HomeMy WebLinkAbout03-6235 IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
) CaseNo. ~,'~- ~,,~b
)
)
)
)
)
)
)
)
)
)
)
)
TYPE OF PLEADiNG:
Complaint in a Civil Action
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman, Esquire
PA. I.D. No.: 88916
255 E. Fifth Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8200 (telephone)
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO. Case No.
and
DTS LOGISTICS, LLC
Plaintiffs,
N.E.K. CARRIERS, LLC
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do so
the case may proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the complaint or for any other claim or relief requested by the
plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE
CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVDE YOU WITH INFORMATION ABOUT AGENCIES THAT ANY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford St.
Carlisle, PA 17013
Telephone: 717-249-3166
DINSMORE & SHOHL, LLP,
By: Frederick M. Erny,'Esquire
Attorney I.D. No.: 52007
Scott Goldman, Esquire
PA. I.D. No.: 88916
255 E. Fifth Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8200 (telephone)
Counsel for Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
Case No.
COMPLAINT IN CIVIL ACTION
For their Complaint against Defendant N.E.K. Carriers, LLC ("Defendant"), Plaintiffs Great
West Casualty Co. ("Great West") and DTS Logistics, LLC ("DTS") (collectively"Plaintiffs") state as
follows:
1. Great West is authorized to sell insurance and at all times relevant hereto had in full
force and effect a policy of insurance which provided coverage to DTS, which is a limited liability
company located in Billings, Montana. This policy was subject to a $2,500 deductible.
2. On or about July 1, 2003, DTS entered into a transportation freight forwarder
agreement with Defendant from DTS's office for Defendant to transport a load of chilled food products
from DTS's dock in Billings, Montana to Giant Foods in Carlisle, PA at 5:30 A.M. on July 7, 2003 and
Giant Foods, Landover, MD at 2:00 A.M. on July 8, 2003. Per the request of Defendant, the
4
appointments were altered, and thus the products were to be delivered to Giant Foods in Carlisle, PA
at 10:00 A.M. on July 8, 2003 and Giant Foods, Landover, MD at 2:00 A.M. on July 9, 2003.
3. Pursuant to the instructions given to Defendant, the load contained perishable chilled
food products on which a temperature between 29 and 38 degrees was required and noted on the Bills
of Lading. Copies of the Bills of Lading are attached hereto as Exhibit A.
4. Defendant picked up the perishable food products in Billings, Montana for shipment
and signed the Bills of Lading attesting that the product was in good shipping order. DTS paid to
Defendant $1,553.25 in freight charges for such shipping. In addition, DTS paid $763.80 in freight
charges for the product to be delivered to DTS.
5. Defendant delivered the load of perishable food product to Giant Foods in Carlisle, PA.
However, the product was rejected due to high temperature readings in violation of the temperatures
required by the Bills of Lading. The entire load was rejected due to the perishable nature of the food
products transported.
6. As a result of the rejected load, DTS was presented with a bill for the cargo loss claim
which resulted in a total loss to DTS in the amount of $30,294.00. Pursuant to the policy between
Great West and DTS, Great West was required to and did pay to and/or on the behalfofDTS the sum
of $27,794.00. Under its deductible, DTS paid the remaining $2,500.00. Due to Great West's
payments of $27,794.00 pursuant to its policy with DTS, Great West is subrogated in such amount.
7. Plaintiffs notified Defendant of the rejected load and requested that Defendant provide
payment for this cargo loss. Defendant refused this request for payment and continues to refuse to
pay for the cargo loss claim.
8. As a direct and proximate result of Defendant's breach of the transportation agreement
and Defendant's negligence in transporting the perishable food products at a temperature in excess of
the temperature specified on the Bills of Lading, Plaintiffs have been damaged in the amount of
$32,611.05.
FIRST CLAIM
(Breach of Contract)
9. Plaintiffs restate the allegations contained above as if fully restated herein.
10. Defendant's actions in failing to deliver the perishable food product in accordance with
the directions specified in the Bills of Lading constitute a breach of the contract between DTS and
Defendant.
11.
in the amount of $32,611.05.
As a direct and proximate result of Defendant's breach, Plaintiffs have been damaged
SECOND CLAIM
(Negligence)
12. Plaintiffs restate the allegations contained above as if fully restated herein.
13. Defendant's failure to properly deliver the perishable food product in accordance with
the instructions contained on the Bills of Lading and in the Transportation Agreement constitutes
negligence.
14. As a direct and proximate result of Defendant's negligence, Plaintiffs have been
damaged in the amount of $32,611.05.
WHEREFORE, Plaintiffs pray for the following relief:
1. Judgment against Defendant in the amount of $32,611.05.
2. Plaintiffs' costs of this action, interest and attorneys' fees; and
Such other relief, including equitable relief, as the Court deems appropriate.
Respectfully submitted,
OF COUNSEL:
Jeffrey P. Hinebaugh ( OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
D1NSMORE & SItOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
DiNSMORE & SHOHL, LLP,
By: Frederick M. Erny, q '
PA. I.D. No.: 52007
Scott Goldman
PA. I.D. No.: 88916
255 E. Fifth Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8200 (telephone)
Counsel for Plaintiffs
7
11/20/03 THU 12:14 FAX 406 245 5404 FREIGHT AGENCY/DT5 ~002
VERIFICATION
My name is Mark Elletson and I sm Safety Manager for DTS and I ara authorized to take this
verification on its behalf. I have read the foregoing Complaint. The foregoing Complainl is lrue upon
my p~rsonal information and belief., and the facts stated herein were assembled by employees and/or
agents of DTS Logistics, LLC and are also based upon DTS Logistics, LLC's records. The facts
stated in the Complaint are correct to best of my information aad belief_ This Verification is taken
pursuant to the requirements of 18 Pa. C.S.A. § 490~ relating to unswom falsifications to authorities,
Dated: //'~'0~
DIRECTIONS TO THE CLERK
Please direct the Sheriffto serve a copy of the Summons and Complaint to the Defendant at the
below listed address via cenified mail, remm receipt requested.
N,E.IC CAI~RS, LLC
1107 Mallard P, oad
Honon, KS 66a39
952368
8
RECEIV~ ~JeCt to the clas~ll~flOn~ a~taH 'rs In effect.on t~ ;~e'~l
' ~ ~ ~ : Umfom Bdl of Lading
-" 'BaJifi ha , StOrage,:.
ShipDate: O~,~20g ,,) Cust. Ord. No.
Ahin
To:
CARLISLE PA 17013
Ship Via: D[VERSiFiED
Routing:
Veh, No,:
107-~0
Seal No(s}:
Order No.:
Page
002
00~:
,O0~.
006
~. O0
240 · GO .-
' ~o. o!~z,~
60. O0 ~
c~t. GO
~OBS"~ER
- !0~5 8/2;5~ CHILLED CRAB
10&28' '~2/I2oz.CH~L, LED CRAB
007
180 198
21&O ~400
720 780
5&O ' 420
1820 2002
-~-~ PACKAGES TOTAL WEIGHT
SHIPPING
ATTN: Chill~d Product ! ! f Mu'~,.t b~ COOI_..R~
INSTRUCTIONS: not 'l:r"~gc~. K~p at ...... ~'~"'-~8 d~gr"~e~ F
Shipper:
F~]~<AN5 OCEAN FRODUC'!'S
550 ¥,~ ORCHARD OR
BELl_ I N'3HAM WA
L
*:;.3~, ~ ' ': Unif~ Bill of Lading
Bellingham Storage .
Ship Date: O~/2&/O;l Cust. Ord, No. 1~147
P.O.. Ne.:
, Ship To: BI~NT F'OO~
OF L.~NOOVER ~D
6:,(J~.~ S~iERiF'F ROAD
Ship Via; D I 'VERB I F ~ ED ";'
Routing: ~)
Veh. No.: .?r'u. cg N~mber.: K~D
107-20
Seal No(s): '
;. ,.., ;. r..' ~,..;.:.. ,~,~,~;~ ..~,¢; ~'~`'~'~'~v~';~`~.~t~JG~'~[~3~f~:~-?, f.._.'j"; A,.,."~i-~?N;:.~;:
~065'7 "12712O~:;CH~,LLED CF<.~S ~,500 7000
001 700.00
· ' · .: CLA,~S
~-0~. O0 50054 l 2Y'l 2'¢,~ CHILLED
· c~ss~c %','
400 44'0 :'
PACKAGES TOTAL WEIGHT ~- ~- '"
OO2
INSTRUCTIONS: not 'Frozen. K[,ep ato~9_.--~¢...,~ degree~'F
Shipper:
BELLINGHAM COLD STORAG
AGENT b'
(3~3} 7~-~1 FAX ~ ~71 *t2~
/, , .., y,,.. ~..~ /~,'
SHERIFF'S RETURN - U.S.
CASE NO: 2003-06235 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GREAT WEST CASUALTY CO ET AL
VS.
N E K CARRIERS LLC
CERTIFIED MAIL
R. Thomas Kline , Sheriff of Cumberland
County, Pennsylvania, who being duly sworn according to law served the
within named DEFENDANT ,N E K CARRIERS LLC
by United States Certified Mail postage
prepaid, on the 2nd day of December ,2003 at 0000:00 HOURS at
1107 MALLARD ROAD
HORTON, KS 66439
and attested copy of the attached COMPLAINT & NOTICE
with
receipt card was signed by GARY LANTER
12/05/2003
Additional Comments:
a true
Together
The returned
on
Sheriff's Costs:
Docketing 18.00
Service 4.88
Affidavit .00
Surcharge 10.00
.00
32.88
Paid by DINSMORE & SHOHL
Sworn ~n~ subscribed to befpre me
t~his j~]~_ day
~Pr~on~ry~~
So answers: i ~
Sheriff of Cumberland County
on 12/09/2003
· ,2, and 3. Alan complete
ite~ 4 if Restricted Delivery is desired.
· Pdnt your name and address on the mveme
so thst we can return the card to you.
· Attach this card to the back of the mailp~eca,
or on the front if space permits.
N.E.K. Carriers LLC
1107 Hallard Road
Horton, KS 66439
B. 'Received b~ ( Printed Name) C. Date of ~Dstive~
3. Service Type
IEq"Certlfied Mail r'l Express Mail
~-/Registered r-i Rstum Receipt for Merchandise
[] Insured Mail [] C.O.D.
4. Res~cted Delivery? (Extra Fee) [] Yes
7002 2410 0007 8504 6815
Ps Form 3811, August 2001 Domestic Return Receipt
03-6235 civ
Jolul A. Statler, Esquh-e
Attorney I. D. No. 43812
GOLDBERG, KATZMAN & SHII~MAH, P.C.
320 Market Street
P.O. Box 1268
Harrisburg. PA 17108-1268
Telephone: (717) 234-4161
GREAT WEST CASUALTY CO. and
Attorney for Defendant
: 1N THE COURT OF COMMON PLEAS
DTS LOGISTICS, LLC,
Plaintiffs
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
N.EK CARRIERS, LLC,
Defendant
: NO. 03-6235
· JURY TRIAL DEMANDED
TO:
NOTICE TO PLEAD
GREAT WEST CASUALTY CO. and
DTS LOGISTICS, LLC, Plaintiffs
c/o FREDERICK M. ERNY, ESQUIRE and
JAMES M. WHERLEY, JR.
Dinsmore & Shohl, LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
Attorneys for Plaintiffs
YOU ARE REQUIRED to plead to the within Answer With New Matter within 20 days
of service hereof or a default judgment may be entered against you,
DATE:
2-/z/o5,'
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By: ~
Attorney L D. No. 43812
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendant
John A. Staffer, Esquire
Attorney I. D. No. 43812
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
GREAT WEST CASUALTY CO. and
Attorney for Defendant
: 1N THE COURT OF COMMON PLEAS
DTS LOGISTICS, LLC,
Plaintiffs
V.
N.E.K. CARRIERS, LLC,
Defendant
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 03-6235
JURY TRIAL DEMANDED
ANSWER OF DEFENDANT TO
PLAINTIFFS, COMPLAINT INCLUDING NEW MATTER
AND NOW, comes the Defendant, N.E.K Carriers, LLC, by and through their attorneys,
Goldberg, Katzman and Shipman, P.C., who file the following Answer to Plaintiffs' Complaint
Including New Matter;
1. Denied. Answering Defendant is without information or belief as to the truth of
the averments contained in paragraph 1, hence they are denied and proof is demanded at time of
trial.
2. Denied as stated. It is admitted that Defendant agreed to transport a load of
chilled food products from DTS' dock in Billings, Montana to Giant Foods in Carlisle,
Pennsylvania and to Giant Foods in Landover, Maryland. It is further admitted that the times of
delivery were altered. Any and all other averments of paragraph 2 are denied as stated and proof
is demanded at time of trial.
