RUSH INDUSTRIES, INC. v. MWP CONTRACTORS, LLC et al, No. 1:2008cv00810 - Document 57 (M.D.N.C. 2012)
Court Description: MEMORANDUM OPINION AND ORDER. For the reasons set forth herein, the court concludes that Rush Industries has established a prima facie case under the Carmack Amendment and is entitled to recover damages of $118.23 from MWP. MWP has also establ ished that it is entitled to recover $6,388.59 from Rush Industries for breach of the Agreement. Further, Brann's has no liability to Rush Industries or MWP, because neither provided timely written notice of a claim. IT IS THEREFORE ORD ERED as follows: Rush Industries shall have and recover $118.23 from Defendant MWP, with prejudgment interest at the legal federal rate from January 8, 2007;MWP shall have and recover $6,388.59 from Rush Industries under the Agreement, wit h prejudgment interest at the North Carolina legal rate of 8% accruing from January 10, 2007, on $4,000 of that amount, and prejudgment interest at the North Carolina legal rate of 8% accruing from November 10, 2008, on the remaining $2,338.59; Brann's shall have no liability to Rush Industries or MWP in connection with the delivery of the panel saw. A separate Judgment will issue. Signed by JUDGE THOMAS D. SCHROEDER on 11/30/2012. (Solomon, Dianne)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA RUSH INDUSTRIES, INC., ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MWP CONTRACTORS, L.L.C. and BRANN S TRANSPORT SERVICE, INC. Defendants. 1:08-cv-810 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. Plaintiff Rush Industries, Inc. ( Rush Industries ) brings this action against Defendants MWP Contractors, L.L.C. ( MWP ), and Brann s Transport Service, Inc. ( Brann s ), for damage to a piece of Virginia, filed this industrial to equipment Americus, action in shipped Georgia. the General from South Rush Industries Court of Boston, originally Justice, Superior Court Division, of Guilford County, alleging breach of contract, bailment, and negligence. Defendants timely removed the action to this court on the ground that Rush Industries claims are preempted and governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq. (Doc. 1), and Defendants have filed cross-claims for any damages the court awards. In addition, MWP has counterclaimed against Rush Industries for amounts allegedly due for service and shipment of the equipment. On (Doc. 8.) Defendants motions for summary judgment, the court previously dismissed Rush Industries claims for lost profits against both Defendants. (Doc. 37 at 11.) Additionally, the court dismissed Rush Industries claims for negligence to the extent they did not arise out of the alleged bailment. (Id.) Rush Industries remaining claims were tried to the court on October 22 and 23, 2012. At trial, Rush Industries presented one witness, Michael Rush, its president. MWP presented the testimony of Roger Criner, a former employee of DelMac Machinery Group, who had previously serviced and was familiar with the equipment at issue; Nesbit Chip Osborne King, Jr., MWP s sole owner; Tony David Ellis, an electrician with MWP; and Anthony Wilson, an MWP superintendent. Brann s called Keith Brann, its president. Pursuant to Federal Rule of Civil Procedure 52(a), the court enters the following findings of fact and conclusions of law. To the extent any factual statements are contained in the conclusions of law, they are deemed findings of fact as well. I. FINDINGS OF FACT The court evaluation of finds the the facts evidence, stated herein including 2 the based upon its credibility of witnesses, and the inferences that the court has found reasonable to draw from the evidence. 1. Plaintiff corporation with offices Americus, Georgia. things, Rush furniture Industries in is a Greensboro, North North Carolina Carolina, and Plaintiff is in the business of, among other and wood component parts manufacturing and distribution. 2. Defendant MWP is a limited liability company organized and existing under the laws of the state of North Carolina, having its principal Carolina. place of business in Roxboro, North MWP s business includes the removal, shipment, and installation of major mechanical equipment. 3. Defendant Brann s is a corporation organized and existing under the laws of the state of North Carolina, having its principal place of business in Roxboro, North Carolina. Brann s provides transportation services as a motor carrier. 4. In late 2006, Rush Industries purchased a Gabbiani Delta LT-TE Programmable Rear Load Panel Saw with Scoring ( the panel saw or saw ) through Industrial Recovery Services. an internet auction held by (See Plaintiff ( Pltf. ) Ex. 1.) Rush Industries intended to use the panel saw in its furniture and wood component parts manufacturing business. the terms of the auction, there was a twelve-day Pursuant to inspection period during which prospective bidders were allowed to inspect 3 the panel saw. (Pltf. Ex. 3.) Rush Industries did not inspect the saw during this period or prior to placing its bid. 5. $13,000. Rush Industries winning bid for the panel saw was Combined with a 10% commission to the auctioneer, the total purchase price was $14,300. The bill of sale provides that Rush Industries purchased the saw AS IS, WHERE IS, WITH ALL FAULTS and without any warranty or representation. (Pltf. Ex. 2.) 6. At the time it was purchased by Rush Industries, the panel saw, which has a footprint of approximately 35 feet by 18 feet, was installed at a facility in South Boston, Virginia. The facility was owned by D-Scan, a division of Masco, and was no longer in active operation. 7. The panel saw was originally made overseas and is one of only a handful of its type made by the manufacturer. It was twelve-to-thirteen years old at the time it was purchased by Rush Industries. The panel saw s computer controller was also twelve-to-thirteen years old, and although the monitor had been replaced in more recent years (when one was found in England), the computer technology. was obsolete given the advances in computer The panel saw had a lot of wear and tear in the mechanical portion of the machine. According to Mr. Criner, who had and previously serviced the saw whom the court finds credible, the panel saw s original useful life was ten to twelve 4 years, and the computer s original useful life was eight to ten years. Consequently, the panel saw was beyond its expected useful life at the time Rush Industries purchased it. 8. After purchasing the panel saw, Mr. Rush, the sole owner and president of Rush Industries, traveled to the D-Scan facility on December 5, 2006, to inspect the saw and arrange for its shipment to his business. accompanied by his wife, During this trip, Mr. Rush was Vicky, and two representatives associated with MWP (an MWP employee and an MWP consultant). 9. While at the D-Scan facility, Rush Industries videotaped the panel saw being turned on and operated by a DScan employee. loading, (Pltf. staging, difficulty. and Ex. 25.) cutting Additionally, The video shows the saw boards the with no apparent video shows the operator programming the saw s computer, which displays schematics based on the inputted board size. Following this demonstration, Vicky Rush and the D-Scan operator measured the boards cut by the panel saw and confirmed that they were cut to the appropriate dimensions. 