[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 11, 2002
THOMAS K. KAHN
No. 01-14463 CLERK
D. C. Docket No. 01-00306 CV-N-W
FRANK H. SMITH,
HARRIETT C. SMITH,
Plaintiffs-Appellants,
versus
UNITED PARCEL SERVICE, (UPS),
Defendant,
PAMELA BURNETTE MARLOW,
UNITED PARCEL SERVICE, INC., (OHIO),
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Alabama
(July 11, 2002)
Before ANDERSON, DUBINA and BLACK, Circuit Judges.
DUBINA, Circuit Judge:
Frank and Harriett Smith (the “Smiths”) appeal the district court’s dismissal
of their claims for fraud, negligence, wantonness, or willfulness, and outrage
against the United Parcel Service (“UPS”) and Pamela Burnett Marlow
(“Marlow”), a UPS delivery person. The district court dismissed the Smiths’
claims as preempted by the Carmack Amendment, 49 U.S.C. § 14706 (1994). We
agree with the district court and hold that the Carmack Amendment preempts all of
the Smiths’ claims because the claims arise from conduct involving UPS’s
transportation and delivery services. Accordingly, we affirm the district court’s
dismissal of the Smiths’ claims.
I. BACKGROUND
A. Facts
October 21, 1998, marked the beginning of an acrimonious relationship
between the Smiths and UPS. On that date, Frank Smith, who is legally blind, and
his son waited for UPS to deliver a computer to the Smiths’ home. UPS failed to
deliver the computer, and instead left a note at the Smiths’ house explaining that it
had attempted delivery. The Smiths called the UPS office and demanded that UPS
deliver the computer that day.
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UPS made two additional trips to the Smiths’ home to deliver the computer.
On the first attempted delivery, Harriett Smith asked her husband and son to assist
the driver, Marlow, with the boxes. While at the truck, the parties exchanged harsh
words, and the Smiths’ son called Marlow an unflattering and derogatory name.
Marlow responded by attempting to pull down the truck door and not delivering
the computer. Frank Smith blocked the door on its descent. Marlow screamed for
help, asserted repeatedly that “these are terrible people,” closed the door of her
truck, and drove down the street where she parked for a period of time before
leaving the area. Marlow promptly reported this altercation to the police, who
investigated but arrested no one. Later that same evening, the local manager of the
UPS office personally delivered the computer to the Smiths’ residence.
Since the date of the altercation, UPS refuses to make regular deliveries to
the Smiths’ home. The Smiths allege that UPS continually promises to make
deliveries to their home, but fails to keep those promises. Rather than regularly
delivering packages to the Smiths’ residence, UPS mails notices to the Smiths’
home stating, “we are unable to complete delivery because: correct street number
needed, not delivered.” [R. Vol. 1 Tab 1.] UPS then places the Smiths’ packages
on “will call” at the local UPS office. Occasionally, if available, a driver other
than Marlow, will deliver packages to the Smiths’ house. The Smiths claim that all
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of the packages that they have picked up at the UPS office have been addressed
correctly. Because Frank Smith is legally blind, he is unable to read the UPS
notices or drive to the UPS office to retrieve packages if his wife is out-of-town.
As a result, UPS has returned some packages to the senders.
B. Procedural History
On April 27, 2000, the Smiths filed suit against UPS and Marlow in the
Circuit Court of Tuscaloosa County, Alabama, for monetary damages and
injunctive relief alleging claims for fraud, negligence, wantonness, or willfulness,
and outrage. The Smiths also alleged claims of discrimination in violation of Ala.
Code § 27-2-1, and claims for suppression and conspiracy. Both UPS and Marlow
asserted a preemption defense under the Carmack Amendment to all of the Smiths’
state law tort claims. On January 3, 2001, the Smiths amended their complaint,
adding new defendants and new claims. UPS and Marlow removed the action in
February of 2001and subsequently filed a motion to dismiss, which the district
court granted. The district court found that the Carmack Amendment preempted
the Smiths’ claims and dismissed the case with prejudice. The Smiths then
perfected this appeal.1
1
The Smiths appeal only the district court’s dismissal of their fraud, negligence, wantonness,
or willfulness, and outrage claims. We thus consider the other claims abandoned. Baker v.
