Appeals of

WINTER ENTERPRISES LLC

Under Contract No. HCR 61212

PSBCA Nos. 5096 and 5146

APPEARANCE FOR APPELLANT:
Amanda T. Mestan, Esq.

APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
Western Area Law Office
United States Postal Service

OPINION OF THE BOARD

            These consolidated appeals are before the Board as a result of an accident involving a truck driven by an employee of Appellant, Winter Enterprises LLC,  and the exit gate at the Springfield, Illinois facility of Respondent, United States Postal Service.  PSBCA No. 5096 is an appeal from Respondent’s denial of Appellant’s claim for the cost of repairs to the truck.  PSBCA No. 5146 is an appeal from a claim by Respondent for the cost of repairs to the gate.  A hearing was held in Rock Island, Illinois.  Both parties filed post-hearing briefs.  Only entitlement is at issue.

FINDINGS OF FACT

            1.  On June 21, 2002, Appellant was awarded Contract No. HCR 61212 for the transportation of mail between the Quad Cities, Illinois Processing and Distribution Facility and the Springfield, Illinois Processing and Distribution Center ("Springfield P&DC").  The term of the contract was from July 1, 2002, through June 30, 2004, at an annual rate of $74,725.  (Appeal File Tab (AF) 1).

            2.  Under the contract Appellant was "responsible for all damage to persons or property … that occurs as a result of its omission(s) or negligence" (AF 1, Clause H.12 Permits and Responsibilities (Services) (Clause B-30) (January 1997)).

            3.  Under the contract, Respondent was liable for damage to Appellant’s equipment “only when such loss … is caused by a negligent act or omission of the Postal Service, or of its employees, agents, suppliers, or subcontractors.”  (AF 1, Clause B.4.a(1), “Liability for Equipment Damage and Repairs”).

            4.  The exit gate at the Springfield P&DC was controlled by an automatic electronic gate.  When activated by a vehicle detector cable embedded in the pavement, the gate would slide horizontally to open the exit.  The detector cable was laid in a rectangular loop across the vehicle path leading to the exit.  (Transcript (Tr.) 77-80).  The farthest part of the loop was 113 inches from the gate and the closest part of the loop was 41 inches from the gate, both of which were seven inches shorter than the minimum distance specified in the operation manual for the gate (Tr. 69, 71, 73; Exhibit 2, p. 25; Exh. 4). 

            5.  When a vehicle passed over the portion of the loop farthest from the gate, an electronic signal was transmitted to the automatic gate operator and the gate was retracted.  The exit gate at the Springfield P&DC was set to remain open for 18 seconds after a vehicle cleared the gate area (Tr. 74-75).  If another vehicle passed over the cable after the gate started closing, it reversed, but not instantaneously.  The gate had an adjustable delay of 0.3 to 3 seconds during which the gate would come to a stop and a further delay while the gate’s hydraulic motors stopped and reversed. (Tr. 73; Exh. 2, p. 11).

            6.  There was a stop sign located on the exit gate at the Springfield P&DC (AF 4, p. 85; Tr. 21, 42, 63).  Appellant's driver was aware of the posted stop sign and that he was required to stop, but generally did not stop if the gate was open as he approached (Tr. 43, 47).  Appellant's driver had approached the exit gate on prior occasions when it was completely closed or closing and knew he had to come to a complete stop to allow it to reopen (Tr. 48). 

            7.  At approximately 12:11 a.m. on May 31, 2003, Appellant's truck approached the exit gate, which was open because another truck had exited the facility approximately 18 seconds earlier (AF 14).  Just as Appellant's truck approached the exit, the gate began to close (Tr. 86-87, 94; AF 14; Joint Exhibit 5).  Appellant's driver did not stop at the posted stop sign and as the truck continued through the gate the passenger side of the truck struck the partially closed gate, causing damage to the truck and the gate (Tr. 50-51).

            8.  As shown in a security video, just prior to this incident, the exit gate had been opening and closing properly as vehicles approached and stopped at the gate (AF 14).

            9.  On or about June 11, 2003, Appellant filed a claim for $5,924.93 with Respondent for the cost of repairs to its truck as a result of the collision (AF 8; Tr. 24).

            10.  By final decision dated August 7, 2003, the contracting officer denied Appellant’s claim based on Respondent's determination that the exit gate was functioning properly at the time of the accident and Appellant's driver was at fault for failing to obey the posted stop sign (AF 9).

            11.  With Appellant's knowledge and authorization, a claims adjuster from Appellant's insurance carrier wrote a letter to the contracting officer on September 19, 2003, indicating that he was in receipt of the August 7, 2003 final decision that had been sent to Appellant and asking that the contracting officer accept his letter as the first notice of appeal of the final decision (Tr. 13-14; AF 10).

            12.  By letter dated October 7, 2003, the contracting officer advised the claims adjuster that he would not accept the September 19, 2003 letter as a notice of appeal because it had not been submitted by the supplier [Appellant] to whom the final decision was issued (AF 11).

            13.  By letter dated December 4, 2003, but apparently not mailed until January 5, 2004, Appellant wrote to the contracting officer, stating, in part:

“I received a copy of a letter you sent to our insurance carrier … dated 10/7/2003.…  The letter stated that you could not accept a notice of appeal from our insurance company and that I must submit a notice of appeal personally.  On behalf of [the insurance carrier] and myself I would like to file an appeal regarding the accident claim.” 

