[Cite as Dean v. UPS Legal Dept., 2014-Ohio-619.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ATHENS COUNTY

JARED DEAN,                                                :       Case No. 13CA21
                                                           :
          Plaintiff-Appellee,                              :
                                                           :       DECISION AND
          v.                                               :       JUDGMENT ENTRY
                                                           :
UPS LEGAL DEPARTMENT,                                      :
                                                           :       RELEASED: 02/14/14

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:1

Roger P. Sugarman and Katherine Connor Ferguson, Kegler, Brown, Hill & Ritter,
Columbus, Ohio, for appellant.
______________________________________________________________________
Harsha, J.

          {¶1}    United Parcel Service Legal Department (UPS) appeals the trial court’s

entry awarding Jared Dean $1,600 in damages for a tankless water heater that was

damaged during shipping. UPS argues that Dean’s state law claims are preempted by

federal law. We agree. The Carmack Amendment to the Interstate Commerce Act

exclusively governs all claims against common carriers, such as UPS, for damage to

property during interstate shipment. Therefore, Dean’s state law claims are preempted

by the Carmack Amendment and the trial court erred by applying state law to award

judgment in Dean’s favor.

                                                  I. FACTS

          {¶2}    After Dean bought a water heater from a local retailer for $500 and sold it

to a buyer on Ebay for $1600, he took it to a Staples location in Athens, Ohio for


1
    Appellee, Jared Dean, did not file a brief or otherwise make an appearance in this appeal.
Athens App. No. 13CA21                                                                      2

shipment via UPS. Dean declared the value of the water heater as $1600 and Staples

accepted the water heater in the original manufacturer’s packaging; Staples transferred

the water heater to UPS for shipment. However, the water heater arrived in California

damaged and the buyer refused to accept delivery.

       {¶3}   Dean filed a claim with UPS, but it determined the water heater was

improperly packaged and denied his claim. He disputed this determination and his

claim was again denied for the same reason. Dean then filed a claim with Staples,

which was also denied.

       {¶4}   Thereafter, Dean filed a small claims petition with the Athens County

Municipal Court against UPS requesting a judgment in the amount of $1740 for the

value of the item plus the cost of shipping. The court set the matter for trial, at which

time UPS filed a trial brief raising several defenses, including preemption based upon

the Carmack Amendment. After the trial the court awarded Dean $1600, the value of

the water heater. UPS appeals the trial court’s judgment.

                             II. ASSIGNMENTS OF ERROR

       {¶5}   UPS raises four assignments of error for our review:

       1. THE TRIAL COURT ERRED IN ITS APRIL 8, 2013 DECISION AND
       JUDGMENT ENTRY BY GRANTING JUDGMENT IN FAVOR OF THE
       PLAINTIFF DEAN AGAINST UPS IN ANY AMOUNT BECAUSE UPS IS
       ONLY LIABLE TO THE SHIPPER AND DEAN WAS NOT THE SHIPPER.

       2. THE TRIAL COURT ERRED IN ITS APRIL 8, 2013 DECISION AND
       JUDGMENT ENTRY BY GRANTING JUDGMENT IN FAVOR OF THE
       PLAINTIFF DEAN AGAINST UPS IN ANY AMOUNT BECAUSE DEAN
       BREACHED THE SHIPPING CONTRACT BY FAILING TO PROPERLY
       PREPARE AND PACK THE SUBJECT PACKAGE FOR SHIPPING IN
       THE SINGLE PARCEL ENVIRONMENT.

       3. THE TRIAL COURT ERRED IN ITS APRIL 8, 2013 DECISION AND
       JUDGMENT ENTRY BY GRANTING JUDGMENT IN FAVOR OF THE
Athens App. No. 13CA21                                                                          3

       PLAINTIFF DEAN AGAINST UPS IN ANY AMOUNT BECAUSE DEAN’S
       RECOVERY UNDER THE SHIPPING CONTRACT IS LIMITED TO THE
       AMOUNT HE PAID FOR THE TANKLESS WATER HEATER, AND THE
       PLAINTIFF ADMITTED THAT THE TANKLESS WATER HEATER IS
       STILL WORTH THE AMOUNT HE PAID FOR IT.

       4. IN THE ALTERNATIVE, THE TRIAL COURT ERRED IN ITS APRIL 8,
       2013 DECISION AND JUDGMENT ENTRY BY GRANTING JUDGMENT
       IN FAVOR OF PLAINTIFF DEAN AGAINST UPS IN ANY AMOUNT
       OTHER THE ACTUAL LOSS OR INJURY TO THE TANKLESS WATER
       HEATER.

                                 III. LAW AND ANALYSIS

       {¶6}   UPS first argues that the trial court erred by awarding Dean $1600

because the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 14706,

exclusively governs common carrier liability for damage to shipped property and

preempts Dean’s state common law claims.

       {¶7}   Because this argument does not directly address any of the assignments

of error and has not been separately assigned as error as required by App.R.

