[Cite as Total Quality Logistics, L.L.C. v. Red Chamber Co., 2017-Ohio-4369.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

TOTAL QUALITY LOGISTICS, LLC, : 

 CASE NO. CA2016-09-062 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 6/19/2017 

 - vs - 

 : 

RED CHAMBER CO., et al., : 

 Defendants-Appellants. : 

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2013-CVH-1841 

Lindhorst & Dreidame, Barry Fagel and Matthew Curran, 312 Walnut Street, Suite 3100, 

Cincinnati, Ohio 45202, for plaintiff-appellee 

David Prince and Miles Prince, 1912 East Vernon Avenue, Suite 100, Los Angeles, California 

90058, for defendant-appellant 

Durkee and Uhle, Richard Uhle, Jr., 285 E. Main Street, Batavia, Ohio 45103, for defendantappellant 

 S. POWELL, J.

{¶ 1} Defendant-appellant, Red Chamber Co. ("RC"), appeals a decision of the 

Clermont County Court of Common Pleas, granting summary judgment in favor of plaintiffappellee, Total Quality Logistics, LLC ("TQL"). 

{¶ 2} In 2008, RC, a seafood distributor began using TQL's services as a freight 
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broker to transport RC's products to its customers. In turn, as a broker, TQL contracted with 

third-party trucking companies to transport the products across the country. A credit 

agreement governed this working relationship, and provided: 

Applicant understands motor carriers under contract with [TQL] 

are required to maintain cargo loss and damage liability 

insurance in the amount of $100,000.00 per shipment. Please 

sign below acknowledging that [l]oads valued in excess of 

$100,000[.00] will not be tendered without enough prior written 

notification to TQL to allow TQL and its carriers the opportunity to 

arrange for increased insurance limits. Failure to provide timely 

written notice will result in your loads not being insured to the 

extent the value exceeds $100,000.00. 

{¶ 3} In April 2013, RC contracted with TQL to arrange the transport of RC's goods 

from California to Florida. In turn, TQL retained Wells Trucking to transport and deliver RC's 

goods. During transport, an unknown third-party stole the load of goods valued at $186,450, 

which RC never recovered. TQL brought this action against RC claiming it had breached the 

credit agreement by failing to pay for 13 other brokered shipments between April 2, 2013 and 

July 5, 2013, and alleged damages of $53,402, plus interest, collection costs, and attorney 

fees. RC counterclaimed, asserting the loss of the value of the stolen goods was a result of 

TQL's breach of contract, negligence, and negligent supervision and hiring. TQL filed a thirdparty complaint against Wells Trucking alleging negligence and seeking indemnification. 

Wells Trucking's insurance carrier settled with RC for $100,000. In so doing, RC agreed to 

indemnify Wells Trucking for any claims by any other party for damages resulting from the 

loss. 

{¶ 4} TQL moved for summary judgment on its breach of contract claim and RC's 

counterclaims. In so doing, TQL argued RC's counterclaims were barred by the doctrine of 

circular indemnity, preempted by the Carmack Amendment, 49 U.S.C. 14706(a), to the ICC 

Termination Act of 1995, 49 U.S.C. 14501(b), and fail on their merits as a matter of law. With 

respect to its breach of contract claim, TQL asserted RC's counterclaim was an attempt to 
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offset the damages from RC's nonpayment of the 13 other brokered shipments; therefore, 

TQL was entitled to judgment as a matter of law. The trial court granted summary judgment 

in favor of TQL on its claim and RC's counterclaims. The trial court found the ICCTA 

preempted RC's state law counterclaims. The trial court further found TQL met its burden of 

demonstrating an absence of a genuine issue of material fact regarding its claim, and that 

RC failed to rebut the evidence presented by TQL; therefore, TQL was entitled to judgment 

as a matter of law. This appeal followed. 

{¶ 5} Assignment of Error No. 1: 

{¶ 6} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR 

APPELLEE ON APPELLANT'S COUNTERCLAIM. 

{¶ 7} RC contends the trial court erred by sua sponte granting summary judgment in 

favor of TQL on grounds not offered in TQL's motion for summary judgment thereby denying 

RC a meaningful opportunity to respond. Specifically, RC asserts the trial court erred by 

relying on the ICCTA in granting summary judgment on RC's counterclaims in favor of TQL 

because, at no point during the pendency of the matter, was that section of the statute 

presented as a basis for summary judgment. 

{¶ 8} We review a trial court's ruling on a motion for summary judgment de novo. 

Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, ¶ 14 

(12th Dist.). "De novo review means that this court uses the same standard that the trial 

court should have used, and we examine the evidence to determine whether as a matter of 

law no genuine issues exist for trial." Morris v. Dobbins Nursing Home, 12th Dist. Clermont 

No. CA2010-12-102, 2011-Ohio-3014, ¶ 14. Summary judgment is proper if there are no 

genuine issues of material fact to be litigated, the moving party is entitled to judgment as a 

matter of law, and reasonable minds can come to only one conclusion, and that conclusion is 

adverse to the nonmoving party. Civ.R. 56(C); Williams v. McFarland Properties, LLC, 177 
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Ohio App.3d 490, 2008-Ohio-3594, ¶ 7 (12th Dist.). The moving party bears the initial 

burden of demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 

Ohio St.3d 280, 293, 1996-Ohio-107. If the moving party meets its burden, the nonmoving 

party has a reciprocal burden to set forth specific facts showing a genuine issue for trial. Id. 

{¶ 9} "A party seeking summary judgment must specifically delineate the basis upon 

which summary judgment is sought in order to allow the opposing party a meaningful 

opportunity to respond." Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), paragraph one of the 

syllabus. The moving party must state with particularity the areas of the opposing party's 

claim that do not raise a genuine issue of material fact and such assertion may be supported 

by evidence as allowed by Civ.R. 56(C). Id. at 115. A trial court, generally, may not sua 

sponte grant summary judgment upon grounds not raised by the prevailing party. Marshall v. 

Aaron, 15 Ohio St.3d 48, 50-51 (1984). Thus, a grant of summary judgment is improper 

when the nonmoving party has not had notice summary judgment may be entered against 

him. Ballinger v. Leaniz Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 

22. However, a trial court does not deprive a party of a meaningful opportunity to respond 

where the party has notice of an issue. See Revlock v. Lin, 8th Dist. Cuyahoga No. 99243, 

2013-Ohio-2544, ¶ 12; Ballinger at ¶ 23. 

{¶ 10} Thus, the inquiry requires this court to examine the substance of the motion for 

summary judgment in the context of the statute to determine whether such notice was 

present. See Ameriswiss Tech. v. Midway Line of Ill., Inc., 888 F.Supp.2d 197, 206 

(D.N.H.2012) (stating applicability of the preemption statute hinges on the subject matter and 

effect of each claim). RC contends TQL argued its motion for summary judgment pursuant to 

only the Carmack Amendment, without any mention of the other sections of the ICCTA, and 

therefore, RC did not have notice of the issue upon which the trial court ruled, depriving RC 

of a meaningful opportunity to respond. Whereas, TQL asserts RC had such notice, as TQL 
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specifically argued federal preemption pursuant to an amendment to the ICCTA, and in so 

doing, cited several cases that thoroughly examined both the Carmack Amendment and the 

ICCTA. 

{¶ 11} Pursuant to well-established principles of transportation law, cargo damage 

claims against interstate motor carriers are determined under the Carmack Amendment to 

the ICCTA. Chubb Group Ins. Cos. v. H.A. Transp. Sys., Inc., 243 F.Supp.2d 1064, 1068-69 

(C.D.Cal.2002). Whereas the amendment does not specifically govern brokers in the 

scheme of interstate cargo loss and damage liability. Id. The ICCTA provides two potential 

theories of preemption. Ameriswiss at 204. The Carmack Amendment provides that: 

[a] carrier providing transportation or service * * * shall issue a 

receipt or bill of lading for property it receives for transportation 

under this part. That carrier and any other carrier that delivers 

the property and is providing transportation or service * * * are 

liable to the person entitled to recover under the receipt or bill of 

lading. The liability imposed under this paragraph is for the 

actual loss or injury to the property caused by (A) the receiving 

carrier, (B) the delivering carrier, or (C) another carrier over 

whose line or route the property is transported in the United 

States * * *. 

(Citations omitted.) 49 U.S.C. 14706(a)(1). Accordingly, the Carmack Amendment creates a 

federal statutory remedy on a bill of lading against both the originating and destination carrier. 

 To assert a prima facie case pursuant to the Carmack Amendment, one must demonstrate 

(1) delivery to the carrier in good condition, (2) delivery failure or arrival in damaged 

condition, and (3) the amount of damages caused by the loss. Camar Corp. v. Preston 

Trucking Co., 221 F.3d 271, 274 (1st Cir.2000). 

