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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2960
Experience:  Civil litigation attorney for individuals and businesses.
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My car towed for parking in a shopping center after hours.

Customer Question

My car towed for parking in a shopping center after hours. It is an all-wheel-drive car, meaning it needs to be towed on a flatbed. However, a witness told me the car was towed on two wheels, and the clerk at the storage site also said my car came in on two wheels. It was towed approximately for 10 miles and on the freeway, meaning high speeds. Upon hearing this, I took the car to the car shop immediately from the storage site, and it turns out my car's transfer case was damaged from being towed improperly. The mechanic explained to me how the transfer case fluids were all burnt, the gearing wheels were damaged, and I would need a replacement that runs around $4500, not including labor cost. I have tried repeatedly to get the owner of the tow company on the phone, but he ignores my calls. His call center employees even admitted that my car was towed incorrectly, but they still direct me to the owner's voicemail. I have sent a demand letter last week and still no reply. I need advice on how to sue the tow company, I know they are liable for damages done to the car while they are towing it.
Submitted: 1 year ago.
Category: Legal
Expert:  William B. Esq. replied 1 year ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I am sorry to learn of your unfortunate experience. To sue in Texas for any amount up to $10,000.00, you can sue in small claims court. Here is a comprehensive explanation and guide of how to file a claim and pursue a suit such as the one you are describing that was written by the Texas State Bar Association. It should cover everything you need to get you started (and hopefully through this matter - if you are unable to resolve this matter prior to trial). http://www.texasbar.com/Content/NavigationMenu/ForThePublic/FreeLegalInformation/OurLegalSystem/HowtoSueinSmallClaimsCourt.pdf


I hope the above is helpful, and I hope that you are able to resolve this matter quickly. Best regards, Bill.

Customer :

Do I have a good chance of winning? Will the witness from the restaurant and the storage clerk be of any use? Also, what if the tow company chooses to settle with their insurance?

William B. Esq. :

I am not allowed to tell you whether or not you have a chance of winning. Your case is a negligence case - whether or not a "reasonable and prudent tow company in the same or a similar position would have acted in the same way" I do not know whether or not the tow company will tender a case this small (relatively) to their carrier, but it is possible. (While I can't predict the outcomes of these things, these are some of the factors to consider in your case. But one thing is certain - you will not win if you do not file the claim.

Customer :

Do you mean filing a claim with small claims, or filing a claim with insurance?

William B. Esq. :

You cannot file a claim with their insurance company. You need to file a claim in small claims court against the tow truck company for their negligence (you are alleging that they acted below their "standard of care" by not towing your truck properly).

William B. Esq. :

Once you file your lawsuit, the tow company has the option to "tender" the claim to their insurance company (file a claim), but only the tow company can do this - it is their policy. They can file a claim now, but that is their option - you can "trigger this" by writing a "pre-litigation demand letter" which threatens to file a lawsuit, demanding damages and attaching a copy of your proposed complaint (this works in some cases to get a settlement before having to actually file a lawsuit - but not always).

Customer :

Do I need to have the mechanic write a statement of how the transfer case was damaged and what needs to be replaced/repaired?

Customer :

He only wrote me up an estimate for a new transfer case

William B. Esq. :

No, it will help, but it is not necessary - you will only need the rough number to file your suit - you will need the actual number or estimate once you get to trial. The statute of limitations for negligence is 2 years (this means you have 2 years from the time of the discovery of the act to file your lawsuit). This should give you plenty of time to get your damages set (you don't have to but it might help in your case) and get your demand together. You can easily make your "pre-litigation demand" before hand in order to have them pay for the repairs - but I don't know if they will do so or not.

Customer :

I sent the demand letter last week and still no reply from the owner. I guess I will go ahead and file in small claims court. Thank you for your help!

William B. Esq. :

Dear Customer,


Thank you for the kind rating, it is greatly appreciated. I wish you the best of luck with this matter. If you have further questions regarding this type of issue, or any other legal matter, please do not hesitate to use our service in the future. You may post a question for any of our experts in general, or to me directly by titling your question “To CalAttorney 2…” or using the link: http://www.justanswer.com/law/expert-wdb-esq/


Best regards, XXXXX XXXXX you,


Bill

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2960
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 14 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I found out yesterday through the Secretary of State records that the tow company has a "Forfeited existence" status since 2009. What does that mean for me? Can I still sue the company? I looked up that status and it states that a forfeited existence company cannot defend in court or sue. Would that mean they are automatically liable for my damages since they are not legal to operate as a business?

Expert:  William B. Esq. replied 1 year ago.
You would still need to file the lawsuit and serve it on their agent for service of process. The corporation can cure this defect at any time by refiling with the Secretary of State, but you are correct, if they fail to do so before the Court enters a judgment in your favor for their failure to appear (a default judgment), you will have a judgment entered in your favor and they cannot defend against the claims.
Customer: replied 1 year ago.

So on the small claims form, will I be listing the tow company as the defendant, or the registered agent (Karl Plehn)? There's a line for "Defendant:" and another for "Serve:"

Expert:  William B. Esq. replied 1 year ago.
The tow company is the defendant.

You will need to serve the summons and complaint on the registered agent.
Customer: replied 1 year ago.

Could I also add in the claim that I would like my towing fees refunded? Since they did tow it while on a forfeited existence.

Expert:  William B. Esq. replied 1 year ago.

You can ask for it. (This usually isn't a basis for fee waiver, but it is something you could reasonably ask for).

Customer: replied 1 year ago.

I had a question about an occupation code in the TX Dept of Licensing & Regulation in the Vehicle Towing & Booting section. Could you tell me a little more about the part that I bolded and underlined? I copied and pasted it. What does it mean that I am not required to prove negligence?


 


Sec. 2308.404. Civil Liability of Towing Company, Booting Company, or Parking Facility Owner for Violation of Chapter.


(a) A towing company, booting company, or parking facility owner who violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for:



(1) damages arising from the removal, storage, or booting of the vehicle; and


(2) towing, storage, or booting fees assessed in connection with the vehicle's removal, storage, or booting.



(b) A vehicle's owner or operator is not required to prove negligence of a parking facility owner, towing company, or booting company to recover under Subsection (a).


(c) A towing company, booting company, or parking facility owner who intentionally, knowingly, or recklessly violates this chapter is liable to the owner or operator of the vehicle that is the subject of the violation for $1,000 plus three times the amount of fees assessed in the vehicle's removal, towing, storage, or booting.


 


 

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

From your description of events, I do not believe this section applies to your situation.

This section applies when the towing company violates the chapter (meaning it tows a vehicle that it is not supposed to tow). If your vehicle was improperly parked, the owner of the property gave proper notice (a sign with the proper lettering and language was placed), and the towing occurred after the proper time had passed, and no other violations had occurred, then this section does not apply.

This section is designed to deter towing companies and property owners from engaging in improper towing conduct (meaning towing cars that are not supposed to be towed, as opposed to towing cars in a physically improper fashion).

You may cite the statute in the event my interpretation is incorrect, but the statutory scheme as I have read it together with the surrounding sections shows that this penalty is aimed at stopping tow companies and owners from using towing as a way to make a profit as opposed to keeping their parking spaces open.

I hope this helps.
Bill

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