(AF 12; Appellant’s original letter and envelope (attachment to January 8, 2004 memorandum from contracting officer)).

The contracting officer forwarded Appellant’s letter to the Board, where it was docketed as PSBCA No. 5096.

            14.  On February 19, 2004, the contracting officer issued a second final decision finding Appellant's driver solely responsible for the accident and demanding that Appellant reimburse the Postal Service $5,800 for the cost of repairs to the gate (AF 13).  Appellant filed a timely appeal from the February 19, 2004 final decision, which was docketed as PSBCA No. 5146.

DECISION

            Initially, the Board must determine if it has jurisdiction over Appellant's appeal in PSBCA No. 5096 or if that appeal must be dismissed as untimely for not being filed within the 90-day period established in the Contract Disputes Act.  Respondent argues PSBCA No. 5096 should be dismissed for lack of jurisdiction because the September 19, 2003 letter filed by Appellant's insurance company was not a valid notice of appeal and Appellant’s December 4, 2003 letter was filed beyond the statutory 90-day appeal period.  Appellant opposes the motion to dismiss.

            The Board concludes that it has jurisdiction over PSBCA No. 5096.  The Contract Disputes Act of 1978 states that a contractor may appeal to a board of contract appeals within 90 days of receipt of the contracting officer’s decision (41 U.S.C. §606).  However, the notice of appeal does not need to be filed by the contractor, but may be filed by a duly authorized representative of that party.  Erickson Air Crane Co. of Washington v. United States, 731 F.2d 810 (Fed. Cir. 1984); Nationwide Postal Management, PSBCA No. 4119, 98-1 BCA ¶ 29,578; Urban Laboratories, Inc., ASBCA Nos. 24824, 24839, 24905, 24983, 82-2 BCA ¶ 15,872; 39 C.F.R. §955.3.  Inasmuch as the insurance carrier was acting as Appellant's duly authorized representative when it filed the September 19, 2003 appeal (Finding 11), the appeal is timely and the Board has jurisdiction. 

On the merits, Appellant argues that the Postal Service is liable for the damage to Appellant's vehicle due to its negligence in failing to properly install and maintain the exit gate and failing to warn drivers as to how the gate operated.  Respondent counterclaims that Appellant is liable for the cost of repair to the gate because the gate was working properly at the time of the accident and Appellant's driver was the sole cause of the accident.

The evidence supports that Appellant's driver did not stop prior to attempting to exit the gate and that had he done so, the accident would have been averted.  The record clearly reflects that another vehicle passed through the gate approximately 18 seconds prior to Appellant's vehicle approaching the exit and that the gate was beginning to close just as Appellant's vehicle approached the exit (Finding 7).  If Appellant's driver had stopped before proceeding through the gate, the gate would have reset, and he could have safely passed through the exit.  Appellant's driver was aware that the gate might close as he approached (Finding 6), but chose not to obey the stop sign.

Appellant also contends that the exit gate was not working properly on the night of the accident and that Respondent was negligent because it improperly installed the vehicle detector cable and did not advise Appellant how the gate operated.  Appellant's arguments are not supported by the record.  The security video shows that the gate was opening and closing properly on the night of the accident as other vehicles approached and exited the gate prior to Appellant's truck (Finding 8).  The delay of 18 seconds on the gate was within the gate's proper operating parameters (Finding 5).  Furthermore, although Appellant argues that it was never instructed on how the gate operated, Appellant's driver was aware through his own experience that there was a posted stop sign and that if the gate was closed or closing, he had to come to a complete stop to allow the gate to re-open (Finding 6).  The driver's previous experience with the exit gate should have made him particularly alert for the possibility of the gate closing and he should have stopped or been going slowly enough to stop if it happened. 

While the vehicle detector cable was not properly installed (Finding 4), Appellant has not shown that the installation had any significance under the facts of this case.  Appellant has not demonstrated that installing the detection wires an additional seven inches from the gate would have had any effect in preventing the accident, and has not shown that the driver's failure to stop was not the proximate cause of the accident.

Therefore, with regard to Appellant’s claim (PSBCA No. 5096), Appellant has failed to show that any negligence of Respondent caused damage to its truck.  As indicated above, the evidence shows that the exit gate was functioning properly at the time of the accident; that the improper installation of the detection wires had no significance; and that the experience of Appellant’s driver negated the effect of any failure of Respondent to brief drivers on the operation of the gate.  Therefore, under the language of the contract (Finding 3), Respondent is not liable for damage to Appellant’s truck.

Regarding Respondent’s claim (PSBCA No. 5146), Respondent has demonstrated that the failure of Appellant’s driver to stop as he approached the gate was the proximate cause of the accident.  As indicated above, had Appellant’s driver come to a stop before proceeding through the gate, the accident would not have occurred.  By proceeding as he did, the driver, who was aware of the fact that the gate might close as he approached, assumed the risk that it would do so.  Under the contract, Appellant was responsible for all damage to property caused by its "omission or negligence" (Finding 2) and, therefore, is liable for the reasonable cost to repair the exit gate.  Further, inasmuch as we have found no negligence on Respondent’s part with respect to this incident, we do not address Appellant’s comparative fault/contributory negligence defense.

Accordingly, the appeals are denied.

David I. Brochstein
Administrative Judge
Vice Chairman

I concur:                                                                      I concur:

William A. Campbell                                                 Norman D. Menegat

Administrative Judge                                                Administrative Judge

Chairman                                                                   Board Member