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February 19, 1993

UNITED VAN LINES, INC., et al., Defendants.

The opinion of the court was delivered by: SAMUEL CONTI


 Defendants United Van Lines, Turlock Van and Storage, LDM Moving Services, and Jerry John Van Lengen (collectively "United") move for summary judgment on the ground that plaintiff State Farm Fire and Casualty's ("State Farm") Carmack Amendment *fn1" claims are barred by failure to file a timely written notice of claim.


 Summary judgment is proper only when there is no genuine issue of material fact and, when viewing the evidence in the light most favorable to the non-moving party, *fn2" the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(c); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985). Once a summary judgment motion is made and properly supported, the adverse party may not rest on the mere allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Myrtle Nell Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In addition, to withstand a motion for summary judgment, the non-moving party must show that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).

 Bearing in mind that the evidence should be viewed in the light most favorable to state Farm, as the non-moving party, the relevant facts are summarized below.


 Plaintiff's action is in subrogation, assigned to them by their insureds, David and Marcia Depatie (the "Depaties"). The Depaties shipped their household goods from Little River, California to Bend, Oregon in June of 1989, in a moving van operated by defendants and driven by Mr. Van Lengen. En route, a fire in the trailer destroyed and/or damaged a considerable portion of the Depaties' property. After the fire, the goods were returned to Turlock Van and Storage, and the undamaged portion of the shipment was subsequently delivered to the Depaties in Bend, Oregon. The Depaties filed a claim under their homeowners' policy, pursuant to which State Farm paid them approximately $ 109,000. Neither State Farm nor the Depaties filed any claim with United within nine months of the incident.

 The focus of the current dispute is the bill of lading under which the goods were shipped. That bill of lading contains a number of terms and conditions printed on the reverse, which terms are reproduced from the applicable tariffs on file with the Interstate Commerce Commission ("ICC"). *fn3" The essential term in this case is as follows:

 SECTION 6. As a condition precedent to recovery, a claim for any loss or damage, injury or delay, must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face thereof, or in case of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice. Where a claim is not filed or suit is not instituted thereon in accordance with the foregoing provisions, carrier shall not be liable and such a claim will not be paid.

 The face of the bill of lading contains as one of its terms the following language:

 3. All terms written, and printed, stamped or typed on the front or back of this form, are agreed to by both parties.

 Below this term are spaces for the signatures of both the shipper and the carrier. Those two spaces, however, are blank; for whatever reason, neither the Depaties nor the driver signed the bill of lading at the time the goods were loaded. Mr. Depatie's signature does appear, however, in the space acknowledging delivery of the undamaged goods. In addition, the Depaties had executed a similar bill of lading in connection with another shipment made via United Van Lines in May of the same year, and that bill of lading bears their signature expressly accepting the relevant terms of the tariff.

 State Farm filed its complaint in state court, alleging causes of action for conversion, breach of contract, breach of bailment agreement, and negligence. United removed the action to this court, and now seeks summary adjudication.

 By prior order, this court took this motion off calendar, in order to request further briefing by the parties on the following issues:

 1) Were the terms of the tariff, and specifically the nine-month limitation period, part of the contract between the parties, and if so on what theory?

 2) Are non-commercial shippers of domestic goods charged with knowledge of the terms of applicable tariffs, regardless of actual knowledge?

 3) Did the incorporation by contract of the tariff terms in a prior (May 1989) bill of lading place the Depaties on notice of those terms for purposes of the June 1989 bill of lading at issue? And, if the Depaties were thus on notice, did that notice bind them to those terms?

 In that previous order, the court also dismissed the Depaties' state law causes of action, and held in abeyance the Depaties' motion for leave to amend in order to state a Carmack Amendment claim.

 The parties have submitted additional briefing as requested, and the court now turns to the motion to dismiss the ...

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