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merrick4
Joined: 08 Nov 2006
Posts: 872
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| Posted: Fri May 09, 2008 6:29 pm Post subject: Administrative Ruling 119 (Exempt Commodities) |
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To make a long story short, my friend agreed to take a load. When he found out where it was going he said no way. That place holds you forever. The broker pleaded and he got her to put on the rate confirmation sheet that she would be charged $100 per hour after 4 hours.
Well he was there 12 hours and billed her $800 for detention. She paid for the freight but not the detention. I ended up filing on her bond.
I spoke to the person in charge of the claim at the insurance company and she was very nice but told me that as this was a produce load that is considered an exempt item per FMCSA Adminstrative Ruling 119 and you can't place a claim on their bond.
I looked into it a bit more and found out that there are many items that are considered exempt. I was told that it would be easier to name the things that aren't exempt.
The way I see it, hauling this stuff with the possibility of claims, now no recourse for non payment and you have to ask yourself if this is worth it.
I'm wondering if anyone else knows anything about this (no worries?)? |
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Orangetxguy
Joined: 23 Jan 2007
Posts: 1505
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| Posted: Fri May 09, 2008 6:41 pm Post subject: |
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| And all of those exemptions are the very reason why receivers and shippers alike hold trucks the way they do. |
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allan5oh
Joined: 26 Aug 2005
Posts: 2147
Location: jackassville (winnipeg, mb)
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| Posted: Fri May 09, 2008 6:51 pm Post subject: |
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You can still take it as a civil matter correct?
Just because you cannot place on their bond, does not mean your hands are tied.
They agreed to a contract, and violated said contract. |
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merrick4
Joined: 08 Nov 2006
Posts: 872
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| Posted: Fri May 09, 2008 7:06 pm Post subject: |
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Orangetxguy wrote: And all of those exemptions are the very reason why receivers and shippers alike hold trucks the way they do.
Nevermind the detention, exempt means the freight bill too. That's the worst part.
I did mention about the civil suite too Alan when I called to ask about this and if I'm motivated enough I've been know to do this :wink: |
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rank
Joined: 02 Oct 2006
Posts: 1268
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| Posted: Fri May 09, 2008 8:55 pm Post subject: |
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That's why I don't like the idea of perishables. At least with machinery, once you finally get loaded you have something to bargain with.
Where do we find this list of exempt commodities? |
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merrick4
Joined: 08 Nov 2006
Posts: 872
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| Posted: Fri May 09, 2008 10:23 pm Post subject: |
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Here you go Rank:
www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/372.115.htm |
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BigDiesel
Joined: 01 Apr 2007
Posts: 923
Location: Space... The Final Frontier
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| Posted: Fri May 09, 2008 10:45 pm Post subject: |
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I have not had an issue like this......
The driver knew that this place holds you forever and still went ???? I think this is a good lesson that was learned........... |
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geomon
Joined: 13 Jul 2005
Posts: 580
Location: Sacramento, CA
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| Posted: Fri May 09, 2008 10:58 pm Post subject: |
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| Was the agreement for detention just verbal or was it put into the contract? |
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no_worries
Joined: 18 Apr 2006
Posts: 843
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| Posted: Fri May 09, 2008 11:30 pm Post subject: |
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That's right Rob, much of what we haul in a reefer is exempt. You've seen the list so you know what it covers. I've always used a basic rule of thumb that if it hasn't been processed, it's probably exempt. While this does mean that you can't file on the bond, it certainly doesn't preclude you from going to court. I've never looked at the bond as my primary way of enforcing payment...you have to be willing to go to court if you want your policies to have teeth...and they have to believe that you're willing to go that far.
You've got a rate confirmation with a signed agreement for detention. Hopefully, you've also got some sort of record as to how long the truck was detained. If you don't have that, you're SOL. Ideally, what you want is something time-stamped or otherwise signed off on by the receiver. Being able to prove that you're truck was actually held as long as you say it was is everything.
Assuming you have a suitable record, your next step is a certified letter to the broker (I'd do this anyway). Don't mention anymore than you have to. State that you have a signed agreement for detention, you have a record of how long the truck was detained, and they have failed to pay the $800 owed. If they fail to pay, you will be filing in small claims court (you have to do this in their home county). Not only will you seek the $800 owed, you will be asking the court to award you damages equal to your collection expenses including attorney's fees and lost revenue. You are entitled to these damages should you win. While you don't have to have an attorney in small claims court, you can if you want. People know how expensive attorney's are so it carries some bite. The point is to get the potential award up to the maximum allowed in small claims (differs by state, usually $5000-10,000).
If your friend has worked with this broker before, he might have better luck playing the, "If you ever want our trucks again, you'll do the right thing" card. If this is a one-hit wonder, you'll have to play hardball. My first step would actually be a certified letter simply notifying the broker that their payment is short. Include a copy of the rate confirmation and the invoice and "remind" her that the $800 is still due. Then start taking notes of everything that happens.
If you keep detailed records, dot your I's and cross your T's, you most likely will never get to court. Most people recognize when their beat and cut their losses. But only if they believe you'll play it out to the end. Since you don't have experience with any of this, it might be wise to have your friend contact an attorney and get his advice on how to proceed. Or, small claims court is relatively simple, I know you like to read so you could actually figure it out yourself.
As I said, the single most important part of a detention policy is being able to prove you were actually detained. If you have that and a written agreement, you'll win in court every time. If not...you can always try bluffing :wink:
But yes, exempt commodities are a hazard of pulling a reefer. The bond is worthless as a form of protection. This covers all produce and nursery, along with a ton of other stuff.
By the way, OOIDA has a legal department the dispenses advice on such matters and a department that will assist in collections :wink: |
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Chiefwhatdahey
Joined: 09 Dec 2004
Posts: 62
Location: Shawano, WI.
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| Posted: Wed May 14, 2008 10:26 pm Post subject: |
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If you have the detention in writing the broker is on the hook. You'll most likely have to file small claims in their county and once you get a judgement there is no garauntee they will pay which means another trip to court.
Next time demand the full invoice upon delivery via Comcheck including the detention. |
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