Case 1:14-cv KBF Document 1 Filed 10/10/14 Page 1 of 6

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1 Case 114-cv KBF Document 1 Filed 10/10/14 Page 1 of 6 David L. Mazaroli Attorney for Plaintiff 250 Park Avenue New York, NY Tel. (212) Fax. (212) dlm@mazarolilaw.com x UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x INDEMNITY INSURANCE COMPANY OF NORTH AMERICA as subrogee of CALSONIC KANSEI N.A., - against - Plaintiff, ECF CASE 14 Civ (KBF) COMPLAINT AVERITT EXPRESS, INC.; Defendant x Plaintiff, through its undersigned attorney, alleges as follows for its complaint against defendant upon information and belief FIRST CAUSE OF ACTION 1. Plaintiff Indemnity Insurance Company of North America (hereinafter IINA or Plaintiff ) is a corporation organized under the laws of, and with its principal place of business in, the State of Pennsylvania. IINA maintains a place of business within this district at 1133 Avenue of the Americas, New York, NY IINA insured the shipment in suit during the subject interstate transportation and, having paid the insurance claim arising from the claimed cargo loss and damage, sues as subrogee of Calsonic Kansei N.A., who was at all material times the purchaser, owner, and consignee of the shipment in suit.

2 Case 114-cv KBF Document 1 Filed 10/10/14 Page 2 of 6 3. Defendant Averitt Express, Inc. (hereinafter Averitt or Defendant ) is believed to be a corporation organized under the laws of, and with its principal place of business in, one of the fifty states. At all material times Averitt maintained a statutorily required registered agent for service of process in New York within the jurisdiction of this Honorable Court. 4. This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C as this action arises from the carriage of goods in interstate commerce and is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C and/or federal common law. Concurrently there is pendent, ancillary and supplement jurisdiction as to certain aspects of the claim in suit. 5. Upon information and belief Averitt at all material times maintained routes and conducted business within the State of New York as a common carrier of cargo for hire, including with respect to the pickup, carriage and delivery of cargo, and the provision of services related thereto, and is subject to the in personam jurisdiction of this Court. 6. This action involves damage to a shipment of 938 automotive electronic capacitors and related parts and equipment (hereinafter also referred to as the Shipment ) which, for agreed compensation, Averitt contracted to carry from Los Indios, Texas, to Lewisberg, Tennessee, as the receiving and/or delivering and/or performing carrier. (Averitt Express Pro No. AVRT ; Load No ; Averitt Express Claim No ) 7. For the Shipment a bill of lading was issued by or on behalf of Averitt. 2

3 Case 114-cv KBF Document 1 Filed 10/10/14 Page 3 of 6 8. On or about April 23, 2013 the Shipment was received in good order and condition into the custody and control of Averitt, or entities acting on its behalf, and a clean bill of lading and/or freight bill was issued without exception or notation for damage or loss of any kind. 9. According to Averitt during the subject interstate transportation the carrying vehicle was involved in a road incident which resulted in damage to the Shipment. 10. When the Shipment was delivered by Averitt at or near the destination it was in damaged and depreciated condition. 11. The damage sustained during the road transportation rendered the electronic automotive capacitators unfit for intended distribution, sale and usage. 12. Said damage to the Shipment was the result of Averitt s reckless failure to properly carry and care for the Shipment during the subject interstate transportation and its fundamental breaches of, and material deviations from, the governing carriage contract. 13. The damage to the Shipment was not caused by the inherent nature of the goods shipped. 14. The damage and loss to the Shipment was not caused by events which would constitute, or give rise to, an Act of God defense or exception to liability. 15. The damage and loss to the Shipment was not caused by events which would constitute an, or give rise to, Act of Public Enemy defense or exception to liability. 3

4 Case 114-cv KBF Document 1 Filed 10/10/14 Page 4 of The damage and loss to the Shipment was not caused by events which would constitute an Act of Public Authority defense or exception to liability. 17. The damage to the Shipment was not caused by the fault of any shipper or owner of the goods shipped. 18. By reason of the aforesaid, IINA, and those on whose behalf it sues, has sustained damages in the amount of $58, representing the value of the Shipment, plus freight charges of $1,085.95, no part of which has been paid although duly demanded, and for which defendant is liable without limitation of any kind. 19. Plaintiff sues on its own behalf and as agent and trustee for and on behalf of anyone else who may now have or hereafter acquire an interest in this action. 20. Plaintiff, and those on whose behalf it sues, has performed all conditions precedent required of them under the premises. SECOND CAUSE OF ACTION 21. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 20 of this complaint. 22. Defendant was acting as bailee of the Shipment at the time the claimed damage to the Shipment occurred. 23. Defendant thereby, or through its contractors, agents, servants or subbailees, warranted and had a legal duty to safely keep, care for and deliver the Shipment in the same condition as when entrusted to it and to perform their services as bailee or to ensure that those services were performed with reasonable care and in a workmanlike and non-negligent manner. Defendant breached those bailment obligations and negligently 4

5 Case 114-cv KBF Document 1 Filed 10/10/14 Page 5 of 6 failed to deliver the Shipment in the same order and condition as when it was received at the point of origin. 24. By reason of the foregoing, Defendant has caused damage to Plaintiff, and to the others on whose behalf Plaintiff sues, in the amount of $58,456.16, plus freight charges of $1, THIRD CAUSE OF ACTION 25. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 20 of this complaint. 26. Defendant, directly or through its employees, agents, or independent contractors, willfully, recklessly or negligently and/or with gross negligence failed to exercise the degree of care in relation to the Shipment which a reasonably careful man would exercise under like circumstances, and/or willfully, recklessly or negligently and/or with gross negligence failed to carry the Shipment such as reasonably required and would be sufficient to care for and prevent damage to the Shipment. 27. The damage to the Shipment was proximately caused by Defendant s willful, reckless, negligent and/or grossly negligent conduct. 28. As a result Defendant is liable to Plaintiff for damage in the amount of $58,456.16, plus freight charges of $1, WHEREFORE, plaintiff Indemnity Insurance Company of North America respectfully requests entry of judgment against defendant Averitt Express, Inc. a. for the sum of $58, plus freight charges of $1,085.95; b. for prejudgment interest at the rate of 9% per annum; c. for the costs of this action; 5

6 Case 114-cv KBF Document 1 Filed 10/10/14 Page 6 of 6 d. for such other and further relief as this Court deems proper and just. Dated New York, New York October 9, 2014 Law Office David L. Mazaroli s/david L. Mazaroli David L. Mazaroli Attorney for Plaintiff 250 Park Avenue 7 th Floor New York, New York Tel. (212) Fax. (212) dlm@mazarolilaw.com 6