3. Denied as stated. To the extent that the averments of paragraph 3 seek to quote or
paraphrase Exhibit "A," the document speaks for itself and any and all paraphrasing or
summarizing of said document is denied as stated. Any and all other averments of paragraph 3
are denied as stated and proof is demanded at time of trial.
4. Admitted in part and denied in part. It is admitted that Defendant picked up the
perishable food products in Billings, Montana for shipment. It is admitted that DTS paid
Defendant $1,553.25 in freight charges for such shipment. Any and all other averments of
paragraph 4 are denied to the extent they seek a conclusion of law to which no responsive
pleading is required and/or are denied as stated and proof is demanded at time of trial.
5. Admitted in part and denied in part. It is admitted that Defendant delivered the
load of perishable food product to Giant Food in Carlisle, Pennsylvania. It is admitted that the
product was rejected. It is denied that the product in whole or in part was unacceptable, did not
meet the requirements, or was in any other way subject to rejection and/or should have been
rejected. Any and all other averments of paragraph 5 are denied as stated and proof is demanded
at time of trial.
2
6. Denied. The answering Defendant is without information or belief as to the truth
of the averments contained in paragraph 6, hence they are denied and proof is demanded at time
of trial. In the alternative, the averments of paragraph 6 are denied to the extent they seek a
conclusion of law to which no responsive pleading is required.
7. Admitted in part and denied in part. It is admitted that Plaintiffs notified
Defendant of the rejected load and requested Defendant provide payment for the cargo loss. It is
further admitted that Defendant refused the request for payment and continues to refuse to pay
for cargo loss as any and all liability for damages in whole or in part is denied and proof is
demanded at time of trial.
8. Denied. Any and all allegations that Defendant breached the transportation
agreement and/or that Defendant was negligent in transporting perishable food at temperatures in
excess of the temperature specified in the Bills of Lading are specifically denied. It is further
denied that the Plaintiff suffered any damages as a result of any conduct on the part of the
Defendant.
FIRST CLAIM
(Breach of Contract)
9. The averments of paragraphs 1 through 8 are incorporated herein and made a part
hereof as if set forth in full.
3
10. Denied. It is denied that Defendant failed to deliver the perishable food in whole
or in part in accordance with the directions specified in the Bills of Lading It is denied that any
action or inaction of Defendant constituted a breach of contract in whole or in part between DTS
Logistics, LLC and the Defendant. Any and all other averments of paragraph 10 are denied and
proof is demanded at time of trial.
11. Denied. It is denied that Defendant breached the terms of any agreement. It is
further denied that the Defendant caused and/or is liable for any damage in the amount of
$32,611.05 to Plaintiff
WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiffs'
Complaint.
_SECOND CLAIM
N '
(eghgence)
12. The averments of paragraphs 1 through 11 are incorporated herein and made a
part hereof as if set forth in full.
13. Denied. It is denied that Defendant failed to properly deliver the perishable foods
in whole or in part in accordance with the instructions contained in the Bills of Lading and/or the
4
Transportation Agreement. Its specifically denied that Defendant was negligent or any such
action constituted negligence.
14. Denied. Any and allegations of negligence of answering Defendant are specifically
denied. It is further denied that Defendant is liable to Plaintiff in the amount of $32,611.05.
WHEREFORE, Defendant requests this Honorable Court to dismiss Plaintiffs'
Complaint.
N~EW MATTER
15. Some or all of Plaintiffs' claims may be barred by Plaintiffs' contributory and/or
comparative negligence.
16. Some or all of Plaintiffs' claims may be barred or reduced by Plaintiffs' assumption
ora known risk.
17. Some or all of Plaintiffs' claims may be barred or reduced by the acts, omissions
and/or negligence by a person or company which is not a party to this action~
18. Plaintiffs fail to state a cause of action for some or all of its claims including, but
not limited to, negligence, breach of contract, and/or attorney fees.
19. Some or all of Plaintiffs' claims may be barred or limited by the terms of the
Carmack Amendment, 49 U.S.C. §11706.
20. Some or all of Plaintiffs' claims may be barred or reduced to the extent they failed
to mitigate damages.
21. Some or all of Plaintiffs' claims may be barred or reduced to the extent that they
have not preserved the evidence and/or their acts or omissions resulted in spoliation of the
evidence.
WHEREFORE, Defendants requests this Honorable Court to dismiss Plaintiffs'
Complaint.
DATE:
105957.1
By:
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendant
6
02/02/2004 11:42 1785406~109
,.-- NEK
PAGE 02
~ ~ _o~_ . . hereby a~knowledge that N, ig,K. Carri~rs, LLCit
the D~eadant in this action and that l am authorized to mal~ this verification on it~ behal~ that I
have rea~ the foregoing Anawet to Plaiatiff~' Complaim Including New Matter; and that the
s~ated therein are true and ootteen to the best of my knowledge, information and b~ief.
I understand tYmt any raise state,merits herein ate made subject to penalties of 18 Pa, C, $.
Secfiort 4904. relating to un~wom faJsifieation to authorities,
N.E.K. CARRIERS. LLC
C~ERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel &record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the 2 gM
__ day of~ c~
2004, addressed to the following:
Frederick M Erney, Esquire
James M. Wherley, Jr., Esquire
Dinsmore & Shohl, LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
By
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
N.E.K. CARRIERS, LLC
Defendant
) CaseNo. 03-6235
)
)
)
)
)
)
)
)
)
)
)
)
TYPE OF PLEADING:
Reply to New Matter
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman, Esquire
PA. I.D. No.: 88916
255 E. Fifth Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8200 (telephone)
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V
N.E.K. CARRIERS, LLC
Defendant
) Case No. 03-6235
)
)
)
)
)
)
)
)
)
)
)
)
REPLY TO NEW MATTER
For their Reply to the New Matter alleged by Defendant N.E.K. Carriers, LLC ("Defendant"),
Plaintiffs Great West Casualty Co. ("Great West") and DTS Logistics, LLC CDTS") (collectively
"Plaintiffs") state as follows:
15 Denied. Plaintiffs deny that they committed contributory and/or comparative
negligence. Further, Paragraph 15 of Defendant's New Matter sets forth legal conclusions to which no
response is required, and is therefore denied and strict proof thereof is demanded at time of trial.
16. Denied. Plaintiff's deny that they assumed a known risk. Further, Paragraph 16 of
Defendant's New Matter sets forth legal conclusions to which no response is required, and is therefore
denied and strict proof thereof is demanded at time of trial.
2
17. Denied. Plaintiffs believe Defendant's negligence is the cause of the negligence and
damages at issue, and Plaintiffs further are without sufficient information or belief to respond to such
allegation, which is therefore denied. Further, Paragraph 17 of Defendant's New Matter sets forth legal
conclusions to which no response is required, and is therefore denied and strict proof thereof is
demanded at time of trial.
18 Denied. Further, Paragraph 18 of Defendant's New Matter sets forth legal conclusions
to which no response is required, and is therefore denied and strict proof thereof is demanded at time of
trial.
19 Denied. Further, Paragraph 19 of Defendant's New Matter sets forth legal conclusions
to which no response is required, and is therefore denied and strict proof thereof is demanded at time of
trial.
20. Denied. Plaintiffs deny they failed to mitigate their damages. Further, Paragraph 20 of
Defendant's New Matter sets forth legal conclusions to which no response is required, and is therefore
denied and strict proof thereof is demanded at time of trial.
2 l. Denied. Plaintiffs deny that spoliation has occurred and strict proof thereof is demanded
at time of trial.
WHEREFORE, Plaintiffs respectfully request that Defendant's New Matter be dismissed
and that judgment in their favor be entered as follows:
1. Judgment against Defendant in the amount of $32,611.05.
2. Plaintiffs' costs of this action, interest and attorneys' fees; and
3
3 Such other relief, including equitable relief, as the Court deems appropriate.
Respectfully submitted,
OF COUNSEL:
Jeffrey P Hinebaugh ( OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
DINSMORE & SHOHL, LLP,
By: Frederick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman
PA I.D. No.: 88916
255 E. Fifth Street, Suite 1900
Cincinnati, Ohio 45202
(513) 977-8200 (telephone)
Counsel for Plaintiffs
4
My nal~nc i s Mark Ellctson and I am Safety Nfanager for DTS ~nd I ~ au~odzgd to ~e this
v~ficatio~ on it~ b~half, i hav~ read thc for;going R~ply to Nc~ Matter. The fo~going R~Iy to
New Malter is ~e upon my personal i~o~aion and belief. ~y facts stated in ~e ~ly to New
M~tt~r ar~ co~ec~ to best of m~ i~fo~ation and belief. This V~fifi;atio~ is t~en p~t ~ the
r;qulroments of 1S Pa. C.S.~. { 490~ ~lating to unswom falsificatioBs to au~ofities.
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded by federal express this
19th day of February, 2004 to the following:
John A. Statler, Esquire (PA No. 43812)
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
987702
CounselOr Plain~~
IN THE COURT OF COMMON PkEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and,
DTS LOGISTICS, LLC
NEK CARRIERS, LLC,
Plaintiffs,
Defendant.
CIVIL DIVISION
Case No. 0:3-6235
PRAECIP]E TO CHANGE ADDRESS
Filed on beMlf of:
Plaintiffs, GREAT WEST
CASUALTY CO. and DTS
LOGISTICS, LLC.
Counsel of Record for this Party:
Frederick M. Emy, Esquire
PA I.D. No. 52007
Scott D. Gc4dman, Esquire
PA I.D. No. 88916
DiNSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
N.E.K. CARRIERS, LLC )
)
Defendant )
Case No. 03-6235
PRAECIPE TO CHANGE ADDRESS
TO THE PROTHONOTARY:
Kindly change the address on behalf of Dinsmore & Shohl, LLP, as counsel for
Plaintiffs in this matter. Please change the address from the Cincinnati address which
was identified on the Complaint to the Pittsburgh address identified below.
Respectfully Submitted,
DINSMO~RE & SHOHL, LLP,
Frederick M. Emy
PA I.D. No. 52007
Scott D. Goldman
PA I.D. No. 88916
Suite 2415 Grant Building
Pittsburgh, Pennsylvania 15219
(412) 281-5000 (telephone)
Counsel for Plaintiffs
OF COUNSEL:
Jeffrey P. Hinebaugh (OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
DINSMORE & SHOHL, LLP,
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
CERTIFICATE OF SERVICE
I hereby certify that a tree and accurate copy of the foregoing PRAECIPE TO
CHANGE ADDRESS was served via ordinary U.S. Mail this ~A ~, day of March, 2004 to the
following:
John A. Statler
Guy Brooks
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, Pennsylvania 17108-1268
Counsel for Defendant
Scott D. Goldman
Guy H. Brooks, Esquire
Attorney 1. D. No. 49672
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Defendant
GREAT WEST CASUALTY CO. and
DTS LOGISTICS, LLC,
Plaintiffs
N.E.K. CARRIERS, LLC,
Defendant
: 1N THE COURT OF COMMON PLEAS
: CUrMBERLAND COLrNTY, PENNSYLVANIA
: CWIL ACTION - LAW
:
: NO. 03-6235
:
: JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please substitute the appearance of Guy H. Brooks, Esquire, for John Statler, Esquire, of
Goldberg, Katzman and Shipman, P.C., for Defendant in the above-captioned action.
GOLDBERG, IC~TZMAN & SHIPMAN, P.C.
By
Guy H. Bro~/ks, Esquire
Attorney I.I~ No. 49672
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a tree and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with first-class postage prepaid on the, ~)~t4~tay of ~/)}& L~lt"~
2004, addressed to the following:
Frederick M. Emey, Esquire
James M. Wherley, Jr., Esquire
Dinsmore & Shohl, LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
By
Respectfully submitted,
GOLDBERG, FotTZMAN & SHIPMAN, P.C.
Guy Ii'. B~oks, E:~quire/
Attorney I. D. No. 49672
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSY]LVANIA
GREAT WEST CASUALTY, CO.
and,
DTS LOGISTICS, LLC
NEK CARRIERS, LLC,
Plaintiffs,
Defendant.
CIVIL DIVISION
Case No. 03-6235
MOTION ]FOR ADMISSION
PRO HA C VICE OF JAMES M.
WHERLEY, JR
Filed on behalf off
Plaintiffs, GREAT WEST
CASUALTY CO. and DTS
LOGISTICS, LLC.
Counsel of Record for this Party:
Frederick M. Emy, Esquire
PA I.D. No. 52007
Scott D. Goldman, Esquire
PA I.D. No. 88916
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
Case No. 03-6235
MOTION FOR ADMISSION
PRO HAC VICE OF JAMES M. WHERLEY~ JR.
