Champlain Valley RV Rentals, LLC v. Collision Unlimited, Inc., No. S1035-10 CnC (Toor, J., Feb. 23, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                 │
CHAMPLAIN VALLEY RV RENTALS, LLC │
 Plaintiff                       │
                                 │
 v.                              │                                              Docket No. S1035-10 CnC
                                 │
COLLISION UNLIMITED, INC.,       │
d/b/a MANY'S AUTOBODY, d/b/a     │
CENTRAL SERVICE TOWING           │
 Defendant                       │
                                 │


                 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

           This case began as a replevin action seeking return of a pickup truck and trailer

from defendant’s custody. Defendant (“Central”) filed a counterclaim for payment for

towing and recovery services. After the posting of a bond, the vehicles were released to

Plaintiff (“Champlain”). The counterclaim was tried to the court on February 10, 2011.

                                                        Findings of Fact

           The court finds the following facts established by a preponderance of the

evidence. Plaintiff’s truck and trailer were involved in some sort of accident on Bolton

Flats on July 10, 2010. As a result, the vehicles were damaged and scattered, along with

their contents, which included an RV that was on the trailer, across the interstate and

median. Defendant, Central Service Towing (“Central”) was called by the Vermont State

Police to remove the debris from the road. It was creating a hazard to other drivers. It is

standard practice for the police to call towing services, and they use a rotating list. The

police advised Central that they had a truck towing a trailer in the median and it needed a

“pull-back,” meaning it needed to be pulled back onto the road.
        Central’s manager, Craig Jennings, received the call around 2:30 a.m. and

dispatched the on-call driver to the site. Jennings then went to the shop to get a medium

duty wrecker – a heavier duty tow-truck than what the on-call driver had – to assist, as a

truck and a trailer together would likely require that. While on his way to the scene,

Jennings was told by phone by the on-call driver, who had already arrived at the scene,

that they would need all of Central’s trucks and more, given the situation he found there.

Jennings thus called in Central’s two other trucks.

        When Jennings arrived at the scene, he found a trailer upside down with its

wheels up, and a truck that had jackknifed up on top of the trailer. The RV camper that

had been towed on the trailer was in pieces. Its frame was under the truck on the trailer,

but its walls and roof were in the median. Everything from inside the camper – furniture,

appliances, etc. – was scattered across the median. There was debris everywhere.

Jennings had never in eleven years in the business seen a wreck of this magnitude. Parts

of the vehicles were still in the traveled portion of the road. The photos in evidence were

taken halfway through the cleanup, and do not fully reflect what the original scene looked

like.

        When Jennings saw the mess, he called Rick’s Towing, another company with

whom Central has an agreement for assistance. Rick’s sent another tow truck to assist.

All in all, there were six people working at the site: four employees of Central, one “sub”

borrowed from another company and one employee of Rick’s.

        The cleanup job took eight hours, from 3:00 a.m. to 11:00 a.m., with all six

people (five men and one woman) working. It involved four flatbeds (three of Central’s

and one of Rick’s), a fifteen-ton medium duty wrecker, and a service truck with cleanup




                                             2
equipment. They had to clean up the site and truck the materials to Central’s lot in

Williston, taking trips back and forth to do so. They then had to sweep the road clean.

       The debris removed from the site was dumped on the ground initially. It was then

transferred with a skid steer and an excavator into two thirty-yard dumpsters rented from

Gauthier’s. The truck and trailer were stored in a secure impound lot. The business was

closed until the next day because all the employees were exhausted from working

through the night and could not safely be put back on the road.

        Jennings and Central’s owner did not dispose of the debris in the dumpsters until

they were authorized to do so by Champlain, because they do not believe they have the

right to dispose of anyone’s property without their consent. They were authorized to

dispose of the debris by a representative of Peerless Insurance, Champlain’s insurer,

within a few days of the accident – apparently July 14, although the record was somewhat

unclear about the exact date. They were also asked to release the truck, but declined to so

without payment in advance. That is their normal practice.

