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Friday, September 20, 2019

Towing company wrongly hauled away man's car, but he can't make the tow biz pay his legal bills: Appeals panel

State Court

By Scott Holland | Aug 2, 2019


| Eric Fischer [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)]

CHICAGO — A state appeals panel has determined the Illinois Vehicle Code bars a man from collecting $6,000 in attorney fees, even though he successfully sued a towing company for improperly claiming his car.

Roberto Lopez won his lawsuit against Rendered Services and employee Hector Lopez, after which Cook County Circuit Court Judge Oran Whiting awarded him $6,125 in legal fees, citing a provision of Vehicle Code Chapter 4. Rendered Services and Lopez appealed that decision to the Illinois First District Appellate Court, which issued an opinion July 31. Justice David Ellis wrote the opinion. Justices James Fitzgerald Smith and Nathaniel Howse concurred.

On appeal, the defendants argued the applicable Vehicle Code chapter actually is 18a, which doesn’t allow for awarding of legal fees. Further, they argued, even if Chapter 4 did apply, it allows a court to demand a plaintiff’s legal fees only from the property owner who initiated the illegal tow, not the towing company that physically took the car.


Illinois First District Appellate Court Justice David W. Ellis | illinoiscourts.gov

The lawsuit dated to September 2017, when Lopez said Rendered Services towed his car from a private lot at 2804 W. Flournoy St., Chicago, even though a permitted user was present and offered to move the vehicle. Whiting conducted a bench trial and sided with Lopez, prompting the February 2018 fee petition filing. Whiting granted that petition on both Vehicle Code sections, although Lopez only alleged a violation of Chapter 4.

The appeals panel said Chapter 4 “lists numerous ‘conditions and restrictions’ on the towing of such a vehicle,” Ellis wrote. “[Whiting] found that defendants violated one of them, namely defendants’ failure to disconnect and release the vehicle to its owner or user if that individual shows up before the vehicle is hauled away.”

That provision includes a subsection stipulating the fiscal responsibility in such cases is assigned to the “authorized person [who] improperly causes a motor vehicle to be removed.” The defendant argued that language refers not to a towing company or truck driver but “the landowner or lessor, or any person authorized by that owner or lessor” who ordered the towing.

“Nowhere in Section 4-203(f) is there any reference to the towing company ‘causing’ the trespassing vehicle’s removal,” Ellis wrote. “In the contexts in which the ‘towing service’ is associated with the towing of the vehicle, it is always the towing service performing or engaging in the towing, not ‘causing’ it.”

The panel drew an analogy to a medical situation wherein a nurse might inject a patient, but if done so at the direction of a doctor, there can be a distinction between the physical act and the ordering of that act to take place.

Chapter 4 does not give towing companies independent authority to take vehicles from private property, Ellis added, with one subsection specifically forbidding that kind of towing “unless the landowner gives it express instructions to do so.”

The panel further explored the General Assembly’s word choice in enacting the statute, saying lawmakers could have explicitly stated towing companies could be held liable for legal fees when a court determines a towing was improper.

“And it’s not as if our interpretation lets the towing company off scot-free for violations,” Ellis wrote, pointing to applicable misdemeanors and fines. Saying it wasn’t necessary, the panel did not take up the defendants’ arguments about the case resting on Vehicle Code Chapter 18.

Lopez is represented in the case by attorney Susan Ritacca, of Chicago.

Representing the defendants are lawyers from Goldstine, Skrodzki, Russian, Nemec and Hoff Ltd., of Burr Ridge.

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Circuit Court County of Cook Goldstine Skropzki Russim Nemec & Hoff Illinois First District Appellate Court

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