Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.security Services, Inc., F/k/a Riss International Corp.,plaintiff/appellant-cross/appellee, v. Chemrex, Inc., Defendant/appellee-cross/appellant, 27 F.3d 569 (7th Cir. 1994)

ORDER

Security Services appeals the district court's grant of summary judgment in favor of ChemRex in this case. Security Services was a motor common carrier that transported shipments of freight for ChemRex. ChemRex paid freight bills issued by Security Services for the shipments at the invoiced amount. Security Services, now a trustee in bankruptcy, filed this action to recover undercharges from ChemRex, alleging that the invoice price rate ChemRex paid Security Services was less than the transportation rate or tariff Security Services had on file with the Interstate Commerce Commission, to which it was entitled.

The sole issue in this case is whether a motor carrier in bankruptcy may recover from a shipper undercharges based on tariff rates which were filed with the ICC, but which were void according to ICC regulations because of failure to participate in a designated mileage guide. We recently decided yes in Brizendine v. Cotter & Co., 4 F.3d 457 (7th Cir. 1993), cert. granted and vacated by No. 93-1129, 1993 WL 558878 (U.S. May 23, 1994), but the United States Supreme Court even more recently has decided no. Security Services, Inc. v. Kmart Corp., 511 U.S. ----, 114 S. Ct. 1702 (1994).

Because the facts in this case are, for our purposes, identical to those in the Kmart case, the Supreme Court's decision controls the disposition of this appeal. Therefore, we AFFIRM the district court's grant of summary judgment in favor of ChemRex.