5, - psc.state.wv.us

PUBLIC SERVICE C O ~ ~ I S S I O N OF WEST VIRGINIA

CHARLESTON

At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 24& day of September 2021.

CASE NO. 20-0796-MC-GI

GENERAL INVESTIGATION RELATING TO STATEWIDE WRECKER RATES AND RATES FOR ANCILLARY EQUIPMENT.

COMMISSION ORDER

The Commission approves the Joint Stipulation and Settlement Agreement and adopts the stipulated tariff, filed on May 13, 2021, with modifications as discussed herein.

BACKGROUND

On July 5 , 2017, the Commission eliminated the TOW process and the applicability of Tariff Rule' 19-A to third-party tow services and adopted the State Maximum Tariff authorizing the statewide rates that a carrier may charge for the recovery, towing, hauling, carrying or storing of a wrecked or disabled vehicle and the use of special equipment in towing and recovery work. &, General Investigation Relating. to Statewide Wrecker Rates and Rates for Ancillary Equipment, Case No. 16-0940-MC-GI (Final Order, July 5 , 2017). The State Maximum Tariff rates took effect for all third-party tow operators by or before August 7,2017.

On October 21, 2020, the Cornmission initiated this proceeding to review the 2017 State Maximum Tariff rates and directed Commission Staff to conduct an investigation by obtaining financial data from a representative sample of motor carriers and comparing prices for wrecker services in the region. The Commission scheduled the evidentiary hearing for May 18, 202 1, and required statewide notice by publication.

The Executive Secretary filed affidavits evidencing compliance with the publication requirements in several counties throughout the state, however, at the time of this Order proof of notice of publication in Marion and Ohio counties remained outstanding. &, Affidavits filed Oct. 22, 2020 through May 6, 202 1.

' Commission Rules for the Construction and Filing of Tariffs, 150 C.S.R. Series 2, effective Jan. 11,2015 ( m f f Rules).

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Nicely’s Towing and Cogan’s Wrecker Service, Inc. each filed initial comments regarding the general investigation. Comments filed Nov. 4,2020 and Jan. 1 1,202 1.

The Commission granted the petitions to intervene of several parties, including the West Virginia Towing and Recovery Association (WVTRA), Owner-Operator Independent Drivers Association (OOIDA), and Enterprise Holdings Inc., dba Enterprise Rent a Car. Comm’n Orders (Dec. 3,2020, Dec. 10,2020, Dec. 23,2020).

To perform its investigation, Staff sent discovery requests to W T R A and Nicely’s Towing. Requests filed Nov. 16 and 20, 2020. WVTRA objected to Staffs request and did not provide the information Staff requested. Objection filed Nov. 30, 2020. Nicely’s Towing responded, in-part, to Staffs request and provided forty-one third-party tow invoices but objected to providing any financial information. Response filed Dec. 11, 2020 (confidential version); Feb. 23, 2021 (public version). Nicely’s Towing requested that the Commission grant protective treatment to certain customer information contained within the invoices. Motion for Protective Treatment filed Feb. 23, 202 1.

The Parties filed the following witness testimony recommending changes to the State Maximum Tariff rates:

Party

WVTRA

Staff

OOIDA

Witness Filing Date

Chris Reed - Direct / Rebuttal Joseph Pifer - Direct only

March 22,2021 / April 21,2021 March 22,2021

Jennifer Warner - Direct / Rebuttal

Michael Matousek - Direct / Rebuttal

March 22,2021 / April 21,2021

March 22,202 1 / April 2 1,202 1

Staff submitted a proposed tariff recommending an increase for most rates based on inflation. Staff Ex. JW-D at 9-14 and Attachment A. WVTRA also provided a proposed tariff that suggested rate increases higher than Staff recommended. WVTRA Ex. CR-D at 3-9, Ex. 1.

On May 13, 2021, Staff and WVTRA (collectively, Stipulating Parties) filed a proposed Joint Stipulation and Settlement Agreement (Joint Stipulation) that included a stipulated tariff. On the same day, OOIDA filed a notice of withdrawal stating that it would not participate in any further proceedings.

The Stipulating Parties requested that the Commission approve and adopt the Joint Stipulation as the final resolution in this proceeding. The Joint Stipulation provides, in part:

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(i) Stipulating Parties and is without prejudice to either party;

That the Joint Stipulation acceptably resolves all issues raised between the

(ii) That the Stipulating Parties had several discussions on the issues involved in this case and reached a settlement which, if accepted by the Commission, will resolve this case as it pertains to the Stipulating Parties;

(iii) That the Joint Stipulation resulted from a review of all the evidence, filings, discovery responses, and pre-filed testimony in the case, the existing statutory and regulatory framework, and good faith negotiations;

(iv) That the record supports the provisions of the Joint Stipulation;

(v) bound by its terms. Joint Ex. 1 at 77 3-6, 11.

That OOIDA did not participate in this Joint Stipulation and therefore is not

The Commission held the evidentiary hearing on May 18, 2021. The Stipulating Parties were present and represented by counsel. The commission admitted each parties’ pre-filed testimony and the Joint Stipulation into the record. Mr. Pifer, Owner of Pifer’s Service Center and Mr. Reed, President of WVTRA, sponsored the Joint Stipulation and testified in support thereof. The Commission solicited written comments from the public and did not receive oral comment at the hearing due to the COVID-19 pandemic.

The transcript and exhibits from the evidentiary hearing became available on May 24,202 1. (Reference to transcript appear throughout as “Tr.”)

DISCUSSION

Motor Carrier Rule 5.13 .a.2 states that the Commission will periodically review existing statewide maximum wrecker rates for third-party tows, including the rates for the use of special equipment in towing and recovery work, to ensure that rates are fair, effective and reasonable. The Commission initiated this general investigation in accordance with Procedural Rule 6.3.1.3 and Motor Carrier Rule 5.13.a. to review the State Maximum Tariff rates in order to determine what, if any, rates should be modified to achieve fair, effective and reasonable rates based primarily on the cost of providing services. The Commission directed Staff to conduct aa investigation of the statewide tow rates and charges.