12(A)(1)(b), it would be within our discretion to simply disregard it. See Davis v. Byers

Volvo, 4th Dist. Pike No. 11CA817, 2012-Ohio-882, ¶ 2, fn.1. Nevertheless, in the

interests of justice and because this argument, like the assignments of error, contests

the trial court’s entry awarding Dean damages, we will consider UPS’s argument as an

assignment of error.

       {¶8}   “The interstate shipment of goods is a complicated business.” REI

Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 695 (7th Cir.2008). To

provide uniformity in the law for interstate carriers’ liability for property loss or damage,

Congress created the Carmack Amendment to the Interstate Commerce Act. New

York, New Haven & Hartford RR. Co. v. Nothnagle, 346 U.S. 128, 131, 73 S.Ct. 986, 97
Athens App. No. 13CA21                                                                       4

L.Ed. 1500 (1953). The Carmack Amendment provides the exclusive means for a

shipper to recover for damages to delivered property. See Georgia, Florida & Alabama

Ry. Co., 241 U.S. 190, 196, 36 S.Ct. 541, 60 L.Ed. 948 (1916) (“the words of the

[Carmack Amendment] are comprehensive enough to embrace responsibility for all

losses resulting from any failure to discharge a carrier’s duty as to any part of the

agreed transportation * * *”). Thus it is well settled that Congress clearly intended the

Carmack Amendment to preempt all state law claims against common carriers for loss

or damage to goods during interstate shipment, including fraud, tort, intentional and

negligent infliction of emotional distress, breach of contract, breach of implied warranty

and state deceptive practices acts. Bowersmith v. United Parcel Service, Inc., 166 Ohio

App.3d 22, 2006-Ohio-1417, 848 N.E.2d 919, ¶ 12 (3rd Dist.). See also Adams

Express Co. v. Croninger, 226 U.S. 491, 505-506, 33 S.Ct. 148, 57 L.Ed. 314 (1913)

(“Almost every detail of the subject is covered so completely that there can be no

rational doubt that Congress intended to take possession of the subject, and supersede

all state regulation with reference to it”).

       {¶9}    However, “federal and state courts have concurrent jurisdiction over

claims brought pursuant to the Carmack Amendment.” (Emphasis sic.) Bowersmith at

¶ 12. A defendant may properly file a claim against a common carrier in state court,

“but only if the complaint alleges a claim under the Carmack Amendment, and not if it

alleges state claims.” (Emphasis sic.) Id. at ¶ 13.

       {¶10} Here, Dean’s small claims petition sought a determination of UPS’s

liability for damages he incurred when his tankless water heater was damaged during

interstate shipment. Although the face of his petition does not identify the legal theory
Athens App. No. 13CA21                                                                   5

under which he was seeking recovery, nowhere did Dean mention the Carmack

Amendment or a federal cause of action and the trial court applied state law. Moreover,

because Dean failed to file an appellate brief or otherwise make an appearance in this

appeal, we may accept UPS’s statement of facts and issues as correct and reverse the

trial court’s judgment, so long as UPS’s brief reasonably appears to sustain such an

action. Ohio Div. of Wildlife v. Kendrick, 180 Ohio App.3d 662, 2009-Ohio-380, 906

N.E.2d 1174, ¶ 7 (4th Dist.); App.R. 18(C). For these reasons, we also construe Dean’s

petition as asserting state law claims.

       {¶11} In awarding judgment under state law the trial court simply failed to

address the preemption argument raised in UPS's pretrial brief and its closing

argument. However, the relevant case law clearly establishes that Dean’s state

common law claim asserting UPS’s liability for damage to his property during shipping is

preempted by the Carmack Amendment. See Korer v. Danita Corp., 584 F.Supp.2d

1103, 1106 (N.D.Ill.2008). And because “the Carmack Amendment constitutes a

complete defense to common law claims alleging all manners of harms,” we sustain

UPS’ preemption assignment of error and reverse the trial court's judgment applying

state law. Hall v. N. Am. Van Lines, 476 F.3d 683,689 (9th Cir.2007). This renders

UPS’s remaining assignments of error moot, so we decline to address them. See App

.R. 12(A)(1)(c).

                                    IV. CONCLUSION
Athens App. No. 13CA21                                                                                   6

        {¶12} Normally, we would remand with instruction to dismiss Dean's petition.2

However, in light of UPS's own request that the trial court convert Dean's petition to a

federal claim under the Carmack Amendment, we remand with instructions to the court

to deem the petition to be amended to state a federal cause of action and to apply

federal law.

                                                                         JUDGMENT REVERSED
                                                                        AND CAUSE REMANDED




2
 In the absence of a motion to amend the complaint to state a federal claim, dismissal is appropriate.
See Bowersmith, supra, at ¶ 13-14, and Techdisposal.com, Inc. v. Ceva Freight Management, S.D.Ohio
No. 2:09-cv-356, 2009 WL 4283090 (Nov. 30, 2009).
Athens App. No. 13CA21                                                                     7

                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Municipal Court, Small Claims Division, to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.




                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                                NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
