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INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. AVERITT EXPRESS, INC.

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
1:14-cv-08166 Search Pacer
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Oct 10 2014

Plaintiff, through its undersigned attorney, alleges as follows for its complaint
against defendant upon information and belief:

FIRST CAUSE OF ACTION
1. Plaintiff Indemnity Insurance Company of North America (hereinafter
"UNA" or "Plaintiff) is a corporation organized under the laws of, and with its principal
place of business in, the State of Pennsylvania. IINA maintains a place of business
within this district at 1133 Avenue of the Americas, New York, NY 10036.
2. IINA insured the shipment in suit during the subject interstate
transportation and, having paid the insurance claim arising from the claimed cargo loss
and damage, sues as subrogee of Calsonic Kansei N.A., who was at all material times the
purchaser, owner, and consignee of the shipment in suit.
3. Defendant Averitt Express, Inc. (hereinafter "Averitt" or "Defendant") is
believed to be a corporation organized under the laws of, and with its principal place of
business in, one of the fifty states. At all material times Averitt maintained a statutorily
required registered agent for service of process in New York within the jurisdiction of
this Honorable Court.
4. This Court has federal question subject matter jurisdiction pursuant to 28
U.S.C. § 1331 as this action arises from the carriage of goods in interstate commerce and
is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. §
14706 and/or federal common law. Concurrently there is pendent, ancillary and
supplement jurisdiction as to certain aspects of the claim in suit.
5. Upon information and belief Averitt at all material times maintained
routes and conducted business within the State of New York as a common carrier of
cargo for hire, including with respect to the pickup, carriage and delivery of cargo, and
the provision of services related thereto, and is subject to the in personam jurisdiction of
this Court.
6. This action involves damage to a shipment of 938 automotive electronic
capacitors and related parts and equipment (hereinafter also referred to as "the
Shipment") which, for agreed compensation, Averitt contracted to carry from Los Indios,
Texas, to Lewisberg, Tennessee, as the receiving and/or delivering and/or performing
carrier. (Averitt Express Pro No. AVRT-107-1018665; Load No. 89402; Averitt Express
Claim No. 1306440)
7. For the Shipment a bill of lading was issued by or on behalf of Averitt.
8. On or about April 23, 2013 the Shipment was received in good order and
condition into the custody and control of Averitt, or entities acting on its behalf, and a
clean bill of lading and/or freight bill was issued without exception or notation for
damage or loss of any kind.
9. According to Averitt during the subject interstate transportation the
carrying vehicle was involved in a road incident which resulted in damage to the
Shipment.
10. When the Shipment was delivered by Averitt at or near the destination it
was in damaged and depreciated condition.
11. The damage sustained during the road transportation rendered the
electronic automotive capacitators unfit for intended distribution, sale and usage.
12. Said damage to the Shipment was the result of Averitt's reckless failure to
properly carry and care for the Shipment during the subject interstate transportation and
its fundamental breaches of, and material deviations from, the governing carriage
contract.
13. The damage to the Shipment was not caused by the inherent nature of the
goods shipped.
14. The damage and loss to the Shipment was not caused by events which
would constitute, or give rise to, an "Act of God" defense or exception to liability.
15. The damage and loss to the Shipment was not caused by events which
would constitute an, or give rise to, "Act of Public Enemy" defense or exception to
liability.
16. The damage and loss to the Shipment was not caused by events which
would constitute an "Act of Public Authority" defense or exception to liability.
17. The damage to the Shipment was not caused by the fault of any shipper or
owner of the goods shipped.
18. By reason of the aforesaid, IINA, and those on whose behalf it sues, has
sustained damages in the amount of $58,456.16 representing the value of the Shipment,
plus freight charges of $1,085.95, no part of which has been paid although duly
demanded, and for which defendant is liable without limitation of any kind.
19. Plaintiff sues on its own behalf and as agent and trustee for and on behalf
of anyone else who may now have or hereafter acquire an interest in this action.
20. Plaintiff, and those on whose behalf it sues, has performed all conditions
precedent required of them under the premises.

SECOND CAUSE OF ACTION
21. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 20 of this complaint.
22. Defendant was acting as bailee of the Shipment at the time the claimed
damage to the Shipment occurred.
23. Defendant thereby, or through its contractors, agents, servants or subbailees,
warranted and had a legal duty to safely keep, care for and deliver the Shipment
in the same condition as when entrusted to it and to perform their services as bailee or to
ensure that those services were performed with reasonable care and in a workmanlike and
non-negligent manner. Defendant breached those bailment obligations and negligently
failed to deliver the Shipment in the same order and condition as when it was received at
the point of origin.
24. By reason of the foregoing, Defendant has caused damage to Plaintiff,
and to the others on whose behalf Plaintiff sues, in the amount of $58,456.16, plus
freight charges of $1,085.95.

THIRD CAUSE OF ACTION
25. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 20 of this complaint.
26. Defendant, directly or through its employees, agents, or independent
contractors, willfully, recklessly or negligently and/or with gross negligence failed to
exercise the degree of care in relation to the Shipment which a reasonably careful man
would exercise under like circumstances, and/or willfully, recklessly or negligently
and/or with gross negligence failed to carry the Shipment such as reasonably required and
would be sufficient to care for and prevent damage to the Shipment.
27. The damage to the Shipment was proximately caused by Defendant's
willful, reckless, negligent and/or grossly negligent conduct.
28. As a result Defendant is liable to Plaintiff for damage in the amount of
$58,456.16, plus freight charges of $1,085.95.
WHEREFORE, plaintiff Indemnity Insurance Company of North America
respectfully requests entry of judgment against defendant Averitt Express, Inc.
a. for the sum of $58,456.16 plus freight charges of $1,085.95;
b. for prejudgment interest at the rate of 9%per annum;
c. for the costs of this action;
for such other and further relief as this Court deems proper and just.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.