{¶ 12} "It is accepted * * * that the principal purpose of the [Carmack] Amendment was 

to achieve national uniformity in the liability assigned to carriers." Rini v. United Van Lines, 

104 F.3d 502, 504 (1st Cir.1997) (stating the preemptive effect of the Carmack Amendment 

over state law claims is well-established). Thus, the "Carmack Amendment impliedly 
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preempts state regulations related to damages for the loss or destruction of property during 

the course of interstate shipment." Ameriswiss at 204 (stating Congress impliedly preempts 

state law by creating a federal regulation scheme so pervasive so there is a reasonable 

inference Congress intended to leave no room for the State to supplement it), citing 

Fitzgerald v. Harris, 549 F.3d 46, 52 (1st Cir.2008). Additionally, Congress may expressly 

preempt state law by including "language in the federal statute that reveals an explicit 

congressional intent to pre-empt state law." Fitzgerald at 52. In addition to the Carmack 

Amendment, the ICCTA expressly preempts state regulation of interstate transportation of 

goods. Ameriswiss at 204, discussing 49 U.S.C. 14501. 

{¶ 13} The ICCTA provides, in pertinent part: 

a State * * * may not enact or enforce a law, regulation, or other 

provision having the force and effect of law related to a price, 

route, or service of any motor carrier * * * or any motor private 

carrier, broker, or freight forwarder with respect to the 

transportation of property. 

(Emphasis added.) 49 U.S.C. 14501(c)(1). The two theories of preemption are not mutually 

exclusive, as one's claims may be preempted impliedly by the Carmack Amendment, 

expressly by the ICCTA, or both. Ameriswiss at 205-06 (demonstrating any claim brought 

against a party in its capacity as a carrier is preempted by the Carmack Amendment, 

whereas any claim brought against a party in its capacity as a broker is preempted by the 

ICCTA). 

{¶ 14} In its motion for summary judgment, TQL thoroughly argued the application of 

the Carmack Amendment to preempt RC's state law counterclaims. TQL asserted the 

Carmack Amendment only applies to carriers and freight forwarders. Thus, as a broker, TQL 

fell outside the parameters of permissible claims brought pursuant to the Carmack 

Amendment. Further, since the Carmack Amendment preempts state law claims in 

situations where carriers are held liable for actual loss or injury to property, RC's 
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counterclaims are preempted against TQL, even though it was a broker, because the claims 

stem from actual loss of property during transport by the carrier. 

{¶ 15} The trial court declined to address TQL's preemption argument pursuant to the 

Carmack Amendment, and instead, found the ICCTA expressly preempted RC's state law 

counterclaims. Likewise, we need not address the validity of TQL's Carmack Amendment 

argument, and note, as the trial court found, the federal courts have inconsistently answered 

the question whether the Carmack Amendment extends to state law claims against brokers. 

Compare Ameriswiss at 208 (holding state law tort claims against broker preempted impliedly 

and expressly), with Belnik, Inc. v. TBB Global Logistics, Inc., 106 F.Supp.3d 551, 560 

(M.D.Pa.2015) (holding state law tort claims against broker only expressly preempted). 

{¶ 16} No such inconsistency exists with respect to express preemption for state law 

claims under the ICCTA, as courts have repeatedly found that holding a broker liable for a 

negligence claim is subject to express preemption. See, e.g., ASARCO LLC v. Eng. 

Logistics Inc., 71 F.Supp.3d 990, 1006-07 (D.Ariz.2014) (finding that holding a broker liable 

for negligence "would certainly have more than a tenuous, remote or peripheral effect on 

rates and services"); AIG Eur. Ltd. v. General Sys., Inc., 2014 U.S. Dist. LEXIS 99152, *12 

(D.Md.2014) (July 22, 2014) (finding ICCTA expressly preempts negligence claim against 

broker who allegedly failed to select a carrier with sufficient insurance, as the "claim clearly 

relates to the service provided by a broker"); Ameriswiss at 206-07 (citing a series of cases 

finding ICCTA expressly preempts state law claims against a broker). Therefore, the trial 

court properly found the ICCTA expressly preempted RC's counterclaims. 

{¶ 17} We next turn to the question of whether the trial court's finding deprived RC of a 

meaningful opportunity to respond under Civ.R. 56. Specifically, whether TQL's motion for 

summary judgment asserting implied preemption pursuant to the Carmack Amendment to the 

ICCTA provided sufficient notice of the possible applicability of the express preemption 
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section of the statute. We find TQL's motion for summary judgment provided such notice. 

{¶ 18} As discussed above, a review of the statute itself and the supporting case law 

clearly indicates there are two avenues for federal preemption of state law claims related to 

actual loss or injury to property while in interstate transit. The well-established purpose 

behind preempting such state law claims is to achieve national uniformity in such cases 

where liability is imposed. Rini v. United Van Lines, 104 F.3d 502, 504 (1st Cir.1997). A 

review of authority relating to preemption pursuant to the Carmack Amendment and the 

ICCTA indicates review of one necessitates review of the other, because they are often 

interrelated and analyzed together. Contrary to RC's claim otherwise, the trial court did not 

deprive RC of a meaningful opportunity to respond because TQL's motion extensively cited 

authority demonstrating such interrelatedness. 

