Brennen v. Aston, No. 97,056.

• Court: Supreme Court of Oklahoma
• Writing for the Court: BOUDREAU, J.
• Citation: 2003 OK 91,84 P.3d 99
• Decision Date: 28 October 2003
• Docket Number: No. 97,056.
• Parties: Trent BRENNEN and Patty Brennen, Plaintiffs/Appellees, v. Travis W. ASTON, Jr., Defendant/Appellant.

84 P.3d 99
2003 OK 91

Trent BRENNEN and Patty Brennen, Plaintiffs/Appellees,
v.
Travis W. ASTON, Jr., Defendant/Appellant

No. 97,056.

Supreme Court of Oklahoma.

October 28, 2003.

84 P.3d 100

H. Gregory Maddux, Tulsa, OK, for Plaintiffs/Appellees

Mark A. Warman, Tulsa, OK, for Defendant/Appellant.

BOUDREAU, J.

¶ 1 Trent and Patty Brennen (Plaintiffs/Appellees) purchased a 1998 Dodge quad cab truck for $35,000. Trent Brennen (Brennen) described the truck as "flawless" before January 1999, when Travis Aston (Defendant) and the Brennens were involved in a car accident, damaging the Brennens' truck. The passenger side of the Brennens' truck, including the fenders, doors and a wheel had to be replaced. Brennen brought suit against Aston for property damages, claiming his vehicle had depreciated in value even after it had been fully repaired.¹

¶ 2 At trial, an expert on behalf of Brennen testified that after repairs to the truck in the amount of $8,000, the value of the truck was $3,500 less than its value prior to the accident.² The expert witness valued the truck before the accident at $32,000 and $28,500 after the collision and repairs. The expert testified that the depreciation in value was unconnected with the quality of the repair, which he testified to be excellent, but rather was caused by the nature and extent of the damage sustained by the vehicle.

¶ 3 During the trial, Aston objected to Brennen presenting any evidence relating to the issue of whether his vehicle had depreciated in value after it had been repaired. He argued that diminution in value is not a proper element of damages when a vehicle is repairable, citing City of Oklahoma City v. Wilcoxson, 1935 OK 767, 48 P.2d 1039, 1042 and also Coe v. Esau, 1963 OK 1, 377 P.2d 815, 820. Aston also demurred to Brennen's claim for depreciation at the conclusion of the evidence, as well as a motion for directed verdict on the issue. The trial court overruled all objections and motions brought by Aston on the issue.

¶ 4 In instructing the jury, the trial court provided the jury with Oklahoma Uniform Jury Instruction 4.14.³ OUJI 4.14 provides:

If you decide for [Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate him for the injury to the [insert description of property]. That amount is:

84 P.3d 101

1. The reasonable cost of repairing the [insert description of property], plus depreciation, if any, to the [insert description of property]. "Depreciation" means the difference between the market value of the property immediately before being injured and its market value after repairs have been or would be made.

2. The reasonable cost of renting a similar [insert description of property] during the time reasonably required to make the necessary repairs of the injury caused by [Defendant].

(emphasis added).

¶ 5 After deliberating, the jury awarded Brennen $1750 for depreciation to his truck.⁴ The trial court also awarded Brennen attorney fees and costs. Aston appealed, arguing that when a vehicle has been damaged and fully repaired depreciation is not a proper element of damages. The Court of Civil Appeals agreed with Aston and reversed Brennen's award for the post-repair diminution in value of his truck. In its opinion, the Court of Civil Appeals stated:

To the extent that Instruction No. 4.14 permits recovery of damages for the post-repair depreciation value of a damaged vehicle, Instruction No. 4.14 does not accurately state the law of Oklahoma.

¶ 6 This Court granted certiorari to decide the first impression issue of whether OUJI instruction 4.14 correctly states the law when it instructs that a vehicle owner can recover damages for post-repair depreciation.

I. Standard of Review

¶ 7 The issue in controversy, whether Oklahoma law permits recovery for post-repair depreciation of chattel property, presents a question of law. Questions of law stand before the appellate court for de novo review. Fraternal Order of Police Lodge 108 v. City of Ardmore, 2002 OK 19, 44 P.3d 569, 571; Jackson v. Jackson, 2002 OK 25, 45 P.3d 418, 422. In reexamining the legal rulings of the trial court, the appellate court exercises plenary, independent and non-deferential authority. Fraternal Order of Police Lodge 108 v. City of Ardmore, 44 P.3d at 571.

