November 30, 2001

Appeal of

 

ALLSTATE LEASING, INC.

 

Under Contract No. 475630-96-B-1745

PSBCA No. 4788

 

APPEARANCE FOR APPELLANT:

Edward J. Puls, Jr., Esq.

 

APPEARANCE FOR RESPONDENT:

Patrice R. Dickey, Esq.

 

OPINION OF THE BOARD

            Appellant, Allstate Leasing, Inc., has appealed from a contracting officer's decision denying its claim for the cost of repairing a vehicle leased to Respondent, United States Postal Service.  The appeal is being decided on the record under the Board's Accelerated procedure.  39 C.F.R. §§955.12, 955.13.

FINDINGS OF FACT

            1.  Contract No. 475630-96-B-1745 was awarded to Appellant on June 17, 1996.  Under the contract, Respondent leased 20 mini-vans for use in "park and loop" service in Ft. Lauderdale, Florida.  In this type of service, carriers use the vehicles as moving containers for the mail, parking the vehicles many times to deliver segments of the route on foot.  The term of the contract was from August 31, 1996, through August 30, 2002.  (Appeal File, Tab (“AF”) 1).

            2.  Clause G-5 ("Liability Requirements") provided, in part, that,

"The Postal Service will 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 or her employment. . . .  In no event will the Postal Service be responsible for ordinary wear and tear which includes damage to vehicles from flying rocks and debris, substandard streets and roads, minor dents and scratches to the sides of vehicles from the doors of other vehicles in parking lots and garages, inclement weather conditions and the regular passage of time.”  (AF 1, Contract Clause G-5, LIABILITY REQUIREMENTS – COMMERCIAL LEASE (Clause OB-469) (January 1991)).

 

            3.  On April 3, 2000, the carrier using one of the vehicles, No. 31201, was stranded on his route when the driver’s door jammed and could not be opened.  Appellant’s local service company picked up the vehicle and returned it to the shop for repairs.  (AF 2).

            4.  A hinge on the driver’s door had failed, allowing the door to open further than intended.  As a result, the door and the adjacent left fender were damaged.  Appellant’s shop replaced the door and hinges and repaired the fender for a total cost of $885 (including a $25 pick up fee).  (AF 2; Declaration of Walter Dobson dated September 7, 2001).

            5.  The hinge and door on this vehicle had been repaired three times previously (AF 2; Declaration of Walter Dobson dated September 7, 2001).

            6.  On June 30, 2000, Appellant submitted a claim in the amount of $885 for the damage to the door and fender (AF 2).

            7.  By final decision dated March 23, 2001, the contracting officer denied the claim (AF 3), and Appellant filed a timely appeal (AF 4).

DECISION

            In general, to recover for damage to its vehicles, Appellant has the burden of proving that the proximate cause of the damage was the act or negligence of an officer or employee of the Postal Service and that the damage exceeded ordinary wear and tear.  Jake Sweeney Auto Leasing, Inc., PSBCA Nos. 3286-94, 3304, 3305, 93-3 BCA ¶ 25,945, and cases cited therein; Jake Sweeney Auto Leasing, Inc., PSBCA No. 2859-2862, 92-1 BCA ¶ 24,444.

            Appellant argues that repeated opening and closing of the door could not be considered normal use.  However, the contract states the nature of the use to which the vehicles will be put, and the evidence establishes no more than that the hinge assembly failed repeatedly in the ordinary, expected use of the vehicle on a park and loop route (Findings 4, 5).[1]   Additionally, Appellant argues that it was negligent of the carrier to open the door beyond the normal limit.  However, Appellant has not shown that the carrier’s action was negligent or caused the failure of the hinge.  Accordingly, Appellant has not demonstrated by a preponderance of the evidence that the damage to the vehicle was the result of the act or negligence of Respondent’s employee or that it was other than ordinary wear and tear.

            The appeal is denied.

Norman D. Menegat

Administrative Judge

Board Member

 

I concur:

James A. Cohen

Administrative Judge

Chairman


            [1]  Appellant has argued that the specific examples of damage listed in the Liability Requirements clause (Finding 2) are the only types of damage included within the definition of ordinary wear and tear.  However, the Board has concluded that the definition of "ordinary wear and tear" is not so limited.  Allstate Leasing, Inc., PSBCA No. 4787, 2001 PSBCA LEXIS 16, *17, November 8, 2001.