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Express Lanes operator loses another case in court

FAIRFAX, Va. — A Fairfax County District Court has ruled against Virginia express lanes operator Transurban in a case that could open the door for thousands of motorists to challenge past fines and fees stemming from unpaid tolls.

Judge Richard E. Gardiner found that Transuban did not use its legal corporate name in filing lawsuits. The decision overturns a ruling against Lisa Marie Comras, profiled earlier this year on WTOP. The Alexandria driver will not have to pay the $10,751 Transurban sued her for — fines and fees that accrued for $14 in unpaid tolls. Whether she will be able to have her driver’s license reinstated has yet to be determined.

Attorney David Bernhard argued that Transurban is actually incorporated as Transurban USA Operations. He argued that because there are nearly a dozen companies across the country with Transurban in the name, the company had a legal duty to sue with the full corporate name.

Transurban attorneys argued that its name was a minor issue that did not arise to the level of dismissing old cases. Transurban also argued that all the clerks and county employees know the company. Finally, Transurban argued that it was present for all cases with Alexis Brach representing the company.

In his ruling, Gardiner found that Brach is an independent contractor for another company, Faneuil Inc., and is not an attorney. He also rejected Transurban’s other arguments and vacated the judgment against Comras.

“If followed by other judges, this means all HOT (Express) Lanes judgments rendered in favor of Transurban before March 3, 2015 may potentially be challenged in similar fashion. We are grateful to the judge for his scholarly analysis and for giving this matter such serious attention,” writes Bernhard in a statement to WTOP.

“The time has come to implement transparency and oversight into the enforcement and collections practices on the 95/495 HOT Lanes. Toni Cooley and I have created a group dedicated to working with the lawmakers to amend the current state code and to work on providing a proper on-road notification system,” writes Comras, referring to an online petition and another motorist who recently won an appeal involving Transurban’s toll and fee collections.

“Toni and I may have won our cases but this has always been about all the drivers on the HOT Lanes so they don’t have to endure what we have thus far. We want to make things fair and equitable for Transurban and the drivers on the HOT Lanes,” she adds.

Transurban spokeswoman Pierce Coffee tells WTOP that the company will continue to offer customers low-cost opportunities to resolve matters before they go to court. She also reminds motorists to properly mount their E-ZPass and keep their account funded at all times.

“The Company has been registered to do business in Virginia since well before the Express Lanes began operating. Before the Lanes opened, we worked closely with the courts to populate the fields on the summons to ensure that we would satisfy their requirements. We plan to appeal the ruling,” writes Coffee.

The ruling does not set any binding precedent, but two Fairfax County attorneys tell WTOP that this ruling will likely carry persuasive precedent.  The legal term refers to a ruling that other judges aren’t obligated to follow, but carries weight and can help other judges decided similar cases.

“A General District Court is a judge – their orders an opinions carry as much precedent as any other judge’s order.  Judge Gardiner was a top appellate litigator in Virginia before he took the bench.  His written opinions carry weight with everyone,” writes Del. Scott Surovell, who is also a practicing attorney.

He also says Transurban will not able to appeal the decision because the Circuit Court will rule that it has no jurisdiction.  A second independent attorney concurs with Surovell.

“Virginia law only allows appeals of final orders.  Judge Gardiner’s opinion says the final order was vacated and the matter was reinstated on the docket for further proceedings.  That means there is no final order to appeal,” he writes.

It is unclear is whether this ruling will open the door for everyone else to re-open their unpaid toll cases in court.