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When It Absolutely, Positively Has to Be Left on Your Front Step

Did Fed Ex cost a small-business owner a small fortune?



For three years Noel Ashby put her livelihood in the hands of the Federal Express Corporation. The Wicker Park textile designer made a nice living creating abstract and representational patterns out of gouache and odd bits of found materials like fabric, colored paper, wire, and metal washers. After mounting them on bristol board, she sold them for $900 to $1,000 apiece to furniture and fabric manufacturers like Steelcase, F. Schumacher & Co., and Donghia, who would in turn use her designs for upholstery, curtains, wallpaper, and bedspreads. Julia Roberts even insulted one of her neckties in Erin Brockovich.

Ashby flew to New York regularly to show clients her latest designs. But because her portfolio case was too large to fit in most overhead compartments, she would ship it via FedEx to the first client she was scheduled to meet, relying on the courier's vaunted claim to "absolutely, positively" get it there overnight. After her last appointment she'd FedEx it back home. Though she was often shipping close to $50,000 worth of her work, she never bothered to insure the packages, she says, because a FedEx operator once told her the company wouldn't cover more than a $500 loss for artwork. Seeing no alternative, Ashby took peace of mind from the fact that she never put her name on the line on the air bill that would allow a driver to leave the package without a signature. Since she was always shipping from herself to herself, she assumed her portfolio would only leave a FedEx worker's hands for her own. She'd done it so many times she even traded waves with her regular FedEx driver when they'd pass each other on the street.

On Friday, November 10, 2000, the last day of a trip during which she'd sold four or five pieces, Ashby sent her remaining 42 designs home via FedEx's second-day air. She planned to volunteer at her local dog shelter the following Monday; with the slower service her package would arrive Tuesday, when she'd be home to sign for it.

But by late Tuesday afternoon the portfolio hadn't arrived, and Ashby was worried. "So finally I called FedEx and I'm like, 'My package hasn't come yet.' And they go, 'Yes it has.' And I said, 'No, I've been here all day.'" The operator said the computer record showed that the package had been delivered and signed for the previous day. Ashby demanded to speak with a manager, saying she'd never signed for it. The manager said his records showed that the signature release had been signed by an "Ashby" or "A. Shby."

The manager told Ashby she'd have to wait until the following day to find out what happened. She insisted that he contact the driver immediately. Later he called back to say that he had the driver's number, but that her line was busy. "I told him that he needed to keep trying," says Ashby.

Then living on the first floor of a four-flat on Hemitage, Ashby began searching the alleys in her neighborhood and eventually found her packing box discarded in a Dumpster half a block from her house. The designs and portfolio case were nowhere to be found. She continued her search the following morning, posting reward signs but finding nothing--and hearing nothing back from FedEx. "I called again, and they're like, 'Oh, I didn't know anything about this.' So I go through my whole story."

Eventually the driver who delivered the package was put on the line--the same one she regularly waved to. According to a complaint Ashby later filed with Circuit Court of Cook County, Edwina T. Bryant admitted that she'd forged the artist's signature and left the package at her door--three feet from the sidewalk. Ashby said Bryant explained that since Ashby was "usually around" she thought she was "doing [her] a favor." Another manager took the phone and told Ashby that someone would get back to her.

Later that day, Ashby says, Bryant appeared at her door to apologize and told her not to worry "because FedEx was good about taking care of these matters."

But Ashby couldn't help worrying. "I was about to make my local appointments for November," she says. "But I just lost every shred of business without that portfolio. I couldn't sell out of it, and I couldn't generate new business."

She continued to call FedEx and repeat her story to different people, receiving promises of return calls that never came. The one call she did receive came from a customer service representative who asked her if she needed mailing supplies. "She's like, 'How's FedEx going for you?' Nobody at all did any kind of damage control, really."

She was finally instructed to put her complaint in writing and send it to the company's claims department, where it would be dealt with within four to six weeks. She asked to be compensated $38,700--a conservative estimate of her work's worth, she says. She sent a copy to Federal Express CEO David Bronczek for good measure.

That didn't stop FedEx from sending her a bill for $45.12 for delivery on the missing package. To compound the insult, the invoice stated that FedEx had a signature release on file, indicating they were authorized to leave the package. This was news to Ashby. She began another round of phone calls, demanding to see a copy of the signature release. Eventually, Ashby says, a manager admitted to her that no such document existed.

A little over a week later she received an overnight letter from FedEx containing an apology for "any inconvenience," the assurance that Ashby was a "valued customer," and a check for $100. The letter explained that in cases of "loss, damage, delay, misdelivery, nondelivery, or misinformation" FedEx limits its liability to $100 unless the shipper declares a higher value. And it says so in the fine print on the air bill. And since Ashby never declared a value for her package at all, FedEx hoped she "would understand our position in this matter."

