route the property is transported inthe United States.." 49 U.S.C. § 14706(a)(1). The CumminsAmendment allows carriers to limit their liability "to a valueestablished by written or electronic declaration of the shipperor by written agreement between the carrier and the shipper ifthat value would be reasonable under the circumstancessurrounding the transportation." 49 U.S.C. § 14706(c)(1)(A).

There are four requirements which must be met in order for acarrier to effectively limit its liability. The carrier must: (1)maintain a tariff in compliance with the requirements of theInterstate Commerce Commission; (2) give the shipper a reasonableopportunity to choose between two or more levels of liability;(3) obtain the shipper's agreement as to his choice of carrierliability limit; and (4) issue a bill of lading prior to movingthe shipment that reflects any such agreement. Hughes AircraftCo. v. North American Van Lines, Inc., 970 F.2d 609, 611-612(9th Cir. 1992), citing Rohner Gehrig Co., Inc. v. Tri-StateMotor Transit, 950 F.2d 1079, 1081 (5th Cir. 1992) (en banc);and Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7thCir. 1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1068, 99L.Ed.2d 248 (1988). In order for the bill of lading form toestablish limited liability by the carrier, it must contain whathas been referred to as an "inadvertence clause." Rohner GehrigCo., Inc. v. Tri-State Motor Transit, 950 F.2d 1079, 1082 (5thCir. 1992). The inadvertence clause specifies the release rateand states that such a rate will apply unless the shipperdeclares otherwise. Id. This gives the shipper the requiredopportunity to choose between levels of carrier liability,thereby giving the carrier a concomitant opportunity to limit itsliability to the shipper for damage or loss.11 By bargainingwith the extent of the limitation to be placed on the carrier'sliability, the shipper can negotiate a reduced rate oftransportation. The carrier has the burden of proving that it hascomplied with these requirements. Hughes Aircraft Co. v. NorthAmerican Van Lines, Inc., 970 F.2d 609, 612 (9th Cir. 1992),citing Carmana Designs, Ltd. v. North American Van Lines, Inc.,943 F.2d 316, 319 (3d Cir. 1991); and Flying Tiger Line v. PintoTrucking Svc., 517 F. Supp. 1108, 1112 (E.D.Pa. 1981). However,the shipper is charged with knowledge of what the tariffcontains. American Ry. Express Co. v. Daniel, 269 U.S. 40,41-42, 46 S.Ct. 15, 70 L.Ed. 154 (1925).

In this case, there is no dispute that the first and fourthrequirements to limit liability were met. The dispute insteadfocuses on whether the second and third requirements of theHughes test were fulfilled in order to effectuate a limitationof carrier liability.

Before discussing this further, the Court notes that the issueof liability is focused on Defendant Roadway. Defendant U WFreight picked up the grinder from Plaintiff's business inEmmett, Idaho, and delivered it to the Roadway depot in Boise.Defendant Roadway then accepted the grinder for delivery toKirkland, Washington, via Salt Lake City. There is no disputethat the grinder was not packed into a crate before being placedwith U W Freight and there is no real dispute that the grinderarrived unharmed when it was delivered to Roadway. The damage tothe grinder occurred while the grinder was in Roadway'spossession between Boise and Kirkland. It is believed that, as aresult of the grinder not being secured properly in the Roadwaytruck, the grinder, being top-heavy, was damaged when it toppledover while inside the truck.

Returning now to the issue of whether the second and thirdrequirements of the Hughes test for the limitation of liabilitywere met, the Court will first determine whether Plaintiff, asthe shipper, was given a reasonable opportunity to choose betweentwo or more levels of coverage in the bill of lading.

"A reasonable opportunity to choose between different levels ofcoverage means that the shipper had both reasonable notice of theliability limitation and the opportunity to obtain informationnecessary to making a deliberate and well-informed choice."Hughes Aircraft Co. v. North American Van Lines, Inc.,970 F.2d 609, 612 (9th Cir. 1992), citing Carmana Designs, Ltd. v. NorthAmerican Van Lines, Inc., 943 F.2d at 320 (quoting Bio-Lab,Inc. v. Pony Express Courier Corp., 911 F.2d 1580, 1582 (11thCir. 1990)). The agreement must evidence an "absolute, deliberateand well-informed choice by the shipper." Id.

