NEW JERSEY REGISTER
VOLUME 40, ISSUE 10
ISSUE DATE: MAY 19, 2008
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
OFFICE OF THE DIRECTOR
Proposed Amendments: N.J.A.C. 13:44D-1.1 and 4.5 and 13:44D Appendix A
Proposed Repeal and New Rule: N.J.A.C. 13:44D-4.8
Proposed New Rule: N.J.A.C. 13:44D Appendix H
Public Movers and Warehousemen
Words and Phrases Defined; Legal Liability and Insurance; Use of an Owner-Operator
Authorized By: Lawrence DeMarzo, Acting Director, Division of Consumer Affairs.
Authority: N.J.S.A. 45:14D-6 and P.L. 2007, c. 50.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2008-164.
Submit written comments by July 18, 2008 to:
Lawrence DeMarzo, Acting Director
Division of Consumer Affairs
PO Box 45027
Newark, New Jersey 07101
The agency proposal follows:
P.L. 2007, c. 50 permits a licensed public mover to use the services of an owner-operator to provide moving services for a consumer. The Director of the Division of Consumer Affairs (Director) proposes to amend N.J.A.C. 13:44D-1.1 and 4.5 and Appendix A, proposes new N.J.A.C. 13:44D Appendix H, and proposes to replace N.J.A.C. 13:44D-4.8 with a new rule, in order to effectuate the provisions of P.L. 2007, c. 50.
The definitions of "bill of lading," "owner-operator" and "public mover" in N.J.A.C. 13:44D-1.1 are amended to conform to changes in these definitions in P.L. 2007, c. 50. As proposed for amendment, "bill of lading" means the document issued by a public mover that indicates receipt of goods. The definition of "owner-operator," as proposed for amendment, recognizes that an owner-operator may lease or rent a vehicle. The definition of "public mover" clarifies that an owner-operator is not considered a public mover. The rule also includes a new definition for the term "contracting public mover," which is a licensed public mover who contracts with an owner-operator. The definition is taken from P.L. 2007, c. 50.
N.J.A.C. 13:44D-4.5 permits a public mover to limit by contract his or her liability for loss or damage to goods. Such limitation is null and void if a public mover fails to comply with specific sections of N.J.A.C. 13:44D. The Director proposes to amend this rule to nullify contracted limitation of liability if a public mover fails to provide written notice to a consumer when he or she contracts with an owner-operator to perform moving services for the consumer on behalf of the public mover.
The Director proposes to delete existing N.J.A.C. 13:44D-4.8 and to propose new provisions governing the use of an owner-operator in accordance with P.L. 2007, c. 50. Under these new provisions, a public mover may enter into a contract with an owner-operator to provide a consumer with moving services. A public mover who contracts with an owner-operator is liable to the consumer for any services provided by the owner-operator.
A public mover is required to provide a consumer with written notice if the public mover is using an owner-operator to perform moving services for the consumer. Written notice must be provided at least one business day prior to the move, unless the mover is providing a short-notice move pursuant to N.J.A.C. 13:44D-4.15. If a public mover is providing a short-notice move, written notice must be provided prior to the commencement of moving services. Written notice must contain the information contained in proposed new Appendix H.
A public mover is responsible to perform any physical survey or estimates when the public mover uses an owner-operator. A public mover who uses the services of an owner-operator is required to include the owner-operator as an additional covered insured on his or her insurance. A public mover is only allowed to contract with an owner-operator who has the required insurance for property-casualty and workers' compensation. A public mover who contracts with an owner-operator is required to maintain records on the use of the owner-operator.
The Director proposes to amend N.J.A.C. 13:44D Appendix A to include reference to the use of an owner-operator. The Director also proposes new N.J.A.C. 13:44D Appendix H, which is a sample of the written notice required by the proposed amendments to N.J.A.C. 13:44D-4.8.
The Director has determined that the comment period for this proposal will be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.
By requiring public movers to include an owner-operator as an additional covered insured on his or her insurance policy, and by requiring that owner-operators carry their own insurance, the rules will protect the public by ensuring that possible losses suffered during a move are sufficiently covered by insurance.
The proposed amendments and new rules will impose costs on public movers by requiring them to include an owner-operator as an additional covered insured and by requiring them to maintain records regarding the use of an owner-operator. The proposed amendments and new rules will impose costs on owner-operators by requiring them to maintain insurance.
Federal Standards Statement
A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendments and new rules.
The Director does not believe that the proposed amendments and new rules will result in an increase or decrease of jobs in this State.
Agriculture Industry Impact
The Director does not believe that the proposed amendments and new rules will have any impact on the agriculture industry of this State.
Regulatory Flexibility Analysis
Since public movers who use the services of an owner-operator are individually licensed, under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., they may be considered "small businesses" for the purposes of the Act. An owner-operator may also be considered a "small business" for purposes of the Act.