Plaintiffs, Great West Casualty, Co. and DTS Logistics, LLC ("Plaintiffs,") by
and through counsel, moves the Court, pursuant to Rule :301 of the Pennsylvania Bar
Admission Rules, for an order allowing James M. Wherley,, Jr. to appear pro hac vice as
counsel for Plaintiffs. In support of this motion, counsel sta,les as follows:
1. James M. Wherley, Jr. is a member in good. standing of the Bar of Ohio
(Ohio # 0073932, admitted November 2001.) Mr. Wherley is a lawyer with the
Cincinnati office of Dinsmore & Shohl, 255 E. Fifth St., Suite 1900, Cincinnati, Ohio
45202.
2. Mr. Wherley will comply with the local rules of this Court and agrees to
be subject to the jurisdiction and rules of the Pennsylvantia Supreme Court governing
professional conduct.
Accordingly, the undersigned hereby moves the Court for leave for Mr. Wherley
to appearpro hac vice as counsel for Plaintiffs in this action.
Respectfully Submitted,
SMORE & SHOHL, LLP,
Frederick M. Emy
PA I.D. No. 52007
Scott D. Goldman
PA I.D. No. 88916
Suite 2415 Grant Building
Pittsburgh, Pennsylvania 15219
(412) 281-5000 (telephone)
Counsel for Plaintiffs
OF COUNSEL:
Jeffrey P. Hinebaugh (OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
DINSMORE & SHOHL, LLP,
t900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing MOTION FOR
ADMISSION PRO H.4C VICE OF JAMES M. WHERLEY, ,IR. was served via U.S. Mail
this '~'- day of April, 2004 to the following:
John A. Statler
Guy Brooks
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, Pennsylvania 17108-1268
Counsel for Defendant
Scott D. Goldman
APR 30 ~004 ~
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.IC CARRIERS, LLC )
)
Defendant )
Case No. 03-6235
ORDER
On motion of the Plaintiffs Great West Casualty Co. and DTS Logistics, LLC, for
an Order admitting James M. Wherley, Jr. to the Bar of this Court pro hac vice for the
purpose of appearing as counsel in this action, the Court being sufficiently advised;
IT IS HEREBY ORDERED that James M. Wherley, Jr. is admitted to the Bar of
this Court for the purpose of appearing as counsel in this action.
~~~ ~o~ ~ommon Pleas
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' MOTION TO
COMPEL.
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMO}(E & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. i'<1o.: 52007
Scott Goldman, Esquire
PA. I.D. bio.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
Admitted to PA)
DiNSMORE & SHOHL, LLP
Suite 241:5 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
CIVIL DIVISION
) CaseNo. 03-6235
MOTION TO COMPEL OF PLAINTIFFS
I. Overview.
Pursuant to Pennsylvania Civil Rules 4006, 4009.12, 4014, and 4019, and Local Rule
4001-1, Plaintiffs Great West Casualty Company ("Great West") and DTS Logistics, LLC
CDTS") (together, "Plaintiffs"), by and through counsel, hereby move this Court for an Order
compelling Defendant NEK Carriers, LLC ("N.E.K." or "Defi:ndant") to respond to Plaintiffs'
First Set of Interrogatories and Requests for Production of Documents ("the Requests") directed
to Defendant. Plaintiffs further request that, as mandated by Pennsylvania Civil Rule 4014, the
Requests for Admission directed to Defendant be deemed admitted. Defendant has wholly failed
to respond to Plaintiffs' discovery requests, despite efforts of Plaintiffs' counsel to obtain such
requests absent judicial intervention.
This Motion is supported by a copy of Plaintiffs' First Set of Interrogatories, Requests for
Production of Documents, and Requests for Admission directed to Defendant (attached at Tab A)
and the Affidavit of James M Wherley (attached at Tab B).
(at Tab C) for the Court's convenience.
II.
A proposed Order also is attached
Argument and Analysis.
In late 2003, Plaintiffs filed their Complaint in the instant court. The claims in the
Complaint all concern the improper delivery of chilled food products by Defendant. On or
around July 1, 2003, DTS entered into a freight forwarder agree:ment with Defendant under
which Defendant would deliver chilled food products from DTS' dock in Billings, Montana to
Giant Foods in Carlisle, Pennsylvania and Landover, Maryland. Plaintiffs allege that Defendants
failed to keep the chilled products in the required a temperature range of 29 to 38 degrees,
causing such delivery to be rejected by Giant Foods. The rejection of the load caused damages
to Plaintiffs for which they now seek relief(Great West is DTS' insurer and paid a portion of the
damages on behalf of DTS).
On March 22, 2004, Plaintiffs served their First Set of Interrogatories, Requests for
Production of Documents, and Requests for Admission directed to Plaintiff ("the Requests").
(See Exhibit A; Exhibit B, ¶ 2). The Requests seek information and documents relevant to
Plaintiffs' claims and damages, including information and documents relating to the attempted
delivery, and rejection, of the chilled food products.
On May 13, 2004, Plaintiffs' counsel wrote Defendant's counsel to check on the status of
the outstanding discovery, in addition to attempting to discuss :settlement possibilities. (See id., ¶
3). Defendant's counsel telephoned Plaintiffs' counsel that day and acknowledged that Plaintiffs
were entitled to such discovery and stated that there had been some complications at their firm
relating to the case. Defendants' counsel further stated that he would contact Plaintiffs' counsel
by the following Monday, May 17th relating to the case. (See id., ¶ 4). Plaintiffs counsel,
however, was not contacted on that Monday and telephoned Defimdant's counsel the next day,
leaving a message seeking information relating to the outstanding discovery requests. (See id., ¶
5). Plaintiffs' counsel has not received a response to this most recent inquiry. (See id., ¶ 6)
Pennsylvania Civil Rule 4019 expressly authorizes a party to move for an order
compelling discovery if the opposing party fails to respond to interrogatories and requests for
documents. Also, Civil Rule 4014 mandates that, if a party does not timely (within 30 days)
respond to requests for admission, such requests are deemed admitted. Here, Defendant has not
responded to Plaintiffs Interrogatories, Document Requests, or Requests for Admission.
Plaintiffs have attempted to resolve this matter without Court intervention. However, the
requests are now almost a month overdue and Plaintiffs have no'I received assurances when such
responses will be provided. The Requests clearly are relevant to the subject matter involved in
the pending action, as they seek information and documents relating to Plaintiffs' claims of
liability and damages. Further, the requested information and documents are necessary to
investigate the case and prepare for trial. As such, Plaintiffs are entitled to such information and
documents, and consequently requests that this Court mandate such be provided by Defendant.
III. Conclusion.
For the foregoing reasons, Plaintiffs respectfully request that this Court grant Plaintiffs'
motion, as set forth in the attached proposed Order.
OF COUNSEL:
Jeffrey P. Hinebaugh ( OH#: 0059888)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
Respectfully Submitted,
DINSMOPEE & LLP
~^t t'r~' No.: 52~07 .
Scqt~ Goldman, ~uire
PA{ I.D. Nc,.: 889~16]
Janyes M. Wherllg(, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA l 5219
(412) 281-5000
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded via Regular U.S.
Mail this OqCday of May, 2004 to the following:
Guy Brooks
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
1019217
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
N.E.K. CARRIERS, LLC
Defendant
Case No. 013-6235
PLAINTIFFS' FIRST SET OF INTERROGATORIES~ REQUEST FOR PRODUCTION
OF DOCUMENTS~ AND REQUEST FOR ADMISSION DIRECTED TO DEFENDANT
DEFINITIONS AND INSTRUCTIONS
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs Great West Casualty
Co. ("Great West") and DTS Logistics, LLC ("DTS")(collectively "Plaintiffs") propound the
following interrogatories, requests for production of documents, and requests for admission upon
Defendant N.E.K. Carriers, LLC ("Defendant") to be answered within the time set forth in the
Pennsylvania Rules of Civil Procedure. Unless negated by the context of the request or
interrogatory, the following definitions are to be considered to be applicable to all discovery
requests contained herein:
(A) "Documents" is an all-inclusive term referring to any writing and/or recorded or
graphic matter, however produced or reproduced. The term documents includes, without
limitation, correspondence, memoranda, interoffice communicatiions, minutes, reports, notes,
schedules, analyses, drawings, diagrams, tables, graphs, charts, maps, surveys, books of account,
ledgers, invoices, drafts, diaries, logs, proposals, printouts, reconlings, telegrams, films, and all
other such documents tangible or retrievable of any kind. Documents also include any
preliminary notes and drafts of all the foregoing in whatever form, for example, printed, types,
longhand, shorthand, on paper, paper tape, tabulating cards, ribbon blueprints, magnetic tape,
microfilm, film, motion picture file, phonograph records, or other form.
(B) With respect to documents, the term '" '" ~
tdent~fy me.ans to give the date, title, author
and addresses; identify with respect to documents further means:
(c)
(i)
to describe a document sufficiently well to enable
the interrogator to know what such document is and
to retrieve it from a file or wherever it may be
located;
(II)
to describe it in a manner suitable for use as a
description in a subpoena;
(III)
to give the name, address, position or title of the
person(s) who has custody of the documen:I and/or
copies thereof.
"Identify" when used in reference to an individual means:
(I) to state his/her full name;
(II) present residence address or last known residence;
(III) present or last known business address;
(IV) present employer or last known employer;
2
(v)
whether ever employed by any party to this action
and, if so, the dates he (she) was employed by such
party, the name of such party, and the last position
held as an employee of such party.
(D) Whenever the expression "and/or" is used in these discovery requests, the
information called for should be set out in the conjunctive and disjunctive, and wherever the
information is set out in the disjunctive, it should be given separately for each and every element
sought.
(E) Whenever a date, amount, figure or other computation is requested, the exact date,
amount or other computation or figure is to be given unless it is not known; and then the
approximate date, amount, figure or other computation should be given or the best estimate
thereof; and the answer shall state that the date, amount, figure, or other computation is an
estimate or approximation.
(F) No answer is to be left blank. If the answer to an interrogatory or subparagraph of
an interrogatory is "none" or "unknown", such statement must be written in the answer. If the
question is inapplicable, "N/A" must be written in the answer. If an answer is omitted because of
the claim of privilege, the basis of the privilege is to be stated.
(G) These discovery requests are continuing, and any information secured subsequent
to the filing of your answers which would have been includable irt the answers had it been known
or available, are to be supplied by supplemental answers.
INTERROGATORIES
Pursuant to thc Pennsylvania Rules of Civil Procedure, Plaintiffs propound the following
interrogatories to Defendant:
INTERROGATORY NO. 1: Identify all individuals who answered or assisted in
answering these interrogatories. In doing so, please provide the full name, address, telephone
number, date of birth, and social security number of all individuals answering these
interrogatories.
RESPONSE:
INTERROGATORY NO. 2: Identify all individuals who have first hand knowledge
of the facts alleged in Plaintiffs' Complaint and Defendant's Answer or defenses thereto. In so
answering, please provide the individual's full name, last known address, last known telephone
number, and a brief description of the facts of which the individual has first hand knowledge.
RESPONSE:
INTERROGATORY NO. 3: Identify all individuals Defendant will call to testify at
trial as a witness. In so answering, please provide their full name, last known address, last
known telephone number, and brief description of his or her anticipated testimony.
RESPONSE:
INTERROGATORY NO. 4: Identify all documents, materials, or things which
Defendant will rely upon at trial as evidence, an exhibit, for demonstrative purposes, or for any
other purpose. Alternatively, you may produce documents responsive to this interrogatory.
RESPONSE:
INTERROGATORY NO. 5: Identify all individuals anticipated to be called at trial of
this matter as an expert witness. In so answering, please provide the individual's full name, last
known address, last known telephone number, a brief descriptic,n of his or her qualifications, and
a brief summary of his or her anticipated testimony.
RESPONSE:
INTERROGATORY NO. 6: Identify all factual information supplied to the experts
which were used for the bases of his/her expert opinion(s), including correspondence,
memoranda, reports, tests, plans, specifications, drawings, and/or documents of any kind, as well
as objects and photographs examined.
RESPONSE:
INTERROGATORY NO. 7: Regarding the load/delivery at issue, please identify:
(a) the name and address of the driver who picked up the load from DTS and
attempted delivery to Giant Foods;
(b) all persons at DTS with whom the driver had contact prior to picking up the load
at issue; and
(c) all persons at Giant Foods with the whom the driver had contact in attempting to
deliver the load at issue.
