People must get together and fight to remove U-Haul and Republic Westerns right to have exculpatory clauses in their storage contracts which protects them from liabilty even in the instance of their own negligence. The Attorney General of Texas knew this was a disgusting practice and already accomplished the task of forcing them to change these adhesion contracts and now it's time for other states to follow!
This is why U-haul doesn't care if employees steal or damage storage renters property because unfortunately many US Courts will continue support them and protect their right to be negligent!
The Third Circuit Court Of Appeals recently denied a rehearing en banc in my case against Republic Western Insurance (a U-Haul sister company) even though they stated in their opinion that U-Haul, and their self owned insurance company Republic Western, probably exhibited "Gross Negligence" and that the court "didn't condone" such behavior. The plaintiffs who were insured for $15,000 were awarded nothing even though the defendants stipulated in Federal Court to at least $15,000 worth of damage to Plaintiffs property. Plaintiffs were never paid and have now been assessed defendants appellate costs.
Background:
The case involves two plaintiffs who stored personal property of value in a U-Haul indoor climate controlled storage facility that failed to maintain their roof over a long period of time.
The Vice President of the District U-Haul even admitted in deposition that they were renting units to the public when they knew water was leaking into the building. The 24 hour onsite managers never even lifted the phone to alert the plaintiffs that their property was getting damaged by the heavy flow of water through two floors during rainstorms.
The plaintiffs, at the time of renting the units, had purchased insurance through the U-Haul sister company Republic Western who failed to properly adjust the case according to New Jersey Law. The U-Haul storage contracts contained exculpatory clauses which were specifically designed to protect U-Haul even if they were grossly negligent. It should be noted that Texas Attorney General John Cornyn sued U-Haul and Republic Western for these very types of fraudulent insurance practices right around the time this case was filed in New Jersey (approximately 2001). He forced them to remove many clauses including the one holding the consumer liable in the instance of U-Haul's negligence.
The storage renters granted U-Haul full access and promptly completed an initial inspection and photo session with U-Haul and Republic Westerns contracted adjuster GAB Robins. U-Haul quickly fired GAB Robins after the adjuster indicated in its report that U-Haul may be liable due to the obvious poor condition of the facility and roof as indicated in roof replacement estimates and reports.
The renters' attorney filed suit in Federal Court for Consumer Fraud, Bad Faith, Breach of an Insurance Contract, Negligence and more. The defendants' went adjuster shopping for over a year before ever making any formal request for a second inspection and finally settled on a mom and pop low ball adjuster who admitted in deposition that they were not experts in appraising many of the items in the claim. To prove a simple point, the lead adjuster who was allegedly valuing musical instruments spelled Bass Guitar "BASE" both on their adjusters report and when questioned later in deposition. This is the same adjuster called an "expert appraiser" in a letter sent by the attorney for the defense. Additionally, the second adjuster also admitted that they didn't inspect all of the items even though they were given two full days. Just to be sure, the plaintiffs hired five separate experts, three of them being published memorabilia experts who all valued the loss at nearly fifty times what the defendants adjuster came up with.
The case dragged out for approximately five years and the defendants were repeatedly allowed to thwart discovery on multiple occasions even though the judges approved the plaintiffs repeated discovery requests. Plaintiff's went to motions court over and over and yet U-Haul was given extension after extension without any good reason at all.
U-Haul actually perjured themselves when prompted to turn over claims/procedure manuals from the storage facilty. The 24 onsite managers clearly stated under oath that this information was in a physical "binder". Later on in the case, U-Haul only provided half a page from something unidentified (no page number or date of document) and a custodian of records sent a sworn statement claiming the provided page was from the manual which was an "online document". So who is the liar there? The 24hr managers who actually used the manual, or the custodian of records in some office somewhere. The judges didn't give a hoot about any of it..
The senior judge eventually granted defendants summary judgment motions on all counts except breach of the insurance contract. He stated that even though the defendants, years later (far too late under the state insurance laws), and deposited $14,500 in the court (without prejudice), the case should be tried for Breach of Contract with possible delay damages and pre judgment interest.
Another judge took over and quickly terminated the case three or four days before trial based on a verbal settlement offer with no terms disclosed to anyone. This is after the judge called the case for trial on very short notice at a great cost to plaintiffs for trial prep such as expedited transcripts etc..
The judge claimed on the record that because Rep West were offering the money five years later, that there was no more breach. As the Caveman in the Geico commercial says: "WHAT???" The judge also stated that it wasn't a settlement offer. Even if it was ten times the policy limit, it still was a settlement offer and not a bone fide written offer of judgment pursuant to federal rule 68. Yet the judge cited all Rule 68 cases to support this opinion. The third circuit did the same and cleverly never approached the subject of Rule 68 even though the plaintiffs addressed this extensively in their appeal.
The defendants suddenly fired their attorney of nearly five years for reason of alleged incompetence on the eve of trial and both the terminated lawyer and the new attorney showed up at the final pre-trial hearing with no trial list or prep in complete violation of the judges strict Pre-Trial orders. When this was presented to the judge, he declined to discipline the defendants for these gross violations. The judge ended the pre-trial hearing by stating that he would see all of the parties five days later at trial.
Two days later, the judge suddenly dismissed the plaintiffs' case sua sponte. The judge disposed of the case citing lack of subject matter jurisdiction based on this previously mentioned blind verbal settlement offer made by defendants at the final pre trial hearing. Although no terms of the alleged offer were ever disclosed to anyone, the judge incorrectly based his opinion solely on Rule 68 Offer Of Judgment cases even though there was never such an offer presented in this case. Rule 68 requires that a written offer be made at least 10 days prior to trial with costs. The Judge even asked the defendants in the final pretrial conference if an Offer Of Judgment had been made and the response clearly stated on the record was: "no".
Although the Third Circuit Court Of Appeals admitted in its opinion that the defendants may have been "grossly negligent" and that it "didn't condone" this type of conduct, they affirmed the lower Federal Court decision 3-0 and blew out the plaintiffs' case completely even though the defendants stipulated in open court to plaintiff's damages to property to the sum of at least $15,0000. To add insult to injury, the plaintiffs have been awarded nothing and are now assessed Republic Western's costs of appeal by the Third Circuit after a denial for a rehearing en banc.
Not only is this a serious consumer issue but an issue of the failure to observe the rule of law at the second highest level in the nation. The action of the court or lack of action is truly disturbing. Additionally, the court opinions and dockets reflect a wealth of incorrect information and errors of record that range from minute issues to severe issues.
Additionally, the consumer deception exhibited by both Republic Western and U-Haul is completely rampant as exhibited by many transcribed statements and documents such as the rent increase letter sent to plaintiffs that states that the defendants were doing all they could to protect the renters' property by keeping the building safe and making improvements. These are false promises that the employees knew were false and made only to force more money from the consumer. There can be no more obvious example of willful and wanton behavior yet the action of the courts in effect protects this type of conduct by allowing the defendants to be completely off the hook to the point of escaping the payment of the insurance money that the plaintiffs paid for.
Marty
Philadelphia, Pennsylvania
U.S.A.
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