LANDYA McCAFFERTY, United States Magistrate Judge.
This case arises out of a single-vehicle accident that destroyed thirteen pieces of machinery owned by Ameriswiss Technology, LLC ("Ameriswiss"). When they were destroyed, Ameriswiss's machines were being trucked to New Hampshire by Midway Line of Illinois, Inc. ("Midway"). Midway had been hired by C.H. Robinson Worldwide, Inc. ("Robinson"), which itself had been hired by Ameriswiss to arrange for the transportation of its machines. Ameriswiss is suing Robinson for negligence (Count I) and breach of contract (Count II). Ameriswiss also asserted a claim against Midway under the federal Carmack Amendment, 49 U.S.C. § 14706, and default has been entered against Midway in favor of Ameriswiss. See doc. no. 33. Robinson has asserted a cross claim against Midway for indemnification. Ameriswiss's suit has been consolidated with a three-count subrogation action that was brought by Ameriswiss's insurer, Massachusetts Bay Insurance Company ("MB Insurance"), against Robinson, Midway, and the driver employed by Midway.
"To prevail on summary judgment, the moving party must show that `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed.R.Civ.P. 56(a)). "The object of summary judgment is to `pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Dávila v. Corporación de P.R. Para La Diffusión Pública, 498 F.3d 9, 12 (1st Cir.2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009) (citations and internal quotation marks omitted).
"The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir.2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006)). "However, `a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the nonmovant's burden.'" Sánchez-Rodríguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir.1998)) (internal quotation marks omitted).
Robinson has submitted a statement of material facts that meets the requirements of Local Rule 7.2(b)(1). Ameriswiss has not responded by submitting "a short and concise statement of material facts, supported by appropriate record citations, as to which [it] contends a genuine dispute
Ameriswiss, which is headquartered in Holderness, New Hampshire, buys used Escomatic machines and reconditions them for resale. On September 20, 2010, Ameriswiss purchased eleven used Escomatic machines, along with a grinding machine and an optical projector, all of which were located in Morrison, Illinois. For the thirteen machines, it paid $40,000, plus a twelve-percent commission, for a total outlay of $44,800.
Ameriswiss then contracted with Robinson to arrange the shipment of its machines from Illinois to New Hampshire. The parties agree that the terms of their contract are expressed in an e-mail from Robinson's Jonathan Dunlop to Ameriswiss's Heidi Luscher that states, in full: "Morrison, IL > Holderness, NH $2600 all inclusive." Def.'s Mot. Summ. J., Dunlop Aff., Ex. 3 (doc. no. 41-5), at 20. After Ameriswiss contracted with Robinson, Robinson engaged Midway to haul the machines. On October 15, the machines were loaded onto one of Midway's trucks. The next day, they were destroyed when the truck was involved in a single-vehicle accident in New York.
Based on the foregoing, Ameriswiss asserts that Robinson is liable for negligence because it breached its duty of care by failing to select a competent carrier to transport the machines, and is liable for breach of contract because it failed to safely transport the machines and failed to secure appropriate insurance for them while they were in transit. MB Insurance, in turn, asserts that Robinson: (1) by virtue of contracting with Midway, is liable for negligently transporting Ameriswiss's machines; (2) breached its duty of care as a common carrier; (3) and breached its duty of care as a bailee.
Robinson moves for summary judgment, arguing that: (1) both of the ordinary negligence claims (Ameriswiss's Count I and MB Insurance's Count I), MB Insurance's common-carrier negligence claim (Count II), and its bailment claim (Count III) are preempted by federal law; (2) even if not preempted, the ordinary negligence and bailment claims fail as a matter of law;
Before mounting its substantive arguments for summary judgment, Robinson devotes several pages of its memorandum of law to what it calls "a threshold issue," Def.'s Mem. of Law (doc. no. 41-1), at 11, namely, whether its actions were those of a transportation broker or those of a motor carrier.
Def.'s Mem. of Law (doc. no. 41-1), at 11. Ameriswiss counters by contending that there is a genuine issue of material fact as to whether Robinson was a motor carrier in this case.