Ms. Warner, a Utilities Analyst in the Commission’s Utilities Division, provided direct testimony detailing Staff‘s review of the rates and charges and the recommended

* Commission Rules Governing Motor Carriers, Private Commercial Carries, and the Filing of Evidence of Insurance and Financial Resuonsibilitv by Motor Carriers, 150 C.S.R. Series 9, effective Aug. 29,2016 (Motor Carrier Rules).

Commission Rules for Practice and Procedure, 150 C.S.R. Series 1, effective Feb. 8,2019 (Procedural Rules).

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revisions to the State Maximum Tariff. See, Staff Ex. JW-D. Staff was unable to obtain data from a representative sample of motor carriers to perform a review of current tow and recovery charges. Of the 326 wrecker companies registered with the Commission’s Transportation Department, only one company provided invoices and no financial information was submitted in response to Staffs discovery requests. As a result, Staffs recommended tariff rates are based on the State Maximum Tariff rates and increased by the Consumer Price Index (CPI) to account for inflation from July 20 17 to January 202 1. Staff compared the rates to those of Maryland, Virginia and Tennessee and found that our rates are reasonable compared to these other jurisdictions. Staff Ex. JW-D at 6-9.

At the hearing, Mr. Reed explained that during the pendency of this proceeding he participated in lengthy settlement negotiations with Staff and OOIDA concerning each parties’ proposed modifications to the State Maximum Tariff. After reaching an impasse, the parties scheduled a final settlement conference. OOIDA, however, did not participate in the final settlement conference or the evidentiary hearing. Hearing Transcript (Tr.) at 20-21 filed May 24,202 1; See, Motion to Withdrawal filed May 13,2021.

The Commission is charged with ensuring that the rates and practices of towing companies that perform non-consensual tows are reasonable. W.Va. Code $6 24A-1- 1, 24A-2-3. As such, the Commission must ensure that the terms of the Joint Stipulation, including the stipulated rates and charges, are reasonable. We find that the rates outlined in the Joint Stipulation are supported by the record in this case and are fair and reasonable, except for the two provisions discussed below.

Section 2: Accident and Recovery Wrecker Rates

During the hearing, Mr. Reed referred to a note that Staff recommended adding in section two of the tariff, but was not included in the stipulated tariff, that reads:

Note: Accident and recovery rate only applies to wrecker used for towing purpose, if multiple wreckers are required, any wreckers used to assist in accident and recovery are to be charged at the appropriate tow and go rate from section 1. Staff Ex. JW-D at Attachment A, p. 2.

Staff proposed the note to discourage towing companies from dispatching and billing for more wreckers than are needed at an accident scene. According to Ms. Warner, Staff has processed numerous complaints involving third-party tow billing disputes in which a towing company sends multiple wreckers to an accident scene and, aside from the wrecker that actually performed the tow, it is unclear what role, if any, the additional wreckers played in assisting in the recovery. Staff Ex. JW-D at 10.

WVTRA and OOIDA each considered the proposed note pivotal to whether they would support Staffs recommended tariff. WVTRA objected to Staffs proposed note

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because the note does not account for instances where more than one wrecker is required to safely perform a recovery. For example, an overturned fully-loaded tractor trailer may require the assistance of two heavy-duty wreckers. Tr. 24-28. Conversely, OOIDA strongly urged the Commission to adopt the note as proposed by Staff. Mr. Matousek provided that OOIDA, as an insurer, has received towing invoices that too often lack clarity regarding which wreckers were actually used in the tow and why multiple wreckers were dispatched to the accident site. OOIDA believes the proposed note will address the abuse that the existing tariff language permits. OOIDA Ex. MM-D at 5.

There may be instances that provide good reason to allow more than one heavy- duty wrecker company to charge the Accident and Recovery Wrecker Rates, especially when the accident scene requires multiple wreckers to safely perform the recovery. However, the unreasonable practice of charging the Accident and Recovery Wrecker Rates for wreckers that do not perform the recovery but merely assist with tasks secondary to the recovery should not occur. For this reason, Commission will adopt a modified version of Staffs proposed note and modify section two of the stipulated tariff to read as follows:

2. ACCIDENT AND RECOVERY WRECKER RATES

Rates to include the wrecker, driver and any specialized equipment with a purchase cost of $500.00 or less, manufacturer’s supplied footage of winch line based on wrecker used, and a Crashntility TrailedService Truck or any vehicle used to transport specialized equipment and/or laborers to and from accident scene.

The Accident and Recovery Wrecker Rates are for a single wrecker vehicle unless an additional vehicle or vehicles are required as specified herein. If an additional wrecker or wreckers are dispatched to the scene of an accident and are used other than for work that requires multiple wreckers (rightening overturned vehicles, hauling or winching vehicles, etc.) the rate for such additional wrecker or wreckers shall be the Tow and Go Hourly Rates from Section 1 . Where more than one wrecker is used the towing company shall maintain adequate records to support the need for multiple wreckers and the use of the Accident and Recovery Wrecker Rates for more than one wrecker vehicle.

Section 8: Specialize /Ancillary Equipment

Currently tow operators are authorized to charge an Administrative Fee equal to five percent of the invoice service charges, excluding any fuel surcharge or storage fees. Case No. 16-0940-MC-GI at Attachment B, Sec. 8. The Stipulating Parties propose that

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the Administrative Fee remain at five percent but that the tariff provision be modified to add the following clarifying language:

This rate is allowable for major Accident and Recovery services only. Fee is applied to all charges excluding fuel surcharge fee, high risk exposure, bio-hazardous exposure and storage fees.

Joint Ex. 1 at Ex. 1, page 5; See also, Staff Ex. JW-D at 10.

OOIDA urged the Commission to cap the Administrative Fee at five percent or $500.00, whichever is less. In support of the request, Mr. Matousek reasoned that

The Administrative Fee can be manipulated to the detriment of OOIDA and other entities (including consumers) who utilize third-party tows. OOIDA does not believe that there is any additional true administrative distinction between tow operations based solely on the size of the recovery. Yet the rule, as written, allows a blanket 5% charge based on the total size of the recovery bill as opposed to actual administrative duties. OOIDA Ex. MM- Ra t 3.

For illustrative purposes only, if we assume the average cost of a tow and/or recovery for a car involved in an accident is $1,500.00 then the administration fee would be roughly $75.00. However, an accident involving a heavy duty rotator may cost thousands more without any appreciable difference in administration . . . In its current form it is just an additional charge that does not reflect any actual administrative work that was required or performed. OOIDA Ex. MM-D at 8-9.

