Freightliner Chattanooga, LLC v. Whitmire

• Decision Date: 07 July 2003
• Docket Number: No. A03A0689.,A03A0689.
• Citation: Freightliner Chattanooga, LLC v. Whitmire, 262 Ga.App. 157, 584 S.E.2d 724 (Ga. App. 2003)
• Parties: FREIGHTLINER CHATTANOOGA, LLC v. WHITMIRE.
• Court: Georgia Court of Appeals

584 S.E.2d 724

262 Ga. App. 157

FREIGHTLINER CHATTANOOGA, LLC v. WHITMIRE.

No. A03A0689.

Court of Appeals of Georgia.

July 7, 2003.

Clifton M. Patty, Jr., Ringgold, Christopher C. Young, for appellant.

Kennedy, Koontz & Farinash, Shannon G. Scearce, Richard T. Klingler, Chattanooga, TN, for appellee. ADAMS, Judge.

Mark Whitmire filed suit against Freightliner Chattanooga, LLC for breach of contract and attorney fees claiming that the company made defective repairs to his truck. At trial, the jury awarded Whitmire $89,522 in compensatory damages and $11,000 in attorney fees. Freightliner appeals following the denial of its motions for directed verdict and for new trial, asserting that there was insufficient evidence to support the jury's verdict. We affirm.

In considering Freightliner's claims on appeal we construe the evidence to uphold the jury's verdict and determine whether any evidence authorizes the verdict. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System of &c., 256 Ga.App. 475(2), 568 S.E.2d 798 (2002); Bicknell v. Joyce Sportswear Co., 173 Ga.App. 897(1), 328 S.E.2d 564 (1985). Viewed in that light, the record shows that Freightliner is an independent heavy truck dealership that sells and repairs heavy trucks. Whitmire is an independent hauler in the trucking business, who operated at various times under the names Mark Whitmire Trucking and AAA Asphalt. In connection with his business, Whitmire owned a 1994 Ford dump truck, which he used for hauling asphalt and other materials. Whitmire purchased the truck in new condition from a Birmingham, Alabama dealership in 1995.

On September 9, 1998, Whitmire's stepson, Chad Tinker, was driving the dump truck as Whitmire's employee. As Tinker drove across a train track, he collided with an oncoming train, damaging the truck's right passenger side. Later that day, the truck was towed to Freightliner's dealership in Ringgold, Georgia, for repairs. Before beginning work, Freightliner prepared an estimate in the amount of $11,468.72. State Farm, Whitmire's insurance company, authorized payment of almost $11,000 toward the repairs on September 14, 1998.

Whitmire, however, was concerned that the initial estimate did not address all of the damage to the truck, especially with regard to the frame and the transmission. He had hired an attorney to help him interpret whether his insurance policy provided for the rental of a dump truck during the repair period, and he subsequently asked the attorney to correspond with Freightliner to express his concerns regarding the repairs. On September 17, 1998, the attorney wrote Freightliner a letter raising a number of questions about the initial estimate. In particular, the letter questioned Freightliner's failure to fully address possible damage to the transmission and frame of the truck.

Although Whitmire subsequently authorized Freightliner to begin repairing the truck, this authorization was given with the understanding that should the need for additional parts and/or repairs arise, Freightliner would contact State Farm and request further authorization. Whitmire also told Freightliner that it was very important that the truck be repaired correctly and in a timely fashion, because he needed the truck to operate his business. He was especially concerned about losing his senior position on the call list with Southeastern Materials, Inc. for which he performed the majority of his hauling services. Based upon his understanding that the work would be performed in a prompt and thorough fashion, Whitmire signed the final authorization to begin repairs on September 21, 1998, but he noted again on the authorization that he did not believe that the initial estimate completely addressed all of the truck's damage.

Gene Humphreys, Freightliner's body shop manager, understood that the company's agreement with Whitmire was to deliver the truck in pre-collision condition. He also understood the importance of getting the repairs done quickly because the truck was essential to Whitmire's business and to maintaining his position with Southeastern. He told Whitmire that the repairs would take approximately two to three weeks. Humphreys testified that he received a majority of the parts needed to repair Whitmire's vehicle by September 22, 1998.

