Liability and overweight towing (split from Towing 13' Scamp...) - Page 4 - Fiberglass RV


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Old 04-17-2014, 12:39 AM   #43
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Name: RogerDat
Trailer: 77 Scamp 13
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Appreciate the information Vic.
Know from personal experience insurance companies or their legal department will often settle regardless of "merits" or evidence. All that stuff seems to be simply negotiating points to drive the settlement amount.

My fathers car was hit by someone making a right turn on red without even slowing down let alone stopping. The driver and passenger switched places before the police arrived and claimed that is how they were when the accident took place. There were at least two witnesses to the accident that both signed notarized statements that stated the other party was ran a red light and had switched places and lied to the police.

Insurance company wanted to settle with the other party who had no health insurance and was claiming back injuries. Pressured my father hard to go along with a settlement, my father tended to see this in terms of right and wrong. I think insurance company saw it as cost of litigation and downside risk of large disability settlement vs. quick modest settlement.

Vic if I understand you correctly your saying one can be sued for any reason or no reason. My own hunch is if the other party is badly injured or killed the potential of a big settlement or the loss experienced is enough to motivate a lawsuit. The downside risk of a big judgment will motivate your insurance company to negotiate a settlement, best you can do is try to give your attorney a strong not weak set of facts to negotiate with on your behalf.

I think the thing that I am bothered by is when member is told real world weights of trailer, told to go to dealer and see if the dealer has towing hardware for their trailer at that weight for their car. They report back the dealer said it's OK and the dealer will install the correct hitch for the towing application. At that point they are still getting told your taking a legal liability risk because....

I think the dealer approval and doing the work pretty much give them a solid set of facts for their attorney to work with.

Same thing for pretty much anyone that asks about a weight distribution hitch. No matter what the circumstance or equipment if your over your hitch weight or close they get hammered with their risk of legal liability. Despite the fact that the purpose of a WD hitch is to shift weight off of the hitch onto the trailer axle and front axle, and off the rear axle. In short while not a magic bullet done correctly they improve towing safety.

And what is worse the original question is ignored in a back and forth argument on points raised by the answers. While valid points to consider are raised they get lost in the argumentative back and forth.

I have said it before and I don't find any contradiction in your observations, the closer you push toward the limits the more responsibility you take for making sure your decisions are well thought out.

I would apply the same to the larger vehicle you drive or bigger load you tow, the consequences of a wrong decision increase and you need to make your decisions with care.

Vic thanks again for sharing a well thought out and balanced post based on your knowledge in the field.
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Old 04-17-2014, 06:45 AM   #44
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I am glad it helped. And, if, hypothetically,keeping in mind these things vary by state and this is not legal advice, a dealership installs a hitch for a known purpose, and the hitch fails while being used for that purpose and causes an accident, the driver will likely still be sued. But the dealer could potentially be added to the suit and liability could be assigned proportionately to fault, depending on what the evidence is.
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Old 04-17-2014, 10:11 AM   #45
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Originally Posted by Carol H View Post
(Edited in part from Post #10)

Having said that I have been in such stops and so have other family members and for what it is worth they have been known to ask to see the vehicles manual for its towing spec rating.

Also in BC we have one insurance company called ICBC that we all have to buy our basic insurance coverage for the vehicle and the trailer and funny enough they have a PDF on towing that you can read located at ICBC.com ICBC Trailer-full PDF. pay particular attention to page 7 on the left you will see a FAST FACT box with reads "Exceeding the load capacity, GVWR or towing capacity is unsafe and may void any warranty on the vehicle. Motor Vehicle Act Regulations prohibit the operation of vehicles that are unsafely or improperly loaded, or that exceed weight ratings."

On the same page it also reads:

"Towing and weight capacity
You need to know the truck’s: • towing capacity rating,
• GVWR, and
• load capacity.
These are usually listed in the owner’s manual and on a plate or decal on the vehicle.
Make sure that the truck’s towing capacity, GVWR and load capacity are rated for the load to be carried and the trailer you want to tow."
I think it's a good question as to how the local constabulary and/or ICBC would deal with TV's well over the book limit via "Custom" hitches from a certain well known firm in Ontario ?????
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Old 04-17-2014, 10:39 AM   #46
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Originally Posted by VicCT View Post
I am glad it helped. And, if, hypothetically,keeping in mind these things vary by state and this is not legal advice, a dealership installs a hitch for a known purpose, and the hitch fails while being used for that purpose and causes an accident, the driver will likely still be sued. But the dealer could potentially be added to the suit and liability could be assigned proportionately to fault, depending on what the evidence is.
I don't think the question is one of hitch failure, it is a question of does the equipment allow the person to tow beyond the owners manual recommended hitch weight. Comes about because many vehicles are stated to have less than 10% of tow weight as hitch weight. One desires 10% hitch weight for stability as a rule of thumb, not sure 10% is a matter of law or regulation.

