Mlinar v. United Parcel Service, Inc.
129 So. 3d 406
Fla. Dist. Ct. App.2013Background
- Appellant Ivana Vidovic Mlinar is an artist whose two oil paintings were shipped via UPS from a Pak Mail retail location and arrived empty at the destination; the paintings were later sold through UPS’s lost-goods contractor, Cargo Largo, and resold at auction.
- Appellant alleges UPS intentionally selected and sold her paintings, used contact information on the paintings to catalogue/sell them, and thereby profited from and publicized her work.
- Purchaser Aaron Anderson bought one painting at auction, later contacted appellant, and attempted to resell both paintings online while offering to introduce buyers to appellant.
- Appellant sued UPS (and others) asserting conversion, profiting by criminal activity (fraud/deceptive conduct), unauthorized use of name/likeness, and a claim under Florida’s Deceptive and Unfair Trade Practices Act; the trial court dismissed all claims against UPS as preempted by the Carmack Amendment.
- The district court of appeal affirms, holding all claims against UPS are preempted because they are based on conduct arising from the loss/delivery of interstate shipments rather than conduct separate and distinct from transportation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conversion claim is preempted by the Carmack Amendment | Conversion alleges UPS appropriated paintings (intentional tort, true conversion) | Claim concerns loss/failure to deliver interstate shipment and thus falls within Carmack preemption | Preempted — court rejects a workable ‘‘true conversion’’ exception and finds conversion tied to delivery/loss |
| Whether unauthorized use of name/likeness claim is preempted | Use of appellant’s contact info/likeness in resale is a separate privacy/right-of-publicity harm | Alleged use flowed from loss and resale of shipped goods; core issue is delivery/loss | Preempted — reputational/likeness harms flowed directly from the shipping loss |
| Whether fraud / deceptive-trade-practices claims are preempted | Fraud/UDAP concern misrepresentations in contracting and conduct beyond mere loss | Claims are closely related to formation/performance of carriage contract and damages mirror loss to goods | Preempted — such claims are so related to the carriage contract and goods loss that Carmack applies |
| Proper preemption test under Carmack | Plaintiff contends certain independent harms can avoid preemption | Defendant relies on uniform national liability and Carmack’s broad preemptive scope | Use Eleventh Circuit test: claims escape preemption only if based on conduct separate and distinct from delivery/loss; applied here, no separate conduct found, so preemption applies |
Key Cases Cited
- N.Y., N.H. & Hartford R. Co. v. Nothnagle, 346 U.S. 128 (establishing Carmack Amendment background and carrier liability scheme)
- Adams Express Co. v. Croninger, 226 U.S. 491 (Carmack preemption supersedes state regulation on same subject)
- Ga., Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190 (Carmack preempts losses from failure to discharge carrier’s duty during agreed transportation)
- Smith v. United Parcel Serv., 296 F.3d 1244 (11th Cir. 2002) (test: claims escape preemption only if based on conduct separate and distinct from delivery/loss)
- Gordon v. United Van Lines, Inc., 130 F.3d 282 (7th Cir. 1997) (fraud claims related to carriage contract are preempted)
- Rini v. United Van Lines, Inc., 104 F.3d 502 (1st Cir. 1997) (discusses preemption and limited exceptions for harms independent of goods loss)
- Hall v. N. Am. Van Lines, Inc., 476 F.3d 683 (9th Cir. 2007) (Carmack preemption applies to fraud and conversion claims tied to carrier’s delivery failures)