In Robinson's view, determining whether it was a transportation broker or a motor carrier "will dictate what law should be applied to Ameriswiss' claims." Def.'s Mem. of Law (doc. no. 41-1), at 11. And, it goes on to cite Chubb for the proposition that "the Carmack Amendment [49 U.S.C. § 14706(a) ] does not apply to brokers." 243 F.Supp.2d at 1068-69 (citing Prof'l Commc'ns, Inc. v. Contract Freighters, Inc., 171 F.Supp.2d 546, 551 (D.Md.2001); Indep. Mach., Inc. v. Kuehne & Nagel, Inc., 867 F.Supp. 752, 761 (N.D.Ill.1994); Adelman v. Hub City L.A. Terminal, 856 F.Supp. 1544, 1547-48 (N.D.Ala.1994)). But, because Ameriswiss does not assert a Carmack Amendment claim against Robinson, it is not clear what Robinson gains by establishing that it was a broker rather than a motor carrier, which leaves the court wondering how Robinson's status is a material fact in the first instance. See Markel, 674 F.3d at 29 ("A fact is material if it `might affect the outcome of the suit' under governing law.") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Accordingly, the court bypasses the question of Robinson's status and moves to Robinson's arguments for summary judgment.
In Count I of its complaint, Ameriswiss asserts that Robinson "owed [it] a duty to use reasonable [care] in the selection of a carrier to transport [its] property," Compl. (doc. no. 1) ¶ 30, and that Robinson "breached its duty of care ... by failing to choose a trustworthy carrier competent to transport [its] property," id. ¶ 31. In Count I of its complaint, MB Insurance asserts that the accident that destroyed Ameriswiss's equipment "was due to the negligence of the defendants in the transportation of the equipment," Compl. (doc. no. 1 in 11-cv-266-JL) ¶ 17, and that "[a]s a dispatcher, CH Robinson is responsible for the acts of its contractors," id. ¶ 11. In Count II, MB Insurance asserts that defendants breached their duties of care as common carriers. See id. ¶ 22. In Count III, MB Insurance asserts that "[d]efendants accepted [Ameriswiss]'s goods for bailment," id. ¶ 24, and breached their duties and obligations to return the goods in an undamaged condition, see id. ¶¶ 25-26.
Robinson argues that it is entitled to summary judgment on the ordinary negligence claims asserted by Ameriswiss and MB Insurance because there is no evidence that it negligently selected Midway to transport Ameriswiss's machines. It further argues that those claims, along
The liability of interstate motor carriers to shippers
49 U.S.C. § 14706(a)(1).
"The Carmack Amendment effectively creates a federal statutory remedy on the bill of lading against both the originating and destination carrier." Rankin v. Allstate Ins. Co., 336 F.3d 8, 17 (1st Cir.2003). "To make a prima facie case under the Carmack Amendment, a plaintiff must show 1) delivery to the carrier in good condition; 2) arrival in damaged condition; and 3) the amount of damages caused by the loss." Camar Corp. v. Preston Trucking Co., 221 F.3d 271, 274 (1st Cir.2000) (citing Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 137-38, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964); D.P. Apparel Corp. v. Roadway Express, Inc., 736 F.2d 1, 2 (1st Cir.1984)). "If [a] plaintiff succeeds in establishing [a prima facie case], `the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.'" Center v. Roadway Express, Inc., Civ. No. 06-11168-DPW, 2008 WL 3824782, at *3 (D.Mass. Aug. 8, 2008) (quoting Mo. Pac., 377 U.S. at 138, 84 S.Ct. 1142). Presumably in exchange for imposing "something close to strict liability upon originating and delivering carriers," Rankin, 336 F.3d at 9; see also PNH Corp. v. Hullquist Corp., 843 F.2d 586, 589 (1st Cir.1988), the Carmack Amendment limits recovery to actual damages, see 49 U.S.C. § 14706(a)(1); Rankin, 336 F.3d at 16.
