March
4, 1993
Appeal
of
JAKE
SWEENEY AUTO LEASING, INC.
Under
Contract No.199990-90-P-A006
PSBCA
No. 3278
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 claim for the cost
to repair damage to a vehicle it leased to the Postal Service, Respondent. This appeal is being decided on the record
pursuant to 39 C.F.R. § 955.12.
FINDINGS
OF FACT
1. On November 16, 1989, the Postal Service
awarded contract number 199990-90-P-A006 to Appellant for the lease of 3
passenger vehicles for use at the Mapleton Postal Station in Indianapolis,
Indiana (Appeal File for PSBCA Nos. 3274-3279 Tab ("AF") 6).
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. While in the custody of the Postal Service,
one of the vehicles (11117) sustained damage to its front valance, left front
fender, left door and right chrome strip (AF 6). The "Hired/Borrowed Vehicle Condition
Report," PS Form 4577, prepared for the vehicle when it was returned to
Appellant, included the notation "spoiler bro" for the front area of
the vehicle, signifying that the valance (spoiler) was broken (id.).
4. Appellant filed a claim for the estimated
cost to repair the vehicle, seeking the repair cost shown on the lower of two
estimates submitted with the claims (id.). Appellant stated the basis for its claim 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 postal employee who reviewed the claim
recommended that it be denied because there was no proof of the vehicle being
involved in an accident while in postal custody and there was no apparent
negligence by a postal employee (id.).
6. By final decision dated July 15, 1992, the
contracting officer denied the claim, concluding that there was no information
to establish postal liability for the damage, pointing out there was no
evidence any of the damage was caused by negligence of a postal employee (id.).
7. By its Notice of Appeal dated August 3, 1992,
Appellant appealed only the denial of recovery for the damage to the front
valance.
8. In a declaration submitted in this
proceeding, the contracting officer stated that the damage to vehicle 11117 was
considered to be ordinary wear and tear "because PS Form 4577 shows only
minor scratches. It is normal for a
seven (7) year old vehicle to show scratches and dents caused by snow, ice,
gravel and road debris and to have missing chrome. . . . There was no evidence of abuse or negligence
by the Postal Service."
(Declaration of Juan R. Daly, Contracting Officer, November 17,
1992)
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 Notice of 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). Regardless of the
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 vehicle 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 vehicle
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
appeal. Id.
We
can give no weight to the contracting officer's conclusion that the damage to
the front valance was ordinary wear and tear as it is based on the erroneous
premise that the vehicle condition report shows only minor scratches (Finding
8). The Form 4577 showed that the
valance was broken (Finding 3), a condition that is different from and more
severe than "minor scratches."
Nevertheless, the burden to demonstrate that the damage exceeded ordinary
wear and tear remains with Appellant, and there is no evidence in the record
that establishes that a broken (as opposed to a scratched) valance exceeds
ordinary wear and tear. Additionally,
there is no evidence that the valance was broken through the act or negligence
of a postal employee or that the nature of the damage is such that the burden
should shift to Respondent to demonstrate the broken valance did not result
from the act or negligence of its employees.
See Jake Sweeney Auto Leasing, Inc., PSBCA No. 2899, 1991
PSBCA LEXIS 23 (April 9, 1991); Postal
Vehicle Supply Service, PSBCA No. 775, 1980 PSBCA LEXIS 24 (June 16,
1980). 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 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