I know at one point Michigan introduced proportional responsibility. One of the first cases was a drunk driver going the wrong way on the interstate. He ended up in a wheel chair and sued for the other drivers failure to avoid him.

The actual damages of being paralyzed would be huge so even if the jury found the drunk driver was 90% at fault the court would have awarded him 10% of that large "actual" damage amount. Judge threw the case out as without merit.

There is I have been told also a "chain" effect. Independent commercial truck driver has an accident. He is sued so that the truck leasing company can be sued so that the manufacturer of the brakes can be sued. Driver has some insurance but Ryder Leasing and Bendix brake company have the heavy duty insurance where the big money is to be found if they settle out of court.

We do have no fault insurance here which was supposed to cut down on lawsuits over responsibility but it seems like it just shifted most of that to the insurance companies of the involved drivers doing the fighting about which company should pay for what damages.
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Old 04-17-2014, 10:49 AM   #47
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Vicki, Thank you of sharing your knowledge.

One of the frustrating things that happens when this topic comes up is all to often someone suggests that due to the fact no one has put forward a link on the WWW to someone having been sued over an accident caused by someone pulling a TT that was over the weight limit of their tug then it is suggested that it has not happened or will not happen.

As you have pointed out the simple reason for that is the vast majority of cases never actually make it into the courtroom and the records do not become public. It also been my personal experience that the majority of cases are also settled on the bases of non disclosure. In two cases I was personally involved in that were very high profile in the news at the time and for sometime after and that involved multi million dollar payouts (one corporate and one personal) both cases settled outside the court room on the bases of non discloser. Only the corporate case was reported by the press at the time it was settled & the amount paid out or by whom was never reported publicly.

Proving once again its a real bad idea to make decisions of importance based only on what one read or did not read on the internet! ;-)

RodgerDat while I agree in the case of the original topic that started this thread if the dealer did the equipment install and told the OP that the vehicle was good to tow the weight amount of the trailer they are planning to tow, then your right the whole thing would most probable fall back onto the dealer should it all go badly wrong. But the OP themselves would have to sue the dealer.

Why some continued to wave the warning flag towards the OP is I suspect simple due to what we were told or more importantly not told :

"I've spoken with my local Toyota dealer. The service manager said that I would be okay, although I shouldn't load the trailer up to much with stuff, no full water tanks, and so forth. And don't go too far, monitor the engine temp....."

No mention of what the actual weight the OP advised the service manager they were planning on towing or if the service manager advised them that there was an actual weight limit number in regards to the equipment installed by them or the factory.

If I was the OP I would be sure get the actual number they were advised of by the Service Manger in writing, if it was in fact over the published towing specifications for that vehicle with the equipment they have on it ..... which based on the Real World weights of a 13' Scamp it would appear there is some discrepancy.
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Old 04-17-2014, 10:58 AM   #48
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But.... if the dealer tells the vehicle owner that it's OK to do something that is outside the manufacturers specifications, that makes the dealer an accessory, but it is not a release for the owner to ignore what's printed in the vehicles owners manual.

As always... buyer beware
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Old 04-17-2014, 11:33 AM   #49
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Originally Posted by Bob Miller View Post
But.... if the dealer tells the vehicle owner that it's OK to do something that is outside the manufacturers specifications, that makes the dealer an accessory, but it is not a release for the owner to ignore what's printed in the vehicles owners manual.
While a dealer could indeed be named as a party, I suspect most people would save themselves the expense of attempting to pin it back to the dealer if they had nothing what so ever to prove that such a conversation ever took place.
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Old 04-17-2014, 12:20 PM   #50
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I'm trying to picture the conversation...
"I'd like to add add'l factory equipment to increase the towing capacity of my vehicle to pull a trailer I own."
"What is it you plan to tow?"
"It's a (whatever)."
"And how much does it weigh?"
"It weighs #### pounds."
"We can install (a), (b), and (c) for you and that should give you the capacity you need."

Now at this point, is the dealer going to say, "Let's bring it in and check the weight"? Or give you a letter stating that the modifications will enable you to pull your actual trailer?

The dealer used your statement of the intended use of the equipment, and nothing is in writing, except what's in the owner's manual (surprised at how much detail is in mine compared to earlier vehicles I've owned!) along with additional towing information from the dealer's manuals (you can request a copy).

Unless a failure occurs when the actual real-world condition of the trailer is within actual published manufacturer's specs for the vehicle with the installed equipment, I don't see how a dealer could be held liable.

Not that it could never be attempted, of course, but I'd say it has a low probability of success!

Want to add my thanks to VicCT also for a very lucid summary!

EDITED FOR CLARITY - my fat finger hit "reply" prematurely on my phone app!
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Old 04-17-2014, 01:16 PM   #51
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VicCT great post thanks for taking the time.

Rogerdat,
"Vic if I understand you correctly your saying one can be sued for any reason or no reason." Yep, it's in the news daily.
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Old 04-17-2014, 02:11 PM   #52
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..... Unless a failure occurs when the actual real-world condition of the trailer is within actual published manufacturer's specs for the vehicle with the installed equipment, I don't see how a dealer could be held liable.
If it was me I would keep the trailer weight information presented and the hitch install receipt. Would consider that documentation that I told them this and they installed that as fit for the use intended.