"It is accepted ... that the principal purpose of the [Carmack] Amendment was to achieve national uniformity in the liability assigned to carriers." Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir.1997). After discussing the United States Supreme Court's decision in Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913), the court of appeals in Rini went on to explain:
104 F.3d at 504 (parallel citations omitted). In other words, Rini stands for the proposition that the Carmack Amendment impliedly preempts state regulations related to damages for the loss or destruction of property during the course of interstate shipment.
Under the doctrine of implied preemption, "Congress may implicitly preempt state law by creating a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir.2008) (quoting Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996); citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)) (internal quotation marks and brackets omitted). Under the doctrine of express preemption, "Congress can include `language in the federal statute that reveals an explicit congressional intent to pre-empt state law.'" Fitzgerald, 549 F.3d at 52 (quoting Barnett Bank, 517 U.S. at 31, 116 S.Ct. 1103).
In addition to the implied preemptive effect of the Carmack Amendment, described above, the power of the states to regulate the interstate transportation of goods is also expressly constrained by the Interstate Commerce Commission Termination Act ("ICCTA"), which provides, in pertinent part:
49 U.S.C. § 14501(c)(1).
Based on the foregoing, and as Judge Lindsay's opinion in Chatelaine, Inc. v. Twin Modal, Inc., 737 F.Supp.2d 638 (N.D.Tex.2010) explains quite clearly, there are two potential theories of preemption available in this area of the law. The first is based on implied preemption and the Carmack Amendment. See id. at 641. The second is based on express preemption and the ICCTA. See id. at 641-42.
If Robinson was a carrier rather than a broker, as Ameriswiss appears to contend, then Ameriswiss's negligence claim would certainly be barred by the implied preemptive effect of the Carmack Amendment. See Noble v. Wheaton Van Lines, Civ. No. 09-10564-GAO, 2010 WL 3245421, at *6 (D.Mass. Aug. 17, 2010) ("[w]ith limited exceptions, the Carmack Amendment provides the exclusive cause of action against a carrier for loss or damage to goods that occurred as a result of interstate transport") (citation omitted). Thus, Ameriswiss's argument that Robinson was a carrier would seem to undermine its argument that its negligence
In York v. Day Transfer Co., a shipper brought negligence claims against several defendants, including a transportation broker. See 525 F.Supp.2d 289, 293 (D.R.I. 2007). In the course of deciding that the plaintiff's common-law claims against the broker were impliedly preempted by the Carmack Amendment, Judge Smith explained:
York, 525 F.Supp.2d at 297-98 (parallel citations omitted). Then, in response to an argument by the plaintiffs, Judge Smith ruled:
Id. at 301 (quoting 49 U.S.C. § 13102(23)(B); citing Glass v. Crimmins Transfer Co., 299 F.Supp.2d 878, 884 (C.D.Ill.2004)); but see Chatelaine, 737 F.Supp.2d at 641 (ruling that because defendant was broker rather than carrier, the Carmack Amendment did not apply, thus precluding the availability of implied preemption under that statute). Based on the persuasive reasoning of York, this court has little difficulty concluding that the claims stated in Count I of Ameriswiss's complaint and the claims stated in Counts I-III of MB Insurance's complaint are all impliedly preempted by the Carmack Amendment, notwithstanding Robinson's role as a broker.
However, even if those claims are not subject to implied preemption under the Carmack Amendment, they are expressly preempted by the ICCTA. In Kashala v.
