[Cite as Dickson v. UPS Store, 2016-Ohio-5576.]



                           STATE OF OHIO, MAHONING COUNTY
                                 IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

ROBERT L. DICKSON,                                )
                                                  )
        PLAINTIFF-APPELLANT,                      )
                                                  )           CASE NO. 15 MA 0222
V.                                                )
                                                  )                  OPINION
THE UPS STORE, et al.,                            )
                                                  )
        DEFENDANTS-APPELLEES.                     )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from Court of Common
                                                  Pleas of Mahoning County, Ohio
                                                  Case No. 14 CV 2961

JUDGMENT:                                         Affirmed

APPEARANCES:
For Plaintiff-Appellant                           Attorney James S. Gentile
                                                  42 N. Phelps St.
                                                  Youngstown, Ohio 44503

For Defendants-Appellees                          Attorney Cornelius O’Sullivan
                                                  6480 Rockside Woods Blvd., South
                                                  Suite 145
                                                  Independence, Ohio 44131

                                                  Attorney Roger Sugarman
                                                  600 Superior Avenue Est, Suite 2510
                                                  Columbus, Ohio 43215

JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                  Dated: August 22, 2016
[Cite as Dickson v. UPS Store, 2016-Ohio-5576.]
DONOFRIO, P.J.

        {¶1}    Plaintiff-appellant, Robert Dickson, appeals the decision of the
Mahoning County Common Pleas Court denying his motion for summary judgment
and granting summary judgment to Defendants-appellees, United Parcel Service, Inc.
and the UPS Store #5808.
        {¶2}    Appellant owned a Galaxy Saturn 2001 amplifier which was in need of
repair. On January 18, 2008, Appellant contracted with Appellee, the UPS Store
#5808 (“TUPSS”), located in Austintown, Ohio, for shipment of the amplifier to Wilson
Center Electronics in Johnson City, Tennessee for repairs. (Dickson Dep. 10, 15,
Exhibits A and B; Pilolli Aff. ¶ 4-5). Appellant signed a Parcel Shipping Order (“PSO”).
(Dickson Dep. 8-9, Exhibit A). On the PSO, Appellant stated a declared value for the
amplifier of $4000.00. (Dickson Dep. 9, Exhibit A; Pilolli Aff. ¶ 6). Dickson testified
that, as a part of this transaction, he purchased insurance to ship his amplifier, but
does not know how much extra he paid for the insurance. (Dickson Dep. 9).
        {¶3}    TUPSS arranged with Defendant-appellee, United Parcel Service, Inc.
(“UPS”), for the transport of the amplifier to Tennessee. Appellant’s amplifier was
successfully delivered by UPS to Wilson Center Electronics. (Dickson Dep. 15; 25).
        {¶4}    After Wilson Center Electronics reported to Appellant that his amplifier
had been repaired, he sought to have it returned to TUPSS. Appellant testified that
he dealt with a UPS Store in Tennessee to have the amplifier repackaged and
shipped to TUPSS. (Dickson Dep. 18). Patricia Pilolli, manager of TUPSS, signed an
affidavit indicating that Appellant, on September 24, 2008, contracted with TUPSS to
have the amplifier shipped back to TUPSS from Wilson Center Electronics. (Pilolli Aff.
¶ 7-8). Thus, it is somewhat unclear who contracted with a UPS Store in Tennessee
to return the amplifier to TUPSS. The UPS system contains no records relative to this
transaction because too much time has passed. (McDermott Aff. ¶ 6).
        {¶5}    Appellant states that when he opened the box containing his amplifier,
he discovered it was damaged. (Dickson Dep. 20). At some point, Appellant notified
TUPSS that the amplifier was damaged. (Dickson Dep. 20-21; Pilolli Aff. ¶ 9).
Appellant testified that TUPSS asked him if he purchased insurance. (Dickson Dep.
                                                                                 -2-