W T R A objected to OOIDA’s proposed cap asserting that the current percentage mechanism accurately reflects the amount of administrative costs a wrecker company incurs, as dictated by the size of the recovery. Mr. Reed explained that larger multi- vehicle or commercial recoveries require more administration than smaller single-vehicle or non-commercial jobs. By charging the administrative fee as a percentage of the total costs of the recovery, the administrative fee is calculated appropriately to cover the administrative functions required by the size of the job. Tr. at 29-3 1.

To ensure a fair and reasonable charge for the administrative tasks related to a recovery, the Commission will cap the Administrative Fee at the lesser of five percent or $1,000. The fee is exclusive of fuel surcharge and storage fees, as well as special rate charges for high-risk exposure and bio-hazardous exposure. Furthermore, the fee is limited to Accident and Recovery Wrecker Rate services and should not be applied in Tow-and-Go Hourly Rate services. To provide clarity, the Administrative Fee will be

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moved from the Specialized/Ancillary Equipment tariff section to the Accident and Recovery Wrecker Rates section and will read as follows:

Administration Fee lesser of 5% of service or $1,000 This rate is allowable for Accident and Recovery services only. Fee is applied to all invoice charges excluding fuel surcharge fee, high risk exposure, bio-hazardous exposure and storage fees.

Uncontested Proposed Changes to the Tariff

The Commission notes that the Stipulating Parties agreed to base the proposed rate increases on the CPI inflation calculator from July 2017 to January 2021. The parties to the Joint Stipulation agreed to relocate the tow dolly fee to section one since simple tows often use a tow dolly. In section four the Stipulating Parties included language to require proper documentation be submitted upon request. The indoor storage rates in section five were adjusted by an overall increase of $5.00 and then adjusted by the CPI, and the Stipulating Parties included an explanatory note regarding indoor storage. A new Mobilization Fee of $300 (flat fee) was added in section eight to resolve the issue WVTRA raised regarding the Material Handling Equipment rate not covering the delivery and set-up expenses that tow companies owning their own heavy equipment incur. The Stipulating Parties agreed to add a new Allowable Fees section that applies to simple tow jobs and accident and recovery jobs and inchded: a fee for credit card processing charges and a fee for toll charges. The GateReopen fee was moved from section eight to section nine and language was added to allow a charge for the release of personal property after hours. Additionally, the Joint Stipulation proposes minor language revisions and stylistic changes throughout the tariff to encourage clarity.

With the exception of the modified provisions noted above, the Commission will approve the Joint Stipulation, attached hereto as Attachment A, and adopt a revised schedule of statewide maximum tow rates and charges, attached hereto as Attachment B, for use by all third-party tow operators in the state. The Commission concludes that the Joint Stipulation and modifications thereto, resolve the issues of this general investigation; therefore, this matter should be concluded.

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Statewide Notice Requirement Satisfied

The Executive Secretary sent a request to publish notice of this matter to twenty publications throughout the state. Exec. Secretary Letter filed Oct. 2 1,2020. All but two of the publications submitted affidavits attesting to providing notice of this proceeding in the following counties: Berkeley, Cabell, Greenbrier, Hancock, Harrison, Kanawha, Logan, Marshall, Mason, McDowell, Mercer, Mineral, Mingo, Monongalia, Raleigh, Randolph, Taylor and Wood. See, Affidavits from Oct. 22, 2020 through May 6, 2021. The Commission concludes that substantial compliance with the publication requirements has occurred.

Request for Protective Treatment

The Commission concludes that it is not necessary to rule on the Motion for Protective Treatment at this time. The documents filed under seal are in the custody of the Executive Secretary and the Commission will continue to maintain the confidentiality of those documents. Upon receiving a Freedom of Information Act request made pursuant to W.Va. Code 5 29B-1-1, et seq. for the sealed information the Commission will notify and provide Nicely’s Towing with the opportunity to present arguments regarding continued protective treatment.

FINDINGS OF FACT

1. Notice of this proceeding was published in eighteen counties throughout the state. The Times West Virginian - of Marion County and The Intelligencer of Ohio County have not submitted affidavits of publication in this matter. See, Exec. Secretary Letter, Oct. 21,2020 and Affidavits, Oct. 22,2020 through May 6,2021.

2. Nicely’s Towing requested permanent protective treatment of certain Motion for information contained in invoices produced to Staff during discovery.

Protective Treatment at 1.

3. Staff and W T R A executed a Joint Stipulation that inter alia proposed changes to the State Maximum Tariff rates and charges. Joint Stipulation.

4. Staff compared the State Maximum Tariff rates to surrounding states that regulate third-party towing and recovery services and found that our rates are reasonable when compared to these other jurisdictions. Staff Ex. JW-D at 8.

5 . Staffs recommended rates, as well as the rates proposed in the Joint Stipulation, are based on the State Maximum Tariff rates and adjusted by the CPI to account for inflation from July 2017 to January 2021. See, Staff Ex. JW-D at 9-14, Attachment; Joint Ex. 1 at Ex. 1.

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CONCLUSIONS OF LAW

1. The affidavits of publication contained in the case file demonstrate substantial compliance with the Commission’s publication requirements of the October 21,2020 Procedural Order. See, Exec. Secretary Letter; Affidavits.

2. Sufficient evidence exists in the record to conclude that the rates recommended in the Joint Stipulation, as modified herein, are fair, reasonable and cost based and should therefore be adopted by the Commission.

3. It is reasonable to modify the Joint Stipulation to clari& when a tow company is authorized to charge the Accident and Recovery Wrecker Rates for more than one wrecker when multiple wreckers are dispatched to perform a recovery job.

4. The portion of the Joint Stipulation regarding the Administrative Fee is not reasonable and will be modified by the Commission to cap the fee to the lesser of five percent or $1,000 and the Administrative Fee will be relocated to the Accident and Recovery Wrecker Rates section.

5 . The Commission will approve and adopt the Joint Stipulation attached hereto as Attachment A, as modified herein.

6. The Joint Stipulation, and modifications thereto, resolve all issues for review in the general investigation.

7 . The Commission will adopt a revised schedule of statewide maximum tow rates and charges, attached hereto as Attachment B, as the State Maximum Tariff.

