PSBCA Nos. 3169, 3172-73, 3183-93, 3196-97
February 09, 1994
Appeal of
JAKE SWEENEY AUTO LEASING, INC.
Under Contract No. 381793-86-V-A012
PSBCA Nos. 3169, 3172-73, 3183-93, 3196-97
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. The 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-A012, was awarded to Appellant on November 8, 1985. It covered the lease of 37 vehicles for "Park & Loop" service at various stations and branches in Cincinnati, Ohio, for the period November 23, 1985, through October 25, 1991. (Appeal File Tab ("AF") A).
2. The contract 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." (Id.).
3. In a series of damage claims dated December 2, 1991, Appellant sought the cost of repairs to 16 of the vehicles leased under the contract. As the basis for each claim Appellant stated substantially as follows:
"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 claim was accompanied by two estimates, the lower of which corresponded to the amount of the claim. (AF B).
4. The Contracting Officer denied the claims, in whole or in part, in decisions dated February 3 and 7, 1992. Appellant filed timely appeals. (AF E).
PSBCA No. 3169 - Vehicle No. 11200
5. In this appeal, the USPS Form 4577, "Leased Vehicle Condition Report," executed on behalf of both parties at the time the vehicle was returned to Appellant, showed damage to the right rear of the vehicle and the notation "PM" at the left front. Appellant's claim, in the amount of $128.05, sought the cost of repairs to the right rear quarter panel and replacing the left front hub cap. The Contracting Officer concluded that the damage to the right rear quarter panel was beyond ordinary wear and tear but denied recovery on the basis that the damage had not been shown to be the result of an act or negligence of a Postal Service employee. He also concluded that the missing hub cap had not been documented on the Form 4577 and denied recovery on that basis. (AF B, D, E).
PSBCA No. 3172 - Vehicle No. 11167
6. In this appeal, the Form 4577 showed damage to the front valance (spoiler). Appellant's claim, in the amount of $54.00, sought the cost of repairing the valance. The Contracting Officer denied the claim in its entirety on the basis that the damage had not been shown to be in excess of ordinary wear and tear or to have been caused by Postal Service negligence. (Id.).
PSBCA No. 3173 - Vehicle No. 11215
7. The Form 4577 in this appeal showed a missing molding on the left side, scratches on the right side and roof, a small dent and bumper scratches on the front, and a small dent, bumper scratches, and a broken light on the rear of the vehicle. Appellant's claim, in the amount of $198.50, sought the cost of replacing the missing molding and broken light, and the cost of repairing dents in the front bumper and left rear body panel. The Contracting Officer denied the claim in its entirety. As to the dents, the Contracting Officer concluded that Appellant had not shown that the damage exceeded ordinary wear and tear or that it had been caused by Postal Service negligence. As to the missing molding and broken light, the Contracting Officer concluded that the damage was in excess of ordinary wear and tear but that there was no evidence that the damage had been caused by Postal Service negligence. (Id.).
PSBCA No. 3183 - Vehicle No. 11673
8. In this appeal, the Form 4577 showed damage to the rear of the right and left sides, and a broken front valance. The claim, in the amount of $243.00, sought the cost of repairing damage to the right rear quarter panel and replacing the valance. The Contracting Officer denied the claim in its entirety, concluding that the quarter panel damage had not been shown to be in excess of ordinary wear and tear or caused by the negligence of the Postal Service. As to the broken spoiler, the Contracting Officer concluded that the damage was in excess of ordinary wear and tear but had not been shown to be caused by Postal Service negligence. (Id.).
PSBCA No. 3184 - Vehicle No. 11360
9. The Form 4577 in this appeal indicated a broken front valance to be the only damage to the vehicle. Appellant's claim, in the amount of $130.00 sought the cost of replacing the valance. The Contracting Officer denied the claim on the basis that although the damage was in excess of ordinary wear and tear, no evidence had been provided to show that the damage was caused by the act or negligence of an officer or employee of the Postal Service. (Id.).
PSBCA No. 3185 - Vehicle No. 11185
10. In this appeal the Form 4577 showed dents on the right side of the vehicle and a chip in the front valance. Appellant's claim sought $238.60 as the cost of repairs to the right rear quarter panel and of replacing the valance. The Contracting Officer denied the claim in its entirety. Although he considered the damaged valance to be beyond ordinary wear and tear, the Contracting Officer concluded Appellant had not shown that the damage was caused by Postal Service negligence. As to the other damage, the Contracting Officer concluded that the records did not show either that the damage was beyond ordinary wear and tear or that it had been caused by Postal Service negligence. (Id.).
PSBCA No. 3186 - Vehicle No. 11161
11. In this appeal, the Form 4577 showed dents along the right side of the vehicle and a split in the driver's back rest. The claim, in the amount of $216.00 sought only the cost of repairing the dents. The Contracting Officer denied the claim in its entirety, concluding that the records did not show that the damage was in excess of ordinary wear and tear or that the damage had been caused by the negligence of Postal Service personnel. (Id.).
