May 17, 1993

Appeal of

CARDEL LEASING

Under Contract No. 119990-87-V-A133

PSBCA No. 3223

 

APPEARANCE FOR APPELLANT:

Donna Fields

 

APPEARANCE FOR RESPONDENT:

Alfred J. Zwettler, Esq.

 

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

 

            Respondent timely filed a motion for reconsideration of the Board's decision of January 15, 1993.  In that decision, based on the written record, we concluded that Respondent was liable for damage to a vehicle it leased from Appellant.  Respondent argues in this motion that the Board improperly shifted to it the burden of proving the damage did not result from the act or negligence of its employee.  It also argues that we erroneously relied on statements in Appellant's claim, which Respondent contends cannot be considered as evidence, and misinterpreted other evidence in the record.

            Respondent was found liable only for damage to the vehicle resulting from its continued operation while it was overheating; Respondent was not liable for damage stemming from the overheating itself.  Slip op. 8.[1]  The record contained insufficient direct evidence from which we could determine the exact cause of the additional damage, and, therefore, we evaluated circumstantial evidence to decide the likely cause and party responsible.  In order to recover for damage to a vehicle leased to the Postal Service, the contractor ordinarily has the burden of persuading the Board by a preponderance of the evidence that the damage to its vehicle was caused by the act or negligence of a postal employee.  Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2907-2916, 91-3 BCA ¶ 24,265; Jake Sweeney Auto Leasing, PSBCA Nos. 2643-2675, 90-2 BCA ¶ 22,766 (and cases cited therein).  However, because of the nature of the damage and other circumstances present in this appeal, we cast upon Respondent the burden to demonstrate that the extra damage was not caused by the act or negligence of its employee, citing Jake Sweeney Auto Leasing, Inc., PSBCA No. 2899, 1991 WL 62357 (April 9, 1991) and Postal Vehicle Supply Service, PSBCA No. 775, 1980 WL 2295 (June 16, 1980).[2]

            Appellant submitted the statements of two individuals, one of whom identified himself as a mechanic for 19 years, commenting on the damage and expressing their opinions regarding its cause.  Respondent reads the statements as ambiguous and inconclusive and contends the Board misinterpreted them.  Resp. Mot. 8-11.  We have reviewed those statements in light of Respondent's arguments and remain satisfied that they establish that the likely cause of the extra damage was continued operation of the vehicle while it was overheating.  That conclusion was also supported by statements in Appellant's claim to the Postal Service in which the author, Appellant's Office Manager, recounted (1) a conversation she had with Angelo of Lighthouse Shell, the station to which the vehicle was towed for repair, in which Angelo attributed the additional damage to continued driving of the vehicle after the temperature gauge showed it was overheating and (2) a conversation she had with a postal employee in which the employee said that the driver knew the vehicle was overheating, was told to check the water and take the vehicle to the service station but did not do so.

            Respondent contends that giving any weight to the Office Manager's statements was error as they were contained in Appellant's claim, which Respondent argues can have no evidentiary value.  Resp. Mot. 2-5.  The cases Respondent cites in support of its position, Fedlease, Inc., PSBCA No. 2873, 91-2 BCA ¶ 23,849 at 119,528 and Jake Sweeney Auto Leasing, PSBCA Nos. 2643-2675, 90-2 BCA ¶ 22,766 at 114,274, hold that allegations and assertions in claim letters are not proof of facts, especially of disputed facts.  However, the statements at issue here went beyond assertion and allegation, and were undisputed.  They were made on Standard Form 95, "Claim for Damage, Injury, or Death", a form which bears in boldface type the warning of criminal penalty for making false statements (Appeal File Tab 5), and the statements relate facts within the personal knowledge of the author.  The statement attributed to an identified postal employee was within Respondent's power to contradict if not true and was properly considered by the Board.  Angelo's view regarding the damage was also set forth (and cited by the Board at slip op. 3-4) in Appellant's answers to Respondent's interrogatories, which Respondent placed in the record, and, therefore, we need not address whether the decision's mention of similar statements in the claim itself was proper.

            Respondent argues the burden of proof on causation should not have shifted to it because Appellant retrieved the vehicle and had exclusive control over the diagnosis and repair of the damage.  Resp. Mot. 19.  Appellant presented evidence it could determine from its after-the-fact access to the vehicle, but Respondent had custody of the vehicle when it was damaged and access to and control over those postal employees with knowledge of the circumstances of the damage.  Thus, Respondent had the ability to present direct evidence of what happened to the vehicle on the day the damage occurred, and it was reasonable to place on it the burden of proving the additional damage did not result from the act or negligence of its employee.  Jake Sweeney Auto Leasing, Inc., PSBCA No. 2899, 1991 WL 62357 (April 9, 1991); Postal Vehicle Supply Service, PSBCA No. 775, 1980 WL 2295 (June 16, 1980); see United States v. New York, N. H. & H. R. Co., 355 U.S. 253, 256 n. 5 (1957); Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 36 (7th Cir. 1975); Cable Antenna Systems, ASBCA Nos. 36184, 37951, 93-1 BCA ¶ 25,445 at 126,718.  Appellant prevailed in the appeal because Respondent failed to present evidence to meet its burden.[3]

