PSBCA Nos. 3165, 3167, 3168, 3174, 3176, 3180-82, 3194, 3198
November 12, 1993
Appeal of
JAKE SWEENEY AUTO LEASING, INC.
Under Contract Nos. 381793-86-V-A045, 381793-86-V-A033 & 174038-85-W-A026
PSBCA Nos. 3165, 3167, 3168, 3174, 3176, 3180-82, 3194, 3198
APPEARANCE FOR APPELLANT:
Teri Geraci
APPEARANCE FOR RESPONDENT:
John T. Farrell, Jr., Esq.
OPINION OF THE BOARD
Appellant, Jake Sweeney Auto Leasing, Inc., has appealed from contracting officer's decisions denying, in whole or in part, its claims for damage to vehicles leased by Respondent, United States Postal Service. These appeals are being decided on the record in accordance with 39 C.F.R. § 955.12.
FINDINGS OF FACT
1. 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 six stations in Cincinnati, Ohio. The term of the contract was from March 23, 1986, through October 25, 1991. (PSBCA Nos. 3165, 3168, 3174, 3176 and 3198 Appeal File Tab (3165 AF) A).
2. Contract No. 381793-86-V-A033 was awarded to Appellant on November 25, 1985, and covered the lease of five passenger vehicles for use in Park & Loop service at the main office and Fort Thomas Branch office in Newport, Kentucky. The term of the contract was from December 21, 1985, through October 21, 1991. (PSBCA Nos. 3167 and 3180-82 Appeal File Tab (3167 AF) A).
3. Contract No. 174038-85-W-A026 was awarded to Appellant on August 14, 1985, and covered the lease of one passenger vehicle for use in Park & Loop service in Brandenburg, Kentucky. The term of the contract was from August 17, 1985, through August 16, 1991. (3194 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." (AF A).
5. Through a series of claims dated October 2, 1991 (PSBCA No. 3194 only) and December 2, 1991, Appellant sought the cost of repairing damage to ten of the vehicles, which damage was alleged to have occurred during the contract term. As the basis for each claim, Appellant stated substantially the following:
"USPS had physical possession of vehicle. Damage was not present when vehicle was delivered. No reports have been submitted by USPS to explain damages."
Each of the claims was accompanied by two repair estimates, the lower of which reflected the amount of the claim. (AF B).
Contract No. 381793-86-V-A045
PSBCA No. 3165 - Vehicle No. 12002
6. In this appeal, the Form 4577, "Leased Vehicle Condition Report," executed by both parties at the time the vehicle was returned, showed a small dent in the right side door and a small dent in the rear. Appellant's claim, in the amount of $113.00, sought payment for repairs to the left rear quarter panel. In a final decision dated February 7, 1992, the Contracting Officer denied the claim on the basis that it was not possible to determine the cause of the damage or to conclude that the damage exceeded ordinary wear and tear. (3165 AF D, B, E).
PSBCA No. 3168 - Vehicle No. 11206
7. In this appeal the Form 4577 noted damage to the rear of the left side of the vehicle. A photograph of the area appeared to show chipped paint and some marks which might be paint damage, but the record contains no further explanation of the photograph. Appellant's claim, in the amount of $113.00, sought payment for repairs to the same area. The Contracting Officer, in a decision dated February 7, 1992, denied the claim on the basis that it was not possible to determine the cause of the damage or to evaluate the damage as exceeding ordinary wear and tear. (Id.).
PSBCA No. 3174 - Vehicle No. 11146
8. The Form 4577 in this appeal showed small dents in the front of the left side and on the hood. Photographs accompanying the claim are consistent with the information on the Form, but provide little, if any, useful information. Appellant's claim, in the amount of $199.00, sought payment for damage to the left front fender and hood. In a decision dated February 7, 1992, the Contracting Officer allowed the claim in the amount of $99.50 for damage to the hood, but disallowed the balance on the basis that he could not determine the cause of the damage or determine that it was in excess of ordinary wear and tear. (Id.).
PSBCA No. 3176 - Vehicle No. 11203
9. In this appeal, the Form 4577 noted damage to the right front of the vehicle. Appellant's claim, in the amount of $130.00, sought payment for the cost of replacing the vehicle's front valance [spoiler]. In a final decision dated February 7, 1992, the Contracting Officer conceded that damage to the valance was outside ordinary wear and tear but denied the claim on the basis that Appellant had submitted no evidence that the damage had been caused by the act or negligence of a Postal Service employee. (Id.).
