Konst v. Florida East Coast Railway Co.

United States Court of Appeals,

Eleventh Circuit.

No. 94-4440.

Harry N. KONST, Kalianthe Konst, his wife, Plaintiffs-Appellants,

v.

FLORIDA EAST COAST RAILWAY COMPANY, a/k/a Florida Express
Carrier, Inc., a/k/a F.E.C. Railway Company, a/k/a F.E.C. Highway
Dispatch Company, Defendant-Appellee.

Jan. 4, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 91-8737-CV-EBD), Edward B. Davis, Judge.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and FAY,
Senior Circuit Judge.

ANDERSON, Circuit Judge:

The common law has long recognized a rebuttable presumption

that an item properly mailed was received by the addressee. Nunley

v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir.1995). The

"presumption of receipt" arises upon proof that the item was

properly addressed, had sufficient postage, and was deposited in
1
the mail. The presumption is, of course, rebuttable. The single

issue raised in this appeal is whether the presumption can be

invoked by railway customers attempting to prove they "filed" a

claim with a rail carrier.

1
The presumption so arising is not a conclusive presumption
of law, but a mere inference of fact, founded on the
probability that the officers of the government will do
their duty and the usual course of business; and, when
it is opposed by evidence that the letters never were
received, must be weighed with all the other
circumstances of the case, by the jury in determining
whether the letters were actually received or not.

Rosenthal v. Walker, 111 U.S. 185, 193-94, 4 S.Ct. 382, 386,
28 L.Ed. 395 (1884) (citations omitted).
 This case is on appeal from the district court's order

granting the defendants' motion for summary judgment. Thus, we

will review the grant of summary judgment de novo applying the same

legal standard applied by the district court in the first instance.

Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386 (11th

Cir.), modified on other grounds and reh'g denied, 30 F.3d 1347

(11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 900, 130

L.Ed.2d 784 (1995). Summary judgment should be granted only "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact." Fed.R.Civ.P.

56(c). There is a genuine issue of material fact "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In March of 1990, appellants Harry and Kalianthe Konst ("the

Konsts") contracted for the shipment of their furniture by rail

from Tucson, Arizona, to Jupiter, Florida. Mr. Konst signed a bill

of lading which constituted the contract of carriage. Section 2(b)

of the bill of lading required that any claim for damages be filed

with either the delivering or receiving rail carrier within nine

months after delivery of the shipment to its destination.2

2
Section 2(b) of the bill of lading, a Domestic Uniform Bill
of Lading (according to the defendants), reads as follows:

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....
 The Konsts received their belongings on March 21, 1990, after

having sustained heavy water damage in transit. Under the bill of

lading, the Konsts had until December 21, 1990 (nine months) to

file their claim with one of the rail carriers. In this case, the

"receiving" rail carrier was Southern Pacific Transportation

Company ("SP") and the "delivering" rail carrier was Florida East

Coast Railway Company ("FEC"). Both are defendants-appellees.

Both SP and FEC deny receiving a timely claim.3 The Konsts argue

that their claim should be deemed filed because they mailed a

claim4 on September 10, 1990, well within the nine month period, to

SP at an address in San Francisco, California.

In their Memorandum in Opposition to Summary Judgment and in

another document filed with the court entitled "Concise Statement

of Material Facts Which Create an Issue," the Konsts asserted that

the September 10, 1990, letter along with an attached loss and

damage claim form were filed with SP.5 Both pleadings were signed

by Mr. Konst himself because the Konsts were proceeding pro se at

This is a standard bill of lading and conforms to the
Carmack Amendment which requires, in relevant part, that "a
carrier or freight forwarder may not provide by rule,
contract, or otherwise, a period of less than 9 months for
filing a claim against it...." 49 U.S.C. § 11707(e).
3
On January 2, 1991, FEC and SP received a claim from the
Konsts dated December 17, 1990. The Konsts do not contend that
this claim, which was apparently not received until 12 days after
the nine month deadline, was timely filed.
4
On appeal, the defendant-appellees do not contend that the
September claim for damages claim was inadequate.
5
The September letter is addressed to "Southern Pacific
Transportation Co., Attention: Freight Claims Dept., One Market
Plaza, San Francisco, California, 94105." The claims form bears
the same address. The appellees do not contend on appeal that
the address was erroneous.
the time. The defendants filed the affidavit of Byron MacDonald,

an employee working in SP's Denver Claims Department. The

affidavit stated that it was MacDonald's responsibility to "acquire

each and every document involved in the carriage of a shipment

which pertains to a freight claim case," that he searched his

files, that he did not find the Konst's September 10 form, and that

the company never received that form.

