2013 QCCQ 1438, 2013 QCCQ 1438

Adams c. 9189-1911 Québec inc. (UPS Store) 2013 QCCQ 1438 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-123340-103 DATE: FEBRUARY 22, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID L.

CAMERON, J.C.Q. ______________________________________________________________________ Jane Adams […], Montréal, Qc, […] v. 9189-1911 Québec Inc, doing business under the name UPS Store 1055 rue Lucien-L'Allier, Montréal, Qc, H3G 3C4 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Jane Adams, claims $ 4,528.22 alleging damages to two paintings she gave to the Defendant, 9189-1911 Québec Inc. (UPS Store) to be shipped to addresses in the United States on May 25, 2009. [ 2 ] She alleges that two paintings arrived, one in Florida, the other in Virginia, in a damaged state.

In addition to the material damages caused to the paintings she alleges damages for trouble and inconvenience over the six months in which she tried to obtain a settlement of the matter. [ 3 ] UPS Store contests alleging that it has no proof of the damage that occurred and that the claim was rejected by the transporter of the paintings remitted, a different UPS company. [ 4 ] UPS Store also challenges the quantum claimed asserting that the paintings have no more value than that mentioned in the Parcel Shipping Order: $ 300 for the consignment to Virginia and $ 400 for the paintings shipped to Jacksonville in Florida.

Issues [ 5 ] The Court must determine: 1. Is the Plaintiff entitled to reparation for damages for the two paintings? 2. What is the value of these damages? 3. Should the Plaintiff be awarded additional damages? Facts [ 6 ] UPS Store is not a transport company. It is a franchise corporation using the trademark "UPS Store". [ 7 ] UPS Stores are not owed by the UPS Company, which is a separate entity. [ 8 ] The Plaintiff brought two paintings to the UPS Store at its Lucien L'Allier location entrusting a person in attendance with the responsibility of packing them.

She signed a Parcel Shipping Order for each of the two shipments (P-2, P-3). One of them, destined for Jacksonville, Florida, contained one thirty-five by forty-five inch painting.

Under the total unit value, the amount "$ 400" appears and below that in response to the question ."what is the total value of Shipment Protection purchased for the parcel" is also written "$ 400". [ 9 ] Under the calculation of charges, $ 16 was charged for "Shipment Protection Charges (UPS Shipments Only)". [ 10 ] One also reads "Packing Materials $ 39.99". [ 11 ] The Parcel Shipping Order for the consignment to Virginia is similar except there are three art works for a value $ 100 each

totalling $ 300, a charge for "Shipment Protection Charges" of $ 12 and a charge of $ 13 for "Packing Materials". [ 12 ] The Plaintiff asserts in her testimony that the value of the works, of which she is the artist, are much greater than the numbers placed on the Parcel Shipping Orders. [ 13 ] She had a strong degree of confidence that no damage would occur to the items when she remitted them to the UPS Store and declared a limited amount for insurance purposes in order to save money. [ 14 ] Photographic evidence shows that the thirty-five by forty-five inch painting sent to Jacksonville, Florida suffered damage in the form of cuts to the surface of the painted paper because of broken glass. [ 15 ] There is also damage to the frame.

This is a total loss. [ 16 ] The three works sent to Virginia recovered by a nephew who had to replace some broken glass but not the paintings, which were intact. [ 17 ] The claim was made by the recipients and followed up by the Plaintiff at UPS Store. [ 18 ] With respect to the shipment to Virginia, UPS refuses the claim. UPS' document (P-2) addressed by UPS to UPS Store 344 reads: The contents contained in the package described above were damaged. We regret any inconvenience this may have caused you or your consignee. The complete contents have been kept by the consignee.

UPS is unable to pay a claim for the damaged items. In addition, our initial investigation has not revealed that additional protection was purchased for this package. If you purchased additional protection for this package and wish to request information on filing a claim, please call (800) 742-5877. [ 19 ] The document for the shipment to Florida issued by UPS (P-3) is the same, except that one reads "the complete contents have been returned to you", i.e. "to the UPS Store on Lucien L'Allier".

