Rini v. United Van Lines, Inc.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 95-2334

                            JANE RINI,

                      Plaintiff - Appellee,

                                v.

                     UNITED VAN LINES, INC.,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Michael A. Ponsor, U.S. District Judge]
                                                                

                                           

                              Before

                     Torruella, Chief Judge,
                                                     

               Coffin and Campbell, Circuit Judges.
                                                            

                                           

     Daniel  J.  Gleason,  with   whom  Terry  L.  Wood,  Nutter,
                                                                           
McClennen  & Fish,  LLP, Wesley  S. Chused, Lisa  Sternschuss and
                                                                       
Looney & Grossman were on brief for appellant.
                           
     George W. Wright, Michael  J. Rush and Kenneth E.  Siegel on
                                                                        
brief  for American  Movers Conference,  Association  of American
Railroads and American Trucking Associations, amicus curiae.
     John P.  Pucci,  with  whom Jeanne  M.  Kaiser  and  Fierst,
                                                                           
Mitchell & Pucci were on brief for appellee.
                          

                                           

                         January 17, 1997
                                           


          TORRUELLA, Chief Judge.   Plaintiff-appellee Jane  Rini
                    TORRUELLA, Chief Judge.
                                          

("Rini") hired defendant-appellant United Van Lines ("United") to

move her belongings from South Carolina to Massachusetts.  Rini's

household items were packed on August 20, 1990, and loaded into a

moving  van  the  next day.    Her  belongings  arrived at  their

destination on August 27,  but certain items were missing.   Rini

proceeded  to file a claim with United.  Following an acrimonious

attempt to settle the  claim, Rini filed a complaint  in district

court  on December 22, 1992.  The complaint included claims under

the Carmack  Amendment to the Interstate Commerce  Act, 49 U.S.C.

  11707  (1992),1 as  well  as state  law  claims of  negligence,

misrepresentation, use of unfair  and deceptive acts in violation

of Mass. Gen. L. ch. 93A, and intentional infliction of emotional

distress.   See Rini v. United  Van Lines, 903 F.  Supp. 224, 225
                                                   

(1995).

          The  jury  found for  Rini  on  the Carmack  Amendment,

negligence, and misrepresentation  claims in connection with  the

claims process.  See Rini, 903 F. Supp. at  230.  On the claim of
                                   

intentional infliction of emotional  distress, the jury found for

United.   Id.  The district court  found that United, in handling
                       

Rini's claim, had willfully violated chapter 93A.  Id. at 232-33.
                                                                

Damages  were awarded  in the  amount of  $50,000 on  the Carmack

claim and a  total of $300,000 on the state law claims.  Id. 234-
                                                                      

                    
                              

1  There have been amendments to the Carmack Amendment since 1990
when the events  at issue in  this case took  place.   Throughout
this  opinion,  references  will  be made  to  the  pre-amendment
statute.

                               -2-


35.  In addition, Rini was awarded attorney's fees in the  amount

of $146,950,  costs in the  amount of $7,359.60,  and prejudgment

interest in  the amount of  $100,000.   See Memorandum  Regarding
                                                     

Plaintiff's  Motion for Attorney's  Fees, Costs, and Pre-Judgment

Interest, Nov. 1, 1995.  This appeal by United ensued.

          We must determine whether the state law claims on which

Rini prevailed are  preempted by  the Carmack  Amendment.   These

claims are  for negligence,  misrepresentation, and  violation of

Mass. Gen. L. ch. 93A.

             I.  Preemption and the Carmack Amendment
                       I.  Preemption and the Carmack Amendment

          The  Carmack Amendment to  the Interstate Commerce Act,

49 U.S.C.    11707, passed  in 1906 as  part of the  Hepburn Act,

ch. 5391, 34  Stat. 584,  governs the  liability of carriers  for

lost  or damaged goods.   The relevant portions  of the Amendment

are:

            A  common carrier  . .  . subject  to the
            jurisdiction  of the  Interstate Commerce
            Commission . . . shall issue a receipt or
            a bill of lading for property it receives
            for transportation . .  . .  That carrier
            . . .  and any other common  carrier that
            delivers  the  property and  is providing
            transportation or service subject  to the
            jurisdiction  of the Commission . . . are
            liable  to the person entitled to recover
            under the receipt or bill of lading.  The
            liability imposed under this paragraph is
            for actual loss or injury to the property
            caused by (1)  the receiving carrier, (2)
            the  delivering  carrier, or  (3) another
            carrier  over  whose lines  or  route the
            property is transported  into the  United
            States . . . .