The defendants moved for summary judgment on the grounds that

no claim form had been timely filed. The magistrate judge entered

an order denying the defendants' summary judgment on the grounds

that the Konsts had invoked the presumption of receipt by setting

forth facts in two of their pleadings, both of which were signed by

Mr. Konst. The district court, although initially adopting the

magistrate judge's report and recommendation, rejected the argument

on motion for reconsideration and held that the presumption should

not apply in this context where a bill of lading requires a claim

to be "filed" with a carrier.

On appeal, the appellees do not contend that the Konsts did

not set forth facts sufficient to raise the presumption. Rather,

the appellees argue that the presumption is not applicable in the

instant context—i.e., where the "applicable federal regulation

requires that claims be filed with the carrier." The appellees

argue that delivery can never be sufficient to constitute filing.

We are not persuaded by this argument.

The federal regulations governing the minimum requirements for

making a damages claim against a common carrier describe the
process as "filing" a claim.6 However, the same regulations

indicate that it is the receipt of the claim by the carrier, not

the physical filing of the claim, which triggers the carriers'

responsibilities to the claimant. The regulations establish the

following: (1) the duty to acknowledge the receipt in writing or

electronically within 30 days after the date of its receipt, 49

C.F.R. § 1005.3(a); (2) the duty to create a separate file, 49

C.F.R. § 1005.3(b); (3) the duty to cause the date of receipt to

be recorded on the face of the claim; (4) the duty to "cause the

claim file number to be noted on the shipping order", 49 C.F.R. §

1005.3(b)7; (5) the duty promptly to investigate the claim if such

has not been done prior to receipt of the claim, 49 C.F.R. §

1005.4(a); (6) the duty to "pay, decline or make a firm compromise

settlement offer in writing or electronically to the claimant

within 120 days after receipt of the claim," 49 C.F.R. § 1005.5(a);

and (7) the duty to record the amount of money and other details

relevant to shipments which were salvaged, 49 C.F.R. § 1005.6(c).

Because receipt triggers all of the carriers' duties toward the

claimant under the federal regulations, we construe the word

"filing" in the bill of lading to mean receipt. This construction

is consistent with Pathway Bellows, Inc. v. Blanchette, 630 F.2d

900, 902 (2d Cir.1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1357,

67 L.Ed.2d 340 (1981), which held that filing of a damages claim

6
49 C.F.R. § 1005.2, entitled "Filing of Claims," uses that
term several times.
7
Although this portion of the subsection does not contain
the phrase: "at the time such claim is received," such a
requirement can be inferred from the structure of the subsection
as a whole.
with a common carrier occurs when the claim has been delivered to

and received by the carrier.8
Having determined that the governing regulations contemplate

receipt as the trigger for processing a claim, we see no reason

that the presumption of receipt should not apply in this case.9 It

is simply a traditional means of weighing evidence in order to

determine whether receipt occurred. The presumption is applied in

many different contexts. See Nunley v. City of Los Angeles, 52

F.3d 792 (9th Cir.1995) (presumption used to determine whether

party entitled to receive notice of final judgment or order had not

received notice within twenty-one days and, thus, could invoke

Fed.R.App.P. 4(a)(6) which allows a district judge to extend time

to file notice of appeal); Wiley v. United States, 20 F.3d 222

(6th Cir.1994) (presumption applied to determine whether IRS sent

taxpayer statutorily required notice of tax deficiency); American

Casualty Reading Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 734 (2d

Cir.1994) (presumption invoked to determine whether particular

notice from insurer, required under Vermont insurance law, was

received by Department of Motor Vehicles); Godfrey v. United

8
At the initial stages of this litigation, the defendants
contended that Pathway Bellows supported their proposition
because it held that the date of mailing was not the date of
filing. However, the issue here is not whether mailing itself is
tantamount to filing for the purposes of determining the date a
claim is failed. Rather, the issue is whether a claimant can
invoke the presumption of receipt when filing is required.
9
In doing so we expressly decline to follow the guidance of
the cases cited by the appellees—Elroy Enterprises, Inc. v.
Roadway Express, Inc., 746 F.Supp. 284 (E.D.N.Y.1990), and
Schaffer v. Pennsylvania R. Co., 127 N.Y.S.2d 466 (N.Y.Mun.Ct.,
1950), aff'd, 127 N.Y.S.2d 468 (N.Y.App. Term 1952)—to the extent
those cases can be read to hold otherwise.
States, 997 F.2d 335 (7th Cir.1993) (noting government entitled to

rebuttable presumption in determining whether IRS mailed taxpayer's

refund check when it raises proper evidence of mailing); In re

East Coast Brokers & Packers, Inc., 961 F.2d 1543 (11th Cir.1992)

