Lawsuit against Ohio River tolled bridges swerves around motion to dismiss

A lawsuit against the vendors in charge of the tolling system on three of the bridges connecting southern Indiana to Louisville, Kentucky, has been given the greenlight to continue after a federal court denied the defendants’ motion to dismiss.

The U.S. District Court for the Southern District of Indiana refused to toss any of the eight claims filed by a group of motorists who assert they were fraudulently charged late fees when they were billed for using the tolled bridges. Judge Tanya Walton Pratt noted the 35-page ruling determined the plaintiffs had properly stated their claims but did not test whether they would ultimately prevail.

A handful of motorists filed a complaint against Kapsch TrafficCom USA, Inc. and Gila, LLC, the companies that operate and collect the tolls from the Kennedy, Lincoln, and Lewis and Clark bridges. The drivers allege the companies engaged in a scheme that wrongly invoiced drivers, causing them to pay administrative costs above the original toll.

Cars and trucks that use the toll bridges and do not have a prepaid transponder are subsequently mailed a bill.

According to the plaintiffs, the defendants are required to set the due date for any first toll notice for 35 days from the time the document was printed. However, the plaintiffs allege the defendants programmed the RiverLink invoicing software to set the due date for 29 days or less.

Moreover, they contend, the first notices, if mailed at all, were not sent for days or weeks after being printed. Then the defendants concealed the delay, the plaintiffs assert, by stamping the wrong date on the invoice and dropping the toll notices in bulk mail so the date the postage was purchased and the enveloped sent are not shown.

In response to the lawsuit, the defendants filed a Joint Motion to Dismiss under Federal Rules of civil Procedure 12(b)(1) and 12(b)(6) and Local Rule 7-1.

Kapsch and Gila argued, in part, the plaintiffs lack standing to pursue their claims because the drivers cannot show they suffered any “concrete and particularized injury.” Also, the defendants asserted the motorists’ claims for unjust enrichment, breach of fiduciary duty and violation of the Indiana Deceptive Consumer Sales Act are barred by the two-year statute of limitations.

The federal court was not persuaded.

Pratt ruled the plaintiffs have sufficiently pled that they suffered a “concrete and particularized injury” and only paid the $5 late fee because the deficient notices had been sent to them. Even in regards to Monique Outzen, a plaintiff who received a $5 refund, the court noted the reimbursement did not cover “statutory damages, treble damages, court costs, interest, attorney fees” or change the defendants’ business practices.

The court did find the defendants correctly argued that the statute of limitations would ordinarily start running when the plaintiffs received their offending toll notices in 2017. However citing Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 563 (Ind. 1992), the court pointed out the commencement of the limitations period is delayed when the defendant conceals the allegedly fraudulent act.

In addition, the court denied the defendants’ arguments to dismiss the four fraud-related claims – fraud, violation of the Indiana Deceptive Consumer Sales Act, deception/intentional misrepresentation and constructive fraud.

Kapsch and Gila argued the plaintiffs’ “handful of conclusory statement” regarding the second toll notices failed to establish their fraud-related claims. Since the second toll notice does not state the drivers had received the first toll notice, the plaintiffs’ claims rely on the implication that the invoices were sent in sequential order. The “implicit representation,” the defendants continued, is not actionable under the Indiana Deceptive Consumer Sales Act.

While countering that the IDCSA does apply to implicit misrepresentations, the plaintiffs assert actual misrepresentations. These include the allegations that the defendants claimed the administrative fees charged in the second toll notice were in compliance with Indiana law and for Outzen, the second toll notice was, in fact, the second invoice she had received.

The court found the plaintiffs had adequately contended the defendants misrepresented on the second toll notice that a $5 administrative fee was appropriately assessed.

“…as for any deficiency in the (Indiana Deceptive Consumer Sales Act) claim relying on an ‘implication’ that the 1^st Toll Notice was sent, Indiana Code section 24-5-0.5-3(a) clearly applied to ‘both implicit and explicit misrepresentations,’” Walton Pratt wrote. “And these representations – whether implicit or explicit – were unfair, abusive, and deceptive when Outzen’s reasonable interpretation of the Notice was material to her decision to pay the additional fee.”

In a footnote, the court said the complaint brought by Monique Outzen and Robert Ardaiolo had been consolidated with a similar one filed by Melissa Baker. The consolidated case is Monique Outzen, individually and on behalf of others similarly situated, et al. v. Kapsch TrafficCom USA., Inc. and Gila, LLC, 1:20-cv-01286.