MODZELEWSKI'S TOWING AND RECOVERY, INC.
COMMISSIONER OF MOTOR VEHICLES
January 20, 2016
S. Graham, assistant attorney general, with whom, on the
brief, was George Jepsen, attorney general, for the appellant
Kenneth A. Votre, with whom was Richard E. Fennelly III, for
the appellee (plaintiff).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
principal issue in this administrative appeal is whether
state laws regulating the fees charged for certain services
provided in the course of the non-consensual towing of a
motor vehicle are preempted by federal law. The defendant,
the Commissioner of Motor Vehicles (commissioner), appeals
from the judgment of the trial court reversing in part the
decision of the Department of Motor Vehicles (department)
that Connecticut's statutes and regulations regarding
non-consensual towing services are not preempted under 49
U.S.C. § 14501 (c) (2) (C) (2012) and that the
plaintiff, Modzelewski's Towing and Recovery, Inc., had
overcharged for the nonconsensual towing of a motor vehicle
trailer and must pay restitution in the amount of $12, 787 to
the trailer's insurer. On appeal to this court, the
commissioner claims that the trial court incorrectly
determined that the fees charged by the plaintiff for the use
of a 1075 rotator truck for recovery of the damaged trailer
prior to the actual towing, for towing recovery operations,
generally, for the use of its major incident response truck
during the recovery operation, and for services performed in
connection with the storage of a damaged vehicle following a
nonconsensual towing are not subject to state regulation. The
plaintiff responds that, when a towing is nonconsensual,
federal law authorizes the state to regulate only the fee
charged for the actual towing and that the state cannot
regulate storage rates incident to the towing. The plaintiff
also argues that, if this court concludes that the fees
charged for recovery services are not subject to state
regulation, it cannot review whether the trial court properly
reinstated charges for the plaintiff's use of the major
incident response truck. We agree with the commissioner and
reverse in part the judgment of the trial court.
following undisputed facts are set forth in the trial
court's memorandum of decision. ‘‘On
September 8, 2011, [the] state police called the plaintiff, a
towing and recovery services company, to the scene of an
accident on Interstate 84 near Newtown. The accident occurred
when a passenger vehicle struck the rear of a trailer that
was carrying a twenty-eight foot power boat and was hitched
to a pick-up truck. As a result of the crash, the boat
shifted position, and the trailer became unsafe.
the accident scene, the plaintiff used a ‘1075'
unit to pick up the front of the boat and restrap it to the
trailer. The plaintiff next disconnected the trailer from the
truck, removed the trailer and boat from the highway, and
used the 1075 machine to place the trailer and boat on a [low
bed] tractor trailer. The final phase that day involved the
plaintiff's transport of the trailer and boat to its
facility in Newtown for storage and further police
September 9, [the] police conducted an inspection of the
trailer and boat. The inspection required the plaintiff to
lift the trailer with a warehouse forklift in order to place
and then remove scales underneath it for the purpose of
[weighing the trailer and boat]. The combined weight
classification of the trailer and boat unit was between 10,
000 and 26, 000 pounds.
plaintiff charged Eric Unser, the owner of the boat and
trailer, $14, 732.50 for its services on September8 and 9.
Unser's insurer, Boat U.S. Marine Insurance, paid the
bill on behalf of [Unser].
October 11, 2011, Unser filed a complaint with the department
. . . claiming that he was overcharged. The department held a
hearing on October 2, 2012. Relying on department regulations
governing charges allowed for nonconsensual, ‘medium
duty' towing, the hearing officer ruled that the
plaintiff had overcharged Unser and Boat U.S. Marine
[Insurance] in the amount of $12, 787. . . .
restitution order of $12, 787 represented the difference
between the total charged by the plaintiff ($16, 699.50) and
the total allowed by the department ($3912.50). The hearing
officer rejected the plaintiff's claim that federal
statutes preempt the department's regulations. The
[hearing] officer held that ‘[t]ransportation of a
motor vehicle as set forth in 49 U.S.C. § 14501 (c) (2)
(C) contemplates a process intended to accomplish an end and
cannot be limited by focusing on one aspect, i.e.
‘‘tow truck, '' as suggested by the
the hearing officer ordered the plaintiff to pay Boat U.S.
Marine [Insurance] restitution of $12, 787 within thirty days
of the decision. The [hearing] officer also ruled that, if
the plaintiff failed to comply, the department would
disqualify the plaintiff's license, seek recovery from
the plaintiff's repairer bond, and impose a civil penalty
of $1125 prior to any license reinstatement.''
plaintiff appealed to the trial court, which sustained the
appeal in part. The court first concluded that the damaged
trailer qualified as a ‘‘motor vehicle''
and that the low bed tractor trailer used to transport the
damaged vehicle qualified as a ‘‘tow
truck'' within the meaning of 49 U.S.C. §§
13102 (16) and 14501 (c) (2) (C), respectively, of the
federal preemption scheme. The court thus concluded that
‘‘the actual towing component of this case
involved a nonconsensual ‘for-hire motor vehicle
transportation by a tow truck' under [49 U.S.C. §
14501] (c) (2) (C)'' and that the commissioner had
authority to regulate the rate that the plaintiff charged for
that service, the cost of which the hearing officer had
trial court next concluded, however, that the commissioner
did not have authority to regulate the fees charged for the
plaintiff's pretowing recovery and posttowing services.
The pretowing recovery services included the plaintiff's
use of the 1075 rotator truck, the major incident response
truck and the heavy duty recovery straps for the purpose of
repositioning the vehicle on the trailer to ensure its
stability. The posttowing services included storage of the
trailer and related warehouse operations. The court
determined that state regulation governing pretowing and
posttowing services is preempted by federal law, and,
therefore, the plaintiff was not required to refund payments
made by the insurer for these services.
the commissioner appealed from the trial court's judgment,
claiming that state regulation of pretowing and posttowing
services is not subject to federal preemption. Oral argument
was heard on January 20, 2016, in conjunction with
Raymond's Auto Repair, LLC v. Commissioner
of Motor Vehicles (SC 19454), in which the commissioner
raised a similar claim regarding pretowing recovery services.
On January 26, 2016, we ordered the parties to address the
following question in supplemental briefs: ‘‘Does
49 U.S.C. § 14501 (c) (1), which prohibits state[s] and
political subdivisions thereof from enacting or enforcing any
law related to a price, route, or service of any motor
carrier with respect to the transportation of
property, apply to ‘pretowing services' (as
defined in the trial court's [memorandum of decision]) or
‘posttowing services'?'' (Emphasis in