Newsgroups: misc.consumers.house
From: Eric Lee Green 
Subject: Re: movers' liability
Date: 11 Oct 2003 02:21:50 -0500

In article <8b257b6b.0310101038.6e05a43e@posting.google.com>, KC ruminated:
> I just recently moved using Mayflowers and am having difficulties in
> regards to the processing of my claims. I would like to know if the
> moving company's actions are allowed.
> 
> 1. During the move, the movers accidentally dropped the refrigerator
> off the ramp, creating an unsightly dent on the side. I didn't
> purchase additional insurance, although in hind sight I should have.
> So I claim for the typical $.60/lb per article. For a 250lb

Okay. First of all, you have no insurance. The moving company stated
that your goods are worth 60c/lb on the bill of lading, and you agreed
with that.  Putting a bigger number on said manifest costs more
money. Federal law (the infamous Carmack Amendment) limits the moving
company's liability to the amount declared on the bill of lading. 

> refrigerator, that would come out to $150 (well below the amount to
> replace the refrigerator). The insurance (Vanliners) agent told me
> that because it is a cosmetic damage, they would pay me an arbitrary
> amount of $100. Are they allow to do this, or are they just trying to

Again, this is not insurance. If they pretend that this is insurance,
you need to contact the insurance commissioner of whatever state they
do business in, because they are misrepresenting assumption of
liability as insurance. What they are trying to do is negotiate you
out of holding them responsible for the damage they did to your goods
by lying to you. There is no law or regulation regarding cosmetic
damage vs. other kinds of loss.  Now, it could be said that your loss
here is the reduction in the resale value of the refrigerator, i.e.,
the amount of money that it would take to repair the refrigerator,
rather than the full declared value of the refrigerator. Used
refrigerators of about the same age as your refrigerator sell for
around $200, after all, so they might very well state that your loss
is only $100. If that is the argument they are making, they need to
make it, instead of lying to you about "insurance doesn't cover
cosmetic damage".

> get away with not paying more than they need to? I don't recall seeing
> this cosmetic clause on the contract. I was told that if I want them
> to pay the $.60/lb per article amount, they would have to take
> possession of the refrigerator in exchange for the cash amount. Is
> this true?

There is nothing in federal regulations that allow them to require this. In
other words, they are lying. Again, when they signed their copy of the
bill of lading, they assumed responsibility for damages up to the
amount declared on said bill of lading. Federal regulations
specifically state that once they are paid in full upon delivery of
the goods, that's it -- they have no recourse upon the goods. Their liability,
however, is only for actual loss -- i.e., the amount of money needed to repair
the damage, or the reduction in resale value of the item due to the damage -- 
so that is an argument they can make that they don't owe you the full declared
value of the item. But that's an argument they need to make, rather than lying to
you. 

> 2. After the move, I realized a couple switch buttons and the rubber
> foot at the bottom of my washing machine were missing. Since I was
> already filing a claim, I decided to file for these small items as
> well. Once again, the insurance agent is denying the claim...by saying
> that since the missing items were never pointed out to the movers at
> the time of delivery, they can't be responsible for them. Is this

Again, if he stated he's an insurance agent, he's lying to you. He's a
loss claims agent, required by federal regulations but totally
unregulated by state insurance commissioners, who have sole authority
under federal law to license and regulate insurance agents. If he claimed that
he sold you insurance or that the 60c/lb declared value on the bill of lading was
insurance, he violated his state's laws, and needs to be reported to his state's
insurance commissioner for fraudulent claims that he gave or sold you "insurance".

Unfortunately, since he is not regulated by his state's insurance commissioner, you have
no recourse through said insurance commissioner in the event that you file an action
in small claims court to recover your damages. Frankly, at this point I'd advise you
to accept the $100, it's probably the best you'll do, because if you go to small claims
court you'll win -- and have one of probably a thousand uncollectable judgements against
this moving company (uncollectable because you cannot apply to a state insurance fund
for reimbursement for unpaid claims, and moving companies are careful to have few
assets that can be seized -- they do not even own the trucks that they use to move goods,
they're all leased and owned by third parties). 

> true? I just didn't think that homeowners needed to check every single
> details of their item...especially small details. I was under the
> impression that we have a certain time frame to report any damaged or
> missing items.

If they caused the damage, they are liable for it. However, the
assumption is that once you sign the bill of lading accepting
delivery, you are declaring that, with the exception of anything on
the inventory list that you mark as damaged, everything is in good
condition.  Proving that they caused the damage -- if it's not marked
on the inventory list as damaged -- is going to be impossible unless
you videotaped the goods without the damage as they walked out the
door at the originating end. 

Frankly, I think you have gotten off light. I've heard stories of entire shipments 
smashed into kindling. It sounds to me that you have just the normal amount of lossage
to be expected whenever moving large amounts of goods across country, and that it's
time to mark it up as just another part of normal relocation expenses. I dislike the
fact that the loss agent is a slimeball who keeps lying to you, but the fact of the
matter is that, for the most part, he has the law on his side. He's responsible for
damages that are provably caused by his company's actions, up to the amount
declared on the bill of lading, and that's it.

Please note that I am not a lawyer, though I know a bit about the
moving industry and the laws and regulations that cover it (having
read them in their entirity at least once, as well as large swathes of
related case law). If you are idiot enough to want to hire a lawyer
over maybe $250 worth of damages, go ahead and do so. Just be aware
that federal law as interpreted by the courts limits liability to the
value declared on the bill of lading, so there's not much a lawyer can
do for you.

Personally, I think that a) all movers should be required to be
licensed, b) all movers should be required to file a bond with a
federal agency against which judgements can be levied in the event
that a judge rules that the mover is liable for damages, and c) the
Carmack Amendment, which prohibits punitive damages against household
goods movers, should be modified to allow judges and juries to impose
punitive damages when moving companies act in bad faith by engaging in
egregious breaches of federal regulations (such as by holding
shipments hostage upon being offered the 110% of estimate where
federal regulations require them to release the shipment to the
consumer even if a larger sum is owed). And d) unlicensed movers who
do not file bond should be put out of business, rather than slapped with
minor administrative fines that they never bother paying because they know
they can get away with it (the current situation with the FMCSA's "regulation"
of moving companies). 

I also believe that the current situation of moving companies avoiding
liability for damages via the expedient of putting an artificially low
value on the bill of lading needs to be addressed -- the Carmack
Amendment was never intended to allow transportation companies to put
$0 on the bill of lading in order to avoid all liability, it was
intended to remedy the situation of transportation companies being
held liable for things like incidental damages ("You didn't get my $5
package to San Francisco on time so I lost a $10 million contract! You
owe me $10 million!") by limiting damages to the actual value of the
item being shipped. 

But none of that helps you now, and none of that is being addressed by
a Congress that is more concerned with how much of our grandchildren's
money they can give to the rich (by borrowing money from our
grandchildren to give to the rich today). The fact remains that under current
law and (lack of) enforcement, you have few options, especially for a small
claim like you're making. 

-- 
Eric Lee Green mailto:eric@badtux.org
       http://www.badtux.org


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