In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3015

Shelley Opp, an individual,

Plaintiff-Appellant,

v.

Wheaton Van Lines, Incorporated,
d/b/a Wheaton World Wide Moving,
an Indiana corporation, and Soraghan
Moving & Storage, Incorporated,
an Illinois corporation,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 7781--Arlander Keys, Magistrate Judge.


Argued May 9, 2000--Decided November 3, 2000



  Before Manion, Kanne, and Rovner, Circuit Judges.

  Manion, Circuit Judge. Shelley Opp sued two
carriers, Wheaton Van Lines and Soraghan Moving
and Storage, alleging fraud and seeking to
recover the full value of her property that was
damaged during shipment. The carriers moved for
summary judgment, arguing that there was no
evidence of fraud, and that their liability for
damaging Ms. Opp’s property was limited as set
forth in the bill of lading that was signed by
her ex-husband, Mr. Opp. The district court
granted the defendants’ motions, finding no
evidence of fraud, and concluding that Mr. Opp
had the authority to bind Ms. Opp to the terms of
the bill of lading. Ms. Opp appeals. We affirm
the grant of summary judgment on the fraud claim,
but reverse and remand on the property damage
claim.

I.

  Shelley Opp lived in California with her
husband, Richard Opp, until they sought a divorce
in August 1996, and Ms. Opp moved to Illinois. In
June 1997, Ms. Opp contacted Soraghan Moving and
Storage (an agent of Wheaton Van Lines) to move
her personal property from California to
Illinois. She provided Soraghan with a list of
her items, and Linda Kloempken (a Soraghan
employee) phoned Ms. Opp to give her an estimate
of the moving charges. Ms. Opp then notified
Kloempken that she wanted to insure her property
for its full value of $10,000.00. And Soraghan
movers conducted a "walk-through" of the
California residence at which Mr. Opp presided at
Ms. Opp’s request.

  Kloempken then faxed to Ms. Opp an
"Estimate/Order for Service" form which included
the following: "NOTICE: ACTUAL DECLARED
VALUE MUST BE DETERMINED
BY SHIPPER PRIOR TO LOADING
AND SO INDICATED IN THE BILL OF LADING."
The estimate form also contained the following
printed and handwritten information: "SHIPPER INTENDS
TO DECLARE A VALUATION OF: /s (shipper to advise $10,000
Full Replacement 85, 65, 45)." Ms. Opp signed the
form. According to Kloempken, she explained to
Ms. Opp that the phrase "shipper to advise" meant
that Ms. Opp or her representative must advise
the mover at the time the shipment was picked up
whether Ms. Opp would like full replacement
coverage of $10,000.00. According to Ms. Opp, she
was never informed that the person releasing her
property in California would have to sign
anything, declare any value for her property, or
do anything other than give the movers access to
her belongings. The estimate form also provided a
location where Ms. Opp could designate someone as
her "true and lawful representative," but she
made no such designation.

  On the day of the move, the movers in California
called Ms. Opp in Illinois to notify her that
their arrival at the California home would be
delayed by a half-hour due to a flat tire. Ms.
Opp then phoned Mr. Opp at his office and asked
him to go to the house, open the door, and "let
the movers in." Ms. Opp also told Kloempken that
"someone" would be at the California home to give
the movers access to her property. While the
movers were loading Ms. Opp’s property from the
California home, Mr. Opp signed the bill of
lading on a line that indicated that he was Ms.
Opp’s authorized agent, and he allegedly agreed
to limit the carriers’ liability for her property
at $.60 per pound./1 Mr. Opp also signed an
inventory of the property that indicated that he
was its "owner or authorized agent." After the
movers left, Mr. Opp called Ms. Opp to tell her
that the movers "picked up your stuff."

  On July 8, 1997, the truck carrying Ms. Opp’s
belongings was struck by a train, damaging most
of her property. On that same day, a Soraghan
employee (Pamela Comparin) phoned Ms. Opp to
request her to bring a check to Soraghan’s office
to pay for the shipment. Ms. Opp brought a
cashier’s check to the office that same day.
Comparin notified Ms. Opp about the damage to her
property on July 14, 1997, and she returned Ms.
Opp’s check on July 15.

   Ms. Opp inspected her damaged property on July
15, and estimated its full replacement value to
be over $10,000.00. The carriers claimed that
their liability was limited according to the bill
of lading, and they tendered a check to Ms. Opp
in the amount of $2,625.00, which she never
cashed or returned.