8. It is reasonable to cancel the current tariffs of the members of the WVTRA and direct the Commission’s Tariff Office to substitute the members’ current tariffs with the State Maximum Tariff, attached hereto as Attachment B. The rates will become effective for the members of the WVTRA ten days after issuance of this Order.

9. It is reasonable to cancel the current tariffs of all third-party tow operators in West Virginia that are not parties to this proceeding and direct the Commission’s Tariff Office to substitute the current tariffs of these third-party operators’ current tariffs with the State Maximum Tariff, attached hereto as Attachment B. The rates will become effective thirty days after issuance of this Order for all third-party operators that are not parties to this proceeding.

10. It is reasonable to provide notice of the revised State Maximum Tariff rates by delivering a copy of this Order to all parties to this case and all registered third-party tow operators by electronic service or alternatively by United States First Class Mail.

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11. It is not necessary to resolve the issue of protective treatment until such time that a request for the sealed information is made.

ORDER

IT IS THEREFORE ORDERED that the Commission approves the Joint Stipulation as filed on May 13, 2021, attached hereto as Attachment A, except as modified by this Order, as a reasonable resolution of this general investigation.

IT IS FURTHER ORDERED that the Commission adopts, as set forth in Attachment B, a revised schedule of maximum state tow rates that will go into effect for the members of West Virginia Towing and Recovery Association within ten days from the date of this Order and for all other third-party tow operators registered with the Commission’s Transportation Division within thirty days from the date of this Order.

IT IS FURTHER ORDERED that the Commission Tariff Office shall substitute the existing tariffs of the members of the West Viigiiiia Towing and Recovery Association with the revised maximum state tow rates, attached as Attachment B, on the tenth day from the date of this Order.

IT IS FURTHER ORDERED that the Commission Tariff Office shall substitute the existing tariffs of all other third-party tow operators registered with the Commission’s Transportation Division with the revised maximum state tow rates, attached as Attachment B, on the thirtieth day from the date of this Order.

IT IS FURTHER ORDERED that the request for permanent protective treatment of the material filed under seal in this proceeding is deferred pending a Freedom of Information Act request for such information.

IT IS FURTHER ORDERED that on entry of this Order this case shall be removed from the Commission docket of open cases.

r ..

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IT IS FURTHER ORDERED that the Executive Secretary serve a copy of this Order by electronic service on all parties of record who have participated in this case, all registered third-party tow operators who have filed an e-service agreement, and by United States First Class Mail on all registered third-party tow operators who have not filed an e-service agreement, and on Staff by hand delivery.

A True Copy, Teste,

Connie Graley, Executive Secretary

NNT/pb 200796ce.sca

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UBLIC S E R ~ C ~ ST

CASE NO. 20-0796-~C-G~

GENERAL INVESTIGATION RELATING TO STATEWE WRECKER RATES A N D RATES FOR ANCILLARY EQUrPMENT

J0I;NT STIPULATION AND SETTLEMENT AGREEmNT

This Joint Stipulation And Settlement Agreement entered this day of May, 202 1,

by and between West Virginia Towing and Recovery Association (WVTRA) and Staff of the

West Virginia Public Service Commission (jointly referred to as “the Stipulating Parties”).

WHEREAS, on October 21, 2020, a Commission Order was entered which initiated a

general investigation of the Maximum State Tariff Wrecker Rates for third-party tows and set a

procedural scheduIe; and,

WHEREAS, on December 3, 2020, the Commission entered a Cornmission Order

granting the Petition to Intervene filed by WVTRA; and,

WHEREAS, on December 10, 2020, the Commission entered a Commission Order

granting the Petition to Intervene filed by the Owner-Operator Independent Drivers Association

(OOIDA); and,

WHEREAS, on December 23, 2020, the Commission entered a Commission Order

granting the Petition To Intervene filed by Enterprise Holdings, Inc. d/b/a Enterprise Rent-a-

car; aud, WHEREAS, on March 22, 2021, OOIDA filed the Pre-fded Direct Testimony of

Michael Matousek; and,

WHEREAS, on March 22, 2021, Staff filed the Pre-filed Direct Testimony of Jennifer

Warner; and,

AS, on March 22,2021, WVTRA filed the Pre-filed Direct Testimony of Chris

Reed and Joseph Pifer; and,

WHEREAS, on April 21, 2021, WVTRA filed Rebuttal Testimony of Chris Reed,

President of Intervenor West Virginia Towing and Recovery Association To Pre-filed

Testimony of Michael Matousek Manager of Governmental Affairs Owner-Operator

Independent Drivers Association and Rebuttal Testimony Of Chris Reed, President Of

Intervenor West Virginia Towing and Recovery Association To Pre-filed Direct

Testimony Of Jennifer Warner, Utilities Analyst; and,

WHEREAS, on April 21, 2021, OOIDA filed the Pre-filed Rebuttal Testimony of

Michael Matousek; and,

WHEREAS, on April 21,2021, Staff filed the Pre-filed Rebuttal Testimony of Jennifer

Warner; and,

WHEREAS, the Stipulating Parties wish to settle and resolve this matter,

WEERF,FORE, THAT FOR AND IN ~ O N S ~ E ~ T I O N OF the mutual promises

contained herein, the Stipulating Parties hereto agree as follows:

1. That the Stipulating Parties stipulate and agree to the Staff And West Virginia

Towing And Recovery Association Stipulated State Maximum Tariff attached hereto.

2. That this Joint Stipulation And Settlement Agreement and Staff And West

Virginia Towing And Recovery Association Stipulated State Maximum Tariff shall be submitted

to the Public Service Commission for approval and the Stipulating Parties hereto jointly move

that the Public Service Commission adopt the Staff And West Virginia Towing And Recovery

Association StipuIated State Maximum Tariff attached hereto.

... .. _ " . . .. . . -

.. - . . . . . - -. ._

,... _. .. .. . .. . ._ . , . . -

.._ ~ .. . -. .

3. The Stipulating Parties have had numerous discussions on the issues involved in

this case and a settlement has been reached which, if accepted by Commission, will resolve this

case as it pertains to the Stipulating Parties.

4. The terms and conditions agreed to herein are without prejudice to the Stipulating

Parties.