{¶ 19} Additionally, this court has previously addressed a similar set of facts and found 

the nonmoving party was not deprived of a meaningful opportunity to respond. See Hunter v. 

Wal-Mart Stores, Inc., 12th Dist. Clinton No. CA2001-10-035, 2002-Ohio-2604, ¶ 13. In 

Hunter, the plaintiff filed a negligence action against Wal-Mart in a slip-and-fall case. Id. at ¶ 

1. In moving for summary judgment, Wal-Mart exclusively asserted the "open and obvious" 

defense. Id. at ¶ 12. The trial court rejected the "open and obvious" defense, but 

nevertheless, granted summary judgment in favor of Wal-Mart because the plaintiff failed to 

present credible evidence that Wal-Mart received constructive notice of the presence of a 

substance on the floor. Id. at ¶ 12. The plaintiff made the only mention of the constructive 

notice issue during the briefing stage of summary judgment and we upheld the trial court's 

grant of summary judgment on the issue in favor of Wal-Mart. Id. at ¶ 13. In so doing, we 

found the trial court did not deprive the plaintiff of a meaningful opportunity to respond where 

the moving party did not raise the issue in its motion. Id. 

{¶ 20} Similar to our opinion in Hunter, the trial court did not deprive RC of a 
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meaningful opportunity to respond to the federal preemption issue. See Revlock v. Lin, 8th 

Dist. Cuyahoga No. 99243, 2013-Ohio-2544, ¶ 12 (finding party was not deprived of a 

meaningful opportunity to respond where party briefed the rescue doctrine and the trial court 

granted summary judgment on an exception to the rescue doctrine); Ballinger v. Leaniz 

Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 23 (finding plaintiff must 

have been on notice his own fault was at issue where defendant raised assumption of risk 

defense). Contrary to RC's claim otherwise, the trial court's grant of summary judgment 

based on express preemption versus implied preemption does not demonstrate RC did not 

have sufficient notice of the issue of possible federal preemption applicable to the facts of 

this case. Rather, RC briefed the matter regarding applicability of the Carmack Amendment, 

which as discussed above, is so interrelated to the ICCTA that one would not likely consider 

preemption under one, but not the other. Thus, the trial court's declining to reach a decision 

on the applicability of the Carmack Amendment to brokers, in favor of correctly applying the 

express preemption section of the statute, does not constitute reversible error. 

{¶ 21} Accordingly, RC's first assignment of error is overruled. 

{¶ 22} Assignment of Error No. 2: 

{¶ 23} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR 

APPELLEE ON THE COMPLAINT. 

{¶ 24} RC contends the trial court erred by granting summary judgment in favor of 

TQL because RC presented sufficient evidence to demonstrate a genuine issue of material 

fact existed for TQL's breach of contract claim. Specifically, RC contends there are three 

triable issues of fact in dispute: (1) whether TQL committed a breach in its role as a broker, 

(2) if yes, was it a material breach, and (3) whether such breach discharged RC's duty to 

perform relative to the 13 other brokered shipments. 

{¶ 25} As discussed above, the moving party bears the initial burden of showing there 
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is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the moving party meets its burden, the 

nonmoving party has a reciprocal burden to set forth specific facts showing a genuine issue 

for trial. Id. The nonmoving party may not rest upon the mere allegations of its pleadings, 

but must set forth evidence of specific facts showing the existence of a genuine triable issue. 

Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). 

{¶ 26} In support of its motion for summary judgment, TQL submitted the affidavit of 

Marc Bostwick, an operations manager for TQL, who averred that "[b]etween April 2, 2013 

and July 5, 2013, TQL brokered transportation for 13 loads for [RC], aside from the [stolen] 

load * * * at issue in this case." Bostwick further averred RC had yet to pay the $53,402, plus 

interest, owed for those 13 loads. TQL further supported its motion with the credit 

application, including the terms and conditions for the 13 loads, as well as RC's statement of 

accounts demonstrating $53,402 due for unpaid shipments. The only evidence submitted by 

RC in opposition to TQL's motion for summary judgment was the affidavit of Eithel Yocupicio, 

traffic manager for RC, who averred to the procedure related to contracting for the stolen 

shipment. Yocupicio's affidavit does not provide any evidence to rebut the evidence related 

to TQL's breach of contract claim, but rather, supports RC's counterclaims. Therefore, the 

trial court properly found RC failed to meet its burden to demonstrate the existence of a 

genuine issue of material fact with respect to TQL's breach of contract claim, and TQL is 

entitled to judgment as a matter of law. 

{¶ 27} Accordingly, RC's second assignment of error is overruled. 

{¶ 28} Judgment affirmed. 

 

 HENDRICKSON, P.J., and RINGLAND, J., concur.