  Instead, Ms. Opp sued the carriers pursuant to
the Carmack Amendment, 49 U.S.C. sec. 11707 et
seq., seeking (in Count I of her Amended
Complaint) to recover $10,000.00 for property
damage, and alleging (in Count II of her Amended
Complaint) that Soraghan committed fraud by
requesting an immediate payment for the shipment
on the same day that it allegedly learned about
the damage to Ms. Opp’s property. The carriers
moved for summary judgment, arguing that Mr. Opp
had the authority to sign the bill of lading and
limit the carriers’ liability. Soraghan also
moved for summary judgment on the fraud claim,
arguing that there was no evidence of fraud, and
that Ms. Opp sustained no damages because
Soraghan returned her uncashed check seven days
after she delivered it to Soraghan. The district
court granted the carriers’ motions, finding that
Mr. Opp had the actual and apparent authority to
sign the bill of lading as Ms. Opp’s agent, and
concluding that Ms. Opp failed to establish a
triable issue of fact to support her fraud claim.
Ms. Opp appeals.

II.

  "We review the district court’s entry of summary
judgment de novo," Miller v. American Family Mut.
Ins. Co., 

, 1003 (7th Cir. 2000),
viewing all of the facts, and drawing all
reasonable inferences from those facts, in favor
of the nonmoving party. 

is
proper if the record shows that "there is no
genuine issue as to any material fact and that
the moving party is entitled to judgment as a
matter of law." Silk v. City of Chicago, 

, 798 (7th Cir. 1999) (citing Fed. R. Civ. P.
56(c)). "A genuine issue for trial exists only
when a reasonable jury could find for the party
opposing the motion based on the record as a
whole." Roger v. Yellow Freight Systems, Inc., 

, 149 (7th Cir. 1994).

A.    The Property Damage Claim

  Ms. Opp argues on appeal that the district court
erred in granting summary judgment for the
carriers on her claim of damages in the amount of
$10,000.00--the full value of her property. She
asserts that there is a genuine issue of material
fact as to whether the carriers satisfied the
conditions necessary to limit their liability
under the Carmack Amendment. The Carmack
Amendment makes carriers who transport goods
liable for the "actual loss or injury to the
property caused by [the receiving or delivering
carrier]," 49 U.S.C. sec. 14706(a)(1), unless the
carrier does the following to limit its
liability: (1) maintain an appropriate tariff
pursuant to 42 U.S.C. sec. 13710(a)(1), Jackson
v. Brook Ledge, Inc., 

, 645
(E.D.Ky. 1997); (2) obtain the shipper’s
agreement as to her choice of liability; (3) give
the shipper a reasonable opportunity to choose
between two or more levels of liability; and (4)
issue a receipt or bill of lading prior to moving
the shipment. Hughes v. United Van Lines, Inc.,

, 1415 (7th Cir. 1987); 49 U.S.C.
sec. 14706(c)(1)(A). According to Ms. Opp, the
district court’s decision to grant summary
judgment was improper because she never
authorized Mr. Opp to sign the bill of lading and
limit the carriers’ liability, and thus the
carriers never obtained her agreement as to her
choice of liability.

  Ms. Opp’s property damage claim requires us to
apply the principles of agency law to determine
whether Mr. Opp had the authority to act as Ms.
Opp’s agent and limit the carriers’ liability
when he signed the bill of lading. The district
court recognized that "[i]t is not clear whether
actions arising from the Carmack Amendment are
governed by the federal common law of agency, or
by the state common law," Opp v. Wheaton Van
Lines, Inc., 

, 1035 n. 6 (N.D.
Ill. 1999), and it applied Illinois law because
"federal and Illinois laws of agency both
recognize that an agent’s authority can be actual
or apparent." 

do not challenge
the district court’s application of Illinois law,
and we will apply it as well. We also note that
the Illinois law of agency, as well as the
federal common law of agency, accord with the
Restatement. See Moriarty v. Glueckert Funeral
Home, Ltd., 

, 865-66 n. 15 (7th Cir.
1998) (the federal courts have relied on the
Restatement of Agency as a valuable source for
establishing the federal common law of agency);
see also National Diamond Syndicate, Inc. v.
United Parcel Service, Inc., 

, 259
(7th Cir. 1990) (the Restatement accords with
Illinois agency principles of actual and implied
authority); see also Emmenegger Const. Co., Inc.
v. King, 

, 742-43 (Ill. App. Ct.
1982) ("The law of agency in Illinois is in
accord with the Restatement of Agency (Second) on
the subject of apparent authority.").

