Owner-Operator Ysabel Luna last June was hauling a load of garage door panels when he rounded a West Virginia curve, and the passenger side tires of his trailer slipped into a ditch. "It went into a small, minor little hole, but it was deep enough to where my tractor couldn’t pull out because it was a sharp curve going up," he said.
What followed was every trucker's nightmare.
When one wrecker couldn't do the job, two more pieces of equipment from different wrecking companies were called to the scene. Luna didn't ask for any of them - the 911 responders did - and instead of doing what Luna requested they pulled and tugged on the trailer until it buckled, damaging his load as well as the trailer.
What did Luna ask for? "All I wanted was another bobtail to pull me out. That's all that was needed. He said that when he told the wrecker people not to lift the trailer they said: “Oh don’t worry about it. This isn’t going to cost you anything; we’re going hit your insurance company…' When you're out there, you're at their mercy, and they don’t want to listen to anything you have to say, because truckers are supposed to be the ignorant ones."
It gets worse.
Flatbeds were called in to unload Luna's freight – he doesn't know what eventually happened to it – and the primary wrecking company ordered him to drive his tractor to their yard 30 miles away where they kept it locked inside a fence for five days until they received a $30,000 check from his insurance company.
During those five days, Luna had to pay for a hotel room, meals and other expenses and ended up paying an $1,800 insurance deductable to his broker for the freight, plus other costs not covered by insurance. "I think we were out about $15,000.00 [including a new trailer and a $5,000 deposit for a new insurance policy]. It's out of my pocket. They literally put me out of service just because this [two truck] guy didn’t listen to me when I told them: 'If you pull me out the same way I went in, I can get out of here.'”
He adds: "I've been driving for ten years, and by the grace of God I'm still driving. I've never faulted on a loan until that day."
But there is one bright spot to Luna's story.
The Owner-Operator Independent Drivers Association, which has been active in protecting drivers from unfair towing practices, especially non-consensual towing situations, took Luna's case before the Public Service Commission of West Virginia. The Commission ruled that the wrecker company that held Luna's tractor, Anthony's Truck Repair, Ltd. Co., (ATR) engaged in third-party towing and should refund $10,067 to him and OOIDA, Luna's insurance carrier. Their decision stated: "Mr. Luna, who was quite credible on the witness stand, testified that he did not request ATR. Indeed, he was attempting to find a resolution to his problem that did not involve the use of a wrecker service. Mr. Luna’s testimony is corroborated by two bills issued by ATR which list 'Summers 911' call center as the source of the tow." The Commission also noted that the owner of ATR was a paid firefighter, friend and co-worker of the first firefighter to arrive on the scene who directed traffic. The ATR owner was not on the scene, but received updates on the situation, including photos and issued instructions to the towing crew. The Commission added, "The VFD [Green Sulphur District Volunteer Fire Department] did all the traffic control despite the fact that ATR’s invoice contains a charge of $1,080 for traffic control/flaggers."
Mike Matousek, OOIDA's Director of State Legislative Affairs said there is no room for drivers to negotiate a non-consensual tow, and they can end up paying tens of thousands of dollars for service.
Although towing shenanigans are not new it may have gotten worse in 1994 when Congress inadvertently pre-empted the right of states and local governments to regulate the towing industry as part of a larger bill. Apparently, either no one noticed this provision or some stakeholders were silent about its omission. This was remedied with the FAST Act's [Fixing America’s Surface Transportation Act] signing by President Obama in December. Each state now has the ability to set towing regulations.
However, some state regulators may be unaware of the new provision.
Matousek's office has sent letters to all 50 governors notifying them of the new law and their ability to set towing rules. So far, several states have responded. "On a day-to-day basis, there are some states where it's much worse than others. There is no consistency with how states regulate this. The only thing consistent about how states regulate towing is that there is no consistency." OOIDA has interceded on the behalf of some truckers who have received outlandish towing bills. "It isn't OOIDA versus the towing industry. They need to make a buck just like our members need to make a buck. That's not the issue. We're filing complaints against the most egregious invoices that we see. Generally, they're inflated by what we believe are tens of thousands of dollars."
In many cases, the deck is stacked in favor of the towing company, says Matousek. "Let's say the tow company tows a truck and trailer, and they send a $20,000 tow bill to the carrier. If the carrier can't pay it, then they go to insurance company. If they say, 'You don't have coverage for that much,' and you can't pay your bill, then you never get your truck out. Tow companies have a possessory lien on your equipment. If you're a big carrier, it may be a different issue, [large carriers may have the ability to negotiate tow charges, use their own approved towers or fight charges they deem unfair] but for smaller carriers it's definitely a problem. Even if you're an employee driver, and you're not responsible for the towing costs, what happens if your carrier doesn't have another truck to put you in? Are you getting paid? No. If you're not driving, you're not getting paid. That's the impact on employee drivers, too."
The experience has left Luna somewhat bitter and wary of first responders. Referring to the relationship between the 911 call center and the tow company owner, he said: "This was a new experience for me. Drivers need to really be careful when they start dealing with people, because they [first responders] are going to send who they know and you never know if they’re honest. Their goal is going to be out to get us."
