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LUCKY 13 INDUSTRIES, LLC v. COMMISSIONER
OF MOTOR VEHICLES
(AC 43317)
Cradle, Clark and Flynn, Js.
Syllabus
The plaintiff, a licensed used car dealer and repairer, appealed to this court
from the judgment of the trial court dismissing its administrative appeal
from the decision of the defendant Commissioner of Motor Vehicles
concluding that the plaintiff had charged an illegal gate fee for the release
of a vehicle following a nonconsensual tow to its place of business. The
plaintiff towed the vehicle from the scene of an accident to its storage
yard at the request of a police officer. A Co., the vehicle’s insurer, hired
C Co., a salvage company, to retrieve the vehicle. Before C Co. had
dispatched a driver to do so, the plaintiff informed C Co. of the total
towing and storage charges, which included a $93.59 fee to move the
vehicle out of the storage yard and to position it for loading. C Co.
directed T Co., a tow operator, to retrieve the vehicle on its behalf.
When T Co.’s driver arrived at the plaintiff’s place of business, the
plaintiff provided him with a form entitled ‘‘Consensual Tow Form,’’
which stated, inter alia, that, although T Co. could obtain the vehicle
without paying a fee if the driver agreed to wait for a reasonable amount
of time following his request for its release, T Co. requested that the
plaintiff immediately release the vehicle. The driver signed the form,
and the plaintiff released the vehicle to him. A Co. then filed a complaint
with the Department of Motor Vehicles, alleging that the $93.59 charge
was an illegal gate fee. Following a hearing, the commissioner deter-
mined that the tow at issue was nonconsensual and that the fee was
charged in violation of the applicable statute (§ 14-66 (a) (3)) and regula-
tion (§ 14-63-36c (a)). The plaintiff was ordered to pay $93.59 in restitu-
tion to A Co. and a $1000 civil penalty to the department. Held:
1. This court declined to review the plaintiff’s unpreserved claim that federal
law preempted any state regulations that purported to prohibit the fee
that it charged because such fee was paid pursuant to a voluntary
agreement for an expedited service, which constituted a consensual
tow for purposes of federal law: the plaintiff did not raise a federal
preemption claim during the administrative proceedings before the
department, and, as a result, the department never ruled on such claim;
moreover, the plaintiff failed to raise a preemption claim in its complaint
on appeal to the trial court and, instead, raised the claim for the first
time in its pretrial brief to the trial court; furthermore, the trial court
did not address the argument in its ruling dismissing the administrative
appeal, and the plaintiff did not seek an articulation from the trial court.
2. The trial court properly decided that there was substantial evidence to
support the commissioner’s determination that the plaintiff charged an
illegal fee for the release of the vehicle and that the commissioner’s
decision was not contrary to law: it was undisputed that the plaintiff
performed a nonconsensual tow when it transported the disabled vehicle
from the scene of the accident to its place of business because the tow
was performed at the request of a police officer, and the agreement to
provide a more expeditious retrieval of the vehicle from the plaintiff’s
storage yard did not transform the nonconsensual tow into a consensual
one; moreover, the applicable regulations (§§ 14-63-36b (2) (G) and 14-
63-36c (e)) unambiguously provide that services related to the release
of a vehicle following a nonconsensual tow are included in the tow
charge and expressly prohibit wreckers from charging additional fees
for the release of a vehicle; furthermore, although § 14-63-36b (4) of
the regulations permits licensed wreckers to charge additional fees for
exceptional services that are reasonable and necessary for the trans-
porting of a vehicle, the expedited service at issue did not qualify as
such an exceptional service; accordingly, pursuant to the applicable
regulations and Connecticut Motor Cars v. Commissioner of Motor
Vehicles (300 Conn. 617), the plaintiff was bound by the rates set by
the commissioner and was prohibited from charging a gate fee for the
release of the vehicle.
3. The trial court properly determined that the contract executed by the
plaintiff and T Co. for expedited services was void as against public
policy: the regulations governing nonconsensual tows were implemented
to protect individuals whose vehicles had been towed without their
consent from exorbitant towing and storage fees through the establish-
ment of reasonable rates for the towing, transporting and storing of
motor vehicles that fairly compensate wreckers for their services; more-
over, the commissioner promulgated regulations to prohibit wreckers
from charging an additional fee for the release of a vehicle incident to
a nonconsensual tow because to allow wreckers to set their own rates
for such releases would undermine the regulations that establish rates
for the towing, transporting and storing of motor vehicles; furthermore,
enforcing an agreement that purported to authorize the plaintiff to charge
a fee for the release of a vehicle following a nonconsensual tow plainly
would erode the public policy reflected in the regulatory scheme and
would encourage wreckers to subvert the consumer protections underly-
ing the regulations.
