UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1893
No. 94-1895
DORIS FREDETTE and PAUL FREDETTE,
Plaintiffs, Appellees,
v.
ALLIED VAN LINES, INC., and TRANSIT HOMES OF AMERICA, INC.,
Defendants, Appellants.
No. 94-1894
DORIS FREDETTE and PAUL FREDETTE,
Plaintiffs, Appellants,
v.
ALLIED VAN LINES, INC., MULLEN BROS., INC. of NORTH ADAMS,
and TRANSIT HOMES OF AMERICA, INC.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Joseph B. Bertrand with whom Marie G. Leary and Martin Magnuson
McCarthy & Kenney were on briefs for defendant Allied Van Lines, Inc.
and defendant Mullen Bros., Inc. of North Adams.
William Gordon Prescott with whom David W. Murphy, Jr., and Katz,
Lapointe & Murphy, P.C. were on brief for defendant Transit Homes of
America, Inc.
David R. Cianflone with whom Cianflone & Cianflone, P.C. was on
briefs for plaintiffs.
September 28, 1995
BOUDIN, Circuit Judge. We have before us cross-appeals
in a case concerning long-distance moving arrangements that
went seriously awry. The plaintiffs in the district court
were Paul and Doris Fredette; the defendants were Allied Van
Lines, Inc., ("Allied"), Mullen Brothers, Inc. of North Adams
("Mullen Brothers") and Transit Homes of America, Inc.
("Transit"). The facts, taken in the light most favorable to
the jury verdict, Borden v. Paul Revere Life Ins. Co., 935
F.2d 370, 379 (1st Cir. 1991), are as follows.
In September 1990, General Electric Company ("GE") laid
off Paul Fredette, who was then working as a machinist in its
Pittsfield, Massachusetts, plant. GE offered Paul Fredette a
position in its Hickory, North Carolina plant, and he
accepted. The Fredettes contacted defendant Mullen Brothers
to arrange the move of their mobile home to North Carolina.
Mullen is a local Massachusetts mover licensed only for
intrastate moves; for interstate moves like the Fredettes',
Mullen acts as an agent for Allied.
In January 1991, a Mullen sales representative, Chad
Lindburg, came to the Fredettes' Pittsfield home to inspect
and inventory their mobile home and personal belongings. The
mobile home was a one-bedroom unit with an attached porch and
canopy and a detached shed. The Fredettes explained to
Lindburg that they wanted to move the home and all of its
contents and that they wanted to be fully insured. After
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that meeting, the Fredettes left for North Carolina and
stayed with relatives while Paul Fredette began work at the
GE plant there. They also purchased a lot for the home.
In mid-February, the Fredettes returned and signed an
agreement with Lindburg committing Allied to move the mobile
home and its contents at a cost of $20,520; the Fredettes
handed over a check, apparently believing that this amount
represented all payments required for the move. Allied
planned to transport the household possessions itself. It
subcontracted the move of the mobile home to Transit and
hired another company to move the porch and shed. According
to the contract, the move was to begin on February 16, 1991,
with a guaranteed delivery date no later than February 25,
1991.
Transit, in turn, hired James Bedford to move the mobile
home and he inspected it on the day that the contract was
signed. The Fredettes then returned to North Carolina. On
February 21, 1991, Lindburg told them that Bedford had
discovered pre-existing structural damage after he moved the
home off its Pittsfield lot. Bedford told Transit that the
home was not roadworthy because it was sagging on its axles.
Transit told Bedford not to move the home and told Allied
that the home would not be moved until the Fredettes
furnished Transit with a broad liability release. The
Fredettes' personal belongings were placed in storage.
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The Fredettes returned to Pittsfield, photographed the
home and hired their own expert, Stanley Bator, who
determined that the home could be safely moved if a fourth
axle were added. The Fredettes refused to sign the broad
release demanded by Transit, but on March 1, 1991, Doris
Fredette signed a promissory note to Allied for up to $2,500
to cover costs of adding an axle. A fourth axle was added,
and on March 7, 1991, Bedford moved the home from Pittsfield,
arriving in North Carolina on March 12. On arrival, the
Fredettes and an expert they hired found (and photographed)
substantial damage to the interior and exterior of the home.