Two problems keep coming up in the discussion.

We use hypothetical configurations to decide what an non-existent jury or judge would decide given the specifics of an accident that has not happened. And we try to arrive at a fairly absolute statement from it. At least those of us who are not lawyers tend to.

We tend to then argue and try to prove that absolute statement or our point of view over, and over and over again.Every time the opportunity comes up in any thread. Or any time an opinion is posted based on another members assessment that does not agree with our own.

Sort of ignoring the fact the vehicle, trailer, liability and decision belongs to someone else who just asked a question looking for opinions, not just your opinion or my opinion but all members. Even those opinions that disagree with our own.

Case in point we do not know if the OP took the trailer weight in the real world weight or a weigh ticket or the manufactures dry weight. Using the first two was advised but we don't really know what they really did.

Risk aversion or comfort level are individual. Just because you would never tow with that set up is not the definitive answer. People have different levels of experience and so a different comfort level with things based on their experience.

Characteristics of an individual do not apply to an entire group. Just because one or more members can make a set up work does not extrapolate to all members can. Just because one or more members would not do something does not mean all members should not.

Last but not least just as in politics and religion most folks are not going to be argued or proved wrong into switching to your point of view.
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Old 04-17-2014, 02:18 PM   #53
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Originally Posted by Bob Miller View Post
But.... if the dealer tells the vehicle owner that it's OK to do something that is outside the manufacturers specifications, that makes the dealer an accessory, but it is not a release for the owner to ignore what's printed in the vehicles owners manual.

As always... buyer beware
An example of my thoughts of a dealer issue is a vehicle that may have multiple towing rates say, depending on drive line, and a dealer fits a factory hitch for the higher rating and tells the owner to go ahead and tow a heavier weight.

In the case of several GM mid-size truck, just the difference of it being std or automatic transmission could mean a 500 to 1500 lb difference in towing capacity, but the same hitch would fit all chassis.

Again, go by the manual for that vehicle.....
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Old 04-17-2014, 02:21 PM   #54
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In Alberta, it is possible to take someone to court, without a lawyer. The government publishes the required documents, in a fill in the blanks format, online:
Alberta Courts > Provincial Court > Civil (Small Claims Court) > Forms & Publications

I can, and have made Application to the court, and issued notice to attend. I was shocked to realize that these applications could be made for trivial purposes, like I don't like your hair cut. The judge would throw it out pretty quick, but you can drag someone to court anyway. Just going to court is a punishment enough.
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Old 04-17-2014, 02:33 PM   #55
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In Alberta, it is possible to take someone to court, without a lawyer. The government publishes the required documents, in a fill in the blanks format, online:
Alberta Courts > Provincial Court > Civil (Small Claims Court) > Forms & Publications

I can, and have made Application to the court, and issued notice to attend. I was shocked to realize that these applications could be made for trivial purposes, like I don't like your hair cut. The judge would throw it out pretty quick, but you can drag someone to court anyway. Just going to court is a punishment enough.
In California, small claims courts prohibit a lawyer, but the other party can file a countersuit at the same time as they are served and both will be considered at the same time. A common countersuit for nuisance filings is for lost time & wages, and in nuisance suits this is often awarded.

There is a term in these courts called "Frequent Filers" and the courts know who these peeps are.....
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Old 04-17-2014, 02:57 PM   #56
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An example of my thoughts of a dealer issue is a vehicle that may have multiple towing rates say, depending on drive line, and a dealer fits a factory hitch for the higher rating and tells the owner to go ahead and tow a heavier weight.

In the case of several GM mid-size truck, just the difference of it being std or automatic transmission could mean a 500 to 1500 lb difference in towing capacity, but the same hitch would fit all chassis.

Again, go by the manual for that vehicle.....
Bob you sort of make my point for me.
Your hypothetical example presumes:
  • Multiple towing capacity for vehicle depending on drive line.
  • Dealer installs towing hitch for wrong drive line
  • Dealer then tells the owner to go ahead and tow as if they had the higher rated drive line.
And it could happen if you have a GM mid-sized truck.

To support an absolute statement of your position that you must go by the manual.

It is true (and fairly common) that some vehicles have different engine and transmissions, and that some of those vehicles have different tow ratings depending on the equipment. However your argument assumes that the dealer has no clue or would deliberately mislead the customer. And that this hypothetical customer has one of those vehicles.

Once you have a statement that is based on "IF this and IF that and IF this other" it loses much of it's value. Any single "IF" that is not true makes it so statement does not support the conclusion any longer.

The points about different drive trains existing would be germane to mention (more so if there was an applicable vehicle being referenced) especially to someone new to towing. It would be fair to advise the person to make sure they clarify which they have with the dealer or shop doing the work. I certainly would do so if it were me.
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