May 6, 1993
Appeal of
JAKE SWEENEY AUTO LEASING, INC.
Under Contract Nos. 381793-86-V-A012, 381793-86-V-A191, 381793-86-V-A045
PSBCA Nos. 3229-3233
APPEARANCE FOR APPELLANT:
Teri Geraci
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD
Appellant, Jake Sweeney Auto Leasing, Inc., has appealed from contracting officer's decisions denying 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. Included in the record is the transcript of an oral argument held by telephone.
FINDINGS OF FACT
1. Contract No. 381793-86-V-A012 was awarded to Appellant on November 8, 1985. The contract covered the lease of 37 vehicles for use in Park & Loop service in Cincinnati, Ohio, from November 23, 1985, through October 25, 1991. (PSBCA 3229 Appeal File Tab (3229 AF) A).
2. Contract No. 381793-86-V-A191 was awarded to Appellant on September 9, 1986. The contract covered the lease of seven vehicles for use in Park & Loop service in Hamilton, Ohio, from November 1, 1986, through October 30, 1992. (3230/3231 AF A).
3. Contract No. 381793-86-V-A045 was awarded to Appellant on February 14, 1986. The contract covered the lease of eight vehicles for use in Park & Loop service in Cincinnati, Ohio, from March 23, 1986, through October 25, 1991. (3232/3233 AF A).
4. Each of 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." (3229, 3230/3231, 3232/3233 AF A).
Contract No. 381793-86-V-A012
PSBCA No. 3229 - Vehicle No. 11195
5. In a "Claim for Damage, Injury, or Death" (SF 95) dated January 9, 1992, Appellant sought $244.60 as the cost of replacing the front valance and repairing the left door on vehicle no. 11195 (3229 AF B). Although there is no record of an inspection of the vehicle at the time it was returned to Appellant,
Respondent does not dispute the existence of the damage claimed by Appellant (3229 AF D; Transcript page (Tr.) 4).
6. In a decision dated April 17, 1992, the Contracting Officer denied the claim in its entirety, concluding that the record did not show that the damage exceeded "normal" wear and tear or had been caused by negligence of Postal Service personnel. Appellant filed a timely appeal. (3229 AF E, F).
Contract No. 381793-86-V-A191
PSBCA No. 3230 - Vehicle No. 11698
7. In a claim dated January 9, 1992, Appellant sought $160.00 for the cost of repairing damage to the left front fender and right rear quarter panel (3230/3231 AF B). A "U.S. Postal Service Hired/Borrowed Vehicle Condition Report" (PS Form 4577), executed by representatives of both parties at the time the vehicle was returned to Appellant, noted scratches at those same locations, but contained no indication as to the severity of the damage (3230/3231 AF D).
8. The Contracting Officer denied the claim in a decision dated April 17, 1992, concluding that it had not been shown that the damage was beyond normal wear and tear or that it had been caused by negligence of Postal Service personnel. Appellant filed a timely appeal. (3230/3231 AF E, F).
PSBCA No. 3231 - Vehicle No. 11701
9. In a January 9, 1992, claim, Appellant sought $364.00 for the cost of repairing damage to the right door, left and right rear quarter panels, and the left front fender on this vehicle (3230/3231 AF B). The PS Form 4577 executed at the time of return, showed a dent in the right door and scratches at the other three locations (3230/3231 AF D).
10. In a decision dated April 17, 1992, the Contracting Officer denied the claim in its entirety for the reason that the damage had not been shown to be in excess of normal wear and tear or to be the product of negligence by Postal Service personnel. Appellant filed a timely appeal. (3230/3231 AF E, F).
Contract No. 381793-86-V-A045
PSBCA No. 3232 - Vehicle No. 11879
11. In a claim dated January 29, 1992, Appellant sought payment in the amount of $136.60 as the cost of replacing the front valance on this vehicle (3232/3233 AF B). Although there is no record of an inspection on this vehicle at the time it was returned, Respondent does not dispute the existence of the claimed damage (Tr. 4).
12. The Contracting Officer denied the claim in a decision dated April 17, 1992, stating that the damage had not been shown to be in excess of normal wear and tear or to be the product of negligence by Postal Service personnel. Appellant filed a timely appeal (3232/3233 AF E, F).
PSBCA No. 3233 - Vehicle No. 11213
13. In a claim dated March 9, 1992, Appellant demanded payment in the amount of $284.00 for the cost of replacing the front valance and chrome trim on the left side, and repairing a dent on the roof of the vehicle. The PS Form 4577 executed at the time the vehicle was returned noted a cracked front valance, missing trim on the left side, and a dent in the roof. (3232/3233 AF B, D).
14. In a decision dated April 17, 1992, the Contracting Officer determined that all of the damage was in excess of ordinary wear and tear. He concluded that the damage to the roof had been caused by Postal Service personnel placing mail (e.g., parcels, trays, sacks, etc.) on the roof in a negligent manner. Therefore, he granted that portion of the claim and authorized payment in the amount of $110.50. However, he concluded that no showing had been made that missing trim and valance damage had been caused by negligence on the part of Postal Service personnel. Therefore, those parts of the claim were denied. Appellant filed a timely appeal. (3232/3233 AF E, F).
DECISION
In its Complaints, 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 4] 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 this burden of proof.
In PSBCA Nos. 3229-3232, Appellant has offered no evidence demonstrating that the damage was in excess of ordinary wear and tear and was caused by the act or negligence of Respondent's employees. In PSBCA No. 3233, the Contracting Officer conceded that the damage was in excess of ordinary wear and tear but, except for the roof damage, concluded that there was no showing that the damage had been caused by the act or negligence of Postal Service personnel. Appellant has offered no evidence demonstrating that the damage for which it was not compensated was caused by an act or negligence of Postal Service personnel. Accordingly, 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