May 7, 1993

Appeal of

JAKE SWEENEY AUTO LEASING, INC.

Under Contract No. 252489-86-V-A104

PSBCA Nos. 3295-3298

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 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 25, 1986, the Postal Service awarded Appellant contract number 252489-86-V-A104 for the lease of four passenger vehicles for use at the Bloomfield Hills, Michigan Post Office (Appeal File for PSBCA Nos. 3295-3298 Tab ("AF") 1). The contract expired April 3, 1992 (id.).

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 the vehicles, seeking the repair cost reflected in the lower of two repair estimates submitted with each claim (AF 2-5). The estimates and claims for three of the vehicles covered only replacement of the front valance; those for the fourth vehicle reflected repair to the right rear quarter panel and hatch in addition to replacement of the valance (id.).

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." (Id.)

5. The vehicles were damaged while in the custody of the Postal Service. The "Hired/Borrowed Vehicle Condition Report," PS Form 4577, prepared April 9, 1992, for each vehicle when it was returned to Appellant shows damage consistent with the repair work shown on Appellant's estimates (id.).

6. In separate final decisions, the contracting officer denied the claims, concluding the damage was ordinary wear and tear for which the Postal Service was not liable under the contract (id.).

7. These appeals followed. Each claim was the subject of a separate appeal to the Board. Although separately docketed the appeals have been consolidated for decision.

DECISION

Appellant argues that under bailment principles custody of the leased vehicles is sufficient to make the Postal Service liable for any unexplained damage that 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 4; Appellant's August 3, 1992 Notices of Appeal that 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 agreed upon by the parties and set forth in the liability provision of the contract governs. See Madigan v. Hobin Lumber Co., 986 F.2d 1401, 1403 (Fed. Cir. 1993); Do-Well Mach. Shop v. United States, 870 F.2d 637, 640-641 (Fed. Cir. 1989).

To recover under the contract, Appellant has the burden of proving by a preponderance of the evidence 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. 3286-94, 3304, 3305, 1993 WL 105307, March 24, 1993, and cases cited therein. Assertions made in pleadings, notices of appeal and claim letters are not proof of facts. Id.; 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. While the completed Hired/Borrowed Vehicle Condition Report, 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 "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. 2821-2826, 91-2 BCA ¶ 23,891 at 119,698. The repair estimates are consistent with the damage shown on the Vehicle Condition Reports (Finding 5), but add nothing to the Board's understanding of the nature of the damage.

The Postal Service's failure to supply a report explaining how the vehicles were damaged does not by itself provide a basis for concluding that the damage exceeded ordinary wear and tear or was caused by an act or negligence of a Postal Service employee. 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. Appellant has failed to present sufficient evidence to show that the damage to the vehicles exceeded ordinary wear and tear or was caused by an act or negligence of a Postal Service employee .

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