Argued November 16, 2021—officially released February 8, 2022
Procedural History
Appeal from the decision of the defendant finding
that the plaintiff had charged an unlawful gate fee for
the release of a certain vehicle and ordering the plaintiff
to pay restitution and a civil penalty for such charge,
brought to the Superior Court in the judicial district of
New Britain and tried to the court, Hon. Henry S. Cohn,
judge trial referee; judgment dismissing the appeal,
from which the plaintiff appealed to this court.
Affirmed.
Thomas J. Weihing, with whom, on the brief, was
John T. Bochanis, for the appellant (plaintiff).
Anthony C. Famiglietti, assistant attorney general,
with whom, on the brief, was William Tong, attorney
general, for the appellee (defendant).
Opinion
CLARK, J. This administrative appeal arises from a
complaint filed with the Department of Motor Vehicles
(department), alleging that the plaintiff, Lucky 13 Indus-
tries, LLC, doing business as Midnight Auto, charged
an illegal ‘‘gate fee’’ for the release of a vehicle following
a nonconsensual tow to its place of business.1 The plain-
tiff appeals from the judgment of the trial court dismiss-
ing its appeal from the decision of the defendant, the
Commissioner of Motor Vehicles (commissioner), con-
cluding that the plaintiff had charged an unlawful gate
fee and ordering the plaintiff to make restitution to the
complainant, Amica Insurance Company (Amica), and
to pay a civil penalty to the department. On appeal to
this court, the plaintiff claims that federal law preempts
state regulation of gate fees charged pursuant to a vol-
untary agreement. The plaintiff additionally claims that
the trial court improperly concluded that (1) the tow
at issue was nonconsensual notwithstanding that the
plaintiff and Amica’s subcontractor executed a contract
providing that the plaintiff would perform an ‘‘expedited
service’’ when retrieving the vehicle for release and (2)
the contract was void as against public policy. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of the plaintiff’s claims. The plain-
tiff is a licensed used car dealer and repairer. On Febru-
ary 16, 2017, at the request of the Stratford Police
Department, the plaintiff towed a vehicle that had been
involved in a motor vehicle accident to its place of
business. The vehicle was insured by Amica. Thereafter,
Amica hired Copart Auto Auctions (Copart), a salvage
company, to retrieve the vehicle from the plaintiff’s
storage yard. On February 23, 2017, Copart contacted
the plaintiff to make arrangements to retrieve the vehi-
cle. The plaintiff informed Copart that the towing and
storage charges totaled $765.72.2 The billed amount
included a $93.59 fee, which was described in a work
order as follows: ‘‘Driver could not maneuver truck in
yard, request vehicle to be moved out of storage yard
so vehicle could be loaded onto truck. Hook-up to vehi-
cle—move out of storage yard—position for loading.’’
The plaintiff charged this fee before Copart had dis-
patched a driver to retrieve the vehicle. Copart directed
Anthony’s High Tech (Tech), a tow operator and repair
shop, to retrieve the vehicle on its behalf the follow-
ing day.
On February 24, 2017, a Tech driver arrived at the
plaintiff’s place of business. The plaintiff provided the
driver with a form titled ‘‘Consensual Tow Form’’ (con-
tract), which stated in relevant part that ‘‘[Tech], as a
[r]epresentative of Copart is hereby advised that [it]
can obtain the subject motor vehicle . . . without pay-
ing any fee or charge provided all documentation and
authorization [are] in order. [Tech] agrees to wait for
said vehicle for a reasonable time after the request
for release of the subject vehicle. Notwithstanding the
foregoing, [Tech] hereby request[s] that [the plaintiff]
immediately provide an employee to assist in the
removal, towing and securing of the subject vehicle for
transportation . . . .’’3 The Tech driver signed the
form, and the plaintiff subsequently retrieved the vehi-
cle from its storage area and released the vehicle to
the Tech driver.
On May 19, 2017, the department received a complaint
filed by Amica, alleging that the plaintiff had charged
a $93.59 gate fee for the release of a disabled vehicle
belonging to its insured. On January 15, 2019, following
a three day evidentiary hearing, the hearing officer
issued a memorandum of decision, finding that the tow
at issue was a nonconsensual tow because it was per-
formed at the request of the police4 and that the fee
was therefore charged in violation of General Statutes
§ 14-66 (a) (3) and § 14-63-36c (a) of the Regulations of
Connecticut State Agencies.5 The plaintiff was ordered
to pay $93.59 in restitution to Amica and a $1000 civil
penalty to the department.
