          Case: 19-11887   Date Filed: 11/05/2019   Page: 1 of 21


                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11887
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cv-22646-KMW


ATLANTIC SPECIALTY INSURANCE COMPANY
a.s.o HUTSON, INC.,
HUTSON, INC.,

                                 Plaintiffs - Appellees,

                                 versus

DIGIT DIRT WORX, INC.,

                                 Defendant - Third Party Plaintiff - Appellant,

NATIONAL INDEMNITY COMPANY OF THE SOUTH,

                                 Third Party Defendant.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                           (November 5, 2019)
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Before ROSENBAUM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

      This case involves a combine harvester that was irreparably damaged during

transportation from Kentucky to Florida. The combine’s owner, Hutson, Inc.

(“Hutson”), hired Defendant-Appellant Digit Dirt Works (“Digit”) through an

intermediary to transport the combine by truck. Less than a mile into its journey,

the combine fell off the side of the trailer during a turn. The impact rendered the

combine inoperable.     Hutson filed a claim with its insurer, Plaintiff-Appellee

Atlantic Specialty Insurance Company (“Atlantic”), which paid Hutson the value of

the combine and then filed this lawsuit against Digit to recover its losses under the

Carmack Amendment, 49 U.S.C. § 14706. Digit defended the lawsuit on two

grounds: (1) the accident was caused by Hutson’s negligence, not its own; and (2) its

liability, if any, was limited to $100,000.     The district court rejected Digit’s

arguments and entered summary judgment in favor of Atlantic in the amount of

$201,391.40. Digit appeals. For the reasons that follow, we vacate and remand for

further proceedings.

                                         I.

      Hutson is an authorized dealer of John Deere equipment. In 2014, Hutson

contacted a transportation broker, Logistics Dynamics, Inc. (“LDI”), to arrange

transportation of a 39,000-pound 2011 John Deere 9870 STS Combine (“Combine”)


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from Russellville, Kentucky, to Jacksonville, Florida. LDI, in turn, hired Digit and

provided the terms of shipment through a document titled “Rate Confirmation,”

which was signed by Digit. The Rate Confirmation listed the shipping rate ($3,100

flat rate), the commodity (the Combine), the weight (39,000 lbs.), the necessary

equipment (48’ removable gooseneck trailer), and the insurance value ($100,000),

and it directed Digit to “Contact Matt Cassidy for loading” at Hutson’s facility on

July 26, 2014.

      On July 26, 2014, Digit’s driver arrived at Hutson’s Russellville facility with

a flatbed trailer. At that time, the Combine was in good working order. The

Combine was loaded onto the flatbed trailer and secured with chains. The central

dispute in this case concerns the loading of the Combine, which is covered in more

detail below. Once the Combine was loaded and secured, Digit issued or accepted

a bill of lading and departed for Jacksonville. The bill of lading permitted the shipper

to declare the value of the shipment, but that space was left blank.

      Less than a mile from Hutson’s facility, the Combine fell off the trailer as

Digit’s driver made a left-hand turn after stopping at a stoplight. The impact

rendered the Combine unusable for its intended purpose. Hutson submitted a claim

with its insurer, Atlantic, which paid Hutson a total of $237,520.40, based on the

value of the Combine ($239,000), plus the cost of reloading it after the fall

($3,520.40), minus a deductible paid by Hutson ($5,000). After selling the Combine


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for salvage ($44,476), Atlantic pursued recovery of its remaining losses from Digit,

ultimately filing this lawsuit as subrogee of Hutson under the Carmack Amendment,

49 U.S.C. § 14706pol.

                                          A.

      Following discovery, Atlantic moved for summary judgment and submitted a

supporting declaration from Jim Gilliam, the “Safety and Compliance Coordinator”

at Hutson. Gilliam testified about the loading of the Combine. He stated that two

Hutson employees, “under D[ig]it’s driver’s supervision,” “drove the Combine onto

the trailer, jacked it up, removed its wheels and tires, and set the Combine back down

on ‘combine blocks.’” Thereafter, Digit’s driver secured the Combine to the trailer

using four chains—two chains per axle—with no further involvement from Hutson’s

employees. Gilliam opined that Digit’s driver should have used twelve chains to

secure the Combine, “as indicated by a diagram visibly located on the steps leading

to the cab of the Combine,” and that inadequate chaining “placed an undue amount

of stress on the left-side chains as the driver negotiated that left-hand turn, causing

the Combine to overturn onto the roadway.”

