March 24, 1993

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No. 252489-86-V-A139

PSBCA Nos. 3286-3294, 3304, 3305

APPEARANCE FOR APPELLANT:

Teri Geraci

APPEARANCE FOR RESPONDENT:

Maria R. Fuhrmann, Esq.

OPINION OF THE BOARD

Appellant, Jake Sweeney Auto Leasing, Inc., appeals the denial of its claims for the cost to repair damage to 11 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 Appellant contract number 252489-86-V-A139 for the lease of 30 passenger vehicles for use at the Southfield, Michigan Post Office (Appeal File for PSBCA Nos. 3286-3294, 3304, 3305 Tab ("AF") 1).

2. The contract included the "General Provisions for Vehicle Hire Contracts," PS Form 7476, July 1980, General Provision GP-6 of which 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 11 of the vehicles covered by the lease, seeking the repair cost reflected in the lower of two repair estimates submitted with each claim (AF 2-12). Repair or replacement of each vehicle's front valance was shown on the estimates, and the claim for each vehicle included the cost of the valance work (id.). The cost of other repairs, including the cost to repair damage to the right rear quarter panels on two of the vehicles, was shown on a number of the estimates and included in the claims (AF 2, 3, 4, 9, 10, 12).

4. In each claim, 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." (AF 2-12)

5. The vehicles were damaged while in the custody of the Postal Service. The "Hired/Borrowed Vehicle Condition Report," PS Form 4577, prepared for each vehicle when it was returned to Appellant, shows damage consistent with the repair work shown on Appellant's estimates and claimed by Appellant (id.).

6. In separate final decisions, the contracting officer denied the parts of the claims for damage to the right rear quarter panels of the two vehicles that incurred such damage (AF 2, 10) and all of the claims or parts of claims that related to damage to the vehicles' front valances, concluding the right rear quarter panel and valance damage was ordinary wear and tear for which the Postal Service was not liable under the contract (AF 2-12). The contracting officer agreed to pay for the other work included in the claims (AF 2, 3, 4, 9, 12).

7. These appeals followed. Each of the claims has been separately docketed but consolidated for decision.

DECISION

Appellant argues that under bailment principles custody of the leased vehicles is sufficient to make the Postal Service responsible for any unexplained damage which occurs while the vehicles are in its possession and that the absence of any report from Respondent explaining the damage, therefore, renders Respondent liable for the repair costs (Finding 5; Appellant's August 3, 1992 Notices of Appeal which were accepted as the complaints in these appeals). It also argues that contract provisions whereby one party seeks to shift liability for its own negligence to the other are unenforceable as violating public policy (id.).

The Board has previously rejected Appellant's bailment arguments in Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3091-3094, 3096, 3098, 3122, 3125, 93-1 BCA ¶ 25,363. 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. The allocation of liability for damage to the vehicles as set forth in the liability provision of the contract governs.

To recover under the contract, Appellant has the burden of proving 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. Appellant argues that the contract does not explicitly place on either party the burden of proving the cause of damage to the leased vehicles and as Respondent's custody of the vehicles during the contract term puts it in the best position to account for any damage, Respondent should bear the burden of explaining vehicle damage. However, it is a general principal of government contracting that the party asserting the claim has the burden of proving it:

"It is well established that the contractor bears the burden of proving affirmative claims against the Government. . . . The contractor must establish its entitlement by a preponderance of the evidence." (Fred A. Arnold, Inc., ASBCA Nos. 20150, 22154, 84-3 BCA ¶ 17,624 at 87,843 (citations omitted); see Wunderlich Contracting v. United States, 173 Ct. Cl. 180, 199, 351 F.2d 956, 968 (1965); Nicholas Nova Constr. Co., PSBCA No. 1206, 85‑1 BCA ¶ 17,846 at 89,334)

It is this principal that places the burden upon Appellant to prove the essential elements of its claim. See Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3154, 3155, 3213, __ BCA ¶ ____, November 23, 1992; Jake Sweeney Auto Leasing, PSBCA Nos. 2643-2675, 90-2 BCA ¶ 22,766 at 114,274.

The contract provides that the Postal Service will not be liable for ordinary wear and tear (Finding 2), and as an agreed-upon contract term, the liability provision must be enforced even if the result is to limit or condition Appellant's remedies. See Madigan v. Hobin Lumber Co., No. 92-1056, slip op. at 5 (Fed. Cir. February 25, 1993); Do-Well Mach. Shop v. United States, 870 F.2d 637, 640-641 (Fed. Cir. 1989). Therefore, in order to prevail on its affirmative claim for damage to its vehicles, Appellant must prove by a preponderance of the evidence that the damage exceeded ordinary wear and tear. Assertions made in pleadings, notices of appeal and claim letters are not proof of facts. Jake Sweeney Auto Leasing, supra; E. Patti & Sons, Inc., PSBCA Nos. 1024, 1100, 85‑2 BCA ¶ 18,144 at 91,078.

Appellant has submitted insufficient evidence of the nature of the damage to the vehicles and none regarding the standard of ordinary wear and tear to be applied under this contract. The completed Form 4577 (Finding 5) for each vehicle is evidence of the condition of the vehicle when it was returned to Appellant. The information on that form, however, "does not show that the damage was caused by the act or negligence of a Postal Service employee or was other than ordinary wear and tear." Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 2821-2626, 91-2 BCA ¶ 23,891 at 119,698. 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.

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