5. The Stipulating Parties support this Joint Stipulation And settlement Agreement

and represent that each of its provisions acceptably resolves all issues raised between the

Stipulating Parties. Based on the record, the Stipulating Parties recommend that the Commission

accept this Joint Stipulation And Settlement Agreement in resolution of the issues between the

Stipulating Parties,

6. The Stipulating Parties represent that the Stipulating Parties’ pre-filed evidence,

testimony, exhibits, discovery responses, as well as the testimony to be offered in sponsorship of

this Joint Stipulation And Settlement Agreement, is adequate to support the Joint Stipulation

And Settlement Agreement.

7. This Joint Stipulation And Settlement Agreement results fiom review of all

evidence and filings in this case, exhibits, discovery responses, and testimony, the existing

statutory and regulatory framework, and good faith negotiation. This Joint Stipulation And

Settlement Agreement is proposed to expedite and simplify the resolution of the issues between

the Stipulating Parties.

8. The Stipulating Parties recommend that the Commission adopt this Joint

Stipulation And Settlement Agreement as being in the public interest, without adopting or

recommending the adoption of any of the compromise positions set forth herein as ratemaking

principles applicable to future regulatory proceedings, except as may otherwise be provided

herein.

9. Each component of the Joint Stipulation And settlement Agreemsnt (including

this paragraph) is integral to and inseparable from the others, and no Party advocates the

Commission's resolution of any issue proposed in ti& Joint Stipulation And Settlement

Agreement other than in the context of its support for the Joint Stipulation And Settlement

Agreement as a whole.

10. This Joint Stipulation And Settlement Agreement is subject to the Commission's

acceptance and approval. It wifl be ineffective until and unless approved by the Commission in

all of its material tenns and without modification. If the Commission does not &rant that

approval, then the Stipulating Parties reserve their rights to fully advocate their positions,

unlimited by the terms of this Joint Stipulation And Settlement Agreement.

11. It is noted that OODA did not participate in this Joint Stipulation And Settlement

Agreement and therefore is not bound the terms thereof.

Counsel for the West Virginia Towing and Recovery Association:

Staff of the Public Service Commission of West Virginia:

.c!A%dz 5 @l?&

Linda Bouvette, Esquire State Bar No. 5926 P. 0. Box 231 1

Charleston, West Virginia 25328 State Bar No. 1580

Exhibit 1 1 of?

1. TOW AND GO HOURLY RATES Rates per hour

This rate applies to wrecker trucks for non-accident towing services such as private property towing, disabIed vehicle towing and traffic violation tows.

Lipbt Duty Towing Automobiles and Trucks with GVW Weight of 7,000 Ibs or less $

102.00

Medium Duty Towing Trucks with GVW Weight of 7,001 pounds to 10,000 lbs. $ 138.00

Heaw Dutv Towing Trucks md buses with G W Weight of 10,001 to 26,000 lbs. $

21 1.00

SuDer Heavy Duty Towing Tractor

Trucks (GVW Weight over 26,0011bs.) 134.00

332.00

Tow Dolly rate

$ 50.00 flat

2. ACCIDENT AND RECOVERY WRIZCKER RATE Rates per hour

Rates to include the wrecker, driver and my specialized equipment with a purchase cost of $500.00 or less, manufacturer’s supplied footage of winch line based on wrecker used, CrasWtility TrailedSewice Truck or any vehicle used to transport specialized equipment andor laborers to and from accident scene.

Li&t Duty Towine; $ 160.00 Passenger cars, Motorcycles and Trucks with GVW Weight of 7,000 lbs or less

Medium Dutv Towing $ 267.00 Passengers cars, motorcycles and Trucks with G W Weight of 7,001 pounds to 10,000 lbs.

.. .

Exhibit 1 Page 2 of 7

Heavy Duty Towing $ 374.00 Mid-size vehicles, delivery trucks, utility vehicles, motor-homes parcel trucks, ambulance, small dump trucks, landscape trucks, flatbed and stake trucks, refrigerated and box trucks, small and medium school and transit buses with GVW Weight of 10,001 to 26,000 lbs.

Super Heaw Duty Towing Large vehicles, large delivery trucks, motor-coaches, refhe trucks, cement mixers and tractor-trailer combinations with a GVW Weight of 26,001 and over Tractor $

20 - 39 Ton Wrecker $

$

134.00

620.00

858.00 40 - 60 Ton Wrecker

30 - 85 Ton Rotator Wrecker $1,069.00

3. ADDITIONAL LABOR

The rates shown herein include the services of one man (the driver). If additional labor is essential and/or required, such additional labor shall be provided by the carrier at the rate of $53.00 per hour per helper. The minimum charge for such labor shall be $53.00 per helper and is only allowable when a laborer is essential to towing and/or recovery services. This rate is to include any transportation for the laborer to and fi-om an accident scene.

4. ADDITIONAL CHAFtGE FOR WEEKENDS, EVENINGS AND HOLIDAYS

Due to overtime wages paid on weekends, evenings (5:00 p.m. to 8:OO a.m.) and all federal holidays, an additional charge of $19.00 per hour shall be added to all charges provided in sections (l), (2) and (3) and to Material Handling Equipment, Cargo Transportation and Scene Coordinator listed in section (8) in above when said services are performed on weekends, evenings and federal holidays and only if such overtime wages are paid to employees and proper documentation can be submitted upon request.

5. STORAGE

Whenever vehicles are towed by a carrier to a camer's place of business, storage shall be provided as follows:

Rates oer day

E ~ i b i t 1 Page 3 of 7

Automobiles (Passenger Cars) and Trucks with GVW ~ e i ~ h t of 7,000 Ibs. or _I less

Outside Storage $ 27.00 Inside Storage $ 37.00

Trucks with GVW Weight of 7,001 pounds to 10,000 lbs, Outside storage $ 32.00 Inside storage $ 43.00

Trucks with GVW Weight of 10,001 lbs. or more Outside storage $ 37.00 Inside storage $ 49.00

Semi-trailers and buses Outside storage Inside storage

$ 50.00 $ 94.00

Carno (if stored outside of original transport container unit) Outside storage $ 50.00 Inside storage $ 94.00 Refigerated Cargo $150.00

Note: ReJirsal to release vehicle during evenings, weekends and/or state and federal holiday will result in no storage fees permitted for each day release is refused.