49 U.S.C.   11707.

                               -3-


          Article VI  of the United States  Constitution provides

that the laws of the  United States "shall be the supreme  Law of

the Land," notwithstanding contrary state laws.  U.S. Const. art.

VI,   2.   It is settled, therefore, "that  all conflicting state

provisions be without effect."   Maryland v. Louisiana, 451  U.S.
                                                                

725, 746 (1981).  When faced with a preemption question, however,

consideration  "starts with  the  assumption  that  the  historic

powers of the States [are] not to be superseded  by . . . Federal

Acts  unless  that  [is]  the   clear  and  manifest  purpose  of

Congress."  Rice  v. Santa Fe Elevator  Corp., 331 U.S.  218, 230
                                                       

(1947).

            Such  a purpose  [to displace  state law]
            may be  evidenced in  several ways.   The
            scheme  of federal  regulation may  be so
            pervasive  as  to  make   reasonable  the
            inference that Congress left no  room for
            the States to supplement  it.  Or the Act
            of Congress  may touch  a field  in which
            the federal interest is so  dominant that
            the  federal  system will  be  assumed to
            preclude enforcement of state laws in the
            same  subject.    Likewise,   the  object
            sought to  be obtained by the federal law
            and the character of  obligations imposed
            by it may reveal the same purpose.

Id.   Finally, a  state statute is  void to the  extent it  is in
             

conflict with a federal statute.  Maryland, 451 U.S. at 747.
                                                    

          In determining the scope of Carmack preemption, we look

to the intent of Congress and  the purpose of the Amendment.  Our

inquiry  into the  intent  of  Congress  is made  more  difficult

because the  Carmack Amendment was adopted  without discussion or

debate.  40  Cong. Rec. 7075  (1906).  It  is accepted,  however,

that the  principal  purpose  of the  Amendment  was  to  achieve

                               -4-


national uniformity in the liability assigned to carriers.  "[I]t

is evident that  Congress intended  to adopt a  uniform rule  and

relieve such contracts from the diverse regulation to  which they

had  been theretofore subject."   Adams Express Co. v. Croninger,
                                                                          

226  U.S.  491, 506  (1912).   The  importance of  uniformity has

frequently  been stressed  in subsequent Supreme  Court opinions.

See, e.g., New York, N.H.  & Hartford R.R. Co. v.  Nothnagle, 346
                                                                      

U.S. 128, 131 (1953); Atchison, Topeka  & Santa Fe Ry. v. Harold,
                                                                          

241 U.S. 371, 378 (1916).

          The foundation for Carmack preemption analysis is Adams
                                                                           

Express,  in which  the Supreme  Court considered  the preemptive
                 

scope of the Carmack Amendment, concluding:

            That the legislation  supersedes all  the
            regulations and policies of  a particular
            state upon the same subject  results from
            its general character.   It embraces  the
            subject of  the liability of  the carrier
            under  a bill  of  lading which  he  must
            issue,  and  limits his  power  to exempt
            himself by rule, regulation, or contract.
            Almost every  detail  of the  subject  is
            covered so completely  that there can  be
            no  rational  doubt  but   that  Congress
            intended  to  take   possession  of   the
            subject,   and    supersede   all   state
            regulation with reference to it.