20-21). When he told them he had, Appellant claims TUPSS told him that the
insurance company would take care of it and that they would get back in touch with
Appellant. (Dickson Dep. 20-21). Pilolli testified that “As the shipper of record,
TUPSS filed a claim on behalf of Plaintiff with UPS for damage to the Amplifier.”
(Pilolli Aff. ¶ 10).
        {¶6}    Appellant testified that his amplifier was then shipped by TUPSS to a
repair shop in Pittsburgh. (Dickson Dep. 22). On May 15, 2009, UPS paid $1,789.69
to TUPSS for what is described by Pilolli as the replacement cost of the amplifier plus
Appellant’s out-of-pocket shipping costs. (Pilolli Aff. ¶ 11). (There is no Civ.R. 56(C)
evidence in the record to determine how the replacement cost was determined.
Neither is there any evidence to suggest that this is the incorrect replacement cost or,
if incorrect, what the correct amount would be. There is a letter from Patricia Pilolli,
TUPSS, to Counsel for Appellant dated November 13, 2009, describing efforts made
to determine a repair or replacement cost. The letter makes multiple references to
insurance. The letter is attached to Appellant’s Motion in Opposition to Motion for
Summary Judgment and Plaintiff’s Motion for Summary Judgment). On May 28,
2009, TUPSS mailed a check to Appellant in this amount indicating the check was for
full and final payment of his claim. (Pilolli Aff. ¶ 13-14). Appellant rejected the check.
(Pilolli Aff. ¶ 14).
        {¶7}    Almost four years later, on April, 5, 2013, Appellant filed a complaint in
Austintown County Court. The case was eventually transferred to Mahoning County
Common Pleas Court. On March 3, 2015, Appellant filed a Second Amended
Complaint against TUPSS and UPS. Appellant sets forth three claims. First,
Appellant asserts a breach of contract claim against Appellees for damaging his
electronic system in transit. Second, Appellant claims that Appellees engaged in
fraud and misrepresentation by stating to Appellant that they were selling him
insurance. Third, Appellant alleges Appellees have converted his amplifier since it
has never been returned to him. Both UPS and TUPSS filed answers.
        {¶8}    On August 10, 2015, UPS and TUPSS jointly filed a motion for
                                                                                -3-


summary judgment. Appellant responded and also filed a motion for summary
judgment. UPS and TUPSS appear to have filed a joint reply, although the title of the
reply suggests that only UPS replied. (See United Parcel Service, Inc.’s Reply to
Plaintiff’s Motion in Opposition to Motion for Summary Judgment and United Parcel
Service, Inc.’s Opposition to Plaintiff’s Motion for Summary Judgment [signed by
counsel for both UPS and TUPSS]. In the reply, UPS [and TUPPS] emphasize that
they are separate entities and not one in the same).
       {¶9}   On November 25, 2015, the trial court granted summary judgment to
both UPS and TUPSS. The trial court concluded that any claim against UPS was
preempted by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.
14706; that Appellant’s claim against UPS was filed outside of the statute of
limitations; that Appellant had no standing to sue UPS; that UPS’s liability is limited
by federal law and the UPS Tariff; that UPS has already paid the maximum amount
of the claim; and, with regard to TUPSS, that there was no evidence presented that
TUPSS was negligent in any manner. The trial court denied Appellant’s motion for
summary judgment because Appellant’s state law claims were preempted by federal
law. Appellant filed a timely appeal.
       {¶10} Appellant presents one assignment of error which states:

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       AS THE CARMACK AMENDMENT WAS NOT FOLLOWED AND
       THEREFORE WAIVED AND APPELLEE’S REMEDIES WERE NOT
       PREEMPTED.

       {¶11} An appellate court reviews the granting of summary judgment de novo.
Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus,
we shall apply the same test as the trial court in determining whether summary
judgment was proper.
       {¶12} A court may grant summary judgment only when (1) no genuine issue
of material fact exists; (2) the moving party is entitled to judgment as a matter of law;
                                                                                -4-


and (3) the evidence can only produce a finding that is contrary to the non-moving
party. Mercer v. Halmbacher, 9th Dist. No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C).
The initial burden is on the party moving for summary judgment to demonstrate the
absence of a genuine issue of material fact as to the essential elements of the case
with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280,
292, 662 N.E.2d 264 (1996). If the moving party meets its burden, the burden shifts
to the non-moving party to set forth specific facts to show that there is a genuine
issue of material fact. Id.; Civ.R. 56(E). “Trial courts should award summary judgment
with caution, being careful to resolve doubts and construe evidence in favor of the
nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346,
1993-Ohio-191, 617 N.E.2d 1129.
      {¶13} The trial court concluded that Appellant’s claims against UPS were
governed by the Carmack Amendment and, after applying the same, UPS was
entitled to summary judgment. The trial court furthered granted summary judgment
to TUPSS because Appellant failed to produce any evidence that TUPSS was
negligent. Appellant claims that the trial court’s error is that the Carmack Amendment
was not followed and therefore its provisions were waived. Therefore, according to
Appellant, his state law claims were not preempted.
      {¶14} Appellant contracted with TUPSS to ship his amplifier to/from
Tennessee. The PSO signed by Appellant reflects that TUPSS was not the carrier
and that TUPSS would employ UPS as the carrier. The Carmack Amendment to the
Interstate Commerce Act governs the relationship between a shipper and a carrier
and preempts all state laws with regard to a carrier’s liability. Adams Express Co. v.
Croninger, 226 U.S. 491, 505-506, 33 S.Ct. 148, 57 L.Ed. 314 (1913). The Carmack
Amendment provides, in pertinent part:

