Moving Misery: Can I sue my moving company for damages?
Moving Misery:
Can I sue my moving company for damages?
By: Trey Van Dyke (3L)
June 28, 2022
Understanding this area of the law must begin, unexpectedly, at the source of our legal system in general: the U.S. Constitution. The commerce clause of the U.S. Constitution delegates to Congress the power to regulate matters involving domestic and international commerce and trade. Section 8 of Article I of the Constitution states:
“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”
History
The Interstate Commerce Commission was established by the Interstate Commerce Act of 1887, which was signed into law by President Grover Cleveland. The creation of the commission was the result of a widespread and longstanding anti-railroad movement. Western farmers were the dominant force behind the unrest, but Westerners in general – especially those in rural areas – believed that the railroads possessed too much economic power that they abused. A central issue was rate discrimination between similar communities, but another potent issue was attempts by railroads to obtain influence over city and state governments by granting free transportation in the form of yearly passes to elected officials, newspaper editors, ministers, etc.
In 1906, Congress amended the Interstate Commerce Act by passing the Hepburn Act. The portions of the Hepburn Act dealing with interstate carrier liability, commonly known as the Carmack Amendment, were originally codified at 49 U.S.C. § 20(11). The Carmack Amendment was later extended to motor carriers by the Motor Carrier Act of 1935. The Carmack Amendment was recodified in 1978 (49 U.S.C. §§ 10730 and 11707) and again in 1996. The Carmack Amendment is now found at 49 U.S.C. § 14706.
What is so important about this Carmack Amendment?
The Carmack Amendment preempts all state and common law claims and provides the sole and exclusive remedy to shippers for loss or damage in interstate transit. The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict. This means that even if you have strong evidence that the moving company knowingly stole your property (which is known as conversion in civil law), that claim would be preempted by the Carmack Amendment.
Among the state law and common law causes of action that are completely preempted by the Carmack Amendment are: negligence, breach of contract, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, negligent infliction of emotional distress, intentional infliction of emotional distress, outrage, fraud, interference with economic advantage, and various state consumer protection laws. However, the law varies by jurisdiction regarding what types of claims are considered preempted, so you should hire an attorney to research the facts of your case in your jurisdiction.
The Carmack Amendment also prohibits moving companies (in most cases) from contracting or otherwise creating a time period shorter than 9 months to file a claim with them and their insurance carrier, or less than two years to file a lawsuit.
It is important to follow the procedures that the moving company outlines for submitting a claim, before filing a lawsuit for damages. If, however, the claim is denied or an amount significantly less than the value of the damaged goods is offered, a lawsuit may be the next option.
A case for damages is established under the Carmack Amendment upon proof by a preponderance of the evidence that (1) the consumer delivered the goods to the moving company in good condition, (2) the goods arrived at the destination in damaged condition, and (3) a specified amount of damages resulted. A.I.G. Uruguay Compania de Seguros v. AAA Cooper Transportation, 334 F.3d 997 (11th Cir. 2003).
However, the Carmack Amendment allows a moving company to limit its liability. To do so, a moving company must (1) at the consumer’s request, provide a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the consumer and the moving company, is based; (2) obtain the consumer’s agreement as to choice of liability; (3) give the consumer a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment. Because the rates are usually well established, and bill of ladings are almost habitually issued with moving companies; most lawsuits come down to #2 and #3: did the moving company offer the consumer a reasonable opportunity to choose and agree to limit the moving company’s liability. A reasonable opportunity to choose between different levels of coverage means that the consumer had both reasonable notice of the liability limitation and the opportunity to obtain information necessary to making a deliberate and well-informed choice. The agreement must evidence an absolute, deliberate, and well-informed choice by the consumer. Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 610 (9th Cir. 1992).
Reasonable opportunity is a very nuanced phrase, and thus the facts of the particular situation and how those facts match up to holdings on similar cases establishes what that means. A few examples of holdings that courts have found include not providing a required information pamphlet was not providing reasonable notice; not allowing a consumer to initial one of two or more options for replacement rates was not providing a reasonable opportunity to choose; and a consumer who initialed but did not read an option for a lower replacement value was found to have been given a reasonable opportunity.
Should you sue your moving company? As is often the infamous attorney answer: it depends. One thing is certain however, the Carmack Amendment has been well established by a history of court precedence to be the ruling authority on any interstate shipping claims.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
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Moving Misery:
Can I sue my moving company for damages?
By: Trey Van Dyke (3L)
June 28, 2022
Understanding this area of the law must begin, unexpectedly, at the source of our legal system in general: the U.S. Constitution. The commerce clause of the U.S. Constitution delegates to Congress the power to regulate matters involving domestic and international commerce and trade. Section 8 of Article I of the Constitution states:
“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”
History
The Interstate Commerce Commission was established by the Interstate Commerce Act of 1887, which was signed into law by President Grover Cleveland. The creation of the commission was the result of a widespread and longstanding anti-railroad movement. Western farmers were the dominant force behind the unrest, but Westerners in general – especially those in rural areas – believed that the railroads possessed too much economic power that they abused. A central issue was rate discrimination between similar communities, but another potent issue was attempts by railroads to obtain influence over city and state governments by granting free transportation in the form of yearly passes to elected officials, newspaper editors, ministers, etc.
