Order 15505 - Ovo Moving & Storage: Complaint

 

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

DIVISION OF PUBLIC UTILITIES AND CARRIERS

100 ORANGE STREET

PROVIDENCE, RHODE ISLAND

REPORT AND ORDER

The Division of Public Utilities and Carriers, scheduled a fitness hearing for De'Ona Walason, DBA: OVO Moving & Storage ("Ovo") to take testimony relative to a complaint filed by Marguerite L. Marsella. The hearing was held on July 29, 1997 at 100 Orange Street, Providence, Rhode Island.

APPEARANCES:

WILLIAM A. MALONEY, for the Advocacy Section

EDWARD A. SHAPIRA, for Ovo Moving & Storage

ISSUES

The complaint filed by Ms. Marsella encompassed two areas; a) an alleged overcharge in the amount of $850.00 and; b) she experienced property damage in the amount of $2,700.

OVERCHARGE

According to testimony by Katherine Smith, a Division investigator, the company charged Ms. Marsella $1,490. This amount was based on a tariff not approved or on file with the Division. (Advocacy Exhibit 6)

Ms. Smith testified that the correct charge for the move under the approved tariff should be $640. (Advocacy Exhibit #4). Ms. Marsella and Ovo representatives testified that the customer paid $600 in cash after completion of the move.

FINDINGS

The Division accepts the calculations of the Advocacy Section that the charges under the authorized tariff for the move should have been $640. Since Ms. Marsella paid $600, the outstanding amount of $40 should be an issue worked out by the company and the complainant.

Other issues identified as a result of a Division investigation include:

ISSUES

1. Failure of Ovo to supply the complainant with insurance information;

2. A concern of whether the certificate holder was actually operating the business;

3. The failure of Ovo to allow the customer to pay by a pre-arranged method;

4. The failure of Ovo to issue a bill of lading after completion of the move.

1. INSURANCE INFORMATION

Ms. Marsella testified that Ovo refused to provide the name of its insurance company. She testified that she received the information after contacting the Division. De'Ona Walason, the certificate holder, said that Ovo did not supply the insurance company information because "We did not feel that we did any damage to the furniture" (TR 8/6/97, p. 123).

The issue of damages should be settled by the insurance carrier and not the Division. However, under Rhode Island General Laws 39-12-27, the moving company is responsible to have adequate insurance to meet all legally established claims for property damage. Ovo is required to provide the customer with the name of its insurance company and the appropriate claim forms.

FINDINGS

Even though the damage claims should be handled by the insurance carrier, the Division finds that the certificate holder must ultimately address any process and work to resolve claims for damages filed by the customers. As a result of the action taken by Ovo, the Division finds the company violated Rhode Island General Laws 39-12-27.

2. OPERATION OF THE COMPANY

Ms. Marsella, the complainant, and Katherine Smith, an investigator for the Division, testified that when they called Ovo in regard to the complaint, they, on all occasions, talked with Robert Walason. Ms. Smith testified that she asked to speak to the certificate holder and was always referred to Mr. Walason (TR 7/29/97, pgs. 25 & 26). Ms. Marsella testified that a woman who answered the phone said that Mr. Walason was the owner and president of the company (TR. 7/29/97, p. 53). Cindy Feley, an employee of Ovo, testified that she answered the telephone and spoke to Ms. Marsella, but denied saying that Mr. Walason was the owner of the company (TR. 8/6/97, p. 84).

Ms. Walason, as the certificate holder, made no effort to reach the complainant and left the entire process up to Mr. Walason. She said she never discussed the complaint with Ms. Marsella (TR. 8/6/97, p. 111). When asked why, as the certificate holder, she did not step in to address the problem, she said, "only because I thought it would be resolved. I didn't think it would go as far as it did".

