Following a commercial motor vehicle accident, motor carriers are often held responsible for the cleanup, towing, and storage costs. Often, the towing and recovery efforts are “nonconsensual tows”, i.e. the tow is performed at the direction of a law enforcement agency without the consent or authorization of the owner or operator of the vehicle.
The cost of nonconsensual towing and recovery services has recently skyrocketed, largely as a result of a shift in billing practices within the towing industry. The purpose of this article is to provide you with (1) a brief background of the issues motor carriers face with respect to nonconsensual tows leading to excessive bills; (2) some best practices to avoid excessive towing and recovery bills; and (3) information as to how to challenge excessive tow bills and other illegal practices.
Background of the Issues
Maryland law enforcement agencies at both the state and local levels maintain lists of towing companies approved by that law enforcement agency to provide nonconsensual tows within the agency’s jurisdiction. While some local law enforcement agencies in Maryland establish permissible rates for nonconsensual tows, the majority of jurisdictions, including the Maryland State Police (“MSP”), do not have any rate regulation, leaving the towing companies free to set their own rates for non-consensual tows.
Historically, charges for nonconsensual towing have been by the hour based on the type of equipment and the number of individuals needed to perform the services. Recently, in jurisdictions that do not have price regulation, towing companies have developed new formulas where they charge for their services on a per-pound basis based on the weight of the subject vehicle and cargo. The shift to per pound billing has led to outrageous and excessive towing bills for motor carriers.
At Franklin & Prokopik we have seen many examples of this abusive practice with our motor carrier clients. In one example, we saw two separate invoices from the same towing company for nonconsensual towing in which the services provided by the towing company were, for all intents and purposes, identical. The first invoice, dated May 18, 2019, was for a total of $24,559.00 and is based on billing at an hourly rate for the equipment used. The second invoice, dated August 28, 2020, from the same company and for identical services, was for a total of $144,975.00 and is based on a per pound billing rate for the weight of the vehicle and cargo. By switching from hourly to per-pound billing, this particular towing company has managed to increase the cost for its services by almost six times the amount within the period of a little more than a year.
Compounding the emerging issue of excessive invoices, many of these towing companies engage in a pattern of seizing the vehicles and cargo, subject to nonconsensual tows, until the motor carrier pays the exorbitant bills. This tactic is designed to force motor carriers to quickly and quietly pay the excessive invoices to secure a return of their vehicle and cargo. In essence, the towing companies leverage the vehicle owners’ need to obtain a quick return of the vehicle and cargo by holding it hostage unless and until the bills are paid. In many instances, the towing companies are also continuing to charge daily storage fees as additional leverage to secure payment. In most instances, however, the towing companies do not have a legal basis to assert a lien on vehicles or cargo subject to nonconsensual tows. In fact, holding a commercial motor vehicle hostage, unless and until the invoice is paid, violates both Maryland and federal law under most circumstances.
Even in the few Maryland jurisdictions that have regulations governing rates for nonconsensual tows, motor carriers can still receive excessive bills. Usually, a law enforcement agency responding to an accident involving a commercial vehicle does not know what type of equipment is needed for the cleanup, which leads to the towing company responding to the scene with improper or unnecessary equipment or excessive personnel. Responding to the scene with excessive personnel and/or unnecessary equipment leads to an increase in cost even in the absence of per-pound billing, as the charges are typically based on an hourly rate for each particular piece of equipment that responds to the scene and the number of personnel required to respond.
The billing and business practices of companies performing nonconsensual tows are not unique to Maryland. It is a problem facing the trucking industry nationwide. While the issue should be addressed on a large scale, there are actions that motor carriers can take when traveling within or through Maryland.
Best Practices to Avoid Excessive Towing and Recovery Bills
In situations such as these, it is always better to be proactive than reactive. Having a predetermined plan for when one of your drivers is involved in a motor vehicle accident is the best way to avoid getting hit with an excessive towing and recovery bill.
