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ICU Investigations, Inc. v. Simonik Moving & Storage

August 14, 2009


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1456-06.

Per curiam.


Argued: May 20, 2009

Before Judges Axelrad, Messano and Kestin.

Plaintiff ICU Investigations, Inc. (ICU) appeals from the trial court's ruling that its state law claims for consumer fraud, common law fraud and breach of contract are preempted by the Interstate Commerce Commission Termination Act (ICCTA). We affirm in part and reverse in part.

On or about January 30, 2006, defendant Simonik Moving & Storage, Inc. (Simonik) provided ICU with a written "Estimated Costs of Services," which calculated an estimated cost of $2,500 for moving ICU's business office contents from its old location in Marlton to its new location in West Berlin. The document also contained a disclaimer, stating it was merely an estimate, and "[a]ll charges are subject to actual time plus travel or actual weight, whichever is applicable." The parties entered into a contract on or about March 30, 2006, for Simonik to move ICU on April 28, 2006.

On the scheduled move date, Simonik appeared at ICU's Marlton office, loaded the contents onto its truck and moved the items as contracted to ICU's West Berlin office. According to ICU, it tendered a $2,500 check but Simonik demanded an additional $800 payment and its employees threatened to hold ICU's property in storage until that payment was tendered. Following a dispute as to the propriety of the additional charges, ICU's equipment was ultimately unloaded. ICU thereafter stopped payment on the $2,500 check.

ICU filed a complaint, followed by three amended complaints, eventually settling on class action claims for violation of the Public Movers and Warehousemen Licensing Act, N.J.S.A. 45:14D-1 to -29, and the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -167; and individual claims for violation of the same two acts, as well as breach of contract and common law fraud.*fn1 The basis for ICU's class action CFA claim was that Simonik underestimated charges to potential customers to induce them to use Simonik for moving services, i.e., it underestimated the amount of time necessary to complete the move and the number of men to be used in the move, billed for a "supervisor" when such person was not included on the estimate, failed to disclose the fuel surcharge in the estimate and then imposed it before unloading the moved goods, and over-billed for the time of the move. ICU accused Simonik of "bait and switch" practices perpetuated upon customers with little leverage because their possessions were locked in a truck and would not be released until "specious and/or previously undisclosed charges" were paid. ICU asserted as an "ascertainable loss" that it was charged more money than estimated even though it had fewer items moved than were originally in the estimate, and it lost employee productivity when its employees unloaded the moving vans after ICU disputed the charges and Simonik's employees refused to continue. In its individual CFA claim, ICU further alleged Simonik wrongfully sought to increase the fees and costs before ICU's property was unloaded; retained ICU's goods when it refused to tender an additional payment; and refused to unload the truck, forcing ICU's personnel to do so, which damaged ICU in the form of lost productivity and benefit of the moving bargain.

ICU's breach of contract claim is premised on the same allegations. As to the fraud claim, ICU alleged it relied on Simonik's estimate to hire it as the "low bidder," the mover deliberately did not provide an accurate estimate so it could obtain the job and utilize the "power disparity" it obtained to impose additional fees when ICU's property was locked on the truck, and completed the fraud scheme by refusing to unload the truck and demanding additional fees. ICU sought compensatory and punitive damages on this count.

Simonik filed an answer and counterclaim to the third amended complaint on September 19, 2007. The counterclaim was dismissed with prejudice by order of August 18, 2008, which Simonik has not appealed.

On February 25, 2008, the court ordered ICU to file a motion for partial class certification by March 21, 2008. After the filing date came and went, Simonik, pursuant to a management conference, filed a motion to dismiss ICU's complaint as preempted by the ICCTA, specifically 49 U.S.C.A. § 14501(c)(1). ICU filed opposition along with a cross-motion to extend discovery. Following oral argument, the court concluded the ICCTA did preempt each of ICU's state law causes of action, although the court allowed ICU's counsel a limited period of time to decide whether ICU would amend its complaint to add a cause of action for the limited civil remedies afforded under the ICCTA. See, e.g., 49 U.S.C.A. § 14705(b) (permitting recovery of overcharges against a carrier). Following a dialogue between the court and counsel, it was decided that ICU would not amend its complaint and the complaint and counterclaim would thus be dismissed with prejudice. The court entered an order to that effect on August 18, 2008. This appeal ensued.

On appeal, ICU argues the trial court erred by concluding the ICCTA preempted its CFA, common law fraud and breach of contract claims because: (1) the statute expressly provides that its civil remedies are in addition to state law remedies, 49 U.S.C.A. § 13103; (2) the type of bait-and-switch conduct as occurred here is unrelated to the "price, route, or service of any motor carrier" preempted by 49 U.S.C.A. § 14501(c)(1) as interpreted by the case law; (3) the United State Supreme Court has specifically held that federal transportation deregulation statutes do not preempt state law breach of contract actions, Am. Airlines v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed. 2d 715 (1995); and (4) the statute defines its jurisdiction to exclude purely intrastate moves such as the one at issue here, 49 U.S.C.A. § 13501.

Simonik counters that Congress and the federal and state courts have all concluded that the type of claims asserted by ICU in its complaint, which arise from the intrastate transportation of non-household goods, are either expressly or by implication preempted by federal law. According to Simonik, like the statutory provisions pertaining to the airline, railroad and water carrier industries, the ICCTA provision applying to the motor carrier industry unambiguously prohibits States from enacting or enforcing laws and/or regulations "related to the price, route, or service of any motor carrier" with respect to the intrastate transportation of non-household goods. 49 U.S.C.A. § 14501(c)(1), (2)(B). Simonik emphasizes that this provision has been interpreted broadly to preempt virtually all varieties of State claims. The reasoning behind these interpretations is that the regulation, as achieved through the federal government's power to preempt state law, serves the dual purpose of avoiding conflicting rules of substantive law in an industry where uniformity is essential, while promoting efficiency by leaving control of as many aspects of the industry as possible to the competitive marketplace. Accordingly, Simonik contends the trial court correctly concluded that ICU's claims fell within the preemptive scope of the "related to" language of Section 14501 and properly dismissed ICU's complaint in its entirety with prejudice.


When an appellate court is reviewing issues that are purely legal in nature, such review is de novo, and no deference need be shown to the trial court's interpretation of the law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

A court's primary goal when interpreting a statute is to determine the legislature's intent. O'Connell v. State, 171 N.J. 484, 488 (2002). A court examines intent by first looking to the plain language of the statute, ibid. ("[a] court may neither rewrite a plainly-written enactment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language"), assigning the common law definitions of statutory terms unless evidence exists that Congress intended otherwise, see United States v. Shabani, 513 U.S. 10, 13, 130 L.Ed. 2d 225, 229, 115 S.Ct. 382, 384, (1994). However, if a court concludes the statutory language is ambiguous and there is more than one plausible interpretation, it may look to extrinsic evidence, including the legislative history of the statute. Burnett v. County of Bergen, 198 N.J. 408, 421 (2009) (internal citations omitted). Courts may also do so if a plain reading of the statute leads to an absurd result. Ibid. "It is well-established that statutes must be read in their entirety; each part or section should be construed in connection with every other part or section to provide a harmonious whole." Bedford v. Riello, 195 N.J. 210, 224 (2008).

The preemptive effect of the ICCTA on ICU's causes of action is best understood by examining the context in which Congress enacted the statute and the interpretations courts have afforded the ICCTA and related statutes over the years. We thus provide a ...

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