Shеlley 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.
No. 99-3015.
United States Court of Appeals, Seventh Circuit.
Argued May 9, 2000. Decided Nov. 3, 2000.
231 F.3d 1060
Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
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 requеst.
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 delаyed 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 tо tell her that the movers “picked up your stuff.”
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,
II.
“We review the district court‘s entry of summary judgment de novo,” Miller v. American Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000), viewing all of the facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party. Id. Summary judgment 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, 194 F.3d 788, 798 (7th Cir. 1999) (citing
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],”
“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., 306 Ill.App.3d 1015, 240 Ill.Dec. 91, 715 N.E.2d 778, 783 (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.” Id.
We first 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.” Id. There is 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 nеver 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 counter-affidavits 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., 297 Ill.App.3d 90, 231 Ill.Dec. 640, 696 N.E.2d 1211, 1215 (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, 194 Ill.App.3d 147, 141 Ill.Dec. 86, 550 N.E.2d 1132, 1138 (1990). “[A]n agent hаs 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, 135 Ill.App.3d 477, 90 Ill.Dec. 225, 481 N.E.2d 1025, 1029 (1985) (quoting 2A C.J.S. Agency § 154 (1972)); see also Restatement (Second) of Agency § 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 acсess 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
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., 188 Ill.2d 17, 241 Ill.Dec. 627, 719 N.E.2d 756, 765 (1999). “Apparent authority arises when a principal creates, by its words or conduct, the reаsonable 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., 218 Ill.App.3d 383, 160 Ill.Dec. 773, 577 N.E.2d 1344, 1350 (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 thаt 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 Wheatоn‘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
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 Cоmparin‘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 Mason, 974 F.2d at 901.
III.
We conclude that summary judgment is рrecluded 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 distriсt 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.