(presumption may be utilized to determine whether creditor sent

notice of intent to preserve trust benefits against a debtor as

required by federal regulations and the Perishable Agricultural

Commodities Act, 7 U.S.C. § 499e(c)); Anderson v. United States,

966 F.2d 487 (9th Cir.1992) (applying the presumption where

taxpayer presented evidence that she properly mailed tax return to

IRS); In re Bucknum, 951 F.2d 204 (9th Cir.1991) (applying

presumption to determine whether bankruptcy court had mailed debtor

notice of time fixed for filing complaint to determine

dischargeability of debt where notice required by bankruptcy

rules); Doolin v. United States, 918 F.2d 15 (2d Cir.1990)

(applying rebuttable presumption where IRS presented evidence it

mailed taxpayer's refund check); In re Longardner & Associates,

Inc., 855 F.2d 455 (7th Cir.1988), cert. denied, 489 U.S. 1015, 109

S.Ct. 1130, 103 L.Ed.2d 191 (1989) (applied in determining whether

notice of plan confirmation hearing was received by creditor's

counsel in Chapter 11 proceedings); Nikwei v. Ross School of

Aviation, Inc., 822 F.2d 939 (10th Cir.1987) (proper mailing of

summons and complaint raises presumption); Betancourt v. FDIC, 851

F.Supp. 126 (S.D.N.Y.1994) (applying presumption to determine

whether creditor received notice of appointment of receiver in

context of FIRREA, § 1821(d)(5)(C)(ii), an exception to time limit

for filing claims where creditors do not receive notice of
receiver's appointment).

Some courts have not applied the rebuttable presumption of

receipt in cases involving filing requirements. However, the cases

doing so are distinguishable from the case at bar. In some cases,

courts have construed filing to mean more than mere receipt, and,

thus, have refused to apply the presumption as evidence of filing.

For example, in Premiere Wine Merchants, Inc. v. Western Carriers,

Inc., No. 89 Civ. 0270, 1989 WL 153040 (S.D.N.Y.1989), a case

involving the filing of a tariff with the Interstate Commerce

Commission, the court held that mere receipt was not sufficient to

constitute filing because, among other things, the tariff had to

meet several specifications and the ICC had a "right to reject or

strike any tariff publication ... not in compliance with the law,

or to require that it be modified, corrected or reissued." Id.

Smith v. Fidelity & Casualty Co., 201 F.2d 460 (5th Cir.1958),

involved the filing of a claim in a worker compensation case;

again the court required more than mere receipt to satisfy the

filing requirement. The court concluded that the presumption

should not apply because filing in that case required not only

delivery to the proper address, but the further requirement that

the document "when received ... got into the hands of the proper

person to file it...." Id. at 462. The court in Smith highlighted

the fact that the word "filed" in that context "imports that the

claim is to be placed permanently on the files of the board, so

that any person interested may refer to it...." In Chrysler Motors

Corp. v. Schneiderman, 940 F.2d 911, 912-13 (3d Cir.1991), the

Third Circuit noted that it does not allow the presumption to arise
in the context of filing proofs of claims in bankruptcy court

because "restrictiveness is necessary in order to facilitate the

expeditious administration of bankruptcy proceedings." Thus, the

need for speedy resolution of bankruptcy claims militated against

the use of the presumption, whereas allowing debtors to invoke the

presumption might have led to delay.

These cases can be distinguished on their facts, i.e., either

that more than mere receipt was required or that a special need for

speedy handling was involved.10 These cases can also be

distinguished because they all involve the filing of documents with

courts or governmental entities. There is a presumption that

officers of the government perform their duties. Unlike the

private entity with whom the claim was to be filed in this case,

the governmental entities in the above cases had no apparent

pecuniary interest in denying that they received the documents

allegedly filed with them. It is understandable that courts would

be more reluctant to apply the presumption where the recipient is

a governmental entity, especially when that entity does not stand

to gain by claiming that the documentation in question was not

received.11

10
To the extent that Elroy Enterprises, Inc. v. Roadway
Express, Inc., 746 F.Supp. 284 (E.D.N.Y.1990), and Schaffer v.
Pennsylvania R. Co., 127 N.Y.S.2d 466 (N.Y.Mun.Ct.1950), aff'd,
127 N.Y.S.2d 468 (N.Y.App.Term 1952), indicate that the
presumption is inapplicable in a context like this, we find them
unpersuasive.
11
However, it should be noted that the presumption of
receipt has been applied in many situations in which a
governmental entity is the intended recipient of the document in
question. See, e.g., Anderson v. United States, 966 F.2d 487
(9th Cir.1992); American Casualty Reading Pa. v. Nordic Leasing,
Inc. 42 F.3d 725 (2d Cir.1994). We need not decide the issue of
 Finding no reason that the usual presumption of receipt should

not apply in this case, we hold that it does apply. Accordingly,

the judgment of the district court is reversed and the case is

remanded for further proceedings not inconsistent with this

opinion.

REVERSED and REMANDED.

whether, or under what circumstances, the presumption should
apply to receipt by a governmental entity.