Suit over ill man's missing car can continue

By John O'Brien | Apr 16, 2012


CONCORD, N.H. (Legal Newsline) - A New Hampshire man whose car was towed right before he suffered a heart attack during the amputation of his foot will have a chance to recover damages related to the subsequent sale of it.

The state Supreme Court ruled April 10 that Robert Pelkey's lawsuit against Dan's City Used Cars is not preempted by federal law, overturning a lower court's summary judgment ruling in favor of Dan's, which towed the car while Pelkey was ill in his home.

Justice Robert Lynn wrote that Pelkey's lawsuit is not in conflict with the Federal Aviation Administration Authorization Act of 1994, a federal law deregulating the trucking industry.

"Although the lack of a parallel federal remedy for tortious or otherwise unlawful conduct by towing companies in the management and disposition of towed vehicles does not require the conclusion that Congress did not intend preemption in this context... it does militate strongly against reading (the FAAAA) so expansively as to encompass everything a towing company might do in the course of its business," Lynn wrote.

Pelkey brought his lawsuit against his landlord, Colonial Village, and Dan's in March 2009. It was alleged that Dan's towed his 2004 Honda Civic from the Colonial Village parking lot because Pelkey did not move the car during a snowstorm.

Pelkey said that he was bed-ridden with a serious illness and did not realize his car had been towed. Soon thereafter, he was admitted to the hospital to have his left foot amputated. During the procedure, he suffered a heart attack.

Once healthy enough to return home, Pelkey found that his car was missing. His attorney discovered that Dan's had the car and was preparing to sell it at a public auction, Pelkey alleges.

Pelkey also says Dan's, after being told Pelkey wanted the car back, falsely claimed the car had already been sold at auction. Pelkey alleged Dan's later sold the car to a third party and did not pay Pelkey anything.

Dan's said the case was preempted by the FAAAA, which preempts states from enacting or enforcing any law "related to a price, route or service of any motor carrier... with respect to the transportation of property."

The case was remanded to the Northern District of Hillsborough County.

From Legal Newsline: Reach John O'Brien by e-mail at

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