                                                                 F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                                PUBLISH
                                                                  AUG 25 2003
              UNITED STATES COURT OF APPEALS
                                                             PATRICK FISHER
                                                                       Clerk
                            TENTH CIRCUIT




MERCER TRANSPORTATION
COMPANY,

         Plaintiff-Appellee,

v.

GREENTREE TRANSPORTATION
CO.,

         Defendant-Appellant,                  No. 01-1380

and

McCLELLAN ENTERPRISES, INC.,

         Defendant-Third-
         Party-Plaintiff,

v.

LEROY LANXON,

         Third-Party-Defendant.




            Appeal from the United States District Court
                    for the District of Colorado
                       (D.C. No. 98-D-1387)
James Attridge, Scopelitis, Garvin, Light & Hanson, San Francisco, California
(Jerry N. Jones, Moye, Giles, O’Keefe, Vermeire & Gorrell, LLP, with him on the
brief), for Plaintiff-Appellee.

Alan Epstein, Hall & Evans, L.L.C., Denver, Colorado (Anthony Melonakis,
Sutton, Melonakis & Gulley, P.A., with him on the briefs), for Defendant-
Appellant.


Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.


MURPHY, Circuit Judge.



I.    Introduction

      Appellee, Mercer Transportation Co. (“Mercer”) brought a lawsuit against

appellant, Greentree Transportation Co. (“Greentree”) seeking compensation for

the contents of a tractor-trailer truck which were damaged in a one-vehicle

accident. The district court granted summary judgment for Mercer, concluding

that Greentree was liable for the damage because its placards and other

identification were displayed on the truck at the time of the accident. The district

court concluded that the liability issue was controlled by this court’s holding in

Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983). The district court also

granted summary judgment to Mercer on the issue of damages. Greentree then

brought this appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we




                                         -2-
reverse the grant of summary judgment on liability and vacate the district court’s

order granting summary judgment on damages.

II.   Factual Background

      On January 29, 1997, Mobile Tool International, Inc. (“Mobile”) contacted

Mercer, a flatbed carrier and licensed transportation broker, to arrange

transportation for a load of six aerial lifts from Colorado to Massachusetts. The

next day, Mercer brokered the load to McClellan Enterprises, Inc. (“McClellan”).

Mercer’s load quote/confirmation sheet designated McClellan as the carrier and

Larry Lanxon (“Lanxon”) as the driver. On January 2, 1997, however, Lanxon

had entered into a leasing agreement with Greentree. Pursuant to the terms of this

lease agreement, Lanxon permanently leased his tractor-trailer to Greentree and

drove the equipment for Greentree. The parties dispute whether McClellan

brokered the Mobile shipment to Greentree or made arrangements directly with

Lanxon.

      Mobile prepared a bill of lading associated with the shipment of the aerial

lifts. The bill of lading was signed by Lanxon and the shipment was then

tendered to him. On January 31, 1997, the aerial lifts were damaged when

Lanxon was involved in a one-vehicle accident. At the time of the accident, the

truck bore Greentree’s placards which feature Greentree’s name, logo, and license

numbers.


                                        -3-
      Mobile filed a claim against Mercer for the full value of the damaged aerial

lifts. Mercer settled the claim for $150,453.12. As part of the settlement, Mobile

assigned to Mercer its right to pursue any claims against McClellan, Greentree,

and Lanxon arising out of the loss of the property. Mercer then filed a lawsuit in

federal court against Greentree and McClellan pursuant to the Carmack

Amendment to the Interstate Commerce Act (the “Carmack Amendment”), 49

U.S.C. § 14706. 1 Mercer asserted three claims in its complaint. The first claim

arose under 49 U.S.C. § 14706(a) and was asserted by Mercer as Mobile’s

assignee against both McClellan and Greentree. The third claim, a claim for

indemnification pursuant to 49 U.S.C. § 14706(b), was asserted only against

Greentree by Mercer in its individual capacity.

      Mercer settled with McClellan for $82,988.54. 2 Mercer and Greentree then

filed cross-motions for summary judgment with respect to both liability and

damages. The district court granted summary judgment in favor of Mercer on the


      1
        McClellan filed a cross-claim against Greentree and a third-party
complaint against Lanxon. McClellan’s cross-claim was dismissed by stipulation
of the parties. McClellan’s third-party complaint against Lanxon was dismissed
by the court.
      2
       In addition, Mercer assigned its right to pursue claims relating to the
incident to McClellan’s insurer, Albany Insurance Company (now known as
Liberty Mutual Insurance Company). Although Mercer’s right to pursue these
claims has been assigned to Albany, Mercer and Albany further agreed to jointly
prosecute the claims. The suit is being maintained in Mercer’s name pursuant to
Rule 25(c) of the Federal Rules of Civil Procedure.

                                        -4-
issue of liability, concluding that Greentree was liable for the damage to the aerial

lifts because Lanxon’s tractor-trailer bore Greentree’s logo at the time of the

accident. The district court relied on this court’s decision in Rodriguez v. Ager,

705 F.2d 1229 (10th Cir. 1983), as controlling precedent for its conclusion.

      With respect to the issue of damages, the district court concluded that under

the Carmack Amendment, a carrier’s liability could be limited through tariff rates

included in the bill of lading. See 49 U.S.C. § 14706(c)(1)(A). Although the bill

of lading signed by Lanxon limited liability to Mercer’s tariff rate, the district

court denied summary judgment because a genuine issue of material fact existed

as to whether Mobile had actual knowledge of Mercer’s tariff rate. After the

district court entered its ruling, the parties stipulated that Mobile did not actually

know Mercer’s tariff rate and then again filed cross-motions for summary

judgment on damages. The district court granted Mercer’s motion in part,

concluding that Mercer’s tariff was not binding. The court entered judgment

against Greentree in the amount of $70,018.20. The amount of damages reflected

the court’s conclusion that Greentree was entitled to a setoff for the settlement

payment made by McClellan to Mercer.

      Greentree then brought this appeal arguing first that it is not liable for the

damage to the aerial lifts and, alternatively, that either its tariff or Mercer’s tariff

should have been applied to limit the amount of its liability.


                                           -5-
III.   Discussion

       This court reviews a grant of summary judgment de novo. Simms v.

Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d

1321, 1326 (10th Cir. 1999). We view the record in the light most favorable to

the non-moving party and affirm when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Hysten v.

Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1180 (10th Cir. 2002).

       Mercer asserts that the district court correctly concluded that Greentree is

strictly liable for the damage to the aerial lifts because its logo was displayed on

the tractor-trailer at the time of the accident. In support of this argument, Mercer

relies on this court’s decision in Rodriguez v. Ager, 705 F.2d 1229 (10th Cir.

1983). Rodriguez involved a civil action seeking damages for fatal and nonfatal

injuries suffered by the occupants of an automobile involved in a collision with a

tractor-trailer truck. Id. at 1230. The truck had been leased to the defendant, a

motor carrier, and at the time of the accident it bore the defendant’s placards. Id.

The driver, however, was not operating the truck for the benefit of the defendant

and the defendant was unaware that the truck was being used to pick up a load for

a third party. Id. at 1230-31.


                                         -6-
      This court first discussed the regulations of the Interstate Commerce

Commission governing leasing arrangements between interstate carriers and

private owners of trucks used in interstate commerce applicable at the time of the

accident. Id. at 1231-32. One of these regulations provided that the lessee of

trucking equipment assumed complete responsibility for the control and use of the

equipment during the term of the lease. Id. at 1231; 49 C.F.R. § 1057.4(a)(4)

(1978). A second regulation provided that the lessee was responsible for

removing its insignia and other identification from the equipment upon the

termination of the lease. Rodriguez, 705 F.2d at 1231; 49 C.F.R. § 1057.4(d)(1)

(1978). The court then examined congressional findings indicating that the

purpose of regulating interstate truck leasing arrangements was “to establish

responsibility for protection of the public in the lessee of the equipment.”

Rodriguez, 705 F.2d at 1232. The court concluded that Congress intended to

eliminate “fly-by-night contracting” and a carrier’s use of leased equipment to

circumvent federal safety regulations by imposing responsibility for accidents

involving leased equipment on the carrier whose insignia was displayed on the

equipment at the time of the accident. Id. at 1236.

      Consistent with congressional intent, the Rodriguez court imposed liability

for the accident on the defendant because it had not removed its placards from the

truck and, therefore, was irrebuttably deemed to be the lessee of the equipment


                                         -7-
and the statutory employer of the driver. 3 Id. at 1236. The court acknowledged

that the defendant’s liability existed only by virtue of the leasing regulations. Id.

at 1231. The court’s interpretation of the regulations to impose liability on the

defendant furthered “‘the policy of protecting the public and providing it with an

identifiable and financially accountable source of compensation for injuries

caused by leased tractor-trailers.’” Id. at 1234 (quoting Carolina Cas. Ins. Co. v.

Ins. Co. of N. America, 595 F.2d 128, 137 n.29 (3d Cir. 1979)).

        Greentree argues that Rodriguez has no application in this case because it

involves only damage to property and not personal injuries. 4 We agree. Cf.

Empire Fire & Marine Ins. Co. v. Guar. Nat’l Ins. Co., 868 F.2d 357, 363 (10th

Cir. 1989) (“Rodriguez is instructive on the issue of a lessee’s responsibilities to

injured parties under ICC regulations, but it is not relevant to the issue of how

liability should be allocated between two insurance companies, both of which

arguably have insured the same event.”). The holding in Rodriguez was clearly

driven by this court’s conclusion that the truck leasing regulations should be

interpreted to protect members of the public who suffer personal injuries in


        3
            The holding in Rodriguez is commonly referred to as the “logo liability”
rule.

        Greentree also argues that amendments made to the leasing regulations
        4

relied upon by the court in Rodriguez call into question the continued viability of
the logo liability rule. Because we conclude, infra, that Rodriguez does not
control the disposition of this case, it is unnecessary to address this argument.