Montgomery, 811 F.2d 557, 558 n.1 (11th Cir. 1987).
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II. ISSUE
Whether the Carmack Amendment, 49 U.S.C. § 14706 (1994), preempts the
Smiths’ state law claims for fraud, negligence, wantonness, or willfulness, and
outrage based upon UPS’s allegedly wrongful acts.
III. STANDARD OF REVIEW
This court reviews the dismissal of a complaint under Federal Rule of Civil
Procedure 12(b)(6) de novo, applying the same standard as the district court.
Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir. 1999). This court must accept
the allegations set forth in the complaint as true for the purposes of a motion to
dismiss. United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir.
1999) (en banc).
IV. DISCUSSION
The Carmack Amendment creates a uniform rule for carrier liability when
goods are shipped in interstate commerce. New York, New Haven, & Hartford R.R.
Co. v. Nothnagle, 346 U.S. 128, 131, 73 S. Ct. 986, 988, 97 L. Ed. 1500 (1953);
Adams Express Co. v. Croninger, 226 U.S. 491, 506, 33 S. Ct. 148, 152, 57 L. Ed.
314 (1913). To accomplish the goal of uniformity, the Carmack Amendment
preempts state law claims arising from failures in the transportation and delivery of
goods. Adams Express, 226 U.S. at 505-06, 33 S. Ct. at 152 (“Almost every detail
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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.”); see North Am. Van Lines, Inc. v. Pinkerton Sec.
Sys., Inc., 89 F.3d 452, 456 (7th Cir. 1996) (explaining that the Carmack
Amendment “preempts all state or common law remedies available to a shipper
against a carrier for loss or damage to interstate shipments”).
The Smiths argue that their claims are separate and distinct from UPS’s
contract of carriage to deliver goods so that the Carmack Amendment’s savings
clause2 excludes their claims from its preemptive effect. The savings clause of the
Carmack Amendment preserves rights and remedies “not inconsistent with the
rules and regulations prescribed by the provisions of this act.” Adams Express, 226
U.S. at 507, 33 S. Ct. at 152. However, the Smiths’ fraud and negligence,
wantonness, or willfulness claims clearly relate to the delivery of goods.
The complaint alleges that UPS committed fraud by accepting shipments for
delivery to the Smiths’ home “knowing that they had no intention of fulfilling or
attempting to deliver.” [R. Vol. 1 Tab 1.] As for the negligence, wantonness, or
willfulness claims, the Smiths allege that UPS “undertook a duty to deliver
2
The savings clause states: “Except as otherwise provided in this part, the remedies provided
under this part are in addition to the remedies existing under another law or common law.” 49
U.S.C. § 15103 (1996).
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packages to [them]” and breached that duty “in failing and refusing to make
deliveries to [them].” [R. Vol. 1 Tab 1.] Carmack Amendment preemption
embraces all of these claims because it embraces “all losses resulting from any
failure to discharge a carrier’s duty as to any part of the agreed transportation. . . .”
Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 196, 36 S. Ct.
541, 544, 60 L. Ed. 948 (1916); see also Southeastern Express Co. v. Pastime
Amusement Co., 299 U.S. 28, 57 S. Ct. 73, 74 81 L. Ed. 20 (1936) (applying
Carmack Amendment preemption to a negligence claim for failure to deliver a film
in a timely manner); New York, Philadelphia & Norfold R.R. Co. v. Peninsula
Produce Exch. of Md., 240 U.S. 34, 38, 36 S. Ct. 230, 232, 60 L. Ed. 511 (1916)
(explaining that Carmack Amendment preemption is “comprehensive enough to
embrace all damages resulting from any failure to discharge a carrier’s duty with
respect to any part of the transportation to the agreed destination”); Moffit v. Bekins
Van Lines Co., 6 F.3d 305 (5th Cir. 1993) (upholding Carmack Amendment
preemption of various state law claims, including fraud, intentional infliction of
emotional distress, and negligence, when a moving company failed to deliver
household goods to a new home in time for Christmas); Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 706 (4th Cir. 1993) (concluding that because “the
Carmack Amendment was intended by Congress to create a national uniform
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policy regarding the liability of carriers under a bill of lading for goods lost or
damaged in shipment . . . . [a]llowing a shipper to bring common law breach of
contract or negligence claims against a carrier for such loss or damage conflicts
with this policy”); Underwriters at Lloyds of London v. North Am. Van. Lines, 890
F.2d 1112, 1121 (10th Cir. 1989) (holding that the Carmack Amendment
preempted state and common law remedies against common carriers); Hughes v.
