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ELROY ENTERPRISES, INC. v. ROADWAY EXP.

August 22, 1990

ELROY ENTERPRISES, INC., PLAINTIFF,
v.
ROADWAY EXPRESS, INC., DEFENDANT.



The opinion of the court was delivered by: Mishler, District Judge.

MEMORANDUM OF DECISION AND ORDER

Defendant moves for summary judgment, dismissing the complaint. Plaintiff opposes the motion.

BACKGROUND

The following facts are undisputed or conceded:

Plaintiff, Elroy Enterprises, Inc. ("Elroy"), is a New York corporation. Defendant, Roadway Express, Inc. ("Roadway"), is an interstate motor carrier engaged in the business of transporting goods.

In May 1987, Elroy and Roadway entered into an agreement whereby Roadway was to ship cartons containing records and tapes from Port Washington, New York, to WEA Central Returns ("WEA") in Bensonville, Illinois. The two shipments were delivered to WEA on May 12 and 21, 1987. WEA executed delivery receipts, noting that the shipments were "received subject to count and examination." (Roadway's 3(g) statement, Exhs. C and D).

On or about August 6, 1987, WEA advised Elroy that some cartons had been lost and that Elroy should file a notice of claim with Roadway. According to Elroy, WEA also stated that it had notified Roadway of the missing cartons. (Elroy's 3(g) statement, ¶ 4). However, appended to Elroy's 3(g) statement as Exhibit A is a notice from WEA which states that, in May 1987, its Bensonville office notified Elroy (not Roadway) of the shortage.

The Uniform Straight Bill of Lading ("bill of lading"), which evidences the agreement between Elroy and Roadway, contains the following provision, prescribed and approved by the Interstate Commerce Commission ("ICC"):

  As 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, within nine
  months after delivery of the property . . . or,
  in the case of failure to make delivery, then
  within nine months after a reasonable time for
  delivery has elapsed; and suit shall be
  instituted against any carrier only within two
  years and one day from the day when notice in
  writing is given by the carrier to the claimant
  that the carrier has disallowed the claim or any
  part or parts thereof specified in the notice.
  Where claims are not filed or suits are not
  instituted thereon in accordance with the
  foregoing provisions, no carrier hereunder shall
  be liable, and such claims will not be paid.

Uniform Straight Bill of Lading, Terms and Conditions, Section 2B. See Russell Aff., Exh. A (copy of Section 2B appended).

Kenneth Cocharine, accounts payable clerk for Elroy, states that he mailed a copy of Elroy's notice of claim to Roadway on or about January 26, 1988. Each time Roadway receives a notice of claim, it must register the claim in its records and acknowledge receipt of the notice, in writing, to the claimant. This procedure is mandated by 49 C.F.R. § 1005.3.*fn1 See also Smith Aff. ¶ 10 and Exh. H. Roadway's records reveal that it received a written claim from Elroy on April 18, 1988. This claim had been mailed to them on April 11, 1988, by Margie Russell, a sales representative in Roadway's Deer Park, New York, office. Russell received the written claim on April 6, 1988, when it was hand-delivered to her at Elroy's Port Washington office. Roadway's records therefore state that the notice of claim was filed on April 6, 1988.

On August 23, 1988, Roadway disallowed Elroy's claim on the ground that it was not timely filed.

Elroy commenced this action in the Supreme Court of New York, Nassau County, on January 3, 1990. Roadway removed the action to this court on January 16, 1990. Roadway moves for summary judgment on the ground that Elroy failed ...


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