September 1, 1993
Appeal of
JAKE SWEENEY AUTO LEASING, INC.
Under Contract No. 381793-86-V-A172
PSBCA Nos. 3164, 3166, 3177-3179
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 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-A172 was awarded to Appellant on August 7, 1986, and covered the lease of eight passenger vehicles for use in "Park & Loop" service at two stations in Cincinnati, Ohio. The term of the contract was from September 27, 1986, 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. Through a series of claims dated December 2, 1991, Appellant sought the cost of repairing damage to five 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).
PSBCA No. 3164 - Vehicle No. 11665
4. The PS Form 4577, "U.S. Postal Service Hired/Borrowed Vehicle Condition Report," related to this appeal showed dents on the right side and a broken front spoiler [valance] at the time the vehicle was returned to Appellant. Appellant's claim was in the amount of $243.00 and covered the repair of corresponding damage. In a decision dated February 3, 1992, the Contracting Officer denied the claim in its entirety. With respect to the damage to the right side, he concluded that there was no evidence of negligence on the part of the Postal Service and that the damage had not been shown to be outside ordinary wear and tear. With respect to spoiler damage, he concluded that the damage was outside ordinary wear and tear but that there was no evidence that the damage had been caused by an act or negligence of Postal Service employees. (AF B, D, E).
PSBCA No. 3166 - Vehicle No. 11183
5. In this appeal, the Form 4577 reflected damage to the right front bumper and right front fender as well as small scratches on the left side door. The amount claimed was $162.00, covering repairs to the bumper and fender only. In a decision dated February 3, 1992, the Contracting Officer denied the claim on the basis that the damage covered by the claim had not been shown to be outside ordinary wear and tear or to have been caused by an act or negligence of a Postal Service employee. (AF B, D, E).
PSBCA No. 3177 - Vehicle No. 11760
6. In this appeal, the Form 4577 showed a broken spoiler and dents and scratches on the rear of the vehicle. The claim requested $217.60 in payment for replacing the spoiler and repairing the rear hatch. In a decision dated February 4, 1992, the Contracting Officer approved the payment of $81.00 for damage to the hatch. As to damage to the spoiler, the Contracting Officer conceded that such damage was outside ordinary wear and tear but denied recovery based on the absence of a showing that the damage had been caused by an act or negligence of a Postal Service employee. (AF B, D, E).
PSBCA No. 3178 - Vehicle No. 11671
7. The Form 4577 in this appeal noted dents and scratches on the front, rear, and right side of the vehicle. The claim, in the amount of $292.60, sought the cost of repairing the right rear quarter panel and rear body panel as well as the cost of replacing the front valance. In a decision dated February 3, 1992, the Contracting Officer concluded that the damage to the right rear quarter panel and rear body panel and the dent in the valance had not been shown to be outside ordinary wear and tear. Accordingly, he denied the claim in its entirety. (AF B, D, E).
PSBCA No. 3179 - Vehicle No. 11668
8. In this appeal the Form 4577 showed dents on the left side, right front, left rear, the rear of the right side. Appellant's claim, in the amount of $226.00, sought the cost of repairs to the left door, right rear quarter panel, and right front bumper. In a February 3, 1992, decision, the Contracting Officer denied the claim in its entirety, concluding that Appellant had not shown the damage to be outside ordinary wear and tear or to be the product of Postal Service negligence. (AF 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 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 ¶ 24,178. Respondent argues that Appellant has failed to meet that burden.
In PSBCA Nos. 3164 and 3177 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