March 4, 1993

Appeal of

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No. 252489-86-V-A09

PSBCA Nos. 3274, 3275, 3276, 3277

 

APPEARANCE FOR APPELLANT:

Teri Geraci

 

APPEARANCE FOR RESPONDENT:

Maria T. Robinson, Esq.

 

OPINION OF THE BOARD

            Appellant, Jake Sweeney Auto Leasing, Inc., appeals the denial of its claims for the cost to repair damage to four 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 for PSBCA Nos. 3274-3279 Tab ("AF") 1).[1]

            2.  General Provision 6 of the contract provided, in part:

"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.  Appellant filed claims for the cost to repair damage to four of the vehicles covered by the lease, seeking the repair cost reflected in the lower of two repair estimates submitted with the claims (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.)

 

            4.  Each of the four vehicles sustained damage while in the custody of the Postal Service.  The damage was recorded on the "Hired/Borrowed Vehicle Condition Report," PS Form 4577, prepared for each vehicle when it was returned to Appellant.  (AF 2 - 5).

            5. The left front fender and left door of vehicle 11367 (PSBCA No. 3274) were dented, and the front valance was broken (AF 2).  The postal employee who reviewed Appellant's claim for vehicle 11367 recommended that it be denied, concluding that dents to the left front fender and left door were "accident type damage" with an unknown cause and that the damage to the valance was "normal wear and tear."  (Id.) 

            6.  The left front fender of vehicle 11393 (PSBCA No. 3275) was dented, the right rear quarter panel was scratched and the front valance was broken (AF 3).  The postal employee who reviewed the claim for this vehicle recommended that it be denied, concluding that the dent to the left front fender was "accident damage" of an unknown cause and that the scratch to the right rear quarter panel and the damage to the valance were "normal wear and tear."  (Id.) 

            7.  The left front fender of vehicle 11411 (PSBCA No. 3276) was dented, the right front fender was scratched, and there were small dents in the rear bumper and front valance (AF 4).  The postal employee who reviewed the claim for vehicle 11411 recommended that it be denied, concluding that the damage to the rear bumper was of an unknown cause and that the dent in the left front fender, the scratch to the right front fender and the dent in the front valance were all "normal wear and tear."  (Id.)

            8.  Vehicle 11428 (PSBCA No. 3277) suffered damage to the left front fender, left rear body panel and roof (AF 5).  The postal employee who reviewed the claim recommended that all but the roof portion of the claim for vehicle 11428 be denied, concluding that the dent to the left front fender and the damage to the left rear body panel were "accident type damage" of an unknown cause (id.).  He concluded that the dents in the roof panel resulted from carrier trays on the roof and recommended payment of $151 for that portion of the claim (id.).

            9.  By final decisions dated July 15, 1992, the contracting officer denied all of the claims, except that for the damage to the roof of vehicle 11428 (Finding 8) which he allowed in the amount of $151 (AF 2 - 5).  For the claims denied, the contracting officer concluded that there was no information to establish postal liability for the damage, stating that there was no evidence any of the damage was caused by negligence of a postal employee (id.).

            10.  In a declaration submitted in this proceeding, the contracting officer concluded that all of the damage covered by the claims he denied resulted from normal wear and tear (Declaration of Juan R. Daly, Contracting Officer, November 17, 1992).  He stated that these leased vehicles were stored outside and subject to damage from snow, ice, salt, road conditions, debris thrown by other vehicles, bumps from opening of doors on cars parked next to the leased vehicles, and traffic in general (id.).  He concluded that all these causes result in damage that is normal wear and tear for such vehicles, and there was no evidence any of the damage was caused by negligence of postal employees (id.).

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 August 3, 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.).

            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.

            The contracting officer stated his definition of normal wear and tear and included within it all of the damage Appellant claims is the responsibility of the Postal Service (Finding 10).  In his final decisions, however, the contracting officer relied on the absence of postal employee negligence as the basis for denying the claims (Finding 9).  The claims reviewer determined that some of the damage resulted from normal wear and tear, but that certain damage was "accident type damage" (Findings 5,  8) or "accident damage" (Finding 6).  Nevertheless, we need not resolve any inconsistency regarding the reasons for denial of the claims as Appellant has submitted no evidence that would establish that the damage exceeded ordinary wear and tear or that any of the damage was caused by the act or negligence of a postal employee.  Appellant has failed to meet its burden of proof.

            The failure of the Postal Service to supply a report explaining how a leased vehicle was damaged is not a basis for concluding that the damage exceeded ordinary wear and tear, 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, or that the damage was caused by the act or negligence of a postal employee, Jake Sweeney Auto Leasing, Inc., PSBCA No. 2989, 92-1 BCA ¶ 24,643; Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2942-2945, 91-3 BCA ¶ 24,112.

            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


[1]The copy of the contract in the Appeal File does not contain the signature page.  However, contract 252489-86-V-A091 was at issue in Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3250, 3251, __ BCA ¶  ___ (February 18, 1993), and the complete copy of the contract in the record for those appeals shows the contracting officer's signature and the date of award.