United Van Lines, Inc., 829 F.2d 1407, 1412 n.5, 1415 (7th Cir. 1987) (holding
that the Carmack Amendment preempted a plaintiff’s claims for negligence, breach
of contract, conversion, intentional misrepresentation, negligent misrepresentation,
and negligent infliction of emotional distress, where his goods were destroyed by a
fire while in transit); Bear MGC Cutlery Co. v. Estes Express Lines, Inc., 132 F.
Supp. 2d 937, 947-48 (N.D. Ala. 2001) (finding Carmack Amendment preemption
of alleged claims for negligence, wantonness, and outrage for failing to properly
deliver goods).
The Smiths contend that UPS’s misrepresentations that it would take
different steps to insure delivery created a new relationship apart from the contract
of carriage so that the Carmack Amendment preemption does not apply. However,
this contention does not alter the fact that the Smiths base their fraud and
negligence, wantonness, or willfulness claims on UPS’s failure to provide them
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with particular transportation and delivery services. Therefore, the Smiths’ claims
fall squarely within the preemption coverage of the Carmack Amendment. See,
e.g., Pietro Culotta Grapes, Ltd. v. Southern Pac. Transp. Co., 917 F. Supp. 713,
715-16 (E.D. Cal. 1996) (finding the Carmack Amendment preempted tort and
contract claims arising from alleged pre-shipment misrepresentations concerning
delivery deadlines); United Van Lines, Inc. v. Shooster, 860 F. Supp. 826, 828-29
(S.D. Fla. 1992) (finding that the Carmack Amendment preempted a claim based
on an alleged fraudulent estimate made to induce a contract).
Likewise, the Smiths’ outrage claim falls squarely within the preemption
coverage of the Carmack Amendment because it too is based on the same conduct -
UPS’s failure to deliver packages to the Smiths’ home. The Smiths argue that the
Carmack Amendment does not preempt their outrage claim, but rather the savings
clause protects this claim, because a claim for outrage remedies an injury to their
person rather than to their goods. This court has not determined whether the
savings clause of the Carmack Amendment protects some claims because they
remedy damage to a person, rather than goods. Among the circuits to visit this
issue, the Fifth and Seventh Circuits have reached contrary conclusions.
In Moffit v. Bekins Van Lines Co., the Fifth Circuit held that the Carmack
Amendment preempted all state law claims, including ones for intentional
9
infliction of emotional distress and negligent infliction of emotional distress, when
a moving company failed to deliver a family’s belongings in time for Christmas. 6
F.3d 305, 307 (5th Cir. 1993). The Fifth Circuit reasoned that to hold otherwise
would defeat the Carmack Amendment’s goal of uniformity. Id. The Seventh
Circuit, on the other hand, held that the Carmack Amendment did not preempt a
claim for intentional infliction of emotional distress. Gordon v. United Van Lines,
Inc., 130 F.3d 282, 286 (7th Cir. 1997).
In Gordon, the plaintiff sued her carrier after it failed to deliver, and
ultimately destroyed, several heirlooms during her relocation. 130 F.3d at 284.
The plaintiff asserted several grounds of relief for the destruction of her property,
including fraud, breach of contract, and willful and wanton conduct. Id. The
Seventh Circuit held that the Carmack Amendment preempted all of those claims
because those claims were essentially based on “the contract of carriage, in which
the harm arises out of the loss of or damage to goods.” Id. at 284, 289 (citing
Hughes, 829 F.2d at 1407. However, the Seventh Circuit held that the plaintiff’s
claim for intentional infliction of emotional distress survived Carmack Amendment
preemption. Id. at 289; But see Hughes, 829 F.2d at 1410, 1412 n.5 (holding that
the Carmack Amendment preempted state common law remedies, including
negligent infliction of emotional distress). The Seventh Circuit, relying heavily on
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dicta from a First Circuit decision,3 reasoned that “a number of situations” may
exist “in which a carrier might remain liable to a shipper for certain kinds of
separate and independently actionable harms that are distinct from the loss of, or
the damage to the goods.” Id. at 289 (citing Pinkerton, 89 F.3d at 458).
