LIABILITY: Freight Damages/Shipping Delay

There are 6 parties to this legal can of worms:

Seller
Buyer (Me)
Leasing Co.
Finance Co.
Trucking Co.#1
Trucking Co.#2

I successfully bid on a piece of equipment through eBay in March. The winning bid was $6,001.00. The bid was far enough below market value, so I agreed to a contract with a leasing co. before delivery. The shipping charges were built into the lease, the amount of which was quoted and contraced between the leasing co. and the seller. I wouldn't have the facilities to accomodate the equipment until June, so I arranged (orally) for storage with the seller, who assurred me he had "more space than he knew what to do with". When space was finally available, I requested delivery. The seller notified me that I was required to pay the shipping because he always shipped "collect". When I objected he offered to reimburse me for the shipping charges in "a month".
I objected further and referred him back to the leasing co. When I reported this info to the leasing co. I was told in effect, that it was my problem because when I signed the lease, I acknowledged that I was in receipt of the equipment. (The leasing co. was well-informed as to the status of shipment, long befre this point). When I inquired as to the invoice from the seller to the leasing co. itemizing the shipping charges as part of the sale price, they were evasive. It was obvious to me by now, that they failed to itemize the shipping on the invoice. Negotiation dragged on for 6 weeks until the equipment was finally delivered, with my paying half the shipping charges, the amount of which was deducted from my lease payments. The item was shipped about 3,000 miles, the firtst 2,600 of which was by Trucking Co.#1.
When the item finally reached my shop via Trucking Co.#2, I noticed that it was poorly palletized, and was leaning dangerously. I instructed the driver to return it to the depot for repalletizing before delivery the next day. When it was re-0delivered, I noticed it was shrink-wrapped, a bit odd for a 2,000#
piece of machinery. Later in the day when I unwrapped it, I discovered that it had been obviously dropped or tipped over during repalletizing. I reported it to the final shipper that same day, and they sent a photographer to survey the damage and write a report about July 27th.
My business, though not strictly seasonal, is heavily weighted to Spring/Summer, so this problem caused me a great deal of stress, trying to get good production from an older piece of equipment that I had not intended to use. The damaged one was not usable without extensive repairs, so it was no use to even attempt putting it into service, so I trudged through the season using the old equipment. Now that the season is behind me, I'm ready to start resolution of this problem. The problem began when I first requested delivery about June 1st and continued until November 1st when I finally caught up with production. Should I get legal assistance before filing the insurance claim, and if the claim is refused, do I take action against all of the above parties? I know I'm well within the SOL for filing, so I have time for more research. Can I file a claim based on replacement cost or am I stuck with the purchase price? Can I recover legal fees? (The fees may exceed my loss). My business location is Ohio

[stevek3]

Originally Posted by Laissezfaire

There are 6 parties to this legal can of worms:

Seller
Buyer (Me)
Leasing Co.
Finance Co.
Trucking Co.#1
Trucking Co.#2

I successfully bid on a piece of equipment through eBay in March. The winning bid was $6,001.00. The bid was far enough below market value, so I agreed to a contract with a leasing co. before delivery. The shipping charges were built into the lease, the amount of which was quoted and contraced between the leasing co. and the seller. I wouldn't have the facilities to accomodate the equipment until June, so I arranged (orally) for storage with the seller, who assurred me he had "more space than he knew what to do with". When space was finally available, I requested delivery. The seller notified me that I was required to pay the shipping because he always shipped "collect". When I objected he offered to reimburse me for the shipping charges in "a month".
I objected further and referred him back to the leasing co. When I reported this info to the leasing co. I was told in effect, that it was my problem because when I signed the lease, I acknowledged that I was in receipt of the equipment. (The leasing co. was well-informed as to the status of shipment, long befre this point). When I inquired as to the invoice from the seller to the leasing co. itemizing the shipping charges as part of the sale price, they were evasive. It was obvious to me by now, that they failed to itemize the shipping on the invoice. Negotiation dragged on for 6 weeks until the equipment was finally delivered, with my paying half the shipping charges, the amount of which was deducted from my lease payments. The item was shipped about 3,000 miles, the firtst 2,600 of which was by Trucking Co.#1.
When the item finally reached my shop via Trucking Co.#2, I noticed that it was poorly palletized, and was leaning dangerously. I instructed the driver to return it to the depot for repalletizing before delivery the next day. When it was re-0delivered, I noticed it was shrink-wrapped, a bit odd for a 2,000#
piece of machinery. Later in the day when I unwrapped it, I discovered that it had been obviously dropped or tipped over during repalletizing. I reported it to the final shipper that same day, and they sent a photographer to survey the damage and write a report about July 27th.
My business, though not strictly seasonal, is heavily weighted to Spring/Summer, so this problem caused me a great deal of stress, trying to get good production from an older piece of equipment that I had not intended to use. The damaged one was not usable without extensive repairs, so it was no use to even attempt putting it into service, so I trudged through the season using the old equipment. Now that the season is behind me, I'm ready to start resolution of this problem. The problem began when I first requested delivery about June 1st and continued until November 1st when I finally caught up with production. Should I get legal assistance before filing the insurance claim, and if the claim is refused, do I take action against all of the above parties? I know I'm well within the SOL for filing, so I have time for more research. Can I file a claim based on replacement cost or am I stuck with the purchase price? Can I recover legal fees? (The fees may exceed my loss). My business location is Ohio