10. with While at the D-Scan facility, Mr. Rush also discussed D-Scan personnel the possibility of receiving the customized duct work for the panel saw s dust collection system, as well as some tools and spare parts. these materials in the purchase. 5 D-Scan agreed to include MWP s representative overheard this discussion, and Mr. Rush believed that MWP would move these materials, along with the panel saw, if MWP was awarded the shipping contract. 11. written On December 7, 2006, Rush Industries accepted MWP s proposal to ship the panel saw from South Boston, Virginia, to Rush Industries manufacturing plant in Americus, Georgia. (Pltf. Ex. 9 (the Agreement ).) The following terms were included in the Agreement: a. MWP would disassemble, package, stage, and load trucks for shipment of panel saw to Americus, Georgia, for a fixed price of $4,000. b. Shipping would be coordinated by MWP at the cost of $1,300 per load, with an estimate of one load. c. MWP would unload and assemble the panel saw at the point of delivery for a fixed price of $4,000. d. MWP s work relating to the start-up of the panel saw would be billed on a time and material basis, with millwright/mechanical services at $35.00/man hour and electrical $50.00/man hour. 6 technician services at e. Mechanical services for equipment repair prior to shipment would be at $35.00/man hour, with all parts supplied by Rush Industries. 12. for the The Agreement did not expressly mention the duct work tools. panel It saw s is dust collection undisputed that the system, extra spare parts, equipment was or not shipped to the Rush Industries facility in Americus. 13. for On December 8, 2006, Rush Industries sent MWP a check $5,300. Americus. The 14. check contained the notation Move Saw To (Pltf. Ex. 10.) On December 15, 2006, MWP billed the total fixed amount for moving the panel saw from South Boston, Virginia, to Americus, Georgia, noting Rush Industries partial payment of $5,300. 15. (Id.) This invoice remains unpaid. Up until shipment on January 8, 2007, the panel saw remained in the D-Scan facility awaiting transport. During this time, MWP made certain repairs to the panel saw, including to its carriage Industries. bearings and gears, at the request of Rush These repairs were performed at the rates set forth in the Agreement and were apparently satisfactory, as no party has indicated otherwise. During this time, D-Scan remained a separate entity from MWP, and there is no evidence that MWP had exclusive control over the panel responsible for its condition. 7 saw or was in any way 16. On January 8, 2007, MWP prepared an invoice to Rush Industries in the amount of $2,388.59 for the time and material repair work performed on the panel saw prior to shipment. Ex. 11.) This invoice was never sent before (MWP litigation developed between the parties, and it has not been paid. 17. Unbeknownst to Rush Industries, MWP contracted with Brann s to physically transport the panel saw from South Boston, Virginia, to Americus, Georgia, using Brann s trucks. MWP has used Brann s on multiple prior occasions to transport equipment and machinery. 18. saw On January 8, 2007, MWP packed and loaded the panel onto two of Brann s trucks. MWP did not request that Brann s tarp the panel saw during shipment, and Brann s did not do so because its regular policy, which the court finds was known to MWP, is to charge extra for tarping. The weather was good, but the lack of tarping exposed the panel saw to the elements during transit. 19. MWP issued an Alternate Straight Bill of Lading Short Form ( Straight Bill of Lading ) to Brann s to transport a [s]aw, Georgia. panel box, rails, [and] (MWP Exs. 12 and 12b.) conveyers to Americus, This Straight Bill of Lading incorporated the terms of the Uniform Bill of Lading, 49 C.F.R. pt. 1035, App. B. (Id.) 8 20. After MWP packed and loaded the panel saw onto Brann s trucks, Brann s transported it to Americus, Georgia, on airsuspension trailers, which reduce the road vibration to the cargo. 21. All connectors on parties ten agree ribbon computer were damaged. that during transit the cables leading to panel the plastic saw s This was likely from their being blown about in the wind during the trip. 22. On January 8, 2007, the panel saw was delivered to Rush Industries facility in Americus, Georgia. The damage to the ribbon cable connectors was immediately observed, yet no other damage was noted. There is no evidence that the damage to the ribbon cable connectors, in and of itself, reduced the value of the panel saw to scrap value at the point of delivery. 23. Rush Industries accepted the panel saw with the damaged connectors, and MWP offered and agreed to locate new connectors. Rush Industries directed MWP to assemble and install the panel saw in the Americus facility, which MWP did. Without the connectors, the panel saw was not operational. 24. In January 2007, Mr. Rush contacted MWP at least twice to urge that it repair the connectors and make the panel saw operational. Mr. Rush was motivated to have the repairs made because without the panel saw his business was unable to fulfill one or more large contracts. 9 25. On February 28, 2007, MWP sent Rush Industries a statement for the $4,000 balance owed for shipping the panel saw to Americus. refused to (MWP Ex. 16.) pay the The next day, Rush Industries amount owed until the saw was made operational and demanded full repairs within fifteen days. (MWP Ex. 17.) 26. On April against MWP in related to the 9, North 2007, Rush Carolina condition of Industries state the filed court panel saw a lawsuit seeking damages ( State Court Lawsuit ). 27. Apparently unaware of the pendency of the State Court Lawsuit, Anthony Wilson, MWP s employee, telephoned Mr. Rush to advise him that (despite initially having been given the wrong product number by Rush Industries) he had been able to obtain new connectors once he got the right product number from Mr. Rush s wife. Mr. Rush, who was engaged at a trade show, answered the call but interrupted Mr. Wilson, saying that Rush Industries had filed a lawsuit against MWP and that any further communication should be directed to Rush Industries attorney. Because of the pendency of the lawsuit, MWP ceased any efforts to offer the connectors to Rush Industries or to repair the panel saw. 28. Mr. Rush attempted to locate a used saw to replace the panel saw but was unable to find one. 10 In May 2007, Mr. Rush obtained two quotes for a new, comparable saw to replace the panel saw, which were for $349,970 and $236,490 (Pltf. Ex. 14), but they were more than the company could afford. Consequently, Rush Industries never replaced the panel saw. 29. According to Mr. Rush, beginning sometime in 2007 after the State Court Lawsuit was filed, Rush Industries sought out several companies and individuals to attempt to repair the panel saw. unwilling All to electrical indicated work diagrams on the (which that saw they without would show were the either unable connectors where to or and/or connect the ribbon cables). 