Smith v. UPS

Smith v. UPS

Opinion

 [*1245]  DUBINA, Circuit Judge:

Frank and Harriett Smith (the "Smiths") appeal the district court's dismissal of their claims for fraud, negligence, wantonness, or willfulness, and outrage against the United Parcel Service ("UPS") and Pamela Burnett Marlow ("Marlow"), a UPS delivery person. The district court dismissed the Smiths' claims as preempted by the Carmack Amendment, 49 U.S.C. § 14706 (1994). We agree with the district court and hold that the Carmack Amendment preempts all of the Smiths' claims because the claims arise from conduct involving UPS's transportation and delivery services. Accordingly, we affirm the district court's dismissal of the Smiths' claims.

I. BACKGROUND

A. Facts

October 21, 1998, marked the beginning of an acrimonious relationship between the Smiths and UPS. On that date, Frank Smith, who is legally blind, and his son waited for UPS to deliver a computer to the Smiths' home. UPS failed to deliver the computer, and instead left [**2]  a note at the Smiths' house explaining that it had attempted delivery. The Smiths called the UPS office and demanded that UPS deliver the computer that day.

UPS made two additional trips to the Smiths' home to deliver the computer. On the first attempted delivery, Harriett Smith asked her husband and son to assist the driver, Marlow, with the boxes. While at the truck, the parties exchanged harsh words, and the Smiths' son called Marlow an unflattering and derogatory name. Marlow responded by attempting to pull down the truck door and not delivering the computer. Frank Smith blocked the door on its descent. Marlow screamed for help, asserted repeatedly that "these are terrible people," closed the door of her truck, and drove down the street where she parked for a period of time before leaving the area. Marlow promptly reported this altercation to the police, who investigated but arrested no one. Later that same evening, the local manager of the UPS office personally delivered the computer to the Smiths' residence.

Since the date of the altercation, UPS refuses to make regular deliveries to the Smiths' home. The Smiths allege that UPS continually promises to make deliveries to their [**3]  home, but fails to keep those promises. Rather than regularly delivering packages to the Smiths' residence, UPS mails notices to the Smiths' home stating, "we are unable to complete delivery because: correct street number needed, not delivered." [R. Vol. 1 Tab 1.] UPS then places the Smiths' packages on "will call" at the local UPS office. Occasionally, if available, a driver other than Marlow, will deliver packages to the Smiths' house. The Smiths claim that all of the packages that they have picked up at the UPS office have been addressed correctly. Because Frank Smith is legally  [*1246]  blind, he is unable to read the UPS notices or drive to the UPS office to retrieve packages if his wife is out-of-town. As a result, UPS has returned some packages to the senders.

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