January 7, 1988

Appeal of

SIGHT LEASING COMPANY

Under Contract No. 114382-84-V-A022

PSBCA No. 2036

APPEARANCE FOR APPELLANT

JIM SIGHT

APPEARANCE FOR RESPONDENT

TRAVIS T. LYNCH, ESQ.

OPINION OF THE BOARD

This appeal is from the Contracting Officer's final decision denying Appellant's claim for damage to a vehicle leased to the United States Postal Service, which was caused by a collision with another vehicle. Both parties have agreed to a submission on the record. Only entitlement is in issue.

FINDINGS OF FACT

1. Sight Leasing Company, Appellant, was awarded contract no. 114382-84-V-A022 on January 4, 1984 (Appeal File (AF) Tab 1). The contract required Appellant to lease to the United States Postal Service (Respondent) 50 passenger vehicles at $6.116 per day (id.). Clause GP-6, "Liability Provision," provided that 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 . . ." (id.).

2. On January 3, 1987, one of the leased vehicles, while operated by an employee of Respondent, was involved in a collision with another vehicle in Miami, Florida. At the time of the collision the Postal-leased vehicle was in front of the other vehicle. Both vehicles had been proceeding eastbound in the left lane of 71st Street and were in the process of turning left, northward onto Carlyle Avenue. Respondent's employee was making the left turn at a slow rate of speed, estimated at 5 MPH. The driver of the second vehicle crossed partially into the southbound lanes of Carlyle Avenue when executing the turn that resulted in the collision. The left door was damaged and window glass was broken when the Postal-leased vehicle was struck by the bumper and right front fender of the second vehicle. AF Tabs 2, 3, 4, 5, 12; Affdvt. Enrique Motola, Nov. 19, 1987).

3. A law enforcement officer of the Miami Beach Police Department prepared an accident report shortly after the collision (AF Tab 2). No citation was issued "due to conflicting stories and no witnesses." (Id.) Noted on the accident report as contributing causes was careless driving by both drivers (id.).

4. The statements of the two drivers conflicted over whether the left turn signal had been actuated for the Postal-leased vehicle before Respondent's employee commenced his left turn (see AF Tab 2). Respondent's employee denied the other driver's allegation that the turn signal was not flashing, stating that he had the "left hand turn signal on and it was working." (Motola Affdvt., supra). We find the evidence of Respondent's employee to be credible on this issue.

5. Appellant submitted claims totaling $860.96 to Respondent on or about January 27, 1987 (AF Tabs 8, 9, 10). The Contracting Officer in a final decision dated March 31, 1987, granted $357.36 on the submitted claims ($79.51 for down-time resulting from tardy reporting of the accident, and $277.85 for unreported previous damage to the vehicle), but denied the claim in the amount of $503.60 relating to the damages resulting from the collision (AF Tab 15. See also AF Tabs 12, 13, 14, 16). In the final decision the Contracting Officer stated that the damage had not been caused by the act or negligence of the Postal employee, who (according to Respondent's investigation) had been driving in a safe manner when struck by a third party making a left turn (AF tab 15).

6. A timely appeal was filed with the Board.

DECISION

Appellant argues that the damage to its leased vehicle is the responsibility of Respondent because the Postal Service driver contributed to the intersection collision. Appellant relies on statements made by the driver of the second vehicle which struck the leased vehicle as both were turning left in an intersection, and on the lack of issuance of a citation by the police officer who responded to the scene.

Respondent's position is that its driver was not negligent, but was driving in a safe manner executing a left turn when struck by a following vehicle. Respondent contends that the driver of the striking vehicle was following too closely, did not have full control of the vehicle, and was driving on the wrong side of the roadway in an intersection.

In order to recover under the liability provision of the contract, a contractor must prove that the damage was proximately caused by an act or negligence of Respondent's employee. E.g., Florida Postal Leasing, Inc., PSBCA No. 1209, 84-1 BCA ¶ 17,203. The only evidence on which a finding of such act or negligence could be made is the reference in the police accident report to careless driving, apparently based on the disputed allegation that Respondent's employee had not made a left turn signal. The evidentiary value of the information from the police report is substantially outweighed by the factual information from the other investigative reports and statements in the record which reveal that Respondent's employee was operating the leased vehicle in a reasonable and safe manner when struck by a following vehicle making an improper left turn. Moreover, after evaluating the evidence available in this record, we have found that a proper signal was given by Respondent's employee.

Even were we to assume that the turn signal had not been given, that omission would not have proximately caused the accident. The undisputed evidence of Respondent's employee is that he was proceeding at a slow rate of speed to make a left turn when struck by the following vehicle coming around on the left side of the leased vehicle. Under those circumstances the driver of the following vehicle was either inattentive not to have anticipated the left turn, or was careless in attempting to pass the leased vehicle while both were turning. Therefore, the proximate cause of the collision and the ensuing damage to the leased vehicle was the negligent operation by the driver of the other vehicle.

Accordingly, Respondent is not liable to Appellant for the cost of repairing the collision damages to the leased vehicle.

The appeal is denied.

James E. Lambert

Administrative Judge

Board Member

I concur

James A. Cohen

Administrative Judge

Chairman

I concur

James D. Finn, Jr.

Administrative Judge

Vice Chairman