Who do I sue?

[alchemist]

What is the name of your state?What is the name of your state? Wisconsin

In May I had my laptop computer repaired by IBM under warranty, and when they shiped it back using DHL (who contracted the shipping to a Wisconsin company), the delivery driver forged my signature and left the package on my doorstep out in the rain. It was out in the rain for multiple days as I was out of town on business and the box/laptop were basically destroyed.

When I returned and got the box/laptop I immediately filed a police report on the forgery. The police officer contacted the delivery company and interviewed the driver who admitted to signing (in the report) my name and leaving the package because he was too busy/did not want to return the next day. The district attorney declined to press charges because there was no intent to deprive me of property/defraud.

DHL refuses to pay for it (filed a claim) saying the package was uninsured. IBM says its the shipping company's responsibility.

Obviously I'm only going the small claims route since the value is only about 3000$. Do I sue the local delivery company (same state) who employed (and still employs) the individual who forged my signature, DHL, or the individual who forged my signature.

I'm looking for who/ the most appropriate entity is to sue for this negligence that caused the property damage.
Thanks

 

[bdunham7]

You sue DHL directly, they are responsible for the actions of their employees. The negligence was leaving it out in the rain, the forgery is just evidence they should have known better.

 

[BelizeBreeze]

You sue DHL directly, they are responsible for the actions of their employees. The negligence was leaving it out in the rain, the forgery is just evidence they should have known better.

WRONG.

You sue the local shipping company. DHL would have responsibility ONLY if it was their policy and known by the local shipping company, to forge signatures and leave packages unattended. Also, the must be a reliance on the practice as supported and encouraged by DHL to shift responsibility from the local shipper to them.

There is not in this case. The local shipper clearly created the damage and without sufficient proof to the contrary, performed outside the scope of their contractural relationship, thereby assuming legal liability.

 

[alchemist]

Obviously it will be easier to sue the local company in small claims court. Do I simply file it against "Company Name Here" and have the summons (or whatever the court sends) delivered to the place of business? In WI since this will be in a different county I pay a Sheriff's Deputy to deliver the court papers.

I have proof of value (original invoice), online copies of the forged signature (DHL Signature Confirmation), police report with admission of the driver's actions, pictures of the water pouring out of the laptop, and airline/hotel statements documenting I was 500 miles away when the package was delivered. Is there anything else that I should have, or have forgotten?

Am I missing anything?

 

[Greg B.]

I don't know how it works in Wisconsin, but in GA you have to find out who the registered agent is for the business and file in the county the business resides in. The Secretary of State should have the name of the Registered Agent (atleast ours does). The court house should be able to tell what you need to do.

 

[bdunham7]

BelizeBreeze

Wrong, huh? Have you successfully sued a package delivery company in Wisconsin small claims court? Oh? Well one of us has anyway. A very big one too.

The original contract to ship was with DHL. Their choosing a subcontractor to finish the job does not relieve them of their obligations to ensure the service is provided per contract. One could make all sorts of legal arguments why it should, that is their prerogative. One tactic would be to sue them all and let the judge sort it out. In fact, I am confident that the best course of action in this case would be to sue DHL directly and let them implead the local company if they want. In fact one likely result is that, upon hearing the facts, DHL might tell the local company to pay the claim or lose their business.

In fact, if one were going to assume that the finest of legal examination were to be used in this case, it might be a very serious mistake to sue the local company alone because their obligations were to DHL, not the consumer. It is a fairly well settled point in WI that a third party may not recover under a contract between two other parties except under certain very specific, narrowly construed circumstances.

 

[bdunham7]

alchemist

Here is some info you can use to decide what to do. What county are you in and what other counties are involved?

First, my advice would be to either sue DHL solely or sue both companies at once. Suing DHL will not be difficult at all. You can sue them in Dane County or wherever the package was left. Here is the registered agent information for DHL in WI. If you sue them in Dane County, you don't even need to pay a process server, you can simply mail the summons to them.

DHL Airways, Inc.

Registered Agent:
C T CORPORATION SYSTEM
8025 EXCELSIOR DR SUITE 200
MADISON, WI 53717

If you go to the WI Dept of Financial Institutions website you'll see that DHL's operating certificate was revoked (???!!!) on 10.28.04. I don't think that means much in actuality.

Here is an excellent guide to Wisconsin Small Claims Court. If you are going to file in Dane County, I can give you another resource as well.

http://www.courts.state.wi.us/about/pubs/circuit/docs/smallclaims.pdf

Now, perhaps it is time for you to discuss WHAT you are going to argue in court. They may argue that they have limits on insurance, etc etc. Was the package insured?