The Defendants' pre-printed bill of lading form contained the following:

Note — Where the rate is dependant on value, shippers are required to state specifically in writing the agreed or declared value of the property. The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding $per.

and

RECEIVED, subject to the classifications and lawfully filed tariffs if applicable, or the individually determined rates in effect on the date of the issue of this Bill of Lading, the property described above in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned, and destined as indicated above which said carrier (the word carrier being understood throughout this contract as meaning any person or corporation in possession of the property under the contract) agrees to carry to its usual place of delivery at said destination, if on its route, otherwise to deliver to another carrier on the route to said destination. It is mutually agreed as to each carrier of all or any of, said property over all or any portion of said route to destination and as to each party at any time interested in all or any said property, that every service to be performed hereunder shall be subject to all the bill of lading terms and conditions in the governing classification on the date of shipment.

Shipper hereby certifies that he is familiar with all the bill of lading terms and conditions in the governing classification and the said terms and conditions are hereby agreed to by the shipper and accepted for himself and his assigns. (Shipper/Name/Authorized Signature)

(Straight Bill of Lading form executed, exhibit A attached toPlaintiff's complaint, emphasis added.)

Only a handful of circuit cases confront the issue whether a"fair opportunity" is afforded by a legally adequate tariff,standard bill of lading language, and a blank for the shipper toinsert a higher declared value. Four of the decisions —Hollingsworth & Vose Co. v. A-P-A Transportation Corp.,158 F.3d 617, 621 (1st Cir. 1998); Mechanical Technology Inc. v.Ryder Truck Lines, Inc., 776 F.2d 1085, 1088 (2d Cir. 1985);Norton v. Jim Phillips Horse Transportation, 901 F.2d 821,824-825 (10th Cir. 1989); and Hughes v. United Van Lines, Inc.,829 F.2d 1407, 1423-1424 (7th Cir. 1987) — uphold the limitationof liability in bills of lading with inadvertence clauses whichwere the same as or very similar to the one in the instant case.

By contrast, the Sixth Circuit, in Toledo Ticket Co. v.Roadway Express, Inc., 133 F.3d 439, 443 (6th Cir. 1998),implied that something close to a separate, consumer-friendly,specific warning to the shipper from the carrier is necessary.This approach, however, is far from the majority position.

In the case now before the Court, the tariff which applies isRoadway's because the tariff that is in effect is the onefor the carrier that moves the shipment from origin todestination. The "origin" in this case is considered to be Boise.Roadway tariff 301-H, section 4, item 3010 provides that thereleased value of used machinery is $1.00 per pound unless theconsigner declares a value at the time of shipment. If a valuegreater than $2.50 per pound is declared, then the rate of theshipment will either be at 150% of the applicable class orcommodity rate or 100% of the minimum charge. (See Roadwaytariff attached as Exhibit A to the affidavit of Rob Shockley,docket # 73.) As already mentioned, the bill of ladingincorporates the tariff by reference and provides an inadvertenceclause with a blank space for a declared value to be put in. Ifno declaration of value is made, then the release rate of $1.00per pound provided in the tariff applies to losses or injury tothe shipment. The location of the inadvertence clause isconspicuous in that it is located above the space for theshipper's authorized signature.

The issue then becomes whether, between the Roadway tariff andthe bill of lading, the shipper was given a reasonableopportunity to choose between two or more levels of liability,determined by whether the shipper had both a reasonable notice ofthe liability limitation and the opportunity to obtaininformation necessary to making a well-informed choice. HughesAircraft Co. v. North American Van Lines, Inc., 970 F.2d 609,612 (9th Cir. 1992) (internal citations omitted).

Here, the Plaintiff did not draft the bill of lading ornegotiate its terms. The bill of lading contract did incorporateby reference the applicable tariff, which was Roadway tariff301-H, which established a rate based on a $1.00 per poundrelease value unless declared to be higher. Mr. Atwood, whotestified that he had on many prior occasions utilized theservices of shippers, further testified that he has seen languagereferring to a declared value on bill of lading forms but that he"didn't have a clue" what the term "declared value" referred to,nor did he ask. (See R. Atwood deposition attached as Exhibit Dto the affidavit of Rob Shockley, docket # 73, transcript pages53-56.)