Ashby admits she never read the fine print but always operated under the information given to her by the FedEx operator who told her about the $500 limit for artwork. In fact FedEx's on-line service guide also states that it doesn't sell insurance.

A FedEx operator told me that shipping artwork at the maximum allowable declared value of $500 costs an additional $2.50. And though FedEx repeatedly states that it doesn't sell insurance, she was able to transfer my call directly to an operator for the Transglobal Insurance Corporation. He said his company sells cargo insurance for FedEx deliveries at the cost of one percent of the declared value.

That means it would have cost Ashby $500 to insure her portfolio for $50,000. But, she repeats, the original operator never told her she had this option.

Ashby thought it would be simple to make FedEx pay up in court. But the lawyers she talked to said it would cost more money than she had to take on a monster like FedEx. Her income made her ineligible for free legal aid services. Her only option was to sue the company herself.

"FedEx was so rude, and I felt they were very casual about the whole situation," she says. "I was told often going into this that the chances of FedEx's defeat were almost zero. I was told that they had a full-time lawyer who traveled around basically doing damage control. I did it anyway. I just knew I'd be angry every time I saw a FedEx truck go by. I couldn't live like that. It infuriated me that they could walk away from this without a worry. So I filed the paperwork and began this whole thing."

She filed her complaint against the corporation in March 2001, asking for $38,700 in damages. "I'm not a suey person," she says. "I wanted to be fair. I didn't even try to sue for the price of the $66 portfolio."

For months she struggled in the unfamiliar territory of civil procedure. FedEx threw stacks of documents at her, including demands for discovery and preliminary arguments. "It just took a ton of energy," she says. "I would spend days typing interrogatories." Ashby filed her own motions for discovery, seeking to depose Bryant and obtain her disciplinary records. But the judge turned her down, because Bryant was not named in the lawsuit.

In November Ashby explained her dilemma to Lewis Check, a lawyer she met through a mutual acquaintance. Check, who used to work for a legal aid clinic, helped Ashby research case law. There are plenty of cases against FedEx and other couriers for lost or damaged packages, and in most cases the couriers usually come out on top, because they're protected by a sweeping federal law called the Airline Deregulation Act of 1978. One aspect of the ADA is that it allows airlines to determine the terms of their own contracts with customers and to limit their liability. But because of Bryant's alleged admission, Check thought Ashby had a strong case.

Last December Check took her case on contingency. He saw a way around FedEx's claim that it was only liable for $100. If he could prove that the company and Bryant profited by the loss of Ashby's designs--a legal concept called "conversion"--he might have them. Check certainly couldn't prove that FedEx executives had Ashby's artwork hanging in their offices--and he didn't think he had to. What if the company has a policy that allows its drivers to leave shipments without authorization? That policy, says Check, would be a breach of contract that would save mileage, labor, and maintenance costs--a kind of conversion. He filed an amended complaint against FedEx, this time naming Bryant as a codefendant and upping the damages to $42,000--$1,000 for each lost design.

Judge Ronald Bartkowicz wasn't buying it. Last April he granted FedEx's motion for partial summary judgment, agreeing that they weren't liable for more than $100. He said Ashby wasn't misled about the company's liability for lost goods but rather misunderstood it. He also wrote that the fact that Bryant left Ashby's package "does not amount to 'intentional destruction of property in the nature of theft.'"

So FedEx was off the hook. But Edwina Bryant wasn't. And even though the company now admits in court documents that Ashby never authorized delivery without her signature, its lawyers are representing Bryant in court. Those lawyers declined to comment for this story, but in court documents Bryant denies Ashby's allegations that they ever spoke on the phone or in person after the portfolio turned up missing. She admits she left the portfolio at the door, but "the delivery scan code indicated a release signature on file."

In July, FedEx senior attorney Robert Ross offered Ashby $5,000 to settle the case. See you in court, said Ashby. Now the case is in the discovery phase. Check hopes to depose Bryant in November. He hopes to go to trial sometime around the new year.

"I saw this as a very important consumer case because of the position that Federal Express was taking," says Check. "And the fact that people send packages all the time. The idea is it's gonna get there, and if it didn't you would expect Federal Express to pony up. Its not a question of 'we don't even know what happened to it' or 'our driver got held up.' It's their own employee who intentionally disregarded their client's instructions and did what the heck she wanted with it."

Ashby has since rebuilt her portfolio and is back in business. But now when she travels, she only books flights on planes whose overheard compartments can hold her work. She usually flies ATA.

She says she's learned a hard lesson. "I just don't think people would ship as freely with them if they knew that their drivers can just decide to do something against the contract. They go on and on about how they help further small business and they've got these great employees. They just ruined mine."

Art accompanying story in printed newspaper (not available in this archive): photo/Jon Randolph.

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