The costs imposed by the proposed amendments and new rules are the same for all public movers and owner-operators as set forth above in the Economic Impact statement. The Director does not believe that public movers or owner-operators will need to employ any professional services to comply with the requirements of the proposed amendments and new rules. The proposed amendments and new rules impose no reporting requirements, but impose compliance and recordkeeping requirements upon public movers, and compliance requirements on owner-operators, as detailed in the Summary above.
The proposed amendments and new rules protect the public by ensuring that public movers who use owner-operators, and owner-operators themselves, have sufficient insurance to cover losses suffered by consumers during a move. The proposed amendments and new rules also ensure that consumers are provided relevant information about the use of an owner-operator in a timely manner. As such, no differing compliance requirements are imposed upon any public mover or owner-operator based upon their size.
Smart Growth Impact
The Director does not anticipate that the proposed amendments and new rules will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
SUBCHAPTER 1. DEFINITIONS
13:44D-1.1 Words and phrases defined
The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.
. . .
["Bill of lading" means a contract of carriage and a receipt given to a consumer by the public mover for all of the cargo picked up from the consumer by the public mover and moved to another point.]
"Bill of lading" means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods, and includes an airbill.
. . .
"Contracting public mover" means a licensed public mover who contracts with an owner-operator to provide any mover's service of the licensed public mover.
. . .
["Owner/operator" means a person who owns his or her own vehicle and leases his or her services to a second person or company for compensation to perform moving services for and using the forms and bill of lading of the second person or company.]
"Owner-operator" means a person who owns, leases or rents one or more motor vehicles and who uses the vehicles to provide mover's services for a contracting public mover.
. . .
"Public mover" means any person who engages in or holds him or herself out to the general public as engaging in the transportation of household goods, as defined by N.J.S.A. 45:14D-2(e); office goods, as defined by N.J.S.A. 45:14D-2(k); or special commodities, as defined by N.J.S.A. 45:14D-2(q) by motor vehicle for compensation in intrastate commerce between points in this State, including the moving of household goods, office goods or special commodities from one location to another at a single address, and any person who engages in the performance of accessorial services as defined by N.J.S.A. 45:14D-2(a). "Public mover" does not include an owner-operator.
. . .
SUBCHAPTER 4. GENERAL PROVISIONS
13:44D-4.5 Legal liability and insurance
(a) The public mover and/or warehouseman may, by contract with the consumer, limit liability for loss or damage to goods in storage or in transit. The minimum amount, which a public mover and/or warehouseman may limit liability is $.60 per pound per article. The order for service shall specifically state the public mover's and/or warehouseman's liability. Any limitation shall be null and void and the public mover and/or warehouseman shall be subject to full liability if any of the following occurs:
1. (No change.)
2. The public mover and/or warehouseman fails to provide the consumer with the brochure entitled "Important Notice to Consumers Utilizing Public Movers," in accordance with N.J.A.C. 13:44D-4.1(a), 4.2(a) or 4.3(a); [or]
3. A court or administrative finding has been made that the loss of or damage to the consumer's goods was the result of gross negligence and/or gross incompetence on the part of the mover and/or warehouseman and/or his or her agents or employees, whether as to the actual handling of goods or in the failure to provide appropriate security to prevent loss by theft[.]; or
4. The public mover contracts with an owner-operator and does not provide written notice to the consumer as required by N.J.A.C. 13:44D-4.8(d).
(b)-(j) (No change.)
[13:44D-4.8 Use or employment of owner/operator
(a) If a public mover intends to use or employ the services of an owner/operator, the consumer shall be so advised. In such instances, the public mover shall, in advance and in writing, provide the consumer with the following information:
1. The definition of an owner/operator; and
2. The nature of the relationship between the public mover and the owner/operator.
(b) Any public mover who uses or employs the services of an owner/operator shall remain responsible for the services provided by the owner/operator.]
13:44D-4.8 Use of an owner-operator
(a) A public mover may enter into a written contract with an owner-operator for the owner-operator to provide moving services to a consumer with whom the public mover has contracted to perform moving services.
(b) A contracting public mover shall be liable to the consumer for any service provided by the owner-operator.
(c) A contracting public mover may permit an owner-operator to use the forms of the contracting public mover.
(d) A contracting public mover shall provide written notice to the consumer if the contracting public mover is using an owner-operator to perform moving services for the consumer on behalf of the public mover. This written notice shall be provided to the consumer at least one business day prior to the provision of services, except as provided in (e) below. A sample written notice form is provided in chapter Appendix H, incorporated herein by reference. The public mover may adopt any form containing the same information outlined in chapter Appendix H; provided that the font size of the type in the public mover's form is the same as in chapter Appendix H, and any words in bold in chapter Appendix H are in bold on the public mover's form.
(e) A public mover who is providing a short-notice move pursuant to N.J.A.C. 13:44D-4.15 shall not be required to provide the written notice required by (d) above one business day prior to the provision of services. Such a public mover shall provide the written notice required by (d) above prior to the provision of moving services.
(f) A contracting public mover shall remain responsible under N.J.A.C. 13:44D-4.1 or 4.2 and shall not permit an owner-operator to perform a physical survey or issue an estimate or order for service to a consumer.
