February 18, 1993

Appeal of

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No. 252489-86-V-A091

PSBCA Nos. 3250, 3251

 

APPEARANCE FOR APPELLANT:

Teri Geraci

 

APPEARANCE FOR RESPONDENT:

Maria R. Fuhrmann, Esq.

 

OPINION OF THE BOARD

            Appellant, Jake Sweeney Auto Leasing, Inc., appeals from the denial of its claims for the cost of repairing damage to two vehicles it leased to the Postal Service.  These appeals are being decided on the record pursuant to 39 C.F.R. § 955.12.

FINDINGS OF FACT

            1.  On February 4, 1986, the Postal Service awarded contract number 252489-86-V-A091 to Appellant for the lease of 7 passenger vehicles for use at the Mt. Clemens, Michigan, Post Office (Appeal File Tab ("AF") 1).

            2.  In GP-6(a) of the "General Provisions for Vehicle Hire Contracts," PS Form 7476, July 1980, the contract provided:

(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.

 

            3.  While in the custody of the Postal Service, two of the vehicles sustained damage.  The "Hired/Borrowed Vehicle Condition Reports," PS Form 4577, on which the parties recorded the condition of the vehicles when they were returned to Appellant, show damage to the front valance and a scratch on the right rear quarter panel of vehicle 11422 and damage to the front valance of vehicle 11365 (AF 2, 3).

            4.  Appellant filed a claim in the amount of $189 against the Postal Service for the damage to vehicle 11422 and a claim for $136.20 for vehicle 11365 (id.).  Each claim was supported by two estimates of the cost to repair the vehicle (id.).  Appellant stated the basis for each of its claims as follows:

USPS had physical possession of vehicle.  Damage was not present when vehicle was delivered.  No reports have been submitted by USPS to explain damages.  (Id.)

 

            5.  The claims were reviewed by a postal employee who recommended that they be denied as the valance damage on both vehicles was "normal wear and tear" and the damage to the right rear quarter panel of vehicle 11422 was a "[v]ery small dent considered normal wear and tear."  (Id.)

            6.  By final decisions dated May 19, 1992, the contracting officer denied the claims (id.).  For each vehicle, the contracting officer concluded that "there is no information to establish that the damages were caused due to the negligence of the Postal Service," relying on General Provision GP-6 (id.).  These timely appeals followed.  Docket number 3250 is the appeal of the denial of the damage claim for vehicle 11422, and docket number 3251 relates to vehicle 11365.

DECISION

            Appellant argues that under bailment principles the Postal Service's custody of the leased vehicles is sufficient to make it liable for any unexplained damage which occurs while the vehicles are in its possession (Finding 4) and that any contract provisions seeking to shift that liability to the contractor are unenforceable (Appellant's May 27, 1992, Notices of Appeal which were accepted as the complaints in these appeals).  It also argues that the failure of the Postal Service to provide a report explaining how the damage occurred is grounds for finding the Postal Service liable for the cost of repair (id.; Finding 4).

            The Board has previously rejected Appellant's bailment arguments in Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3091-3094, 3096, 3098, 3122, 3125, ___ BCA ¶ ___ (August 17, 1992).  Regardless of the presumptions of liability that may attach under principles applicable to bailments, the parties may allocate liability by agreement, and that allocation is enforceable.  Id.; H. N. Bailey and Associates, ASBCA No. 29298, 87-2 BCA ¶ 19,763; Universal Maritime Service Corp., ASBCA Nos. 22661, 22804, 81-1 BCA ¶ 15,118.  Thus, the allocation of liability for damage to the vehicles as set forth in the liability provision of the contract (Finding 2) governs.

            To recover under the contract, Appellant must prove that the damage to the vehicles was caused by the act or negligence of an officer or employee of the Postal Service and exceeded ordinary wear and tear.  Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2859-2862, 92-1 BCA ¶ 24,444; Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2784-2788, 2791-2798, 91-3 BCA ¶ 24,278; Lou Faro Auto Leasing, Inc., PSBCA Nos. 2746, 2747, 90-3 BCA ¶ 23,156.  Failure of Appellant to carry its burden of proof requires denial of its appeals.  Id.

            There is nothing in the record that would support a conclusion that the damage was caused by the act or negligence of an officer or employee of the Postal Service or exceeded ordinary wear and tear.  In fact, the only evidence on the nature of the damage is the statement of the postal employee assigned to investigate the claims that all of the damage was normal wear and tear (Finding 5).  Appellant has failed to meet its burden of proving that the damage to the vehicles exceeded ordinary wear and tear.

            As the damage has not been shown to exceed ordinary wear and tear, the failure of the Postal Service to supply reports explaining how the damage occurred is not a basis for holding the Postal Service liable for the damage.  Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2907-2916, 91-3 BCA ¶ 24,265; Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2821-2826, 91-2 BCA ¶ 23,891.

            Accordingly, the appeals are 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