Obviously, you need a lawyer. Obviously, the legal fees will exceed the amount of your claim. Finally, your legal fees are your own to bear. Arguably, your claims may need to be filed in federal court, not state court. I don't know, nor do I care. For your purposes, it really doesn't matter.

If I were in your shoes, I'd say, "Screw all the statutes and civil rules, and let's see what I can get away with." The Ohio small claims jurisdictional limit is $3,000, but in your position, it would be the only realistic way to possibly cut your losses. So, file suit in small claims court, and name everybody, the kitchen sink, and the sinks' mothers as parties. With any luck, none of the named parties will file a motion to remove the action to the regular civil division or to federal court. If you clear this hurdle, then I guarantee that one or more of the parties will not appear for the hearing. With the travel expense, time, and everything else, it will not be cost-efficient to appear. Unless the magistrate takes the time to really dissect your claim, you'll be awarded a default judgment against the non-appearing party(ies) for $3,000, plus 5% interest, plus costs. Effective January 1, 2005, Ohio judgment interest is being increased from 4% a year to 5% a year.

Sit on your judgment for a year. Under Ohio law, a motion to vacate a judgment that is filed a year after the judgment is entered is, for all intents and purposes, a waste of time. Don't even concern yourself with recovering the judgment until you reach this point. After a year, then you'll be free to try to get your money from the non-appearing parties without fear the judgment will be vacated. It will not be be easy, and may not be worth pursuing.

If you are fortunate, you will be able to settle with the appearing parties outside in the hallway before the small claims hearing, thereby recovering a portion of the $3,000 that you weren't able to claim because of the $3,000 jurisdictional limit. Indeed, this should be your goal. For example, say three of the parties appear. Before the hearing, settle for $500 each with the three appearing parties. Or even less. Settle for $400 each if that's what it takes to sell them. At least you'll have $1,200 - $1,500 in-pocket. Then, after a year, you'll be able to eventually pursue your $3,000 judgment against the non-appearing parties.

Small Claims was a last resort. I have a lot of options before I get to that point. I havn't even filed the insurance claim yet and the driver already admitted they caused the damage. The possible suit to which I was referring was IN ADDITION to the freight claim. I can do a better job by handling this myself...

[stevek3]

Originally Posted by Laissezfaire

Small Claims was a last resort. I have a lot of options before I get to that point. I havn't even filed the insurance claim yet and the driver already admitted they caused the damage. The possible suit to which I was referring was IN ADDITION to the freight claim. I can do a better job by handling this myself...

You are shooting for the moon, reaching for the stars, and will eventually come plummeting face-first into the tender rump of a Holstein cow taking a big crap in the middle of a field. Sometimes it takes a tornado of legal reality and the cushion of a cow's ass to bring a person back down to Earth.

[LdiJ]

Originally Posted by stevek3

You are shooting for the moon, reaching for the stars, and will eventually come plummeting face-first into the tender rump of a Holstein cow taking a big crap in the middle of a field. Sometimes it takes a tornado of legal reality and the cushion of a cow's ass to bring a person back down to Earth.

I successfully got a freight company to settle a 10,000 claim for merchandise that had been left out in the rain and was ruined as a result. THEY were not the ones who left it out in the rain (the airline was) however they signed as accepting the merchandise in good condition, so they were at fault. It did not take years, only a couple of months. There is nothing wrong with this guy trying to get it settled with the freight company. Nor is it totally unrealistic that he can prevail.

[stevek3]

Originally Posted by LdiJ

I successfully got a freight company to settle a 10,000 claim for merchandise that had been left out in the rain and was ruined as a result. THEY were not the ones who left it out in the rain (the airline was) however they signed as accepting the merchandise in good condition, so they were at fault. It did not take years, only a couple of months. There is nothing wrong with this guy trying to get it settled with the freight company. Nor is it totally unrealistic that he can prevail.

Read my posts again, and then repeat them 10,000 times. With my John Lennon-like karma and the spiritual assistance of Miss Cleo, I can see far into the man's future.