District courts in other circuits have reached similar conclusions with respect to a variety of state common-law tort claims against brokers. In Non Typical, Inc. v. Transglobal Logistics Group, Inc., after noting that "the [preemption] statute expressly lists brokers," Nos. 10-C-1058 & 11-C-0156, 2012 WL 1910076, at *3 (E.D.Wis. May 28, 2012), Judge Griesback granted judgment on the pleadings to a broker because the shipper's negligence claims were preempted by the ICCTA, see id. Judge Griesback is not alone. See, e.g., Chatelaine, 737 F.Supp.2d at 642-43 (granting broker's motion to dismiss claims for negligence and negligent hiring, based on express preemption); Huntington Operating Corp. v. Sybonney Express, Inc., Civ. No. H-08-781, 2010 WL 1930087, at *3 (S.D.Tex. May 11, 2010) (granting broker's motion for summary judgment on shipper's claims for negligence and negligent misrepresentation, based on express preemption). Finally, in an opinion that is instructive but not precisely on point, Judge Davis granted a broker's motion to dismiss a motor carrier's tort claims against it, explaining that the "applicability [49 U.S.C. § 14501(c)(1)] hinges on the subject matter and effect of each claim, rather than on the identity of the parties in the litigation." Yellow Transp., Inc. v. DM Transp. Mgmt. Servs., Inc., No. Civ. A.2:06CV1517-LDD, 2006 WL 2871745, at *3 (E.D.Pa. July 14, 2006). Here, of course, the subject matter of the litigation is the destruction of Ameriswiss's machines while they were being transported from one state to another. In sum, not only are the claims asserted in Ameriswiss's Count I and MB Insurance's Counts I-III impliedly preempted by the Cormack Amendment, those claims are expressly preempted by 49 U.S.C. § 14501(c)(1).
There is some authority that, at first glance, might appear to support Ameriswiss's position on the preemption issue, but careful scrutiny reveals that authority to be unavailing. In an order in a case in which he reached the merits of a shipper's state-law negligence claim against a transportation broker, Judge Matz wrote:
Chubb, 243 F.Supp.2d at 1068-69 (footnotes omitted).
Here is the problem with Ameriswiss's reliance on Chubb. In Chubb, Judge Matz relied on the same rule that Judge Lindsay relied on in Chatelaine, i.e., the Carmack Amendment does not impliedly preempt state-law claims brought against brokers because brokers are not covered by the Carmack Amendment. But, there is no indication in the Chubb order that the broker in that case ever argued, as Robinson does here, that the shipper's claim was expressly preempted by 49 U.S.C. § 14501(c)(1). The same holds true for Intercargo, Professional Communications, Independent Machinery, and Adelman. Thus, the conclusion that is most appropriately drawn from Chubb is not that "most courts hold that brokers may be held liable under state tort ... law in connection with shipments," 243 F.Supp.2d at 1069, but, rather, that most courts hold that state tort claims against brokers are not impliedly preempted by the Carmack Amendment.
Robinson, however, unlike the brokers in Chubb, Intercargo, Professional Communications, Independent Machinery, and Adelman, is relying on the ICCTA and its express preemption provision. Because Chubb and the cases cited therein discuss only implied preemption under the Carmack Amendment, they run counter to Judge Smith's opinion in York, but do not stand for the proposition that 49 U.S.C. § 14501(c)(1) does not preempt state-law tort claims against transportation brokers. Thus, those opinions do nothing to erode the persuasive reasoning of Kashala, Non Typical, Chatelaine, and Huntington with regard to the preemptive effect of 49 U.S.C. § 14501(c)(1).
The court concludes by acknowledging that preemption does have a different effect on claims against motor carriers than it has on claims against the other entities listed in 49 U.S.C. § 14501(c)(1). When a state common-law claim against a motor carrier arising out of damage to cargo in interstate transportation is preempted, a plaintiff still has a claim against the carrier under the Carmack Amendment. But, because the Carmack Amendment creates a federal statutory remedy against motor carriers only, when a state common-law claim against a motor private carrier or a broker is preempted by 49 U.S.C. § 14501(c)(1), a plaintiff is left with no claim at all against a defendant who has successfully invoked preemption. While that may seem to be an anomalous result of the interplay between the ICCTA preemption provision and the Carmack Amendment, there is no good basis for arguing that Congress did not intend that result, given its interest in standardizing and simplifying the adjudication of claims arising in the context of interstate shipping. See Rini, 104 F.3d at 504. Moreover, the ICCTA preemption provision was enacted long after the Carmack Amendment, see Robert D. Moseley, Jr. & C. Fredric Marcinak, Federal Preemption in Motor Carrier Selections Cases Against Brokers and Shippers, 39 Transp. L.J. 77, 79 (2012), and, presumably, was enacted with the Carmack Amendment in mind. Finally, it is worth bearing in mind that a plaintiff that loses its common-law claim against an entity such as a broker is not denied an avenue for recovery; such a plaintiff still has its Carmack Act claim against the carrier.
