July 27, 1994
Appeal of
C.M.R. AUTO LEASING
Under Contract No. 389990-91-B-A018
PSBCA No. 3467
APPEARANCE FOR APPELLANT:
Russell E. Shafffer, Esq.
APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.
OPINION OF THE BOARD
Appellant, C.M.R. Leasing ("C.M.R."), has filed an appeal from a final decision of a Contracting Officer, denying C.M.R.'s claim for damage to a leased vehicle in the amount of $2,204.64. The appeal has been submitted on the record without a hearing at the election of the parties.
FINDINGS OF FACT
1. On December 17, 1990, Respondent, United States Postal Service, awarded C.M.R. vehicle hire contract no. 389990-91-B-A018 for the lease of 16 Chevrolet Chevettes for the period from January 12, 1991 to April 26, 1996. The contract unit price was $6.00 per vehicle per day for a total contract amount of $144,540. The vehicles were to be used for park and loop service in Toledo, Ohio (Appeal File (AF)-A).
2. The contract contained "General Provisions for Vehicle Hire Contracts" (PS Form 7476, July 1980). GP-6, "Liability Provisions," stated in pertinent part:
"(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. On February 22, 1993, C.M.R.'s vehicle with license no. OW 5036 (Ohio) was parked by a Postal Service carrier near the corner of South Detroit and South Street, Toledo, Ohio prior to 11:00 a.m. At approximately 11:10 a.m. the vehicle was struck on the left rear by another vehicle, a Ford pick-up truck. The driver of the pick-up truck did not stop at the scene of the accident, but instead drove away (AF-B, C, D).
4. Toledo Municipal Code section 351.07(19) states that no person shall "stand or park a vehicle within thirty feet of, and on the approach to, any yield sign, stop sign, flashing beacon or traffic signal" (AF-D).[1]
5. The intersection of South Detroit and South Street, Toledo, Ohio, was controlled by a traffic signal (Id.).
6. The police report of the accident states that C.M.R.'s vehicle was parked on South Street, 25 feet west of the intersection of South Detroit. The report further states that the vehicle was legally parked (AF-D).
7. Respondent's employees took measurements of the vehicle's distance from the corner of South Detroit and South Street at the time of the accident. According to those measurements the vehicle was in excess of thirty feet from the intersection (AF-D; Nagel Declaration).
8. The record does not indicate the distance of the traffic signal from the intersection closest to the accident location. However, photographs in the record taken by Respondent show the controlling traffic signal to be well beyond the entrance to the intersection (Id.)
9. On March 18, 1993, C.M.R. submitted a claim for damage to vehicle license no. OW 5036 (Ohio) in the amount of $2204.64, attributable to the February 22, 1993 accident. The claim stated that Respondent was considered negligent as the vehicle was illegally parked at the time of the accident (AF-B).
10. Appellant's claim was denied by the Contracting Officer in a final decision dated May 7, 1993. The decision stated that the vehicle was legally parked at the time of the accident and therefore that Appellant had not established Respondent's liability under contract clause GP-6, "Liability Provisions" (AF-E). A timely appeal was thereafter taken by Appellant.
DECISION
It is Appellant's contention that Respondent is primarily liable for the cost to repair its vehicle, as the vehicle was parked too close to the South Detroit and South Street intersection at the time of the accident. In this regard Appellant relies on the accident report, prepared by the investigating police officer, which states that the vehicle was parked 25 feet from the intersection. Thus, reasons Appellant, the vehicle was parked in violation of Toledo Municipal Code Section 351.07(19) (Finding of Fact No. 4), and the placement of the vehicle in such illegal position by the carrier was the proximate cause of the accident.
Respondent contends there was no negligence on its part as the vehicle was legally parked, as evidenced by its measurements which showed the vehicle to be more than 30 feet from the intersection. Respondent further contends that the Toledo Code prohibits parking 30 feet from a traffic signal, not from the intersection, and that the evidence in the record establishes the vehicle was parked more than 30 feet from the traffic signal controlling the intersection. Respondent also relies on the statement in the accident report which states that the vehicle was legally parked at the time of the accident. Additionally, relying on Florida Postal Leasing, Inc., PSBCA No. 1209, 84-1 BCA ¶ 17,203, Respondent contends that Appellant has not proven the damage to the vehicle was caused by the negligence of Respondent's employee.
We agree with Respondent. Considering the record as a whole it appears the vehicle was parked more than 30 feet from the intersection nearest the accident. Respondent's measurements support this conclusion. The police report itself stated the vehicle was legally parked. There is no evidence in the record that the police officer actually measured the distance from the intersection to the vehicle. Thus, the 25 feet reference was most probably an approximation.
The actual code prohibition is that a vehicle may not be parked more than 30 feet from a traffic signal. The evidence in the record does not establish the actual distance between the vehicle and the controlling traffic signal at the time of the accident. However photographs submitted by Respondent show that the traffic signal is well beyond the entrance to the South Detroit and South Street intersection, and therefore well beyond the 30 foot prohibition.
Further, assuming the vehicle was illegally parked, Appellant has not established Respondent's liability under the contract's "Liability Provisions." In order to recover under this provision a contractor must prove the damage was caused by the negligence of Respondent's employee. There is no indication in the record that the location of the parked vehicle was the primary, or even a contributing, factor in the hit and run accident. Appellant has presented no evidence in this regard. See Florida Postal Leasing, Inc., supra. Accordingly, the appeal is denied.
James D. Finn, Jr.
Administrative Judge
Vice Chairman
I Concur:
James A. Cohen
Administrative Judge
Chairman
I Concur:
David I. Brochstein
Administrative Judge
Board Member