        Central billed Champlain $250 an hour per person for the cleanup, for a total of

$12,000. They came to that figure based upon the actual cost of the five Central workers,

about $20 per hour each, plus what they calculated to be the cost of running the vehicles,

plus overhead, plus the cost to Central of paying Rick’s Towing for assistance. None of

the details of the vehicle operating costs were offered in court. Rick’s Towing actually

charged Central only $150 an hour for their services, for a total of $1200, plus $300 for

the use of their skid steer to fill the dumpsters.

        Central also billed Champlain $1,200 for renting the dumpsters (although they

only paid Gauthiers $894), storage costs at the rate of $50 a day each for the truck and the




                                               3
camper for eighty days, and storage costs of $50 per dumpster for six days. These are

Central’s normal storage fees.

        When Central responds to police calls like this, it gets paid only about 75% of the

time. When a vehicle is not claimed, Central seeks state approval to designate it an

abandoned vehicle and then crush it. Central receives about $100 to $200 for such scrap

cars.

        Central called an expert witness form Anytime Towing, Matthew Norton. He doe

similar emergency response work in response to police calls and other calls. He has also

had training in “towing and recovery billing.” He testified that the $250 an hour rate used

by Central is a very reasonable rate, and might even be low for a medium duty truck as

opposed to a light duty truck. He also testified that $50 per unit per day for storage is in

the middle of the price range for this area. He also agreed that it is improper to throw

materials away until authorized to do so, with the exception of things that smell terrible

(presumably, things like rotting food). His company also does not release anything from

impound until they are paid.

        Champlain called an expert witness from North Carolina, Robert Watson. He is a

consultant regarding truck accidents, RV accidents, towing and recovery. He owned a

towing business in California for twenty-five years, and cleaned up hundreds of accidents

like this one. In his opinion, the cleanup rate should be $150 per hour. He based this on a

$3 per mile charge, which is what he understands some other towers charge in this area.

However, he agreed that different towers charge in different ways, including by the mile

or by the hour. He also agreed that different rates are appropriate for different equipment.




                                             4
         Watson also testified that he found the time this cleanup took to be unreasonable.

He felt it should have been done by four men in four hours, not six men in eight hours.

He also felt that the debris in the dumpsters should have been disposed of at the dump

immediately rather than saved and stored. He thus calculated a total bill of $4,781, based

upon $2,400 for four men for four hours, $1,500 to pay Rick’s bill, and $884 for the

Gauthiers bill. It is unclear why he felt it fair to pay for the dumpster rental if he did not

think the dumpsters were necessary, or for Rick’s Towing if he thought four people could

have done the job.

                                           Conclusions of Law

                                I. The Towing and Recovery Charges

         Both parties agree that they have found no statute in Vermont addressing the

rights or obligations of towing companies called by police to clear public highways after

an accident. However, Champlain does not dispute that Central has a right to be paid for

its towing and cleanup work under a theory of unjust enrichment.1 It only disputes what is

a fair amount.

         Unjust enrichment is an equitable doctrine. In evaluating such claims, courts are

to consider “whether, in light of the totality of circumstances, it is against equity and

good conscience to allow defendant to retain what is sought to be recovered. This

involves a realistic determination based on a broad view of the human setting involved,

rather than a limited inquiry confined to an isolated transaction.” Savage v. Walker, 2009

VT 8, ¶ 8, 185 Vt. 603 (internal quotations omitted).



1
 The court agrees. As another court has said, “[t]here is little doubt that defendant at bar rendered a service
with respect to the truck [and trailer] in keeping [them] safely” immediately after the accident. Lewis v.
Smith, 2 Pa. D. & C.3d 183, 187 (Pa. Com. Pl. 1976).


