United States District Court, E.D. Wisconsin
ALLIANZ GLOBAL RISKS U.S. INSURANCE COMPANY and NFI INDUSTRIES, Inc., Plaintiffs,
KUTZLER EXPRESS, Inc., Defendant.
DECISION AND ORDER
RUDOLPH T. RANDA, U.S. DISTRICT JUDGE
February 2013, Target hired NFI Industries, Inc. to arrange
for the delivery of twenty-six (26) lots of pre-paid cellular
phones to various Target locations across the country. NFI
contracted with Kutzler Express, Inc. for delivery from
Louisville, Kentucky to Elwood, Illinois. The phones were
stolen while the driver stopped at a truck stop in Memphis,
Indiana. NFI and its insurer, Allianz Global Risks U.S.
Insurance Company, sued Kuntzler for the value of the stolen
phones - $212, 861.55 - under the Carmack Amendment. 49
U.S.C. § 14706(a)(1). NFI and Allianz now move for
summary judgment. This motion is denied.
judgment should be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material fact” is one
identified by the substantive law as affecting the outcome of
the suit. Bunn v. Khoury Enters., Inc., 753 F.3d
676, 681 (7th Cir. 2014) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A “genuine
issue” exists with respect to any such material fact
when “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
at 681-82. Thus, Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
purpose of the Carmack Amendment is to “establish
uniform federal guidelines designed in part to remove the
uncertainty surrounding a carrier’s liability when
damage occurs to a shipper’s interstate
shipment.” Hughes v. United Van Lines, Inc.,
829 F.2d 1407, 1415 (7th Cir. 1987). It is undisputed that
the plaintiffs’ claim satisfies the prima
facie elements for liability under the Carmack
Amendment. See Allied Tube & Conduit Corp. v. S.
Pacific Transp. Co., 211 F.3d 367, 370-71 (7th Cir.
2000) (listing elements of claim). The Amendment applies in
the case of third-party theft. See UPS Supply Chain
Solutions, Inc. v. Megatrux Transp., Inc., 750 F.3d 1282
(11th Cir. 2014); Korer v. Danita Corp., 584
F.Supp.2d 1103, 1104 (N.D. Ill. 2008).
issue is whether Kutzler took the appropriate steps to limit
its liability under the Carmack Amendment. Those steps are:
(1) obtain the shipper’s agreement as to a choice of
liability; (2) give the shipper a reasonable opportunity to
choose between two or more levels of liability; and (3) issue
a receipt or bill of lading prior to moving the shipment.
Nipponkoa Ins. Co., Ltd. v. Atlas Van Lines, Inc.,
687 F.3d 780, 782 (7th Cir. 2012).
the bills of lading in this case were issued by NFI, not
Kutzler. The Master Bill of Lading references National Motor
Freight Traffic Association Classification (“NMFC)
class number 62820-1. This classification limits liability to
$3.00 per pound, equal to $15, 678.00 in the instant case. As
one court explained, the “various requirements imposed
upon a carrier who drafts the contract seeking to
limit its own liability” were “intended to
protect shippers from carriers who would take advantage of
their own superior knowledge and leverage when dealing with
unwary shippers.” Siren, Inc. v. Estes Express
Lines, 249 F.3d 1268, 1271 (11th Cir. 2001) (emphasis
added). But when, as here, the shipper drafts the
bill of lading, it is not “proper or necessary to
protect [the shipper] from [itself].” Id.;
see also Exel, Inc. v. So. Refrigerated Transport,
Inc., 807 F.3d 140, 153 (6th Cir. 2014) (“the fact
that the shipper drafted the bills of lading is relevant in
ascertaining whether the shipper was offered, and agreed to,
a limitation of liability by the carrier”).
argue that the NMFC reference is irrelevant because neither
NFI nor Kutzler are NMFC members. The NMFC Handbook provides
that “[o]nly participants in the NMFC at the time the
transportation occurs may use the provisions herein.”
Unauthorized use of an NMFC classification is not the
Court’s concern. The only inquiry for the Court is
whether NFI was offered, and agreed to, a limitation of
liability by Kutzler. NFI’s own issuance of a bill of
lading using the above-noted NMFC classification creates an
issue fact in that regard, precluding the entry of judgment
in favor of the plaintiffs.
THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Plaintiffs’ motion for summary judgment [ECF No. 16] is
Kutzler’s motion to deny plaintiffs’ motion for
summary judgment [ECF No. 17] is GRANTED.
 Historically, courts also required
carriers to maintain a tariff within the prescribed
guidelines of the Interstate Commerce Commission, but that
requirement was eliminated in the mid-1990’s.
Nipponkoa, 687 F.3d at 782; UPS Supply
Chain, 750 F.3d at 1286, n.3 (“Instead, carriers
are now required to provide shippers on request with a
written or electronic copy of the rates, classifications,