30. On December 7, 2007, as the parties to the State Court Lawsuit attempted to mediate their differences, MWP delivered to Rush Industries the replacement connectors that Anthony Wilson had attempted to offer Mr. Rush earlier that year. Rush Industries determined that it could not However, attach the connectors to the existing ribbon cables, so it began searching for replacement ribbon cables. It located and purchased replacement ribbon cables on January 11, 2008, for a price of $103.60, plus $14.63 for shipping. 31. In January 2008, Rush Industries dismissed the State Court Lawsuit without prejudice and re-filed it as the present action, adding Brann s as a Defendant. 11 This constituted the first notice to Brann s that there was a problem with Rush connected the Industries panel saw. 32. In January 2008, cables Rush and Industries replacement ribbon replacement connectors to the panel saw. Mr. Rush was informed that the control panel to the saw s computer lit up, but the stop light remained on and the computer did not display any programming or parameters. However, Mr. Rush was not present at this time and was not personally familiar with the state of the panel saw s computer or how it operates from a technical perspective; his testimony was based entirely on reports from his employees in Americus. By this time, the panel saw had sat unused and without power in the Americus facility for approximately one year. 33. Subsequently, Rush Industries engaged in additional efforts to return the panel saw to an operational condition. However, Mr. Rush s testimony was general, and the three or four servicing companies he mentioned either said they were unable to work on contacted the panel saw or did a local electrician, not who recognize put Rush it. Mr. Industries Rush in contact with someone in Germany who was to send a start-up disk for the computer, but it was never received. 34. As part of its efforts to repair the saw, Rush Industries also attempted to re-boot the panel saw s computer. Mr. Rush indicated that in July of 2008 he had been informed 12 that the saw s computer had come up 98%. is unclear what this figure represents. (MWP s Ex. 21.) It Mr. Rush testified that he had no personal knowledge of Rush Industries attempts to reboot the saw s computer, was never present for such attempts (which were all performed by Rush Industries personnel in Americus), and wouldn t know if the backup battery was good. To date, the panel saw has not been operational. Mr. Rush does not know why the panel saw will not operate and has no evidence of any specific defect or damage other than the damage to the connectors. 35. Rush Industries has never attempted to sell the panel saw and never investigated its salvage value. Based on MWP s estimate of $4,000 to disassemble the panel saw, Mr. Rush opined that its value in a non-operational condition is less than the cost to move it. Other than this opinion and the cost to purchase the ribbon cables, Rush Industries has submitted no evidence of the value of, or cost to repair, the panel saw. II. CONCLUSIONS OF LAW 1. Carmack The court s Amendment to jurisdiction the Interstate arises pursuant Commerce Act, 49 to the U.S.C. § 14706 et seq., which preempts a shipper s state and common law claims against a carrier for loss or damage to goods during shipment. 5K Logistics, Inc. v. Daily Express, Inc., 659 F.3d 331, 336 (4th Cir. 2011) (noting that the Carmack Amendment has 13 long been interpreted to preempt state liability rules pertaining to cargo carriage, either under statute or common law ). The court exercises its supplemental jurisdiction over MWP s counterclaim based on a state law claim for breach of contract. 2. 28 U.S.C. § 1367(a). Venue is proper pursuant to the Carmack Amendment, 49 U.S.C. § 14706(d)(1), which provides that in an action against a delivering carrier, venue is proper in a federal judicial district through which the defendant carrier operates. Here, both MWP and Brann s have their principal place of business in Roxboro, North Carolina. As Carolina, such, in the the Middle Middle District District of of North North Carolina certainly qualifies as the district through which the defendant carrier operates. A. Application Brann s 3. The national of Carmack uniform the Carmack Amendment policy was regarding Amendment designed the to to liability MWP create of and a carriers under a bill of lading for goods lost or damaged in shipment. Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 706 (4th Cir. 1993). As such, the Carmack Amendment provides the exclusive remedy for damage to goods transported in interstate commerce by motor carriers and freight forwarders. 49 U.S.C. § 14706; Harrah v. Minnesota Mining & Mfg. Co., 809 F. Supp. 313, 317 14 (D.N.J. 1992). motor If cargo was shipped in interstate commerce by a carrier or freight forwarder as defined in the Interstate Commerce Act, the Carmack Amendment will preempt a shipper s state law claims and provide the exclusive remedy to the shipper. Adams Express Co. v. Croninger, 226 U.S. 491, 505 06 (1913); Mach Mold, Inc. v. Clover Assocs., Inc., 383 F. Supp. 2d 1015, 1029 (N.D. Ill. 2005). 4. This court has previously determined that the Carmack Amendment applies to Rush Industries claims against Brann s. (Doc. 37 at 5.) Amendment MWP. Thus, the issue remains whether the Carmack preempts Rush Industries state law claims against The answer turns on whether MWP is considered either a freight forwarder or motor carrier under the Carmack motor carrier Amendment, as MWP asserts. 5. Under the Carmack Amendment, a is defined as a person providing motor vehicle transportation for compensation. 49 U.S.C. § 13102(a)(14). Transportation is in turn defined as including (1) a motor vehicle . . . or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use, and (2) services related to that movement, including arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, unpacking, and interchange of passengers and 15 property. Id. § 13102(a)(23). This definition of transportation makes clear that liability under the Carmack Amendment extends beyond the carrier who actually provides physical transportation to a carrier providing services related to transportation of the goods. See, e.g., 49 C.F.R. § 371.2(a) ( Motor carriers . . . are not brokers within the meaning of this section when they transportation of transport which and arrange shipments they or which have offer to arrange the they are authorized accepted and legally to bound themselves to transport. ); Land O Lakes, Inc. v. Superior Serv. Transp. of Wis., Inc., 500 F. Supp. 2d 1150, 1155 (E.D. Wis. 2007) (finding satisfied when shipment but that the the definition defendant arranged for did of not another motor carrier was directly transport the entity to broker the transport); Mach Mold, Inc., 383 F. Supp. 2d at 1029 (noting that actual ownership of the vehicles used for the physical transport of the goods at issue is irrelevant in determining if an entity constitutes a motor carrier under the Carmack Amendment); see also Travelers Ins. v. Panalpina, Inc., No. 08 C 5864, 2010 (finding WL that 3894105, company at was *5 6 a (N.D. motor Ill. carrier Sept. when 30, the 2010) delivery order established an obligation to transport the container and the company fulfilled that obligation by contracting with another company to make the delivery); AIOI Ins. Co. v. Timely 16 Integrated, Inc., No. 08 Civ. 1479(TPG), 2009 WL 2474072, at *3 (S.D.N.Y. Aug. 12, 2009) (finding that the defendant qualified as a motor carrier because it arranged for shipment of the goods by contracting with a third party to provide the actual physical transportation, the court being persuaded by the fact that the defendant held itself out to the shipper as the carrier of the goods, that the agreement between the defendant and the shipper authorized the defendant to transport the goods, and that the defendant was legally bound to transport the shipment). 