The plaintiff appealed to the trial court, which also
concluded that the tow at issue was a nonconsensual
tow and that, in accordance with our Supreme Court’s
holding in Connecticut Motor Cars v. Commissioner
of Motor Vehicles, 300 Conn. 617, 15 A.3d 1063 (2011),
the department’s hearing officer correctly determined
that the plaintiff had charged an illegal gate fee for the
release of a vehicle following a nonconsensual tow. The
court also rejected the plaintiff’s claim that the plaintiff
and Amica’s agent, Tech, had executed a valid and
enforceable contract to perform a consensual tow
because the contract violated state law and was there-
fore void as against public policy. Accordingly, the court
dismissed the plaintiff’s appeal. This appeal followed.
We begin by setting forth the standard of review
and legal principles that govern our resolution of the
plaintiff’s claims. ‘‘[J]udicial review of the commission-
er’s action is governed by the Uniform Administrative
Procedure Act [(UAPA), General Statutes §§ 4-166
through 4-189], and the scope of that review is very
restricted. . . . [R]eview of an administrative agency
decision requires a court to determine whether there
is substantial evidence in the administrative record to
support the agency’s findings of basic fact and whether
the conclusions drawn from those facts are reasonable.
. . . Neither this court nor the trial court may retry the
case or substitute its own judgment for that of the
administrative agency on the weight of the evidence or
questions of fact. . . . Our ultimate duty is to deter-
mine, in view of all of the evidence, whether the agency,
in issuing its order, acted unreasonably, arbitrarily, ille-
gally or in abuse of its discretion.’’ (Citation omitted;
internal quotation marks omitted.) Murphy v. Commis-
sioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d
561 (2000).
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the UAPA.
[See] General Statutes § 4-183 (j) (5) and (6). An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . . It is fundamental
that a plaintiff has the burden of proving that the com-
missioner, on the facts before [the commissioner], acted
contrary to law and in abuse of [the commissioner’s]
discretion . . . .’’ (Internal quotation marks omitted.)
Jim’s Auto Body v. Commissioner of Motor Vehicles,
285 Conn. 794, 817, 942 A.2d 305 (2008).
‘‘Even for conclusions of law, [t]he court’s ultimate
duty is only to decide whether, in light of the evidence,
the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of its discretion. . . . [Thus] [c]onclu-
sions of law reached by the administrative agency must
stand if the court determines that they resulted from a
correct application of the law to the facts found and
could reasonably and logically follow from such facts.
. . . [Similarly], this court affords deference to the con-
struction of a statute applied by the administrative
agency empowered by law to carry out the statute’s
purposes. . . . Cases that present pure questions of
law, however, invoke a broader standard of review than
is . . . involved in deciding whether, in light of the
evidence, the agency has acted unreasonably, arbi-
trarily, illegally or in abuse of its discretion.’’ (Internal
quotation marks omitted.) Chairperson, Connecticut
Medical Examining Board v. Freedom of Information
Commission, 310 Conn. 276, 281–82, 77 A.3d 121 (2013).
I
The plaintiff first claims that federal law preempts
any state regulations purporting to prohibit the fee it
charged in this case because that fee was paid pursuant
to a voluntary agreement for an ‘‘expedited service,’’
which constituted a consensual tow for purposes of
federal law. For the reasons that follow, we decline to
review this claim because the plaintiff failed to pre-
serve it.
‘‘It is well known that an appellate court is under no
obligation to consider a claim that is not distinctly
raised at the trial level.’’ (Internal quotation marks omit-
ted.) Towbin v. Board of Examiners of Psychologists,
71 Conn. App. 153, 175, 801 A.2d 851, cert. denied, 262
Conn. 908, 810 A.2d 277 (2002); see also Practice Book
§ 60-5 (‘‘court shall not be bound to consider a claim
unless it was distinctly raised at the trial’’). ‘‘For us [t]o
review [a] claim, which has been articulated for the
first time on appeal and not before the trial court, would
result in a trial by ambuscade of the trial judge. . . .
