                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0444n.06

                                         No. 17-2393

                        UNITED STATES COURTS OF APPEALS
                             FOR THE SIXTH CIRCUIT

 ACUITY INSURANCE COMPANY; named on                  )                         FILED
 initiating document as Acuity as assignee of        )                   Aug 28, 2018
 Masterlink     Concrete   Pumping,      LLC;        )               DEBORAH S. HUNT, Clerk
 MASTERLINK CONCRETE PUMPING, LLC,                   )
                                                     )
        Plaintiffs-Appellants,                       )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
 v.                                                  )      COURT FOR THE WESTERN
                                                     )      DISTRICT OF MICHIGAN
 MCDONALD’S TOWING AND RESCUE, INC.,                 )
                                                     )
        Defendant-Appellee.                          )


BEFORE:       GIBBONS, STRANCH, and BUSH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. After a concrete pump truck belonging to

plaintiff Masterlink Concrete Pumping, LLC, broke down on I-94 in Michigan, defendant

McDonald’s Towing and Rescue, Inc., was hired to tow the vehicle to Indiana. While McDonald’s

was towing the vehicle, it became detached from the tow truck and was badly damaged. Masterlink

and its insurer, fellow plaintiff Acuity Insurance Company, filed suit against McDonald’s under

the Carmack Amendment, which holds a motor carrier liable for damages to goods it transported

interstate. However, the Amendment exempts from its coverage “the emergency towing of an

accidentally wrecked or disabled motor vehicle.” 49 U.S.C. § 13506(b)(3). The district court

granted summary judgment for McDonald’s because it held that the tow fell within the

Amendment’s “emergency towing” exemption. We affirm the judgment of the district court.
No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


                                                 I.

       The material facts are not in dispute. On the morning of September 30, 2015, Masterlink

driver Robert Babcock III was driving a concrete pump truck on I-94 eastbound from Michigan to

Indiana. At around 9:00 A.M., while Babcock was still in Michigan, the truck malfunctioned. He

pulled over to the right shoulder to report the problem, and a towing request was sent by Masterlink

to Allstate Road Service. Babcock left the scene sometime between 1:00 and 2:00 P.M. with the

truck doors unlocked and the keys left in the ignition for the towing company.

       Meanwhile, McDonald’s Towing received a call from Allstate about the pump truck that

evening, and Jacob Lamphere was dispatched to respond to the call. At 8:37 P.M., Lamphere

contacted Zach Clothier, the operations director at McDonald’s, to tell him that the pump truck

was very large and that he did not know if he could tow it with the materials he had with him.

Clothier ultimately decided that they should wait until the following morning to tow the vehicle

because he believed “it needed a different wrecker” and “[i]t was getting very late, it was dark,

and it was a large piece of equipment, and we needed to be able to see what we were doing to

perform the service.” DE 36-2, Ex. 6: Clothier Depo., Page ID 474.

       The next morning, October 1, 2015, Clothier sent Warren Sprague and Aaron Cowles to

tow the truck. Sprague and Cowles arrived at the truck at about 10:00 A.M. They hooked the

pump truck around the frame of their towing vehicle and secured it with chains. They then towed

it off the highway to the nearest exit, where they stopped at a Marathon gas station to readjust the

chains and make sure the truck was properly secured. After they were back on I-94 and had been

driving for several miles, Sprague and Cowles realized that the pump truck had become detached

from the tow truck. The truck subsequently rolled over in the median and was totaled.




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No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


       Pursuant to its insurance policy, Masterlink made a claim with Acuity for the damages it

suffered as a result of the loss of the pump truck. Acuity and Masterlink then brought the instant

action, alleging that McDonald’s was liable under the Carmack Amendment to the Interstate

Commerce Commission Termination Act of 1995. See 49 U.S.C. § 14706. Both parties filed

summary judgment motions. The district court granted summary judgment to McDonald’s Towing

after it concluded that the tow job was an “emergency towing of an accidentally wrecked or

disabled vehicle” and therefore exempt from the Carmack Amendment under 49 U.S.C.

§ 13506(b)(3).

                                             II.