(g) A public mover shall add any owner-operator who provides moving services for the public mover as an additional covered insured under the public mover's insurance policies which he or she is required to hold pursuant to N.J.S.A. 45:14D-25 and N.J.A.C. 13:44D-4.5(b).
(h) A public mover shall contract only with an owner-operator who presents the public mover with proof that the owner-operator has secured and maintained insurance coverage that covers him or her for property-casualty and workers' compensation liabilities pursuant to (i) below.
(i) The minimum amounts of insurance an owner-operator must secure and maintain are:
1. Legal liability coverage at the rate of $.60 per pound per article;
2. Bodily injury liability, property damage liability:
i. Limit for bodily injuries to or death of one person: $ 25,000;
ii. Limit for bodily injuries to or death of all persons injured or killed in any one accident: $ 100,000, subject to a maximum of $ 25,000 for bodily injuries to or death of one person; and
iii. Limit for loss or damage in any one accident to property of others (excluding cargo): $ 10,000; and
3. Cargo liability:
i. For loss or damage to property being transported (cargo liability insurance) on any one vehicle: $ 5,000 per accident; and
ii. For loss or damage to or aggregate of losses or damages of or to property occurring at any one time and place: $ 10,000.
(j) A contracting public mover shall maintain as part of its records:
1. The contract between the public mover and the owner-operator, which includes a copy of documents indicating that the owner-operator owns, leases or rents one or more motor vehicles, which the owner-operator will use to provide moving services;
2. Proof that the public mover's insurance includes the owner-operator as an additional covered insured; and
3. A copy of the current insurance policies that the owner-operator maintains pursuant to (h) and (i) above.
IMPORTANT NOTICE TO CONSUMERS USING PUBLIC MOVERS AND WAREHOUSEMEN
Please read this brochure carefully. The public mover and/or warehouseman you have engaged is required by law to provide this brochure to you.
. . .
If the public mover's transportation charges are determined on the basis of weight of your shipment and miles traveled, the public mover will weigh its empty vehicle prior to the loading of your goods. This weight will be the TARE WEIGHT. After loading your goods, the vehicle will again be weighed and this is the GROSS WEIGHT. The difference between the GROSS WEIGHT and the TARE WEIGHT is the NET WEIGHT. The NET WEIGHT is the weight for which you will pay transportation charges. If your shipment weighs less than 1,000 pounds, the mover may weigh it prior to loading by using a portable scale or use an estimated weight based on cubic feet. Some movers may have minimum weight requirements. The weight tickets obtained by the mover must have a seal on them showing that the truck scale used is approved by the NJ Bureau of Weights and Measures. You are permitted to follow the loaded truck to the weigh station to view your weighing.
USE OF AN OWNER-OPERATOR
A public mover may arrange for an owner-operator to provide the moving services which the public mover has contracted to provide. The public mover is liable to the consumer for any services provided by the owner-operator. An owner-operator will use a public mover's forms. If the public mover arranges for an owner-operator to provide moving services, the public mover must advise the consumer in writing at least one business day prior to the day of the move. If the consumer has contracted for a short-notice move, the public mover is not required to provide this written notice one business day prior to the day of a move, but must provide the written notice prior to beginning the move.
A public mover may not use an owner-operator to perform an estimate.
. . .
GLOSSARY OF MOVING TERMINOLOGY
. . .
"Owner-operator" means a person who owns, leases or rents one or more motor vehicles and who uses the vehicle to provide mover's services for a contracting public mover.
. . .
(Agency Note: The text of proposed new N.J.A.C. 13:44D Appendix H follows without boldface symbolizing proposed new text; those portions of the appendicies appearing in boldface are proposed to be so permanently.)
WRITTEN NOTICE TO CONSUMER OF USE OF AN OWNER/OPERATOR
Licensed Public Mover Name:
Licensed Public Mover Address:
Licensed Public Mover Phone Number:
Licensed Public Mover License Number:
Owner-Operator Phone Number:
________________ who has contracted with _________________ to provide warehousing and/or moving services on
(NAME OF MOVER) (NAME OF CONSUMER)
_____________ has contracted with________________________, an owner-operator, to provide those services to
(DATE OF MOVE) (NAME OF OWNER-OPERATOR)
(NAME OF CONSUMER)
________________ shall be liable to ___________________for any services provided by ______________________.
(NAME OF MOVER) (NAME OF CONSUMER) (NAME OF OWNER-OPERATOR
________________ understands that the truck that arrives on _____________ to provide moving services may or may
(NAME OF CONSUMER) (DATE OF MOVE)
not have the name of _________________________ on it, but ________________________ remains responsible
(NAME OF PUBLIC MOVER) (NAME OF PUBLIC MOVER)
for the move and any losses incurred due to the provision of moving services.
(SIGNATURE OF MOVER) (SIGNATURE OF CONSUMER)
(NAME OF MOVER) (NAME OF CONSUMER)