                                            -8-
accidents involving leased equipment. Rodriguez, 705 F.2d at 1236 (“Trucking

equipment such as that here present has a capability for bringing about terrible

injuries and damages to life.” (emphasis added)). The policy considerations that

underlie the rule adopted in Rodriguez do not exist in causes of action brought

pursuant to the Carmack Amendment. Such suits involve only the issue of carrier

liability for property lost or damaged in shipment; they do not involve personal

injuries sustained by members of the public as a result of a driver’s tortious

conduct. The leasing regulations relied upon by the Rodriguez court do not

govern the imposition or allocation of liability for property damage under the

Carmack Amendment.

      In addition, the Carmack Amendment itself establishes a separate liability

scheme, thereby rendering application of the Rodriguez rule to property damage

cases unnecessary. A shipper pursuing a claim under the Carmack Amendment is

relieved of the burden of demonstrating which of several carriers actually or

proximately caused the loss to the property. See 49 U.S.C. § 14706(a). Instead,

the shipper establishes a prima facie case against either the initial carrier or the

delivering carrier by proving: (1) delivery of the property to the carrier in good

condition; (2) arrival of the property at the destination in damaged or diminished

condition; and (3) the amount of its damages. Mo. Pac. R.R. Co. v. Elmore &

Stahl, 377 U.S. 134, 138 (1964). The burden then shifts to the carrier to


                                          -9-
demonstrate both that it was not negligent and that the damage was caused by an

event excepted at common law. 5 Ensco, Inc. v. Wiecker Transfer & Storage Co.,

689 F.2d 921, 925 (10th Cir. 1982). The shipper’s damages, however, are limited

to the actual loss or injury to the property. See 49 U.S.C. § 14706(a)(1).

      “The purpose of the Carmack Amendment was to relieve shippers of the

burden of searching out a particular negligent carrier from among the often

numerous carriers handling an interstate shipment of goods.” Reider v.

Thompson, 339 U.S. 113, 119 (1950). This court has stated that the “principal

function” of the Carmack Amendment “is to permit a shipper in interstate

commerce to bring an action against the initial carrier to recover for damages to

the shipment whether such damages occurred while the goods were in the hands

of the initial carrier or connecting carriers.” L.E. Whitlock Truck Serv., Inc. v.

Regal Drilling Co., 333 F.2d 488, 490 (10th Cir. 1964), overruled on other

grounds, Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112,

1115 (10th Cir. 1989) (en banc). Thus, a carrier can be held liable to a shipper

for damage to cargo without regard to fault. Because the Carmack Amendment

permits a shipper whose property is diminished or destroyed to recover its actual


      5
        This includes damage “caused by (a) the act of God; (b) the public enemy;
(c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or
nature of the goods.” Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137
(1964) (quotation omitted); see also A.T. Clayton & Co. v. Missouri-Kansas-
Texas R.R., 901 F.2d 833, 834 (10th Cir. 1990).

                                         -10-
damages from a carrier without demonstrating actual or proximate cause, there is

no need to extend the logo liability rule to suits brought pursuant to 49 U.S.C. §

14706(a). The interests of shippers are adequately protected by the liability

scheme set out in the statute itself.

      If a carrier is held liable to the shipper under § 14706(a), it may, in turn,

seek to recover from the carrier whose negligence caused the loss. 49 U.S.C. §

14706(b) (“The carrier issuing the receipt or bill of lading . . . or delivering the

property for which the receipt or bill of lading was issued is entitled to recover

from the carrier over whose line or route the loss or injury occurred . . . .”). We

discern no reason to extend the rule articulated in Rodriguez to indemnification

suits brought pursuant to 49 U.S.C. § 14706(b). Mercer has not provided this

court with a citation to a single case in which the Rodriguez rule was extended to

an indemnification suit brought pursuant to the Carmack Amendment and has

failed to advance any argument why the rule should be so extended or why such

suits should not be governed by traditional burdens of proof.

      Accordingly, we conclude that the district court erred when it determined

that Greentree was liable for the damage to the aerial lifts simply because

Lanxon’s truck bore Greentree’s placards at the time of the accident. Because the

parties concede that disputed issues of material fact exist as to whether Greentree

is liable under either 49 U.S.C. § 14706(a) or 49 U.S.C. §14706(b), we reverse


                                          -11-
the district court’s grant of summary judgment to Mercer on liability and vacate

its ruling on damages. This matter is remanded to the district court for further

proceedings not inconsistent with this opinion.




                                       -12-