II. Damages

¶ 8 Oklahoma law generally provides that an injured party is to be compensated for "all" detriment proximately caused by the negligence of another. 23 O.S.2001, § 61. Stated otherwise, an injured party is to be placed in as near a position as possible to that which he would have been, but for the negligence of the other party. See King v. Neal, 2001 OK CIV APP 11, 19 P.3d 899, 902 ("By statute, the measure of damages for a tort, such as negligence, `is the amount which will compensate for all detriment proximately caused ... whether it could have been anticipated or not.'") (emphasis in original); see also Sun Ridge Investors, Ltd. v. Parker, 1998 OK 22, 956 P.2d 876, 878 (Damages in a contract action are designed to place aggrieved party in position he would have occupied had the breach not occurred).

¶ 9 The rule in Oklahoma relative to the measure of damages for injury to personal property, which has been partially damaged by the negligence of another, can be stated as follows: where the injury is susceptible to repair at reasonable expense, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. Coe v. Esau, 377 P.2d at 820; Chambers v. Cunningham, 153 Okla. 129, 1931 OK 732, 5 P.2d 378, 379-80; Allied Hotels, Ltd. v. Barden, 1964 OK 16, 389 P.2d 968, 972; Marland Refining Co. v. Duffy, 94 Okla. 16, 1923 OK 1039, 220 P. 846, 851; Carnes v. Ditzenberger, 163 Okla. 146, 1933 OK 249, 21 P.2d 756, 758; Weleetka Light and Water Co. v. Northrop, 42 Okla. 561, 1914 OK 245, 140 P. 1140, 1141. Although the rule is a long-standing one, none of the cases identifying the rule have specifically addressed the issue of whether damages are limited to the cost of repairs actually made when it is shown that the property is worth less after it is repaired than before the injury.

84 P.3d 102

¶ 10 While this Court has not specifically addressed the issue of whether a vehicle owner can recover damages for post-repair depreciation, almost all jurisdictions which have examined the issue allow recovery for the cost of repairs made plus the diminution in value of the personal property upon a proper showing. See Halferty v. Hawkeye Dodge, Inc., 158 N.W.2d 750, 753-54 (Iowa 1968) (If the value of the repaired or restored property is less than the value of the property before the injury, such difference in value is also allowed in addition to the cost of repair or restoration); Hawkeye Motors, Inc. v. McDowell, 541 N.W.2d 914, 917 (Iowa App.1995); Thomas v. Global Boat Builders & Repairmen, Inc., 482 So.2d 1112, 1115 (Miss.1986) (Post-repair diminution was allowed as damages but, case called into doubt regarding issue of whether an owner could testify to the post-repair value of his property, without additional evidence of diminution in value); Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649, 652 (1955) (The damages are not limited to the cost of repairs actually made where it is shown that they did not put the property in as good a condition as it was before the injury); Averett v. Shircliff, 218 Va. 202, 237 S.E.2d 92, 93 n. 1 (1977) (Most jurisdictions have held that where an automobile has been damaged but not totally destroyed the measure of damages is the cost of repairs plus any amount of depreciation in value of the vehicle as repaired.); Ellis v. King, 184 W.Va. 227, 400 S.E.2d 235, 236 (1990) (If, after repair, the damaged vehicle cannot be returned to its condition prior to the accident, we believe that damages for diminution in value are recoverable); Meredith GMC, Inc. v. Garner, 78 Wyo. 396, 328 P.2d 371, 374 (1958); Broadie v. Randall, 114 Kan. 92, 216 P. 1103, 1104 (Kan.1923)

¶ 11 Further, the American Law Institute has adopted the "cost of repair plus remaining depreciation" measure of recovery for damages to personal property. The Restatement of Torts, 2d Ed., § 928, states:

When one is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm and the value after the harm or, at his election in an appropriate case, the reasonable cost of repair or restoration, with due allowance for any difference between the original value and the value after repairs....

¶ 12 In sum, the overwhelming weight of legal authority supports the rule that damages are not limited to the cost of repairs actually made where it is shown that repairs failed to bring the property up to the condition it was in prior to the damage. In such cases, the cost of repairs made plus the diminution in value of the property will ordinarily be the proper measure of damages. Insofar as OUJI instruction 4.14 permits recovery of damages for the post-repair depreciation in value of a damaged item of personal property, it correctly states the law of Oklahoma.

¶ 13 CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, HARGRAVE, and WINCHESTER, JJ., concur.

KAUGER, J., concurs in part and dissents in part by separate writing.

SUMMERS, J., disqualified.

KAUGER, J. concurring in part and dissenting in part:

¶ 1 I agree with the majority that Oklahoma law permits recovery for post-repair depreciation in value and that Oklahoma Uniform Jury Instruction 4.14⁵ correctly states

84 P.3d 103

the law insofar as it permits an award for post-repair depreciation of...