Adams Express, 226 U.S. at 505-06.  The Court stated further that
                       

to  allow state regulations  to affect the  liability of carriers

"would  be to  revert  to the  uncertainties  and diversities  of

rulings which led to the amendment."  Id. at 506.
                                                   

          The  preemptive effect  of the  Carmack  Amendment over

state law  governing damages for the loss  or damage of goods has

been reiterated by  the Supreme Court in  many cases and  is well

                               -5-


established.   See,  e.g.,  Southeastern Express  Co. v.  Pastime
                                                                           

Amusement  Co.,  299 U.S.  28  (1936)  (claim of  negligence  for
                        

failure to deliver  a film  on time is  preempted); Charleston  &
                                                                           

Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597
                                                             

(1915) (state  statute  imposing a  penalty  for failure  to  pay

claims to a shipper within 40 days is preempted).

          Unfortunately, the  Supreme Court  case  law  does  not

provide clear guidance  on the reach of the  preemption doctrine.

In  particular, the Court has  not clarified the  extent to which

state law provisions pertaining to the claims process, as opposed

to the shipping of goods, are preempted.  Two cases, however, are

instructive.  First, in Missouri, Kansas, & Texas Railway Company
                                                                           

of  Texas v. Harris, 234 U.S. 412  (1914), the Court considered a
                             

Texas  statute  that  allowed  for  the  recovery  of  reasonable

attorney's  fees in cases where  the value of  the claims did not

exceed  two hundred  dollars.   The Court  held that  because the

state statute at issue "had a broad sweep which only incidentally

includes  claims rising  out of  interstate commerce,  it follows

that it  cannot be held to  constitute a direct burden  upon such

commerce."  Id. at 416.   For this reason, the statute  was ruled
                         

to  be valid and able  to exist alongside  the Carmack Amendment.

The important distinction made  by the Court was that  "the Texas

statute  . .  . does  not  anywhere either  enlarge or  limit the

responsibility of  the carrier for the loss of property intrusted

to it in transportation, and only incidentally affects the remedy

for  enforcing that responsibility."   Id. at  420.  Furthermore,
                                                    

                               -6-


"[t]he  local statute . . . does not  at all affect the ground of

recovery,  or the  measure  of recovery;  it  deals only  with  a

question  of costs,  respecting which  Congress has  not spoken."

Id. at 421-22.
             

          Second,  in Varnville,  the  Court ruled  that a  South
                                         

Carolina  statute  that imposed  a fine  of  $50 on  carriers for

failure to  pay within 40 days for damage to goods transported in

interstate  commerce  was  preempted by  the  Carmack  Amendment.

Varnville,  237  U.S. at  603.   The  Court determined  that "the
                   

special regulations  and policies  of particular states  upon the

subject  of  the  carrier's  liability  for  loss  or  damage  to

interstate shipments, and the  contracts of carriers with respect

thereto,  have been superseded."  Id. at  603.  The state statute
                                               

before  the  Court was  found to  "overlap[]  the Federal  act in

respect of the subjects, the grounds, and the extent of liability

for loss."  Id.
                         

          These  two cases  are  of particular  relevance to  the

instant  case  because the  state laws  at  issue did  not govern

claims arising directly out of damage to goods.  Like the instant

case, both  Harris and   Varnville  consider state  remedies that
                                            

relate  to the claims process.   The distinction  between the two

cases was made in Varnville, where the Court stated that:
                                     

            [i]t   is  true  that   in  [Harris]  the
                                                         
            inclusion  of  the  attorney's  fee,  not
            exceeding   $20,   in   the  costs   upon
            judgments  for  certain small  claims was
            upheld,  although  incidentally including
            some  claims  arising  out of  interstate
            commerce.    But  apart  from  the effect
            being only incidental, the  ground relied

                               -7-


            upon was that the statute did not 'in any
            way  enlarge  the  responsibility of  the
            carrier' for  loss or 'at all  affect the
            ground  of  recovery, or  the  measure of
            recovery'.   The  South Carolina  Act, on
            the other hand, extends the  liability to
            losses   on   other   roads    in   other
            jurisdictions, and increases it by a fine
            difficult to escape.

Id. at 603 (citations omitted).
             