 

[BelizeBreeze]

Wrong, huh? Have you successfully sued a package delivery company in Wisconsin small claims court? Oh? Well one of us has anyway. A very big one too.

The original contract to ship was with DHL. Their choosing a subcontractor to finish the job does not relieve them of their obligations to ensure the service is provided per contract. One could make all sorts of legal arguments why it should, that is their prerogative. One tactic would be to sue them all and let the judge sort it out. In fact, I am confident that the best course of action in this case would be to sue DHL directly and let them implead the local company if they want. In fact one likely result is that, upon hearing the facts, DHL might tell the local company to pay the claim or lose their business.

In fact, if one were going to assume that the finest of legal examination were to be used in this case, it might be a very serious mistake to sue the local company alone because their obligations were to DHL, not the consumer. It is a fairly well settled point in WI that a third party may not recover under a contract between two other parties except under certain very specific, narrowly construed circumstances.

And of course, you make this assumption because you were lucky and NOT based on current law. Or would you like to post here the case number and county where you SUPPOSEDLY sued this 'big company' successfully.

Plainly you have no idea what you're talking about or you would have posted the statute under which this poster can sue. Well?

 

[alchemist]

I am in St Croix county (and the package was damaged there). The local shipping company is in Eau Claire WI (Eau Claire WI).

In the case of them claiming there was no insurance on the package, can a contract of carriage trump negligence?

 

[bdunham7]

BelizeBreeze

And of course, you make this assumption because you were lucky and NOT based on current law. Or would you like to post here the case number and county where you SUPPOSEDLY sued this 'big company' successfully.

Plainly you have no idea what you're talking about or you would have posted the statute under which this poster can sue. Well?

I don't know what assumption you think I'm making. The case I was referring to involved different circumstances and I wasn't comparing it to the current case so much as making the point that I do know my way around WI small claims court. And that's where the OP is headed. The company was FedEx (big enough for you?) but the claim was under $1K, so I'm sure they didn't break out the big guns.

As far as me knowing what I'm talking about, if you knew as much about procedure in WI as you think, or if you had bothered to read the link I posted, you would know that the plaintiff in SC doesn't have to specify what statute or code he/she is filing under.

 

[stevek3]

What is the name of your state?What is the name of your state? Wisconsin

In May I had my laptop computer repaired by IBM under warranty, and when they shiped it back using DHL (who contracted the shipping to a Wisconsin company), the delivery driver forged my signature and left the package on my doorstep out in the rain. It was out in the rain for multiple days as I was out of town on business and the box/laptop were basically destroyed.

When I returned and got the box/laptop I immediately filed a police report on the forgery. The police officer contacted the delivery company and interviewed the driver who admitted to signing (in the report) my name and leaving the package because he was too busy/did not want to return the next day. The district attorney declined to press charges because there was no intent to deprive me of property/defraud.

DHL refuses to pay for it (filed a claim) saying the package was uninsured. IBM says its the shipping company's responsibility.

Obviously I'm only going the small claims route since the value is only about 3000$. Do I sue the local delivery company (same state) who employed (and still employs) the individual who forged my signature, DHL, or the individual who forged my signature.

I'm looking for who/ the most appropriate entity is to sue for this negligence that caused the property damage.
Thanks

While everyone here is obviously too busy bickering over who wears the biggest jock strap, I'll answer your question: Name them all. They'll fight it out amongst themselves, and you'll end up getting your money. Problem solved.

 

[bdunham7]

Alchemist

I am in St Croix county (and the package was damaged there). The local shipping company is in Eau Claire WI (Eau Claire WI).

In the case of them claiming there was no insurance on the package, can a contract of carriage trump negligence?

You can sue in St. Croix or Eau Claire counties, your choice. There may be good arguments for suing all 4 parties to the transaction--IBM, DHL, the local company and the driver personally. However, if it were me, I would start just by suing DHL and see what they do. You can always sue someone else if that doesn't work out. I won't bother with the arguments unless you are interested. I probably wouldn't get them all right anyway. If you absolutely only want to do this once, then sue DHL, the local company and the driver personally, all at once.

I'm glad to see you are finally thinking of WHAT you are going to argue, because I don't think you necessarily have a slam-dunk. I hope so, but.....

There are two basic types of actions--contract and tort. A contract action is one regarding a transaction agreed upon by two parties, generally an allegation by one that the other failed to honor their end of the bargain (a 'breach' of contract). A tort action is one regarding some harm or wrong (tort) done by a person or entity (the 'tortfeasor') to another person or entity (the tortellini).