  "An agent’s authority may be either actual or
apparent, and actual authority may be express or
implied." C.A.M. Affiliates, Inc. v. First
American Title Ins. Co., 

, 783
(Ill. App. Ct. 1999). And "[o]nly the words or
conduct of the alleged principal, not the alleged
agent, establish the [actual or apparent]
authority of an agent." 

note that the record clearly
demonstrates that Mr. Opp never received the
express authority to represent Ms. Opp and to
limit the carriers’ liability. "An agent has
express authority when the principal explicitly
grants the agent the authority to perform a
particular act." 

no evidence in this
case that Ms. Opp explicitly granted authority to
Mr. Opp to bind her to an agreement that limited
the carriers’ liability for her goods. Ms. Opp
stated in her affidavit that she never requested
or intended Mr. Opp to do anything other than to
open the door and allow the movers to remove her
property. And the record contains no testimony
from Mr. Opp. Because the record provides no
counteraffidavits that establish an explicit
agency relationship between Ms. and Mr. Opp, we
must accept Ms. Opp’s affidavit as true and
conclude that she never explicitly granted Mr.
Opp the authority to limit the carriers’
liability. See Lydon v. Eagle Food Centers, Inc.,

, 1215 (Ill. App. Ct. 1998).

  We next determine whether Mr. Opp had the
implied authority to limit the carriers’
liability. "Implied authority is actual authority
that is implied by facts and circumstances and it
may be proved by circumstantial evidence."
Wasleff v. Dever, 

, 1138 (Ill.
App. Ct. 1990). "[A]n agent has implied authority
for the performance or transaction of anything
reasonably necessary to effective execution of
his express authority." Advance Mortg. Corp. v.
Concordia Mut. Life Ass’n, 

, 1029
(Ill. App. Ct. 1985) (quoting 2A C.J.S. Agency
sec. 154 (1972)); see also Restatement (Second)
of Agency sec. 35. Thus we must determine whether
it was reasonably necessary for Mr. Opp to sign
the bill of lading in order to execute his
express authority to open the door to give the
movers access to Ms. Opp’s property.

  The carriers argue that because Ms. Opp
allegedly knew that the bill of lading had to be
signed when her property was picked up, but she
arranged for Mr. Opp to be the only person
present in California for the move, Ms. Opp’s
request for Mr. Opp to tender the goods to the
movers also included the necessary authority for
him to sign the bill of lading. But as noted
above, Ms. Opp only told Mr. Opp to open the
door. She made no request for him to sign
anything, or to make any agreement as to the
carriers’ liability. Ms. Opp also testified that
she was never informed that the person releasing
her property in California would have to sign a
bill of lading and declare a value for her
property. Moreover, the record contains no
testimony from Mr. Opp at all, and thus it is
unclear whether he ever implied from Ms. Opp’s
request that he was also authorized to limit the
carriers’ liability, or whether he merely thought
that he was signing forms to confirm that Ms.
Opp’s goods were taken from the home. The record
also lacks testimony from any of the movers who
picked up Ms. Opp’s personal property in
California, and we have no indication from them
what Mr. Opp understood about the significance of
his signature (and alleged notations) on the bill
of lading. Thus we conclude that there is
insufficient evidence to support a grant of
summary judgment for the carriers on this issue.
  We must then consider whether Mr. Opp had the
apparent authority to sign the bill of lading and
limit the carriers’ liability. Under the doctrine
of apparent authority, "a principal will be bound
not only by the authority that it actually gives
to another, but also by the authority that it
appears to give." Petrovich v. Share Health Plan
of Illinois, Inc., 

, 765 (Ill.
1999). "Apparent authority arises when a
principal creates, by its words or conduct, the
reasonable impression in a third party that the
agent has the authority to perform a certain act
on its behalf." Weil, Freiburg & Thomas, P.C. v.
Sara Lee Corp., 

, 1350 (Ill. App.
Ct. 1991). Thus we must determine whether the
evidence demonstrates that Ms. Opp’s words or
conduct created a reasonable impression in the
carriers that Mr. Opp had the authority to sign
the bill of lading and limit their liability.

