Wednesday, September 21, 2011, 9:32 PM

COA Reverses Order Granting Summary Judgment Where Parties Offered Competing Affidavits

Yesterday the Court of Appeals reversed a trial court's order granting summary judgment to defendant UPS, holding that competing affidavits submitted by the parties regarding whether plaintiff actually saw terms of service governing shipping and whether an oral contract was created were sufficient to create a genuine issue of material fact. The case is Marso v. United Parcel Service, Inc.

Marso sold a diamond ring and mailed it to the buyer via UPS. Marso claimed that the UPS Store employee told him that UPS would take cash from the purchaser; would hold on to the ring until Thompson delivered the cash; would collect cash only; that the collection was guaranteed, and that Marso would receive a check from UPS, not from the buyer. Marso paid UPS to ship the ring by COD, and Marso requested requested that UPS collect $12,145.00 for the ring upon delivery of the package to cover the purchase price and shipping costs. The shipment receipt provided to Marso said that the package was shipped “COD=$12,145.00, Guaranteed.”

When the package was delivered to the buyer, UPS collected what appeared to be a cashier's check, but Marso's bank refused to honor it and claimed it was a "bogus check of no value." Marso sued UPS for breach of contract.

The COA described the competing affidavits submitted by Marso and UPS. UPS submitted the affidavit of an employee that stated that each customer who ships packages from the store Marso shipped from had to use a computer program to enter shipping information and in doing so had to agree to the terms of service, which included a disclaimer that “UPS will not accept currency in any amount for payment of C.O.D. shipments,” and that the shipper accepts the risk for nonpayment and insufficient funds. In his affidavit Marso denied that he used a computer at the UPS store, and claimed that an employee entered the information in the computer for him and that he did not assent to the terms of service. Marso claimed that he formed an oral contract with the UPS employee that UPS would ship the ring and guaranteed receipt of a cash payment by the buyer.

The COA held that "the parties presented conflicting evidence in competing affidavits regarding the attendant circumstances of the formation and terms of the agreed-upon contract, including whether plaintiff had either actual or constructive notice that he would be bound by the terms of [service]." This was enough to create a genuine issue of material fact as to whether Marso actually saw the terms of service and whether he entered into an oral contract with the UPS employee.


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