In its complaint, Ameriswiss makes the following factual allegations:
Compl. ¶¶ 14-16. Based on those allegations, Ameriswiss asserts, in Count II, that Robinson is liable for breach of contract:
Compl. ¶¶ 34-36. While styled as a claim for breach of contract, Ameriswiss's assertion that Robinson breached the parties' agreement by failing to safely transport the machines is best understood as a claim for breach of warranty, specifically, a warranty that Ameriswiss's machines would not be damaged in transit. That said, the court turns to each of the two theories of recovery advanced in Count II, the breach-of-warranty claim stated in paragraphs 34 and 36, for failure to safely transport the machines, and the claim stated in paragraphs 35 and 36, for failure to properly insure them.
Robinson argues that it is entitled to summary judgment on Ameriswiss's claim that it breached the parties' agreement by failing to safely transport the machines because: (1) it agreed to do nothing more than arrange for a carrier to transport the machines; (2) it took all necessary precautions when doing so; and (3) "[n]othing in the record suggests Midway was not a duly qualified or competent ... motor carrier [and that] there is [no] evidence that [it] knew or should have known of any fact to disqualify Midway from handling the load." Def.'s Mem. of Law (doc. no. 41-1), at 19. For its part, and notwithstanding its failure to identify factual disputes in the manner required by Local Rule 7.2(b)(2), Ameriswiss contends that Robinson is not
Under New Hampshire law, "[a] breach of contract occurs when there is a failure without legal excuse[ ] to perform any promise which forms the whole or part of a contract." Lassonde v. Stanton, 157 N.H. 582, 588, 956 A.2d 332 (2008) (quoting Poland v. Twomey, 156 N.H. 412, 415, 937 A.2d 934 (2007)). Of course, a necessary prerequisite for a breach-of-contract claim is a contract. "A valid, enforceable contract requires offer, acceptance, consideration, and a meeting of the minds." Tessier v. Rockefeller, 162 N.H. 324, 339, 33 A.3d 1118 (2011) (quoting Durgin v. Pillsbury Lake Water Dist., 153 N.H. 818, 821, 903 A.2d 1003 (2006)).
Robinson argues that the only promise it made to Ameriswiss was that it would arrange for the transportation of its machines. Necessarily, it argues that it did not warrant their safe delivery. The complaint alleges no facts which, if proven at trial, would establish the existence of any such warranty in the agreement between Robinson and Ameriswiss.
Pl.'s Mem. of Law (doc. no. 49-1), at 20.
Robinson is entitled to judgment as a matter of law on the breach-of-warranty claim. Ameriswiss takes the position that the entire agreement between the parties is contained in the email from Dunlop to Ms. Luscher. According to Ameriswiss: "the Court need look no further than Mr. Dunlop's email to ... Luscher setting forth the scope of the agreement between Ameriswiss and C.H. Robinson." Pl.'s Mem. of Law (doc. no. 49-1), at 13; see also id. at 19 ("the actual agreement between C.H. Robinson and Ameriswiss is simple to repeat — `$2,600, all inclusive.'").