There is also the following: We have determined insufficient packaging was used for this shipment. • The single wall box was not sufficient to support the product's weight. • The merchandise was not sufficiently cushioned. [ 20 ] It is because the damaged shipment was returned to the UPS Store that the Plaintiff was able to photograph and provide the evidence of damage to the Court. [ 21 ] It is interesting to note that the UPS Company treats the USP Stores as the shipper, not the Plaintiff who remitted items to be shipped to the UPS Store.

Analysis [ 22 ] The contract between a consumer and the UPS Store, a merchant, is governed by the Consumer Protection Act [1] [ 23 ] The Parcel Shipping Order contains the place where in consumer can chose insurance for the value he wishes to declare, but this is in no way a limitation of liability of UPS Store under its contract.

The stipulation provides additional coverage that will permit the consumer to seek compensation on the basis of insurance but as far as she is concerned, the Plaintiff contracted with UPS Store who took the paintings from her, packed them using materials for which she was charged and undertook to have delivered to the person mentioned in the Parcel Shipping Order. [ 24 ] The only limitation that the Parcel Shipping Order contains is written in minuscule script at the bottom of the contract.

The copy that the Court was provided with was eligible. [ 25 ] The first part of the text talks about the fact that UPS Store locations in Canada are independently owed and operated by licensed franchisees of a certain company but its paragraph reads: Claims for guaranteed service refunds offered by the carrier not made in writing 10 days after the parcel was shipped are waived.

Claims for loss and damage not made in writing within 10 days after the parcel was shipped are hereby waived. [ 26 ] There is nothing in the Parcel Shipping Order nor in the facts of the case to suggest that the obligation assumed by the UPS Store is not an obligation of result. [ 27 ] However the damages occurred, whether because of improper packing or a mishap occurring in a transit, UPS failed in this obligation to complete the delivery in a normal manner. It is therefore liable to the Plaintiff for the loss. [ 28 ] The Plaintiff's claim quantifies the losses (P-5) as follows: Value of 2 paintings $ 2,500.00

Framing $ 500.00 Legal fees $ 121.10 Shipping fees $ 231.87 $ 175.25 6 months of calls, e-mails, faxes & Stores visits $ 1,000.00 TOTAL $ 4,528.22 [ 29 ] During the trial, however she asserted that one painting was damaged along with its frame. [ 30 ] It is not possible to establish the value of this painting scientifically because there is not a regular market for Jane Adams' works. Ms Adams provided some examples of sales of her art work in 2004. One work apparently sold for $ 3,000 another for $ 1,500.

Also in November 2004 it appears that she sold one painting for $ 2,500 and another for $ 300. [ 31 ] She does not earn her living by painting, which has been a part-time occupation. She testifies that she had a show in 2002 where she sold approximately 20 paintings between $ 300 and $ 2,500. [ 32 ] She says she has approximately 15 paintings in her inventory but the last sales took place in 2004.

The paintings shipped were gifts to a friend and to her nephew. [ 33 ] The Court arbitrates the claim at $ 1,000 for the damaged thirty-five by forty-five inch work shipped to Florida and $ 100 for replacement of glass including time and effort to repair damage to the shipment to Virginia. [ 34 ] The Plaintiff was entitled to a prompt resolution of this matter with UPS Store, who, a trial complained that it did not see the damage. Essentially UPS Store is passing the buck to the transport company, essentially hiding behind the corporate denial of the other entity operating under a similar name.

The Plaintiff was put to unecessary inconvenience for which the Court will impose moral damages of $ 250. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay to the Plaintiff the sum of $ 1,350, with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceeding. CONDEMNS the Defendants to pay to the Plaintiff judicial fees of $ 129. __________________________________ David L. Cameron, J.C.Q. Date of hearing: December 11, 2012