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BURNELL v. BUTLER MOVING & STORAGE

July 17, 1993

ANN G. BURNELL, Plaintiff,
v.
BUTLER MOVING & STORAGE, MOLLEN TRANSFER & STORAGE, WILLIAM PULASKI, and ROADWAY EXPRESS, INC., Defendants.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 Chief U.S. District Judge

 MEMORANDUM-DECISION & ORDER

 This action was originally filed in state court and then removed to this court by defendant Roadway Express, Inc. (Roadway). Plaintiff Ann G. Burnell alleges that in August, 1991 she contracted with defendant William Pulaski, as president of defendant Butler Moving & Storage and Mollen Transfer & Storage (Butler and Mollen), for the transportation of her goods from Endicott, New York to San Diego, California. The complaint further alleges that the goods were accepted and received by Butler; and that on or about August 29, 1991 the goods were delivered in a damaged condition by Roadway.

 On May 28, 1993 the court heard oral argument on plaintiff's motion for summary judgment and defendant Roadway's motion for partial summary judgment limiting its liability to $ 100.00. After considering the arguments of the parties, the court rendered an oral decision denying both plaintiff's and Roadway's motion based upon the existence of genuine issues of material fact. On June 15, 1993 an order was entered denying the two motions. Subsequently, on June 18, 1993 defendant Roadway applied for an order to show cause for reargument of the court's May 28, 1993 oral decision. In an order dated June 22, 1993, the court granted this application and set July 9, 1993 as the return date for Roadway's motion for reargument. Then, on July 6, 1993 plaintiff filed her opposition to Roadway's motion. This Memorandum-Decision & Order constitutes the court's ruling on Roadway's motion for reconsideration.

 Facts:

 Sometime in August, 1991 plaintiff contracted with defendant William Pulaski, as president of defendant Butler/Mollen, for the transportation of certain household goods from Endicott, New York to San Diego, California. On or about August 21, 1991 Mollen, as forwarder, delivered 13 closed and sealed cartons to Roadway, as carrier, for shipment to plaintiff at her daughter's residence in San Diego, California. Neither party disputes the fact that Roadway was not a party to any contract or arrangement between plaintiff and either Mollen or Butler.

 Upon receipt of the cartons, Roadway issued its bill of lading which identified Mollen as the shipper and plaintiff as the consignee. A copy of the bill of lading is attached as Exhibit C to the affidavit of Kathy Jones, Claims Analyst-Legal for Roadway, submitted in support of the motion for partial summary judgment. The bill of lading described the goods as "Household Goods at $ .10/lb". In the column labelled "Class", C100 was listed, and the weight of the goods was listed as 1000 pounds. The bill of lading further provided that the goods were "received, subject to the classifications and lawfully filed tariffs in effect on the date of the issue of this Bill of Lading . . ." Finally, the bill of lading provided:

 
NOTE - When the rate is dependent 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

 This item on the bill of lading was left blank.

 
"When tariff provisions provide for alternative actual value or released value declarations by the consignor at time of shipment and carrier receives the shipment without such declaration, the shipment will be rated at the lowest released value or highest actual value, ...

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