PSBCA No. 3198 - Vehicle No. 11364
10. The Form 4577 in this appeal noted damage to the front spoiler and Appellant's claim, in the amount of $130.00, sought payment for replacing the same part. In a final decision dated February 7, 1992, the Contracting Officer conceded that a broken valance was outside ordinary wear and tear but denied the claim on the basis that Appellant had not shown that the damage was caused by the act or negligence of a Postal Service employee. (Id.).
Contract No. 381793-86-V-A033
PSBCA No. 3167 - Vehicle No. 11222
11. In this appeal, the Form 4577, "Hired/Borrowed Vehicle Condition Report," noted a dent in the left front fender and a small dent in the right door. Appellant's claim, in the amount of $194.00, sought payment for repairs in the same locations. In a final decision, dated February 3, 1992, the Contracting Officer denied the claim on the basis that the damage had not been shown to have been caused by negligence of Postal Service personnel or to have been in excess of ordinary wear and tear. (3167 AF D, B, E).
PSBCA No. 3180 - Vehicle No. 11223
12. The Form 4577 in this appeal noted small scratches at the rear of the left and right sides of the vehicle. Appellant's claim, in the amount of $128.00, sought the cost of making repairs in the same areas. In a final decision dated February 3, 1992, the Contracting Officer denied the claim on the basis that the damage could not be determined to be the result of negligence of Postal Service personnel or to be in excess of ordinary wear and tear. (Id.)
PSBCA No. 3181 - Vehicle No. 11220
13. In this appeal, the Form 4577 showed a dent in the left front fender, dents in the front of the vehicle, and a broken spoiler. Appellant's claim, in the amount of $244.60, covered the cost of repairing the left front fender and replacing the spoiler. In a final decision, dated February 3, 1992, the Contracting Officer denied the claim in its entirety. The Contracting Officer concluded that it was not possible to determine that the damage to the left front fender was caused by the negligence of Postal Service personnel or that it was in excess or ordinary wear and tear. As to the broken spoiler, the Contracting Officer conceded that the damage was outside ordinary wear and tear, but denied the claim on the basis that Appellant had not submitted evidence that the damage was caused by the act or negligence of Postal Service employees. (Id.).
PSBCA No. 3182 - Vehicle No. 11221
14. The Form 4577 in this appeal showed a dent in the rear of the left side and a broken spoiler. Appellant's claim, in the amount of $238.60, sought payment for repairing the left quarter panel and replacing the spoiler. In a final decision, dated February 3, 1992, the Contracting Officer denied the claim. The portion related to quarter panel damage was denied on the basis that it was not possible to determine that the damage was in excess of ordinary wear and tear and had been caused by the negligence of Postal Service personnel. As to the broken spoiler, the Contracting Officer agreed that the damage was in excess of ordinary wear and tear, but denied the claim on the basis that Appellant had not shown the damage to have been caused by the act or negligence of Postal Service employees. (Id.).
Contract No. 174038-85-W-A026
PSBCA No. 3194 - Vehicle No. 11126
15. In this appeal, the Form 4577 noted scratches on the front and rear bumpers and on the right side, a dent in the front of the vehicle, faded paint, and a torn driver's seat. Appellant's claim, in the amount of $156.00, sought payment for repairing damage to the right quarter panel and front bumper. In a final decision dated February 3, 1992, the Contracting Officer denied the claim on the basis that the damage had not been shown to have been in excess of ordinary wear and tear or to have been caused by the negligence of Postal Service employees. (3194 AF D, B, E).
DECISION
In its Complaints,[1] Appellant argues that these contracts are mutual benefit bailment contracts under which Respondent, as bailee, is subject to a presumption that any damage to the bailed property was caused by Respondent's negligence. Appellant also argues that terms of the "Liability Provisions" [Finding 4] which limit Respondent's liability with respect to ordinary wear and tear are unenforceable. These arguments have been considered and rejected by this Board in Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3091-3094, 3096, 3098, 3122, 3125, 93-1 BCA ¶ 25,363, where we concluded that the presumption urged by Appellant was inconsistent with the contract language and that the limitation on liability for ordinary wear and tear was enforceable. Those conclusions apply equally to the appeals here.
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 and that the damage exceeded ordinary wear and tear. E.g., Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2784-2788, 2791-2798, 91-3 BCA ¶ 24,178. Respondent argues that Appellant has failed to meet that burden.
In PSBCA Nos. 3176, 3181, 3182 and 3198 the Contracting Officer conceded that damage necessitating the replacement of a valance was beyond damage which could be considered ordinary wear and tear. However, Appellant has provided no evidence to show that such damage was caused by an act or negligence of Respondent's personnel. As to other damage in dispute in these appeals, Appellant has provided no evidence to show that any damage was beyond ordinary wear and tear or was caused by an act or negligence of Respondent's personnel. Thus, Appellant has failed to satisfy its burden of proof in these appeals.
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