      A carrier providing transportation * * * shall issue a receipt or bill of
      lading for property it receives for transportation under this part. That
      carrier and any other carrier that delivers the property * * * are liable to
      the person entitled to recover under the receipt or bill of lading. The
                                                                                   -5-


       liability imposed under this paragraph is for the actual loss or injury to
       the property caused by (A) the receiving carrier, (B) the delivering
       carrier, or (C) another carrier over whose line or route the property is
       transported * * * Failure to issue a receipt or bill of lading does not affect
       the liability of a carrier. * * *

49 U.S.C. 14706(a)(1). UPS is the carrier. As explained in the PSO signed by
Appellant, TUPSS agreed to package and contract with UPS for the transportation of
his amplifier. Thus, UPS, the “carrier”, is liable only to TUPSS.
       {¶15} In his sole assignment of error, Appellant asserts that the Carmack
Amendment was not “followed,” was therefore “waived,” and thus Appellant’s claims
pursuant to state law are not preempted by the Amendment. Appellant does not
explain how the Carmack Amendment was not followed and why or how preemption
is somehow waived. More importantly, Appellant cites no authority to support this
assertion and/or what would legally constitute a waiver. Thus, the trial court’s
conclusion that federal law preempts state law with regard to the relationship
between shippers and carriers is correct and is affirmed. Both UPS and TUPSS
complied with the Carmack Amendment. Pursuant to 49 U.S.C. 14706(a)(1) quoted
above, UPS is only liable to TUPSS. Thus, here, Appellant had no standing to sue
UPS.
       {¶16} Furthermore, the Carmack Amendment allows carriers to establish
various terms regarding shipments, often referred to as “Tariffs”. Properly published
tariffs are incorporated into any agreement between the shipper and the carrier. 49
U.S.C. 14706(a)(c); Aero Trucking Inc. v. Regal Tube Co., 594 F.2d 619, 621 (7th
Cir. 1979); Verhoogen v. United Parcel Service, Inc., 5th Dist. No. 12CA82, 2013-
Ohio-2305, ¶ 14. Shawn McDermott, the Security Supervisor for UPS’s Great Lakes
District, explained in an affidavit that UPS maintains and publishes a tariff and that
the tariff applicable to the amplifier in this case, to which UPS and TUPSS are bound,
is the “UPS Tariff/Terms and Conditions of Service for Small Package Shipments in
the United States, Effective September 2, 2008” (“UPS Tariff”). (McDermott Aff. ¶ 7-
                                                                                     -6-


10). The UPS Tariff is attached to McDermott’s affidavit and explains that third-party
retailers and UPS authorized shipping outlets are independently owned and operated
and not agents of UPS. (Exhibit C1, attached to McDermott Aff., UPS Tariff § III.C.).
The Tariff states that UPS assumes no liability for lost, damaged, or delayed
shipments sent via a third-party retailer other than to the third-party retailer. Id. UPS’s
liability to the third-party retailer is subject to the limitations in the UPS Tariff. Id. The
third-party retailers are solely responsible for refunds and claims to those who ship
packages through the third-party retailer. Id. Thus, both the Carmack Amendment
and the UPS Tariff prohibit Appellant from suing UPS. Only TUPSS can sue UPS.
       {¶17} The Carmack Amendment also limits the liability of UPS, the carrier, to
“the actual loss or injury to the property.” 49 U.S.C. 14706(a)(1). The Carmack
Amendment allows a carrier to establish “rates for the transportation of property * * *
under which the liability of the carrier for such property is limited to a value
established by written or electronic declaration of the shipper * * *.” 49 U.S.C.
14706(c)(1)(A). Here, UPS limited its liability through its Tariff. The Tariff provided, in
pertinent part, that UPS’s maximum liability was the lesser of the following: $100.00
when no value in excess of $100.00 is declared; the declared value if in excess of
$100.00 if the value charges are paid; the actual cost of the damaged or lost
property; the replacement cost of the property at the time and place of the loss; or the
cost of repairing the property. UPS Tariff § VI.G.5, p. 40. UPS, then, if liable, is liable
only for the lesser of the above amounts. UPS tendered $1,789.69 to TUPSS.
TUPSS forwarded a check in this amount to Appellant. He rejected it. Appellant
presented no Civ.R. 56(C) evidence to demonstrate that this amount is incorrect. The
trial court correctly concluded that even if Appellant could sue UPS, UPS’s liability is
limited by the Tariff, that UPS paid what it concluded it owed under the Tariff to
TUPSS, and TUPSS forwarded payment in this amount to Appellant. Appellant
seemingly argues that by not paying the declared value of $4000.00, UPS failed to
follow the Carmack Amendment and thus “waived” any ability to assert the same.
Appellant has cited no legal authority to support this position. UPS’s liability is
                                                                               -7-