          The lesson from these cases is  that state statutes are

preempted  by the Carmack Amendment  if they "in  any way enlarge

the responsibility  of the carrier for loss  or at all affect the

ground of recovery, or the measure of recovery."  Id.
                                                               

          The  Carmack   Amendment   and  the   set  of   federal

regulations  that  complement  it   cover  not  only  the  actual

transport of goods, but they also govern the claims process.  For

example,  the Amendment itself  provides that a  carrier "may not

provide . . . a period of less than 9 months for filing a claim .

. . and a period of less than 2 years for bringing a civil action

against it under this section."  49 U.S.C.   11707(e).2

          In light of  the Court's holding in  Varnville, we find
                                                                  

that  all state laws that  impose liability on  carriers based on
                                                                           
                    
                              

2     See  also  49  C.F.R.      1005.2-1005.5.    These  federal
                         
regulations govern the filing of claims,   1005.2, acknowledgment
of  claims,    1005.3, investigation  of  claims,    1005.4,  and
disposition  of claims,   1005.5.   Failure to  comply with these
federal regulations subjects the carrier  to sanctions.  See Zola
                                                                           
v. I.C.C., 889 F.2d 508, 509 (3d Cir. 1989); Aaacon Auto Transp.,
                                                                           
Inc. v. I.C.C., 792 F.2d  1156, 1158 (D.C. Cir. 1986).   Although
                        
"the mere existence of a federal regulatory or enforcement scheme
. .  . does not  by itself  imply preemption of  state remedies,"
English v. General Elec. Co.,  496 U.S. 72, 87 (1990), the  above
                                      
federal regulations  indicate that  the claims process  is within
the scope  of the  shipper-carrier relationship that  the federal
government seeks to regulate.

                               -8-


the  loss or damage of shipped goods  are preempted.  A state law
                                              

"enlarges  the responsibility of the  carrier for loss  or at all

affects  the ground of recovery, or the measure of recovery," id.
                                                                           

at 603,  where, in the  absence of an  injury separate and  apart

from the loss  or damage of goods, it increases  the liability of

the carrier.   Preempted state law claims, therefore, include all

liability  stemming  from  damage  or loss  of  goods,  liability

stemming  from the claims  process, and liability  related to the

payment  of claims.   Thus, the  forty day  limit for  payment at

issue  in Varnville is preempted.   On the  other hand, liability
                             

arising from separate harms  -- apart from the loss or  damage of

goods --  is not preempted.   For example, if an  employee of the

carrier  assaulted and  injured the  shipper, state  law remedies

would not  be  preempted.   Similarly,  a claim  for  intentional

infliction of  emotional distress alleges  a harm to  the shipper

that is  independent from  the loss  or damage  to goods  and, as

such, would not be preempted.3

                         II.  Application
                                   II.  Application

                    
                              

3   We are aware  that our holding  today conflicts with  certain
previous decisions  of the District  Court of Massachusetts.   In
particular, we note that the cases of Sokhos v. Mayflower Transit
                                                                           
Inc.,  691 F. Supp. 1578 (D. Mass  1988), and Mesta v. Allied Van
                                                                           
Lines,  695 F. Supp. 63  (D. Mass. 1988),  allowed certain claims
               
that  would  be preempted  under the  decision  that we  lay down
today.  To the  extent these decisions are inconsistent  with our
holding, they  do not represent the  law of the circuit.   We are
also aware that our own decision in Fredette v. Allied van Lines,
                                                                          
66  F.3d 369 (1st Cir. 1995), involved both Carmack Amendment and
state  law claims.   Id.  at 372.   That  case did  not, however,
                                  
address  the  preemption  issue  and,  therefore,  offers  us  no
guidance.

                               -9-


          In the instant  appeal, the state  law claims at  issue

all stem  from the  loss of  goods.   The alleged negligence  and

misrepresentation took  place in the  course of settling  a claim

for damages stemming from the move.   Rini suffered no harm other

than the loss  of goods and, therefore, her state  law claims are

preempted  by the Carmack Amendment.   Had Rini  prevailed on her

claim for intentional infliction  of emotional distress, it would

not have been preempted.  Because the three state claims at issue

in  this  appeal involve  no injury  save  the loss  of property,

however, we find them to be preempted.