While we agree that situations may exist in which the Carmack Amendment
does not preempt all state and common law claims, including ones for outrage,
only claims based on conduct separate and distinct from the delivery, loss of, or
damage to goods escape preemption. See Morris v. Covan Worldwide Moving,
Inc., 144 F.3d 377, 383 (5th Cir. 1998) (acknowledging that the Carmack
Amendment would not preempt claims “separate and apart from those resulting
directly from the loss of shipped property,” but holding that the Carmack
Amendment preempted claims seeking damages for intentional infliction of
emotional distress as well as punitive damages as a result of egregious conduct by
a carrier in the course of discharging its duties); see also Gooch v. Oregon Short
Line R.R. Co., 258 U.S. 22, 42 S. Ct. 192, 66 L. Ed. 443 (1922) (explaining that the
3
The Seventh Circuit decision in Gordon v. United Van Lines, Inc. relies in part on Rini v.
United Van Lines, Inc., 104 F.3d 502, 506 (1st Cir. 1997), in which the First Circuit indicated in
dicta that “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.” 104 F.3d
at 506. The First Circuit further stated that if a plaintiff, who had several items disappear during a
move, had proven her claim for intentional infliction of emotional distress at trial that the Carmack
Amendment would not have preempted that claim. Id.
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Carmack Amendment did not preempt an action involving a physical injury to a
caretaker accompanying an interstate shipment of cattle); Chicago, Rock Island &
Pac. Ry. Co. v. Maucher, 248 U.S. 359, 39 S. Ct. 108, 63 L. Ed. 294 (1919)
(holding that the Carmack Amendment did not preempt a claim by a plaintiff who
was physically injured); Reeves v. Mayflower Transit, Inc., 87 F. Supp. 2d 1251,
1252, 1254 (M.D. Ala. 1999) (finding that the Carmack Amendment preempted an
intentional infliction of emotional distress claim arising from the alleged failure of
a carrier to perform the service of packing, shipping, and delivering goods as
contracted). In other words, separate and distinct conduct rather than injury must
exist for a claim to fall outside the preemptive scope of the Carmack Amendment.
The Smiths allege outrage in that the “actions of [UPS] to deny deliveries to
[them] have been intentional and have been designed to inflict emotional distress.”
[R. Vol. 1 Tab 1.] Although the Smiths seek a remedy for an injury to their person,
the claim results solely from the loss of and misdelivery of their goods. Therefore,
the Smiths’ outrage claim is embraced by the preemptive effect of the Carmack
Amendment.
The Smiths argue that while the controversy involves packages, no doubt
exists that if a UPS driver intentionally assaulted and injured them, the Carmack
Amendment would not preempt their cause of action. We agree. However, the
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Smiths argue further that their claims under these facts are indistinguishable. To
the contrary, we conclude that their claims are vastly different. Their claims of
fraud, negligence, wantonness, or willfulness, and outrage all arise from UPS’s
failure to deliver their packages. The Smiths allege no conduct separate and
distinct from UPS’s failure to transport and deliver packages. Therefore, the
Carmack Amendment preempts the Smiths’ state law tort claims.
V. CONCLUSION
The Supreme Court of the United States has described the preemptive effect
of the Carmack Amendment very broadly. Blish Milling Co., 241 U.S. at 196, 36
S. Ct. at 544. The Carmack Amendment embraces “all losses resulting from any
failure to discharge a carrier’s duty as to any part of the agreed transportation.” Id.
Because the Smiths base all of their claims on allegations concerning UPS’s failure
to provide them with transportation and delivery services, the Carmack
Amendment preempts their claims. Accordingly, we affirm the district court’s
judgment of dismissal.
AFFIRMED.
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