Without reference to any evidence of record or any legal authority, Ameriswiss defines "all inclusive" to mean "the pick up of the shipment at [its] point of origin, delivering the shipment to [its] destination, and covering the shipment for loss or damage." Pl.'s Mem. of Law (doc. no. 49-1), at 13. But, Ameriswiss does not allege or argue that anyone from Robinson made an oral promise to warrant the safety of the delivery and has not produced evidence of any such oral promise. Thus, the question before the court, to be resolved as a matter of law, is this: do the two words "all inclusive" communicate a promise by Robinson to warrant the safe delivery of Ameriswiss's machines? They do not. Moreover, because the question before the court is limited to construing the language of a writing that, according to Ameriswiss itself, establishes the full scope of the parties' agreement, Ameriswiss's belief that
Ameriswiss also asserts in Count II that Robinson "breached its agreement with Ameriswiss in that it ... failed to ensure that the transportation of the Machines from Morrison to Holderness was protected by appropriate insurance." Compl. ¶ 36. The complaint, however, alleges no facts concerning any promise by Robinson to ensure the procurement of insurance in an amount satisfactory to Ameriswiss. Perhaps for that reason, Robinson does not appear to address the insurance-coverage theory in its motion for summary judgment.
Under most circumstances, the court would be hesitant to grant summary judgment to a party that does not specifically request it. But here, Ameriswiss cannot possibly prevail on its claim that Robinson breached the parties' agreement by failing to ensure the provision of insurance coverage satisfactory to Ameriswiss. For starters, as with the breach-of-warranty claim, the claim stated in paragraphs 35 and 36 of Ameriswiss's complaint appears eminently susceptible to dismissal for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The complaint nowhere alleges any facts which, if proven, would establish that Robinson agreed to make sure that there was adequate insurance in place to protect Ameriswiss's interest in its machines.
Moving to the summary-judgment record, Ameriswiss appears to hang its hat on: (1) the words "all inclusive" in the e-mail from Dunlop to Ms. Luscher; (2) a request from Ameriswiss's Paul Luscher for insurance coverage in the amount of $300,000; and (3) evidence from Robinson's expert concerning what Dunlop told Mr. Luscher about the insurance coverage that was in place. None of that creates a triable issue concerning the existence of a promise by Robinson to provide, procure, or guarantee insurance coverage.
First, as a matter of law, the two words "all inclusive" do not establish a promise by Robinson to provide insurance coverage for Ameriswiss's cargo in any amount, much less whatever amount Ameriswiss might deem to be "appropriate." Second, Mr. Luscher testified that he asked Robinson to provide insurance coverage in the amount of $300,000, see Pl.'s Mem. of Law, Luscher Dep. (doc. no. 49-2), at 89, but he also testified that Dunlop told him that Robinson did not provide coverage for used machines, see id. at 89, 100. Thus, Mr. Luscher's request for insurance is not evidence that Robinson agreed to provide it. Third, Ameriswiss's reliance on Robinson's expert's testimony that Dunlop "told Mr. Luscher that there was insurance in place," Pl.'s Mem. of Law (doc. no. 49-1), is entirely misplaced. The expert was unable to say when Dunlop made that statement, see Pl.'s Obj., Ex. 2, Wentzell Dep. (doc. no. 49-2), at 114, which makes the statement worthless as evidence that Robinson promised to provide insurance, as a term of its agreement with Ameriswiss. Because Ameriswiss has produced no evidence that Robinson ever agreed to provide or procure insurance coverage for the machines Midway transported, Robinson is entitled to judgment as a matter of law on the second theory on which Ameriswiss bases its claim for breach of contract.
Several loose ends remain to be tied up. First, because Robinson is entitled to judgment as a matter of law on all of the claims asserted by Ameriswiss and MB Insurance, there is no need to address Robinson's request for summary judgment that its liability is limited to the amount Ameriswiss paid for the machines that were destroyed. Second, because Robinson is not liable to Ameriswiss, Robinson's cross claim against Midway for indemnification is dismissed. Third, Robinson has moved to strike portions of Ameriswiss's objection to summary judgment, but given the court's favorable ruling on Robinson's motion for summary judgment, its motion to strike is denied as moot.
For the reasons given above, Robinson's motion for summary judgment, document no. 41, is granted. As a result, its motion in limine, document no. 50, and its two motions to strike, document nos. 54 and 55, are all denied as moot. The clerk of the court shall enter judgment in accordance with this order and close the case.
SO ORDERED.
49 U.S.C. § 13102(2).