If I buy a car on payments and don't make the payments, that's a breach of contract.

If I steal a car, that's a tort.

In both cases I have a car I didn't pay for but the results are different.

Contracts are subject to something called the economic loss doctrine. What this boils down to is that the law recognizes that it is not feasible to litigate every single matter to death and parties to a contract need to be able to reasonbly know the outcomes of any problems that may arise. Therefore, losses incurred within the scope of a contract can be and are limited by the terms of the contract. The contract with DHL regarding shipment comprises a contract and that contract has terms, most likely stating that in the unlikely event they ruin your package, they aren't going to pay. Depending on who ordered the shipping, etc, you may or may not be a party to that contract. b/t/w, whose idea was it to ship it uninsured???

The main argument they would make is that any shipment entails a finite risk of loss or damage. They cannot accurately set their shipping rates and/or insurance rates unless they know the value of the package they are shipping. What if you had $10 million cash in that box and DHL knows that they lose 1 out of 1000 packages? Well, it's easy to see that they would need at least $10,000 to accept the risk of shipping something that valuable. Since they weren't notified of the value of the package, they didn't assume that level of risk.

Torts are not subject to that limitation. The tortfeasor has no contract with the tortellini and cannot claim reliance on any presumption that risk would be limited. If you get drunk and plow your car into a $500 Geo, you owe $500. If you plow into a new Ferrari, you might owe $275,000. That's just too damn bad.

The reason I don't see a slam dunk is that the tort you refer to (forgery) isn't what actually caused the damage. So it's going to be harder than you'd think to tie it to the damages. It's small claims, so let it fly. I'd make two arguments.

1. The limitation of risk in DHLs shipping contract should only apply to risks that are beyond the reasonable control of DHL or it's employees or subcontractors. If the limitation were absolute, there would be nothing stopping them from simply STEALING as many packages as they wished. If a DHL driver became angry and just stomped on your package in front of you, would they claim their contract exempt them from liability?

2. An actual CRIME was committed. You said the DA didn't press charges because there wasn't intent to defraud. In fact there was, albeit a petty one. You (or someone) paid for delivery including a delivery signature. You didn't get the service you paid for yet someone FORGED your signature to indicate that you had. So the shipping was only $40, that's like forging a $40 check. So DHL and it's cohorts DEFRAUDED you of the shipping service and care that you paid for and as a result, your computer was ruined. If I stole your car's oil drain plug and as a result your engine was ruined, I'd owe you thousands based on a $2 theft.

I don't know what else you'd say. Lay the facts out and let the judge run with them. Keep in mind that after the small claims hearing, either party can demand a new trial (trial de novo) before a circuit court judge and you have to start all over. It will be harder to win your case in circuit court than in the small claims hearing.

Good luck and let us know what happens. It will be months.

 

[bdunham7]

Stevek3

While everyone here is obviously too busy bickering over who wears the biggest jock strap, I'll answer your question: Name them all. They'll fight it out amongst themselves, and you'll end up getting your money. Problem solved.

No jock strap here. But if there were, it would be a whopper!

Suing everybody is one solution, but IMO it's overdone. Would you include IBM in it too? My thought was one of strategy--let DHL wriggle and squirm or better yet, make their subcontractor wriggle and squirm. The biggest problem suing everyone is getting everyone to the hearing without one or the other asking for delays. DHL can implead the subcontractor and/or driver if they want to. My best guess, just knowing a little about the company, is that they won't show and the OP will get a default.

 

[alchemist]

I've got all the time in the world. I'm more annoyed than anything by the complete lack of respect all parties have given me.


The contract would not have been between me and DHL as I didn't specify shipping through them (IBM's subcontractor Solectron shipped through them). I do have a hard time believing it was shipped uninsured (but thats what they/DHL claims).

I have a feeling that once papers are filed and they see I'm serious there's a good chance at some sort of settlement, but I'll pursue small claims since obviously its not worth lawyer's fees (to me at least).

So basically I can name DHL, local delivery company, or the delivery guy or any combination.

How would I go about getting a subpoena for the name/address of the individual who delivered the package (the police report might have the individual's name mispelled and doesn't have an address).

 

[bdunham7]

Alchemist

I've got all the time in the world. I'm more annoyed than anything by the complete lack of respect all parties have given me.

How would I go about getting a subpoena for the name/address of the individual who delivered the package (the police report might have the individual's name mispelled and doesn't have an address).

Lack of respect where--here or from DHL/et al?

As far as the driver, write a letter to the shipping company. If you have his name close, have the Sheriff serve him at work. That will get his/their attention!!