Wattiker v. Canal Insurance Company et al

RESPONSE AND OBJECTION

N.D. Tex.November 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION GEOFFREY WATTIKER ) C.A. No. 3:17-cv-0368N ) Plaintiff, ) ) v. ) ) CANAL INSURANCE COMPANY, ) Response to Defendant Abouzeidi’s MOUSSA ABOUZEIDI, ) Disclosure / Statement Regarding d/b/a HAPPY TRANSPORT, and ) Expert Witness Deadlines KELLER NATIONAL, LLC. ) ) Defendants. ) ________________________________________________________________________ The Court’s scheduling order dated April 18, 2017 requires that parties with a burden of proof designate their expert witnesses by October 24, 2017. Plaintiff respectfully requests that the Court deny Defendant Moussa Abouzeidi’s reservation of the right to identify expert witnesses until his liability is established by the Plaintiff because Defendant Abouzeidi has already admitted liability for the damage claimed by Plaintiff, and that Defendant’s liability under the Carmack Amendment is absolute. Point One: Abouzeidi has already admitted liability Abouzeidi’s answer admits that the damage to the vehicle occurred during transport. In his answer, Abouzeidi does not deny that when he picked up the vehicle in Indiana, he did not note any exceptions to its condition. (Answer, Par. 26). And he does not deny that the vehicle was damaged when he delivered it to Plaintiff in Dallas. (Answer, par. 27). Case 3:17-cv-00368-N-BH Document 41 Filed 11/03/17 Page 1 of 3 PageID 727 The Federal Rules of Civil Procedure, Rule 8: General Rules of Pleading, states as follows: (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. Abouzeidi’s answer effectively admits that there was no damage when he picked the vehicle up, and it effectively admits that the vehicle was damaged when he delivered it. (Answer, Par.27). And, Abouzeidi admits in his answer that at the time of delivery, he advised Plaintiff of his insurance coverage. (Answer, Par. 9). Nowhere in the answer does Abouzeidi deny that he is responsible for the damage. Abouzeidi’s answer makes it undeniably clear that the damage occurred sometime between pickup and delivery, while the vehicle was in Abouzeidi’s possession. Point Two: Abouzeidi is strictly liable under the Carmack Amendment Motor carriers engaged in interstate shipping are regulated by the Interstate Commerce Act of 1935. With some limited exceptions which are not relevant to this case, the Carmack Amendment to that Act, (49 USC 14706), states that carriers providing transportation services are strictly liable for the actual loss or injury to the property of the shipper: 49 USC sec. 14706 (a) General Liability.— (1)Motor carriers and freight forwarders.-- A carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135…and any other carrier that delivers the property and is providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 or chapter 105 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 in the United States…Failure to issue a receipt or a bill of lading does not affect the lability of a carrier. Case 3:17-cv-00368-N-BH Document 41 Filed 11/03/17 Page 2 of 3 PageID 728 Under the Carmack Amendment, if a carrier is to have any defense at all, the burden is on him to prove the condition of the goods at the time of pick-up, condition of the goods at final delivery, and the cause of any damage that may have occurred in between. Receipt by the carrier in good condition is established where the carrier fails to list any exceptions when he picks up the goods: “[A] shipper's burden of proving that the goods were delivered to the carrier in good condition may be satisfied by the proffer of a clean bill of lading for the shipment, provided that the cargo was packaged in a way that permitted its inspection by the carrier. (See generally Madow Co. v. S.S. Liberty Exporter, 569 F.2d 1183, 1185 (2d Cir. 1978).” Security Insurance Company of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Because Abouzeidi listed no exceptions to the condition of the vehicle when he picked it up, the Plaintiff has made out a prima facie case that the vehicle was delivered to him in undamaged condition. Hence, the burden of proof is on the Defendant to defend against the Carmack Amendment. For these reasons, Defendant Abouziedi’s reservation of rights to name an expert, on the ground that he has no burden of proof in this case should be denied. Respectfully submitted, Dated November 11, 201 Case 3:17-cv-00368-N-BH Document 41 Filed 11/03/17 Page 3 of 3 PageID 729