properly limited by the terms of the Carmack Amendment and the UPS Tariff. Absent
evidence to the contrary as to the lesser of the above limits on liability, UPS paid
TUPSS what it determined to be the appropriate amount. Again, Appellant does not
specifically challenge this amount but, as noted above, asserts that UPS failed to
follow the Carmack Amendment. The above facts indicate the contrary.
       {¶18} Appellant has failed to present any reason or cite any law to support his
argument that UPS, or TUPSS, somehow failed to “follow” the Carmack Amendment
and thereby “waived” it so as to reinstate any state law claims Appellant might
otherwise have been able to make against UPS. Appellant and UPS here had no
agreement. Appellant contracted with TUPSS. The relationship between TUPSS and
UPS is governed by the Carmack Amendment. Each followed the terms of the
Carmack Amendment and the accompanying UPS Tariff. Appellant did not have
standing to sue UPS. It has made payment which TUPSS accepted as payment in
full. TUPSS tendered the same amount to Appellant. Appellant has offered no
evidence to demonstrate that this is the incorrect amount.
       {¶19} The trial court also granted summary judgment to TUPSS. The
allegations in Appellant’s complaint against TUPSS are the same as those against
UPS, i.e., breach of contract, fraud and misrepresentation, and conversion. Appellant
makes little or no distinction between UPS and TUPSS. In fact, in the reply filed by
UPS, and signed by counsel for both UPS and TUPSS, UPS complains of Appellant’s
failure to make this distinction.
       {¶20} The trial court’s judgment entry granting summary judgment to TUPSS
does not address the breach of contract, fraud and misrepresentation, and
conversion claims. It, also, does not conclude that these state law claims are
preempted by the Carmack Amendment or any other federal law. Instead, it
concludes that TUPSS is entitled to summary judgment because Appellant “has not
produced evidence that TUPSS was negligent”, i.e., that TUPSS caused the damage
to Appellant’s amplifier. (Judgment Entry, p. 3). Appellant has not assigned this as
an error. In fact, in its brief, TUPSS states as its legal argument that since Appellant
                                                                              -8-


has only assigned as error the trial court’s application of the Carmack Amendment to
the defenses of UPS, it has no basis to file a brief.
       {¶21} However, in the body of his brief, Appellant cites Missouri Pac. R. Co. v.
Elmore and Stahl, 377 U.S. 134, 84 S. Ct. 1142, 12 L.Ed.2d 194 (1964) for the
proposition that negligence is not the applicable standard and that strict liability
should be applied. Missouri is a case involving a dispute between a carrier and a
shipper under the Carmack Amendment. This is not the relationship between
Appellant and TUPSS. Missouri is not applicable to any claim Appellant makes
against TUPSS. Further, it is noted that in regard to the transaction between UPS
and TUPSS here there was never any discussion of negligence or strict liability. It
seems that UPS acknowledged that as the carrier of goods that were delivered in a
damaged state, it was obligated to pay for the damage as outlined in the Carmack
Amendment and the UPS Tariff discussed above. UPS made a payment to TUPSS.
       {¶22} Appellant does not assign any error to the trial court’s denial of
Appellant’s motion for summary judgment.
       {¶23} Based on the foregoing, Appellant’s assignment of error is without merit
and is overruled. The trial court’s decision granting the motion of Appellees UPS and
TUPSS for summary judgment and denying Appellant’s motion for summary
judgment is affirmed.


DeGenaro, J., concurs.

Robb, J., concurs.
