Theft of name and cargo

Theft of name and cargo       Identity theft is not just a problem for individuals, but also for businesses.
      A recent decision from a federal judge in Indiana involved a cargo of brass driven off by a thief impersonating a company's driver. But the court declined to grant a summary judgment to either the plaintiff or defendant, saying there were questions of fact that needed to be determined at trial. (Northern Indiana Metals v. Iowa Express, No. 2:07-CV-414-PRC, N.D. Indiana, April 27)
      Northern Indiana Metals, of Hammond-Whiting, Ind., is a broker of metal and ingots, and offers a service to remove tin from scrap brass and copper. It arranged for two shipments of nearly 40,000 pounds of brass owned by another company, Wallach Iron and Metal, to Olin Brass in East Alton, Ill. The two shipments were made through a transportation broker called Gateway Freightways that is no longer in business, which selected Iowa Express as the common carrier.
      A registered Federal Motor Carrier Safety Authority (FMCSA) motor carrier, Iowa Express used a combination of brokers and Web sites such as 'Internet Truck Stop' and 'Get Load' to book loads.
      An individual claiming to be from Iowa Express answered a posting via Internet Truck Stop and faxed Gateway the required documents ' W-9, permit, proof of insurance and FMCSA number. A Gateway Freightways employee then called the telephone number provided on the faxed information and an individual identifying himself as an Iowa Express employee answered by stating, 'Iowa Express. John, can I help you?'
      The first load of brass was picked up on April 20, the second on April 23. Both went missing, but the first one was eventually recovered.
      On the second, a green semi-truck with Iowa Express markings arrived at Northern, driven by a man who identified himself as 'John,' and said he was taking the load on Wallach's behalf to Olin Brass. He issued Northern a bill of lading that showed Olin Brass as the 'deliver to' address and referenced both Iowa Express, the common carrier, and Gateway, the broker. John signed the bill of lading on behalf of Iowa Express and left with the load. Northern said the same man had picked up the earlier load as well.
      Iowa Express' owner said in deposition that he did not employ anyone matching the description of John, and denied the authenticity of the documents produced to Gateway and said none of Iowa Express' records showed loads picked up from Northern on April 20 or 23.
      Gateway discovered the phone number it had been provided was the cell phone number of a woman who said she did not know John. The fax number belonged to an Office Max store in Oak Brook, Ill.
      To keep good will with Wallach, Northern compensated the company for the loss of the April 23 load, valued at $140,414.
      The court said the Federal Rules of Civil Procedure mandate granting motion for summary judgment 'if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.' But it decided that was not the case here.
      It said that in order to recover from a carrier under the Carmack Amendment, the shipper must establish a prima facie case satisfying a three-prong test showing: the goods were delivered to the carrier in good condition; the goods arrived in damaged or were lost; and the amount of the damages can be specified. Once the plaintiff satisfies its prima facie case, 'the burden shifts to the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.'
      Iowa Express argued that Northern had not met the first prong of the test because it had not proven that Iowa Express was the carrier who received the goods.
      Northern presented evidence that John answered Gateway's ad on the Internet Truck Stop Web site, only viewable through a registered and password-protected account. Iowa Express had six computers with the usernames and passwords saved on them so that the information did not have to be reentered every time someone needed to log on. John provided Gateway with paperwork that included the FMCSA permit paperwork, insurance paperwork, and W-9 paperwork with Iowa Express identified as the carrier, and demonstrated his familiarity with Olin Brass's paperwork procedure. And the truck he arrived in had Iowa Express markings on it.
      In addition to the evidence that it had never employed anyone named John or matching his physical description, Iowa Express' president testified at his deposition none of his drivers was involved in picking up the April 23 load and that he was aware of where they go each day. Iowa Express also provided evidence that the documentation was faulty: the W-9 was typed, while Iowa Express doesn't type its W-9 forms; the W-9 form contained the wrong tax identification number; the certificate of insurance did not belong to Iowa Express; the permit contained incorrect information; the telephone and fax numbers were not Iowa Express'; nor did the company have any bills of lading indicating the April 23 load was picked up by Iowa Express.
      But the court said the fact that Iowa Express allows its employees to bring Iowa Express trucks home opened the possibility that one of Iowa Express's trucks could have been used to pick up the missing April 23 load.
      Northern also provided evidence indicating that the president was not entirely aware of the activities of his company ' he testified that it did not ship alcohol, but Northern provided evidence indicating Iowa Express made several such shipments. The president testified that not all loads had to be approved by him. He also said he was unable to recall delivering any loads to Olin Brass, even though Northern Indiana provided a bill of lading indicating that he had personally made a delivery to Olin Brass one month before the events at issue.
      After reviewing the evidence in this matter, the court concluded that both parties have raised genuine issues of material fact as to whether Northern delivered its goods to Iowa Express and said summary judgment must be denied to both.
      The court said if Northern could establish its prima facie case under the Carmack Amendment, the burden would then shift to Iowa Express to rebut its liability. Iowa Express would need to show, 1) that it was not negligent, and 2) that one of the excepted causes applies.
      Iowa Express argued it was a victim of identity theft, but the court noted it failed to rebut evidence it had six computers at its office with its login and password for the Internet Truck Stop Web site saved so that this information did not need to be re-entered. And it also failed to refute that it allowed its drivers to take its trucks home.