6. In this case, MWP is a motor carrier for purposes of the Carmack Amendment because, like the defendants in Mach Mold, Inc. and AIOI Ins. Co., MWP held itself out to Rush Industries as the carrier of the goods and the Agreement authorized and legally bound MWP to transport the panel saw. (See Pltf. Ex. 9 ( Shipping coordinated by MWP will be at $1,300.00 per load ).) That MWP failed to issue a bill of lading to Rush Industries has no effect application on of MWP s the liability Carmack as a motor Amendment. carrier See 49 or the U.S.C. § 14706(a)(1). 7. Because MWP is a motor carrier under the Carmack Amendment, any state law claims against it that arise out of damage occurring during the transportation of the panel saw are preempted. See Mach Mold, Inc., 383 F. Supp. at 1029, 1032. Therefore, to the extent that Rush Industries claims for breach 17 of contract, bailment, and negligence arise out of damage to the panel saw that preempted. See Carmack occurred Shao, Amendment 986 preempts during F.2d a transportation, at 705 shipper s they (concluding state and are that the common law claims for breach of contract and negligence for damage to goods by a carrier during interstate shipment); Werner v. Lawrence Transp. Sys., 52 (holding that the F. Supp. Carmack 2d 567, Amendment 568 69 will (E.D.N.C. preempt 1998) state law bailment claims). 8. Although the Carmack Amendment defines transportation to include a variety of actions in connection with the transport of goods, such as packing, unpacking, and storage, 49 U.S.C. § 13102(23)(B), Rush Industries concedes it has presented no evidence that damage to the panel saw occurred at any time other than during its actual transport while on Brann s trucks. Consequently, Rush Industries claims for bailment, negligence, and breach of contract are preempted. 1 1 Under North Carolina law, bailment requires that a defendant exercise exclusive possession and control over property delivered to it. U.S. Helicopters, Inc. v. Black, 318 N.C. 268, 347 S.E.2d 431 (1986). In the instant case, these standards are not satisfied outside the time period in which Rush Industries claim is preempted. After MWP agreed on December 7, 2006, to service, remove, and transport the panel saw, it remained in the D-Scan facility. There is no evidence that MWP had exclusive control or possession of the saw during this time; rather, D-Scan, which occupied the facility, had complete access to the facility and the panel saw. See Merchants Terminal Corp. v. L & O Transport, Inc., No. SAG-09-cv-2065, 2012 WL 1416631, at *13 14 (D. Md. Apr. 20, 2012) (Stephanie A. Gallagher, M.J.) (finding that no 18 B. Rush Industries Prima Facie Case under the Carmack Amendment 9. MWP argues that the action should be dismissed because all claims raised by Rush Industries are preempted. 11.) (Doc. 48 at However, dismissal would be inappropriate in this case. When a claim under state law is completely preempted, as is the case here, a federal court should not dismiss the claim, but instead should re-characterize applicable federal law. it as a claim under the See Darcangelo v. Verizon Commc ns, Inc., 292 F.3d 181, 195 (4th Cir. 2002) (re-characterizing a state law breach of contract claim as a claim under § 502(a)(1)(B) of ERISA when the state law claim was preempted). This is especially true here, and MWP s argument is particularly suspect, because MWP removed the case on the very grounds that Rush Industries (Doc. 1 ¶ 3.) claims arise under the Carmack Amendment. As such, Rush Industries claims will be assessed under the provisions of the Carmack Amendment. 10. to the Under the Carmack Amendment, a motor carrier is liable shipper for damage to the goods occurring during transport without regard to the motor carrier s negligence. See 49 U.S.C. § 14706(a)(1); Conair Corp. v. Old Dominion Freight bailment claim existed outside of a Carmack Amendment claim when the carrier did not have exclusive possession and control over the goods at issue). For the same reasons, no bailment claim can exist after the panel saw was unloaded and assembled in Americus, Georgia, because MWP did not have exclusive possession or control over it there. 19 Line, Inc., 22 F.3d 529, 531 (3d Cir. 1994). However, the plaintiff s recovery is contingent on the ability to establish a prima facie case under the Carmack Amendment s burden-shifting framework. See Am. Nat. Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 926 (7th Cir. 2003). To do so, the plaintiff must establish (1) delivery of the goods to the carrier in good condition, (2) arrival in damaged condition, and (3) amount of damages. Missouri Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964); Oak Hall Cap & Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 294 (4th Cir. 1990). If the plaintiff establishes a prima facie case, the burden shifts to the carrier to show that it was not negligent and that the damage to the goods was caused by one of the following: (1) an act of God; (2) the public enemy; (3) the act of the shipper himself; or (4) the inherent vice or nature of the goods. Missouri Pac. R.R., 377 U.S. at 137 38. 1. 11. Carmack Delivery of Condition Goods to The first of a prima of delivery Amendment element is proof carrier in good condition. F.2d at 294. the Carrier facie of case the in Good under goods to the the Oak Hall Cap & Gown Co., Inc., 899 The plaintiff must establish this element by a preponderance of the evidence. 20 Fuente Cigar, Ltd. v. Roadway, 961 F.2d 1558, 1560 (11th Cir. 1992). Direct evidence is not required for a court to find that goods were delivered in good condition. Id. Instead, a court may rely on circumstantial evidence to establish the original condition of the goods when the evidence presented is substantial and reliable. Fine Foliage of Florida, Inc. v. Bowman Transp., Inc., 901 F.2d 1034, 1038 (11th Cir. 1990). 12. A plaintiff need not present expert testimony of good condition in order to establish a prima facie case. See Am. Nat. Fire Ins. Co., 325 F.3d at 930 (finding that the plaintiff established that the goods were delivered to the carrier in good condition when the carrier s driver testified that the containers at issue were not damaged to the extent that it would indicate any freight was damaged at the time they were loaded for shipment); Center v. Roadway Express, Inc., No. 06-11168DPW, 2008 WL 3824782, at *4 (D. Mass. Aug. 8, 2008) (finding that the plaintiff had presented sufficient evidence on the good condition element to survive summary judgment when the plaintiff presented testimony from a storage center manager that the machines at issue were in good working order before they were shipped). 