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who should I sue?

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tianhai

Member
I bought a few electronics total of 12 packages (value of 4800$ total) from Walmart.com and the packages were all assigned by it carrier called Lasership who lied about hte delivery status.The tracking information was maliciously forged to cover a lost/stolen package. Their driver delivered 8 packages in 7 times in 4 hours for a same address delivery according to the tracking information. We called the police and the officer confirmed the nonsensical tracking information and indicated that "the packages appear to be lost or stolen during shipment."

I sued Walmart in small claim court but figured later that the terms on their website states the delivery is subject to a "shipping contract", which means once the packages were handed over their carrier, the risk of loss or title transfers to the buyer. However, I do not have a contract with their carrier. How could I sue them? Walmart has a contract with their carrier.

Who should I sue in this case? I want to add Lasership to the defendants but not sure if this is going to make the case very complicated since the two defendants intend to shift the blame to each other (which they are currently doing now).
 


tianhai

Member
Thanks for the reply. It is in NH. They stated
1 Their system insisted that the packages are delivered according to their carrier. (I told them we filed the police report and asked them how could a driver deliver 7 times in a day, EXACTLY 30 mins in between. They said they don't know and It is just delivered that way??!!)
2 I bought too many over their "alleged" order limit. Therefore the contract is made by bad faith; my refund request should be barred. ( This is very ridiculous--no matter how many I bought I paid for them by real money and Walmart confirmed the orders and shipped them out but failed to deliver.)

I understand Walmart's position: they thought they already fulfilled their responsibility by handing the packages over their carrier since the delivery part is a " shipping contract". However, how could I sue their carrier since I don't have a contract with them? Who is going to protect my interest if the carrier driver stole the packages?
 

adjusterjack

Senior Member
1 Their system insisted that the packages are delivered according to their carrier. (I told them we filed the police report and asked them how could a driver deliver 7 times in a day, EXACTLY 30 mins in between. They said they don't know and It is just delivered that way??!!)
From Walmart's website:

9. Shipping and Delivery
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Walmart Sites. All transactions are made pursuant to a shipping contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier.
https://help.walmart.com/app/answers/detail/a_id/8#9
Walmart doesn't appear to have any responsibility for the loss of any of the items.

2 I bought too many over their "alleged" order limit.
Did you make separate orders, paying for each one separately?

If so, why?

Did you buy the items to resell? Did you buy them separately knowing that Walmart would limit the order if you bought them all in one order?

8. Placing an Order
A. Order Acceptance and Billing
Walmart reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. We will attempt to notify you should such limits be applied. Walmart also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, “reselling” will be defined as purchasing or intending to purchase any Product(s) from Walmart for the purpose of engaging in a commercial sale of the same Product(s) to a third party.
I understand Walmart's position: they thought they already fulfilled their responsibility by handing the packages over their carrier since the delivery part is a " shipping contract". However, how could I sue their carrier since I don't have a contract with them? Who is going to protect my interest if the carrier driver stole the packages?
You don't need a contract with the carrier to sue the carrier for wrongdoing. As for an accusation of theft, what are the police doing about your report?

By the way, you wrote that you "sued Walmart." What was the outcome of that lawsuit?
 

tianhai

Member
Thanks very much for the reply. Please see my answers below highlighted.

Walmart doesn't appear to have any responsibility for the loss of any of the items.

Yes, it appears that way according to their website. However, when I contacted their carrier, they claimed that I am not the shipper or their customer. Walmart is. They cannot compensate for any loss during shipment and asked me to contact Walmart for refund.


Did you make separate orders, paying for each one separately?

If so, why?

Did you buy the items to resell? Did you buy them separately knowing that Walmart would limit the order if you bought them all in one order?

I made them in separate orders on four different dates in 3 weeks. I am not aware of their order limit. I don't think it matters here since they took my payment, confirmed each of the orders and shipped. Once they shipped, they need to ensure the merchandise are delivered. All these orders were sent to the same address. They could have cancelled the orders if over limit. It is not my responsibility to enforce Walmart's buying order limit. I bought them for my friends and family members overseas. In other words, yes, you can say "resell". Again, all orders were purchased legitimately. They could have cancelled the orders and refunded if violating their terms of use. However, they chose to take the payment, shipped but didn't deliver.

You don't need a contract with the carrier to sue the carrier for wrongdoing. As for an accusation of theft, what are the police doing about your report?

By the way, you wrote that you "sued Walmart." What was the outcome of that lawsuit?

Yes, I agree. But what should I sue them? I cann't sue for "breach of contract" since I don't have a contract with them. And I don't have any evidence to sue for theft. The police report stated the packages appear to be lost or stolen during shipment. It is only 5000$ dollars and no crime involved. I don't think the police can do anything with it....Yes, I sued Walmart. I am still waiting for the trial of merit. Their lawyer does not want to settle. I am wondering if I should add their carrier to the lawsuit.

I have requested Walmart to switch carrier before the delivery (snapshot of the transcript was recorded). However, they declined my request and stated the carrier cann't be changed and it is automatically chosen.

I paid Walmart but the merchandise was not delivered. It would make sense for me that they refund me first and then ask their carrier for monetary demand.


Thanks for the reply in advance.
 

adjusterjack

Senior Member
You don't need a contract with the carrier to sue the carrier for wrongdoing.

Yes, I agree. But what should I sue them? I cann't sue for "breach of contract" since I don't have a contract with them.
You sue the common carrier for negligence. When the common carrier has a contract with a shipper, fails to exercise due care in carrying out his contractual obligations to the detriment of a third party (the recipient) the recipient has a cause of action in negligence, not in contract.

If your goods were shipped from another state then the Carmack Amendment to the federal Interstate Commerce Act may apply.

https://duckduckgo.com/?q=carmack+amendment&t=ffhp&ia=web
Common carrier law is complex. I have not been able to determine whether NH follows similar liability for intrastate deliveries but it would certainly be a good idea to include the carrier as a defendant and let the judge sort out who is responsible.
 

tianhai

Member
Thanks for the reply again. What should I sue Walmart in this case? Can I still sue them for breach of contract? Even though they declared that they don't own risk of loss after carrier takes it over.
Apparently, Walmart and its carrier have a subcontract in case of a lost package--That' what the carrier told me and instructed me to contact Walmart for refund instead them. Can I use this statement to sue Walmart?
Plus, I have already felt that these two companies are kicking balls towards each other. Very bad business and poor customer service.
 

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