We have repeatedly indicated our disfavor with the
failure, whether because of a mistake of law, inattention
or design, to object to errors occurring in the course
of a trial until it is too late for them to be corrected,
and thereafter, if the outcome of the trial proves unsatis-
factory, with the assignment of such errors as grounds
of appeal. . . . This rule applies to appeals from admin-
istrative proceedings as well.’’ (Citation omitted; inter-
nal quotation marks omitted.) Ferraro v. Ridgefield
European Motors, Inc., 313 Conn. 735, 759, 99 A.3d
1114 (2014). ‘‘A party to an administrative proceeding
cannot be allowed to participate fully at hearings and
then, on appeal, raise claims that were not asserted
before the [agency].’’ Dragan v. Connecticut Medical
Examining Board, 223 Conn. 618, 632, 613 A.2d 739
(1992).
Our careful review of the record reveals that the
plaintiff did not raise a federal preemption claim during
the administrative proceedings before the department
and, as a result, the department never ruled on that
claim. In addition, on appeal to the trial court, the plain-
tiff did not raise a preemption claim in its complaint.
See Dickman v. Office of State Ethics, Citizen’s Ethics
Advisory Board, 140 Conn. App. 754, 759–60, 60 A.3d
297 (purpose of pleadings is to apprise court and oppos-
ing counsel of issues to be tried and judgment should
conform to issues and prayer for relief set forth in
pleadings), cert. denied, 308 Conn. 934, 66 A.3d 497
(2013). Instead, the plaintiff raised the preemption claim
for the first time in its pretrial brief to the trial court.
The commissioner did not respond to that argument in
her brief and the trial court did not address it in its
ruling dismissing the plaintiff’s administrative appeal.
To the extent the plaintiff believed that the claim had
been properly raised and that the court had failed to
address it, the plaintiff could have, but failed, to seek
an articulation from the court. It was the plaintiff’s
responsibility to do so. See Practice Book § 61-10 (a)
(it is appellant’s responsibility to provide adequate
record for review); Murphy v. Zoning Board of Appeals,
86 Conn. App. 147, 159, 860 A.2d 764 (2004) (motion
for articulation is proper procedure by which appellant
may ask trial court to address matter overlooked in its
decision), cert. denied, 273 Conn. 910, 870 A.2d 1080
(2005).6 Because the plaintiff failed to preserve its pre-
emption claim, we decline to review that claim in this
appeal.7
II
We next address whether the court properly con-
cluded that the plaintiff charged an unauthorized fee
for a nonconsensual tow. On appeal, the plaintiff does
not dispute that the towing of the vehicle from the
scene of the accident to the plaintiff’s yard was a non-
consensual tow because it was performed at the request
of the police. Nevertheless, the plaintiff argues that,
because Tech, acting within its capacity as Amica’s
agent, agreed to pay the plaintiff an additional fee for
the immediate retrieval of the vehicle from the plaintiff’s
storage yard rather than wait a reasonable time at no
extra charge, the plaintiff performed a consensual tow
when it removed the vehicle from its storage yard and
brought it to the designated retrieval area. Stated differ-
ently, the plaintiff claims that the execution of a con-
tract between the plaintiff and Amica’s agent for an
optional, ‘‘expedited service’’ when releasing the vehi-
cle transformed the nonconsensual tow into a consen-
sual tow and that the transaction was therefore exempt
in part from the regulations governing nonconsensual
tows. We are not persuaded.
Pursuant to § 14-66 (a) (2), which provides in relevant
part that ‘‘[t]he commissioner shall establish and pub-
lish a schedule of uniform rates and charges for the
nonconsensual towing and transporting . . . and for
the storage of motor vehicles,’’ the commissioner has
promulgated §§ 14-63-34 through 14-63-37b of the Regu-
lations of Connecticut State Agencies. These regula-
tions set forth, inter alia, the permissible charges that
licensed wreckers may levy in relation to nonconsen-
sual towing operations.8 Our Supreme Court has held
that, under the plain language of the regulations, wreck-
ers are not permitted to charge a gate fee for the release
of a vehicle that was towed without the owner’s con-
sent. Connecticut Motor Cars v. Commissioner of
Motor Vehicles, supra, 300 Conn. 623.
In Connecticut Motor Cars, Allstate Insurance Com-
pany (Allstate) had filed two complaints with the
department alleging that a licensed motor vehicle dealer
and repairer improperly charged a gate fee for the
release of disabled vehicles belonging to its insureds.
Id., 619–20. At the evidentiary hearing, the licensee
claimed that it routinely charged a gate fee for the labor
and equipment used to move a disabled vehicle from
its secured storage area to the retrieval area because
such a fee was permitted pursuant to § 14-63-36c (c)
of the Regulations of Connecticut State Agencies. Id.
Section 14-63-36c (c) provides in relevant part that ‘‘[a]
licensed wrecker service may charge additional fees
. . . for services not included in the tow charge or
hourly rate . . . .’’ The licensee contended that, when
it moved a vehicle from its storage area to the retrieval
area, it performed a service unrelated to the towing or
storing of the vehicle and, therefore, had performed a
service not included within the tow charge. Connecticut
Motor Cars v. Commissioner of Motor Vehicles, supra,
300 Conn. 620.
Rejecting the licensee’s claim, the commissioner con-
cluded that the regulations make clear that services
related to the release of a vehicle to an owner following
a nonconsensual tow are included in a tow charge and
that the licensee had therefore charged an unlawful
gate fee. Id. The commissioner noted that § 14-63-36b
(2) (G) of the Regulations of Connecticut State Agencies
specifically provides that a tow charge shall include the
‘‘[r]elease of the vehicle to the owner . . . .’’9 (Emphasis
added; internal quotation marks omitted.) Id. The com-
missioner further observed that § 14-63-36c (e) of the
Regulations of Connecticut State Agencies ‘‘expressly
prohibits additional fees for the release of a motor vehi-
cle . . . .’’10 Id. Consequently, the plaintiff was ordered
to make restitution to Allstate and to pay a civil penalty
for violating § 14-66 (a) (3), which provides that, with
respect to nonconsensual tows, wreckers may not
charge more than the rates set by the commissioner.
Id., 619 n.3, 620. The licensee appealed to the trial court,
which dismissed the appeal, concluding that the com-
missioner did not abuse his discretion in determining
that a gate fee is included in a tow charge. Id., 620–21.
The licensee appealed the court’s judgment, and the
case was transferred to our Supreme Court. Id., 619
n.2. Our Supreme Court agreed with the commissioner’s
interpretation of the regulations and affirmed the trial
court’s judgment. Id., 622–23. It held that § 14-63-36b
(2) of the regulations ‘‘incontrovertibly establishes that
the term ‘tow charge’ encompasses all of the services
rendered in the nonconsensual towing, transporting and
releasing of a motor vehicle’’ and, therefore, wreckers
are not permitted to charge a gate fee for nonconsensual
tows. (Emphasis added.) Id., 623. The court further
explained that, although § 14-63-36c (c) of the regula-
tions permits additional fees for services not included
in the tow charge, the tow charge ‘‘includes all of the
services rendered in the [licensee’s] gate fee . . . .’’ Id.
We conclude that the holding in Connecticut Motor
Cars is squarely on point and is dispositive of the plain-
tiff’s claim in the present appeal. As in Connecticut
Motor Cars, the plaintiff charged a fee for the release
of a vehicle following a nonconsensual tow to its place
of business, which is expressly prohibited by the plain
language of the regulations. Regs., Conn. State Agencies
§ 14-63-36c (e). It is undisputed that the plaintiff per-
formed a nonconsensual tow from the accident site to
its place of business because the tow was performed
at the request of the police. See Regs., Conn. State
Agencies § 14-63-34 (nonconsensual towing means
‘‘towing or transporting of a motor vehicle . . . for
which arrangements are made by order of a law enforce-
ment officer’’). The plaintiff was therefore bound by
the rates set by the commissioner and prohibited from
charging a gate fee for the release of the vehicle to
the owner or person entitled to take possession. See
Connecticut Motor Cars v. Commissioner of Motor
Vehicles, supra, 300 Conn. 623 (‘‘only reasonable inter-
pretation of the regulations is that a gate fee is not
permitted’’).
The plaintiff attempts to distinguish Connecticut
Motor Cars. It argues that, in the present case, Amica’s
agent consented to pay an additional fee for the immedi-
ate release of the vehicle and that, by extension, the
tow at issue was consensual and not governed by the
regulations pertaining to nonconsensual tows. Thus, by
the plaintiff’s logic, although the tow from the scene
of the accident to the plaintiff’s place of business was
a nonconsensual tow, because Amica’s agent entered
into a contract for an expedited retrieval service, the
plaintiff performed a consensual tow from its secured
storage area to the loading area. We disagree.
Although there may be limited circumstances in
which a nonconsensual tow later becomes a consensual
tow; see Farmington Auto Park, LLC v. Progressive
Auto Ins., No. CCC-2014-1032 (February 3, 2016) (deci-
sion of Department of Motor Vehicles) (nonconsensual
tow became consensual tow when vehicle owner signed
written authorizations permitting wrecker to com-
mence repairs and store vehicle rather than seeking
release of disabled vehicle); no such circumstances
were present in this case. The regulations irrefutably
establish that a ‘‘ ‘tow charge’ encompasses all of the
services rendered in the nonconsensual towing, trans-
porting and releasing of a motor vehicle.’’ Connecticut
Motor Cars v. Commissioner of Motor Vehicles, supra,
300 Conn. 623. As a result, a nonconsensual tow gener-
ally commences at the request of a police officer and
continues until the vehicle is released to the owner or
person authorized to take possession. An agreement to
provide a more expeditious retrieval of the disabled
vehicle from the plaintiff’s storage yard does not trans-
form what began as a nonconsensual tow into a consen-
sual tow.11
The plaintiff contends that, because Amica’s agent
voluntarily agreed to pay a fee for immediate service
rather than wait a reasonable time for the vehicle to
be released at no charge, it was permitted to charge an
additional fee. The regulations prohibiting gate fees,
however, do not include an exception authorizing
wreckers to charge such a fee if the owner or person
authorized to take possession of the vehicle has con-
sented to a fee for expedited service. Although the regu-
lations include certain exceptions permitting a licensed
wrecker to charge fees exceeding the commissioner’s
published rates, they do not authorize agreements to
pay a gate fee.
Section 14-63-36c (c) of the regulations, for example,
provides that a licensed wrecker may ‘‘charge additional
fees for exceptional services, and for services not
included in the tow charge or hourly rate, which are
reasonable and necessary for the nonconsensual towing
or transporting of a motor vehicle.’’ As we have
explained, however, the regulations unambiguously
provide that services related to the release of a vehicle
following a nonconsensual tow are included in the tow
charge. Regs., Conn. State Agencies § 14-63-36b (2) (G);
see also Connecticut Motor Cars v. Commissioner of
Motor Vehicles, supra, 300 Conn. 622–23. The regula-
tions also expressly prohibit wreckers from charging
additional fees for the release of a vehicle to the owner
or an authorized agent. Regs., Conn. State Agencies
§ 14-63-36c (e). Furthermore, an expedited service does
not qualify as an exceptional service under the regula-
tions, which define ‘‘ ‘exceptional services’ ’’ as ‘‘the
use of special equipment such as cutting torches, air
compressors and other equipment not generally
required for nonconsensual towing or transporting ser-
vices, at the scene of an accident.’’ Regs., Conn. State
Agencies § 14-63-36b (4). The plaintiff’s alleged ‘‘expe-
dited’’ retrieval of a vehicle from its storage yard when
releasing the vehicle is clearly not encompassed within
that definition.
We therefore conclude that the trial court properly
decided that there was substantial evidence to support
the commissioner’s determination that the plaintiff
charged an illegal fee for the release of a vehicle and that
the commissioner’s decision was not contrary to law.
III
The plaintiff’s final claim is that the court improperly
concluded that the contract between the plaintiff and
Amica’s agent was void as against public policy. The
plaintiff argues that the contract is enforceable because
the plaintiff and the Tech driver voluntarily executed
a contract at ‘‘arm’s length’’ that benefited all parties
to the agreement.12 The commissioner counters that
the freedom to contract does not include the right to
contravene state laws or public policy. We conclude
that the contract is unenforceable because it is contrary
to public policy.
‘‘We begin our analysis of this claim by setting forth
the standard of review governing a claim that a contract
is unenforceable as a matter of public policy. Although
it is well established that parties are free to contract
for whatever terms on which they may agree . . . it is
equally well established that contracts that violate pub-
lic policy are unenforceable.’’ (Internal quotation marks
omitted.) Emeritus Senior Living v. Lepore, 183 Conn.
App. 23, 30–31, 191 A.3d 212 (2018). ‘‘The question of
[w]hether a contract is enforceable or illegal is a ques-
tion . . . to be determined from all the facts and cir-
cumstances of each case. Similarly . . . the question
[of] whether a contract is against public policy is [a]
question of law dependent on the circumstances of the
particular case . . . .’’ (Internal quotation marks omit-
ted.) Carriage House I-Enfield Assn., Inc. v. Johnston,
160 Conn. App. 226, 245–46, 124 A.3d 952 (2015). If a
contract is contrary to public policy, that is, if it negates
laws enacted for the common good, it is unenforceable.
Parente v. Pirozzoli, 87 Conn. App. 235, 246, 866 A.2d
629 (2005); see also 12 Havemeyer Place Co., LLC v.
Gordon, 76 Conn. App. 377, 389, 820 A.2d 299 (‘‘[c]on-
tractual rights arising from agreements are subject to
the fair exercise of the power of the state to secure
health, safety, comfort or the general welfare of the
community’’), cert. denied, 264 Conn. 919, 828 A.2d
618 (2003).
The regulations governing nonconsensual tows were
implemented to protect individuals whose vehicles have
been towed without their consent from exorbitant tow-
ing and storage fees. Without regulation, a wrecker
taking possession of a vehicle pursuant to a request by
the police could charge whatever price the wrecker
saw fit and the owner of the vehicle would have little
choice but to pay the fee demanded to recover posses-
sion of the vehicle. City Line Sales & Service, Inc.
v. Commissioner of Motor Vehicles, Superior Court,
judicial district of New Britain, Docket No. CV-18-
6043756-S (January 15, 2020) (City Line). Our legisla-
ture sought to address the imbalance inherent in non-
consensual towing transactions by directing the com-
missioner to establish reasonable rates for the towing,
transporting, and storing of motor vehicles that fairly
compensate wreckers for their services. See General
Statutes § 14-66 (a) (2) (uniform rates established by
commissioner must be just and reasonable).
Pursuant to that delegated authority, the commis-
sioner promulgated regulations that prohibit wreckers
from charging an additional fee for the release of a
vehicle incident to a nonconsensual tow; Regs., Conn.
State Agencies §§ 14-63-36b (2) (G) and 14-63-36c (e);
because it would simply make no sense to regulate the
price of the towing itself but allow wreckers to set
their own rates for the release of the vehicle. See, e.g.,
Modzelewski’s Towing & Recovery, Inc. v. Commis-
sioner of Motor Vehicles, 322 Conn. 20, 36, 139 A.3d
594 (2016) (pretowing recovery service and actual tow-
ing are inextricably linked such that it would be incon-
sistent with legislative intent if states were preempted
from regulating pretowing recovery service with
respect to nonconsensual tow), cert. denied, U.S.
, 137 S. Ct. 1396, 197 L. Ed. 2d 554 (2017). Enforcing
an agreement that purports to authorize the plaintiff to
charge a fee for the release of a vehicle that has been
towed without an owner’s consent plainly erodes the
public policy reflected in the regulatory scheme. Such
agreements would permit wreckers to conduct their
operations in a manner that encourages, if not compels,
those seeking the release of a vehicle to pay an extra
fee, thereby subverting the consumer protections
underlying the regulations. A recent Superior Court
case illustrates this problem.
In City Line, a tow operator retrieving a disabled
vehicle from a wrecker’s storage yard following a non-
consensual tow was presented with and signed the same
form contract at issue in this appeal. City Line Sales &
Service, Inc. v. Commissioner of Motor Vehicles, supra,
Superior Court, Docket No. CV-XX-XXXXXXX-S. In its deci-
sion, the trial court noted that there was evidence in
the record establishing that tow operators assume that
a wrecker that has taken possession of a disabled vehi-
cle can make operators wait for hours, ‘‘an economi-
cally disadvantageous amount of time,’’ before a vehicle
is released—unless the operator agrees to pay the gate
fee. Id. There was also testimony establishing that the
insurance company had no choice but to authorize its
contractor to pay the gate fee for the release of the
vehicle or to dispute the charge and face additional
daily storage charges—a practice the court found coer-
cive.13 Id. Consequently, the court in City Line con-
cluded that ‘‘it would be contrary to the public policy
underlying the regulations to allow [wreckers] to cir-
cumvent the department’s price regulations by
obtaining ‘consent’ . . . under the circumstances
inherent in a nonconsensual tow.’’ Id.
The contract at issue in the present case would have
the same effect. Because it would thwart the very public
policy goals the regulations were designed to promote,
we conclude that the trial court properly determined
that the contract was void as against public policy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The term ‘‘gate fee’’ refers to a ‘‘fee for the labor and equipment needed
to move a wrecked or disabled vehicle from the secured storage area to
the designated vehicle retrieval area.’’ Connecticut Motor Cars v. Commis-
sioner of Motor Vehicles, 300 Conn. 617, 623, 15 A.3d 1063 (2011).
2
The final bill totaled $795.50, which included an additional daily stor-
age charge.
3
Keith Vail, the plaintiff’s owner, testified that the $93.59 fee encompassed
both a charge for retrieving the vehicle from the storage yard and for
immediately releasing the vehicle to the Tech driver when the driver arrived
at the plaintiff’s place of business. Vail testified that the fee was ‘‘all one
fee . . . a yard/gate fee.’’
