GONZALO CHIRINO, FELIX D. JAY, ANDREW ANKLE, GARY JOSEPHS, RENE CAMPBELL, ASTON HEMLEY and MARYAN VASYUTA, Plaintiffs-Respondents,
PROUD 2 HAUL, INC., and IVANA KOPROWSKI, Defendants-Appellants.
March 16, 2017
appeal from Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-6191-11.
G. Capece argued the cause for appellants (Garrubbo &
Capece, PC, attorneys Mr. Capece, of counsel; James J.
Seaman, on the briefs).
Tykulsker argued the cause for respondents (David Tykulsker
& Associates, attorneys; Mr. Tykulsker, on the brief).
Judges Alvarez, Accurso, and Manahan 
are members of a certified class of truck owner-operators who
deliver sealed containers originating at the Port of New
Jersey to customers in the northeast. Defendant Proud 2 Haul,
Inc. (P2H) is the company through which orders are placed,
registered with the Federal Motor Carrier Safety
Administration, and subject to Truth in Leasing (TIL)
regulations, 49 C.F.R. pt. 376, in conjunction with the Motor
Carrier Act (MCA), 49 U.S.C. §§ 13901, 13902,
14102, and 14704. Defendant Ivana Koprowski is P2H's
principal. Plaintiffs' complaint, in broad terms, sought
damages for defendants' failure to have lease agreements
in place, as required by federal law, enumerating deductions
to be taken from their payments. See § 49 C.F.R. 376.12.
Over the course of nine months, plaintiffs were granted
several orders awarding partial summary judgment. On the day
scheduled for trial on the remaining issues, the parties
settled the matter, preserving defendants' right to
appeal some of the relief awarded by the orders. For the
reasons that follow, we affirm.
1B of the parties' settlement agreement reads in
pertinent part that defendants would appeal:
[O]n a specific and delineated set of issues concerning the
court's previous decision awarding damages under the
[MCA] in its decisions of November 15, 2013; paragraph 2 of
the decision of December 20, 2013; February 14, 2014;
February 28, 2014 and paragraph 5 of the decision of July 11,
2014 ("the Appealable Orders").
paragraph 7, the settlement agreement further states:
Defendants shall limit their appeal to the Appealable Orders
and shall limit the issues raised to
a. [W]hether proof of "exact damages" sustained by
each plaintiff as opposed to a fair and reasonable estimate
is required for monetary compensation under the [MCA], and
b. [W]hether [d]efendants were required to have a written
lease with the plaintiffs during the period from June 4,
2012, to March 31, 2014.
briefly describe the relevant circumstances. Plaintiffs'
causes of action arise in part from a November 19, 2010 lease
agreement between them and P2H. That agreement provided that
P2H would reimburse taxes included in the price of diesel
fuel for plaintiffs' trucks. Defendants initially claimed
the agreement was void because it was entered into in error,
later withdrawing that defense. The fuel taxes, like the
other charges at issue, were not reimbursed and were actually
deducted from the agreed-upon percentage of gross receipts
paid to plaintiffs for making their deliveries.
convenience, P2H supplied plaintiffs with a Wright Express
(WEX) Gas credit card that most owner-operators used to make
their fuel purchases. The trucks run only on diesel fuel,
however, the drivers were also permitted to use the card to
purchase gasoline for their personal vehicles.
remaining issues on appeal arise from a June 2012 agreement
P2H entered into with Trucking Support Services, LLC, doing
business as Contracts Resource Solutions (CRS). According to
Koprowski, she entered into the arrangement to insure the
drivers were considered independent contractors, and not
defendants' employees. In accord with the agreement, CRS
assumed responsibility for much of the paperwork generated by
the deliveries, and the owners, in turn, entered into
separate agreements leasing their equipment to CRS. Only P2H
accepted and placed delivery orders. CRS in turn assigned the
services and equipment it leased from the drivers to P2H.
Plaintiffs' complaint alleged that defendants violated
the TIL laws by virtue of the arrangement with CRS, in
addition to violating the Wage Payment Law, N.J.S.A.
34:11-4.1, and engaged in acts of conversion and fraud.
to the orders, the November 15, 2013 partial summary judgment
enforced the lease agreement between the parties requiring
reimbursement of the fuel taxes, and held that defendants
violated its terms. Damages were calculated at $382, 753.68.
The court found defendants breached their contracts with
plaintiffs, in violation of 49 C.F.R. § 376.12(h). The
court's damage calculation was based on WEX records
subpoenaed by plaintiffs. The court also awarded prejudgment
interest of $18, 663.17, $275, 463.30 in attorney's fees,
and $8, 896.62 in costs.
had difficulty obtaining the documents necessary to resolve
the issue, as defendants' records suffered damage after
Sandy, and therefore only WEX itself had a complete account
of the charges. The WEX records, however, do not distinguish
between diesel and gasoline purchases.
the records did not include diesel purchases made by drivers
who elected not to use the WEX card. That calculation was
resolved by way of the settlement, and defendants agreed to
be liable for 69.70% of the amount plaintiffs' expert
determined was owed.
trial court brief in opposition to plaintiffs' motion for
summary judgment, defendants denied that they were bound by
the lease term providing for reimbursement. They did not,
however, argue that the judge's quantification of damages
was erroneous, as a result of the possible inclusion of
personal gasoline purchases made on the WEX card, or for any
did not argue that the TIL regulations require damages to be
exact. That argument was raised months later in the
litigation, only with regard to plaintiffs' claim that
$4, 481, 747.37 was due and owing in total to plaintiffs for
other monies withheld from their pay. The argument was never
raised with regard to the damage calculation for WEX users
until the appeal was taken.
trial court granted plaintiffs partial summary judgment on
December 20, 2013, finding in Paragraph 2 that defendants
were in violation of "49 C.F.R. § 376.12(a) as of
May 27, 2012, by failing to have in place a written lease
agreement with each owner-operator." The judge denied
reconsideration of his decision on February 14, 2014.
reconsideration opinion, the judge observed that
"defendants have abandoned their prior legal theory
(that conforming leases with the 'owner' - meaning
the owner-operators - were in existence) in favor of a new
theory based on further legal research by defense counsel in
the 'definition' section of the TIL regulation."
In addition to further research conducted after the initial
motion decision, defendants also consulted with an
"unidentified expert." The judge refused to grant
relief based on a new legal theory after "more than nine
months on various motions for summary judgment."
new legal theory was that the members of the class were not
the owners of the equipment as defined in TIL regulations,
rather, that CRS was the owner. Despite his rejection of the
argument because it could have been made earlier, the judge
went on to address its merits. Defendants' new position
hinged on their definition of "owner" as a person
or entity having ...