February 18, 1993

Appeal of

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No. 169990-90-B-A015

PSBCA No. 3252

 

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 claim for the cost of repairing a vehicle it leased to the Postal Service.  This appeal is being decided on the record pursuant to 39 C.F.R. § 955.12.

FINDINGS OF FACT

            1.  On December 6, 1989, the Postal Service awarded contract number 169990-90-B-A015 to Appellant for the lease of 15 vehicles to be used at a number of stations and branches in Indianapolis, Indiana (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.  One of the leased vehicles was damaged while in Postal Service custody.  The "Hired/Borrowed Vehicle Condition Report," PS Form 4577, on which the parties recorded the condition of the vehicle when it was returned to Appellant, showed damage to the front valance (AF 2).

            4.  Appellant filed a claim, dated February 9, 1992, in the amount of $136.60, supported by two estimates of the cost to replace the valance (id.).  In its claim, Appellant stated its grounds for postal responsibility for the damage 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 claim was reviewed by a postal claims investigator who concluded the damage to the front valance was "normal wear and tear" and recommended that the claim be denied (id.).

            6.  In a final decision dated May 19, 1992, the contracting officer denied the claim (id.).  The contracting officer concluded that the damage was not caused by the negligence of the Postal Service (id.).  This timely appeal followed.

DECISION

            Appellant argues that under bailment principles the Postal Service's custody of the leased vehicle is sufficient to make the Postal Service liable for any unexplained damage which occurs while the vehicle is 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, Notice of Appeal which was accepted as the complaint in this appeal).  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).  Notwithstanding any presumptions of liability that may attach under principles applicable to bailments, the parties may allocate liability differently 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 leased 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 was caused by the act or negligence of an 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 appeal.  Id.

            There is nothing in the record that would support a conclusion that the damage was caused by the act or negligence of a Postal Service officer or employee or exceeded ordinary wear and tear.  The report of the claims investigator, which is the only evidence on this point, characterizes the valance damage as normal wear and tear (Finding 5).  Appellant has failed to meet its burden of proving that the damage to the valance 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 a report explaining how the damage occurred does not alter the conclusion that the Postal Service is not liable for the cost of repair.  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.

            The appeal 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