13. In this case, Rush Industries has satisfied its burden of showing that the panel saw was delivered to MWP and Brann s in good condition. Specifically, Rush Industries video shows 21 the panel saw functioning just a few weeks before it was loaded and transported by MWP. When the video was made, the panel saw was able to load, stage, and cut boards without any observable difficulty. Additionally, the video shows that the panel saw s computer was able to accept data and calculate schematics, which produced boards cut to the desired specifications on inspection. MWP s own witness, Mr. Criner, confirmed that the video reflected that the panel saw was working and that any apparent abnormality on the saw s computer screen was simply an artifact of the video-recording process. 14. MWP argues that there is no proof that the panel saw was in good condition between the time the video was taken and when Defendants received it to load for shipment. But Defendants overlook the fact that MWP was performing service on the saw during that time, and MWP s managing member, Mr. King, conceded that normal company protocol called for someone to note on MWP s worksheets if there had been equipment being serviced; none was noted. a problem with any Thus, even though the panel saw was approximately thirteen years old, it was in good working condition before it was shipped to Americus. Center, 2008 WL 3824782, at *4 (finding no genuine issue of material fact when plaintiff presented testimony that machinery was in good condition before shipment even though it had been originally manufactured in the 1940s and had sat in a storage 22 facility, unused, for the eight years prior to shipment); Pharma Bio, Inc. v. TNT Holland Motor Express, Inc., 102 F.3d 914, 917 (7th Cir. 1996) (finding that standard was met when shipper could not present any direct evidence regarding the condition of the specific goods at issue, but did establish reasonable inferences drawn from testimony about general procedures used by the plaintiff in preparing goods for shipment). 15. The Straight Bill of Lading also confirms that the panel saw was in good condition when it was delivered to MWP. A statement in a bill of lading as to apparent good order will constitute prima facie evidence that, as to parts which were open to inspection at the time of transport, the goods were in good order at the point of origin. Accura Sys., Inc. v. Watkins Motor Lines, Inc., 98 F.3d 874, 878 (5th Cir. 1996). For parts of the goods that were not visible and open to inspection, a statement on the bill of lading that the goods were in apparent good order will constitute some evidence that the goods were in fact delivered to the carrier in good condition. Fire Ins. Co., 325 F.3d at 929. American Nat. Here, the Straight Bill of Lading noted that the panel saw was received in apparent good order and lacked any identification of any apparent defect or problem. evidence (MWP Ex. 12.) that the panel This further constitutes at least some saw was shipment. 23 in good condition prior to 16. Moreover, neither Defendant has offered any persuasive evidence that reliably even suggests that the panel saw was not in good condition. 17. As such, Rush Industries has satisfied the first element of a prima facie case under the Carmack Amendment. 2. 18. Arrival of the Goods in Damaged Condition The second element of a prima facie case under the Carmack Amendment is that the plaintiff must prove arrival of the goods in a damaged condition. Oak Hall Cap & Gown Co., Inc., 899 F.2d at 294. 19. arrived Both MWP and Brann s concede that when the panel saw in Georgia, visibly damaged. of its cable connectors were See Center, 2008 WL 3824782, at *4 (finding the damaged condition defendant conceded that stipulation ribbon This was corroborated by the testimony of Mr. Rush and Mr. King. that ten was the corroborated element was equipment by satisfied when the damaged, and this was testimony and photographs); Logistics Insight Corp. v. JDL Trucking, L.L.C., No. 04-40162, 2006 WL 374752, at *3 (E.D. Mich. Feb. 16, 2006) (finding that the damaged condition element was satisfied when there was testimony that the goods at issue were visibly broken). 20. Thus, facie case the under second the element Carmack of Amendment extent. 24 Rush is Industries satisfied to prima this 21. However, Rush Industries also claims damage to the complete panel saw on the grounds that the company has never been able to render it operational since it was delivered by Defendants. In support of this claim, Rush Industries notes that, upon arrival, the panel saw could not be operated because of the broken connectors. By the time ribbon cables were connected approximately one year later, in January 2008 (after MWP delivered connectors in December 2007 and new ribbon cables had been purchased), Rush Industries contends, it was unable to boot up and operate the saw s computer. he attempted to contact approximately According to Mr. Rush, three companies to investigate the problem, but they either declined to work on the saw or stated that they did not sell the equipment anymore. Rush also contacted an individual, Bob Bullin, to Mr. locate a start-up boot disk, but it was never sent by his contact in Germany. 2 Rush Industries employees also made some unspecified attempts to render the saw operational. As a result, because the company could not return the panel saw to an operational condition, Rush Industries contends, it is worthless. 22. The court finds that the evidence fails to demonstrate that the panel saw arrived in a damaged condition beyond the 2 Mr. Rush, on cross-examination, conceded that he cannot recall if he ever received a backup disk, stating that if I said that, I am repeating somebody else s words. 25 patent damage to the connectors. Whatever efforts were made to restart the panel saw, Mr. Rush, Plaintiff s only witness at trial, was not present for them and based his understanding on what others had told him. generally in dealing And while Mr. Rush had experience with the equipment in his company s facilities, he lacked any training, education, or experience in the operation of the panel saw, or any like it, and thus could not testify as to the nature of the saw s failure to start. This led Mr. Rush to admit on cross-examination that he had no evidence of any damage other than to the connectors: Q: Is there any other damage to the equipment other than to the plastic connector rings? A: I have no idea. I know it still doesn t work. * * * Q: Sitting here today, do you have any knowledge whatsoever about any damage to the equipment other than to the plastic connectors? A: No, I have no knowledge. The machine has never functioned. So for all I know, everything is set up right or set up wrong. I never verified after the fact. No. Moreover, the passage of time from the delivery of the panel saw to Rush Industries attempt to boot up its computer - almost a year - renders Plaintiff s claim that an unspecified latent damage existed at delivery even more remote and speculative. S.C. Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d 253, 260-61 (7th Cir. 1982) 26 (rejecting claim where two months passed from delivery and the witness was not qualified to determine whether the shipment was damaged). Plaintiff has failed to satisfactorily explain why, after such a long delay, the court should conclude that the damage nevertheless existed at the time of delivery. Based on the quality of the evidence and the credibility of the witnesses, the court finds that Rush Industries has not made a prima facie demonstration that its failure to render the panel saw operational represents damage that existed at the time of arrival. 3 23. Further, Rush Industries has failed to make a prima facie demonstration that the damaged connectors or any delay of MWP in providing replacements caused the saw not to operate. While proof of damage in most cases can generally be established by lay testimony by someone knowledgeable about the good and its failure (e.g., broken glass, spoiled produce, lost items, and here broken connectors), the problem becomes more difficult where some identify a technical latent knowledge damage, such of the as in good the regard to the panel saw and its computer. is necessary present case to with Here, Mr. Rush was simply not capable of testifying as to the nature of the saw s problem, if any, with any reliability to establish that it is in 3 This result would be the same even if, as Rush Industries contends, its state-law claims against MWP are not preempted by the Carmack Amendment. 27 fact damaged in its present condition or that it was damaged in any way beyond the damage to the connectors at the point of arrival. 4 24. recovery Accordingly, the damage to the panel saw for which will be allowed is the replacement of the broken connectors and ribbon cables. 3. 25. Damages The final element of a prima facie case under the Carmack Amendment is that the plaintiff must prove the amount of damages. 26. Oak Hall Cap & Gown Co., Inc., 899 F.2d at 294. The Carmack Amendment imposes liability on for the actual loss or injury to the property. § 14706(a)(1); 5K Logistics, Inc., 659 F.3d at carriers 49 U.S.C. 336. This language has been construed as adopting common law principles of damages. Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 277 (1st Cir. 2000). 27. Generally, the appropriate measure of damages when goods are damaged in transit is the difference in value between the goods as delivered and their value had they not been damaged, Jessica Howard Ltd. v. Norfolk S. R.R. Co., 316 F.3d 165, 168 69 (2nd Cir. 2003), or the repair costs occasioned by the harm, Camar Corp., 221 F.3d at 277. 4 Although fair market For these reasons, the court need not reach Defendants argument that Rush Industries failed to mitigate its damages. 28 value is generally used as the measure of damages, it is not the exclusive measure under the Carmack Amendment, Oak Hall Cap & Gown Co., 899 F.2d at 296, and a district court need not apply it over a more appropriate alternative. Brockway-Smith Co. v. Boston & Maine Corp., 497 F. Supp. 814, 820 (D. Mass. 1980) ( The general rule of market value less salvage, however, is not always the best measure of actual loss. ); see also Oak Hall Cap & Gown Co., 899 F.2d at 296. 28. A plaintiff must ordinarily accept the shipment from the carrier and then proceed to mitigate its losses, unless the goods are worthless (i.e., worthless for purpose or worth only their salvage value). their intended Paper Magic Group, Inc. v. J.B. Hunt Transport, Inc., 318 F.3d 458, 463 (3rd Cir. 2003); Oak Hall Cap and Gown Co., 899 F.2d at 294 95. A carrier s responsibility extends only to the full actual loss, damage, . . . caused by [it]. Missouri Pacific R.R., 377 U.S. at 137 (internal quotations removed). insurer of the goods it transports. It is not an absolute See Chicago & N.W. R. Co. v. Union Packing Co., 514 F.2d 30, 34 (8th Cir. 1975). 29. The only damage noted upon Rush Industries acceptance of the panel saw was the damage to the ribbon cable connectors. There is rendered delivery. no the evidence panel that saw this totally damage, in worthless and at of the itself, time of Cf. Oak Hall Cap and Gown Co., 899 F.2d at 294 95 29 (finding that gowns shipped in interstate commerce were totally worthless when there was testimony from someone in the industry establishing that the goods, as damaged at the point of arrival, could not be sold in either a primary or secondary market, even with repairs). 30. Rush Industries argues that the saw s failure to start over a year after delivery was a reasonable consequence of the broken connectors and that the cost of a new replacement saw should be awarded because no other used saw could be found. Defendants contend connectors, only that the because cost of the MWP provided ribbon replacement cables should be awarded. 31. The court has already determined that Rush Industries has failed to demonstrate that the panel saw fails to operate as a result of any damage to the connectors. Industries intends this argument to To the extent Rush support a claim for consequential damages (which ordinarily relates to damages apart from those to the goods), however, it fails. Even if the court were to credit Mr. Rush s testimony that the one-year delay in connecting the panel saw s ribbon cables depleted the computer s backup battery and caused the computer s memory to be erased, there is no evidence that such damage was reasonably foreseeable at the time of contracting. See Air Prod. & Chems., Inc. v. Ill. Cent. Gulf R.R. Co., 721 F.2d 483, 485, 488 (5th Cir. 1983) 30 (noting that to recover consequential damages, the carrier must have notice special or knowledge circumstances at from the time which of such contracting damage would of the flow); Marquette Cement Mfg. Co. v. Louisville & Nashville R.R. Co., 281 F. Supp. 944, 948 (D. Tenn. 1967) (noting that the Carmack Amendment did not alter that common law knowledge at the time of contracting is a prerequisite for recovery of consequential damages). 32. An award of the cost of a new panel saw on this record, moreover, would result in an enormous windfall and be inappropriate. First, Rush Industries has failed to demonstrate that the panel saw is totally worthless, i.e., damaged beyond the broken connectors and ribbon cables. Second, the panel saw and all its components were beyond their useful life. servicing uncertain. and repairs, the saw s remaining life Even with was at best The award of a new machine valued at twenty or more times the cost of the $14,300.00 panel saw, even if it had been shown to be unrepairable, would be unreasonable. See Houmani v. Roadway Exp., Inc., No. 3:07CV1552, 2008 WL 731497, at *1 (N.D. Ohio Mar. 17, 2008) (noting that the owner of damaged goods is not entitled to a windfall); Camar Corp., 221 F.3d at 279 (requiring that any award of damages have a rational basis in the evidence). 31 33. Rush Industries also argues that it suffered nominal damages for MWP s failure to deliver the duct work Mr. Rush negotiated to be included in the sale of the saw. However, Mr. Rush testified at trial that while he mentioned the duct work to MWP s representatives at the December 5, 2006 meeting at the DScan facility, he realized that MWP s proposal (MWP Ex. failed to include the duct work in the items to be shipped. 