            Respondent complains that shifting the burden and requiring it to shoulder the very difficult task of proving a negative, i.e., that the damage was not caused by the act or negligence of its employee, is unfair, especially when the burden is shifted without notice, after the record in the appeal is closed.  Resp. Mot. 20.   That the damage was not caused by the act or negligence of a postal employee may be a fact negative in form, but whether the vehicle was driven while it was known to be overheating was capable of affirmative proof by Respondent, the party who knew or could easily ascertain the truth of what happened to the vehicle.  See Selma, Rome & Dalton R.R. Co. v. United States, 139 U.S. 560, 567 (1891).[4]  Also, Appellant's consistent position from the filing of the claim through the appeal was that the additional damage was caused by continued operation of the vehicle while it was overheating, and it presented evidence to support its position.  Respondent should not have been surprised that it would be expected to rebut that evidence, especially where the ability to disprove Appellant's evidence on causation, if not true, was readily at hand.  See Coley Properties Corp., PSBCA No. 291, 75-2 BCA ¶ 11,514 at 54,942 rev'd, in part, on other grounds, Coley Properties Corp. v. United States, 219 Ct. Cl. 227, 593 F.2d 380 (1979); EDL Constr., Inc., ASBCA No. 37510, 89-2 BCA ¶ 21,603 at 108,762; Huff's Janitorial Service, ASBCA No. 26860, 83-1 BCA ¶ 16,518 at 82,081.

            The Board did not conclude, as Respondent urges in its motion (Resp. Mot. 22-23), that the failure of the Postal Service to present a Vehicle Repair Tag established Respondent's negligence.  Respondent's apparent practice of completing Vehicle Repair Tags for vehicle breakdowns under this contract and the postal handbook requirement that a Tag be prepared for vehicle defects requiring attention (Slip op. 7) supported the reasonableness of requiring Respondent to produce evidence regarding the incident or explain why none was available.

            Respondent attributes to the Board the conclusion that "there are no circumstances under [which] it would have been reasonable for the Postal driver to continue to drive an overheating vehicle" (Resp. Mot. 14) and criticizes that conclusion by pointing out possible circumstances related to safety and security of the mail that could justify continued operation of a vehicle despite a gauge showing it was overheating.  Resp. Mot. 13-14.  The conclusion Respondent apparently addresses states: "Even though vehicle 235 was prone to overheating, absent some compelling reason, the vehicle should not have been driven if it was known to be overheating . . ."  Slip op. 8 (emphasis added).  It is up to Respondent to show the existence of such compelling reason, and it did not do so.

            Respondent argues that we applied a double standard regarding negligence, finding Respondent liable for damage resulting from its continued operation of an overheating vehicle when there was evidence that after the vehicle overheated on a prior occasion Appellant's representative picked up the vehicle and, although the temperature gauge showed it to be overheating, drove it to be serviced.  Respondent cites this prior occurrence as establishing a standard for nonnegligent conduct.  Resp. Mot. 14-17.  Whether Appellant exercised due care when its representative drove the vehicle while it was overheating was not before the Board.  Therefore, even if Respondent had shown that the circumstances of the two events were comparable, no inference could be drawn that similar conduct by Respondent was nonnegligent.

            Finally, Respondent argues that the tort doctrine of res ipsa loquitor must underlie the shifting of the burden to Respondent and that the necessary elements of res ipsa loquitor were not present in the circumstances of this appeal.  Resp. Mot. 20-22.  We need not address this argument because the decision turned on the evidentiary responsibilities of the parties and did not conclude that Respondent was liable because its negligence was established under principles of res ipsa loquitor.

            Respondent has not submitted any previously unavailable or newly-discovered evidence that might warrant reconsideration, nor has it shown factual or legal errors that would warrant changing the Board's decision.  The motion is denied.

Norman D. Menegat

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

James D. Finn, Jr.

Administrative Judge

Vice Chairman


[1]"Slip op." refers to the page of the opinion in Cardel Leasing, PSBCA No. 3223, 1993 WL 21940, January 15, 1993.

[2]Respondent argues that the facts of this appeal distinguish it from Jake Sweeney Auto Leasing, Inc., PSBCA No. 2899, and Postal Vehicle Supply Service because they addressed damage to the exterior of leased vehicles as opposed to damage to the engine, which Appellant is obligated to maintain under the contract.  Respondent's Motion pages ("Resp. Mot.") 17-19.  This is a distinction without a difference under the circumstances of this appeal as Appellant did not recover for damage (the overheating itself) that possibly resulted from its failure to maintain the vehicle.  Slip op. 8.

[3]Respondent cites Fedlease, Inc., PSBCA No. 2844, 91-3 BCA ¶ 24,266, as "virtually the twin" of this appeal (Resp. Mot. 20 n. 7).  In Fedlease, the contractor asserted that engine damage to a leased vehicle occurred because postal employees failed to have the oil checked.  The Postal Service asserted that the worn condition of the head gaskets allowed the oil to leak.  The Board noted that the parties had not "supported their assertions with evidence."  Id. at 121,309.  In this appeal, Appellant presented sufficient evidence, at least for an appeal submitted on the record as this one was, to shift the burden to Respondent, while the appellant in Fedlease did not, with the result that the appeal in the latter was denied for the contractor's failure to carry its burden of proof.  The Fedlease case is, therefore, distinguishable.

[4]In Jake Sweeney Auto Leasing, PSBCA No. 2364, 89-2 BCA ¶ 21,823, Respondent overcame the vehicle hire contractor's allegation, based on statements of repair personnel, that damage to the door of a leased vehicle was caused by the carrier leaning on the door and opening it too wide by presenting the affidavits of the carrier who drove the vehicle and the superintendent of operations disputing the allegation.