During the course of the repairs, Whitmire visited the Freightliner shop to check on the truck's progress on numerous occasions. Although at times he observed Freightliner employees working on the truck, on other occasions he found it sitting unattended, with oil dripping from underneath the vehicle. Freightliner's records do not reflect that any work was done on the truck prior to October. At one point, the truck sat against the back fence for several days and Whitmire became concerned about both the speed and quality of the repairs. He took pictures of the unattended truck showing where oil had dripped and brought them to Humphreys's attention. Humphreys replied that the truck was being handled by the service department at that point.

The truck was returned to Whitmire in ostensibly repaired condition on October 24, 1998, approximately four weeks after the repairs began. Whitmire found, however, that the truck would not operate properly and was leaking oil and other fluids. So a few days later, on or about October 28, he returned it to Freightliner to complete the repairs. Because it appeared that the leaking fluids came from the right side of the engine, the side originally struck by the train, Humphreys recommended to State Farm that the leak be fixed.

Whitmire picked the truck up again sometime in November, but he continued to experience problems. He attempted to use the dump truck to haul for Southeastern Materials, but the truck started breaking down and would not handle properly. On November 25, 1998, Whitmire took the truck to Fisher's Paint, Body & Frame Shop, Inc. for a second opinion. The shop foreman testified that when he examined the truck, he found a side sway in the frame rails, as well as some twists, which would have affected the truck's handling and resulted in premature wear to the tires.

Whitmire once again returned the truck to Freightliner, noting Fisher's findings. Humphreys then sent the truck to a body shop in Dalton for an independent estimate of the situation. Although Whitmire approved getting an estimate, he did not authorize the Dalton body shop to perform any work on the truck. Nevertheless, Freightliner authorized the body shop to repair the frame rails and billed the costs to Whitmire's insurance company.

Freightliner returned the truck to Whitmire for the last time on December 9, 1998. Whitmire then took the truck back to Fisher's for a follow-up inspection. Fisher's shop foreman testified that he found additional damage when he examined the truck the second time. He stated that the sway had been somewhat corrected, but it had not been done properly, requiring additional cost to fix the problem. On December 18, 1998, Whitmire took the truck to Lesco Truck Repair & Maintenance for problems with the front end and the brakes. There, the mechanic who examined the truck said that the tire was not properly connected to the truck and, in his opinion, was not safe to drive.

Whitmire and two of his employees testified that the truck continued to experience problems with leaking fluids and alignment, making it difficult to reliably operate and handle the truck. And as a result of the problems and delays in repairing the truck, Whitmire lost his senior position with Southeastern, dropping to the bottom of the call list. The evidence also showed that while Whitmire put 111,000 miles on the truck in the three years prior to the accident, it had traveled only 8,000 miles in the three years since. 1. Freightliner first contends that there was insufficient evidence to support the jury's award of $89,522 in compensatory damages. The company asserts that Whitmire failed to establish that the repairs were defective and further failed to establish his damages. Moreover, Freightliner contends that the trial court erred in denying its motion for directed verdict with regard to lost profits as the evidence of such damages was too vague and speculative.

The parties' agreement was for the repair of Whitmire's truck to its pre-collision condition. And the parties had the mutual understanding that the repairs needed to be done in a timely fashion to protect Whitmire's position with Southeastern, a major source of his business income. Whitmire asserts that Freightliner breached this agreement by failing to either properly or timely repair the truck. Freightliner counters that Whitmire failed to establish that the repairs were defective or that the delay in repairing the vehicle was Freightliner's fault.

(a) When Whitmire authorized Freightliner to begin repairs, he expressed his concern that the company's estimate did not adequately address all the problems resulting from the train wreck, especially with regard to the frame rails and the transmission. Freightliner then kept the truck for almost four weeks before returning it to Whitmire as "repaired." Whitmire presented evidence that the truck did not operate properly and that he had to return it for further repairs because it was leaking fluids, a matter that Whitmire had earlier brought to Freightliner's attention when he observed the truck sitting unattended and dripping oil. Whitmire again took possession of the truck in November where he had it examined by an independent body shop which found that the rails had not been properly repaired. When Whitmire again returned the truck for further repairs, Freightliner unilaterally authorized a third party to repair the rails, which resulted in additional damage. And Whitmire presented evidence that the truck still was not working properly. Based on this evidence, the...