Note: Inside storage shall only be at the request of the owner, operator, an appropriate member of law enforcement or if essential or necessary to preserve the condition of the vehicle. If indoor storage is carrier's policy or ifcompany only oflers indoor storage it shall be charged at the outside storage rate.

6 . SPECIAL RATE3 FOR HIGH RISK EXPOSURE

A flat charge of $750.00 per accident or incident or chemical spill shall apply whenever there is a "high risk exposure"'payab1e only if an environmental team is called in to access the situation. This charge is in addition to all other applicable rates and charges contained herein. High risk exposure means and includes any for-hire transportation of a vehicle or part thereof, wherein a wrecker operator (see note below) or an employee thereof, in responding to an accident or chemical spill involving said vehicle, is exposed to any waste material, substance, or other item listed as a "hazardous material", "specific chemical waste" or "chemical" in 49

Exhibit 1 Page 4 of 7

C.F.R. Section 172.101 or in excess of vehicle’s operating system.

Note: Unless it has received an identification number from the Department of Environmental Protection (DEP) and has complied with applicable West Virginia Department of Highways procedures, a company may not legally clean up, store, or transport hazardous waste. Any hazardous waste, hazardous material, or hazardous substance spilled fiom its container upon the ground swface becomes a hazardous waste.

7. SPECIAL RATE FOR BIO-ETAZARDOUS EXPOSURE

A flat charge of $250.00 per accident or incident shall apply whenever there is a “bio-hazardous waste or material exposure”, Biohazard waste includes infectious waste such as hypodermic needles, blades, slides, blood, bodily fluids or waste contaminated with potentially infectious agents or other materials that are deemed a threat to public health or the environment, In order for the fee to be charged, the biohazard must be open, obvious, clearly visible and impact the ability to tow the vehicle. The fee should not be charged if the Police or other first responders remove the biohazard prior to towing. Police documentation is preferable and should be presented when available, if unable to obtain police documentation; photographic evidence showing the biohazard is required.

8. The following rates apply to the use of specialized / ancillary equipment necessary in performing safe and efficient recovery in major Accident and Recovery work, Items must be justified for use,

Material Handling EquiDment Rate to include any heavy duty equipment required to assist in the recovery of the vehicle and/or Cargo such as but not limited to BobcaUSkid Steer Loader, forklifts, backhoes, end-loaders, etc. Rate to include operator and no additional laborer rate shall be charged.

$ 160.00 per hour

Mobilization $ 300.00 flat rate Rate to include the transportation of any heavy duty equipment to and fiom recovery scene that is required to assist in the recovery of the vehicle and/or cargo.

Cargo TransDortation Rates to include any equipment needed in the recovery, transportation and maintaking the integrity of cargo such as but not limited to refiigerated trailer, lowboy trailer and/or traveling axle, box trucks, dump trucks and roll-off equipment. Rate to include operator.

3 125.00 per hour

Exhibit 1 Page 5 Of 7

Air Cushions $ 1.200.00 Der incident No additional charge for transportation of equipment to and from accident scene

Scene Lighting (diesel nowered) $300.00 flat rate Commercial and/or major recovery accidents

Scene/Accident Coordinator This rate is only to be charged on commercial accidents that require multiple wreckers andlor multiple specialized equipment to be used in recovery. This rate is not to be applied for traffic control at the scene of the accident or any type of administrative duties at the accident and/or at the towing company's facility.

$ 80.00 uer hour

Administration Fee 5% of service This rate is allowable for major Accident and Recovery services only. Fee is applied to all .charges excluding fuel surcharge fee, high risk exposure, bio- hazardous exposure and storage fees.

Sub-Contracted Services Fee Copy of contract must be kept on file.

Cost olus 15%

Non-Reusable Cleanup Material Fee A copy of purchase invoice must be kept on file.

Cost olus 15%

Rental Equiament Fee When charging Rental Equipment Fee at cost plus 15% towing company may also charge for the operator of equipment separately unless the cost of rental plus 15% fee and cost of laborer exceed the hourly rate for Material handling equipment, at which time tow company will charge the material handling rate per hour. A copy of the rental contract and/or receipt must be kept on file.

Cost plus 15%

Note: No rental equipment fee or sub-contract service fee to be applied when there is a mutual-aid contract for vehicles or equipment or when a company is using another company's vehicles (truch, wreckers and/or rotator).

9. ALLOWABLE FEES

EFT, ACH. Credit Card Fee A service charge may be imposed on EFT, ACH, Credit Card as long as the person paying is informed of the fee in advance. The amount shall be equal to the actual charges fi-om the financial institution for processing payment.

Gate I ReoDen Fee $ 50.00 flat rate

._

!

Exhibit I Page 6 of 7

The Gate I Reopen Fee is applicable a business hours and only when the towing company is closed and there is no administrative employee present or on duty to release an impounded vehicle. The fee applies only when an administrative employee or company representative must report to the impound lot when the business is closed to release a vehicle or to release personal property after normal hours. Releasing of persona1 property is not required after hours, however should a company choose to release property afier hours, the gatelreopen fee should be collected at time of property retrieval. The person requesting release of the vehicle or personal property in this circumstance must be informed of the fee in advance. If the towing company refuses to release vehicle due to “afker hours” no storage shall be charged for days of refbsal.

WV TurnrJike Tolls Carrier must provide upon request documentation of toll charge.

Pass Thru at Cost

Exhibit 1 Page 7 of 7

RULES AND REGULATIONS

1.

2.

3.

4,

5

6.

The rates provided herein shall apply to the transportation by wrecker (tow) truck of wrecked and/or disabled motor vehicles over the public highways.

All hourly rates provided herein shall be calculated from the time the carrier leaves his base of operation to the final towing destination and available for the next service, and, except as otherwise provided, shall be rounded to the nearest quarter hour. Except in the case where a wrecker operator is patrolling a privately owned parking lot by contract, the starting time of the applicable tow rate shall be calculated f?om the time the actual tow operation begins.

Carriers are required to allow all third-party tow customers to obtain their personal possessions (any personal item which is not attached to the vehicle). Items not to be included are but not limited to stereo, battery, license plate, etc. from towed vehicles without payment of all or part of their respective tow bills during normal business hours.