PSBCA No. 3187 - Vehicle No. 11207
12. The Form 4577 in this appeal showed damage to the right side of the vehicle and a crack in the front grille. Appellant's claim, in the amount of $51.20, sought only the cost of replacing the front grille. The Contracting Officer concluded that the grille damage was beyond ordinary wear and tear but denied the claim on the basis that Appellant had not shown that the damage had been caused by Postal Service negligence. (Id.).
PSBCA No. 3188 - Vehicle No. 11753
13. In this appeal the Form 4577 showed a chip in the front grille, a broken valance, and missing right rocker molding. Appellant's claim, in the amount of $219.00, sought the cost of replacing all three items. The Contracting Officer concluded that all of the damage was in excess of ordinary wear and tear. However, he denied the claim on the basis that Appellant had not shown that the damage was caused by Postal Service negligence. (Id.).
PSBCA No. 3189 - Vehicle No. 11164
14. In this appeal, the Form 4577 showed damage to the right door and bore other indecipherable notations. The claim, in the amount of $108.00, sought only the cost of repairing the door. In his decision, the Contracting Officer denied the claim on the basis that although the damage to the right door was outside ordinary wear and tear, Appellant had not shown that the damage had been caused by Postal Service negligence. (Id.).
PSBCA No. 3190 - Vehicle No. 11198
15. The Form 4577 in this appeal showed scratches on the front and rear bumpers, nicks on the rear of the vehicle, "faded scratches" on the roof, and molding missing from the right side. Appellant's claim, in the amount of $42.00 sought the cost of replacing the molding and painting the bumpers. In his decision, the Contracting Officer concluded that the missing molding was outside ordinary wear and tear but denied the claim because Appellant had not shown the cause of the damage to be Postal Service negligence. As to the bumper damage, the Contracting Officer denied the claim on the basis that the damage had not been shown to be either outside ordinary wear and tear or to have been caused by Postal Service negligence. (Id.).
PSBCA No. 3191 - Vehicle No. 11209
16. In this appeal, the Form 4577 showed missing molding and loose molding on the left side, "nicks" on the left side, and minor scratches on the front and rear bumpers, and the left and right sides. Appellant's claim, in the amount of $86.00, sought the cost of replacing the missing molding and repairing scratches, including scratches on the roof and hood not shown on the Form 4577. The Contracting Officer denied the claim in its entirety, concluding that the hood and roof damage had not been shown on the 4577 when the vehicle was returned to Appellant and that the rest of the damage constituted ordinary wear and tear. He did not address the missing molding in his decision. (Id.).
PSBCA No. 3192 - Vehicle No. 11214
17. In this appeal, the Form 4577 showed damage involving the left and right side molding and damage to front and rear bumper "covers." The claim, in the amount of $92.80, covered the cost of replacing the molding and bumper extensions. In his decision, the Contracting Officer denied the claim in its entirety. As to the bumper damage, he concluded that the record did not show that the damage was in excess of ordinary wear and tear or that it had been caused by Postal Service negligence. The Contracting Officer determined that the missing molding was outside ordinary wear and tear but concluded that the record did not show that the damage had been caused by Postal Service negligence. (Id.).
PSBCA No. 3193 - Vehicle No. 11181
18. The Form 4577 in this appeal showed small dents on the right side of the vehicle. Appellant's claim, in the amount of $113.00, covered the cost of repairing damage in the same area. The Contracting Officer denied the claim in its entirety on the basis that the record did not show either that the damage was in excess of ordinary wear and tear or that it had been caused by Postal Service negligence. (Id.).
PSBCA No. 3196 - Vehicle No. 11163
19. In this appeal, the Form 4577 showed a cracked left door handle, missing molding on the left side, cracked rear bumper cover and bumper guard, and a 3/8-inch dent in the rear hatch. Appellant's claim, in the amount of $258.15, sought the cost of replacing the door handle, molding, bumper extension and bumper guard, and repairing the hatch. In his decision, the Contracting Officer allowed $92.00 as the cost of repairing the rear hatch, concluding that the damage had been caused by the vehicle operators placing mail on the roof during loading and unloading. The Contracting Officer denied the remainder of the claim, although concluding that the damage was outside ordinary wear and tear, because the record did not show that the damage had been caused by Postal Service negligence. (Id.).
PSBCA No. 3197 - Vehicle No. 11182
20. In this appeal, the Form 4577 showed a missing side molding (noted as being in the car), a dent in the right door and a small scratch on the rear of the left side. The claim, in the amount of $130.00, covered the cost of repairing the dent in the door and scratches on the left quarter panel. In his decision, the Contracting Officer denied the claim in its entirety, concluding that the record did not show that the damage was in excess of ordinary wear and tear or had been caused by Postal Service negligence. (Id.).
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 2] 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 ¶ 24,278. Respondent argues that Appellant has failed to meet that burden.
In all of the appeals except PSBCA Nos. 3172, 3186, 3191, 3193, and 3197 the Contracting Officer conceded that at least some of the damage was beyond what 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