      Digit filed a response supported by a declaration from Donald Garside, Digit’s

president, owner, and custodian of books and records. According to Garside, Digit

was retained by LDI “to perform carriage of this shipment as a ‘no-touch,’ ‘shipper-

loaded’ load.” In other words, Digit’s driver was “not to be responsible for the


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supervision of the loading, blocking or bracing of the shipment.” After two Hutson

employees loaded and blocked the Combine onto the trailer, they instructed the

driver “as to how to set the chains, and he followed their instructions with precision.”

The chaining complied with applicable Department of Transportation (“DOT”)

regulations. Digit’s driver departed after the Hutson employees confirmed that the

Combine was properly secured.

      Garside further testified that improper blocking, not improper chaining,

caused the Combine to fall off the trailer. Citing post-accident photographs of the

Combine and trailer, Garside asserted that the blocks under the Combine were

improperly placed inside of the Combine’s jack points, creating too narrow of a base

for the top-heavy Combine. Because the base was too narrow, the Combine tipped

more easily when the trailer turned, placing undue stress on the chains and causing

them to break. Garside testified that “[p]roper placement of the blocking”—either

at or outside the jack points—would have prevented the accident.

      Finally, as to the Rate Confirmation’s statement that the insurance value of

the shipment was $100,000, Garside testified that Digit had advised LDI previously

that it did not carry any load with a value in excess of $100,000 without prior notice

and an additional cargo policy in place.

      In reply, Atlantic submitted new evidence in the form of a declaration from

Chester Dulworth, one of the two Hutson employees involved in loading the


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Combine, and a second declaration from Gilliam. In relevant part, Dulworth

testified that he and the other Hutson employee, Steven Coleman, set the Combine

on blocks underneath the Combine’s four jack points, and that he and Coleman had

no “further involvement with the subsequent bracing or securing of the Combine.”

Specifically, they did not instruct Digit’s driver “as to the proper chaining and

securing of the Combine to the trailer.” Dulworth noted that a chaining diagram was

clearly visible on the Combine.

       Digit requested leave to file a surreply because Atlantic made new arguments

and attached additional testimony “to which [Digit] is entitled a response.” The

district court denied this motion in a paperless order entered on the docket because

Atlantic “raise[d] no new arguments that justify the filing of a surreply.”

                                            B.

       On December 4, 2018, the district court granted summary judgment to

Atlantic. In its order, the court began by resolving two evidentiary issues.

       First, the district court found that Gilliam’s and Garside’s “statements about

what occurred during the loading and securing of the Combine” were inadmissible

hearsay. According to the court, neither Gilliam nor Garside witnessed the loading

of the Combine, so they had no personal knowledge, “nor d[id] they indicate that the

individuals who personally witnessed the loading of the Combine would be able to

testify as to those statements at trial.”


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      Second, the district court excluded Gilliam’s and Garside’s opinions about

“what caused the Combine accident.” Because Gilliam and Garside “deduce[d] a

cause of accident based on a specialized (and, seemingly, speculative and

conjectural) reading of the blocks and chains in the [post-accident] photographs,”

the court concluded that expert testimony was necessary “to determine if the photos

reveal anything about the cause of the accident.” But neither Gilliam nor Garside

were designated as experts, so the court excluded their opinions as to cause as

inadmissible lay-opinion testimony.

      The district court then found, based on what it described as “undisputed facts,”

that Atlantic had established a prima facie case of liability under the Carmack

Amendment and that Digit had failed to rebut that case by proving that (a) it was

free from negligence and (b) the damage was caused by an excusable factor.

Specifically, the court concluded the following: (1) there was no evidence Hutson

was responsible for loading and securing the Combine; (2) there was no evidence

that improper block placement was the sole, or even a possible, cause of the accident;

and (3) there was no evidence to contradict Dulworth’s testimony that Digit’s driver

did not place the chains at the direction of Hutson employees. As to the facts

surrounding the loading and securing of the Combine, the court relied primarily on

Dulworth’s declaration.




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      Finally, the district court concluded that Digit’s liability had not been limited

by the Rate Confirmation, which listed an insurance value of $100,000.

Accordingly, the court found that Atlantic was entitled to recover the “actual loss or

injury” to the property.