Bedford refused to place the mobile home on the lot
until the Fredettes removed a fence and made other
adjustments. The Fredettes hired Irvin Finger, who did the
required work, but Bedford still refused to move the home
onto the lot, saying that the ground was too hilly and muddy
to do it safely. After consulting with Allied and Transit,
Bedford left the mobile home near the lot and returned to
Massachusetts. The Fredettes hired a local company which
promptly placed the home onto the lot for an additional fee.
A week later, after a number of requests by the
Fredettes, Allied sent a crew to block and level the home.
The contents of the home and the porch, including the front
steps, had not yet arrived. Apparently Allied and the
Fredettes were engaged in a dispute about the storage fees
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incurred during the moving delay, and Allied refused to
deliver the personal belongings until the storage fee was
paid. Delivery occurred on April 11, 1991, and the Fredettes
moved into their home the next day, 45 days after the
original guaranteed delivery date.
While the home was en route, Paul Fredette became
depressed and, as a result, was terminated from his job with
GE. His anxiety and depression continued after the move and
were confirmed by medical testimony at trial. He returned to
work in May of 1991, but left again in September, again
because of depression. Doris Fredette also suffered
emotional distress. Ultimately, the Fredettes brought suit
in Massachusetts state court, alleging a number of claims
against Allied, Transit and Mullen.
The defendants removed the suit to federal district
court, and ultimately the parties went to trial on four
counts: count I alleged a violation of the Carmack
Amendment, 49 U.S.C. 11707; count II charged breach of
contract; count IV alleged a violation of Massachusetts
consumer protection law, Mass. Gen. L. ch. 93A, based on the
intentional infliction of emotional distress; and count V
charged intentional infliction of emotional distress.1
1Count III, a state-law claim for property damage, was
dismissed as preempted by the Carmack Amendment.
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Counts I, II and V were tried to a jury beginning April
11, 1994; Count IV, the 93A claim, was heard by the court
afterward. After the Fredettes rested, the district court
dismissed Mullen as a party. On April 14, 1994, the jury
found for the Fredettes and against Allied on the breach of
contract claim and the claim of intentional infliction of
emotional distress. It found for the Fredettes and against
Transit on the Carmack Amendment claim and the claim of
intentional infliction of emotional distress. The jury
awarded $36,000, representing $18,500 on the Carmack
Amendment claim against Transit; $7,500 on the contract claim
against Allied; and $5,000 each against these defendants on
the emotional distress claim. The district court then found
in favor of Allied and Transit on the Fredettes' 93A claim.
Allied and Transit duly filed post-trial motions,
generally preserving the claims now made on appeal, but
motions were denied. Allied and Transit now appeal from the
judgments against them. The Fredettes cross appeal from the
rejection of their claim against Mullen and the district
court's denial of their 93A claim.
1. The Carmack Amendment Claim. The Carmack Amendment,
49 U.S.C. 11707, incorporates common law principles of
liability and makes a common carrier liable for "the actual
loss or injury to the property" that it transports
interstate. Id. 11707(a)(1). Transit was responsible for
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the move of the mobile home, and the jury awarded the
Fredettes $18,500 against Transit for damages to the home.
Transit argues that the Fredettes failed to present
sufficient evidence of the damages to take the case to the
jury; alternatively it seeks remittitur or, in the
alternative, a new trial on the issue of damages.
A plaintiff suing under the Carmack Amendment may
recover as damages only the "actual loss or injury to the
property," ordinarily measured either by the reduction in
market value caused by the defendant or by replacement or
repair costs occasioned by the harm. See, e.g., Oak Hall Cap
& Gown Co., Inc. v. Old Dominion Freight Line, Inc., 899 F.2d
291, 296 (4th Cir. 1990). There is no recovery under the
statute for punitive damages or for damages unrelated to the
property at issue. Cleveland v. Beltman North Amer. Co.,
Inc., 30 F.3d 373, 379 (2d Cir. 1994), cert. denied, 115 S.
Ct. 901 (1995).
Evidence as to the nature and extent of physical damages
sustained by the home move was presented primarily by Doris
and Paul Fredette and by Irvin Finger; Finger was a
contractor who had examined the home at the Fredettes'
request when it arrived in North Carolina and compared it to
photographs of the home taken on the Pittsfield lot
immediately prior to the move. Finger supplied a written
list of repair tasks and a proposed price of $10,500.
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"Before and after" photographs of the home were also admitted
into evidence.