          Our conclusion is consistent with the view taken by the

Second Circuit in Cleveland v. Beltman North American Company, 30
                                                                       

F.3d 373 (2d Cir. 1994), cert denied,  115 S. Ct. 901 (1995).  In
                                              

that  case, the  court described  the plaintiffs'  allegations as

follows:

            In   handling  plaintiffs'   claims,  the
            moving  company --  in  a deliberate  and
            determined     effort    to     frustrate
            plaintiffs'  collection  of  damages  for
            their  losses  --  was  guilty  of  foot-
            dragging  and stonewalling.   It  did not
            deal fairly  and in good  faith with  the
            couple.

Id.  at 374.   The  claim addressed  by the  court was  a federal
             

common law claim for breach of  an implied covenant of good faith

and  fair dealing in the claims process, damages from which "were

to be exclusive of damages awarded for actual loss under the bill

of lading."   Id. at  376.   The Second Circuit  held that  there
                           

could be no federal common law  claim for a breach of the implied

covenant of  good faith  and fair dealing.   Id.  at 379.   In so
                                                          

                               -10-


deciding, the court concluded  that "[a] claim for breach  of the

implied covenant of good  faith and fair dealing resulting  in an

award  of punitive damages could  well thwart one  of the primary

purposes  of  the Carmack  Amendment;  that is,  to  provide some

uniformity in the disposition  of claims brought under a  bill of

lading."  Id.  Although Cleveland dealt with an  issue of federal
                                           

common law, the  same reasoning implies  that state law  remedies

for loss or damage to goods would be preempted.

          The  instant case  presents  the same  question as  did

Cleveland.  We face a plaintiff  who has been ill-treated in  her
                   

attempts  to  settle her  claim  with  United.   As  a  result of

United's  unfair  practices,  the  jury  found  for  Rini on  the

negligence and misrepresentation counts and the trial judge found

for Rini on the use of unfair and deceptive acts count.  Like our

sister circuit before us, we note that although "[i]t may be that

Congress'  enforcement  scheme  does  not  provide  a  sufficient

deterrent  to the  type of  conduct  defendants employed  in this

case," id.  at 379, we find that the federal scheme has preempted
                    

negligence, misrepresentation, and chapter 93A claims.

          Finally,  we  note   that  our  ruling   preserves  the

uniformity  of  the  federal  scheme by  protecting  the  federal

government's  exclusive  jurisdiction  over  the  shipper-carrier

relationship,  the importance  of which  has been  underscored on

numerous occasions.4   "The purpose of [the Carmack Amendment] is

to  establish  uniform federal  guidelines  designed  in part  to
                    
                              

4  See supra pp. 4-5.
                      

                               -11-


remove  the uncertainty  surrounding a  carrier's liability  when

damage occurs  to a  shipper's interstate  shipment."   Hughes v.
                                                                        

United Van Lines, Inc., 829 F.2d 1407, 1415  (7th Cir. 1987); see
                                                                           

also Cleveland, 30 F.3d  at 379 (stating that one  of the primary
                        

purposes of the Carmack Amendment is to provide uniformity in the

disposition of claims brought  under a bill of lading).   Because

the  Carmack  Amendment was  intended  to  provide uniformity  to

claims for the loss or damage to goods, the goal of uniformity is

not  frustrated by the allowance of state law claims for injuries

that are separate and distinct from such loss or damage.

                         III.  Conclusion
                                   III.  Conclusion

          For  the  foregoing  reasons,  the  conclusion  of  the

district  court regarding  the preemptive  effect of  the Carmack

Amendment  is reversed.   In  light of  our ruling,  the district
                                

court's judgment  as to costs, fees and prejudgment interest must

be revisited.  The case is remanded to the district court for the
                                             

entry of an order with  respect to damages and a ruling  on fees,

costs, and interest consistent with this decision.

                               -12-