If a carrier is to limit its liability, there must be a writtenagreement between the shipper and the carrier (commonly the billof lading contract) which must contain a so-called "inadvertenceclause." An inadvertence clause specifies the release rate andstates that such a rate will apply unless the shipper declaresotherwise. Rohner Gehrig Co., Inc. v. Tri-State Motor Transit,950 F.2d 1079, 1082 (5th Cir. 1992). A typical released rateblank for use by the shipper states the following:

The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding ____ per ____.

Id. This exact language was contained in the bill of ladingused here. This blank is for the use of the shipper in declaringa higher, alternate valuation for the purpose of increasing thecarrier's liability or, in other words, for the purpose ofdecreasing the limitation of the carrier's liability. Id. at1082-1083. Unlike the facts of the Rohner case, the bill oflading that Mrs. Atwood signed did contain a space in which toinsert a different declared or released valuation to substantiatea shipper's choice of release rate.

The Court finds that the bill of lading was adequate, when readwith the tariff, to establish a release rate of $1.00 per pound,unless the shipper elected higher coverage and was willing to payan increased freight charge to cover the higher value. It isenough under current applicable case law that the tariff madeboth coverages available, that the bill of lading afforded theshipper a reasonable opportunity to chose by virtue of theinadvertence clause with the blanks, and that the shipper was acommercial enterprise capable of understanding the agreements itsigned. This is enough to give the shipper a "fair opportunity"to opt for more coverage. The shipper signed the bill of ladingwhich containedan express reference to the tariff, so the shipper is bound bythe terms contained in the bill of lading even if Mr. or Mrs.Atwood were not expressly told that the liability would belimited. See Robinson v. Ralph G. Smith, Inc., 735 F.2d 186,191 (6th Cir. 1984).

Plaintiff has presented additional evidence for the Court'sconsideration on the motion for summary judgment, such as Mrs.Atwood's conversation with the U W Freight driver and Mr.Atwood's testimony as to his understanding as to the function ofa bill of lading.12 The Court finds that these additionalfacts do not create an issue of material fact for at least threereasons. First, it has long been established law that the shipperis charged with knowledge of what the tariff contains. AmericanRy. Express Co. v. Daniel, 269 U.S. 40, 41-42, 46 S.Ct. 15, 70L.Ed. 154 (1925); Mechanical Technology, Inc. v. Ryder TruckLines, Inc., 776 F.2d 1085, 1087-1088 (2d Cir. 1985); and W.C.Smith, Inc. v. Yellow Freight Sys., Inc., 596 F. Supp. 515, 517(E.D.Pa. 1983). Although Mr. Atwood testified that he did notread the bill of lading, he is nonetheless responsible for hisagent's conduct in having entered into the written agreement.

Second, the level of "sophistication" of the shipper is not afactor which is to be considered in determining the outcome underthis framework analysis. Rohner Gehrig Co., Inc. v. Tri-StateMotor Transit, 950 F.2d 1079 (5th Cir. 1992). In other words,the fact that Mr. Atwood testified that "didn't have a clue" asto the meaning of the phrase "declared value" as printed on thebill of lading is not relevant.

Finally, what the Plaintiff seeks to do is create an issue offact by using parol evidence, i.e. what the driver may have toldMrs. Atwood, to alter the express terms of the contract. As othercourts have noted, "[O]ne who signs a contract in the absence offraud or deceit cannot avoid it on the grounds that he did notread it or that he took someone else's word as to what itcontained." Chandler v. Aero Mayflower Transit Co.,374 F.2d 129, 136 (4th Cir. 1967). This rule was recently applied inJackson v. Brook Ledge, Inc., 991 F. Supp. 640 (E.D.Ky. 1997),where the shipper stated that although he had signed bills oflading in the past, he had never read one and that he was simplyfollowing the driver's instructions to sign the document. Underthose circumstances the Kentucky District Court refused torelease the shipper from the limitations on liability forproperty damage (in that case a very expensive race horse) thatwas established by the express wording and lack of any higherdeclaration of value other than contained in the bill of lading.These recent cases really hark back to a very early decision bythe United States Supreme Court where it was held:

The valuation declared or agreed upon as evidenced by the contract of shipment upon which the published tariff rate is applied must be conclusive in an action to recover for loss or damage [of] a greater sum. . . . To permit such a declared valuation to be overthrown by evidence aliunde [to] the contract, for the purpose of enabling the shipper to obtain a recovery in a suit for loss or damage in excess of the maximum valuation thus fixed, would both encourage and reward undervaluations, and bring about preference and discriminations forbidden by the law. The valuation the shipper declares determines the legal rate where there are two rates based upon valuation.