RESPONSE:
INTERROGATORY NO. 8: Please list and identify all steps the driver of the load at
issue took to verify the temperature of the load at issue, from the time such load was picked up at
DTS to when the driver attempted to deliver the load to Giant Foods. Specifically, please
identify each date the load's temperature was taken, the respectiw: procedures utilized in
checking the temperature; the place (i.e., front, back, middle) of the trailer where the temperature
was taken.
RESPONSE:
7
INTERROGATORY NO. 9: Please describe Defendant's procedures it utilizes to
ensure and verify that loads are kept within temperature requirements while being transported by
Defendant, and the employee(s) of Defendant in charge of such.
RESPONSE:
INTERROGATORY NO. 10: Identify all communications between (a) Defendant and
(b) Great West; DTS; or Giant Foods concerning the facts at issue. For all such
communications, please specifically identify the date, substance, and parties to such
communications.
RESPONSE:
INTERROGATORY NO. 11: If it is Defendant's contention that it is not liable
because it "kept the product at the right t "
emperature, please fully set forth all facts supporting
that Defendant kept the product at issue at the right temperature.
RESPONSE:
INTERROGATORY NO. 12: Please identify and describe any instance in the past five
years where claims were made against Defendant for not delivering goods within temperature
requirements. For all such instances, please identify the date of such delivery, the person making
the claim against Defendant, Defendant's position as to the claim, and the claim's resolution.
RESPONSE:
INTERROGATORY NO. 13: Please identify any instance in the past five years where
the malfunction of a refrigeration unit of Defendant led to a load not being delivered within the
temperature requirements of such load.
RESPONSE:
INTERROGATORY NO. 14: Please identify any problems or malfunctions, in the
past five years, of the refrigeration unit of the trailer that was utilized to transport the load at
issue.
RESPONSE:
10
INTERROGATORY NO. 15: If Defendant asserts that the goods at issue were not
within proper temperature requirements when they were picked ~ap from DTS (i.e~, were not in
good condition), please identify the all facts supporting such ~ '
ass ~rtlon
RESPONSE:
INTERROGATORY NO. 16: If Defendant asserts that the goods at issue were within
proper temperature requirements when they attempted to be delivered to Giant Foods (i.e__:, were
in good condition), please identify the all facts supporting such assertion.
RESPONSE:
INTERROGATORY NO. 17: Notwithstanding any of the foregoing responses, please
identify any and all facts relevant to the claims or defenses of the present lawsuit.
RESPONSE:
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to the Pennsylvania Rules of Civit Procedure, Plaintiffs propound the following
requests for production of documents to Defendant:
REQUEST FOR PRODUCTION NO. 1: Please produce all documents relied upon in
responding to Plaintiffs' First Set of Interrogator/es.
REQUEST FOR PRODUCTION NO. 2: Produce all documents, materials, or things
which Defendant will rely upon at trial as evidence, an exhibit, fbr demonstrative purposes, or for
any other purpose.
REQUEST FOR PRODUCTION NO. 3: Please produce all reports generated by any
expert witness that Defendant intends to call at trial.
REQUEST FOR PRODUCTION NO.4: Please produce all documents supplied to the
experts (that Defendant intends to call at trial) which were used [or the bases of his/her expert
opinion(s), including correspondence, memoranda, reports, tests, plans, specifications, drawings,
and/or documents of any kind, as well as objects and photographs examined.
REQUEST FOR PRODUCTION NO. $: Please produce a resume and/or C.V. of any
expert witness that Defendant intends to call at trial.
REQUEST FOR PRODUCTION NO. 6: Please produce all records, including but not
limited to P.O.D.'s and bills of lading, relating to the load that is the subject of this lawsuit.
REQUEST FOR PRODUCTION NO. 7: Please produce the employee file of the
driver that picked up and attempted delivery of the goods that are the subject of this lawsuit.
3_2
REQUEST FOR PRODUCTION NO. 8: Please produce all documents describing,
depicting, or relating to the procedures Defendant procedures utilizes to ensure and verify that
loads are kept within temperature requirements while being transported by Defendant.
REQUEST FOR PRODUCTION NO. 9: If it is Defendant's contention that it is not
liable because it kept the product at the right temperature, please produce all documents
supporting that Defendant kept the product at the right temperature.
REQUEST FOR PRODUCTION NO. 10: Please produce all documents which
contradict or deny that Defendant kept the product at issue at the correct temperature.
REQUEST FOR PRODUCTION NO. 11: Please produce all documents which
contain any representation, warning, or instruction by and between DTS and Defendant
concerning the deliveries at issue.
REQUEST FOR PRODUCTION NO. 12: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and Great West.
REQUEST FOR PRODUCTION NO. 13: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and DTS.
REQUEST FOR PRODUCTION NO. 14: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and Giant Foods.
REQUEST FOR PRODUCTION NO. 15: Please produce the user manual, instruction
manual, or similar documents relating to the refrigeration unit o:t' the trailer which transported the
load at issue.
REQUEST FOR PRODUCTION NO. 16: If Defendant asserts that the goods at issue
were not within proper temperature requirements when they were picked up from DTS (i.e., were
not in good condition), please produce all documents supporting such assertion.
13
REQUEST FOR PRODUCTION NO. 17: If Defendant asserts that the goods at issue
were within proper temperature requirements when they attempted to be delivered to Giant Foods
(i.e., were in good condition), please identify the all facts supporting such assertion.
REQUEST FOR PRODUCTION NO. 18: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and any other person not included
above.
REQUEST FOR PRODUCTION NO. 19: Please produce all documents which in any
way support Defendant's denial of liability in this matter.
REQUEST FOR PRODUCTION NO. 20: Please produce documents relating to any
investigation of the deliveries that are the subject of this lawsuit.
REQUEST FOR PRODUCTION NO. 21: Please produce any photographs, film,
diagrams, or drawings relating to the deliveries that are the subject of this lawsuit.
REQUEST FOR PRODUCTION NO. ~', Not including any document produced in
response to the above requests, please produce any document that is relevant to the claims and
defenses of this lawsuit.
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs propound the following
requests for admission to Defendant:
REQUEST FOR ADMISSION NO. 1:
as Exhibit A to Plaintiffs' Complaint are true and accurate copies of the bills of lading provided
to Defendant by DTS concerning the load at issue.
Please admit that the bills of lading.attached
RESPONSE:
REQUEST FOR ADMISSION NO. 2: Please admit that, when the load at issue was
picked up from DTS, Defendant (or its agents) did not indicate on the bills of lading (referenced
in request for admission no. 1 above) that the product at issue was outside of the temperature
ranges indicated on the bills of lading.
RESPONSE:
REQUEST FOR ADMISSION NO. 3: Please admit that Defendant (via its driver)
signed the bills of lading (referenced in request for admission no 1 above).
RESPONSE:
REQUEST FOR ADMISSION NO. 4: Please admill that the driver of Defendant's
truck, after picking up the load at issue from DTS and before attempting delivery of the load,
spent tow days at his home due to car accident which his mother was involved.
RESPONSE:
15
REQUEST FOR ADMISSION NO. 5: Please admit that upon arriving at Giant
Foods in Carlisle, PA, the load (at issue) was pulped and its temperature was found to be above
the range indicated on the bills of lading (referenced in request tbr admission no. 1 above).
RESPONSE:
Respectfully Submitted,
DINSMORE & SHOHL, LLP,
Frederick M. Emy
PA I.D. No. 52007
Scott D. Goldman
PA I.D. No. 88916
Suite 2415 Grant Building
Pittsburgh, Pennsylvania 15219
(412) 281-5000 (telephone)
Counsel for Plaintiffs
OF COUNSEL:
Jeffrey P. Hinebaugh (OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
DINSMORE & SHOHL, LLP,
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
CERTIFICATE OF SERVICE
I hereby certify that a tree and accurate copy of the foregoing PLAINTIFFS' FIRST
SET OF INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS,
AND REQUEST FOR ADMISSION DIRECTED TO DEFENDANT was served via
ordinary U.S. Mail this 22~/~lay of March, 2004 to the following:
John A. Statler
Guy Brooks
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, Pennsylvania 17108-1268
Counsel for Defendant
Scott D. Goldman
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
CIVIL DIVISION
Case Ne.. 03-6235
AFFIDAVIT OF JAMES M. WHERLEY, JR. ESQUIRE
County of Hamilton )
) SSi
State of Ohio )
NOW COMES the Affiant, James M. Wherley, Jr., being duly sworn and cautioned, and
for his Affidavit states as follows:
1. My name is James M. Wherley, Jr., and I am co-counsel for Plaintiffs in the
above-captioned matter.
2. On March 22, 2004, Plaintiffs served (via mail} their First Set of Interrogatories,
Request for Production of Documents, and Requests for Admission directed to Defendant ("the
Requests"). True and accurate copies of the Requests are attached to the instant motion at Tab
A.
3. On or around May 13, 2004, I wrote Defendant's counsel, Guy Brooks, to check on the
status of the outstanding discovery, in addition to attempting to discuss settlement possibilities. I
sent the letter via fax and regular mail (a copy of which is attached hereto as "Exhibit 1").
4. Mr. Brooks, telephoned me that day and acknowledged that Plaintiffs were entitled to
such discovery and stated that there had been some complicatiG,ns at Defendant's counsel's firm
relating to the case. Mr. Brooks further stated that he would contact me by the following
Monday, May the 17th.
5. I was not contacted by Monday, May 17th by Mr. Brooks. The next day, I telephoned
Mr. Brooks and left a message seeking information relating to the outstanding discovery
requests. I have not received a response to that message.
6. As of the present date, I have not received answers or documents responsive to the
Requests.
FURTHER AFFIANT SAYETH NAUGHT.
Sworn to and subscribed before me, a Notary Public, this ~ t'('~A[day of May, 2004.
GREAT WEST CASUALTY, CO.,
and DTS LOGISTICS, LLC,
Plaintiffs
VS.
N.E.K. CARRIERS, LLC,
Defendant
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COU2qTY, PENNSYLVANIA
CIVIL ACTION - LAW
03-6235 CIVIL
1N RE: MOTION TO COMPEL
ORDER
AND NOW, this ~ day of June, 2004, a role is issued on the defendant to show
cause why the relief requested in the within motion ought not to be granted. This role returnable
twenty (20) days after service.
BY THE COURT,
Ke~fid E[ess, J.
,ID
0
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
N.E.K. CARRIERS, LLC
Defendant
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT.
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman, Esquire
PA. I.D. No.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
Admitted[ to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 28~[-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
CIVIL DIVISION
Case No. 03-6235
MOTION FOR SUMMARY JUDGMENT
I. Overview.
Pursuant to Pennsylvania Rules of Civil Procedure:, Plaintiffs Great West Casualty
Company ("Great West") and DTS Logistics, LLC ("DTS") (together, "Plaintiffs"), by and
through counsel, hereby move this Court for an Order graining summary judgment on their
behalf as to all claims set forth in their Complaint.
The undisputed facts show that DTS and N.E.K. entered into a freight forwarder
agreement for N.E.K. to transport a load of chilled load products for DTS. The undisputed facts
also show that N.E.K. delivered the goods outside of proper temperature requirements. As such,
there is no issue of material fact and Plaintiffs are entitled to judgment as a matter of law for the
damages caused by N.E.K.'s failure to fulfill its obligations. This Motion is supported by a copy
of Plaintiffs' First Set of Interrogatories, Requests for Production of Documents, and Requests
for Admission directed to Defendant (attached at Tab A), 'the Affidavit of James M Wherley
2
(attached at Tab B), the Affidavit of Thomas Stewart (attached at Tab C) and the Affidavit of
Scott Weiss (attached at Tab D).
convenience.
II.
A proposed Order also is attached (at Tab F) for the Court's
Factual Background.
DTS is a limited liability company located in Billings, Montana. (Afl. of Scott Weiss, ¶
3, attached hereto at Tab D.) DTS is a domestic freight forwarder licensed by the Federal Motor
Safety Carrier Administration. (Tab D at ¶ 3.) DTS receives goods from its customers (various
shippers) and maintains that product, until it is shipped from DTS' dock, in refrigeration units
which assure that goods are kept within the proper temperature range. (Tab D at ¶ 4.) The units
were monitored continuously by DTS' personnel. (Tab D at ¶ Ii.)