Although Transit argues that little beyond normal wear
and tear was demonstrated, the jury was entitled to find
otherwise. The Fredettes described the condition of the home
before the move and after, testifying to the broken window
and door casing, missing shingles, soiled rugs, damage to
aluminum siding and to the roof, a broken sink, and similar
injuries discovered when the move was over. Another witness
confirmed the existence of damage to the roof and an exterior
wall. The jury was also entitled to consider the
photographs. Thus, there was ample proof of injury.
What is of more concern is the amount of damages awarded
by the jury for injury to the mobile home. Even assuming
that the jury fully accepted Finger's estimate, the award of
$18,500 against Transit--or $8,350 in excess of the damages
estimated by him--is puzzling. Possibly, as Transit
speculates, the jury included other damages for which Transit
was not liable (e.g., damage to the porch and shed which were
moved by another company), although the figures do not quite
mesh. But Transit has not claimed that the jury was
misinstructed, so we have to assume that the jury intended
the award to cover the mobile home itself.
That presents the question whether the jury was entitled
to take the descriptions and photographs of the injuries to
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the mobile home and then value those injuries more highly
than the amount assigned by the Fredettes' own witness.
Under the case law, the jury can depart upward, as well as
downward, from the opinion of the expert; and this makes good
sense wherever the jury could reasonably have valued the
damage without any expert opinion.2 The jury could do so
for a broken window or dented fender; a defective dynamo
would probably be beyond its ken.
The injuries to the mobile home are in between but much
closer to the broken window. The injuries here (e.g., soiled
rugs, repainting, damaged sidings and roof, broken door
frame) were not especially exotic in character and nothing
prevented the jurors from using their own experience and
common sense to adjust upward or downward the expert's own
estimate. The award was certainly very generous, in light of
Finger's testimony, and a remittitur could have been ordered;
but it is hard to say that it was irrational or that the
refusal to grant a new trial or remittitur on damages was an
abuse of discretion.
2. The Contract Claim. The Fredettes also won a
judgment of $7,500 against Allied for breach of contract
2See, e.g., Weber v. Chicago & Northwestern Transp. Co.,
530 N.W.2d 25, 29 (Wis. App.) ("[t]he jury is not bound by an
expert's estimate of damages"), review denied, 534 N.W.2d 85
(Wis. 1995); Birmingham Slag Div. of Vulcan Materials Co. v.
Chandler, 231 So.2d 329, 331 (Ala. Civ. App. 1970) ("a jury
is not bound by opinion evidence of damages, though
undisputed").
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based on Allied's failure to deliver their home and goods by
the guaranteed delivery date. Allied contends that the delay
resulted from events outside its control and sought an
instruction on frustration of purpose. The district court
declined to give such an instruction on the ground that the
evidence did not support it.
A party is entitled to have its legal theories presented
to the jury, if legally correct and supported by the
evidence. Sullivan v. National Football League, 34 F.3d
1091, 1106-07 (1st Cir. 1994), cert. denied, 115 S. Ct. 1252
(1995). The determination of whether there was evidence
sufficient to require an instruction is made by the district
court in the first instance, but is subject to appropriate
appellate review. Id. at 1107-09. Assuming arguendo that
frustration of purpose is to be determined by the jury in a
proper case, see generally E. Farnsworth, Contracts 9.7, at
722 (2d ed. 1990), no reasonable jury could have concluded
here that the contract's purpose had been frustrated.
The doctrine of frustration of purpose, recognized in
Massachusetts as elsewhere, excuses a party from contractual
obligations under certain defined circumstances. The central
condition, but not the only one, is that--although
"[p]erformance remains possible"--"the expected value of
performance to the party seeking to be excused has been
destroyed by [the] fortuitous event. . . ." Chase Precast
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Corp. v. Paonessa Co., 566 N.E.2d 603, 608 (Mass. 1991),
quoting Lloyd v. Murphy, 153 P.2d 47, 50 (Cal. 1944). If the
GE plant in North Carolina had burned down, the Fredettes
might have argued (not necessarily with success) that the
purpose of the agreement had been frustrated.
Obviously, the purpose of the Fredettes' contract with
Allied--to arrange for a move of home and possessions to
North Carolina--was not frustrated by need for a fourth axle.
Allied might have sought an instruction on impossibility or
impracticability of performance, or even on mutual mistake
relating to the immediate fitness of the mobile home for
transportation. Compare Farnsworth, supra, 9.3, 9.5, 9.6.
Whether any of these sister doctrines could properly have
been invoked is open to dispute; but the dispute need not be
resolved because no such instructions were sought.