       When evaluating a district court’s decision to grant summary judgment, this court applies

the de novo standard of review. Simpson v. Ernst & Young, 100 F.3d 436, 440 (6th Cir. 1996). In

contrast, a district court’s denial of a summary judgment motion is reviewed for abuse of

discretion. Wojcik v. City of Romulus, 257 F.3d 600, 608 (6th Cir. 2001) (citing Wiley v. United

States, 20 F.3d 222, 224 (6th Cir. 1994). Summary judgment is warranted when “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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Here, the

material facts are not in dispute. Thus, the only issue is whether one of the parties is entitled to

judgment as a matter of law.

                                                   III.

       The Carmack Amendment was enacted in 1906 as an amendment to the Interstate

Commerce Act, 24 Stat. 379. See, e.g., Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.,

561 U.S. 89, 96 (2010). “The Amendment restricts carriers’ ability to limit their liability for cargo

damage” by “mak[ing] a motor carrier fully liable for damage to its cargo unless the shipper has


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No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


agreed to some limitation in writing.” Exel, Inc. v. S. Refrigerated Transp., Inc., 807 F.3d 140,

148 (6th Cir. 2015) (citing 49 U.S.C. § 11706(a), (c); § 14101(b)). The Amendment states in

relevant part:

       A carrier . . . 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 and is providing transportation or service . . . are liable to the person
       entitled to recover under the receipt or bill of lading. The 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 . . . .

49 U.S.C. § 14706(a)(1). The plaintiffs argue that McDonald’s, as a “carrier” that transported the

pump truck, is liable for the damages arising from the pump truck’s destruction.

       However, the Amendment has an exception in 49 U.S.C. § 13506(b): “neither the Secretary

nor the Board has jurisdiction under this part over . . . (3) the emergency towing of an accidentally

wrecked or disabled motor vehicle.” The district court granted summary judgment to McDonald’s

based on its conclusion that the towing of Masterlink’s truck fell within the “emergency towing”

exception to the Amendment. We agree with the district court.

                                                 A.

       This issue is one of statutory construction, and therefore the correct place to begin is the

text of the statute. See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (“Statutory

construction must begin with the language employed by Congress and the assumption that the

ordinary meaning of that language accurately expresses the legislative purpose.” (quoting Engine

Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004))). “Unless otherwise

defined, statutory terms are generally interpreted in accordance with their ordinary meaning.”

BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). “If the words [of a law] are plain, they give

meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative



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No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


fields in search of a different meaning.” Caminetti v. United States, 242 U.S. 470, 490 (1917).

We conclude that the statutory text here is unambiguous.

       The statute does not define “emergency towing of an accidentally wrecked or disabled

motor vehicle,” so the district court properly turned to both the Oxford English Dictionary and

Merriam-Webster to determine the dictionary definition of “emergency.” The Oxford English

Dictionary defines “emergency” as “a state of things unexpectedly arising, and urgently

demanding immediate attention,” 7 Oxford English Dictionary 231 (2012), while Merriam-

Webster defines it as “an unforeseen event or condition requiring prompt action,” The Merriam-

Webster Dictionary New Edition 234 (2016). Similarly, the American Heritage Dictionary defines

“emergency” as “[a] serious situation or occurrence that happens unexpectedly and demands

immediate attention.” 4 American Heritage Dictionary of the English Language 584 (2006).

Because the statute does not otherwise define “emergency,” we give the word its ordinary meaning,

as found in these dictionary definitions. See BP Am. Prod. Co., 549 U.S. at 91. Thus, an

“emergency towing” is one that happens in response to unforeseen circumstances requiring

immediate attention.

                                                B.

       The plaintiffs do not dispute the dictionary definitions of “emergency”; instead, they argue

that the tow job at issue does not conform to them. The plaintiffs claim that because the tow truck

was left unattended on the shoulder of the road overnight and there were no complaints or orders

to move it from law enforcement, the towing “was not a serious, unexpected, or dangerous situation

that required immediate attention.” CA6 R. 18, Appellants’ Br., at 27. The plaintiffs view the

definition of “emergency” too rigidly. Here, the situation was almost indisputably “unexpected,”

as Babcock could not have predicted that his truck would malfunction that morning on the



