United Parcel Service of America - Page 90




                                       - 75 -                                         

          While we need not specifically decide whether Federal law                   
          preempts State insurance laws with respect to petitioner's excess           
          value activity, we believe that petitioner was well aware of the            
          preemption position and had good reason to believe that it                  


               33(...continued)                                                       
          value of the lost package, from petitioner.  On appeal,                     
          petitioner advanced the position that                                       
                    Congress clearly intended the Carmack Amendment to                
               preempt all state regulation of claims against common                  
               carriers for interstate ground shipments, and the                      
               Supreme Court has specifically so held * * *                           
               [Appellant's Opening Brief at 14, United Parcel Serv.,                 
               Inc. v. Smith, supra.]                                                 
          The Indiana Court of Appeals concluded that "49 U.S.C. � 10101 et           
          seq., the Interstate Commerce Act, and specifically those                   
          portions known as the Carmack Amendment, preempt all state                  
          regulation of interstate ground shipments."  Id. at 3 (fn. ref.             
          omitted).                                                                   
               In Simmons v. United Parcel Serv., 924 F. Supp. 65 (W.D.               
          Tex., 1996), Mr. James W. Simmons filed suit in the State                   
          District Court of Bexar County, Texas against petitioner                    
          regarding two 1994 excess value shipments.  Mr. Simmons sought to           
          recover $49,000 in damages.  On motion by Mr. Simmons to remand             
          to the State Court, petitioner alleged that the Carmack Amendment           
          completely preempted all State law claims.  The court stated:               
               Under the "complete pre-emption doctrine," once an area                
               of state law has been completely pre-empted, any claim                 
               purportedly based on that pre-empted state law is                      
               considered, from its inception, a federal claim, and                   
               therefore arises under federal law. * * * Both the                     
               Supreme Court and the Fifth Circuit have held that the                 
               Carmack Amendment preempts all state law claims against                
               a common carrier. * * * [Id. at 67 (citing Adams                       
               Express Co. v. Croninger, 226 U.S. 491 (1913); Moffit                  
               v. Bekins Van Lines, Co., 6 F.3d 305 (5th Cir. 1993)).]                
          The court held that the "complete pre-emption" doctrine applied             
          and that removal from State court was proper.  See id.                      




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