Q. "At what point in time did you realize that your husband couldn't resolve the complaint?"

A. "When we received a letter saying we had to come to court" (Tr. 8/6/97, p. 113).

The testimony is inconsistent with the facts. Ovo was advised on July 18, 1997 that the matter was scheduled for hearing. Ms. Walason did not return Ms. Marsella's numerous phone calls and on April 5, 1997 actually filed a complaint with the Cranston Police Department against Ms. Marsella for making harassing calls. Testimony indicates that the calls by the complainant were made in an attempt to resolve the issue between Ms. Marsella and Ovo; however, Ms. Feley testified that Ms. Marsella made numerous calls to the office trying to get her money back and to complain about damages.

Q. "What were the basics of these conversations?"

A. "She was extremely upset, she wanted her money back and I told her De'Ona is the one that signs the checks and the move went fine and she wasn't getting her money back".

Q. "And as a result of these calls did you do anything?"

A. "Yes, one Saturday I got fed up with it and De'Ona and me was in the office and we went to the Cranston Police Station and filed a harassment report about her and it was at the police station and it was filed". (TR. 8/6/97, pgs. 84 & 85). (Respondent's Exhibit No. 27)

Since the police report was filed on April 5, 1997, it is a clear indication that Ms. Walason was well aware at least two months before the hearing notice that the issue had not been resolved.

Ms. Feley, under cross-examination, testified that the company is known as Ovo Movers and Jewelers.

Q. "Is there a jewelry business there at the same location?"

A. "We do epoxy painting."

Q. "So De'Ona Walason shares her time between Ovo Jewelers and Ovo Movers?"

A. "Yes."

On direct examination, Mrs. Walason testified that she is the owner and president of Ovo Movers and that she handles all managerial duties within the office.

Q. "Is it fair to say you handle all managerial duties within the office?"

A. "Correct."

Q. "Is it fair to say that Mr. Walason does most of the managerial duties out on the road?"

A. "Yes he does."

On cross-examination, Mrs. Walason testified that she didn't remember seeing a certified letter sent to her on March 27, 1997 by Ms. Marsella. (Advocacy Exh. #13)

Mr. Walason testified under cross-examination that he is the manager of Ovo Moving and Rigging. He also testified that he saw the March 27, 1997 letter.

Q. "I would like to show Mr. Walason the letter that was dated March 27, 1997, signed by Marguerite Marsella and ask you if he can indicate whether or not he ever saw that letter."

A. "Yes I remember seeing that."

Q. "Now Mr. Walason, when you got this letter - this is a letter that essentially is an attempt by Ms. Marsella to resolve the problem. What did you do when you got the letter?"

A. "I don't even remember. I can't remember what I did, what my actions were. I know that in my mind I thought she was just trying to use our company to get damages done by a prior move to have her furniture fixed through our insurance company."

Mr. Walason also testified about the letter that "I may have read it to her (Mrs. Walason) in her office."

FINDINGS

It is quite apparent from the hearing testimony that Mr. Walason is running Ovo. Certified mail sent to the certificate holder was acted upon by Mr. Walason without ever showing it to Mrs. Walason.

Testimony also points out that the tariff dispute between Ovo and the Division was caused by Mr. Walason (TR 8/6/97, pgs. 206-211). Mr. and Mrs. Walason testified that they have a dual role in the operation of Ovo, but the record shows that Mr. Walason has the brunt of the responsibility in running the operation. As the certificate holder, Mrs. Walason is required to control and direct the functioning of the business. She failed to do this.

3. PRE-ARRANGED PAYMENT

Ms. Feley testified under cross-examination that customers are given the option of paying for the move with a personal check, credit card or cash.

Q. "Do you know what the policy is for Ovo Movers as it relates to the acceptance of personal checks?"

A. "When customers call, I tell them we take credit card, personal check or cash."

A. "So you tell them on the phone that the day of the move it's their choice whether they want to pay by credit card, check or cash?"

A. "Yes."

Q. "The option is completely theirs the day of the move?"

A. "Yes."

Q. "Do you know whether or not Ms. Marsella was also told that policy?"

A. "I told her that policy."

Mrs. Walason confirmed that the policy of the company is to allow customers to pay by check, cash or credit card. Mrs. Walason testified, however, that her husband demanded cash from Ms. Marsella because they were concerned that Ms. Marsella would stop payment on a check (TR. 8/6/97, pgs. 132 & 133).