                                                      5
       The court concludes that given the nature of the accident, the cleanup work done

and the time it took was reasonable. Although based on Mr. Watson’s testimony the court

gathers that large crashes and messy accident scenes like this are frequent in California,

the evidence was that they are rare here. Given the number of cars on the roads in the two

states, not to mention the variance in the miles of roads in the two states, the court does

not find that surprising. It is, therefore, reasonable that towing companies with less

experience in such cleanups would take longer. It may well be that Watson also had

heavier-duty equipment at his disposal when he was doing this sort of work. Most

importantly, the only parties who actually saw the scene at 3:00 a.m. were Central’s

employees and Ricks’ employee. The photos were taken halfway through the cleanup,

and do not fully reflect what the original scene looked like.

       The court found Jennings to be a credible witness, and accepts his testimony that

his crew worked as fast as they could at the scene. Moreover, given the fact that 25% of

the time Central does not get paid for police calls like this, they would have no motive to

work slowly to rack up a higher charge. In sum, the court finds the $250 per hour rate and

the time spent to be reasonable. The court also finds it reasonable that Central charged

more per hour than Rick’s, even for Rick’s man and vehicle. Central bore the

responsibility for managing and completing the project, and was entitled to make a profit

on the work.

                                    II. The Storage Fees

       The court finds the $50 per hour storage rate is reasonable, based upon the

testimony of Central’s expert witness, who was testifying from his personal knowledge

about going rates in Vermont. However, the court does not find it reasonable that Central




                                             6
charged Champlain $1,200 for the rental of two dumpsters when it only paid $894 to rent

them. Thus, the court will reduce the charge for the dumpster rentals to $894.

       The remaining question is whether or not Central had a right to hold the vehicles

after their return was demanded on July 14, and thus are entitled to the storage fees for

the balance of July, August and September. Champlain argued at the hearing that Central

had no right to retain the vehicles until it was paid, and that therefore the storage costs

after the request to release the vehicles are invalid. Central has offered no legal basis for

such a lien other than “this is the way it’s done.”

       “The right of a garageman to a lien for towing and storage charges has been the

subject of considerable litigation[.]” Lien for Towing or Storage, Ordered by Public

Officer, of Motor Vehicle, 85 A.L.R. 3d 199, § 2a (1978). Some states have clear statutes

creating a lien on such vehicles for the towing and storage charges. See, e.g., McKinney’s

Consolidated Laws of New York, Lien Law, § 184; Mass. General Laws 159B § 6B,

Towing Away and Storage of Motor Vehicles.

       There appears to be no Vermont statute directly on point. The police are expressly

permitted to have stopped vehicles removed from the road. 23 V.S.A. § 1102. However,

there appears to be no statute addressing the rights of the car owner and the towing

company. The question, then, is whether a common law lien exists that entitles the latter

to hold the vehicle until paid.

       The Legislature certainly knows how to create a possessory lien for services, as it

has done so in other instances. See, e.g., 9 V.S.A. § 3904 (possessory lien for self-storage

facility fees); 23 V.S.A. § 1213a(f) (in cases where police immobilize a car in connection

with a sentence for drunken driving, “[a]ll costs of towing and impoundment shall be




                                              7
paid by the defendant before the vehicle is released to its owner”); 23 V.S.A. § 1753

(municipalities may enact towing ordinances for illegal parking, and “[t]he owner of the

motor vehicle may be required to pay reasonable towing and storage charges, as

determined by the legislative body of the municipality, for which a lien may be imposed

against the motor vehicle”). The fact that it has done so in other contexts suggests that no

common law lien was presumed to exist, thus necessitating the statutory provisions.

Likewise, the lack of a statutory provision here suggests that there is no right to hold

towed vehicles removed from the highway at police request until payment has been

made.

        “A common-law lien is the right of one person to retain in his or her possession

property that belongs to another until certain demands of the person in possession are

satisfied or the right to retain possession of certain property until a debt or claim secured

by that property is satisfied.” 51 Am. Jur. 2d, Liens § 25. For example, “[a] common-law

lien exists in favor of the operator of a motor vehicle repair shop or service station for

labor and materials or parts supplied or used in repairing a motor vehicle.” Id. § 105.