      Digit timely moved for reconsideration and submitted a declaration from its

driver, Paul Hunziker. Digit argued, among other things, that the district court erred

in granting summary judgment based on evidence—specifically Dulworth’s

declaration—to which it had no opportunity to respond. Digit maintained that

Hunziker’s declaration, which was largely consistent with Garside’s earlier

declaration, contradicted Dulworth’s declaration and created genuine issues of

material fact that precluded summary judgment.

      The district court denied Digit’s motion for reconsideration. In relevant part,

the court noted that the motion for leave to file a surreply did not mention Hunziker

or the importance of his testimony. Further, the court stated that it “did not grant

summary judgment on the basis of the Dulworth declaration.” Finding that the

Hunziker declaration could have been introduced earlier, the court struck it from the

record. Digit now appeals.

                                         II.

      We review de novo the grant of summary judgment, viewing the evidence and

drawing all reasonable inferences in favor of the nonmoving party—here, Digit.


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Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “Summary judgment is improper, however, if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Guevara,

920 F.3d at 720 (quotation marks omitted).

                                        III.

      This case is governed by the Carmack Amendment, which was enacted “to

achieve uniformity in rules governing interstate shipments, including the rules

governing injury or loss to property shipped.” UPS Supply Chain Solutions, Inc. v.

Megatrux Transp., Inc. (“UPS Supply”), 750 F.3d 1282, 1285 (11th Cir. 2014). As

a general rule, it “makes common carriers liable for actual loss of or damage to

shipments in interstate commerce,” A.I.G. Uruguay Compania de Seguros, S.A. v.

AAA Cooper Transp. (“AIG Uruguay”), 334 F.3d 997, 1003 (11th Cir 2003),

thereby “protect[ing] shippers against the negligence of interstate carriers,” Fine

Foliage of Fla., Inc. v. Bowman Transp., Inc., 901 F.2d 1034, 1037 (11th Cir. 1990).

      To establish a prima facie case of liability under the Carmack Amendment,

the shipper must show three things: (1) the goods were delivered to the carrier in

good condition; (2) the goods were damaged during transit; and (3) a specified

amount of damages resulted. AIG Uruguay, 334 F.3d at 1003. The burden then


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shifts to the carrier to prove both that (1) it was free from negligence and (2) the

damage to the cargo was caused by one of five excusable factors. Id. The five

excusable factors are (a) an act of God; (b) the public enemy; (c) the act of the

shipper; (d) public authority; and (e) the inherent nature of the goods. Id.

      If the carrier cannot meet this burden, liability is established, and the question

“then becomes the amount of damages and, usually, whether the carrier legitimately

limited its liability for the shipment to a specified value or amount.” Id. As a general

rule, a carrier is “liable ‘for the actual loss or injury to the property caused by’ the

carrier.” UPS Supply, 750 F.3d at 1286 (quoting 49 U.S.C. § 14706(a)(1)). But an

exception to full liability exists “where a shipper agrees with a carrier to limit the

carrier’s liability in order to obtain a reduced shipping rate.” Id. Specifically, the

Carmack Amendment permits a carrier to limit its liability “to a value established by

written or electronic declaration of the shipper or by written agreement between the

carrier and shipper if that value would be reasonable under the circumstances

surrounding the transportation.” 49 U.S.C. § 14706(c)(1)(A).

      There is no dispute that Atlantic established a prima facie case of liability

under the Carmack Amendment.           Specifically, Atlantic proved that (1) Digit

received the Combine in good condition; (2) the Combine was damaged during

transit; and (3) a specified amount of damages resulted. Accordingly, Digit is liable

unless it can prove that it was free from negligence and that, as relevant here, the


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damage was caused by Hutson. AIG Uruguay, 334 F.3d at 1003. And if Digit is

liable, the question becomes whether it “legitimately limited its liability for the

shipment to a specified value or amount.” Id.

      Digit makes three arguments on appeal. First, it contends that the district court

erred by refusing to give it a chance to respond to materials presented for the first

time in Atlantic’s reply brief and then granting summary judgment on the basis of

that evidence. Second, it argues that the court improperly disregarded Garside’s

testimony on certain matters. Third, it maintains that the Rate Confirmation limited

its liability to $100,000. We address each argument in turn.

                                          A.