  The carriers argue that they reasonably believed
that Mr. Opp had the authority to sign the bill
of lading because Ms. Opp allegedly knew that a
bill of lading had to be signed when her goods
were picked up, she had arranged for the carriers
to contact Mr. Opp to preside at the prior walk-
through, and she had also arranged for Mr. Opp to
be the only person present at the California home
to tender the goods. But material facts in the
record also justify a reasonable inference that
Mr. Opp did not have the apparent authority to
limit the carriers’ liability. It is undisputed
that Ms. Opp told Kloempken at Soraghan that she
wanted the full replacement value of $10,000.00
on her goods, which is reflected on Wheaton’s
Estimate/Order for Service form. Ms. Opp never
designated a "lawful representative" on the space
provided on the estimate form, and thus Wheaton’s
own form lacked any indication that Mr. Opp was
her agent. And when the movers were delayed by a
flat tire on their moving truck, they called to
notify Ms. Opp in Illinois, not Mr. Opp in
California. Additionally, Ms. Opp testified that
the carriers never informed her that the person
releasing her property in California would have
to sign anything, declare any value for her
property, or do anything other than to give the
movers access to her belongings, which indicates
that the carriers could not reasonably conclude
that she knew that the bill of lading had to be
signed in California, and that Mr. Opp had that
authority. And there is no evidence in the record
that the carriers had any knowledge that Ms. Opp
ever discussed the valuation of her property with
Mr. Opp. We conclude, therefore, that summary
judgment is precluded because the record provides
sufficient evidence to enable a reasonable jury
to find that Mr. Opp lacked the apparent
authority to limit the carriers’ liability./2
See 

.

B.   The Fraud Claim

  Ms. Opp also challenges the district court’s
denial of her fraud claim. Because Soraghan’s
employee, Ms. Comparin, called Ms. Opp seeking
full payment of the shipping charge on the same
day her property was destroyed, Ms. Opp suspects
fraud. The district court concluded that
Comparin’s affidavit asserting that at the time
of the call she "did not know that the truck
carrying Ms. Opp’s belongings was struck by a
train" was uncontested, so there was no genuine
issue of fact on that count. We also note that
the record on appeal indicates that after the
wreck, Soraghan returned Ms. Opp’s check
uncashed. While the validity of this claim seems
unlikely on the present record, Ms. Opp’s one-
paragraph argument on appeal cites no legal
authority nor any facts from the record that
dispute the district court’s conclusion. Thus we
need not address the matter further, and affirm
the district court’s decision to grant Soraghan’s
motion for summary judgment on this claim. See

.

III.

  We conclude that summary judgment is precluded
on the property damage claim because there are
genuine issues of material fact as to whether Mr.
Opp had the implied or apparent authority to
limit the carriers’ liability. We decline to
consider Ms. Opp’s fraud claim on appeal because
it lacks factual and legal support. Accordingly,
we AFFIRM the district court’s decision to grant
Soraghan’s summary judgment motion on Ms. Opp’s
fraud claim, and REVERSE and REMAND the district
court’s decision to grant the carriers’ summary
judgment motion on Ms. Opp’s property damage
claim.




/1 While the parties agree that Mr. Opp signed the
bill of lading, they dispute whether he made the
notation that limited the carriers’ liability to
$.60 per pound.

2/ We note that Ms. Opp also challenges the district
court’s decision by arguing that the carriers
failed to demonstrate that they met the other
three elements required to limit their liability
under the Carmack Amendment. First, Ms. Opp
argues that the carriers failed to show that they
maintained a tariff with the Interstate Commerce
Commission (ICC) because they neglected to lay
the foundation for the tariff they attached in
their summary judgment motion, and because the
affidavit submitted in their reply brief (to lay
the foundation for the tariff) is inadmissible.
But Ms. Opp’s argument relies on outdated law, as
carriers are no longer required to keep a tariff
on file with the ICC. 

. And her attack on the admissibility of the
affidavit is waived because she failed to raise
it in the district court. See Karazanos v.
Madison Two Associates, 

, 629 (7th
Cir. 1998); see also Friedel v. City of Madison,

, 971 n. 4 (7th Cir. 1987).
Furthermore, Ms. Opp presents no evidence to
contradict the carriers’ affidavit, and thus we
agree with the district court that this claim
fails.

  Ms. Opp also argues that the carriers never
established that they gave her a reasonable
opportunity to choose between two or more levels
of liability, and never issued a receipt or bill
of lading to her prior to moving the shipment.
But her arguments lack factual or legal support,
and thus we decline to consider them. See United
States v. Mason, 

, 901 (7th Cir.
1992).