Complaint Review: Soft Touch Moving & Storage - Bloomington Indiana

Until now, I have never sued anyone before in my life and I avoided it like the plague.  Soft Touch Moving and Storage was my first.  When ownership and management refused to respond to my calls after a disastrous experience, I decided to hire an attorney to sort out the problem.  After non response from the company,  I decided that the only way to get a response was to sue.  I sued and I won, INCLUDING legal fees and costs.  Do not let this company bully you.  Hire an attorney and go after this company if they have wronged you.  They are disgraceful in their plight to take advantage of students in the Bloomington area with no assumption of responsibility.  Below is the demand letter outlining in detail the events that described the complete and utter non professionalism exhibited by the company and its employees, which eventually turned into a law suit against Soft Touch Moving and Storage.

VIA U.S. MAIL
FOR SETTLEMENT PURPOSES ONLY
Soft Touch Moving & Storage
Attn: John T. Craft
3150 S. Walnut St.
Bloomington, IN 47401
Re: Ellie XXXX and Robert XXXX

Dear Mr. Craft:
Please be advised that my firm represents Ellie XXXX and her father, Robert XXXX.
Ellie is a student at I.U. As you know, my clients contracted with A Craft Moving and Storage, Inc., d/b/a Soft Touch Moving & Storage (Soft Touch) each of the last several years to move and store Ellies personal belongings during the summer. Up until a few weeks ago, my clients had been entirely satisfied with the services provided by your company. To put it mildly, that is no longer the case for the follow reasons.

I. Facts
My clients still cannot believe the series of events that occurred in Bloomington during the afternoon on August 22, 2011. As planned, two movers from Soft Touch arrived at Ellies apartment to deliver her belongings. While your employees were
courteous, it soon became apparent that there was a problem. Actually, there were numerous problems. Ellies property had obviously been neither stored nor moved as promised back in June.

Ellies belongings were not merely dirty. Her furniture was scratched, dented, and in some cases, altogether broken. Her mattress and box spring were filthy. They smelled terrible and were covered with footprints. Several boxes of her belongings had been noticeably crushed. Other boxes were actually wet. As is readily apparent in these pictures, the extent of damage to Ellies property cannot be disputed:

Throughout the unloading process, one of your movers (Kevin) repeatedly apologized to my clients. He acknowledged that while he and the other employee had not loaded Ellies belongings into the truck, he had previously seen them in an area of
your warehouse, and that they had not been properly covered, secured, or protected. When Robert asked for the name and number of someone who could address this situation, Kevin initially directed him to Cassie. She in turn explained over the phone that Joey was the appropriate person to handle the matter, and that he would call Robert. In the meantime, Kevin provided Joeys number to Robert.

Joey soon arrived at Ellies apartment after Robert called him to report the damaged/destroyed property. By this time, my clients were understandably frustrated, but nevertheless tried to be pleasant. Joey had other ideas. He not only ignored my
clients, but was visibly agitated and aggressive towards them as he rapidly photographed Ellies belongings. When Robert asked Joey how Soft Touch intended to remedy its negligence, Joey sarcastically stated that it was contractually liable for only 60 cents on the pound. Robert (correctly) disputed this position, and indicated that he wanted to meet with a supervisor at Soft Touch.

What happened next was more than negligence. Joey demanded to see the paperwork that Kevin had given Robert when he first arrived. Robert had no problem producing the documents, but again indicated that he wanted to speak with someone
else at Soft Touch, and that he was going to take his paperwork with him. After Robert had retrieved his paperwork and returned to where Joey was standing, Joey shoved Robert, grabbed hold of his paperwork, and ripped all but the bottom corner of the documents from Roberts hand. Robert in no way provoked or otherwise initiated any physical contact with Joey. As he left the apartment with Joey, Kevin again apologized to my clients for the damage to Ellies belongings, as well as Joeys behavior.
Ellie was frightened by what she had witnessed and wanted to call the police. Since there was no imminent emergency, Robert instead called Cassie and explained that there was another problem a much larger problem besides Ellies damaged belongings. Cassie was polite and indicated that she would advise you of this matter in a text message and ask that you call Robert. When you failed to call Robert, he again contacted Cassie and asked her to call you and emphasize the severity of the situation. You never called.

Robert has since filed a detailed report (#082211-269) of what happened with the Bloomington Police Department. He and his family met with Officer Morgan Berns and provided him with written statements of what they witnessed. Robert indicated to Officer Berns that, for the time being, he hoped to reach an amicable resolution with Soft Touch that did not necessarily involve the police. Officer Berns understood, but told Robert to call if and when he decided to press charges. Since this time, it is my understanding that you have continued to ignore my clients attempt to discuss this matter.

II. Indiana Law
As Robert indicated to Cassie over the telephone, there are two issues that need to be resolved: 1) Soft Touchs liability for its negligent storage and moving of Ellies personal property; and 2) Soft Touchs responsibility for the criminal actions of its
agent and/or employee.

A. Breach of Contract
Soft Touch unquestionably breached its obligations to my clients. Regardless of how the contract is worded (again, you continue to wrongfully possess my clients copy of it), Clint Torres from your company unequivocally stated that Ellies belongings would be shrink-wrapped and entirely secured and covered during the summer months. This was the sole purpose for contracting with Soft Touch and obviously did not happen.