The storage fee provided herein shall accrue at the beginning of each day (excluding the day the vehicle is delivered to the storage facility). In calculating the total applicable storage charge, a day shall be each 24 hour period commencing at the start of the next business day and shall apply only if the vehicle has not been retrieved before the carrier’s normal close of business on the day the vehicle is delivered to the carrier’s storage facility.

Carriers shall maintain adequate records to allow expeditious periodic review of their compliance with this tarif€. such records must include, but are not limited to$ sequentially numbered invoices, a copy of which must be provided each customer and a copy of which must be retained for a period of at least two (2) years by the carrier.

If a vehicle has been hooked with hoisting apparatus or loaded by the wrecker service and the vehicle has not left the premises and the owner or operator produces the ignition key and removes the vehicle immediately, the applicable tow charge shall not exceed one-half (1/2) the otherwise minimum charge as set forth in the applicable tariff,

ATTACHMENT B

COMMISSION APPROVED STATE MAXIMUM TARIFF

1. TOW AND GO HOURLY RATES

This rate applies to wrecker trucks for non-accident towing services such as private property towing, disabled vehicle towing and traffic violation tows.

Rates per hour Light Duty Towing $ 102.00 Automobiles and Trucks with GVW4 of 7,000 lbs. or less

Medium Duty Towing Trucks with GVW of 7,001 lbs. to 10,000 lbs.

$ 138.00

Heavy Duty Towing $ 2 1 1.00 Trucks and buses with GVW of 10,001 lbs. to 26,000 lbs.

Super Heavy Duty Towing Tractor Trucks (GVW over 26,001 lbs.) Tow Dolly

$ 134.00 $332.00

$ 50.00 flat rate

2. ACCIDENT AND RECOVERY WRECKER RATES

Rates to include the wrecker, driver and any specialized equipment with a purchase cost of $500.00 or less, manufacturer’s supplied footage of winch line based on wrecker used, and a CrashAJtility TrailedService Truck or any vehicle used to transport specialized equipment and/or laborers to and from accident scene.

The Accident and Recovery Wrecker Rates are for a single wrecker vehicle unless an additional vehicle or vehicles are required as specified herein. If an additional wrecker or wreckers are dispatched to the scene of an accident and are used other than for work that requires multiple wreckers (rightening overturned vehicles, hauling or winching vehicles, etc.) the rate for such additional wrecker or wreckers shall be the Tow and Go Hourly Rates from Section 1. Where more than one wrecker is used the towing company shall maintain adequate records to support the need for multiple wreckers and the use of the Accident and Recovery Wrecker Rates for more than one wrecker vehicle.

Gross Vehicle Weight (GVW)

1

Rates per hour Light - Duty Towing For passenger cars, motorcycles and trucks with GVW of 7,000 lbs. or less.

$ 160.00

Medium Duty Towing $267.00 For passenger cars, motorcycles, and trucks with GVW of 7,001 lbs. to 10,000 lbs.

Heavy Duty Towing $374.00 For mid-size vehicles, delivery trucks, utility vehicles, motor- homes parcel trucks, ambulances, small dump trucks, landscape trucks, flatbed and stake trucks, refrigerated and box trucks, small and medium school and transit buses with GVW of 10,001 lbs. to 26,000 lbs.

Super Heavy Duty Towing: Tractor $ 134.00 20 - 39 Ton Wrecker $620.00 40 - 60 Ton Wrecker $ 858.00 30 - 85 Ton Rotator Wrecker $1,069.00 For large vehicles, large delivery trucks, motor-coaches, refkse trucks, cement mixers and tractor-trailer combinations with a GVW of 26,001 lbs. and over.

Administration Fee This rate is allowable for Accident and Recovery services only. Fee is applied to all charges excluding fuel surcharge fee, high risk exposure, bio-hazardous exposure and storage fees.

lesser of 5% of service or $1,000

3. ADDITIONAL LABOR

The rates from Section 1 and 2 include the services of one man (the driver). If additional labor is essential and/or required, such additional labor shall be provided by the carrier at the rate of $53.00 per hour per helper. The minimum charge for such labor shall be $53.00 per helper and is only allowable when a laborer is essential to towing and/or recovery services. This rate is to include any transportation for the laborer to and from an accident scene.

2

4. ADDITIONAL CHARGE FOR WEEKENDS, EVENINGS AND HOLIDAYS

Due to overtime wages paid on weekends, evenings (5:OO p.m. to 8:OO a.m.) and all federal holidays, an additional charge of $19.00 per hour shall be added to all charges provided in Sections 1, 2 and 3 and to Material Handling Equipment, Cargo Transportation and Scene Coordinator listed in Section 8 when said services are performed on weekends, evenings and federal holidays and only if such overtime wages are paid to employees and proper documentation can be submitted upon request.

5. STORAGE

Whenever vehicles are towed by a carrier to a carrier’s place of business, storage shall be provided as follows:

Rates per day Automobiles (Passenger Cars) and Trucks with GVW of 7,000 lbs. or less

Outside Storage $27.00 Inside Storage $37.00

Trucks with GVW of 7.001 lbs. to 10,000 lbs. Outside Storage Inside Storage

Trucks with GVW of 10,001 lbs. or more Outside Storage Inside Storage

Semi-trailers and Buses Outside Storage Inside Storage

$32.00 $43 .OO

$37.00 $49.00

$50.00 $94.00

Cargo - . (if stored outside of original transport container unit) Outside Storage $ 50.00 Inside Storage $ 94.00 Refrigerated Cargo $150.00

Note: Refusal to release vehicle during evenings, weekends and/or state and federal holiday will result in no storage fees permitted for each day release is refused.

3

Note: Inside storage shall only be at the request of the owner, operator, an appropriate member of law enforcement or i f essential or necessary to preserve the condition of the vehicle. If indoor storage is carrier’s policy or ifcompany only offers indoor storage it shall be charged at the outside storage rate.

6. SPECIAL RATES FOR HIGH RISK EXPOSURE

A flat charge of $750.00 per accident or incident or chemical spill shall apply whenever there is a “high risk exposure” payable only if an environmental team is called in to access the situation. This charge is in addition to all other applicable rates and charges contained herein. High risk exposure means and includes any for-hire transportation of a vehicle or part thereof, wherein a wrecker operator (see note below) or an employee thereof, in responding to an accident or chemical spill involving said vehicle, is exposed to any waste material, substance, or other item listed as a “hazardous material”, “specific chemical waste” or “chemical” in 49 C.F .R. Section 172.10 1 or in excess of vehicle’s operating system.

