Author Topic: Me vs. Moving Company  (Read 7619 times)

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NefertitiX

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Me vs. Moving Company
« on: April 04, 2016 03:27:23 PM »
I need to pick your brains re: a consumer issue, possibly a small claims case. I'm in Georgia (though I lived in NY at the time the moving company was contracted).

I contracted with a moving company and paid a deposit. I provided them a form from my landlord indicating all the certificates of insurance required for them to effect the move. They only sent 2 of the 4 required COIs and sent movers on the day of move knowing they didn't have all the COIs. I called over and over and over on that day trying to clear this up with them and they wouldn't ever answer or provide any reassurance that the issue would be resolved that day or the next. At COB, I cancelled the move and hired other movers to make sure I'd be out in time. Based on them (1) not initially providing the necessary COIs and (2) not responding to my communication or providing reassurance at any point during the scheduled move day, I had no confidence they'd actually resolve the issue and cancelled the move in anticipatory breach of contract. I cancelled because of what happened the day off and I believed it'd happened again the next day and I would be on the hook for an additional $150.00 hr when they sent another set of movers without COIs. Any thoughts? Now they won't give me any of my deposit back despite the fact that they failed terribly on the day of. I'm thinking of taking them to court, am I right and do I have a case re: anticipatory breach?

Thanks in advance for any help you can offer.

BTW, here's what their contract says re: cancelling/rescheduling:
"RESCHEDULE / CANCEL OF SERVICE: Rescheduling your move date must be submitted in writing by the customer at least three (3) business days prior to service date, in order to avoid a rescheduling fee of $200.00. Cancellations for services completed more than 48 hours after booking will result in a forfeiture of the deposit, and is not refundable. The deposit can be used toward a future move within six months of your original move date. All cancellations for services made by customer less than three (3) business days prior to service date (including onsite service cancellation made by customer) do to unforeseen circumstances, or any additional services added to the account such as packing services, additional items to be moved, overnight service, storage services or packing materials usage, that are not included in the initial Estimate Cost For Service that was signed and approved by customer, the customer is fully responsible and will be charged the entire total Estimate Cost For Service given prior to service date. On site service cancellations will forfeit their deposit and may incur additional charges if the driver has started loading the truck. Customers will be charged $150.00/hr from the time they left the warehouse until they time they return. A customer will also be charged for any packing material used."

Bruno the JDB Killer

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Re: Me vs. Moving Company
« Reply #1 on: April 04, 2016 03:58:56 PM »
I would argue that since they never fulfilled their end of the contract, they are not entitled to keep the deposit.  If no valid contract was ever formed, the terms of that contract are moot.

If they had provided the paperwork you asked for and you then cancelled, they might have a case, but that is not what happened.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

wombat_ma

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Re: Me vs. Moving Company
« Reply #2 on: April 04, 2016 05:45:29 PM »
Was a COI requirement written into the contract?
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cgoodwin

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Re: Me vs. Moving Company
« Reply #3 on: April 04, 2016 06:17:09 PM »
Sounds like a breach to me.  If they could not provide the service the day of the move because their failure to meet the requirements, that is not a cancellation on the customers part, that is a failure to perform on the businesses part.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

wombat_ma

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Re: Me vs. Moving Company
« Reply #4 on: April 04, 2016 06:24:06 PM »
Sounds like a breach to me.  If they could not provide the service the day of the move because their failure to meet the requirements, that is not a cancellation on the customers part, that is a failure to perform on the businesses part.

Correct, provided it could be proven that they were contractually required to provide necessary COI's.
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Bruno the JDB Killer

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Re: Me vs. Moving Company
« Reply #5 on: April 04, 2016 07:52:38 PM »
They were informed by the customer of the requirement, which the customer can easily prove. They provided some of what is required, which means they received the request. They failed to provide the necessary information, which the customer clearly told them was a requirement to use their services. They declined, so they never actually formed a valid contract.

A one size fits all contract is a contract of adhesion. These are under el-contracto preferentum, or some such name I cannot recall. (mental block) I would sue them in small claims for this one.
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wombat_ma

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Re: Me vs. Moving Company
« Reply #6 on: April 04, 2016 08:18:58 PM »
They were informed by the customer of the requirement, which the customer can easily prove.

