March 15, 1993

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No.169991-87-V-A-040

PSBCA No. 3279

 

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 of repairing damage to 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 January 21, 1987, the Postal Service awarded contract number 169991-87-V-A-040 to Appellant for the lease of 9 passenger vehicles for use in

 "Park & Loop" service at three post offices in Indiana (Appeal File for PSBCA Nos 3274-3279 Tab ("AF") 7).

            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 (11836) received a dent in the left door (id.).  The "Hired/Borrowed Vehicle Condition Report," PS Form 4577, prepared by the parties when the vehicle was returned to Appellant, showed a dent in the left door as the only damage to the vehicle (id.).

            4.  On or about March 3, 1992, Appellant filed a claim in the amount of $265 for the cost to repair damage to the left door and to replace the front valance on vehicle 11836 (id.).  Appellant based its claim on the lower of two estimates submitted with the claim, and, although the estimate does not fully distinguish the cost of replacing the valance from the cost to repair the door, it is apparent that the $265 is for the cost of replacing the valance as well as for the cost of repairing the dent in the door (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 considered only the dent in the left door and recommended that the claim for its repair 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 Appellant's claim, concluding that there was no information to establish Postal Service liability for the damage because there was no evidence any of the damage was caused by negligence of a postal employee (id.).  Although the final decision refers to the $265 total of the claim, it contains no mention of the specific damage being considered.

            7.  Appellant's August 3, 1992 notice of its appeal of the contracting officer's final decision was docketed August 11, 1992.

            8.  In a declaration submitted for use in this appeal as well as in PSBCA Nos. 3274-3278, the contracting officer concluded that the damage to the door of vehicle 11836 resulted from normal wear and tear: "A claim in the amount of $265.00 was made for damage to the left door.  (AF Tab 7).  This damage was considered to be ordinary wear and tear because PS Form 4577 showed only a minor dent.  It is normal for a five (5) year old vehicle to have a dent from road conditions and use."  (Declaration of Juan R. Daly, Contracting Officer, dated November 18, 1992 ("Daly Declaration"))

            9.  In other parts of his declaration pertaining to vehicles under other contracts, the contracting officer stated his view repeatedly that for vehicles leased to the Postal Service for "Park & Loop" service, as was vehicle 11836,

 valance damage is to be expected and is normal wear and tear (Daly Declaration, ¶ 4 a, b, c, e).

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 contract provisions seeking to shift that liability to the contractor are unenforceable (Appellant's August 3, 1992 Notice of Appeal dated August 3, 1992 which was accepted as the complaint in this matter).  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 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 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 appeals.  Id.

            There is no evidence in the record that would contradict the contracting officer's determination that the dent to the left door did not exceed ordinary wear and tear and was not shown to have been caused by the negligence of a postal employee (Findings 5, 6, 8).  Appellant has failed to meet its burden of proof regarding this damage.

            The contracting officer has not considered the part of Appellant's claim that sought the cost to replace the front valance (Findings 6, 8).  The claims reviewer did not address the valance in his recommendation to the contracting officer (Finding 5), and, even though the contracting officer purported to deny the entire $265 claim, his final decision did not specifically address the claim for damage to the valance (Finding 6).  His declaration establishes that he considered only the claim for repair of the door (Finding 8).

            The absence of a contracting officer's final decision on Appellant's valance claim, however, does not affect the Board's jurisdiction under the circumstances of this Appeal.  Under the Contract Disputes Act of 1978, failure of the contracting officer to issue a final decision on a claim of $50,000 or less within 60 days of receipt (41 U.S.C. §605 (c)(2)) will be deemed a denial of the claim which can be the basis of a contractor appeal to a board or court as authorized by the Act.  41 U.S.C. §605 (c)(5); Rice King, ASBCA No. 43352, 92-2 BCA ¶ 24,805.  Therefore, the contracting officer's failure to decide the valance portion of Appellant's claim became appealable 61 days after its March 3, 1992 submission (Finding 4).  Appellant's August 3, 1992 notice of appeal (Finding 7) brought that part of its claim before the Board along with the claim for repair of the door, which was specifically denied by the contracting officer.

             We have discretion under the Act to stay the appeal to obtain a contracting officer's decision on the valance claim.  41 U.S.C. §605 (c)(5); Emerson Electric Company, ASBCA No. 31184, 86-2 BCA ¶ 18,979.  In this situation, however, we see no purpose in doing so as in the similar claims the contracting officer addressed in his declaration, he expressed clearly his view that valance damage to a vehicle in Park & Loop service is normal wear and tear (Finding 9).  See Emerson Electric Company, supra.  Accordingly, we will address the valance claim in this decision.

            The valance claim suffers from the same deficiency as the door claim in that there is no evidence in the record that the damage to the valance exceeded ordinary wear and tear and was caused by the act or negligence of a postal employee.  The absence of evidence to carry Appellant's burden of proving those

elements of its claim for damage to the valance requires denial of this part of the appeal.

            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 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 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