      This Circuit recognizes “the importance of giving the nonmovant a

meaningful opportunity to respond to a motion for summary judgment.” Burns v.

Gadsden State Cmty. Coll., 908 F.2d 1512, 1516 (11th Cir. 1990) (discussing former

Rule 56(c), Fed. R. Civ. P.). Because summary judgment is a final disposition on

the merits, courts should not grant summary judgment based on arguments or

evidence to which the nonmoving party has not had a reasonable and meaningful

opportunity to respond with contrary argument or evidence. See id. at 1516–17.

      As we see it, the same principle applies whether new evidence is submitted

with the initial summary-judgment motion or, as here, in a reply brief. And we agree

with our sister circuits that “[w]here new evidence is presented in a reply to a motion


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for summary judgment, the district court should not consider the new evidence

without giving the movant an opportunity to respond.” Provenz v. Miller, 102 F.3d

1478, 1483 (9th Cir. 1996) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th

Cir. 1990)); see also Seay v. Tenn. Valley Auth., 339 F.3d 454, 481–82 (6th Cir.

2003) (district courts must “allow the nonmoving party to respond” when “the

moving party submits in a reply brief new reasons and evidence in support of its

motion for summary judgment”); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164

(10th Cir. 1998) (“[W]hen a moving party advances in a reply new reasons and

evidence in support of its motion for summary judgment, the nonmoving party

should be granted an opportunity to respond.” (citing Cia. Petrolera Caribe, Inc. v.

Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir. 1985))).

      When faced with a reply brief that offers new evidence, we, like the Tenth

Circuit, conclude that the district court has two permissible courses of action. It can

either (1) permit the nonmoving party to file a surreply or (2) refrain from relying

on any new material contained in the reply brief. Beaird, 145 F.3d at 1164. But it

may not preclude the nonmoving party from filing a surreply and then grant

summary judgment based on new material presented only in the reply brief. Here,

though, that is what happened. Though the district court denied Digit an opportunity

to file a surreply, in granting summary judgment, the court repeatedly cited




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Atlantic’s new evidence, specifically Dulworth’s declaration, which was the only

witness testimony as to the loading and securing of the Combine. This was error.

      Nor was Digit required to state more expressly how it intended to respond to

Atlantic’s reply brief. An opposing party is entitled to a response, whatever it may

be, if the court relies on new materials or arguments in a reply brief. See id. (“[I]f

the court relies on new materials or arguments in a reply brief, it may not forbid the

nonmovant from responding to these new materials.”). And it appears that Digit, if

permitted a response, could produce evidence that creates factual disputes as to

which party was responsible for the loading and securing of the Combine. So we

cannot say with any certainty that the failure to give Digit an opportunity to respond

was harmless.

      Accordingly, while district courts ordinarily retain “broad discretion” to

manage their dockets and decide how best to manage the cases before them, Smith

v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014), the court here abused

that discretion by considering new evidence raised by Atlantic in a reply brief and

denying Digit an opportunity to respond. We therefore vacate the grant of summary

judgment and remand to give Digit that opportunity.

                                          B.

      Digit next contends that the district court erred in disregarding certain

statements in Garside’s declaration: (1) that Digit was retained to perform carriage


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of the Combine as a “no-touch,” “shipper-loaded” shipment, and that Digit’s driver

was not to be responsible for supervision of the loading, blocking, or bracing of the

shipment; and (2) that the chains used by Digit’s driver were sufficient under federal

regulations.

      Under Rule 56(c), “An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible

in evidence, and show that the affiant or declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4). District courts may disregard statements

that are not based on personal knowledge or are inadequately supported. Pace v.

Capobianco, 283 F.3d 1275, 1278–80 (11th Cir. 2002).

      Here, the district court did not err in excluding the challenged testimony.

Garside was not present for the loading of the Combine, so he lacks personal

knowledge, and his declaration does not offer grounds for his assertions regarding

the amount of chains used. Nor does the declaration give any explanation of

Garside’s grounds for asserting that carriage of the Combine was to be a “no-touch,”

“shipper-loaded” shipment. While Digit points to the Rate Confirmation as support

for this statement, the Rate Confirmation’s bare instruction to “[c]ontact Matt

Cassidy for loading” cannot reasonably be construed as indicating that Hutson was

entirely responsible for both loading and securing the Combine. Accordingly, the

court properly excluded Garside’s statements.


