AME, INC. v. Consolidated Freightways

783 P.2d 499 (1989)

AME, INCORPORATED, Appellee,
v.
CONSOLIDATED FREIGHTWAYS, Appellant.

No. 70923.

Court of Appeals of Oklahoma, Division No. 4.

September 5, 1989. Rehearing Denied October 23, 1989.

Jeffrey A. Fleischhauer, Ross & Associates, Broken Arrow, for appellee.

Martin E. Wyatt, Tulsa, for appellant.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 4.

REIF, Judge.

Interstate carrier, Consolidated Freightways, appeals the award of attorney fees to the shipper, AME, Incorporated, following a non-jury trial and judgment in favor of AME. Carrier points out that this action was pursuant to 49 U.S.C. § 11707 (1982), governing a carrier's liability for goods damaged during an interstate shipment, and stresses that this federal statute is silent concerning recovery of attorney fees. Carrier contends that section 11707 preempts state law on all issues of a carrier's liability and argues the trial court erred in applying 12 Ohio St. 1981 § 940, authorizing reasonable attorney fees in "any civil action to recover damages for negligent or willful injury to property."

The trial court followed the majority rule set forth in Troute v. Aero Mayflower Transit Co., 78 Or. App. 564, 718 P.2d 745 (1986), that section 11707 does not preempt or preclude an award of attorney fees under appropriate state statutes. We agree that Troute correctly analyzes and resolves this issue and hold that attorney fees are properly awarded pursuant to 12 Ohio St. 1981 § 940, in suits under 49 U.S.C. § 11707 (1982), for goods damaged in the course of an interstate shipment.

Given the stipulation that the services and charges of AME's counsel were "reasonable," we also find no error in the amount of the award, $6,881.25, simply because it exceeds the amount of the judgment, $5,123.02.

AFFIRMED.

BRIGHTMIRE, V.C.J., and STUBBLEFIELD, J., concur.