JAKE SWEENEY AUTO LEASING, INC.
Under Contract Nos. 389990-90-P-A056; 381793-86-V-A035 and 381793-86-V-A045
PSBCA Nos. 3146, 3225, & 3226

APPEARANCE FOR APPELLANT:
Teri Geraci

APPEARANCE FOR RESPONDENT:
Daniel M. Curts, Esq.

OPINION OF THE BOARD

            Appellant, Jake Sweeney Auto Leasing, Inc., has appealed from Contracting Officers' decisions denying claims for damage to vehicles leased by Respondent, United States Postal Service.  These appeals are being decided on the record in accordance with §955.12 of the Board's Rules of Practice.  39 C.F.R. §955.12.

FINDINGS OF FACT

            1.  Contract No. 389990-90-P-A056 was awarded to Appellant on June 19, 1990, and covered the lease of three passenger vehicles for use in "Park & Loop" service in Kenton, Ohio, for the period July 28, 1990, through July 19, 1996.  (PSBCA No. 3146 Appeal File Tab (3146 AF) A).

            2.  Contract No. 381793-86-V-A035 was awarded to Appellant on December 9, 1985, and covered the lease of one vehicle for use in "Park and Loop" service in Florence, Kentucky, for the period December 20, 1985, through October 25, 1991.  (3225 AF A).

            3.  Contract No. 381793-86-V-A045 was awarded to Appellant on February 14, 1986, and covered the lease of eight passenger vehicles for use in "Park & Loop" service at various post offices in Cincinnati, Ohio, for the period March 23, 1986, through October 25, 1991.  (3226 AF A).

            4.  Each of the contracts contained the July 1980 version of PS Form 7476, "U.S. Postal Service, General Provisions for Vehicle Hire Contracts."  Clause GP-6 of the General Provisions contained the following relevant language:

"LIABILITY PROVISIONS

(a) Contractor's Vehicles.  The Postal Service shall be responsible for loss of, or damage to, the Contractor's vehicles while in its custody only when caused by the act or negligence of any officer or employee of the Postal Service acting in the scope of his employment ....  In no event shall the Postal Service be responsible for ordinary wear and tear."  (3146, 3225, 3226 AF A).

Contract No. 389990-90-P-A056

PSBCA No. 3146 - Vehicle No. 11487

            5.  At the time vehicle no. 11487 was received at the Kenton Post Office, a Postal Service representative noted the presence of "small scratches" but did not record their locations.  At the time the vehicle was returned to Appellant, the same Postal Service representative noted a small dent on the front bumper pad and a "small crease" on a rear fender.  (3146 AF E, F).

            6.  In a "Claim for Damage, Injury, or Death" (Standard Form 95), dated June 20, 1991, Appellant demanded the payment of $121.00 as the cost of repairing damage to the vehicle.  The claim was accompanied by two repair estimates, both of which reflected repairs to the right quarter panel.  The lower of the two estimates reflected the amount claimed by Appellant.  (3146 AF B).

            7.  In a decision dated November 29, 1991, the Contracting Officer denied the claim in its entirety.  The basis for the denial was Appellant's failure to prove that the damage was in excess of ordinary wear and tear and that the damage was caused by negligence of Postal Service employees.  (3146 AF H).

Contract No. 381793-86-V-A035

PSBCA No. 3225 - Vehicle No. 11224

            8.  In this appeal, a PS Form 4577, "Hired/Borrowed Vehicle Condition Report," indicated damage to the rear of the vehicle at the time it was returned to Appellant.  A report by the Manager, Vehicle Programs and Director, Operations Support indicated that the damage occurred during the term of the lease, but that the cause was unknown.  (3225 AF C, D).

            9.  In a claim dated March 9, 1992, Appellant sought $140.00 as the cost of repairing the rear bumper and right rear quarter panel.  The amount claimed  was reflected in the lower of two estimates which accompanied the claim.  In a decision dated April 8, 1992, the Contracting Officer denied the claim in its entirety, taking the position that the damage to the rear bumper had not been demonstrated to be the product of negligence on the part of  Postal Service personnel or to be in excess of ordinary wear and tear, and that damage to the quarter panel had not been shown on the Form 4577.  (3225 AF B, E).

Contract No. 381793-86-V-A045

PSBCA No.3226 - Vehicle No. 11212

            10.  In this appeal, the Form 4577 noted a paint scrape on the front bumper, a cracked spoiler, and unspecified damage to the rear bumper at the time the vehicle was returned.  A report by the Manager, Vehicle Programs and Director, Operations Support indicated that the damage occurred during the term of the lease, but that the cause was unknown.  (3226 AF C, D).

            11.  Appellant's claim, dated March 9, 1992, sought $211.00 as the cost of repairs to the rear bumper and replacement of the valance [spoiler].  The amount of the claim was reflected in the lower of two estimates which accompanied the claim.  In a decision dated April 8, 1992, the Contracting Officer denied the claim in its entirety.  The Contracting Officer concluded that the damage to the rear bumper had not been shown to be outside ordinary wear and tear or to be the product of negligence on the part of the Postal Service.  As to damage to the spoiler, the Contracting Officer conceded that the damage was outside ordinary wear and tear, but denied the claim on the basis that negligence on the part of the Postal Service had not been shown.  (3226 AF B, E).

DECISION

            Appellant has offered no arguments addressed to the facts of the individual appeals but has, instead, presented arguments in more general terms.  In its Complaints, Appellant argues that the vehicle lease contracts are bailments under which Respondent, as bailee, is subject to a presumption that any damage was caused by its negligence.  Appellant also argues that the liability provisions of the contract which limit Respondent's liability with respect to ordinary wear and tear, are unenforceable.  All of these arguments were addressed by this Board in Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3091-3094, 3096, 3098, 3122, 3125, ____ BCA ¶ ______ (August 17, 1992), where we concluded that, although the contracts could be considered bailment contracts, the presumption argued for by Appellant was inconsistent with the contract language and that the language limiting liability for ordinary wear and tear was enforceable.  Those conclusions apply equally to the appeals before us here.

            Therefore, as the party seeking recovery, Appellant has the burden of proving that an act or negligence on the part of Respondent's personnel was the proximate cause of the damage to each vehicle or, in the alternative, that the nature of the damage or other circumstances are such that the burden of coming forward with evidence should be shifted to Respondent, and that the damage was in excess of ordinary wear and tear.  E.g., Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2784-2788, 2791-2798, 91-3 BCA ¶ 24,278.

            In PSBCA Nos. 3146 and 3225, and with respect to the bumper damage in PSBCA No. 3226, Appellant has provided no evidence and made no arguments which would challenge the Contracting Officer's conclusions that the damage has not been shown to be the result of negligence on the part of Respondent's personnel or in excess of ordinary wear and tear.  With respect to the spoiler damage in PSBCA No. 3226, although the Contracting Officer conceded that the damage was in excess of ordinary wear and tear, Appellant has again provided no evidence and made no arguments which would provide a basis for concluding that the damage was caused by an act or negligence on the part of Respondent's employees.  Appellant has also failed to demonstrate that the circumstances of these appeals are such that the burden of coming forward with evidence should be shifted to Respondent.  Therefore, Appellant has failed to meet its burden of proof.

            The appeals are denied.

David I. Brochstein
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman