Justices order new trial in Mingo wrecker case

By Steve Korris | Jun 13, 2007


CHARLESTON – Mingo Circuit Judge Michael Thornsbury rewarded wrecker Kenneth Cox for deceitfully holding a vehicle, according to a May 25 opinion of the West Virginia Supreme Court of Appeals.

The Justices unanimously ordered a new trial with a new winner.

Last year Thornsbury entered a $5,800 judgment against General Motors Acceptance Corporation on a lien of Cox and D. C. Wrecker Service.

Thornsbury sided with Cox even though Cox tried from the outset to charge $5,000 for storing a 2002 GMC pickup truck.

Thornsbury did not award the entire $5,000 lien, because state law limits such a lien to $1,500.

On top of the $1,500, he added $4,500 in punitive damages. He declared GMAC's conduct reprehensible.

For GMAC, he allowed a $200 offset for a broken window but he awarded nothing for a year and a half of depreciation.

If he brings it to trial again, Cox will get zero and GMAC will win damages for depreciation.

The Justices made sure Thornsbury got the message that they thought he had made a big blunder.

Justice Larry Starcher, who typically doesn't side with big business, delivered the opinion.

'Principles of equity and unclean hands barred Cox from asserting the improver's lien," he wrote, also calling the $5,000 fee outrageous.

He found no evidence that would warrant an award of punitive damages.

Cox hooked up the GMC after a collision near Red Jacket in 2003. Driver Randy Moore asked Cox to tow it to his house, about 500 feet away.

Cox said that for faster insurance payment, he had to tow it to his lot. Moore dropped by about a week later but did not see Cox. Moore left a phone message but Cox did not return the call.

About three weeks after the crash, Moore's aunt reached Cox. He said he would release the truck when Moore paid the bill. He said the bill would be four or five thousand.

Moore did not pay. Cox towed the truck to his home. Eight months after the crash, Moore stopped sending GMAC his monthly payments on the truck.

In 2004, GMAC asked Cox for the truck. Cox asked for $5,000, though he later left a phone message that he would accept $3,900.
Instead of paying, GMAC sued for declaratory judgment. Cox and D. C. Wrecker filed a counterclaim.

Mediation in 2005 did not settle the dispute, but Cox released the truck. He had kept it for 569 days.

Thornsbury held trial without a jury Oct. 18, 2005. He signed an order Feb. 15, 2006, upholding the lien. He ruled that Moore consented to Cox's towing and storage.

On behalf of GMAC, Andrea Reynolds of Huntington appealed. Gregory Smith of Williamson represented Cox.

Justices heard oral arguments Feb. 13. They all agreed that Thornsbury got it backward.

"Moore did not 'consent' to Cox's towing the vehicle to Cox's impound lot," Starcher wrote. "In fact, it appears that Cox deceived Moore into believing that Moore had no choice…

"Had Cox towed the vehicle, as requested, to Moore's residence, Cox and D. C. Wrecker would have been entitled to a reasonable fee for towing, but obviously not for storage.

"Consent obtained by fraud, deceit, or other improper or unconscionable means is not voluntary…"

Starcher wrote that Thornsbury should have considered whether the $5,000 fee "placed Moore in a situation where it was not possible for him to pay."

He wrote that Moore likely would have paid a reasonable storage fee. He wrote that a $210 fee, at $10 a day for three weeks, would have been reasonable. He wrote that $5,000 was outrageous.

"GMAC never gave its consent, express or implied, for Cox to store Moore's vehicle," Starcher wrote. "GMAC's suit was not evidence of 'reprehensible conduct,' but rather an action based on a bona fide claim of right.

"The trial court erred in finding that GMAC was not entitled to damages for depreciation of the value of the vehicle while in storage; we believe that the record in this case clearly supports the appellant's right to damages on this claim."

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