Note: Unless it has received an identiJication number from the Department of Environmental Protection (DEP) and has complied with applicable West Virginia Department of Highways procedures, a company may not legally clean up, store, or transport hazardous waste. Any hazardous waste, hazardous material, or hazardous substance spilled from its container upon the ground surface becomes a hazardous waste.

7. SPECIAL RATE FOR BIO-HAZARDOUS EXPOSURE

A flat charge of $250.00 per accident or incident shall apply whenever there is a “bio-hazardous waste or material exposure.” Bio-hazard waste includes infectious waste such as hypodermic needles, blades, slides, blood, bodily fluids or waste contaminated with potentially infectious agents or other materials that are deemed a threat to public health or the environment. In order for the fee to be charged, the bio- hazard must be open, obvious, clearly visible and impact the ability to tow the vehicle. The fee should not be charged if the Police or other first responders remove the bio-hazard prior to towing. Police documentation is preferable and should be presented when available, if unable to obtain police documentation; photographic evidence showing the bio-hazard rate is required.

8. SPECIALIZED / ANCILLARY EOUIPMENT AND ALLOWABLE FEES

The following rates apply to the use of specialized / ancillary equipment necessary in performing safe and efficient recovery in major Accident and Recovery work. Items must be justified for use.

4

Material Handling Equipment Rates $ 160.00 per hour

Rate to include any heavy duty equipment required to assist in the recovery of the vehicle and/or cargo such as but not limited to Bobcathkid steer loader, forklifts, backhoes, end-loaders, etc. Rate to include operator and no additional laborer rate shall be charged.

Mobilization $ 300.00 flat rate Rate to include the transportation of any heavy duty equipment to and from recovery scene that is required to assist in the recovery of the vehicle and/or cargo.

Cargo Transportation Rates to include any equipment needed in the recovery, transportation and maintaining the integrity of cargo such as but not limited to refrigerated trailer, lowboy trailer and/or traveling axle, box trucks, dump trucks and roll-off equipment. Rate to include operator and no additional laborer rate shall be charged.

$ 125.00 per hour

Air Cushions No additional charge for transportation of equipment to and from accident scene.

$ 1,200.00 per incident

Scene Lighting - (diesel powered) Commercial and/or major recovery accidents.

$ 300.00 flat rate

Scene/Accident Coordinator This rate is only to be charged on commercial accidents that require multiple wreckers and/or multiple specialized equipment to be used in recovery. This rate is not to be applied for traffic control at the scene of the accident or any type of administrative duties at the accident and/or at the towing company’s facility.

$ 80.00 per hour

Sub-contracted Service Fee A copy of contract must be kept on file.

Non-Reusable Cleanup Material Fee A copy of purchase invoice must be kept on file.

cost plus 15%

Cost PIUS 15%

5

Rental Equipment Fee When charging Rental Equipment Fee at cost plus 15% towing company may also charge for the operator of equipment separately unless the cost of rental plus 15% fee and cost of laborer exceed the hourly rate for material handling equipment, at which time tow company will charge the Material Handling Equipment rate per hour. A copy of the rental contract and/or receipt must be kept on file.

Cost plus 15%

Note: No rental equipmentfee or sub-contract service fee to be applied when there is a mutual-aid contract for vehicles or equipment or when a company is using another company’s vehicles (trucks, wreckers and/or rotator).

9. ALLOWABLE FEES Rates Pass Thru at Cost EFT, ACH, Credit Card Fee

A service charge may be imposed on EFT, ACH, Credit Card as long as the person paying is informed of the fee in advance. The amount shall be equal to the actual charges from the financial institution for processing payment.

GateReopen Fee The Gatemeopen Fee is applicable after business hours and only when the towing company is closed and there is no administrative employee present or on duty to release an impounded vehicle. The fee applies only when an administrative employee or company representative must report to the impound lot when the business is closed to release a vehicle or to release personal property after normal hours. Releasing of personal property is not required after hours, however should a company choose to release property after hours, the GateReopen Fee should be collected at time of property retrieval. The person requesting release of the vehicle or personal property in this circumstance must be informed of the fee in advance. If the towing company refuses to release vehicle due to “after hours” no storage shall be charged for days of refusal.

$ 50.00 flat rate

WV Turnpike Tolls Carrier must provide upon request documentation of toll charge.

Pass Thru at Cost

6

RULES AND REGULATIONS

1. The rates provided herein shall apply to the transportation by wrecker (tow) truck of wrecked andor disabled motor vehicles over the public highways.

2. All hourly rates provided herein shall be calculated from the time the carrier leaves his base of operation to the final towing destination and available for the next service, and, except as otherwise provided, shall be rounded to the nearest quarter hour. Except in the case where a wrecker operator is patrolling a privately owned parking lot by contract, the starting time of the applicable tow rate shall be calculated from the time the actual tow operation begins.

3. Carriers are required to allow all third-party tow customers to obtain their personal possessions (any personal item which is not attached to the vehicle). Items not to be included are but not limited to stereo, battery, license plate, etc. from towed vehicles without payment of all or part of their respective tow bills during normal business hours.

4. The storage fee provided herein shall accrue at the beginning of each day (excluding the day the vehicle is delivered to the storage facility). In calculating the total applicable storage charge, a day shall be each 24 hour period commencing at the start of the next business day and shall apply only if the vehicle has not been retrieved before the carrier’s normal close of business on the day the vehicle is delivered to the carrier’s storage facility.

5. Carriers shall maintain adequate records to allow expeditious periodic review of their compliance with this tariff. Such records must include, but are not limited to, sequentially numbered invoices, a copy of which must be provided each customer and a copy of which must be retained for a period of at least two (2) years by the carrier.

6 . If a vehicle has been hooked with hoisting apparatus or loaded by the wrecker service and the vehicle has not left the premises and the owner or operator produces the ignition key and removes the vehicle immediately, the applicable tow charge shall not exceed one-half (1/2) the otherwise minimum charge as set forth in the applicable tariff.

7