« PreviousContinue »
it requests that the recommended cease and desist order be entered, and that the application in No. FF-359 be denied.
Auto Driveaway argues in its reply that the evidence of record clearly supports the Administrative Law Judge's conclusion that respondent has transported automobiles beyond the scope of its authority. It submits that AAACon is well aware of the limits of its certificate, since it has sought on numerous occasions to remove the operating restriction. It contends that AAACon's argument that these vehicles were being repossessed, and, therefore, did not fall within the restriction, is without merit, since AAACon is well aware that a car dealer or credit agency agrees to offer the car for resale in order minimize loss. It requests, therefore, that the Administrative Law Judge's recommended denial of the relief sought in No. MC-C-7287 (Sub-No. 1) be affirmed.
F. J. Boutell and Nu-Car argue, in their joint reply, that the restriction contained in AAACon's operating certificate is clear and unambiguous and serves a useful purpose; and that the interpretation of the restriction as proposed by AAACon would result in a considerable expansion of its existing service, placing it in the position of being able to divert traffic from Boutell and Nu-Car.
NATA, et al., argue in reply that the Administrative Law Judge interpreted correctly the restriction in respondent's certificate against movements to automobile dealers; that the meaning of the restriction is plain and unambiguous; that the meaning of the term “automobile dealer" is clearly understood by both the public and the transportation industry, and that the initial decision should be affirmed in all respects.
The Department of Defense claims in its reply that the evidence of record amply supports the conclusion that AAAC on has been in violation of part II of the act almost in its entirety and has sought by various means to avoid its statutory obligations; that the evidence of record supports the finding that AAACon has otherwise shown itself unfit to operate as a motor carrier in interstate or foreign commerce; and that the recommended cease and desist order should be entered
AAAC on and Auto Trip, on exceptions, renew their request that previously filed petitions seeking the admission of additional evidence be granted, and that the material be considered as part of the record in this proceeding. They contend that the additional evidence deals with current claims handling procedures and arbitration, as well as the resolution or ultimate disposition of certain specific claims referred to by the Bureau or the Bureau's witnesses; and that it is relevant to the central issue in this proceeding, i.e., whether or not the proposed cease and desist order should be entered. They also seek leave to admit additional evidence dealing with specific claims which allegedly were settled by arbitration, and evidence of its claim tariff MF-I.C.C. No. 9 (item 20) as filed and accepted by the Commission with an effective date of September 25, 1972, which contains a provision for the arbitration of claims. Petitioners also seek permission to recall certain witnesses in order to impeach their testimony in light of newly discovered evidence. They argue that the proffered evidence was not available at the time of the initial hearing, or is only now being submitted in order to clear up certain misrepresentations created by the Bureau or its witnesses, and is essential for an adequate consideration of the issues raised in this proceeding. The Commission, Division 1, has repeatedly denied these petitions on the basis, generally, that the proffered evidence would not add any pertinent matter to the record and would unnecessarily delay the proceeding; and that the matters raised by petitioners therein would more properly be considered after the entry of the initial decision. We believe that the relief sought in these petitions was properly denied. AAAC on and Auto Trip also request that the proceeding be reopened for further hearing, for hearing de novo, and for oral argument. This request will also be denied since, as will be discussed in greater detail below, the record as it now stands is sufficiently detailed to have guaranteed AAACon and Auto Trip a fair hearing.
By petitions filed November 5, 1973, May 17, 1974, and January 16, 1975, AAACon and Auto Trip again seek to reopen the record in these proceedings to admit additional evidence. In their petition filed November 5, 1973, they seek to admit evidence pertaining to the resolution of damage claims filed by two of the Bureau's witnesses, which they state were in media res at the time of the hearing. In the May 17, 1974, petition, they seek to present evidence which allegedly clarifies the status of a proceeding in which AAACon is a party, and in which AAACon's operating procedures and claims handling practices are at issue; and in the petition filed January 16, 1975, they tender evidence pertaining to AAACon's present claims handling procedures as well as additional evidence which, assertedly, clearly demonstrates that AAACon's insurance company wrongfully resisted legitimate claims for which AAACon was in no way responsible. Petitioners argue that the proffered evidence should be admitted into the record, since it is clearly relevant to the issue of whether or not a cease and desist order should be entered at this time. Replies were filed to these petitions.
We are of the opinion that the record as it now stands is sufficiently detailed to have guaranteed AAACon and Auto Trip a fair hearing on the issues under consideration in these proceedings. AAACon's general operating practices, not the merits of any particular claim, are the subject of this investigation. The ultimate resolution of each and every claim cited by the Bureau would further delay the conclusion of these proceedings, with little or no expectation that the additional evidence would contribute anything to the resolution of the primary issues at hand. We are not seeking in this proceeding to determine the relative merits of particular claims. On the other hand, the fairness, justice, or reasonableness of AAACon's claims handling practices and operating procedures, as established by the record, is a proper subject of our investigation, and will, to a great extent, determine the action taken by us.'