If the OP did not inform them in writing, how to prove? He-said, she-said.
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NefertitiX

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Re: Me vs. Moving Company
« Reply #7 on: April 04, 2016 08:48:36 PM »
I really appreciate the replies. The COI requirement was communicated to them via email so we have proof that they knew the requirement. The contract acknowledges that COIs are required and we did notify them of COI requirements on both ends so they can't say they its not part of the contract or that they didn't know.

From their contract:
"CERTIFICATE OF INSURANCE: Some buildings require a certificate of insurance from the mover. Please check with your building management at both current and new locations regarding their requirements. Please notify your Relocation Specialist and we will be glad to assist you. Note: A fee may apply depending on building requirements."

Bruno, I have to do some research on "contract of adhesion" and el-contracto preferentum.

wombat_ma

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Re: Me vs. Moving Company
« Reply #8 on: April 04, 2016 09:10:37 PM »

Bruno, I have to do some research on "contract of adhesion" and el-contracto preferentum.


In this situation - not much need for that. What it basically means is that the contract is a boilerplate one, drafted by one party and offered to the other party on "take it or leave it basis" with no say in the terms. Because of this unequal power in setting the terms, the ambiguities in the contract are supposed to be resolved in the powerless party's favor (a doctrine of contra preferentem).

Since one party had committed a material breach of this contract (failed to deliver all required COI's in this case), it releases the other party from their further obligations under the breached contract.

So it appears that you did not "cancel" per terms of the contract, the moving company failed to perform and thus self-canceled releasing you from your obligation to proceed.

Just my opinion..:-)


« Last Edit: April 04, 2016 09:30:58 PM by wombat_ma »
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NefertitiX

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Re: Me vs. Moving Company
« Reply #9 on: April 04, 2016 09:28:56 PM »
Wombat,

Lovely, thanks for the explanation. I definitely plan to take them to small claims now...I just have to figure out how to file it where their business is located.


wombat_ma

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Re: Me vs. Moving Company
« Reply #10 on: April 04, 2016 09:38:58 PM »
Wombat,

Lovely, thanks for the explanation. I definitely plan to take them to small claims now...I just have to figure out how to file it where their business is located.

My pleasure. It is possible to say that their "product" is not just people and trucks, but people, trucks and COI's. So they were unable to deliver the contractually promised "product" to you.

I am not an attorney. My posts here are not legal advice.

Flyingifr

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Re: Me vs. Moving Company
« Reply #11 on: April 04, 2016 10:40:56 PM »
If the OP did not inform them in writing, how to prove? He-said, she-said.

It is not he-said-she said; The mover provided some of the documents so the mover knew documents had to be provided. When notified of the missing documents the mover knew all he had to know and chose to ignore remaining document request.
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cgoodwin

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Re: Me vs. Moving Company
« Reply #12 on: April 04, 2016 11:36:06 PM »
If it is a national company, they should have a registered agent in the state where the move was to take place.  They know about the local ordinances so they likely conduct business there.  So them there and serve their registered agent.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

fisthardcheese

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Re: Me vs. Moving Company
« Reply #13 on: April 05, 2016 10:37:08 AM »
If it is a national company, they should have a registered agent in the state where the move was to take place.  They know about the local ordinances so they likely conduct business there.  So them there and serve their registered agent.

+1

Go to the GA secretary of state's website and do a "corporation search" for the moving company.  It will give you an address of their registered agent in the state.  The location of that registered agent is the County you will have to sue them in.  In GA, small claims court is called Magistrate Court. You can look up that county's Magistrate court website to see what the filing fees are and in many cases you can get a simple complaint form to fill out.
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Bruno the JDB Killer

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Re: Me vs. Moving Company
« Reply #14 on: April 05, 2016 02:43:17 PM »
I really appreciate the replies. The COI requirement was communicated to them via email so we have proof that they knew the requirement. The contract acknowledges that COIs are required and we did notify them of COI requirements on both ends so they can't say they its not part of the contract or that they didn't know.

From their contract:
"CERTIFICATE OF INSURANCE: Some buildings require a certificate of insurance from the mover. Please check with your building management at both current and new locations regarding their requirements. Please notify your Relocation Specialist and we will be glad to assist you. Note: A fee may apply depending on building requirements."

Bruno, I have to do some research on "contract of adhesion" and el-contracto preferentum.



It's contra proferentem. Generally it means the contract should be interpreted against the person who drafted it if there is a conflict.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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