3. Intentional Infliction of Emotional Distress. Both
Allied and Transit argue that the trial judge erred in
instructing the jury about the elements of the emotional
distress claim. The trial judge described the elements of
intentional infliction of emotional distress as follows:
First, that the defendants intended to cause, or
should have known that its [sic] conduct would
cause emotional distress; and, Second, that the
defendants' conduct was extreme and outrageous;
and, Third, that the actions of the defendants
caused plaintiffs distress; and, Fourth, that the
plaintiffs suffered emotional distress. In
determining whether a defendants' [sic] conduct was
extreme and utterly outrageous, you must ask
yourselves whether the conduct was beyond all
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bounds of decency and utterly intolerable in a
civilized community. Liability can't be founded on
mere insults, threats, or annoyances. It should be
noted that physical harm to the plaintiffs in [sic]
not a required element of this claim.
The district court's instructions are taken almost
verbatim from a recent decision by the Massachusetts Supreme
Judicial Court, Sena v. Commonwealth, 629 N.E.2d 986, 994
(Mass. 1994). In this case, the defendants submitted
proposed instructions that would have required, on the fourth
element, that the plaintiffs' emotional distress be "severe"
and "of a nature that no reasonable person could be expected
to endure it." That language is taken from that court's
watershed decision on the tort nearly twenty years ago, Agis
v. Howard Johnson Co., 355 N.E.2d 315, 319 (Mass. 1976)
(quotations omitted). The district court declined to include
the "reasonable person" language, and an objection to this
omission was preserved.3
Since Agis, the SJC has all but ignored the "reasonable
person" language. Every time that the court has decided an
intentional infliction claim since Agis, it has omitted the
"reasonable person" language and simply required the
3The judge apparently intended to use the word "severe,"
but may well have failed to do so. The transcript and the
court's post-trial memorandum and order are seemingly in
conflict. But if "severe" was omitted, no proper objection
was preserved.
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plaintiff to show "severe" emotional distress.4 This is so
even in cases where the severity of the plaintiff's emotional
distress is at issue. See, e.g., Haddad v. Gonzalez, 576
N.E.2d 658, 667-68 (Mass. 1991). Because the district court
defined the tort precisely as the state's highest court has
done for more than a decade, we find no error, much less
prejudicial error.
Both Allied and Transit also contend that they are
entitled to judgment as a matter of law or a new trial on
this claim. The former remedy requires that "no reasonable
jury could have returned a verdict adverse to the moving
party." Havinga v. Crowley Towing & Trans. Co., Inc., 24
F.3d 1480, 1483 (1st Cir. 1994), and we review de novo the
district court's decision on such a motion. Id. As for a
new trial, this may be granted if the district court finds
that the jury's verdict is against the clear weight of the
evidence; a refusal to grant a new trial is reviewed only for
abuse of discretion. Phav v. Trueblood, Inc., 915 F.2d 764,
766 (1st Cir. 1990).
Allied and Transit argue that their conduct, even if
wrongful, was not bad enough to be deemed extreme and
4See, e.g., Bowman v. Heller, 651 N.E.2d 369, 373 n.6
(Mass. 1995); Sena, 629 N.E.2d at 994; Haddad v. Gonzalez,
576 N.E.2d 658, 667-68 (Mass. 1991); Nancy P. v. D'Amato, 517
N.E.2d 824, 827 (Mass. 1988). The court referred to the
"reasonable person" language in an opinion about negligent
infliction of emotional distress in 1982. See Payton v.
Abbott Labs, 437 N.E.2d 171, 180 (Mass. 1982).
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outrageous. In part, this argument rests on an effort to
disassociate themselves from Bedford, who refused to place
the home on the lot even after the Fredettes had made the
initial adjustment Bedford demanded. But the Fredettes
presented evidence that Transit had ratified Bedford's
demands that the North Carolina lot be levelled further, and
that Transit and Allied had approved Bedford's decision to
leave the site with the home still not in place.
There was other conduct of which the jury might have
disapproved. Transit took the lead in seeking to obtain a
release from the Fredettes that seemingly went well beyond
the danger that occasioned the demand. Allied waited a week
before sending a crew to block and level the site once the
home was moved to North Carolina, and it waited three weeks
more to deliver the Fredettes' belongings (including their
car, furniture and the steps to their home) until the
Fredettes paid the disputed storage charges.