“Common-law possessory liens are fundamentally consensual in nature and can be

created only by agreement, by some fixed rule of law, or by usage of trade or commerce.”

Id. § 27.

        At first blush it would appear that the practice of towing companies meets the

requirement of “usage of trade or commerce.” However, the court has found no Vermont

case law suggesting that such a lien has existed historically. Nor does the case law from

elsewhere support such a conclusion. “At common law, a garageman acquired no lien for

towing or storage of a vehicle.” Capson v. Superior Court of Ariz., in and for Maricopa




                                             8
County, 677 P. 2d 276, 278 (Ariz. 1984); Candler v. Ash, 372 N. E. 2d 617, 619 (Ohio

App. 1976); United Tire and Inv. Co. v. Maxwell, 215 P. 2d 541, 542 (Okl. 1950); Kunde

v. Biddle, 353 N.E.2d 410, 413 (Ill. App. 1976); 51 Am. Jur. 2d, Liens § 107 (towing

charges do not come within the scope of the common law lien for auto repairs). See also

State Farm Mut. Auto. Ins. Co. v. Jim Bowe & Sons, Inc., 539 A.2d 391, 394

(Pa.Super.1988)(“possessory liens are consensual in nature and must arise from an

agreement, either express or implied, between the owner of goods and the bailee who

provides some service with regard to the goods.”). Thus, “[a]s a general rule, the operator

of a garage is not entitled to a lien for charges for storage of a motor vehicle pursuant to

the order of a public officer, without the owner’s consent, in the absence of a statute

authorizing the public officer to store the vehicle and imposing liability on the owner.” 38

Am. Jur. 2d Garages, Service Stations and Parking Facilities, § 115 (2010).

        The case law in Vermont with regard to common law liens is sparse. However, it

suggests that such liens are rare. For example, two cases discuss whether a common law

“agister’s lien” exists.2 In an early case involving a dispute over return of a colt that had

been pastured on another’s land, the Supreme Court held that “[a]n agister had no lien at

common law, except by agreement.” Nemi v. Todd, 89 Vt. 502, 506 (1915), citing Wills

v. Barrister, 36 Vt. 220, 224 (1863) (“the law gives no lien on the cow for the agisting

thereof”). The problem was apparently remedied by legislation in 1884. Nemi, 89 Vt. at

506.

        The common law liens to which the Vermont cases refer are as follows: “The

common law recognized the right of inn-keepers, carriers and certain artisans and


2
  An agister, for those unfamiliar with the term, is defined as “one who takes and pastures grazing animals
for a fee.” Black’s Law Dictionary, 8th Ed. (2004).


                                                    9
mechanics to hold a lien upon property delivered to them for their charges. Inn-keepers

and carriers had such lien upon the theory that they were bound to serve all persons who

required their services; and artisans upon the theory that by their labor and skill the

specific property bailed to them had been increased in value.” Quimby v. Hazen, 54 Vt.

132, 138 (1881). In distinguishing these liens from the lien sought on the cow, the Court

in Wills noted that the cases “establish only that factors, bailees for hire, carriers and inn-

keepers, artizans and mechanics, have a lien on the property entrusted to them for

expenditures or charges in respect thereto, or for work expended thereon, and this for

reasons peculiar to such classes of persons -- none of which reasons exist as to the

agistors of cattle.” 36 Vt. at 224-25. See also, Ruggles v. Walker, 34 Vt. 468, 470 (1861)

(“where a party has, in the way of his trade or occupation, bestowed his money, labor, or

skill upon a chattel, in the alteration and improvement of its properties, or for the purpose

of imparting an additional value to it, he has a lien upon it for a fair and reasonable

remuneration.”)(emphasis added). In other words, it is the work done on the property,

increasing its value, that creates the lien -- not the mere storage or caretaking of property.

Capson, 677 P. 2d at 278 (common law lien arose “only when some value was imparted

to the automobile by ‘performing work or furnishing material’ for the vehicle”). Compare

Chase v. Robinson, 86 Vt. 240, 243 (1912) (a trainer of horses had a lien for the training).

