In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3015

Shelley 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.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 97 C 7781--Arlander Keys, Magistrate Judge.

Argued May 9, 2000--Decided November 3, 2000

 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 request. 

 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

delayed 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 to tell her

that the movers "picked up your stuff." 

 On July 8, 1997, the truck carrying Ms. Opp’s

belongings was struck by a train, damaging most

of her property. On that same day, a Soraghan

employee (Pamela Comparin) phoned Ms. Opp to

request her to bring a check to Soraghan’s office
to pay for the shipment. Ms. Opp brought a

cashier’s check to the office that same day.

Comparin notified Ms. Opp about the damage to her

property on July 14, 1997, and she returned Ms.

Opp’s check on July 15.

 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, 49 U.S.C. sec. 11707 et

seq., seeking (in Count I of her Amended

Complaint) to recover $10,000.00 for property

damage, and alleging (in Count II of her Amended

Complaint) that Soraghan committed fraud by

requesting an immediate payment for the shipment

on the same day that it allegedly learned about

the damage to Ms. Opp’s property. The carriers

moved for summary judgment, arguing that Mr. Opp

had the authority to sign the bill of lading and

limit the carriers’ liability. Soraghan also

moved for summary judgment on the fraud claim,

arguing that there was no evidence of fraud, and

that Ms. Opp sustained no damages because

Soraghan returned her uncashed check seven days

after she delivered it to Soraghan. The district

court granted the carriers’ motions, finding that

Mr. Opp had the actual and apparent authority to

sign the bill of lading as Ms. Opp’s agent, and

concluding that Ms. Opp failed to establish a

triable issue of fact to support her fraud claim.

Ms. Opp appeals.

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 Fed. R. Civ. P.

56(c)). "A genuine issue for trial exists only

when a reasonable jury could find for the party

opposing the motion based on the record as a

whole." Roger v. Yellow Freight Systems, Inc., 21

F.3d 146, 149 (7th Cir. 1994).

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]," 49 U.S.C. sec. 14706(a)(1), unless the

carrier does the following to limit its

liability: (1) maintain an appropriate tariff

pursuant to 42 U.S.C. sec. 13710(a)(1), Jackson

v. Brook Ledge, Inc., 991 F.Supp. 640, 645

(E.D.Ky. 1997); (2) obtain the shipper’s

agreement as to her choice of liability; (3) give

the shipper a reasonable opportunity to choose

between two or more levels of liability; and (4)

issue a receipt or bill of lading prior to moving

the shipment. Hughes v. United Van Lines, Inc.,

829 F.2d 1407, 1415 (7th Cir. 1987); 49 U.S.C.

sec. 14706(c)(1)(A). According to Ms. Opp, the

district court’s decision to grant summary

judgment was improper because she never

authorized Mr. Opp to sign the bill of lading and

limit the carriers’ liability, and thus the

carriers never obtained her agreement as to her

choice of liability.

 Ms. Opp’s property damage claim requires us to

apply the principles of agency law to determine

whether Mr. Opp had the authority to act as Ms.

Opp’s agent and limit the carriers’ liability

when he signed the bill of lading. The district

court recognized that "[i]t is not clear whether

actions arising from the Carmack Amendment are

governed by the federal common law of agency, or

by the state common law," Opp v. Wheaton Van

Lines, Inc., 56 F.Supp.2d 1027, 1035 n. 6 (N.D.

Ill. 1999), and it applied Illinois law because

"federal and Illinois laws of agency both

recognize that an agent’s authority can be actual

or apparent." Id. The parties do not challenge

the district court’s application of Illinois law,

and we will apply it as well. We also note that

the Illinois law of agency, as well as the

federal common law of agency, accord with the

Restatement. See Moriarty v. Glueckert Funeral

Home, Ltd., 155 F.3d 859, 865-66 n. 15 (7th Cir.

1998) (the federal courts have relied on the

Restatement of Agency as a valuable source for

establishing the federal common law of agency);

see also National Diamond Syndicate, Inc. v.