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No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


interstate. The situation was also “serious,” since a large truck parked on the shoulder of I-94

increases the risk of accidents. Further, the overnight delay is insufficient to remove the tow from

the purview of § 13506. The defendant did not leave the truck overnight due to a lack of urgency;

rather, as Clothier testified, the tow was postponed until morning because the truck was larger than

expected and it was dark outside and difficult to see. The fact that the truck was not removed

within minutes, or even hours, of its breakdown does not negate the emergency nature of the

situation. Instead, we think that the crucial point is one emphasized by the district court, which is

that the truck had to be moved—towing it was not optional. While it was possible for there to be

a brief delay in towing the vehicle, Masterlink could not have chosen to abandon it there

indefinitely. Thus, we conclude that the tow job was an “emergency” as that word is ordinarily

understood. Because there is no ambiguity as to the meaning of “emergency,” and because the

facts here bring this tow job clearly within the meaning of a “an emergency tow,”1 we hold that

the district court properly granted summary judgment to the defendant, McDonald’s Towing.

                                                         C.

         The plaintiffs also argue that even if the tow job began as an “emergency tow,” the

emergency ceased when McDonald’s moved the truck to the gas station to check that it was

properly secured. This argument also fails. Dividing the tow into discrete “steps” in this way risks




1
  The plaintiffs attempt to turn the focus from the plain meaning of § 13506 to a regulation from the Federal Motor
Carrier Safety Administration (“FMCSA”). They argue that 49 C.F.R. § 390.23(a), which exempts “tow trucks
responding to emergencies” from federal motor safety regulations, effectuates 49 U.S.C. § 13506(B). 49 C.F.R.
§ 390.23(a) defines the emergency tow truck exemption as “effective only when a request has been made by a Federal,
State or local police officer for tow trucks to move wrecked or disabled motor vehicles.” 49 C.F.R. § 390.23(a). Since
there was no request from law enforcement for Masterlink to move the truck, the plaintiffs argue that according to
§ 390.23(a), the tow at issue was not an “emergency” to be exempt from liability under 49 U.S.C. § 13506(b).
However, the plaintiffs cite no authority for their proposition that 49 C.F.R. § 390.23(a) provides the controlling—or
even a persuasive—definition of “emergency” for purposes of 49 U.S.C. § 13506. Section § 390.23 is part of the
regulatory scheme for motor carrier safety, whereas the Carmack Amendment focuses on economic liability for cargo
damages. We decline to depart from the statutory text by reading into it a regulation from an entirely different
regulatory scheme.

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No. 17-2393, Acuity Ins. Co., et al. v. McDonald’s Towing & Rescue


penalizing McDonald’s for exercising appropriate caution in attempting to make sure the pump

truck was properly secured to the tow truck. Interpreting the statute as plaintiffs propose would

mean that a tow truck driver would not be able to stop for the restroom or food without removing

his towing company from the Carmack Amendment’s exception. We therefore conclude that the

district court properly granted summary judgment to McDonald’s Towing.2

                                                         IV.

         Finally, the plaintiffs argue that the district court improperly denied their motion for partial

summary judgment. In their motion, the plaintiffs argued that they had established liability under

the Carmack Amendment and asked the court to enter a judgment in favor of Acuity in the amount

of $341,661. They requested a trial solely to determine the amount of Masterlink’s damages.

Because we have concluded that the tow was exempt from the Carmack Amendment, entitling

McDonald’s to summary judgment, we also reject the plaintiffs’ argument that the district court

abused its discretion in denying their motion for summary judgment.

                                                          V.

             For the foregoing reasons, we affirm the judgment of the district court.




2
  We cite no case law interpreting the exemption because there is almost none in existence. The only relevant case is
from the Western District of Louisiana. In Mountain Movers Transportation & Logistics LP v. Continental Trans
Express, Inc., the court applied the emergency tow exemption to two tow truck companies, one that had initiated the
tow of a truck with mechanical problems, and one that was called onto the scene to assist when the first company was
not able to complete the tow. 2012 WL 6738299, at *1–3 (W.D. La. Dec. 27, 2012). While Mountain Movers is not
directly on point, we find it persuasive insofar as it shows that a court has applied the emergency towing exception in
a situation involving a time delay. See id. Also notable is that the court made no mention of law enforcement
involvement in the incident. Id.

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