Kansas City Southern Railway Co. v. Carl, 227 U.S. 639, 652, 33S.Ct. 391, 57 L.Ed. 683 (1913) (emphasis added).

Plaintiff is seeking a the total amount of $80,192.85 indamages, which is the cost to replace the grinder. The grinderwas estimated to be valued at somewhere in the range of $20,000to $28,000 for the 1983 model. Plaintiff claims that it wouldcost him $80,000 or more to replace the grinder now because a1983 model is no longer available. Plaintiff also seeks theadditional labor costs he incurred when he had to forgo the useof the grinder.

The Carmack Amendment, 49 U.S.C. § 14706(a)(1) initiallyprovided that a carrier is liable for the actual loss or injuryto property caused by a carrier while the property wastransported under a bill of lading. The Cummins Amendment,49 U.S.C. § 14706(c)(1)(A), established a limitation on thecarrier's liability, limiting it to "a value established bywritten or electronic declaration of the shipper or by a writtenagreement between the carrier and shipper. . . ."

In this case, the Court has determined that the bill of ladingused by the carrier did comply with the Roadway's tariff and thatthe requirements of the Hughes test were met. The Courtcorrespondingly found that Roadway had effectively limited itsliability to the release rate contained in Roadway's tariff,which establishes a release rate of $1.00 per pound in theabsence of the shipper having declared another value and higherrelease rate. Therefore, the Court finds that the shipper is notentitled to damages over and above the amount that the carrierhas already tendered in the amount of $2,031.93, which covered arefund of the shipping fees and damage caused to the grinder paidat the rate of $1 per pound, or $1,450.

Based on the foregoing, the Court finds that Plaintiff'sdamages are limited to the amount he already received in responseto the claim filed with the carrier and will recommend that thePlaintiff's motion for summary judgment be denied.

IV.

Defendant Roadway's motion for summary judgment.

Defendant Roadway's motion for summary judgment raisesessentially the same argument raised by Defendant UW Freight asto the limitation on liability due to Roadway's having filed atariff and because Plaintiff did not declare a value in the billof lading. In addition, Roadway argues that because Plaintiff didnot notify the carrier of the special circumstances that wouldarise if a breach occurred, Plaintiff is not entitled to recoverspecial or consequential damages.

Based on the Court's findings on the Plaintiff's motion forsummary judgment, and recognizing that this motion addresses thesame issues, the Court will recommend that Defendant Roadway'smotion for summary judgment be granted.

V.

Defendant Roadway's motion to dismiss.

The motion to dismiss brought by Defendant Roadway has beenjoined by Defendant UW Freight. Defendants assert that thecomplaint should be dismissed in its entirety under Fed.R.Civ.P.19 for failure of the Plaintiff to join an indispensable party inthe suit. The argument is based on the undisputed facts thatPlaintiff Atwood was leasing the grinder from a company calledOrvestco, Inc. at the time the property was damaged, thatOrvestco was purchased by International Knife, Inc., thatInternational Knife purchased the lease for the grinder, and thatas the true owner of the grinder, International Knife is anindispensable party to the suit.

In response to the motion, Plaintiff submitted an affidavit bythe director of financeof International Knife and Saw, the successor in interest to thelessor, Orvestco, which states that it does not intend to pursuea direct claim for damages to the grinder. Accordingly, the Courtwill recommend that the motion to dismiss be denied.

VI.

Defendant U W Freight's motion for summary judgment.

Defendant U W Freight filed a cross-claim against DefendantRoadway for indemnification of any damages that Plaintiff wouldrecover against U W Freight because there is no dispute that thefacts show that the damage to the grinder occurred while it wasin Roadway's possession.