Although law enforcement agencies have a list of “approved” towing companies, they will usually allow a motor carrier to use its own towing company if the company can make it to the scene quickly. As such, motor carriers should select a reputable and trusted towing company that it intends to use to perform towing and recovery services in the event of an accident. Upon notification of an accident, the motor carrier should immediately contact its selected towing company to (1) request that the towing company responds to the scene to perform the towing and recovery services, (2) determine the time it will take for the towing company to arrive at the scene, and (3) have the towing company contact the particular law enforcement agency involved to advise that the company is on the way at the request of the vehicle owner and provide the estimated time of arrival. The motor carrier should also instruct its driver to inform the responding police officers that a towing company has been called and is already on the way. This will also allow you to communicate with the towing company the type of vehicle and cargo involved and the nature of the accident so that the towing company can respond to the scene with the necessary equipment and personnel.
Assuming that your selected towing company can arrive at the scene with the proper equipment within the same time period as the law enforcement agency’s approved towing company, the law enforcement agency will typically allow your selected company to perform the services, which will enable you to know the rates for the services in advance. It is important to note though that, while no authority allows a towing company performing a nonconsensual tow to assert a lien and hold the vehicle pending payment of its invoices, a towing company performing those services at the request of a motor carrier does have a statutory right to assert a lien on the vehicle pending payment of its invoices. Therefore it is incumbent upon motor carriers to obtain information related to the towing company’s rates and billing practices before requesting that the company undertake any towing and recovery services.
Best Practices When Faced with an Excessive Bill for Nonconsensual Tows
As stated above, although some towing companies are attempting to assert liens over vehicles and/or cargo subject to nonconsensual tows, there is no authority by which the towing company can continue to hold a vehicle pending payment of its invoices. To do so, in most instances, violates both Maryland and federal law. When faced with an excessive towing and recovery bill and the towing company is still in possession of the vehicle and/or cargo, a motor carrier should immediately demand the return of the vehicle and/or cargo. This is a critical first step not only because the towing company’s refusal to return the property after a demand for its return is usually a clear violation of applicable law, but also because a towing company cannot continue to assess storage fees after a demand for the return of the property. If a towing company refuses to return the vehicle and/or cargo, a motor carrier should consult with an attorney regarding immediate actions that can be taken to secure the return of the property. It may be necessary to initiate legal proceedings against the towing company to secure the return of the property or to challenge the towing company’s invoices. We have seen recently, however, that many towing companies will fold quickly once our office becomes involved and will immediately release the property and significantly lower their invoices to avoid legal proceedings. You should consult with an attorney familiar with these issues to determine your particular situation’s best course of action.
In addition, it does not appear that the law enforcement agencies are aware of the scope of the issues motor carriers are facing with respect to companies providing nonconsensual towing and recovery services. It is important for us to make law enforcement agencies aware of the issues and their impact on the transportation industry. Many law enforcement agencies have procedures for communicating and investigating complaints against their approved towing companies. Law enforcement agencies also have disciplinary procedures, which can lead to the removal of a towing company from the agency’s list of approved towing companies, should the agency determine that the towing company is acting improperly. For example, the MSP has a process in place in which a motor carrier can fill out a complaint form notifying the MSP of issues with a towing company on the MSP’s towing list, which will result in an investigation by the MSP and could lead to that company’s removal from the MSP list. If you have experienced issues with a towing company performing nonconsensual tows at the direction of the MSP, you should fill out an MSP complaint form so that MSP can conduct an investigation and appropriate action can be taken. If you have experienced similar issues with a towing company performing non-consensual tows, you should contact that particular jurisdiction to determine its complaint process and follow the procedures specific to that jurisdiction.
If you have had any recent experiences related to excessive towing and recovery invoices and/or a towing company holding vehicles or cargo that were the subject of nonconsensual tows until payment of its invoices was made, or have had any recent experiences involving other similar issues related to nonconsensual tows and you are willing to provide a copy of the invoice(s) or discuss the issues in more detail, please reach out to Renee Bowen, Esq. (410-230-3943 or firstname.lastname@example.org). Please also reach out to Renee Bowen, Esq. if you have any questions regarding this article or if you need assistance with issues surrounding non-consensual tows.