In June of 2003, DTS contracted with a shipper, Trans-Ocean Products, Inc., to arrange
for delivery of the goods at issue, under which DTS was to receive compensation and assume
responsibility for the goods. (Tab D at ¶ 6) On or about June 30, 2003, DTS entered into a
freight forwarder agreement with N.E.K. for N.E.K. to transport the load of chilled food products
from DTS's dock in Billings, Montana to Giant Foods in Carlisle, Pennsylvania on July 7, 2003
and Giant Foods, Landover, Maryland on July 8, 2003. (Tab D at ¶ 6.) The parties later altered
the agreement and decided the products were to be delivered to Giant Foods in Carlisle,
Pennsylvania on July 8, 2003 and to Giant Foods in Landover the next day. (Tab D at ¶ 7.) The
chilled crab meat was consolidated with other products, including salad dressing from a different
shipper, on the N.E.K. vehicle. (Tab D at ¶ 6.)
On July 1, 2003, N.E.K. picked up the perishable food products (chilled crab meat) in
Billings, Montana for shipment and signed the Bills of Lading attesting that the product was in
good shipping order. (Tab D at ¶ 6; see, also, Tab A, Req. for Adm. Nos. 1-3.)~ Prior to
delivering the chilled food products to N.E.K., the goods had been maintained in DTS'
refrigeration units within the proper temperature range of 29 to 38 degrees. (Tab A at Req. for
Adm. No. 2; Tab D at ¶¶ 5, 11, bills attached as Ex. 2 to Tab D.) When it picked up the load
from DTS, N.E.K. signed the applicable bills of lading and nowhere indicated that the load at
issue was outside of the temperature ranges set forth therein. (Tab A, Req. for Adm. Nos. 1-3.)
DTS paid to N.E.K. $1,553.25 in freight charges for such shipping. (Tab D at ¶ 8.)
Additionally, DTS had paid $763.80 in freight charges for the product to be delivered to DTS.
(Tab D at ¶ 8.) Upon reaching Giant Foods in Carlisle, Giant Foods tested the temperature of the
chilled foods products. Such "pulping" of the chilled foods revealed that the product was outside
of the temperature range indicated on the bill of lading (of 29 to 38 degrees). (Tab A, Req. for
Adm. No. 5.) Giant Foods therefore refused delivery of the chilled food products. (Tab D at ¶
9.)
As a result of the rejected load, DTS was presented with a bill for the cargo loss claim
which resulted in a total loss to DTS in the amount of $30,294.00. (See Tab C at ¶ 10; Tab D at
¶ 10.) Pursuant to the policy between Great West and DTS, Great West was required to and did
pay to and/or on the behalf of DTS the sum of $27,794.00. (Tab C at ¶ 5.) Under its
deductible, DTS paid the remaining $2,500.00. (Tab D at ¶ 10.)
III. Law and Argument.
A. Summary Judgment Standard.
As discussed in Plaintiffs' motion to compel which was previously filed with this Court, N.E.K. has not responded
to Plaintiffs' discovery requests, which included requests for admission. Because the responses have not been
provided within the time period mandated by the Pennsylvania Rules of Civil Procedure (Rule 4014), the requests
for admission are deemed admitted.
4
Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, summary judgment is proper
"whenever there is not genuine issue of any material fact as to a necessary element of the cause
of action or defense which could be established by additional discovery or expert report."
Summary judgment may be granted in cases where the right :is clear from doubt, if there is no
issue of material fact, and if the moving party is entitled to judgment as a matter of law. See
Shoats v. Commissioner, Penn. Dept. of Corrections, 614, 591 A.2d 326 (Comm. Ct. 1991). The
purpose of summary judgment is to resolve matters when there: is nothing left to try. Here is one
such case, as the undisputed material facts demonstrate that N.E.K. breached its legal and
contractual duties to deliver chilled food products at the proper temperature ranges, and thus is
liable for Plaintiffs' damages.
A. N.E.IC is Liable Under the Carmack Amendment.
The Carmack Amendment to the Interstate Commerce Act (the "Carmack Amendment"),
embodied at 49 U.S.C.A. § 14706, governs the instant case. The Carmack Amendment was
enacted to regulate the commerce and shipment of goods, and ilo relieve shippers of the burden of
searching out a particular negligent carrier from among the often numerous carriers handling an
interstate shipment of goods. See S.C. Johnson & Son, Inc. v. Louisville & Nashville, R.R. Co.,
695 F.2d 253, 256 (7th Cir. 1982). Consequently, the Carmack Amendment preempts state law
claims relating to the shipment of goods by carriers across state lines. See North American Van
Line, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452,456 (7th Cir. 1996).
DTS acted as a "freight forwarder" in its dealings in this matter.2 Under the Carmack
Amendment, a freight forwarder is considered to be a "shipper" in its relations to a carrier and is
entitled to all rights of a shipper in its relations with that carrier. See, e.g., Tokio Marine & Fire
2 Se~e 49 U.S.C.A. § 13102(8). Essentially, a "freight forwarder" is an entity that consolidates less-than-carload
freight into carloads for shipment. This is precisely what DTS did here.
Ins. Group v. Nissin, 155 F.Supp.2d 889, 895 (N.D. Ill. 2001). In order to establish a prima facie
case under the Carmack Amendment, a shipper, here DTS, must prove the following elements
against a common carrier, here N.E.K.: (1) delivery of the goods to the carrier in good
condition; (2) arrival of the goods in a damaged condition at the final destination; and (3) the
amount of damage. See, e.g., Missouri Pac. R.R.v. Elmore & Stahl, 377 U.S. 134, 138, 84 S.Ct.
1142 (1964); Tokio Marine, 155 F.Supp.2d at 894.
Plaintiffs establish a prima facie case. First, it is undisputed that the product was at the
proper temperature when it was delivered to N.E.K., as the go,ods were kept in DTS' monitored
refrigeration units until they were picked up by N.E.K. Further, N.E.K. signed the bill of lading
when it picked up the goods, and nowhere indicated on the bill that the goods were outside of the
proper temperature range. Under the Carmack Amendment, a prima facie showing of delivery in
good condition is made when a carrier executes a bill of lading. See Kaiser Chemical &
Aluminum Corp. v. Illinois C. G. R. Co., 615 F.2d 470, 475 (8th Cir. 1980). Thus, the goods
were delivered to N.E.K. "in good condition." Second, it is undisputed that the goods were
rejected by Giant Foods because they were outside of the.. proper temperature range, thus
establishing element two (i.e., the goods arrived in "damaged condition"). Third, Plaintiffs'
damages are straightforward as they were forced to pay a bill for the cargo loss, in addition to
payments relating to delivery of the goods to and from DTS. Plaintiffs accordingly establish a
prima facie case under the Carmack Amendment.
Once a prima facie case has been established, to avoid liability, the carrier must meet the
high burden of demonstrating that it was not negligent and that the damage was caused by one of
the following limited events: (1) an act of God; (2) an act of the public enemy; (3) an act of the
shipper; (4) an act of the public authority; or (5) the inherent nature or vice of the goods. See,
e.g., Missouri Pac. R.R., 377 U.S. at 137-138; Tokio Marine. 155 F.Supp.2d at 894. Thus, the
Carmack Amendment creates an essentially "strict liability" standard of proof (absence these
very limited exceptions) against a carrier once a prima facie cs,se is established. See, e.g., Tokio
Marin~, 155 F.Supp.2d at 894. No evidence of any of the requisite rare exceptions is present
here and N.E.K. cannot meet its burden. As such, Plaintiffs are entitled to summary judgment as
to their claims against N.E.K.
B. N.E.IL Breached Its Contract with DTS.
Even if the Carmack Amendment did not apply, N.E.K. would still be liable. Under
Pennsylvania law, a claim for breach of contract exists where it can be shown that there was a
contract, a breach of duty imposed by that contract, and that damages resulted from that breach.
See, e.g., Koken v. Steinberg, 825 A.2d 723, 729 (Comm. Ct. 2003). The undisputed facts
demonstrate that Plaintiffs establish a claim for breach of contxact.
N.E.K. agreed to deliver the goods at issue for DTS, as it signed the bill of lading when it
picked up those goods and entered a freight forwarder agreement. It is undisputed that the goods
were at the proper temperature at the time N.E.K. picked the goods up from DTS. Further upon
attempted delivery of the goods, the goods were found to be outside of the proper temperature
range. The goods were therefore rejected by Giant Foods, causing the damages sought by
As such, N.E.K. breached its contract with DTS and is liable for the resultant
Plaintiffs.
damages.
C.
N.E.}C Negligently Failed to Deliver the Goods at the Proper Temperature.
Moreover, N.E.K. was also negligent. Under Pennsylvania common law, to prove a
claim of negligence, a plaintiff must establish: (1) that a duty was owed and (2) breached, and
(3) that the breach was the cause of the injury (4) resulting in damages to the plaintiff. See, e.g.,
Watkins v. Hospital of the University of Pennsylvania, 737 A.2d 263-265-66 (Pa. Super. 1999).
Here, N.E.K. had a duty to maintain the load at the proper temperature, which it breached. Such
breach caused the load to be rejected, leading to Plaintiffs' damages. As such, N.E.K. was
negligent and Plaintiffs are entitled to judgment as a matter of law.
III. Conclusion.
For the foregoing reasons, Plaintiffs respectfully request that this Court grant summary
judgment in their favor as to the claims set forth in Plaintiffs' Complaint.
8
Respectfully Submitted,
D1NSMO[~E & SHOHL, LLP
Fre~M~
PA. ~E
PA. I.[ .o1~.88'9.16 ~
James Wherley,
(OH I.r No.: 0073932,"Pr~
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281.-5000
OF COUNSEL:
Jeffrey P. Hinebaugh ( OH#: 0059888)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded via Regular U.S.
Mail this 1st day of July, 2004 to the following:
Guy Brooks
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs.
N.E.K. CARRIERS, LLC
Defendant
IN THE COURT OF cOMMON PLEAS OF
CUMBERLAND CouNTY, PENNSYLVANIA
)
)
)
)
)
)
)
) Case No. 03-6?.35
)
)
)
SET OF iNTERROGATORIES RE U_EST EOR PRODUCT~ION
~ RE UEST FOR ADMISSION DIRECTED TO DEFENDAN1
DEF.INITIONS AND iNS_TRUCTION~S
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs Great West Casualty
Co. ("Great West") and DTS Logistics, LLC (,,DTS")(collectively "Plaintiffs") propound the
following interrogatories, requests for production of documents, and requests for admission upon
Defendant N.E.K. Carriers, LLC (,,Defendant") to be answered within the time set forth in the
Pennsylvania Rules of Civil Procedure. Unless negated by the context of the request or
interrogatory, the following definitions are to be considered to be applicable to all discovery.
requests contained herein:
(A) "Documents" is an ali-inclusive term referring to any writing and/or recorded or
graphic matter, however produced or reproduced. The term documents includes, without
limitation, correspondence, memoranda, interoffice communications, minutes, reports, notes,
schedules, analyses, drawings, diagrams, tables, graphs, charts, maps, surveys, books of account,
ledgers, invoices, drafts, diaries, logs, proposals, printouts, recordings, telegrams, films, and all
other such documents tangible or retrievable of any kind. Documents also include any
prelimina~ notes and drafts of all the foregoing in whatever form, for example, printed, types,
longhand, shorthand, on paper, paper tape, tabulating cards, ribbon blueprints, magnetic tape,
microfilm, film, motion picture file, phonograph records, or other form.
(B) With respect to documents, the term identify means to give the date, title, author
and addresses; identify with respect to documents further means:
O)
to describe a document sufficiently well to ~,nabl
the interrogator to know what such document is and
to retrieve it from a file or wherever it may be
located;
(II)
(lli)
to describe it in a manner suitable for use as a
description in a subpoena;
to give the name, address, position or title of the
person(s) who has custody of the document and/or
copies thereof.
(C) "Identify" when used in reference to an individual means:
(I) to state his/her full name;
(II) present residence address or last known residence;
(lib present or last known business address;
(IV) present employer or last known employer;
2
(V) whether ever employed by any party to this action
and, if so, the dates he (she) was employed by such
party, the name of such party, and the last position
held as an employee of such party.
· ,, "' d requests, the
(D) Whenever the expresston and/or is use in these discovery
information called for should be set out in the conjunctive and disjunctive, and wherever the
information is set out in the disjunctive, it should be given separately for each and every element
sought.
(E) Whenever a date, amount, figure or other computation is requested, the exact date,
amount or other computation or figure is to be given unless it is not known; and then the
approximate date, amount, figure or other computation should be given or the best estimate
thereof; and the answer shall state that the date, amount, figure, or other computation is an
estimate or approximation·
(F) No answer is to be left blank. If the answer to an interrogatory or subparagraph of
an interrogatory is "none" or "unknown", such statement must be written in the answer. If the
question is inapplicable, "N/A" must be written in the answer. If an answer is omitted because of
the claim of privilege, the basis of the privilege is to be stated.
(G) These discovery requests are continuing, and any information secured subsequent
to the filing o f your answers which would have been includable in the answers had it been known
or available, are to be supplied by supplemental answers.