9) Mr. Rush further conceded that he realized that the Agreement he executed (Pltf. Ex. 9) only listed the panel saw to be shipped, which he conceded failed to include the duct work. This is consistent with the Agreement, which covers all items in the following lot numbers specifically described in the Industrial Recovery [Services] auction listings: Panel Saw. (MWP Ex. 9.) The Industrial Recovery Services auction listing (Pltf. Ex. 1) does not include the duct work, tools, or parts. Therefore, while Mr. Rush discussed the duct work with MWP representatives, he failed to ensure it was included in the Agreement for shipment, and MWP is not liable for failing to deliver it. 34. Plaintiff s recovery will be confined to the damage to the ribbon cables and connectors noted at the point of delivery. No evidence was presented regarding the market value of the saw at the time of delivery and, even if it had been provided, the cost of Houmani, repair 2008 is WL still 731497, the at best *1 32 measure (stating of damages. that a See shipper s compensation cannot actual to loss exceed the more cargo). than Rush his injury, Industries i.e., indicated the it incurred $118.23 to replace ribbon cables deemed necessary in order to reattach the connectors. As such, the only damages award that the court finds has a reliable basis in the evidence is $118.23. C. MWP s Defense under the Burden Shifting Framework 35. Because Rush Industries has established a prima facie case under the Carmack Amendment, the burden shifts to MWP and Brann s to show that they were not negligent and that the damage to the panel saw was caused by one of the following: (1) an act of God; (2) himself; or the (4) public the enemy; inherent (3) vice the or act nature of the of shipper the goods. Missouri Pac. R.R., 377 U.S. at 137 38. 36. In this case, MWP has argued that the inherent vice or nature of the goods defense applies because the panel saw was past its useful life at the time that it was transported. Specifically, nature of component MWP old - and that contends used it that it equipment might not is the inherent especially operate the after vice or computer disassembly, shipment, and re-assembly. 37. However, MWP s argument was tailored to respond to Plaintiff s claim for damages to replace the panel saw, not to the damage of the connectors and ribbon cables. 33 Defendants have tendered no argument that they were not negligent in causing the damage to the connectors and ribbon cables. the court connectors, has limited it need damages not to consider the Therefore, because ribbon Defendants cables and inherent vice Defendants have argument. 38. Consequently, the court finds that failed to demonstrate any of their affirmative defenses, and Rush Industries is entitled to recover $118.23. D. Brann s Notice Defense 39. Brann s asserts that it is not liable to Rush Industries or MWP (by way of cross-claim) 5 for any damage to the panel saw during shipment because it was not timely notified of a claim pursuant to the terms of the Uniform Bill of Lading, 49 C.F.R. pt. 1035, App. B § 2(b). 40. Brann s Straight Bill of Lading incorporates the terms of the Uniform Bill of Lading, 49 C.F.R. pt. 1035, App. B. Ex. 12.) (MWP Pursuant to § 2(b) of the Uniform Bill of Lading, [a]s a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, 5 within nine months after MWP and Brann s have cross-claimed against each other for any damages awarded to Rush Industries. (See Doc. 7 (Brann s Eighth Affirmative Defense) and Doc. 8 (MWP s Fifteenth Affirmative Defense and Crossclaim).) 34 delivery of the property. 49 C.F.R. pt. 1035, App. B § 2(b). The primary purpose of this pre-suit claim requirement is to provide the carrier investigation. Norfolk S. Ry. notice so it may conduct an independent Siemens Power Transmission & Distrib., Inc. v. Co., 420 F.3d 1243, 1251 (11th Cir. 2005). Section 2(b) s notice provision is a mandatory requirement, and a failure to comply with it will bar recovery. Miracle of Life, L.L.C. v. N. Am. Van Lines, Inc., 444 F. Supp. 2d 478, 483 (D.S.C. 2006) (gathering authority). 41. Pursuant to 49 C.F.R. § 1035.1(a), only rail carriers and water carriers are obliged to use the terms of the Uniform Bill of Lading. Motor carriers, like MWP and Brann s, are not bound by the provisions of the Uniform Bill of Lading unless they choose to be. See C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 478 (9th Cir. 2000) (noting that motor carriers, unlike rail and water carriers, are not required to use the Uniform Bill of Lading, but the terms may nevertheless be incorporated if the carrier so chooses). 42. In this case, Rush Industries contracted with MWP to service and ship the panel saw, and MWP in turn contracted its shipment obligation to Brann s. In agreeing to ship the saw, Brann s issued a Straight Bill of Lading to MWP incorporating, for its protection, the pre-filing notice requirement contained 35 in the Uniform Bill of Lading. As between MWP and Brann s, therefore, the notice provision applies. 43. Keith Brann, Brann s president, testified that he was unaware that any damage had occurred to Rush Industries panel saw until he was notified on January Industries had filed a lawsuit. 25, 2008, that Rush This was over a year after Brann s delivered the panel saw to the Americus facility, yet MWP had not submitted a written claim to Brann s during this time. the Further, MWP was aware of the damage to the panel saw at time of delivery against Brann s. and should have filed a written claim Because no such claim was filed, MWP is barred from recovering indemnity from Brann s. Ryder Truck Lines v. Consolidated Rail Corp., 580 F. Supp. 22, 23 (N.D. Ill. 1984) (illustrating that the notice provision applies in indemnity actions between carriers); see also S & H Hardware & Supply Co. v. Yellow Transp., Inc., No. 02-CV-9055, 2004 WL 1551730, at *2 (E.D. Pa. July 8, 2004) (noting that when a straight bill of lading incorporated the terms of the Uniform Bill of Lading, the filing of a written claim in the nine-month time period is a strict condition precedent to the filing of a lawsuit ). 44. As to Rush Industries claim, directed the court to a case on point. neither party has In Norfolk Southern Railway Co. v. Kirby, however, the Supreme Court stated that [w]hen an intermediary contracts with a carrier to transport 36 goods, the cargo owner s recovery against the carrier is limited by the liability carrier agreed. limitation to which the intermediary and 543 U.S. 14, 17 (2004); see also Great N. Ry. Co. v. O Connor, 232 U.S. 508, 514 (finding that a cargo owner was limited by terms agreed to between an intermediary and a carrier because the carrier is entitled to assume that the intermediary had authority to agree upon the terms of shipment); Werner Enters., Inc. v. Westwind Mar. Int l, Inc., 554 F.3d 1319, 1324 (11th Cir. 2009) (noting that Kirby is not limited to maritime law and applying it to a Carmack Amendment claim). 