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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN FOURWINDS TRANSPORTATION, INC. 11226 FourWinds Drive Eads TN 32028, and PLASTIC RECYCLERS SOUTHEAST, INC. 1220 Church Street, N.E. Decatur AL 35601, Plaintiffs, v. RELIABLE EXPRESS, LLC 8434 149th Street Suite B Chippewa Falls WI 54729, and WESTCHESTER FIRE INSURANCE COMPANY 436 Walnut Street Philadelphia PA 19106 Defendants. COMPLAINT NOW COME Plaintiffs FourWinds Transportation, Inc. and Plastic Recyclers Southeast, Inc., by their attorneys DeWitt Ross & Stevens their Complaint allege and show to the Court as follows:
s.c.

Case No: 14-cv-142

, and for

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PARTIES 1. Plaintiff FourWinds Transportation, Inc., a Tennessee Corporation

(“FourWinds”), is registered with the Federal Motor Carrier Safety Administration (“FMCSA”), USDOT No. 2229093, authorized to operate as a freight transportation broker nationwide (including Wisconsin), with its principal place of business at 11226 FourWinds Drive, Eads TN 38028. 2. Plaintiff Plastic Recyclers Southeast, Inc. (“PRSEI”), is a Alabama

Corporation, with its principal place of business at 1220 Church Street, N.E., Decatur AL 35601, registered to do business in Wisconsin with facilities located at 1409 Indianhead Drive, Menomonie WI 54751. 3. Defendant Reliable Express, LLC (“Reliable”) is a motor carrier

registered, at all times relevant hereto, with the FMCSA, USDOT No. 1031006, MC-432472, to operate as a motor carrier for-hire providing common carriage of freight, with its principal place of business, as registered with FMCSA and Wisconsin Department of Financial Institutions, at 8434 149th Street, Suite B, Chippewa Falls WI 54729. Pursuant to its registration with the FMCSA, Reliable’s agent for service of process in Wisconsin is Christopher Walther, 4425 N. Port Washington Road, Suite 140, Milwaukee WI 53212. 4. Defendant Westchester Fire Insurance Company (“Westchester”) is

an insurer with its principal place of business at 436 Walnut Street, Philadelphia PA 19106. Upon information and belief, at all times relevant, Westchester was registered with the Wisconsin Office of the Commissioner of Insurance to do
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business as an insurer in Wisconsin and insured Reliable for cargo loss and damage under Westchester Policy No. I21080494-001. FACTS RELATED TO JURISDICTION AND VENUE
5.

The subject matter, and claims set forth, in this Complaint arise

under a contract between FourWinds and Reliable, for the benefit of PRSEI, for interstate transportation of freight, titled “Carrier-Broker Transportation Contract” and “Rate Confirmation” dated April 10, 2013 (collectively, the “Transportation Contract”). 6. The Transportation Contract and operations of FourWinds, as a

broker, and Reliable, as a carrier, are regulated by Congress under the Interstate Commerce Act, Title 49, Subtitle IV, Interstate Transportation, Part B, “Motor Carriers, Brokers and Freight Forwarders”. 7. receipt. 8. The District Court has original jurisdiction over the action pursuant The matter in controversy exceeds $10,000 on a single bill of lading

to 28 USC § 1337(a). 9. A substantial part of the events or omissions from which the claims

arise occurred in the Western District of Wisconsin, 28 USC § 1391(b)(2). FACTS APPLICABLE TO ALL CLAIMS 10. PRSEI engaged FourWinds to arrange for transportation of the

shipment from which the claims herein arise.

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11.

Pursuant to the Transportation Contract’s requirement for cargo

insurance for the benefit of FourWinds and PRSEI, Reliable submitted to FourWinds a “Certificate of Liability Insurance” naming Westchester as Reliable’s cargo insurer. 12. Pursuant to the Transportation Contract, FourWinds tendered to

Reliable and Reliable accepted for transportation a shipment of machinery, specifically a Cumberland 37B Granulator Package and related parts and equipment, for transportation from Blades Machinery Co. Inc. (“Blades”) 750 Nicholas Blvd., Elk Grove Village IL 60007 to PRSEI’s facility at 1409 Indianhead Drive, Menomonie WI 54751. (“Subject Shipment”). 13. The Subject Shipment, all in good order, was tendered to Reliable by

Blades and accepted by Reliable in apparent good order on April 12, 2013 for delivery to the consignee PRSEI. 14. The Subject Shipment was loaded on Reliable’s trailer at Blades,

indoors, protected from outside weather and potential damage from moisture. 15. “tarped”. 16. The machinery in the Subject Shipment arrived at destination in a The Transportation Contract specified that the Subject Shipment be

damaged condition and, in that condition, could not be used for its intended purpose or any other purpose. 17. PRSEI is the beneficial owner of the goods in the Subject Shipment,

within the meaning of 49 U.S.C. §§ 13706 and 14706(a).
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18.

PRSEI notified Reliable of the damage not later than April 15, 2013

and provided written notice of the claim dated April 19, 2013, including a request that Reliable notify its cargo insurance carrier, Westchester. 19. Neither Reliable nor Westchester acknowledged or otherwise

responded to the notice dated April 19, 2013. 20. Following investigation of the damage and inspection of the Subject

Shipment by the shipper, Blades, PRSEI filed a written claim with Reliable, as required by the Transportation Contract and 49 CFR § 370.3, dated August 27, 2013. 21. Despite repeated requests from PRSEI, neither Reliable, nor

Westchester on behalf of Reliable, has acknowledged, investigated (to our knowledge) nor provided notice of disposition of the claim as required by the Transportation Contract and 49 CFR §§ 370.5, 370.7 and 370.9. 22. Blades’ estimate for removing rust from the various components of

the machinery in the Subject Shipment, alone, ranges up to $42,500 and is subject to the further caveat that:
This is an estimate only. Once the unit is received, disassembled, and all motors & controls are tested, a final estimate will be given. This estimate is subject to the amount of damage that may have occurred due to excessive water exposure. Electrical panels may need replacement, as wet electrical components are a major concern from an operator safety aspect.