On March 13, 1975, AAACon and Auto Trip filed a petition and an Offer of Settlement. Petitioners argue therein that in light of the Commission's decision in Ex Parte No. 263, Loss and Damage Claims, supra, and certain recent Federal court decisions, the area of disagreement between the parties to this proceeding has been narrowed, and a proposed settlement is practicable. Their Offer of Settlement consists of proposed amendments to several paragraphs of the Administrative Law Judge's cease and desist order. AAACon and Auto Trip indicate that they are prepared to discuss these proposals, or any modification that the Commission may propose.
Replies to petitioners' Offer of Settlement were filed jointly by F. J. Boutell and Nu-Car Carriers, and by NATA, et al., and separately by Auto Driveaway and the Bureau. Boutell and Nu-Car oppose the Offer of Settlement to the extent that it seeks to modify that portion of the Administrative Law Judge's cease and desist order requiring AAACon to cease and desist from the unlawful or unauthorized transportation of automobiles moving to automobile dealers, and that paragraph of the same order denying the petition in No. MC-C7287 (Sub-No. 1). The objections of NATA, et al., to the Offer of Settlement, as set forth in their joint reply, are similar to those expressed by Auto Driveaway with respect to the proposed modification of the ordering paragraph requiring AAACon to cease and desist from the transportation of automobiles to auto dealers. Auto Driveaway argues that the proposed modifications would reduce the Administrative Law Judge's recommendation to a nullity. It submits that the latest petition is similar to those previously rejected by the Commission, and it requests that no further consideration be given this pleading. The Bureau in its reply states that
the Offer of Settlement is unsatisfactory and inadequate. It contenas that the proposed modifications would limit, condition, evade, and obfuscate the plain and clear language of the proposed order, which it considers clear and specific as to what AAACon may be required to do or refrain from doing, and it requests that the Offer of Settlement be rejected.
We do not believe that any purpose would be served by granting the relief sought in this petition. The arguments advanced by petitioners have been made in prior pleadings, and will be considered herein in weighing the merits of the recommended cease and desist order. We consider this additional pleading and the arguments contained therein to be merely cumulative. The petition will be denied, and the Offer of Settlement rejected.
AAACon and Auto Trip filed an additional petition on September 2, 1975, seeking leave to submit additional evidence, and a petition on September 5, 1975, proposing an Offer of Settlement. Replies to both petitions were filed separately by the Bureau and by Auto Driveaway Company. The tendered evidence would not contribute to the fair and equitable resolution of the issues at hand, and it will be rejected. The petition and Offer of Settlement is in effect a reply to a reply filed by the Bureau to the prior Offer of Settlement discussed above, with additional remarks dealing with the vague ness of the Administrative Law Judge's proposed order. The petition does not contain evidence or argument which would contribute to the resolution of the issues at hand, and it will also be denied.
As noted above, AAACon and Auto Trip have, throughout the course of these proceedings, repeatedly filed petitions seeking leave to admit additional evidence and argument, and petitions for reconsideration of the Commission's orders denying the relief sought. We have, of course, at all times made every effort to provide petitioners with a full opportunity to be heard with respect to matters under consideration here, and to deal properly and fairly with each petition. However, these numerous petitions have unnecessarily lengthened the record in this proceeding by the addition of material which is either already part of the record or not pertinent to the issues to be decided. We do not believe that the best interests of the shipping public or the parties immediately concerned is served by the filing of numerous repetitive petitions of this nature.
Additionally, we are concerned with the excessive length of one pleading in particular. Although admittedly the record is extensive, the filing of exceptions covering 756 pages is inexcusable, particularly where the Administrative Law Judge was successfully able to contain his entire summarization of the evidence and conclusions of fact and law in 32 pages. This pleading, one of the longest we have seen in a proceeding of this type, has only served to further delay..a long delayed proceeding.
Although the matters decided herein will certainly affect the issue of AAACon's fitness to operate in interstate or foreign commerce in application proceedings, which is certainly of significance to both AAACon and Auto Trip, as well as to the Commission, and they are entitled to fully argue the issues to the extent necessary, there is also
ne responsibility to limit such pleadings and arguments only to that necessary. The parties hereto, as well as future participants before the Commission are advised, accordingly, that in the future unnecessarily repetitive or lengthy pleadings which add little or no pertinent material to the record and merely obfuscate the issues under consideration, may be stricken, in whole or in part, on the division's or the Commission's own motion or simply rejected outright without further consideration.
The evidence of record, the initial decision and recommended order, and the exceptions and replies have been considered. We find the statement of facts in the Administrative Law Judge's initial decision to be completely accurate in all material respects, and in the interest of not unduly lengthening this report we adopt this statement of facts without further recitation herein.
DISCUSSION AND CONCLUSIONS
As noted above, we are concerned here with an examination of AAACon's practices and procedures in order to determine whether it has conducted its operations in a reasonable manner, consistent with its obligations as a motor common carrier under authority issued by this Commission. The relative merits of a particular claim, or its specific resolution is of no significance to our investigation, because it may be due to any number of reasons having little or no relation to the overall reasonableness of AAACon's practices and procedures.
We believe that the evidence of record properly supports the Administrative Law Judge's finding that AAACon has in the past conducted itself in such a way as to discourage the filing of damage