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       In any case, much of this same testimony is included in the declaration of

Digit’s driver, Hunziker, who has personal knowledge of the loading of the

Combine. So assuming Digit offers Hunziker’s declaration on remand, it appears

that Digit will not by harmed by the exclusion of Garside’s statements, though the

court is free to reconsider the admissibility of Garside’s statements on remand.

                                          C.

       Finally, Digit contends that its liability was limited to $100,000 by the Rate

Confirmation prepared by LDI. As explained above, when a carrier is liable, it is

responsible “for the actual loss or injury to the property caused” unless the carrier’s

liability has been limited pursuant to the Carmack Amendment. UPS Supply, 750

F.3d at 1286.

       In this Circuit, the Carmack Amendment requires a carrier to meet a four-part

test to limit its liability:

       A carrier must (1) maintain a tariff within the prescribed guidelines of
       the Interstate Commerce Commission, (2) give the shipper a reasonable
       opportunity to choose between two or more levels of liability, (3) obtain
       the shipper’s agreement as to the choice of liability, and (4) issue a
       receipt or bill of lading prior to moving the shipment.

Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292, 1306 (11th Cir.

2018) (quoting Werner Enters., Inc. v. Westwind Maritime Int’l, Inc., 554 F.3d 1319,

1326 (11th Cir. 2009)). Atlantic contends that Digit fails on the second prong.




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      To satisfy the second prong, “all that is required . . . is that the intermediary

and the downstream carrier entered into a written contract providing the shipper with

a reasonable opportunity to choose between two or more levels of liability.” Id.

(quotation marks omitted). In this regard, “the intermediary, or the ‘shipper’s agent,’

has the authority to act on the shipper’s behalf.” Id. Therefore, “[w]hen an

intermediary contracts with a carrier to transport goods, the cargo owner’s recovery

against the carrier is limited by the liability limitation to which the intermediary and

carrier agreed.” Id. at 1304 (quoting Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 33

(2004)). That rule holds true even if “the shipper has no knowledge” of the liability

limitation. Id. at 1305.

      Digit maintains that LDI, the intermediary and Hutson’s agent, selected the

level of liability ($100,000) through the Rate Confirmation by which Digit was hired

to transport the Combine, and that no higher value was declared on the bill of lading.

Atlantic responds that an “insurance value” is not the same thing as a “declared

value” and that Digit failed to offer evidence that either LDI or Hutson had a

reasonable opportunity to choose two or more levels of liability.

      When we evaluate the second prong—whether the shipper has a reasonable

opportunity to choose between two or more levels of liability—which party drafted

the liability limitation is important. Although “courts have expounded at length on

the various requirements imposed upon a carrier who drafts the contract seeking to


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limit its own liability, those requirements were intended to protect shippers from

carriers who would take advantage of their own superior knowledge and leverage

when dealing with unwary shippers.” Siren, Inc. v. Estes Express Lines, 249 F.3d

1268, 1271 (11th Cir. 2001).         But courts need not “protect shippers from

themselves.” Id. Therefore, a shipper will generally be bound by a liability

limitation contained in an agreement that it drafted because it has the opportunity to

establish different terms. Id. at 1272 (holding that “where the shipper drafted the

bill of lading and incorporated industry specific terminology which . . . undisputedly

includes a limitation of liability,” the shipper cannot avoid the liability limitation

even if the shipper did not know what the industry term meant); see, e.g., Hughes

Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609, 612 (9th Cir. 1992) (“Here,

Hughes had such reasonable notice and an opportunity to make a deliberate,

thoughtful choice in selecting North American’s liability limit because it drafted the

contract and directly negotiated its terms.”).

      Here, viewing the record in the light most favorable to Digit, summary

judgment should not have been granted to Atlantic on the issue of whether Digit and

LDI agreed to a liability limitation of $100,000. Atlantic’s contention that Hutson

or LDI had no reasonable opportunity to choose between two or more levels of




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liability is belied by the evidence. 1 According to Garside’s declaration, LDI knew

that Digit “did not carry any load with a value in excess of $100,000 without prior

notice and an additional cargo policy in place.” Yet with that knowledge, LDI

prepared the Rate Confirmation setting forth the terms of the shipment, including

the shipping rate and an “insurance value” of $100,000. A reasonable inference from

these facts is that, by informing Digit that the insurance value did not exceed

$100,000, LDI made a choice to ship the Combine at a lower cost. And Hutson did

not state a different “declared value” on the bill of lading in the space provided. In

these circumstances, as in Siren, we do not think it unfair to hold Atlantic to a

liability limitation drafted by its subrogor’s agent.2 See Siren, 249 F.3d at 1271;

Essex Ins., 885 F.3d at 1304.

