Attorney: Express Lanes operator might be breaking the law

FAIRFAX, Va. — Each year, Express Lanes operator Transurban takes thousands of people to court for unpaid tolls, penalties and fees.

But lawyers are arguing that Transurban is taking too long to take drivers to court, and one lawmaker tells WTOP that he agrees.

Attorney Marla Diaz has argued in Fairfax County Circuit Court that the statute of limitations is one year.  Attorney David Bernhard also has made the same arguments before the District Court.

Del. Scott Surovell, D-Mt. Vernon, warns that he hasn’t studied the Virginia code in-depth, but he agrees the statute of limitations should be one year.  Surovell is also a criminal defense attorney.

“From a public policy perspective, I don’t see why the legislature would want this to be anything other than a one year statue of limitations,” says Surovell.

If the court rules in this direction, it means that Transurban must file in court against a driver within 365 days of the unpaid tolls.  Bernhard says you can find the filing date online, but it’s usually a few days after the date on the court summons.

If Transurban files after 365 days, then the lawsuit could be considered untimely.

“The statute of limitations was the first thing I looked into, and it’s pretty obvious to me that it is one year,” says Bernhard, who was profiled on Fox 5 earlier this month.

Surovell tells WTOP that Bernhard is a top defense attorney and he knows the laws better than almost anyone in Fairfax County.

“I haven’t studied it the way Mr. Bernhard has, but from a public policy perspective, we wouldn’t want this to be stretched out.  Traffic offenses have a one year statute of limitations.  There is no reason you need to wait to prosecute somebody.  There’s no reason to wait up to two years to deal with the matter.  I can’t think of a basis why the General Assembly would intend for these cases to have anything longer than a one year statute of limitations,”

Transurban disagrees with this conclusion.  Attorney Caleb Kershner argued before judge Dennis J. Smith that the statute of limitations is two years.  Kershner points to a Virginia statute referring to personal action causes for damages to the other person or his property.

Last week, Bernhard also got a District Court Judge Thomas E. Gallahue to dismiss two cases because Transurban was not present.  Alexis Brach appeared on behalf of Transurban, but since she is an independent contractor for a company called Faneuil Inc., the judge ruled she cannot represent Transurban before the court.  Brach also negotiates with drivers for Transurban in the courthouse.

Smith will rule on all these issues on March 13.  If he rules the statute of limitations is one year, then three cases before him will be dismissed and all drivers going to court can refer to the ruling as a defense.

Editor’s Note: This story has been modified to reflect that Transurban has summoned 4,200 individuals to Fairfax County General District Court and not tens of thousands, which reflects the number of summons issued. An individual receives a separate summons for each unpaid trip on the Express Lanes.

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