3
iNTERROGATORIES.
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs propound the following
interrogatories to Defendant:
INTERROGATORY NO. 1: Identify all individuals who answered or assisted in
answering these interrogatories. In doing so, please provide the ful]t name, address, telephone
number, date of birth, and social security number of all individuals answering these
interrogatories.
RESPONSE:
INTERROGATORY NO. 2: Identify all individuals who have first hand knowledge
of the facts alleged in Plaintiffs' Complaint and Defendant's Answer or defenses thereto. In so
ansv, ering, please provide the individual's full name, last known address, last known telephone
numbcr, and a bricf description of the facts of x~ hich the iudividual has first hand knowledge.
RESPONSE:
4
INTERROGATORY N_O. 3~: Identify all individuals Defendant will call to testify at
trial as a witness. In so answering, please provide their full name, las~L known address, last
known telephone number, and brief description of his or her anticipated testimony.
RESPONSE:
INTERROGATORY NO. 4~ Identify all documents, materials, or things which
Defendant will rely upon at trial as evidence, an exhibit, for demonstrative purposes, or for any
other purpose. Alternatively, you may produce documents responsive to this interrogatory.
RESPONSE:
iNTERROGATORY NO. 5~.' identify all individuals anticipated to be called at trial of
.... e last
this matter as an expert witness. In so answering, please provtde the md~wdual s full nam
known address, last known telephone number, a brief description of his or her qualifications, and
a brief summary of his or her anticipated testimony.
RESPONSE:
INTERROGATORY NO. 6:. Identify all factual information supplied to the experts
which were used for the bases of his/her expert opinion(s), including correspondence,
memoranda, reports, tests, plans, specifications, drawings, and/or documents of any kind, as well
as objects and photographs examined.
RESPONSE:
INTERROGATORY NO. 7_: Regarding the load/delivery at issue, please identify:
(a) the name and address of the driver who picked up the load from DTS and
(b)
attempted delivery to Giant Foods;
all persons at DTS with whom the driver had contact prior to picking up the load
(c)
at issue; and
all persons at Giant Foods with the whom the driver had contact in attempting to
deliver the load at issne.
RESPONSE:
INTERROGATORY NO. 8:. Please list and identify all steps the driver of the load at
issue took to verify the temperature of the load at issue, from the time such load was picked up at
DTS to when the driver attempted to deliver the load to Giant Foods. Specifically, please
identify each date the load's temperature was taken, the respective procedures utilized in
checking the temperature; the place (i_~e., front, back, middle) of the trailer where the temperature
was taken.
RESPONSE:
'7
· IS
INTERROGATORY NO. 9:. Please describe Defendant procedures it utilizes to
ensure and veri~'y that loads are kept within temperature requircmen~ts while being transported by
Defendant, and the employ, ce(s) of Defendant in charge of such.
RESPONSE:
INTERROGATORY NO 10~. Identify all communications between (a) Defendant and
(b) Great West; DTS; or Giant Foods concerning the facts at issue. For all such
communications, please specifically identify the date, substance, and parties to such
communications.
RESPONSE:
INTERROGATORY NO. 11: If it is Defendant's contention that it is not liable
· " I set forth all facts supporting
because it "kept the product at the right temperature, please ful y
that Defendant kept the product at issue at the right temperature.
RESPONSE:
INTERROGATORY NO. 12.: Please identify and describe any instance in the past five
years where claims were made against Defendant for not delivering goods within temperature
requirements. For all such instances, please identify the date of such delivery, the person making
the claim against Defendant, Defendant's position as to the claim, and the claim's resolution.
RESPONSE:
INTERROGATORY NO. 13: Please identify any instance in the past five years where
the malfunction of a refrigeration unit of Defendant led to a load not being delivered within the
temperature requirements of such load.
RESPONSE:
INTERROGATORY NO. 14: Please identify any problems or malfunctions, in the
past five years, of the refrigeration unit of the trailer that was utitlized to transport the load at
issue.
RESPONSE:
l0
INTERROGATORY NO. 15_: If Defendant asserts that the goods at issue were not
within proper temperature requirements when they were picked up fi'om DTS (i.e_~., were not in
good condition), please identify the all facts supporting such assertion.
RESPONSE:
INTERROGATORY NO. 16:. If Defendant asserts that the goods at issue were within
proper temperature requirements when they attempted to be delivered to Giant Foods (i.e__:., were
in good condition), please identify the all facts supporting such assertion.
RESPONSE:
INTERROGATORY NO. 17:, Notwithstanding any o f the foregoing responses, please
identify any and all facts relevant to the claims or defenses of the present lawsuit.
RESPONSE:
3.3.
REQUEST FOR PRODUCTION OF DOCUMENTS_
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs propound the following
requests for production of documents to Defendant:
REQUEST FOR PRODUCTION NO. 1: Please produce all documents relied upon in
responding to Plaintiffs' First Set of Interrogatories-
REQUEST FOR PRODUCTION NO. 2.: Produce all documents, materials, or things
which Defendant will rely upon at trial as evidence, an exhibit, for demonstrative purposes, or for
any other purpose.
REQUEST FOR PRODUCTION NO. 3_: Please produce all reports generated by any
expert witness that Defendant intends to call at trial.
REQUEST FOR PRODUCTION NO.4_: Please produce all documents supplied to the
experts (that Defendant intends to call at trial) which were used tbr the bases of his/her expert
opinion(s), including correspondence, memoranda, reports, tests., plans, specifications, drawings,
and/or documents of any kind, as well as objects and photographs examined.
REQUEST FOR PRODUCTION NO. 5: Please produce a resume and/or C.V. of any
expert witness that Defendant intends to call at trial.
REQUEST FOR PRODUCTION NO. 6: Please produce all records, including but not
limited to P.O.D.'s and bills of lading, relating to the load that is the subject of this lawsuit.
REQUESI FOR PRODUCTION NO. 7: Please produce the employee file of the
driver that picked up and attempted delivery of the goods that are the subject of this lawsuit.
12
REQUEST FOR PRODUCTION NO. 8: Please produce all documents describing,
depicting, or relating to the procedures Defendant procedures utilizes to ensure and verify that
loads are kept within temperature requirements while being transported by Defendant.
REQUEST FOR PRODUCTION NO. 9: If it is Defendant's contention that it is not
liable because it kept the product at the right temperature, please produce all documents
supporting that Defendant kept the product at the right temperature.
REQUEST FOR PRODUCTION NO. 10: Please produce all documents which
contradict or deny that Defendant kept the product at issue at the correct temperature.
REQUEST FOR PRODUCTION NO. 11: Please produce all documents which
contain any representation, warning, or instruction by and between DTS and Defendant
concerning the deliveries at issue.
REQUEST FOR PRODUCTION NO. 12: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and Great West.
REQUEST FOR PRODUCTION NO. 13: Please produce all correspondence relating
to tile subject matter of this lawsuit by and between Defendant and DTS.
REQUEST FOR PRODUCTION NO. 14: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and Giant Foods.
REQUEST FOR PRODUCTION NO. I$: Please produce the user manual, instimction
manual, or similar documents relating to the refrigeration unit of 'the trailer which transported the
load at issue.
REQUEST FOR PRODUCTION NO. 16: If Defendant asserts that the goods at issue
were not within proper temperature requirements when they were picked up from DTS (i.e.., were
not in good condition), please produce all documents supporting such assertion.
13
REQUEST FOR PRODUCTION NO. 17.: If Defendant asserts that the goods at issue
were within proper temperature requirements when they attempted to be delivered to Giant Foods
(i_~e., were in good condition), please identify the all facts supporting such assertion.
REQUEST FOR PRODUCTION NO. 18: Please produce all correspondence relating
to the subject matter of this lawsuit by and between Defendant and any Other person not included
above.
REQUEST FOR PRODUCTION NO. 1~: Please produce all documents which in any
way support Defendant's denial of liability in this matter.
REQUEST FOR PRoDucTION NO. 20: Please produce documents relating to any
investigation of the deliveries that are the subject of this lawsuit.
REQUEST FOR PRODUCTION NO. 21.: Please produce any photographs, film,
diagrams, or drawings relating to the deliveries that are the subject of this lawsuit.
REQUEST FOR PRODUCTION NO. 22: Not including any document produced in
response to the above requests, please produce any document that is relevant to the claims and
defenses of this lawsuit.
14
REQUEST FOR PRODUCTION OF DOCUMENTS.
Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiffs propound the following
requests for admission to Defendant:
REQUEST FOR ADMISSION NO. 1.: Please admit that the bills of lading attached
as Exhibit A to Plaintiffs' Complaint are true and accurate copies of the bills of lading provided
to Defendant by DTS concerning the load at issue.
RESPONSE:
REQUEST FOR ADMISSION NO. 2,: Please admit that, when the load at issue was
picked up from DTS, Defendant (or its agents) did not indicate on the bills of lading (referenced
in request for admission no. 1 above) that the product at issue was outside of the temperature
ranges indicated on the bills of lading.
RESPONSE:
REQUEST FOR ADMISSION NO. 3: Please admit that Defendant (,,'ia its driver)
signed the bills of lading (referenced in request for admission no. I above).
RESPONSE:
REQUEST FOR ADMISSION NO. 4: Please admit that the driver of Defendant's
truck, after picking up the load at issue from DTS and before attempting delivery of the load,
spent tow days at his home due to car accident which his mother was involved.
RESPONSE:
REQUEST FOR ADMISSION NO. 5.: Please admit that upon arriving at Giant
Foods in Carlisle, PA, the load (at issue) was pulped and its temperature was found to be above
the range indicated on the bills of lading (referenced in request for admission no. I above).
RESPONSE:
Respectfully Subm'tted,
DINSMORE & SHOHL, LLP,
Frederick M. Emy
PA I.D. No. 5;2007
Scott D. Goklman
PA I.D. No. 88916
Suite 2415 Grant Building
Pittsburgh, Pennsylvania 15219
(412) 281-5000 (telephone)
Counsel for Plaintiffs
OF COUNSEL:
Jeffrey P. Hinebaugh (OH#: 0059888)
James M. Wherley, Jr. (OH#:0073932)
DINSMORE & SHOHL, LLP,
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
16
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing PLAINTIFFS' FIRST
SET OF INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS,
AND REQUEST FOR ADMISSION DIRECTED TO DEFENDANT was served via
ordinary U.S. Mail this ~2 Jday of March, 2004 to the following:
John A. Statler
Guy Brooks
320 Market Street
Strawben'y Square
P.O. Box 1268
Harrisburg, Pennsylvania 17108-1268
Counsel for Defendant
Scott D. Goldman
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
CIVIL DIVISION
Case No. 013-6235
AFFIDAVIT OF JAMES M. WHERLEY J~
County of Hamilton )
) SS~
State of Ohio )
NOW COMES the Affiant, James M. Wherley, Jr., being duly sworn and cautioned, and
for his Affidavit states as follows:
l. My name is James M. Wherley, Jr., and I am co-.counsel for Plaintiffs in the
above-captioned matter.
On March 22, 2004, Plaintiffs served (via mail) their First Set of Interrogatories,
Request for Production of Documents, and Requests for Admi:~sion directed to Defendant ("the
Requests"). True and accurate copies of the Requests are attached to the instant motion at Tab
3. On or around May 13, 2004, I wrote Defendant's counsel, Guy Brooks, to check on the
status of the outstanding discovery, in addition to attempting 'to discuss settlement possibilities. I
sent the letter via fax and regular mail (a copy of which is attached hereto as "Exhibit 1").
4. Mr. Brooks, telephoned me that day and acknowledged that Plaintiffs were entitled to
such discovery and stated that there had been some complications at Defendant s counsel s firm
relating to the case. Mr. Brooks further stated that he would contact me by the following
Monday, May the 17th.
5. I was not contacted by Monday, May 17th by Mr. Brooks. The next day, I telephoned
Mr. Brooks and left a message seeking information relating to the outstanding discovery
requests. I have not received a response to that message.
6. As of the present date, 1 have not received answers or documents responsive to the
Requests.
FURTHER AFFIANT SAYETH NAUGHT. ·
JalT~M. Wh~t[l~y, Jr/-
Sworn to and subscribed before me, a Notary Public, this ~ '~ y of May, 2004.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, ],ENNSYLVAI'~IA
GREAT ~ C~UAL~, CO. ) C~
)
DTS LOGIS~CS, LLC )
P~tiffs, ) CzseNo. Q3-6235
)
)
v. )
~.E.~ C~ERS, LLC )
Def~an~ )
_AFFIDAVIT OF THOMAS STEWAR~C
)
)
NOW COMES the Affiant, Thom~ Stew~r~, be{ng duly sworn ~d cautioned, ~d for his
~ld~vi~ ~ate~ ~ fo~ows:
1. My n~e is Thom~ S~ewa~, ~d ~ am Re~on~ Counse~ for ~eat
C~aalty, Co. ("~eat We~").
