May 19, 1994
Appeal of
MIKE ALBERT LEASING, INC.
Under Contract No. 169990-90-B-A006
PSBCA No. 3511
APPEARANCE FOR APPELLANT:
Tim A. Graham
APPEARANCE FOR RESPONDENT:
Maria R. Fuhrmann, Esq.
OPINION OF THE BOARD
Appellant, Mike Albert Leasing, Inc., has appealed from the final decision of a Contracting Officer, denying its claim for damage to a vehicle leased to Respondent, United States Postal Service, under a vehicle hire contract. The appeal has been submitted on the record without a hearing. Although afforded an opportunity to do so, neither party filed a brief. Respondent has advised the Board that the contract between the parties cannot be located. Thus, the contract is not in the record.
FINDINGS OF FACT
1. On August 12, 1993, Appellant submitted a claim under contract no. 169990-90-B-A006 in the amount of $455.37 to the Contracting Officer for damage to vehicle no. 68757, a Chevrolet Chevette. Attached to Appellant's claim and its Complaint in this appeal was a PS Form 4577, "Leased Vehicle Condition Report" (Nov. 1987), signed by Appellant and an official of Respondent, showing the following damage to the vehicle when it was returned to Appellant by Respondent: Left side -- dent; Right side -- dents. The amount sought was supported by the lower of two estimates. Both estimates showed repairs required for the dents to the vehicle. A photograph submitted with Appellant's Complaint shows a severe dent to the vehicle's left front fender (Complaint). The Form 4577 reflects the vehicle was undamaged when delivered into Respondent's custody.
2. By final decision, dated September 7, 1993, the Contracting Officer denied Appellant's claim in its entirety on the basis that Appellant had presented no evidence that the damage to the vehicle was the result of an act or negligence of a Postal Service employee and that the damage was the result of normal wear and tear (Complaint).
DECISION
Appellant's Complaint concedes that the damage to the right side of the vehicle may have been the result of normal wear and tear. Thus, Appellant seeks recovery only for the repair of the dent to the vehicle's left front fender ($195.20). Appellant appended to its Complaint a copy of the Condition Report, PS Form 4577, which shows the physical condition of the vehicle upon its return to Appellant. The form was signed by an official of Respondent, indicating agreement that the Condition Report, which showed damage to the left side of the vehicle, accurately depicted the damage. Appellant's photograph, attached to its Complaint, shows a severe dent to the vehicle's left front fender. In his final decision the Contracting Officer did not take issue with the existence of the damage to the vehicle's left front fender. The record therefore establishes that the damage to the vehicle's left front fender, as alleged in Appellant's Complaint, in fact, occurred while the vehicle was in Respondent's custody.
Appellant's rental of its vehicle to Respondent created a bailment for the parties' mutual benefit. Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3091-94, 3096, 3098, 3122, 3125, 93-1 BCA ¶ 25,363, and cases cited therein. Under bailment principles, Respondent, as the bailee, was required to exercise reasonable care in the handling of Appellant's vehicle. Manufactured Housing Services, Inc., ASBCA Nos. 41269-72, 92-3 BCA ¶ 25,159; C. D. Pickett, ASBCA No. 31318, 88-2 BCA ¶ 20,538.
Appellant established that the damage to the vehicle occurred while in Respondent's custody, and Respondent has failed to provide any defense to Appellant's claim except for the contents of the Contracting Officer's final decision. However, the Contracting Officer's final decision relies upon a standard of care or measure of physical damage not contained or explained in the record in this appeal. The record contains no contractual provision of an exculpatory nature shifting the risk of payment for vehicle damage from Respondent to Appellant. Neither does the record contain any contractual provision which limits the extent of compensable damage in terms of severity.[1]
Appellant's appeal is therefore granted. Appellant is entitled to the payment of $195.20.
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