Most of the Massachusetts cases cited to us by
defendants are distinguishable, but Transit has a plausible
argument that the conduct here is not much worse than that
held insufficient in Foley v. Polaroid Corp., 508 N.E.2d 72
(Mass. 1987); there, an employee acquitted of assault was
sidetracked in his job and ostracized by other employees.
Still, in Foley the SJC thought that the company's formal
actions were consistent with "a good faith effort to maintain
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Foley's employment in a manner consistent with Polaroid's
legitimate business concerns," id. at 82; and the court
apparently equated the harassment with "mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities" for which recovery is not permitted under this
claim. Id.
Here, we think that the jury was entitled, although
hardly compelled, to find bad faith; and the delays and
withholding of property and services go somewhat beyond the
verbal and other minor abuses that Polaroid employees
directed against Foley. Further, given the interplay between
Allied, Transit and Bedford, the jury was entitled to view
the conduct as a whole and not as isolated minor wrongs. So
viewed, we think that the deference to be accorded to the
jury's judgment on issues of this kind keeps the verdict just
this side of the dividing line.
4. The Fredettes' 93A Claim. The Fredettes also
claimed against the defendants for violation of
Massachusetts' far-reaching consumer protection law, Mass.
Gen. L. ch. 93A. That law proscribes "unfair or deceptive
acts or practices in the conduct of any trade or commerce"
and provides a private right of action for aggrieved
individuals. The 93A claim was tried to the district court
after the jury verdict on the other counts. The court found
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that no violation had occurred, and ruled in favor of the
defendants. The Fredettes argue that this ruling was error.
Although 93A is phrased in terms different than the
emotional distress tort, the analogy is closer than language
might suggest. The "unfair or deceptive" label sounds like a
very low threshold, but the Massachusetts courts have
repeatedly held that 93A requires conduct that is immoral,
unethical or unscrupulous or at least attains "a level of
rascality" that goes well beyond ordinary tough business
practice. Industrial Gen. Corp. v. Sequoia Pacific Sys.
Corp., 44 F.3d 40, 43 (1st Cir. 1995) (citing numerous
Massachusetts cases).
Here, in deciding the 93A claim as the finder of fact,
the district judge was entitled to reach a judgment
independent of the jury on such issues as the existence and
extent of deception, unfairness and bad faith. Whether or
not the judge's findings can be squared with the jury's does
not matter, so long as the former's findings are not clearly
erroneous and the latter's are within the bounds of reason.
Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780
F.2d 1049, 1063-64 (1st Cir. 1985). Precisely because this
is a borderline case, we think that the respective standards
of review protect both factfinders.
The Fredettes also rely on a regulation issued by the
Massachusetts Attorney General which provides that "[i]t is
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an unfair and deceptive act or practice: (a) To advertise or
promise prompt delivery where delivery is neither prompt nor
expeditious." 940 C.M.R. 3.15. But we read this to refer to
a pattern of conduct, or at least to an individual occasion
in which the promisor knows that it is making untrue
representations. Whatever other criticisms may be made of
Allied, nothing suggests that its original delivery date was
a representation made in bad faith.
The Fredettes' other theory is that the defendants
behaved unfairly and deceptively by specifying a price that
the Fredettes believed to be all-inclusive and then imposing
a succession of additional charges and demands (e.g., the
storage fees, expenses relating to the new lot). But the
district judge as the trier of fact was entitled to take a
more benign view and regard these extra demands as not
clearly beyond what was agreed to or as occasioned by
developments that no one had foreseen. This view, although
not compelled, was not clearly erroneous.
5. The Dismissal of Mullen. At the close of their
brief as appellants, the Fredettes argue that Mullen should
not have been dismissed as a defendant at the close of the
evidence. Lindburg, they say, acted as the agent for both
Mullen and Allied; and Mullen is responsible, they argue, for
the wrongs they attribute to Lindburg. These wrongs they
identify as (1) misadvising the Fredettes that their move was
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"fully covered" and "fully insured" and (2) mishandling the
original inspection and measurements of the home and thereby
causing a significant portion of the delay in the move.
It is not clear why this claimed error matters to the
Fredettes since Allied and Transit are presumably solvent,
and the Fredettes cannot collect twice for the same wrongs.
But in any event we see little indication that Lindburg was
independently culpable: there is no evidence that he told the
Fredettes anything he had reason to believe to be untrue; and
the Fredettes point us to nothing in the record that would
show that Lindburg knew or should have known that the mobile
home would sag when removed from its supports.
Affirmed.
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