Virginia Lawyers Weekly VA Lawyers Weekly
A Herndon woman caught in a tangle of misleading forms notched a victory over a Northern Virginia toll road agency with a scathing decision by a Fairfax County judge last month.
The driver who could have owed as much as $8,334 to the operator of the Dulles Toll Road walked away from court with all claims dismissed after she represented herself at trial this summer.
In an Aug. 23 ruling, Fairfax Circuit Judge Randy I. Bellows blasted the Metropolitan Washington Airports Authority – the toll road operator – for failing to provide fair notice to the driver about how to remedy problems with her E-Z Pass account.
Out-of-state E-Z Pass account
The “bureaucratic nightmare,” as the judge described it, arose in part because Abimbola Laniyan’s E-Z Pass account was based in New York, where she lived before moving to Herndon.
Her New York-based E-Z Pass transponder normally worked fine on the Dulles Toll Road, and most of her tolls were appropriately billed and paid. Trouble ensued, however, when her E-Z Pass unit inexplicably failed to register on a few trips in 2015.
WMAA delinquency notices failed to properly account for drivers whose accounts were opened outside of Virginia, evidence showed. Laniyan received two notices and then advice by phone.
Bellows concluded that both notices were so confusing and ambiguous they could not be cured even by the more accurate advice provided over the telephone.
The first form for dispute resolution advised that “If you are an E-Z Pass customer and your account was in good standing at the time of these toll transactions, check item 1 and follow the instructions below.”
Laniyan checked item 1 and filled out the form, providing her account number and transponder number.
She received a letter titled “DISPUTE REJECTION” saying her appeal had been rejected because the account number “is not in good standing.”
Clarity lacking
The statement was inaccurate, Bellows said. Laniyan’s E-Z Pass account was in good standing, it had a positive balance, and the Dulles Toll Road had been routinely withdrawing tolls from it, the judge said.
Bellows said the statement never disclosed the real problem: “that her dispute was being rejected because, as an out-of-state E-Z Pass account holder, she was required to submit her most recent statements and she had failed to do so.”
Bellows found fault with arguments by the toll road’s lawyer, Caleb A. Kershner of Leesburg.
“She’s not an E-Z Pass user as far as we’re concerned,” Kershner said at an Aug. 4 hearing. He said a statement that she was not an E-Z Pass user and that her account was not in good standing was “absolutely accurate.”
“The Court disagrees,” Bellows said. The statement was “absolutely inaccurate,” the judge wrote.
Laniyan reportedly was told in a later phone call that she should send a statement of her E-Z Pass account. When none was received, the toll agency issued final notices and took Laniyan to court on 14 separate claims. With administrative fees, civil penalties and court costs, the total potential judgment was $8,334, Bellows calculated.
The MWAA lawyer suggested a judgment of $2,200 would be a satisfactory resolution.
Case dismissed
Dismissing all 14 claims, Bellows read a “fair and unambiguous” notice standard into the statutory requirements for invoicing delinquent toll road drivers.
The General Assembly, he said, “mandated that vehicle owners be given fair notice of toll road violations.”
“A confusing and ambiguous notice, let alone an inaccurate one, is no notice at all,” Bellows wrote.
For drivers with out-of-state E-Z Pass transponders, fair notice requires “clear guidance” on how to contest an alleged violation, the judge said.
An MWAA spokesperson expressed regret for Laniyan’s “inconvenience.”
“The Court’s decision notes that the form MWAA’s contractor uses to notify customers of toll violations can be confusing for drivers who use E-Z Passes issued by states outside of Virginia.
“MWAA intends to immediately work with all parties involved to improve the clarity of the form for all customers,” said Rob Yingling of MWAA.
Rare win for driver
“Wow!” said Falls Church attorney David Bernhard when he read Bellows’ opinion.
Bernhard has raised a number of defenses in toll road collection cases in recent years.
Bernhard said the decision in MWAA v. Laniyaniii (VLW 016-8-093) gets to a common complaint from drivers: their difficulties working out their disputes with the toll operator before getting to the courthouse.
“The call centers tend to stick to a script and it is only in court that the representatives have more authority to deal and evaluate any errors,” Bernhard said. By then, the driver generally faces massive fines, he added.
Legal help can be hard to come by. Only a handful of lawyers are taking on toll collection actions, Bernhard said.
Bellows has been strict before with rules for enforcement of toll obligations. He authored a 2015 opinion applying a one-year, rather than a two-year, statute of limitations for Dulles Toll Road collection actions (VLW 015-8-072).
Bernhard said a new law taking effect this year should require better notice for delinquent drivers, but it does not provide for a “fair dispute resolution mechanism outside the court system.
“The toll violations system that has been designed by the General Assembly is cumbersome, confusing, overly punitive, and there is practically no oversight from VDOT,” Bernhard said.
