[Cite as Verhoogen v. United Parcel Serv., Inc., 2013-Ohio-2305.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ALEX R. VERHOOGEN                                      :        JUDGES:
                                                       :        Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                             :        Hon. Sheila G. Farmer, J.
                                                       :        Hon. Patricia A. Delaney, J.
-vs-                                                   :
                                                       :
UNITED PARCEL SERVICE, INC.                            :        Case No. 12CA82
AND UPS STORE 3832                                     :
                                                       :
        Defendants-Appellants                          :        OPINION


CHARACTER OF PROCEEDING:                                        Appeal from the Mansfield Municipal
                                                                Court, Case No. 10-CVE-1664


JUDGMENT:                                                       Reversed



DATE OF JUDGMENT:                                               June 4, 2013



APPEARANCES:

For Plaintiff-Appellee                                          For Defendant-Appellant United
                                                                Parcel Service, Inc.
ALEX R. VERHOOGEN, PRO SE
585 Austin Road                                                 ROGER P. SUGARMAN
Mansfield, OH 44903                                             KATHERINE CONNOR FERGUSON
                                                                Capitol Square, Suite 1800
                                                                65 East State Street
                                                                Columbus, OH 43215

                                                                For The UPS Store 3832

                                                                CORNELIUS J. O'SULLIVAN, JR.
                                                                6480 Rockside Woods Blvd., South
                                                                Suite 145
                                                                Independence, OH 44131
Richland County, Case No. 12CA82                                                       2

Farmer, J.

        {¶1}   On August 28, 2008, appellee, Alex Verhoogen, caused a parcel

containing a stove top to be shipped from The UPS Store 3832 (hereinafter "Store") in

Spokane, Washington, to Mansfield, Ohio.         Appellant, United Parcel Service, Inc.

shipped the parcel. The stove top arrived damaged.

        {¶2}   On June 25, 2010, appellee filed a complaint for damages against

appellant and Store in the Mansfield Municipal Court. On March 31, 2011, appellant

filed a motion for summary judgment, claiming it was not liable for damages over

$100.00 based on the Carmack Amendment, and appellee had no standing to sue. By

judgment entry filed May 2, 2011, the trial court denied the motion.

        {¶3}   A bench trial commenced on April 24, 2012.        By judgment entry filed

August 3, 2012, the trial court found in favor of appellee as against appellant and Store

in the amount of $4,183.54.

        {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

        {¶5}   "VERHOOGEN'S STATE LAW CLAIMS ARE PREEMPTED BY FEDERAL

LAW."

                                            II

        {¶6}   "VERHOOGEN HAS NO STANDING TO SUE UPS."
Richland County, Case No. 12CA82                                                        3


                                              III

       {¶7}   "EVEN IF VERHOOGEN HAD STANDING TO SUE UPS, HE MUST

STAND IN THE SHOES OF THE SHIPPER; THEREFORE, VERHOOGEN IS

SUBJECT TO THE TERMS AND CONDITIONS OF THE UPS TARIFF."

                                              IV

       {¶8}   "THE CARMACK AMENDMENT AND THE UPS TARIFF LIMIT UPS'S

LIABILITY FOR LOSS OR DAMAGE TO PACKAGES."

                                              V

       {¶9}   "VERHOOGEN IS BOUND BY THE TERMS OF THE UPS TARIFF, AND

NO SHIPPER OR THIRD PARTY HAS AUTHORITY TO WAIVE OR VARY THE

TERMS OF THE UPS TARIFF."

                                           I, II, IV

       {¶10} Appellant claims the trial court erred in awarding appellee in excess of

$100.00 plus shipping costs based on the fact that there was no privity of contract

between appellant and appellee, and the Carmack Amendment to the Interstate

Commerce Act, 49 U.S.C. 14706, is controlling.

       {¶11} The parcel shipping order (Plaintiff's Exhibit 2) and the shipment receipt

and credit card billing (Defendant's Exhibit 2) set forth the contractual relationships of

the parties. Appellant is not identified as a party to the shipping order between appellee

and Store. Plaintiff's Exhibit 2 specifically identifies Store as the contractor:



              1. Subject to these terms and condition, this The UPS Store®

       center ("We" or "Us") will receive, forward and/or pack parcels for
Richland County, Case No. 12CA82                                                        4


      customer ("You" or "Your"). The carrier for all parcels accepted by Us

      shall be UPS unless noted here ____.          Your true name and address

      appear on the shipping label.      You confirm the accuracy of "Ship To"

      address (____ initial here).

             3. We do not transport Your parcels. We assume no liability for the

      delivery of the parcels accepted for shipment or for loss or damage by any

      cause to the parcels or their contents while in transit. You agree that

      carrier's liability for lost or damaged parcels is limited by the provisions in

      this PSO. You agree to all terms and conditions on this PSO whether or

      not declared value is purchased.       Driver may deliver parcel without a

      signature unless You request a signature on delivery and pay any

      applicable charge for such service. Carrier is not liable for loss or damage

      occurring after delivery.



      {¶12} Defendant's Exhibit 2 includes the shipping receipt that clearly delineates

that payment was made to Store. We conclude there was no privity of contract between

appellant and appellee.

