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Healy v. G/J Towing, Inc.

Superior Court of Massachusetts, Suffolk

August 8, 2019

Stephanie HEALY, Individually and on Behalf of Others Similarly Situated
G/J TOWING, INC., et al.


          Janet L. Sanders, Justice

          In this putative class action, plaintiff alleges that the defendants, who operate a Revere towing business, overcharged owners of motor vehicles towed during snow emergencies. Specifically, the Amended Complaint alleges that the defendants have been charging more than they were authorized to charge under a contract between the defendant G/J Towing, Inc. (G/J) and the City of Revere. The Amended Complaint alleges a violation of G.L.c. 93A (Count One) and unjust enrichment (Count Two). The defendants now move for partial summary judgment. They contend that the contract on which plaintiff relies was not in effect until December 2018 and that, based on the terms of an earlier contract as well as G.L.c. 159B, § 6B, the charges were permitted. They also assert that plaintiff is limited to seeking only equitable relief. After hearing, the Court concludes that the Motion must be DENIED .


          The following facts are undisputed for purposes of this Motion. G/J is a towing and storage company that has contracted with the City of Revere since at least 2010 to tow motor vehicles, including those that must be removed from city streets due to a snow emergency. The contracts were entered into after G/J submitted a bid in response to the City’s Request for Qualifications. The earliest contract before the Court is an agreement dated December 28, 2010: it states that it commenced on January 1, 2011 and ran through the period January 31, 2013 (the 2011 Contract). This 2011 Contract was signed by the defendant Gennaro Angiulo on behalf of G/J on February 21, 2011 and by then-Mayor Thomas Ambrosino, the City Purchasing Agent and the City Auditor on March 22 and March 23, 2011. Under the heading Form Approved By is the signature of the City Solicitor with the date of March 22, 2011.

         In 2013, the City sent out a second Request for Qualifications which G/J accepted in August 2013; this contract was due to expire July 31, 2016 (the 2013 Contract). The 2013 Contract was signed by then Mayor Daniel Rizzo, the Chief of Police, the City Purchasing Agent and the City Auditor. The City Solicitor’s signature appears under the heading Form Approved By but is inexplicably dated October 21, 2017, four years after contract began and more than a year after it was to expire. Under both the 2011 and the 2013 Contracts, G/J was permitted to charge $90 per tow in the event of a snow emergency- the maximum amount permitted by G.L.c. 159B, § 6B.

          With the 2013 Contract due to expire in July 2016, the City sent out a Request for Qualifications in June 2016. That document stated that the charge for tows in the event of snow emergency would be $75 per tow, $15 less than that set by the earlier contracts. G/J submitted a bid in response to that request dated July 20, 2016, which was accepted on August 17, 2016. A contract similar in form to the earlier ones was entered into between G/J and the City (the 2016 Contract). The 2016 Contract stated that it was to "commence with the execution of the contract and expire on July 31, 2019." It was signed by G/J on August 25, 2016 and by the Chief of Police, the City Auditor, and the City Purchasing Agent on October 4 and 5, 2016. Under the heading Form Approved By appears the signature of the City Solicitor with the date August 25, 2016. The Mayor’s signature also appears on the document but is dated December 18, 2018- two years after the stated beginning date of the 2016 Contract and just seven months before its stated expiration date. By that time, the Mayor for the City of Revere was Brian Arrigo.


          The Amended Complaint states that is brought on behalf of a class of plaintiffs whose cars were towed by G/J in the City of Revere between August 28, 2013 and August 28, 2017, the date upon which the Complaint was filed. The individual plaintiff Stephanie Healy had her car towed because of a snow emergency on February 12, 2017; she was charged a $90 towing charge- more than the $75 towing fee permitted by the 2016 Contract. In moving for partial summary judgment, the defendants argue that this contract was not in effect until the mayor signed it in December 18, 2018 and that, under the earlier 2013 Contract (as well as under G.L.c. 159B, § 6B and related regulations) a $90 towing charge was permitted. This Court concludes that there is a question of fact as to when the 2016 Contract took effect.

         In support of their position, defendant rely on language in the 2016 Contract which expressly states that it does not commence until the "execution of the contract." The 2016 Contract was signed by G/J on August 25, 2016 and by the Chief of Police, the City Auditor, and the City Purchasing Agent on October 4 and 5, 2016; it thus would appear to have been "executed" no later than October 5, 2016. The defendants maintain, however, that there could be no execution until the Mayor signed in December 2018. In support of their position, the defendants rely on G.L.c. 43, § 29. That statute applies to those contracts involving amounts of $5,000 or more. It is unclear whether the 2016 Contract involved the $5,000 or more amount that would have triggered this statute. Even if the statute did apply, however, it states only that all such contracts must be in writing and that "no such contract shall be deemed to have been made or executed until the approval of the mayor" of the city or town with whom the contract is made. (Emphasis added). The mayor’s signature is not a prerequisite.

          In further support of their position that the 2016 Contract did not take effect until 2018, the defendants cite to a letter, dated April 5, 2017 from the Chief of Police to G/J Towing (the April 2017 Letter). That letter states that "the City of Revere has not signed or updated the Qualifications for Towing Vehicles agreement" and that the current rate for involuntary tows due to snow emergency is that fee set by the Department of Public Utilities, which is $90. That letter is some evidence that the 2016 Contract was not actually approved by the Mayor as of the date of April 2017, but it is hardly conclusive, particularly since the same police chief who sent the April 2017 Letter signed the 2016 Contract. It is also not clear that the police chief had the authority to speak for the mayor. Certainly, the April 2017 Letter may be relevant to whether G/J engaged in an unfair and deceptive business practice, since it does appear to reassure G/J that the City authorized G/J to charge a $90 towing fee for snow emergencies. Again, however, the Letter is not dispositive, indicating only that there are questions of fact. In short, the Court cannot on this record conclude that the plaintiff has no reasonable expectation of proving a 93A violation.

         As an additional basis for their motion, the defendants argue that the plaintiff’s claims rest on her allegation that the defendants have violated G.L.c. 159B, § 6B and that there is no private right of action for damages provided by that statute. The defendants cite language in that statute which states that anyone who violates the statute may seek equitable relief in the superior court or alternatively seek administrative relief from the DPU, which could assess fines against any wrongdoer. It is important to note, however, that the Amended Complaint does not contain any count alleging a violation of G.L.c. 159B, § 6B or seek relief pursuant to that statute; rather, it alleges a violation of Chapter 93A. As the plaintiff points out, the mere existence of one regulatory statute does not prevent her from seeking relief under a broader nonconflicting statute like Chapter 93A. See SDK Medical Computer Servs. Corp. v. Professional Operating Management Group, Inc.,371 Mass. 117, 126 (1976) (plaintiff could pursue 93A claim even though the Commissioner of Insurance had ...

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