45. Here, Brann s agreed to transport the panel subject to the notice requirement it negotiated with MWP. saw Thus, Brann s was entitled to both rely on that requirement and to assume that shipment. MWP could agree upon Rush Industries terms of Rush Industries is therefore barred from recovery against Brann s because it did not provide any written notice to Brann s within nine months of delivery. 6 E. 46. for MWP s Counterclaim Against Rush Industries MWP the has value also of counterclaimed work performed against Rush Industries under the Agreement. Specifically, MWP claims that Rush Industries never paid (1) the 6 As noted by the Supreme Court, this result is not inequitable because Rush Industries can still recover against MWP, the party with which it initially contracted. See Great N. Ry. Co., 232 U.S. at 514 15. 37 $4,000 balance for shipping the panel saw to Americus and (2) $2,388.59 in pre-shipment repairs to the saw while it was in the D-Scan facility in South Boston (the cost of the repairs was invoiced January 8, 2007). 47. The Agreement between MWP and Rush Industries provided that MWP would disassemble, package, stage and load trucks for the panel saw s (Pltf. Ex. 9.) shipment to Americus at a cost of $4,000. The Agreement also provided that [s]hipping coordinated by MWP will be at $1,300.00 per load estimated at 1 load. one (Id.) load, $1,300. it Even though MWP estimated that it would take only actually took two loads, yet MWP only charged Finally, MWP agreed to unload and assemble the panel saw in Americus for a cost of $4,000. (Id.) Thus, the entire contract cost for disassembling, packing, shipping, unloading, and assembling the panel saw in Americus was $9,300. 48. Further, the Agreement also proposed that mechanical services related to the repair of the saw would be a $35.00/man hour. (Id.) Boston, MWP Before the saw left the D-Scan facility in South made repairs that including replacing carriage $2,388.59. (MWP 11.) Ex. Rush bearings When Industries and considered gears, with requested, totaling the above charges, therefore, the total amount Rush Industries incurred under the Agreement is $11,688.59. 38 49. To date, Rush Industries has only paid $5,300 under the Agreement. (MWP Ex. 10.) Thus, Rush Industries is liable to MWP for $6,388.59 for the unpaid portion of its obligations under the Agreement. The damage to the ribbon cable connectors does not excuse Rush Industries from performing its obligations under the Agreement with MWP. Am. Nat. Fire Ins. Co., 325 F.3d at 932 (shipper accepting damaged goods still obligated to pay freight to carrier). F. Brann s Cross-Claim Against MWP 50. Brann s has also filed a cross-claim against MWP for indemnity. indemnity Because the court has found that MWP cannot seek from Brann s for failure to have provided proper notice, this claim is now moot. 7 7 In the alternative, the court finds that Brann s would be entitled to indemnity from MWP based on the facts. While the Carmack Amendment imposes special rules regarding a carrier s liability to a shipper of goods, ordinary rules of negligence are used to determine which of two carriers is liable for damage that occurred during shipment. Am. Foreign Ins. Ass n v. Seatrain Lines of Puerto Rico, Inc., 689 F.2d 295, 299 (1st Cir. 1982); Gordon H. Mooney, Ltd. v. Farrell Lines, Inc., 616 F.2d 619, 625 (2d Cir. 1980). A carrier is thus liable for damage caused by its breach of duty to use reasonable care in the transportation of the goods. Am. Foreign Ins. Ass n, 689 F.2d at 299. Here, the evidence established that the damage to the connectors was most likely caused by a failure to have covered the load with a tarp. The decision whether to tarp the load rested with MWP, which was also responsible under the Agreement for loading the saw. And Brann s (with whom MWP has done much business in the past), had a known policy that it charged extra for that service. Yet MWP failed to order a tarp for the shipment. As such, MWP s negligence resulted in the damage to the panel saw s connectors, and MWP is responsible for it. 39 G. Prejudgment Interest 51. Rush Industries and MWP both seek prejudgment interest on their awards. The basic purpose of prejudgment interest is to place the parties in the position they would have been in had they been paid immediately. 935. Am. Nat. Fire Ins. Co., 325 F.3d at Ordinarily, interest accrues as of the date of the loss. Id. 52. Here, Rush Industries loss occurred on January 8, 2007, when the panel saw was delivered in a damaged condition. Interest will accrue at the federal legal rate under 28 U.S.C. § 1961 from that date. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 314 F. Supp. 2d 201, 204 (S.D.N.Y. 2003) (finding prejudgment that, interest in a was case under the appropriately Carmack calculated Amendment, using the federal interest rate); 28 U.S.C. § 1961. 53. MWP s interest is not so simply determined. MWP invoiced Rush Industries on January 8, 2007 for installation of the panel saw. only However, the Agreement provides that payment for [r]epairs, shipment; [l]oading otherwise, installation. the and balance (Pltf. Ex. 9.) [s]hipping is due is upon due prior to completion of The installation of the panel saw was substantially completed, but for the broken connectors, by January 10, 2007. Thus, prejudgment interest on the unpaid 40 $4,000.00 shall run as of that date. Such prejudgment interest will be at 8% pursuant to N.C. Gen. Stat. § 24-1. 54. the MWP s other basis for recovery is the $2,338.59 for service to the saw prior to shipment. MWP created an invoice for this work by January 8, 2007, but Mr. King never sent it after delivery of the panel saw because of the ongoing effort to repair the broken connectors. for assessing payment. prejudgment interest As such, the best date is the date MWP sought On this record, that first occurred when MWP filed its counterclaim Therefore, against Rush prejudgment Industries interest accrue on at November the 10, North 2008. Carolina legal rate of 8% as of November 10, 2008. III. CONCLUSION For the reasons set forth herein, the court concludes that Rush Industries has established a prima facie case under the Carmack Amendment and is entitled to recover damages of $118.23 from MWP. recover $6,388.59 Agreement. or MWP has also established that it is entitled to from Rush Industries for breach of the Further, Brann s has no liability to Rush Industries MWP, because neither provided timely written notice of a claim. IT IS THEREFORE ORDERED as follows: Rush Industries shall have and recover $118.23 from Defendant MWP, with prejudgment interest at the legal federal 41 rate from January 8, 2007; MWP shall have and recover $6,388.59 from Rush Industries under the Agreement, with prejudgment interest at the North Carolina legal rate of 8% accruing from January 10, 2007, on $4,000 of that amount, and prejudgment interest at the North Carolina legal rate of 8% accruing from November 10, 2008, on the remaining $2,338.59; Brann s shall have no liability to Rush Industries or MWP in connection with the delivery of the panel saw. A separate Judgment will issue. /s/ Thomas D. Schroeder United States District Judge November 30, 2012 42
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