In 1906, Congress amended the Interstate Commerce Act by passing the Hepburn Act. The portions of the Hepburn Act dealing with interstate carrier liability, commonly known as the Carmack Amendment, were originally codified at 49 U.S.C. § 20(11). The Carmack Amendment was later extended to motor carriers by the Motor Carrier Act of 1935. The Carmack Amendment was recodified in 1978 (49 U.S.C. §§ 10730 and 11707) and again in 1996. The Carmack Amendment is now found at 49 U.S.C. § 14706.
What is so important about this Carmack Amendment?
The Carmack Amendment preempts all state and common law claims and provides the sole and exclusive remedy to shippers for loss or damage in interstate transit. The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict. This means that even if you have strong evidence that the moving company knowingly stole your property (which is known as conversion in civil law), that claim would be preempted by the Carmack Amendment.
Among the state law and common law causes of action that are completely preempted by the Carmack Amendment are: negligence, breach of contract, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, negligent infliction of emotional distress, intentional infliction of emotional distress, outrage, fraud, interference with economic advantage, and various state consumer protection laws. However, the law varies by jurisdiction regarding what types of claims are considered preempted, so you should hire an attorney to research the facts of your case in your jurisdiction.
The Carmack Amendment also prohibits moving companies (in most cases) from contracting or otherwise creating a time period shorter than 9 months to file a claim with them and their insurance carrier, or less than two years to file a lawsuit.
It is important to follow the procedures that the moving company outlines for submitting a claim, before filing a lawsuit for damages. If, however, the claim is denied or an amount significantly less than the value of the damaged goods is offered, a lawsuit may be the next option.
A case for damages is established under the Carmack Amendment upon proof by a preponderance of the evidence that (1) the consumer delivered the goods to the moving company in good condition, (2) the goods arrived at the destination in damaged condition, and (3) a specified amount of damages resulted. A.I.G. Uruguay Compania de Seguros v. AAA Cooper Transportation, 334 F.3d 997 (11th Cir. 2003).
However, the Carmack Amendment allows a moving company to limit its liability. To do so, a moving company must (1) at the consumer’s request, provide a written or electronic copy of the rate, classification, rules, and practices upon which any rate applicable to a shipment, or agreed to between the consumer and the moving company, is based; (2) obtain the consumer’s agreement as to choice of liability; (3) give the consumer a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment. Because the rates are usually well established, and bill of ladings are almost habitually issued with moving companies; most lawsuits come down to #2 and #3: did the moving company offer the consumer a reasonable opportunity to choose and agree to limit the moving company’s liability. A reasonable opportunity to choose between different levels of coverage means that the consumer had both reasonable notice of the liability limitation and the opportunity to obtain information necessary to making a deliberate and well-informed choice. The agreement must evidence an absolute, deliberate, and well-informed choice by the consumer. Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 610 (9th Cir. 1992).
Reasonable opportunity is a very nuanced phrase, and thus the facts of the particular situation and how those facts match up to holdings on similar cases establishes what that means. A few examples of holdings that courts have found include not providing a required information pamphlet was not providing reasonable notice; not allowing a consumer to initial one of two or more options for replacement rates was not providing a reasonable opportunity to choose; and a consumer who initialed but did not read an option for a lower replacement value was found to have been given a reasonable opportunity.
Should you sue your moving company? As is often the infamous attorney answer: it depends. One thing is certain however, the Carmack Amendment has been well established by a history of court precedence to be the ruling authority on any interstate shipping claims.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
Recent and Popular Articles From Our Blog:
2020 Blogs:
- April 28 – A New Reality – Temporary or Permanent – Virtual Showings and Disclosures
- May 22 – Servant Leadership
- June 8 – Paycheck Protection Program Flexibility Act is Enacted
- June 10 – Impact to Credit Score After Filing Chapter 7 Bankruptcy
- June 26 – SBA Rolls Out Updated PPP Loan Forgiveness Application
- July 2 – Understanding the Home Equity Sales Contract Act 2020
- July 14 – Governor Rolls Back Re-Opening
- August 4 – August 2020 COVID-19 Update
- August 18 – Status Of Selected California State Operations re: COVID-19
- September 1 – COVID Update on Foreclosures and Evictions
- September 3 – State Passes AB 3088
- September 15 – Update on PPP Forgiveness and Impacts
- November 10 – Changes to the Fair Housing and Discrimination Advisory CAR Form
- November 24 – In a Season of Difficulty – We Choose Gratitude
- December 15 – Cal/OSHA Issues New COVID Prevention Rule
2021 Blogs:
- January 5 – Introduction to New Laws 2021
- January 26 – Rain and the Prevalence of Failure to Disclose Claims
- February 2 – California Enacts COVID Tenant Relief Act (SB 91)
- March 9 – Understanding the Trust Exception to Real Estate Disclosures
- April 20 – Cash for Keys and SB 91
- May 4 – Help! Tenant Won’t Cooperate with Sale of Home
- May 11 – California Passes AB 80
- June 15 – Pinhole Leaks in Copper Pipes in Folsom