Based on the Court's recommendations relative to thePlaintiff's summary judgment motion and Defendant's summaryjudgment motion, Plaintiff will not be recovering additionaldamages from either of the Defendants. Therefore, Defendant U WFreight's cross claim becomes meritless. Accordingly, the Courtwill recommend that U W Freight's motion for summary judgmentagainst Defendant Roadway be declared to be moot and that thecross-claim be dismissed.

VII.

Defendant UW Freight's motion to strike.

Defendant UW Freight moves to strike the submission of MartinFoley (docket # 62) that was submitted by Plaintiff inconjunction with Plaintiff's motion for summary judgment on thegrounds that: 1) the affidavit was not submitted in a timelyfashion because it was filed after the motion was filed; and 2)the first three pages of the document which precede thetwo-paragraph affidavit by Martin Foley appear "to be variouspositions of the NMFTA by Plaintiff's counsel."

The issues raised by Defendant U W Freight go to the weightthat would be accorded the information contained in theaffidavit. Because the Court is able to exercise its discretionin this regard, the Court does not find it necessary to strikethe affidavit and the motion will be denied.

ORDER

Based on the foregoing, the Court being otherwise fully advisedin the premises, IT IS HEREBY ORDERED that:

1) Defendant U W Freight's motion to strike (docket # 66),filed March 31, 1999, is DENIED.

2) The hearing currently set for Monday, November 29, 1999, isVACATED.

RECOMMENDATION

Based upon the foregoing, the Court being otherwise fullyadvised in the premises, the Court hereby RECOMMENDS that:

1) Plaintiff's motion for summary judgment (docket # 57), filedMarch 18, 1999, be DENIED.

2) Defendant Roadway's motion for summary judgment (docket #76), filed April 8, 1999, and joined by Defendant U W Freight(docket # 88), be GRANTED.

3) Defendant Roadway's motion to dismiss (docket # 91), filedJuly 6, 1999, be DENIED.

4) Defendant U W Freight Line's motion for summary judgmentagainst Defendant Roadway (docket # 114), filed September 24,1999, be deemed to be MOOT, and the cross-claim be accordinglydismissed.

Written objections to this Report and Recommendation must befiled within ten (10) days pursuant to 28 U.S.C. § 636(b)(1) andLocal Rule 72.1(d), or as a result of failing to do so, thatparty may waive the right to raise factual and/or legalobjectionsto the United States Court of Appeals for the Ninth Circuit.

1. Fed.R.Civ.P. 56(c).

2. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106S.Ct. 2548, 91 L.Ed.2d 265 (1986).

3. Id. at 323, 106 S.Ct. 2548. See also Rule 56(e).

4. Hahn v. Sargent, 523 F.2d 461, 463 (1st Cir. 1975)(quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253,289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)), cert. denied,425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

5. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986).

6. See British Motor Car Distributors, Ltd. v. San FranciscoAutomotive Industries Welfare Fund, 882 F.2d 371 (9th Cir.1989).

7. T.W. Electrical Service, Inc. v. Pacific ElectricalContractors Ass'n., 809 F.2d 626 (9th Cir. 1987).

8. Id. at 631.

9. Id.

10. The Court notes that the parties refer to this portion of49 U.S.C. § 14706(c) as the "Cummings Amendment," as do severalcases. This an error, however, as the Court's research revealedthat the correct "popular name" for the amendment is the "CumminsAmendment."

11. In this case the Defendants' various release valuedeclarations for 1450 lbs, of used machinery from Emmett, Idahoto Kirkland, Washington would have been for $1 per pound,$581.93; not exceeding $2.50 per pound, $614.17; and exceeding$2.50 per pound, $969.88.

12. Although Mr. Atwood did not fill out the bill of ladingand testified that he did not read it, Mrs. Atwood testified thatshe filled it out and read it, and that she asked the driver ofthe truck what the clause meant, Mrs. Atwood further testifiedthat the driver told her "not to worry about it" because theimportant thing was the weight of the item being shipped as thatwas what the shipping rate would be based on. On the other hand,the driver, Dale Profit, testified that he had no conversationwith Mrs. Atwood about the bill of lading and that she did notask about the tariff or declaring a value, because if she had,then he would have told her to call the U W Freight office inCaldwell. (Affidavit of Dale Profit, docket # 71, page 4, ¶ 14.)

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