Appeal of
JAKE SWEENEY AUTO LEASING, INC.
Under Contract Nos. 381793-86-V-A048 & 174038-85-V-A034
PSBCA Nos. 3170, 3171, 3175 & 3195

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 the 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. 174038-85-V-A034 was awarded to Appellant on September 10, 1985.  It covered the lease of five vehicles for "Park & Loop" service in Louisville, Kentucky, for the period October 12, 1985, through October 11, 1991.  (PSBCA 3170, 3175, 3195 Appeal File Tab ("3170AF") A).

            2.  Contract No. 381793-86-V-A048 was awarded to Appellant on  February 24, 1986.  It covered the lease of one vehicle for "Park & Loop" service at the post office in Maumee, Ohio, for the period May 1, 1986, through April 26, 1991.  (PSBCA 3171 Appeal File Tab ("3171AF") A).

            3.  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."  (3170, 3171AF A).

            4.  In a series of damage claims dated June 20, 1991, and December 2, 1991, Appellant sought the cost of repairs to four of the vehicles leased under the contracts.  As the basis for each claim Appellant stated that the vehicle had been delivered to Respondent without the claimed damage, that Respondent had possession of the vehicle when the damage occurred, and that Respondent had submitted no reports to explain the damage.  Each claim was accompanied by two estimates, the lower of which corresponded to the amount of the claim.  (3170, 3171AF B).

            5.  The Contracting Officer denied the claims, in whole or in part, in decisions dated February 3 and 4, 1992.  Appellant filed timely appeals.  (3170, 3171AF E).

Contract No. 174038-85-V-A034

PSBCA No. 3170 - Vehicle No. 11138

            6.  In this appeal the Form 4577, "Hired/Borrowed Vehicle Condition Report," showed scratches and dents on both sides of the vehicle, scratches on the front, rear, and top, and a broken front spoiler (valance).  Appellant's claim, in the amount of $307.00, sought the cost of replacing the valance and repairing the left door and right rear quarter panel.  The Contracting Officer denied the claim in its entirety, concluding that the record did not show that the damage to the door and quarter panel was either caused by Postal Service negligence or shown to be in excess of ordinary wear and tear.  The Contracting Officer concluded that the broken spoiler was outside of ordinary wear and tear, but had not been shown to be caused by Postal Service negligence.  (3170 AF B, D, E).

PSBCA No. 3175 - Vehicle No. 11140

            7.  The Form 4577 in this appeal showed scratches on the left and right sides, the back and the top of the vehicle, as well as an illegible notation of some damage to the front of the vehicle.  Appellant's claim, in the amount of $113.00, sought the cost of repairs to both sides, the roof, hood, and front valance.  The Contracting Officer allowed the claim in the amount of $16.50 for damage to the roof, but denied the remainder of the claim on the basis that the Form 4577 did not show damage to the hood and, as to the rest of the damage, that the record did not show either that the damage was in excess of ordinary wear and tear or was caused by Postal Service negligence.  (Id.).

PSBCA No. 3195 - Vehicle No. 11141

            8.  In this appeal, the Form 4577 showed small scratches on the left and right sides and on the top of the vehicle.  Appellant's claim, in the amount of $182.00, sought the cost of repairs to the left and right rear quarter panels.  The Contracting Officer denied the claim in its entirety on the basis that the damage had not been shown to be caused by Postal Service negligence or to be in excess of ordinary wear and tear.  (Id.).

Contract No. 381793-86-V-A048

PSBCA No. 3171 - Vehicle No. 11662

            9.  In this appeal, the Form 4577 showed paint chips on the left side and front, a dent on the left door, scratches and scuff marks on the right side and back, and unspecified damage to the rear bumper of the vehicle.  The claim, in the amount of $213.00, sought the cost of repairs to the left door and right rear quarter panel, and the cost of painting the front and rear bumpers.  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 be caused by Postal Service negligence.  (3171AF B, D, 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 3] 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 PSBCA No. 3170 the Contracting Officer conceded that damage necessitating the replacement of the valance 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

[1]  Appellant did not file a brief.