4
General Statutes § 14-66 (h) defines a nonconsensual tow as the ‘‘towing
or transporting of a motor vehicle in accordance with the provisions of
section 14-145 or for which arrangements are made by order of a law
enforcement officer or traffic authority, as defined in section 14-297.’’
(Emphasis added.) See also Regs., Conn. State Agencies § 14-63-34 (b).
5
General Statutes § 14-66 (a) (3) provides in relevant part: ‘‘With respect
to the nonconsensual towing or transporting and the storage of motor vehi-
cles, no such person, firm or corporation shall charge more than the rates
and charges published by the commissioner. . . .’’
Section 14-63-36c (a) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘[A] licensed wrecker service shall not charge the
owner or operator of a motor vehicle . . . for nonconsensual towing or
transporting services as defined in section 14-63-34, any fees which are in
excess of the tow charge.’’
6
Because the plaintiff did not raise the preemption claim during the
administrative proceedings or plead that claim in its complaint, we decline
to exercise our authority to order an articulation sua sponte pursuant to
Practice Book § 61-10 (b).
7
We note that ‘‘[f]ederal preemption of a state law . . . does not necessar-
ily implicate the court’s subject matter jurisdiction’’ and, therefore, may be
waived. Mullin v. Guidant Corp., 114 Conn. App. 279, 283, 970 A.2d 733,
cert. denied, 292 Conn. 921, 974 A.2d 722 (2009); id. (trial court improperly
treated party’s motion for summary judgment asserting federal preemption
defense as motion to dismiss for lack of subject matter jurisdiction); see
also Peters v. Senman, 193 Conn. App. 766, 782–83, 220 A.3d 114 (2019)
(declining to address preemption claim that was not adequately briefed),
cert. denied, 334 Conn. 924, 223 A.3d 380 (2020).
8
General Statutes § 14-1 (109) defines ‘‘ ‘[w]recker’ ’’ in relevant part as
‘‘a vehicle which is registered, designed, equipped and used for the purposes
of towing or transporting wrecked or disabled motor vehicles for compensa-
tion . . . .’’
9
Section 14-63-36b (2) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘ ‘Tow charge’ means the maximum amount deter-
mined by the commissioner that a licensed wrecker service may charge the
owner or operator of a motor vehicle . . . for nonconsensual towing or
transporting of a motor vehicle . . . . Except as otherwise specifically pro-
vided, the tow charge shall include . . . (G) Release of the vehicle to the
owner or person otherwise entitled to possession of the vehicle upon presen-
tation of appropriate credentials.’’
10
Section 14-63-36c (e) of the Regulations of Connecticut State Agencies
provides: ‘‘No additional fee shall be charged by a licensed wrecker service
for releasing a vehicle to its owner or a person legally entitled to its custody.’’
11
Although Vail testified at the hearing that the $93.59 fee encompassed
the charge for maneuvering the disabled vehicle from the storage yard to
the retrieval area and for immediate service when retrieving the car; see
footnote 3 of this opinion; on appeal, the plaintiff relies entirely on the
execution of the contract to argue that the gate fee was permissible. We
note that whether the gate fee was imposed for maneuvering the vehicle
from the storage lot to the retrieval area, immediately retrieving the vehicle
when the Tech driver arrived, or both, does not alter the outcome in this
case. Regardless, the plaintiff was not permitted to charge an additional
fee for services related to the release of a vehicle in connection with a
nonconsensual tow.
12
We assume, without deciding, that the plaintiff and Amica’s agent did
form a contract when Amica’s agent signed the ‘‘Consensual Tow Form.’’
13
At the evidentiary hearing in the present appeal, Amica’s witness simi-
larly testified that Amica had agreed to pay the plaintiff the full amount
billed, although it disputed the gate fee charge, because, ‘‘[i]n order to pick
a vehicle up and stop storage charges, the shop needs to be paid.’’
Additionally, the court in City Line flatly rejected the wrecker’s claim
that a gate fee for ‘‘expedited service’’ is voluntary because, like here, the
gate fee was included in the billed amount the day before the tow operator
arrived to retrieve the vehicle from the wrecker’s storage yard. City Line
Sales & Service, Inc. v. Commissioner of Motor Vehicles, supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S. We highlight this point to illustrate the
inherent contradiction we find in the plaintiff characterizing a fee charged
in advance as a voluntary fee for an ‘‘expedited’’ service.