FINDINGS

The Division is troubled that Ovo's policy to allow customers to pay with cash, credit card, or check can be changed at the last minute without any prior knowledge of the customer. It is the opinion of the Division that the payment policy used by Ovo is a marketing inducement to get business. The concern of the Division is that the policy can be changed at a point in time when the customer has no recourse and must follow the dictates of the company. Ovo's argument that the customer would stop payment on the check is not convincing as legal remedies are available to secure payment. The policy of the company to change payment options without customer notification cannot be tolerated as it will have adverse affect on the public. The demand of cash at the last moment causes an undue burden on the person being moved. It is apparent that Ovo does not inform the public about the possibility that it may decide to change the payment method at the end of the move, because it is certain the person being moved would look for another moving company.

4. BILL OF LADING

Testimony by the complainant and Ovo indicates that a bill of lading was not left with Ms. Marsella after completion of the move.

Ms. Marsella testified under direct examination that she did not receive a bill of lading after the move.

Q. "Did you sign any bill of lading after the move?"

A. "Before Mr. Walason left I asked, I said do I get a receipt, do I get a bill, do I get anything."

Q. "When you paid him the $600 did you ask for a receipt?"

A. "Yes."

Q. "And what was his response?"

A. "I'm not giving you a God damn thing."

Mr. Walason testified that he did not give Ms. Marsella a bill of lading because she refused to sign it. When asked what he did with that bill of lading, he said, "I took it back to Ovo and threw it in the garbage".

Q. "Why did you do that?"

A. "Because I had to send her a complete new bill".

FINDINGS

The testimony of all parties clearly points out that a bill of lading, as required by Rhode Island General Law, (39-12-28) was not issued to the customer. Even though Ms. Marsella would not sign the bill of lading, there is no reason why Mr. Walason could not have left it on the premises. After several weeks, Mr. Walason sent the complainant a bill, but it was not a detailed bill that outlined the specific charges or specified the appropriate times. (Advocacy Exhibit #6)

OVER ALL FINDINGS

The evidence presented makes it apparent that Mr. Walason is exclusively operating Ovo with no managerial oversight by the certificate holder. Heavy weight must be given to the testimony from all parties that Mrs. Walason played no role in the move contracted by Ms. Marsella. Rather than step in and try to resolve the complaint, she personally went to the Cranston Police Department and filed an harassment complaint against Ms. Marsella, who testified that she was upset because no one at Ovo would answer her calls or try to resolve what she considered a legitimate complaint. Mrs. Walason filed the complaint because the secretary in the office got "fed up" getting phone calls from the complainant.

Testimony also points out that the tariff filed by Ovo that was in dispute at this hearing was all handled by Mr. Walason. He was solely responsible for the confusion and the inappropriate charges germane to this case.

During cross-examination, it was brought out that Mr. Walason has a criminal record that would prevent him from being certified as a mover of household goods because of the fitness issue. Evidence also shows that the company did not issue a bill of lading as required by law, failed to live up to a pre-arranged method of payment, and failed to supply insurance information. All of these issues are criteria to judge the fitness of the certificate holder.

Accordingly, it is

(15505) ORDERED:

That OVO Movers be suspended for ten (10) days at a time to be worked out with the Division. Ovo should contact the Division upon receipt of this Order.

1. That OVO Movers pay a fine of $3,000.

2. That the certificate holder assume the responsibility of operating OVO Movers and that Mr. Walason be removed from any policy making decisions affecting the public.

3. That OVO Movers be placed on probation for one year at which time the operation of the company will be subject to review by the Division.

4. That OVO Movers take whatever steps necessary to satisfy the damage claims of Ms. Marsella. If OVO Movers' insurance does not comply with Rhode Island General Laws, then the company must assume responsibility of the damages claimed by the complainant.

DATED AND EFFECTIVE AT PROVIDENCE, RHODE ISLAND THIS SIXTH DAY OF JANUARY, 1998.