2. I have personal ~owlcdge of the f~ts set fo~h
3. ~cat West ~ auto,zed to sel~ i~ur~ce and al all dines rcl~am ~o ~s ~it had
in full force ~d effect a policy of ~nsurance which provided coverage ~ DTS ~stic~. LLC
COTS").
Great West w~ no,Bed ~a~ the load of chilled food p~oducts (that ~e ~e subject
of ~is ~uit) were r~ec~d by ~ant Foods because ~t temp~amre of~e product w~ outside of
JUL1L 20¢4 5:2~M NO. 5gt~ P. ;5
the proper temperaturc range (as ~et forth, on the bills ofladlng) upon attempted delivery by
N.E.IC. Carriers, LLC. (N.E.IC).
5. Pursuant to its policy with DTS. Great West was pres,cared with a bill of t:argo
and loss and was required to, and did, pay to Trans-Ocea~ Products, Inc. (the shipper of!he
goods) the sum of $27,794 on behalf of DTS. /
NolaryPublic ~ ! I/ '
14
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO. CiVIL DIVISION
and
DTS LOGISTICS, LLC
Plaintiffs, Case No. 03-6235
N.E.K. CARRIERS, LLC
Defendant
)
) SS;
)
AFFIDAVIT OF SCOTT WEISS
NOW COMES the Affiant, Scott Weiss, being duly sworn and cautioned, and for his
Affidavit states as follows:
My name is Scott Weiss, and I am the Managing', Partner for DTS Logistics, LLC
("DTS").
2.
3.
I have personal knowledge of the facts set forth herein.
DTS is a limited liability company located in Billings, Montana. DTS is a
domestic freight forwarder licensed by the Federal Motor Safety Carrier Administration.
4. In its business, DTS is supplied goods from its customers (often various shippers),
and DTS maintains that product (when necessary), until it is shipped from DTS' dock, in
refrigeration units which assure that goods are maintained at the proper temperature range.
10
5. The food products at issue concern chilled food products (chilled crab meat).
Prior to N.E.K. picking up the goods, the goods were maintained in DTS' refrigeration units
within the proper temperature range of 29 to 38 degrees. The units were monitored
continuously by DTS' personnel. DTS' has no record of any malfunction of such units relating to
the goods at issue.
6. In June of 2003, DTS contracted with a shipper, Trans-Ocean Products, Inc., to
arrange the delivery of the goods at issue. Under such agreement DTS was to receive
compensation for delivery and assume responsibility for the goods. On or about June 30, 2003,
DTS entered into an agreement with N.E.K. for N.E.K. to transport the load of chilled food
products from DTS's dock in Billings, Montana to Giant Foods. in Carlisle, PA on July 7, 2003
and Giant Foods, Landover, MD on July 8, 2003. A true and accurate copy of such freight
forwarder agreement is attached hereto behind as Exhibit 1. On July 1, 2003, N.E.K. picked up
the food products in Billings, Montana for shipment. The chilled crab meat was consolidated
with other products, including salad dressing from a different shipper, on the N.E.K. vehicle.
DTS' records indicate that N.E.K. signed the bills of lading attesting that the product was in good
shipping order. It is DTS' business practice to require carriers to sign bills of lading when
picking up product.
7. The parties later altered the agreement and decided the products were to be
delivered to Giant Foods in Carlisle, PA on July 8, 2003 and to Giant Foods in Landover the next
day.
8. DTS paid to N.E.K. $1,553.25 in freight charges for such shipping and also paid
$763.80 in freight charges for the product to be delivered to DTS.
11
JUN, 15,2004 9:44AM
LOGISTICS LLC
'9. DTS was in£°rmed that Giant l~°°ds rejected the chilled £°°d pr°ducts because
Gi~ut Foods "pulped" the foods and found them to be outside of rite proper temperature range.
10. As a result of the rejected load, DTS'was present~!i with a bill for the cargo loss
claim which resulted in a total loss to DTS in the amount of $30,',!94.00. Pursuant to thc policy
between Great West Casualty, Co. ("Great We~t") and DTS, Great West paid on behalf of DTS
the sum of $27,794.00. Under its deductible, DTS p~id the remafnLug $2,500.00.
· 11. The bills of lading attached hereto as Exhibit 2 ~te truc and accurate copies o£the
dooume.nts which DTS' rnaintair/s in the ordinary course of its business.
FIYKTHEK AFFIANT SAYBTH NAUGHT.
Scott Weiss
Sworn to and subscribed bafore me, a Notary Public, this /.~'¢79day of ;~une, 2004.
.......... Not. Public
g CHA~L E. O'DO~ ....
~d~ ~ Jo~, Mont~a
12
bill of iad~g Iff ~--e.o~ v, ah ~ U.S.~- ale~ seq., :N~JER, when ~_~. I~g ~ mi ~t,..s~a~J ~n~?
P~e2
~UN. 11,2004 7:42AM 5'~ '~u ......
IN W~ WH~RL~3F.
Pal~ 4
TH ,S SHIP'pING ORDER must be 1~gibl~flll~i ' ',~ r~, id Inde~Ible pencil, ~ In C~rbe~, and mtat~ed by the
~ , ' '-i Unlform Bill of Lading
---' -Bdiiin ham, Cold stOrage ,- ,. '
Ship Date: .. ~ ~ , ~' Cust Ord. No.
· O~/.~./0o -' P.0: No.:
Shi'p TO: ; '
0 I.¢~IT ·FOOD
OF' c~L ISLE
t~21. UdDUSTR[~ DRIVE
CARLISLE PA .t'7OlJ,
Ship Via: D[VERS[F XED
Routing:
Veh. No.; 107-20
Seal No(s):
Tr~ck Numbsr: K&D
Order No.: 05~48
P~ge
~0. O0 ~
~. O0
24,0 · O0
60. O0
~l. O0
.. 10628'
1C
LOBS'FE~'~LASSI~
· 8/2~5~ CH'IL~ED CRAB
CLASSIC
· 12/12oz CH!L, LED CRAB
:C~AS.SIC
12/1~ CHILLED CRAB
5~0 650
tSO 1~8
2160 2400
720 780
5&O 420
1B20 2002
PACKAGES TOTAL WEIGHT
SHIPPING ATTN: Chill:~d Product !
INSTRUCTIONS: not f r'~,~ ~ g.~ ~;p
Shipper:
BELLINGHAM cOLD STO RA~'
~ - '~' Uniform Bill of Lading
Bellingham Cold Storage
Ship Date; O&f25/OL~ Cust. Ord. No.
P.O. Ne.: 20~7t~
Ship To: ~[~NT FOOD
OF L, ANOOVER ~D
LAI'.tD~]VER MD ~0785
Ship Via: D I VEtS I ~ l ED
Routin~:
Veh. No.: 107-20 . ,T~uck Numbs.:
~al No(s):
Order No.:
page
700.00
~Oc~,O0 50054
2~.00 10635
:127i2o~:CH~LLED C~AB
:CLASSIC
OHIL.LE CRAB
127'12oz' ~ ' 'D
CLASSIC LEGS
~500 7000
400 440:
PACKAGES TOTAL
WEIGHT
SHIPPING ~.~i'Tr4~ E. hilled prod~[c'L! ! Mu~. b~,~, COrjLEF4~
INSTRUCTIONS: no+. .fro;ten. Km. ep ,~t2 ~'~.-~" dr~gl-~-!e~,, F
Shipper:
L
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO. ) CIVIL DIVISION
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, ) Case No. 03-6235
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
ORDER
Upon review of the Motion for Summary Judgment of Plaintiffs Great West Casualty,
Company and DTS Logistics, LLC ("Plaintiffs"), this Court hereby GRANTS such motion and
orders judgment for Plaintiffs in the amount of $32,611.05. Such judgment is awarded to
Plaintiff Great West Casualty Co. in the amount of $27,794.00 and to DTS Logistics, LLC, in the
amount of $4,817.05.
JUDGE, Cumberland County Court of Common Pleas
DATE:
1024071
15
Benjamin D. Andreozzi, Esquire
Goldbetg Katzman, P.C.
PO Box 1268
Harrisburg, PA 17108-1268
717-234-4161
Attorneys for Defendant
N.E. IC CARRIERS, IJ.C,
Defendant
GRRAT WEST CASUALTY CO. and: IN THE COURT OF COMMON PLEAS
DTS LOGISTICS, LLC, :CUMBERLAND CO.,PENNSYLVANIA
Plaintiffs :
: CIVIL ACTION ~ LAW
:
: NO. 03-6235
:
: JURY TRIAL DEMANDED
RESPONSE OF DEFENDANT TO PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT
Plaintiff has brought this cause of action before this Honorable Court, alleging
that Defendant N.E.K. Carders, IJ.C (hereinafter "N.E. IC") transported certain food
products at a temperature which was outside of guidelines provided in a bill of lading,
and that such improper transportation led to the rejection of these food products.
N.E.K. strongly contests these allegations and bdieves that PlainfiffDTS failed to keep
the food products at a proper temperature while in the possession of DTS and that this
was the cause of the rejection.
Plaintiff's Motion for SummatyJudgment relies upon a request for admission, and
an assumption Plaintiff has created therefrom. This request states: "Please admit that,
when the load at issue was picked up from DTS, Defendant (or its agents) did not
indicate on the bills of lading that the product at issue was outside of the temperature
ranges included on the bills of lading." (pl's Mot. Surnna. J. Tab A, p. 15) Plaintiff has
improperly transformed this admission into a conclusion that N.E.K. concedes that DTS
delivered the food products to them at an acceptable temperature. Plaintiff's Motion for
Summary Judgment is dependent upon this improper assumption.
Defendant N.E.IC adopts Plaintiff's factual background in part, including the
followinff
On or about June 30, 2003, DTS entered into a freight forwarder agreement with
N.E.K. for N.E.K. to transport the load of chilled food products from DTS's dock in
Billings, Montanta to Giant Foods in Carlisle, Pennsylw~ia on July 7, 2003 and Giant
Foods, Landover, Maryland on July 8, 2003. (Pl.'s Mot. Suture. J. Tab D, par. 6) The
parties later altered the agreement and decided the producers were to be delivered to Giant
Foods in Carlisle, Pennsylvania on July 8, 2003 and to Giant foods in Landover the next
day. (Pl's Mot. Suture. J. Tab D, par. 7) The chilled crab meat was consolidated with
other products, including salad dressing from a different shipper, on the N.E.K. vehicle.
(Pl's Mot. Summ. J. Tab D, par. 6)
Upon reaching Giant Foods in Carlisle, Giant Foods tested the temperature of the
chilled food products. Giant Foods refused delivery off,he chilled food products. 0al's
Mot. Sumrn~ J. Tab D, par. 9).
N.E.K disagrees with Plaintiff on other factual issues.
N.E.K believes that the reason for Giant Foods ultimate refusal of delivery was
Plaintiff DTS's improper storage of the products prior to its delivery to N.E. IC This
conclusion is supported by several facts. N.E.K.'s driver was originally informed that the
goods were in cold storage. Oddly, at the time he arrived to pick up the goods from
DTS, he was informed he should pick up the goods frorn a trailer. Thus, it appears that
DTS transported the goods from the cold storage to a trailer. Furthermore, the reefer,
or device used to cool the DTS trailer, was not running when the N.E.K. driver picked
up the goods.
N.E.IC believes that it prudently handled the goods at all times. The N.E. IC
trailer was precooled at 10 degrees prior to the pick up, :md adjusted to 36 degrees after
paperwork from DTS was received. The N.E.K. trailer,vas used in the proceeding days
and was found to function accurately and properly.
Finally, N.E.K. contends that Plaintiff failed to mitigate damages. After certain
products in the back of the trailer were tested and pre. sumably found at higher than
acceptable temperatures, other products in the trailer were tested and were found to be
ofacceptable temperature. However, Plaintifffailedto mitigate damages and deemed the
entire cargo a total loss.
III. Law and Ar_~ument
A. Summary Judgment Standard
Defendant adopts the standard as set forth by Plaintiff, but strongly contests that
undisputed material facts demonstrate that N.E.I~L breached its legal and contractual
duties to deliver chilled food products at the proper temperature ranges.
It is important for this Honorable Court to note that discovery answers have not
yet been exchanged. N.E.I<L is in the process of answering outstanding discovery
requests and drafting Interrogatories and Document Requests to be propounded upon
Plaintiff. Accordingly, Plaintiffs Motion is premature, and in responding to this Motion,
N.E.IC can only disclose to the court what it seeks to prove after discovery and proper
investigation have taken place.