23.

The invoice cost of the used machinery in the Subject Shipment was

$63,900; however, reasonably comparable used machinery, were it available, was

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estimated as of August, 2013 at $85,564.10; and replacement with new machinery, as of August, 2013 was priced at $109,030.50. 24. Reliable is experienced in the transportation of machinery such as

that included in the Subject Shipment and was on notice, before accepting the Subject Shipment for transportation, that capital equipment of the type included in the Subject Shipment has “use” value which it is foreseeable would be diminished or damaged by delay or damage to the Subject Shipment.
25.

The use value of the machinery in the Subject Shipment is $15,000

per month. 26. The cargo insurance policy issued by Westchester to Reliable,

providing coverage for the Subject Shipment, upon information and belief, was delivered to Reliable in Wisconsin, Wis. Stat. § 803.04(2). FIRST CLAIM (Negligence and Breach of Transportation Contract) 27. 28. 29. Paragraphs 1 through 26 are realleged and incorporated by reference. PRSEI is a beneficiary of the Transportation Contract. Reliable breached the Transportation Contract by failing to tarp the

Subject Shipment to protect it from the elements resulting in water damage to the machinery including, upon information and belief, damage to the electronic controls and motors. 30. Reliable breached the Transportation Contract by failing to promptly

notify its insurer of the claim and failing as required by the Transportation

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Contract and 49 CFR Part 370, as incorporated into the Transportation Contract, to acknowledge, investigate and provide notice of disposition of the claim for damage to the Subject Shipment, which breach has increased the damages and thwarted PRSEI’s efforts to mitigate the damages. 31. Reliable was negligent in the transportation of the Subject Shipment,

inter alia, in failing to tarp the Subject Shipment and otherwise protect the Subject Shipment from the elements during its transportation. 32. Reliable owed a duty to PRSEI to protect the Subject Shipment from

the adverse weather conditions during its transportation by Reliable. 33. Westchester, upon information and belief, has failed and refused to

timely respond to the notice of claim in breach of the cargo insurance policy issued to Reliable for the benefit of those shipping (including the beneficial owner) freight transported by Reliable and, thus, increased the damages and thwarted PRSEI’s efforts to mitigate the damages. 34. Damages arising from such breach include, but are not limited to:

(a) cost of repair or replacement of the Subject Shipment, including loss of use value; (b) interest; (c) administrative costs incurred by Plaintiffs; and (d) actual attorneys fees and court and other cost related to prosecution and collection of damages from its breach. 35. Therefore, the Court is respectfully requested to enter a money

judgment that Plaintiffs have and recover the amount of such damages from Defendants Reliable and Westchester.
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SECOND CLAIM (For Loss of Cargo, Carmack 49 U.S.C. § 14706) 36. 37. Paragraphs 1 through 35 are realleged and incorporated by reference. Claim for damage to, or loss of, the Subject Shipment was filed, in

writing, with Reliable, within nine months of April 12, 2013. 38. Neither FourWinds nor PRSEI has waived any rights and remedies

available to them under the Interstate Commerce Act, inter alia, 49 U.S.C. § 14101(b), with respect to Reliable’s transportation of the Subject Shipment. 39. Under all of the circumstances affecting transportation of the Subject

Shipment – by way of example and not limitation, the specification that the Subject Shipment be tarped, Reliable’s experience transporting machinery and the weather conditions during transportation and failure to process Reliable’s and Westchester’s failure to process PRSEI’s claim consistent with 49 CFR Part 370 – the damages that were incurred, including loss of use value, were entirely foreseeable by Reliable and Westchester. 40. Plaintiffs are entitled to recover the value of the goods in the Subject

Shipment including freight and disposition expense, from Reliable pursuant to 49 U.S.C. § 14706 and Westchester pursuant the its contract to insure cargo transported by Reliable, in the amount of not less than $140,000 plus interest and fees. WHEREFORE, Plaintiffs seek the following relief:

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A.

An award of money damages against Defendants under the common

law and pursuant to 49 U.S.C. § 14706 for the value of the Subject Shipment, including loss of use value, plus interest. B. An award of money damages against Defendant Reliable for breach

of the Transportation Contract including all costs of investigation and litigation reasonably incurred by Plaintiffs including but not limited to reasonable attorneys fees and disbursements and the time spent by any employees or agents of Plaintiffs in the administration of the claims for damage to the Subject Shipment, including loss of use value. C. An award of taxable costs, disbursements and attorneys fees

(pursuant to the Transportation Contract) against Defendant Reliable. D. Such other relief as is just and proper.

Dated this 7th day of February, 2014. DEWITT ROSS & STEVENS S.C. By: John Duncan Varda (#1014100) jdvarda@dewittross.com Deborah C. Meiners (#1074114) dcm@dewittross.com Two East Mifflin Street, Suite 600 Madison, WI 53703-2865 Tel. 608-255-8891; Fax 608-252-9243 ATTORNEYS FOR PLAINTIFFS FOURWINDS TRANSPORTATION, INC. PLASTIC RECYCLERS SOUTHEAST, INC.

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