      {¶13} Appellant also argues any liability is limited by the Carmack Amendment

to the Interstate Commerce Act, 49 U.S.C. 14706. Defendant's Exhibit 3 is the UPS

Tariff/Terms and Conditions of Service for Small Package Shipments in the United

States. Section VI(G)(1) and (2) state the following:



             G. LIMITATIONS OF LIABILITY
Richland County, Case No. 12CA82                                                    5


             1. Each UPS domestic package or international shipment is

      automatically protected by UPS against loss or damage up to a value of

      $100. Unless a greater value is recorded in the declared value field of the

      UPS source document or the UPS shipping system used, the shipper

      agrees that the released value of each domestic package or international

      shipment is no greater than $100, which is a reasonable value under the

      circumstances surrounding the transportation, and that UPS shall not be

      liable for more than $100 for each domestic package or international

      shipment.

             2. If additional protection is desired, the shipper may declare a

      value in excess of $100, subject to the maximum allowable limits, by

      showing a value in excess of $100 in the declared value field of the UPS

      source document or the UPS shipping system used. An additional charge

      as set forth in the UPS Rates in effect at the time of shipping will be

      assessed. UPS shall not be liable under any circumstances for an amount

      in excess of the declared value of a domestic package or international

      shipment. When a shipper declares a value in excess of $100, it does not

      receive any form of insurance. Shippers desiring cargo insurance, all risk

      insurance, or another form of insurance should purchase such insurance

      from a third party.
Richland County, Case No. 12CA82                                                         6


       {¶14} As explained in appellant's brief at 11, federal courts have determined the

Carmack Amendment permits carriers to limit their liability as long as the shipper's tariff

sets forth its limitations:



               Courts have uniformly enforced liability limitations contained in

       carrier's tariffs, including the limitation provisions in UPS's Tariff. See,

       e.g., Kemper Ins. Cos. v. Federal Express Corp., 115 F. Supp. 2d 116,

       121 (D. Mass. 2000) (enforcing carrier's limitations provision limiting

       liability for lost or damaged jewelry to maximum amount of $500 pursuant

       to federal common law, which relies upon the Carmack Amendment).

       Moreover, courts have explicitly recognized that rate structures that set

       rates and limit liability benefit shippers by allowing them to ship items at

       lower rates that would not otherwise be available if carriers faced unlimited

       liability for every shipment. Adams Express Co. v. Croninger, 226 U.S. at

       509-11.

               Indeed, courts have recognized that such limitations are necessary

       in order for common carriers like UPS to be able to provide affordable

       shipping services. See Husman Constr. Co. v. Purolator Courier Corp.,

       832 F.2d 459, 462 (*th Cir. 1987) ("[I]t is unreasonable to subject a carrier

       to liability for enormous and unforeseeable consequential damages in

       return for an $11.75 shipment fee."); Hill Constr. Corp. v. Am. Airlines,

       Inc., 996 F.2d 1315, 1317 (1st Cir. 1993) (liability limitations permit a

       carrier "to avoid unforeseeably high liability for especially valuable cargo;
Richland County, Case No. 12CA82                                                     7


      they permit shippers of ordinary items to pay somewhat lower freight

      bills"); American Ry. Express Co. v. Lindenburg, 260 U.S. 584, 592

      (1923).



      {¶15} The above cited tariff of UPS imposes a limitation and omits consequential

damages [Section VI(G)(5) and (20)]:



             5. Whenever property is damaged or lost by UPS in the course of

      transportation, UPS's maximum liability per domestic package or

      international shipment shall not exceed the lesser of:

             a. $100 when no value in excess of $100 is declared on the source

      document or shipping system used (or when a value in excess of $100 is

      declared, but the applicable declared value charges are not paid);

             b. the declared value on the source document or shipping system

      used when a value in excess of $100 is declared and the applicable

      declared value charges paid;

             c. the purchase price paid by the consignee (where the shipped

      property has been sold to the consignee);

             d. the actual cost of the damaged or lost property;

             e. the replacement cost of the property at the time and place of loss

      or damage; or

             f. the cost of repairing the damaged property.
Richland County, Case No. 12CA82                                                        8


              20. Under no circumstances shall UPS be liable for any special,

       incidental, or consequential damages arising from any package or

       shipment, including but not limited to, damages arising from loss,

       misdelivery of, or damage to property, delayed delivery, or failure to

       attempt delivery in accordance with the UPS Service Guarantee. Under

       no circumstances shall UPS be liable for any damages whatsoever for

       delayed delivery, except as specifically provided for shipments made

       under the UPS Service Guarantee.



       {¶16} Although appellee listed on the parcel shipping order (Plaintiff's Exhibit 2)

the declared value of $950.00, he did not purchase declared value coverage. On the

shipment receipt (Defendant's Exhibit 2), nothing was charged under "Service Options."

       {¶17} Upon review, we find the trial court erred in awarding judgment to appellee

as against appellant in excess of $159.19 in damages ($100.00 plus the $59.19 for the

cost of shipping).

       {¶18} Assignments of Error I, II, and IV are granted.

       {¶19} Assignments of Error III and V are rendered moot.
Richland County, Case No. 12CA82                                                9


      {¶20} The judgment of the Mansfield Municipal Court of Richland County, Ohio

is hereby reversed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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