       Our Supreme Court has also held that a person charging another for storage of

personal property has no lien upon the property unless he comes within the terms of the

statute creating a warehouse lien. Hackel v. Burroughs, 117 Vt. 328, 332 (1952). The

person providing storage in Hackel therefore “did not have a lien upon the property for




                                              10
the unpaid balance due for storage and was under a duty to return the property upon

demand.” Id.

         Thus, there is nothing to suggest that Vermont recognizes a common law lien for

vehicles towed without the owner’s consent. This is consistent with the decisions of

courts in numerous other jurisdictions, which have found that “[a]lthough police have the

power to remove disabled vehicles from highways, they may not create a lien upon a

vehicle without the owner’s consent.” Navistar Financial Corp. v. Allen’s Corner Garage

and Towing Service, Inc., 505 N.E. 2d 1321, 1324 (Ill. App. 2d Dist. 1987); Younger v.

Plunkett, 395 F. Supp. 702, 710 (E.D. Pa. 1975) (although police can remove a vehicle

from the highway, “absent a statutory authorization, police are not thereby empowered to

create a lien upon the vehicle in favor of a private towing company which is effective

against the vehicle owner without his consent.”); Alabama Farm Bureau Mut. Cas. Co. v.

Lyle Service Ambulance-Wrecker, 395 So. 2d 90, 93 (Ala. Civ. App. 1981) (“It has been

held generally that a common law lien is not applicable to towage and storage charges on

an automobile”). See also, Halloran v. Spillane’s Servicecenter Inc., 587 A. 2d 176, 182

(Conn. Super. 1990) (“in other jurisdictions, courts have uniformly held that a towing

company acquires no lien on a vehicle” that has been towed because it was parked on

someone else’s property).3

         In the absence of any Vermont cases suggesting that a common law lien exists

here, this court also concludes that no lien exists. Although Central had a right to charge

for towing and storage, “in the absence of some common law or statutory lien authorizing

3
  One court has held that a garageman has a lien for a car towed at the request of police because “[a]s part
of the privilege of driving a vehicle in this state, a licensed driver impliedly agrees to allow a peace officer
to have his vehicle towed and stored when the . . . vehicle becomes immobilized.” Bray v. Curtis, 544 S.W.
2d 816, 818 (Tex. Civ. App. 1976). However, Texas had a statutory lien for garagemen, so the issue before
the court was merely whether the towing created implied consent such that the statute applied.


                                                      11
it to retain possession of the property until its charges were paid, appellant was obliged to

restore the property to its owner when demand was made for its return . . . , and there was

no right to charge for storage of the property beyond that date.” T.R. Ltd. v. Lee, 465

A.2d 1186, 1190 (Md. App. 1983).

        Thus, Central has the right to be paid for its towing and recovery services, and for

the storage prior to the time Champlain sought release of the vehicles, but did not have

the right to hold the vehicles after a demand for their release was made. Because the

storage fees that accrued after the date of the demand arose only because of Central’s

refusal to release the vehicles, Central is not entitled to those additional fees. As in

Hackel, Central “did not have a lien upon the property for the unpaid balance due for

storage and was under a duty to return the property upon demand.” 117 Vt. at 332.

        The court therefore will subtract the storage fees after July 15 from the amounts

due to Central.4

                                                  Order

        The court awards Central $12,000 for towing and recovery costs, $894 for the

dumpster rental, and $1,200 for storage fees ($600 for the dumpsters and $600 for the

vehicles), for a total of $14,094. Central is ordered to submit a proposed judgment within

ten days, to which Champlain shall have five days to object pursuant to V.R.C. P. 58(d).

Dated at Burlington this 23rd day of February, 2011.

                                                     _____________________________
                                                     Helen M. Toor
                                                     Superior Court Judge



4
 The court selects July 15 because it is unclear at what time of day on the 14th the request for release was
made, and because the court presumes some time would have been needed to arrange for removal the
vehicles.


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