As with any party injured by a breach of contract in Indiana, my clients are entitled to recover consequential damages. This includes all reasonably foreseeable economic losses. Johnson v. Scandia Assocs., 717 N.E.2d 24, 31 (Ind. 1999). To that
end, my clients recoverable damages includes the following:
Hillsdale 2-Piece Bedroom Set $723.84
Hillsdale Triple Dresser $699.00
Hillsdale Wood Mirror $139.00
Sealy Passport Euro Pillow-Top Mattress/Box Spring $1,123.50
Sofa/Loveseat $1,852.31
Total $4,537.65

(My clients are in the process of securing receipts for these items.) This amount does not include the lost use of these items, which is another recoverable damage pursuant to Indiana law. Whitaker v. Brunner, 814 N.E.2d 288, 296 (Ind. Ct. App. 2004).

Even if it exists, the alleged exculpatory clause that Joey repeatedly referenced is unenforceable for any number of reasons. While Indiana courts have long recognized the freedom of parties to enter into contracts, they have also refused to enforce
exculpatory clauses in fine print and with no headings. Weaver v. American Oil Co., 276 N.E.2d 144, 147-148 (Ind. 1971). This is particularly true when the party seeking to enforce the exculpatory clause neither explained the provision nor attempted to call the other partys attention to it. No one from Soft Touch did either when my clients agreed to the contract.

Indiana courts will also refuse to enforce an exculpatory clause that contravenes statutory law. Continental Basketball Assn v. Ellenstein Enters., Inc., 669 N.E.2d 134, 139 (Ind. 1996). Pursuant to Indianas Deceptive Consumer Sales Act, falsely misrepresenting the standard or quality of a consumer transaction is a deceptive act. Ind. Code 24-5-0.5-3. A consumer transaction includes a service to a person for personal or household reasons. Ind. Code. 24-5-0.5-2.

When my clients contracted with Soft Touch, they were falsely told that Ellies belongings would be shrink-wrapped and entirely secured and covered during the summer months. Since the service Soft Touch agreed to provide my clients was
obviously for personal or household reasons, your misrepresentation amounts to a deceptive act. My clients are thus statutorily entitled to damages pursuant to Indianas Deceptive Consumer Sales Act. In addition, an Indiana court can award my clients reasonable attorneys fees, and can increase their damages in an amount that does not exceed the greater of three times their actual damages or $1,000.00. Ind. Code 24-5- 0.5-4(a). The court will also void or limit the application of the exculpatory clause (if it exists) and order restitution to be paid to my clients. Ind. Code 24-5-0.5-4(d).

B. Criminal Conduct
Joeys stunning behavior was not just a poor business practice. It was criminal. In Indiana, a person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a class B misdemeanor. Ind. Code 35-42- 2-1. The advisory sentence for such a crime is 180 days with a $1,000.00 fine. Once again, this matter remains pending with the Bloomington Police Department.
Soft Touch may not be responsible for Joeys battery, but it will be civilly liable for the other crimes he committed on August 22, 2011. In Indiana, a person who knowingly or intentionally interferes with the possession or use of the property of
another person without the persons consent commits criminal trespass, a class A misdemeanor. Ind. Code 35-43-2-2. A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, also a class A misdemeanor. Ind. Code 35-43-4-3. Joey committed both crimes when he ripped the paperwork out of Roberts hands and retained possession of it. Indianas Crime Victim Relief Act allows a victim to bring a civil action for a violation of, among other things, criminal trespass and/or criminal conversion. Ind. Code. 34-24-3-1. As Joeys employer, Soft Touch will be responsible for his violations, particularly since Soft Touch continues to wrongfully exert control of my clients property. Soft Touch will be liable for more than just consequential damages.
Pursuant to Indianas Crime Victim Relief Act, my clients can recover:
? An amount not to exceed three (3) times the actual damages of the
person suffering the loss;
? The costs of the action;
? A reasonable attorney's fee;
? Actual travel expenses;
? A reasonable amount to compensate their lost time used to travel or to
file papers and attend court proceedings; and
? All other reasonable costs of collection.
Ind. Code 34-24-3-1.

III. Demand
Once again, there can be no dispute that Soft Touch breached its obligations to my clients. The foregoing pictures speak for themselves. There similarly can be no dispute that my clients are entitled to at the very least consequential damages in
the amount of $4,537.65. Given the unambiguous provisions of Indianas Deceptive Consumer Sales Act and Crime Victim Relief Act, my clients will likely receive a judgment in their favor that far exceeds this amount; however, to avoid further delay and the costs of litigation, my clients are willing to resolve this matter for a lump sum payment of $5,000.00.

If you will not agree to this demand, my clients will promptly seek all of the aforementioned damages that are available to them, including attorneys fees and treble damages. Moreover, my clients will not only instruct the Bloomington Police
Department to file any and all charges, but will also report this matter to the Indiana Attorney General, the Indiana Department of Insurance, and any other relevant agency and/or entity (e.g., Better Business Bureau, Indiana University, Angies List, etc.). It should be worth noting that the Indiana Attorney General is expressly empowered to
pursue a civil penalty of as much as $5,000.00 per violation of Indianas Deceptive Consumer Sales Act. Ind. Code. 24-5-0.5-4(g).

We look forward to a response within ten (10) days. From this point forward, direct any and all communication with regard to this matter to my office. Also, please send me the original documents that were taken from my clients, as well as copies of
any photographs in your possession of Ellies belongings.
Sincerely Yours,

William J. Spalding
Spalding Law