United Parcel Service, Inc., 897 F.2d 253, 259

(7th Cir. 1990) (the Restatement accords with

Illinois agency principles of actual and implied

authority); see also Emmenegger Const. Co., Inc.

v. King, 431 N.E.2d 738, 742-43 (Ill. App. Ct.

1982) ("The law of agency in Illinois is in
accord with the Restatement of Agency (Second) on

the subject of apparent authority.").

 "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., 715 N.E.2d 778, 783

(Ill. App. Ct. 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 never 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

counteraffidavits 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.,

696 N.E.2d 1211, 1215 (Ill. App. Ct. 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, 550 N.E.2d 1132, 1138 (Ill.

App. Ct. 1990). "[A]n agent has 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, 481 N.E.2d 1025, 1029

(Ill. App. Ct. 1985) (quoting 2A C.J.S. Agency

sec. 154 (1972)); see also Restatement (Second)

of Agency sec. 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 access 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 to be the only person

present in California for the move, Ms. Opp’s

request for Mr. Opp to tender the goods to the
movers also included the necessary authority for

him to sign the bill of lading. But as noted

above, Ms. Opp only told Mr. Opp to open the

door. She made no request for him to sign

anything, or to make any agreement as to the

carriers’ liability. Ms. Opp also testified that

she was never informed that the person releasing

her property in California would have to sign a

bill of lading and declare a value for her

property. Moreover, the record contains no

testimony from Mr. Opp at all, and thus it is

unclear whether he ever implied from Ms. Opp’s

request that he was also authorized to limit the

carriers’ liability, or whether he merely thought

that he was signing forms to confirm that Ms.

Opp’s goods were taken from the home. The record

also lacks testimony from any of the movers who

picked up Ms. Opp’s personal property in

California, and we have no indication from them

what Mr. Opp understood about the significance of

his signature (and alleged notations) on the bill

of lading. Thus we conclude that there is

insufficient evidence to support a grant of

summary judgment for the carriers on this issue.

 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., 719 N.E.2d 756, 765 (Ill.

1999). "Apparent authority arises when a

principal creates, by its words or conduct, the

reasonable 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., 577 N.E.2d 1344, 1350 (Ill. App.

Ct. 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 that 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 walkthrough, 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 Wheaton’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 the carriers’ liability./2

See Roger, 21 F.3d at 149.

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

Comparin’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 oneparagraph 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 precluded

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 district 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.

/1 While the parties agree that Mr. Opp signed the

bill of lading, they dispute whether he made the

notation that limited the carriers’ liability to

$.60 per pound.

2/ We note that Ms. Opp also challenges the district

court’s decision by arguing that the carriers

failed to demonstrate that they met the other

three elements required to limit their liability

under the Carmack Amendment. First, Ms. Opp

argues that the carriers failed to show that they

maintained a tariff with the Interstate Commerce

Commission (ICC) because they neglected to lay

the foundation for the tariff they attached in

their summary judgment motion, and because the

affidavit submitted in their reply brief (to lay

the foundation for the tariff) is inadmissible.

But Ms. Opp’s argument relies on outdated law, as

carriers are no longer required to keep a tariff

on file with the ICC. Jackson, 991 F.Supp. at

645. And her attack on the admissibility of the

affidavit is waived because she failed to raise

it in the district court. See Karazanos v.

Madison Two Associates, 147 F.3d 624, 629 (7th

Cir. 1998); see also Friedel v. City of Madison,

832 F.2d 965, 971 n. 4 (7th Cir. 1987).

Furthermore, Ms. Opp presents no evidence to

contradict the carriers’ affidavit, and thus we

agree with the district court that this claim

fails. 

 Ms. Opp also argues that the carriers never

established that they gave her a reasonable

opportunity to choose between two or more levels

of liability, and never issued a receipt or bill

of lading to her prior to moving the shipment.

But her arguments lack factual or legal support,

and thus we decline to consider them. See United

States v. Mason, 974 F.2d 897, 901 (7th Cir.

1992).