       Atlantic responds that the Rate Confirmation’s listing of an insurance value

of $100,000 cannot reasonably be construed as a declaration of value. In adopting

similar reasoning in its order denying Digit’s motion for reconsideration, the district

court relied on our decision in Fireman’s Fund Insurance Co. v. Tropical Shipping

and Construction Co., Ltd., 254 F.3d 987, 1000 (11th Cir. 2001). However, while



       1
           Atlantic does not dispute on appeal that the Rate Confirmation constitutes a written
agreement between Digit and intermediary LDI for the transportation of the Combine. So if the
Rate Confirmation contains a liability limitation, Atlantic, as the subrogee of Hutson, is bound by
it even if Hutson had no knowledge of the limitation. See Essex Ins., 885 F.3d at 1304–06.
        2
          “[I]n asserting subrogation rights in the name of its insured, the insurance company stands
squarely in the place of its insured, having no greater and no less rights against the tortfeasor.”
U.S. Fidelity & Guar. Co. v. Carl Subler Trucking, Inc., 800 F.2d 1540, 1541 (11th Cir. 1986).
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Fireman’s Fund distinguished between “insurable value” and “declared value” in

that case under the Carriage of Goods by Sea Act (“COGSA”), see id., we do not

find that distinction persuasive here.

      COGSA imposes a $500-per-package limitation on a carrier’s liability unless

the shipper opts out by declaring a higher value on the bill of lading. Id. at 996. In

Fireman’s Fund, the shipper obtained insurance coverage from an insurer for its

shipment and apparently listed that amount ($2,547,505) on the bill of lading. Id. at

999–1000. When the shipment was damaged, the shipper sought to recover from

the carrier as well, contending that the insurable value listed on the bill of lading

constituted a “declared value” by which the shipper opted out of the COGSA $500

limitation on liability. Id. We rejected that argument, explaining that “the insurable

value is relevant with respect to the amount of premium paid to the insurer for

coverage of a particular shipment,” while “the declared value is relevant in

calculating the higher tariff rate paid to the carrier in order for the shipper to opt out

of the COGSA $500 limitation on liability.” Id. at 1000. And it was undisputed that

the shipper did not pay additional freight charges that would have been required

based on a declared value equivalent to the insurable value. Id. Rather, the shipper

made a “business decision” to rely on its insurance coverage instead of declaring a

higher value on the bill of lading. Id. at 1001–02.




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      In this case, however, the “insurance value” of $100,000 listed on the Rate

Confirmation does not relate to the amount of insurance coverage Hutson had on the

Combine. We know that because Atlantic, Hutson’s insurer, paid Hutson over twice

that amount based on what it found to be the full value of the Combine before the

accident ($239,000). So unlike in Fireman’s Fund, it does not appear that the

“insurance value” listed on the Rate Confirmation “is relevant to the amount of

premium paid to the insurer for coverage” of the Combine. Id. at 1000. And if the

insurance value does not relate to insurance coverage, it must be there to

communicate relevant information about the shipment to the carrier, like the other

terms of shipment included on the Rate Confirmation. That’s consistent with

Garside’s testimony that LDI knew that Digit “did not carry any load with a value

in excess of $100,000 without prior notice and an additional cargo policy in place,”

and that no additional cargo policy was obtained.

      In context, therefore, it appears that the listed value of $100,000 may have

been intended to “to limit the carrier’s liability in order to obtain a reduced shipping

rate.” UPS Supply, 750 F.3d at 1286. In short, we conclude that a material issue of

fact exists concerning whether LDI intended to limit the carrier’s liability in order

to obtain a reduced shipping rate, when it listed a $100,000 “insurance value” on the

Rate Confirmation.




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             Case: 19-11887    Date Filed: 11/05/2019   Page: 21 of 21


                                        IV.

      For the reasons stated above, we vacate the grant of summary judgment in

favor of Atlantic and remand for further proceedings consistent with this opinion.

      VACATED AND REMANDED.




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