965 F. Supp. 2d 981
N.D. Ill.2013Background
- Illinois enacted the Commercial Safety Towing Law (625 ILCS 5/18d-101 et seq.) to address "wreck chasing"—towers who solicit at accident scenes, conceal location/prices, charge exorbitant fees, and create roadside safety risks; the law applies in five counties.
- The statute imposes registration and per-vehicle fees, required written pre-tow disclosures, recordkeeping, signage, itemized final invoices on demand, prohibition on liability waivers, penalty authority, an ICFA hook, and a credit-card-or-cash payment requirement.
- Plaintiffs (towing companies) sued to enjoin enforcement, arguing the Federal Aviation Administration Authorization Act (FAAAA), 49 U.S.C. § 14501(c), preempts the state rules because they relate to a motor carrier’s price, route, or service with respect to transportation of property.
- Defendant (Illinois, via the ICC) defended the law asserting many provisions are saved from preemption by § 14501(c)(2)’s safety exception because they are ‘‘genuinely responsive to safety concerns’’ about wreck chasing.
- The court conducted a provision-by-provision preemption analysis and granted summary judgment in part and denied it in part: it upheld registration, pre-tow written disclosures, signage, record-inspection and ICC penalty authority; it enjoined specific authorization formality (18d-120(a)), itemized final invoice (18d-125), prohibition on liability-limiting clauses (18d-150), and the credit-card requirement (18d-165).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether registration and carry-in-cab certificate (18d-115, 18d-145) are preempted as relating to towing services | Registration is a precondition to providing towing services and thus relates to services, so FAAAA preempts it | Registration enforces minimum insurance and deters unregistered wreck chasers; it is within the §14501(c)(2) safety/insurance exceptions | Upheld: not preempted (saves as insurance-check and genuinely responsive to safety) |
| Whether a mandated, formal specific authorization process before consensual tow (18d-120(a)) is preempted | Plaintiffs: it governs how consent is obtained and thus relates to services; it is consumer-protection not safety-driven | Def.: formal authorization aids investigations and safety; signatures matter for enforcement | Preempted and enjoined: not genuinely responsive to safety |
| Whether pre-tow written disclosure, retention, and providing disclosures to police/insurers (18d-120(b)-(e), 18d-135) are preempted | Plaintiffs: disclosures regulate pricing and services and therefore fall within FAAAA | Def.: disclosures impede wreck chasers (who avoid identifying destination/prices), so they advance safety and expedite recovery | Upheld: not preempted (genuinely responsive to safety) |
| Whether itemized final invoice on demand and five-year retention (18d-125) is preempted | Plaintiffs: invoice requirements affect the service and pricing and thus are preempted | Def.: argues enforcement/consumer protection and reduced disputes at lots improve safety | Preempted and enjoined: court finds invoice is consumer-protection not safety-driven |
| Whether signage at storage facilities advising customers of rights (18d-130) is preempted | Plaintiffs: display may relate to service and could be preempted | Def.: signage supports non-preempted safety/disclosure provisions and is informational | Upheld: not preempted (either too remote or supportive of non-preempted rules) |
| Whether prohibition of contractual liability waivers (18d-150) is preempted | Plaintiffs: prohibits clauses that lower carrier costs and thus relates to price; FAAAA preempts it | Def.: no safety rationale offered | Preempted and enjoined: purely consumer-protection/economic regulation |
| Whether ICC penalties and suspension authority (18d-155) and record-inspection enforcement are preempted | Plaintiffs: enforcement can be used to regulate services | Def.: necessary to make non-preempted safety provisions effective | Upheld: not preempted (enforcement of saved provisions valid) |
| Whether making violations actionable under Illinois Consumer Fraud Act (18d-160) is preempted | Plaintiffs: ICFA creates independent consumer-protection remedies over preempted service areas | Def.: ICFA reference is merely enforcement/backstop | Preempted and enjoined as to the extent it applies to preempted provisions and not saved by safety exception (ICFA hook treated as consumer-protection here) |
| Whether mandatory acceptance of major credit cards (18d-165) is preempted | Plaintiffs: method of payment relates to service/price; thus preempted | Def.: card acceptance expedites recovery and reduces safety risks of carrying cash | Preempted and enjoined: court finds safety justification speculative for consensual tows |
Key Cases Cited
- City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (Sup. Ct.) (tows are motor carriers of property; safety exception analyzed)
- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (Sup. Ct.) (broad preemptive scope of "related to" language)
- Rowe v. New Hampshire Motor Transport Ass'n, 552 U.S. 364 (Sup. Ct.) (state rules that force carriers to offer services market does not provide are preempted)
- American Airlines, Inc. v. Wolens, 513 U.S. 219 (Sup. Ct.) (distinguishes state consumer-fraud enforcement from breach-of-contract claims under federal preemption context)
- S.C. Johnson & Son, Inc. v. Transp. Corp. of Am., 697 F.3d 544 (7th Cir.) (FAAAA preemption is not all-or-nothing; provision-by-provision analysis)
- Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir.) (services defined broadly to include elements of the carrier service bargain)