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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. FEDEX FREIGHT, INC. et al

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: 
1:12-cv-03028 Search Pacer
Opposing Party: 
Indemnity Insurance Company of North America
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Apr 17 2012

"FIRST CAUSE OF ACTION

1. Plaintiff Indemnity Insurance Company of North America (“IINA”) sues herein as subrogated insurer of the cargo in suit, having paid the insurance claim of Liquidity Services, Inc. Plaintiff also sues for and on behalf of the shipper, consignee and owner of the cargo as their interest may appear.

2. Defendants FedEx Freight, Inc., doing business as FedEx Freight, Federal Express Corp., and Fedex Corp. d/b/a Fedex (collectively referred to herein as “FedEx” or defendants) are believed to be corporations organized under the laws of certain of the fifty states and at all material times maintained a statutorily required registered agent for service of process at 111 Eighth Avenue, 13th Floor, New York, New York 10011.

3. In addition FedEx maintains offices and places of business for shipping services in multiple locations within the Court’s jurisdiction, including 33 Howard Street, New York, NY 10013.

4. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 as this action arises from the carriage of goods in interstate commerce and, to the extent the carriage involved or contemplated road transport, is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. To the extent the carriage involved domestic air transport it is governed by federal statutes and federal common law related thereto.

5. Concurrently there is pendent, ancillary and supplement jurisdiction as to certain aspects of the claim in suit.

6. Upon information and belief defendants at all material times conducted business within the State of New York as common carriers of cargo for hire, including with respect to the pick up, carriage and delivery of cargo, and the provision of services related thereto, and are subject to the in personam jurisdiction of this Court.

7. This action involves nondelivery, shortage and loss to part of a shipment of electronics, including Apple I-Pods, (hereinafter also referred to as “the Shipment”) which moved or was intended to move from Waco, Texas, to Garland, Texas, as described more fully in FedEx Express waybill and freight bill number 2152790916 and bill of lading 1624230 dated on or about April 19 and 22, 2011, and others. (FedEx Claim No.: 0012-002763)

8. Said nondelivery, shortage and loss was the result of defendants’ reckless failure to properly carry and care for the shipment during the subject interstate transportation and their fundamental breaches of, and unreasonable deviations from, the governing carriage contract.

9. The nondelivery, shortage and loss to the Shipment was not caused by the inherent nature of the goods shipped.

10. The nondelivery, shortage 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.

11. The nondelivery, shortage 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.

12. The nondelivery, shortage and loss to the Shipment was not caused by events which would constitute an “Act of Public Authority” defense or exception to liability.

13. The nondelivery, shortage and loss to the Shipment was not caused by the fault of any shipper or owner of the goods shipped.

14. By reason of the aforesaid, plaintiff, and those on whose behalf it sues, have sustained damages in the amount of $48,350.64, no part of which has been paid although duly demanded, and for which defendants are jointly and severally liable without limitation of any kind.

15. 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.

16. Plaintiff, and those on whose behalf it sues, has performed all conditions precedent required of them under the premises.

SECOND CAUSE OF ACTION

17. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 16 of this complaint.

18. Said breaches by defendants constitute a material deviation or fundamental breach of the specialized services contract provisions, for which defendants are liable without limitation of any kind.

THIRD CAUSE OF ACTION

19. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 16 of this complaint.

20. Defendants converted the Shipment to their own use.

WHEREFORE, plaintiff demands judgment against defendants jointly and severally.
a. for the sum of $48,350.64;
b. for prejudgment interest at the rate of 9% per annum;
c. for the costs of this action;
d. 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.

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