B. N.E.IC is not liable under the Cai,,,ack/~mendment.
Plaintiff's Motion suggests that "[qn order to establish a prima facie case under the
Caxii-~ack Amendment, a shipper, here DTS must prove the following elements against
a common carrier, here N.E. tC (1) delivery of the goods to the carrier in good condition;
(2) arrival of the goods in a damaged condition at the'. final destination; and (3) the
amount of damage. (Pl's Mot. Summ. J. p. 6)
1. DTS Failed to deliver the goods to N.E.K. in ~eood condition.
In attempting to establish the fact that the goods were delivered to N.E.IC from
DTS in good condition, Plaintiff argues that "it is undisputed that the product was at the
proper temperature when it was delivered to N.E.K .... " Plaintiff's leap of faith
presumably stems from an admission by N.E.IC that its driver failed to note on a bill of
lading that the temperature at delivery was outside of gnidelines provided on the bill of
lading. Plaintiff's argument must be that because N.E.[C's driver signed a bill of lading
without noting temperature of the products, DTS conclusively delivered the goods in
good condition.
In support of its position Plaintiff cites Kaiser Chemical & Aluminum Corp. v.
Illinois C. G. R. Co., 615 F.2d 470, 475 (8~ Cir. 1980) for the proposition that "[u]nder
the Camaack Amendment, a prima facie showing of del~ivery in good condition is made
when a carrier executes a bill of lading." (Pl's Mot. Summ. J p. 6, par. 2) However,
Plaintiff's reading of this interpretation of Kaiser is nxisguided. In Kaiser, the bill of
lading actually represented that the goods were received[ in "apparent good order." Id.
at 475. In the case at bar, no such representation was present on the bill of lading.
Furthermore, such a representation would be useless as the apparent condition of the
goods was not of concern, rather it was the temperature of the goods, which was not
accertainable to N.E.K.'s driver, that was at issue.
N,E.K. strongly contends that the goods were not delivered in "good condition".
N.E.IC's driver was originally informed that he would be picking up the products from
cold storage. Oddly, at the time N.E.K's driver arrived,, the products were stored in a
trailer. Most importantly, when N.EIC arrived to pick up the products, Plaintiff's
trailers' reefer, or cooling device, was not running. Accordingly, a jury could certainly
conclude that the goods reached an improper temperature at or before this time. Thus,
a genuine issue of material fact is raised.
Plaintiff DTS argues that it monitored the refirigerafion units. It is certainly
possible that Plaintiff DTS's "monitoring" was improper or flawed. Furthermore, the
allegation does not consider the possibility of malfunction or human error. DTS's
assertion that it maintained the units certainly is not sufficient to justify this Honorable
Court entering summary judgment against N.E.K.
2. The _t, oods did not arrive in a dama~d condition at the final destination.
Plaintiff makes an improper assumption in attempting to satisfy the second
dement. Plaintiff argues, "it is undisputed that the goods were rejected by Giant Foods
because theywere outside of the proper temperature range .... "This argument assumes
not only that Giant tested the goods, but also that the test was done properly and free
of malfunction or human error.
If, in fact, the tests were accurate, N.E.IC contends that the reason for the
rejection was Plaintiff's negligence in allowing the temperature of the goods to increase.
Therefore, N.E.K. should not be found liable.
3. Plaintiff failed to mifi~te damages.
With respect to the third element, damages, Plainiff suggests that a calculation in
this case is "straightforward." While N.E.K certainly does not concede liability, it
strongly contends that Plaintiff failed to mitigate damages. While some of the product
was measured at excessive temperature, other products were delivered at an acceptable
temperature and certainly could have been salvaged. However, Plaintiff failed to do so
and the shipment was declared a total loss.
4. Even if plaintiff has made out a prima faci¢ case under the Carmack
Amendment. summary, judgment is not appropriate because an exception
to liability, is present.
Plaintiff concedes that DTS was considered a "shipper" under the Carmack
Amendment. Pl's Mot: Suture. J. p5, par. 3) Plaintiff fut~er concedes that an exception
to liability under the Carmack Amendment exists when a carrier establishes that it was
not negligent and that the damage was caused by an act of the shipper. As indicated
above, N.E.K. believes that it cooled the goods pursuant to the bill of lading. Further,
it believes that the damage was caused bythe act of a shipper, in this case DTS.
Certainly, it has raised a genuine issue of material fact, and summary judgement would
not be appropriate.
C. N.E.K. did not breach its contract with DTS.
N.E.K. concedes that it agreed to deliver goods at issue for DTS, that it signed the
bill of lading~ and that it picked up those goods pt, rsuant to a freight forwarder
agreement. However, Plaintiff improperly condudes that "[qt is undisputed that the
goods were at the proper temperature at the time N.E.K. picked the goods up from
DTS." In fact, N.E.IC beleives that DTS did not deliver the goods in good condition.
See argument infra. Once again, a genuine issue of m:,terial fact exists and summary
judgment would not be appropriate.
D. N.B.IC was not negligent
N.E.IC concedes that Plaintiff has accurately cited the elements of negligence.
However, Plainfiffmakes improper assumptions. Plainfiffassumes that N.E.K. concedes
that the goods were delivered in good condition. N.E.K. incorporates the same
arguments as made above, and strongly contends that it was the negligent acts of
Plaintiff, as stated above, which led to the rejection of the goods.
By:
GOLDBERG KATZMAN, P.C.
Benjami~7 D//. Andr~0~zzi, Esquire
Attome~ ID #8~1
PO Box 12_fi8/
Harrisburg, PA 17108-1268
717-234-.4161
Attorneys for Defendant
Date: July 21, 2004
112080.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing
document upon all parties or counsel of record by depositing a copy of same in the
United States Mas] at Harrisburg, Pennsylvania, with first-class postage prepaid, addressed
to the followinff.
Frederick M. Emey, Esquire
James M. Whedey, Jr., Esquire
Dinsmore & Shohl, LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
Date: July 21, 2004
GOLDBERG KATZMAN, P.C.
By:
Benj Ti, l squire
7172~06573
PROTHONOTARY C LONG
TO THE PROTHONOTARY OF CUMBERLAND couNTY:
e l~t tt~ ~4_tl~n m~tter for the next az~t court.
CAPTION OF CASE
Great West Casualty Co.
BTS LogistiCS, LLC
( plaintiff )
N.E.K. CarrierS, tLC
NO03-6235 - Ciwi%Oi~vision .f~0~03 __
~ ~ ~t, etc.):
Plaintiffs' mo%iOn for summary judgment
iclenti_eyco~elUb~wi]largueCaSe:
James M. ~herley, Jr.
(OH I.D. No. 0073932,
1900 Chemed Center
255 East Fifth !Street
Cincinnati, OH 45202-4797
(513) 977-8200
Pro Hac Vice admitted
to PA)
I ~ ~otif~ aJ_t t~es in ~t~n9 ~tb/n two ~ays ttmt tb~ case bas
been ]_i~te~ ~o~ az~mnent.
At~j~nt Cou~c Date: September
22, 2004
CERT~IIFI~CCA. TE OF SERVICE~
it is hereby certified that a copy of the foregoing has been l~orwarded via Regular U.S.
Mail this I /~" day of August, 2004 to the following:
Guy Brooks
Benjamin D. Andreozzi
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.IC CARRIERS, LLC
Defendant
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' MOTION TO MAKE
RULING ABSOLUTE.
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. bio.: 52007
Scott Goldman, Esquire
PA. I.D. Bio.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. I'4o.: 0073932, Pro Hac Vice
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281.-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' MOTION TO MAKE RULING ABSOLUTE.
On May 24, 2004, Plaintiffs Great West Casualty Company ("Great West") and DTS
Logistics, LLC ("DTS") (together, "Plaintiffs") served and flied a motion to compel, requesting
that this Court issue an order compelling Defendant N.E.K. Carriers, LLC ("N.E.K.") to respond
to Plaintiffs' outstanding discovery. On June 4, 2004, this Court issued an order on Defendant to
show cause why the relief requested in the motion ought not be granted. As of the present date,
Defendant has neither provided such discovery nor shown such cause.
Plaintiffs now respectfully request that this Court make such rule absolute.
OF COUNSEL:
Jeffrey P. Hinebaugh ( OH#: 0059888)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
Respectfully Submitted,
DINS1 )IRE & SHOHL, LLP
Fred/e, :k M. E rn'~i~e /
PA. 1.1 No.: 52007,//' J /
Scott~ ~ldman, E~ire //
PA. I~,. N,,).: 889~ ~/
James M. ~her~y~squire
(OH I.D. No.: 00~, Pm ~c Vice
AdmiUed to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded via Regular U.S.
Mail this. I IUq day of August, 2004 to the following:
Guy Brooks
Benjamin D. Andreozzi
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
CounselforDefendant
1024071 v2
Counsel ,L ///~~
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
) CiVIL DIVISION
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 03-6235
PLAINTIFFS' PRAECIPE TO
WITHDRAW CASE FROM
ARGUMENT LISTING..
FILED ON BEHALF OF:
Great West Casualty Co. and DTS
Logistic, s, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederiick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman, Esquire
PA. ID. No.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA -- CIVIL ACTION
GREAT WEST CASUALTY, CO. CIVIL DIVISION
and
DTS LOGISTICS, LLC
Plaintiffs,
v. Case No. 03-6235
N.E.K. CARRIERS, LLC
Defendant
PLAINTIFFS' PRAECIPE TO WITHDRAW CASE FROM ARGUMENT LISTING.
Plaintiffs hereby file the instant praecipe to have this matter withdrawn from the
argument listing. This matter is currently scheduled for argument on September 22, 2004
regarding Plaintiffs' motion for summary judgment.
2
OF COUNSEL:
Jeffrey p. Hinebaugh ( OH#: 0059888)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
Respectfully Submitted,
DINSMORE & SHOHL,~I~
Fre~ ick M.~ ~ --
PA. I No.:: 520~"~ '-
Scott ,laman,E lui~reX,,,x N
P^. No.: 88911\ '
Jam ~. Wherle Jr., ~s~ [re/
(OH I.D. No 0073{~?tac Vice
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 G~ant Building
Pittsburgh, p^ 15219
(412) 281-50¢0
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded via Regular U.S.
Mail this 3rd day of September, 2004 to the following:
Guy Brooks
Benjamin D. Andreozzi
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
1024071v2
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
GREAT WEST CASUALTY, CO.
and
DTS LOGISTICS, LLC
Plaintiffs,
V.
N.E.K. CARRIERS, LLC
Defendant
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' PRAECIPE TO
SETTLE, DISCONTINUE, AND END.
FILED ON' BEHALF OF:
Great West Casualty Co. and DTS
Logistics, Plaintiffs
Counsel of Record for this Party:
DINSMORE & SHOHL, LLP
Frederick M. Erny, Esquire
PA. I.D. No.: 52007
Scott Goldman, Esquire
PA. I.D. No.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
Admitted to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PA-- CIVIL ACTION
GREAT WEST CASUALTY, CO. )
)
and )
)
DTS LOGISTICS, LLC )
)
Plaintiffs, )
)
v. )
)
N.E.K. CARRIERS, LLC )
)
Defendant )
CIVIL DIVISION
Case No. 03-6235
PLAINTIFFS' pRAEcIPE TO SETTLE~ DISCONTINUE, AND END
Plaintiffs Great West Casualty Co., Inc. and DTS Logistics, LLC agree and direct that the
actions in the above-captioned matter which have been instituted on Plaintiffs' behalf in the
Court of Common Pleas of Cumberland County shall be marked "settled, discontinued, and
ended" and/or dismissed.
OF COUNSEL:
Jeffrey P. Hinebaugh ( OH#: 0059888)
DINSMORE & SHOHL LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4797
(513) 977-8200
Respectfully Submitted,
DINSMORE & SHOHL, LLP
Ir~qeriek M. Erny, 1~
P~/I.D. No.: 52007 ~
S~o~ Goldman, Esquire
PA. I.D. No.: 88916
James M. Wherley, Jr., Esquire
(OH I.D. No.: 0073932, Pro Hac Vice
A~i~ed to PA)
DINSMORE & SHOHL, LLP
Suite 2415 Grant Building
Pittsburgh, PA 15219
(412) 281-5000
CERTIFICATE OF SERVICE
It is hereby certified that a copy of the foregoing has been forwarded via Regular U.S.
Mail this 29th day of October, 2004 to the following:
Guy Brooks
Benjamin D. Andreozzi
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
1024071v3