January 28, 1994
Appeal of
JAKE SWEENEY AUTO LEASING,
INC.
Under
Contract No. 381793-86-V-A073
PSBCA
Nos. 3281-84, 3299, & 3300
APPEARANCE
FOR APPELLANT:
Teri
Geraci
APPEARANCE
FOR RESPONDENT:
Samuel
J. Schmidt, Esq.
OPINION OF THE BOARD
Appellant, Jake Sweeney Auto
Leasing, Inc., has appealed from the Contracting Officer's denial, in whole or
in part, of its claims for damage to vehicles leased to Respondent, United
States Postal Service. These appeals are
being decided on the record, in accordance with 39 C.F.R. §955.12.
FINDINGS OF FACT
1. Contract No. 381793-86-V-A073 was awarded to
Appellant on April 4, 1986, and covered the lease of seven vehicles for
use in "Park & Loop" service in Fremont, Ohio. The contract term was May 1, 1986, through
April 24, 1992. (Appeal File Tab
("AF") B).
2.
The contract contained the July 1980 version of PS Form 7476, "U.S.
Postal Service, General Provisions for Vehicle Hire Contracts." Clause GP-6 of the General Provisions
contained the following relevant language:
"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.
In a series of damage claims dated May 20, 1992, Appellant sought the
cost of repairs to six of the vehicles leased under the contract, all of which
were 1986 Chevrolet Chevettes. As the
basis for each claim Appellant stated substantially 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 damage."
Each claim
was accompanied by two estimates, the lower of which corresponded to the amount
of the claim. (AF C).
4.
The Contracting Officer denied the claims, in whole or in part, in
decisions dated July 13, 14, and 16, 1992.
Appellant filed timely appeals.
(AF F).
PSBCA No. 3281 - Vehicle No. 11437
PSBCA No. 3282 - Vehicle No. 11435
PSBCA No. 3299 - Vehicle No. 11450
5. In these appeals, the Forms 4577,
"Hired/Borrowed Vehicle Condition Report," showed a broken grille and
broken front spoiler (valance) on vehicle no. 11437 and broken spoilers on
vehicle nos. 11435 and 11450. In each
case Appellant's claim, in the amount of $143.60, sought only the cost of
replacing the spoiler. The Contracting
Officer conceded that the damage in each case exceeded ordinary wear and tear,
but denied the claims on the basis that the record did not show that the damage
had been caused by Postal Service negligence.
(AF C, D, F).
PSBCA No. 3283 - Vehicle No. 11448
6.
In this appeal, the Form 4577 showed a broken spoiler and scratches on
the hood and on the rear of the vehicle.
Appellant's claim, in the amount of $228.00, sought the cost of
replacing the spoiler and repairing the damage to the hood. The Contracting Officer allowed $79.40 as
payment for the hood damage, which he concluded was the result of Postal
Service employees placing mail (e.g., trays and parcels) on the hood
during loading. As to the spoiler
damage, the Contracting Officer conceded that the damage exceeded ordinary wear
and tear but denied the claim on the basis that Appellant had not shown a
causal connection between the damage and an act or negligence of the Postal
Service. (Id.).
PSBCA No. 3284 - Vehicle No. 11802
7. The Form 4577 in this appeal showed a broken
spoiler, a dent in the left rear quarter panel and a dent in the rear
hatch. Appellant's claim, in the amount
of $358.00, sought the cost of replacing the spoiler and repairing the other
two areas. The Contracting Officer
allowed $90.40 as the cost of repairing the damage to the rear hatch but denied
the rest of the claim. As to the broken
spoiler, the Contracting Officer conceded that the damage was outside ordinary
wear and tear, but denied recovery on the basis that the record did not show that
the damage had been caused by Postal Service negligence. As to the remaining damage, the Contracting
Officer denied recovery on the basis that the damage had not been shown to be
either outside ordinary wear and tear or to have been caused by Postal Service
negligence. (Id.).
PSBCA No. 3300 - Vehicle No. 11929
8. In this appeal, the Form 4577 showed a
notation indicating scratches on the front and rear of the vehicle. Appellant's claim, in the amount of $64.00,
sought the cost of repairing what was stated to be a dent, although only
painting labor (and no body labor) was indicated. The Contracting Officer noted these
inconsistencies, but denied the claim on the basis that the damage, whether
scratches or a dent, had not been shown to be in excess of ordinary wear and
tear or to have been caused by Postal Service negligence. (Id.)
DECISION
In
its Complaints,[1]
Appellant argues that this contract is a mutual benefit bailment contract under
which Respondent, as bailee, is subject to a presumption that any damage to the
bailed property was caused by Respondent's negligence. Appellant also argues that terms of the
"Liability Provisions" [Finding 2] which limit Respondent's liability
with respect to ordinary wear and tear are unenforceable. These arguments have been considered and
rejected by this Board in Jake Sweeney Auto Leasing, Inc., PSBCA Nos.
3091-3094, 3096, 3098, 3122, 3125, 93-1 BCA ¶ 25,363, where we concluded that
the presumption urged by Appellant was inconsistent with the contract language
and that the limitation on liability for ordinary wear and tear was
enforceable. Those conclusions apply
equally to the appeals here.
As the party seeking recovery,
Appellant has the burden of proving that an act or negligence on the part of
Respondent's personnel was the proximate cause of the damage to each vehicle
and that the damage was in excess of ordinary wear and tear or, in the
alternative, that the nature of the damage or other circumstances are such that
the burden of coming forward with evidence should be shifted to
Respondent. E.g., Jake Sweeney
Auto Leasing, Inc., PSBCA Nos. 2784-2788, 2791-2798, 91-3 BCA
¶ 24,278.
Respondent argues that Appellant has
failed to prove in any of the appeals both that the damage exceeded ordinary
wear and tear and that the damage was caused by the act or negligence of an
officer or employee of the Postal Service.
Further, Respondent argues that the evidence does not show that the
burden of coming forward with evidence should be shifted to Respondent.
In PSBCA Nos. 3281-84 and 3299
Appellant seeks the cost of replacing broken front valances. The Contracting Officer conceded that such
damage was beyond ordinary wear and tear.
Thus, our only inquiry is whether Appellant has shown that the damage
was caused by an act or negligence of an officer or employee of the Postal
Service or that the nature of the damage or other circumstances are such that
the burden of coming forward with evidence should be shifted to
Respondent. In these appeals, Appellant
has provided no evidence of causation beyond the fact that the damage
occurred. Therefore, there is no direct
evidence that the damage was caused by Postal Service personnel. Moreover, Appellant has provided no evidence
concerning such matters as the physical construction of valances or concerning
the usual causes of valance damage or other circumstances that might cause us
to conclude that the burden of coming forward with evidence regarding the cause
of the damage should be shifted to Respondent.
See, e.g., Jake Sweeney
Auto Leasing, Inc., PSBCA Nos. 3091-94, 3096, 3098, 3122, 3125, 93-1 BCA
¶ 25,363. Accordingly, these
portions of the appeals are denied.
With respect to the remaining damage
in PSBCA Nos. 3283 and 3284, and the damage in PSBCA No. 3300, Appellant has
failed to provide evidence to show either that the damage was in excess of
ordinary wear and tear, or that the damage was caused by the act or negligence
of Postal Service personnel.
Accordingly, Appellant may not recover on these portions of its appeals.
The appeals are denied.
David I. Brochstein
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman