French v. Dilleshaw

• Decision Date: 01 February 2012
• Docket Number: No. A11A1605.,A11A1605.
• Citation: 313 Ga.App. 834,12 FCDR 396,723 S.E.2d 64
• Parties: FRENCH v. DILLESHAW.
• Court: Georgia Court of Appeals

12 FCDR 396

313 Ga.App. 834

723 S.E.2d 64

FRENCH

v.DILLESHAW.

No. A11A1605.

Court of Appeals of Georgia.

Feb. 1, 2012.

Fulcher Hagler, John Arthur Davison, for appellant.

Warlick, Tritt, Stebbins & Murray, James Samuel Murray, Augusta, for appellee.

BLACKWELL, Judge.

Kevin Dilleshaw, an independent truck driver, lost the use of his flatbed trailer for several weeks as a result of an accident. Dilleshaw sued Christopher French, the driver of the other vehicle involved in the accident, to recover the earnings that Dilleshaw lost while he could not use his trailer. Following a bench trial, the court below entered judgment for Dilleshaw, awarding him both lost earnings and attorney fees, and French appeals from this judgment, contending that the evidence is insufficient to sustain these awards.¹ Upon our review of the record, we conclude that the evidence is sufficient to sustain the award of lost earnings, but it does not sustain the award of attorney fees. Accordingly, we affirm in part and reverse in part.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, ² Lifestyle Home Rentals v. Rahman, 290 Ga.App. 585, 660 S.E.2d 409 (2008), and we view the evidence in the light most favorable to the judgment. Forshee v. Employers Mut. Cas. Co., 309 Ga.App. 621, 621 n. 1, 711 S.E.2d 28 (2011). The evidence in this case shows that Dilleshaw, who owns his own truck and flatbed trailer, worked as an independent contractor for Landstar Ranger, Inc., a freight-hauling company. Landstar paid Dilleshaw weekly, and his gross earnings were based on the number of loads that he hauled each week and the distance that he drove. Landstar advanced certain expenses to Dilleshaw, including the costs of fuel, insurance, and certain toll charges, and when it paid him each week, Landstar reduced his gross earnings by the amount of these advances.

On June 15, 2009, Dilleshaw set out with his truck and trailer to haul a load of hazardous materials from Augusta, Georgia to Michigan. As Dilleshaw was leaving Augusta, French crashed his car into the rear of the trailer, damaging it.³ To complete his haul, Dilleshaw secured a temporary repair of the trailer in Georgia and then made his way to Michigan. When he arrived in Michigan, Dilleshaw secured another temporary repair of the trailer, so that he could return with his truck and trailer to South Carolina. And when he finally made his way back to South Carolina, Dilleshaw took the trailer to a repair shop for permanent repairs,⁴ where it remained for several weeks. During this time, Dilleshaw was without a trailer and unable to haul additional loads.⁵

When an independent truck driver is not on the road, he is not earning money, and Dilleshaw sued French for his lost earnings during the time he was without the use of his trailer, as well as attorney fees. To establish the amount of his lost earnings, Dilleshaw presented the court below with his weekly earnings statements for a period of seventeen weeks—the nine weeks that preceded the accident, the four weeks that followed it and during which he was without the use of his trailer, and the four weeks that followed the permanent repair of his trailer—and each of these statements set out his weekly gross earnings, the expenses that Landstar had advanced, and his net earnings. According to Dilleshaw, during the weeks he was able to drive his truck, his average weekly net earnings were $1,594.17. Following a bench trial, the court below awarded $5,600 in lost earnings as compensatory damages, $1,800 in attorney fees, and $210 in court costs to Dilleshaw. French appeals, asserting that the evidence does not sustain the awards of lost earnings and attorney fees.

1. We first consider whether the evidence authorized the award of lost earnings. In a tort case, “the determination of damages rests peculiarly within the province of the [trier of fact],” see Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, 734(2)(a), 691 S.E.2d 218 (2010) (citation and punctuation omitted), and when the trier of fact considers consequential damages in such a case, “every particular and phase of the injury may enter into [its] consideration.” Kroger Co. v. Perpall, 105 Ga.App. 682, 685(3), 125 S.E.2d 511 (1962) (citation and punctuation omitted). When someone like Dilleshaw suffers an injury to his person or property by the tort of another and is, as a result, unable for a time to practice his profession or occupation, he is entitled, we have said before, to recover his lost earnings as an element of his damages. ⁶ See, e.g., Dossie v. Sherwood, 308 Ga.App. 185, 189, 707 S.E.2d 131 (2011) (independent truck driver unable to work as a result of personal injury); Fouts v. Builders Transp., 222 Ga.App. 568, 577(9), 474 S.E.2d 746 (1996) (saleswoman unable to work as a result of personal injury); Mote v. Tomlin, 136 Ga.App. 616, 618(2), 222 S.E.2d 57 (1975) (carpenter and contractor unable to work as a result of personal injury); Perpall, 105 Ga.App. at 685–687(3), 125 S.E.2d 511 (dentists unable to practice dentistry as a result of property damage); Southwestern R. Co. v. Vellines, 14 Ga.App. 674, 688–689(2), 82 S.E. 166 (1914) (traveling salesman unable to work as a result of personal injury). In the case of an injury to property that renders one unable to pursue his vocation, his lost earnings can be recovered only “for that reasonable period of time which it would take him to make other arrangements for carrying on his profession,” Perpall, 105 Ga.App. at 686–687(3), 125 S.E.2d 511, but according to Dilleshaw, it was not feasible for him to secure another trailer while he was without the use of his own, considering the short time in which it was anticipated that the repairs would be complete.⁷ Accordingly, the trier of fact was authorized in this case to award the earnings that Dilleshaw lost while he was without the use of his trailer as damages.

Dilleshaw was required, however, to prove these lost earnings with “reasonable certainty,” Dossie, 308 Ga.App. at 188, 707 S.E.2d 131, and French argues that Dilleshaw failed to do so in two respects. First, the weekly earnings statements that Dilleshaw tendered at trial and on which he relied in his calculation of his average weekly earnings are, French says, for an arbitrary period of time and not, therefore, reasonably certain proof of what Dilleshaw might have earned during the weeks he was without use of his trailer. Second, these weekly earnings statements do not, French contends, disclose all of the expenses that, but for the accident, Dilleshaw would have incurred in the operation of his truck and trailer. We will consider these arguments in turn, but we begin with some observations about the requirement of reasonable certainty.

Reasonable certainty does not mean absolute certainty, and if absolute certainty were required, lost earnings could seldom, if ever, be proven with the requisite certainty, at least in cases in which the earnings are not invariable and fixed definitively. As this Court observed nearly a century ago, such a strict requirement of proof “might deny a sufficient remedy to one who happened to be laboring not for a fixed and definite salary, but for fees or commissions,” and for this reason, the courts permit “greater latitude ... in the matter of such proof” by requiring only that lost earnings be proven with reasonable certainty. Vellines, 14 Ga.App. at 688(2), 82 S.E. 166. The requirement of reasonable certainty with respect to lost earnings is based on the usual and settled rule “against the recovery of vague, speculative, or uncertain damages,” but it reflects the equally settled understanding that this rule “relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” The Pep Boys, etc. v. Yahyapour, 279 Ga.App. 674, 678(5), 632 S.E.2d 385 (2006) (citation and punctuation omitted). Accordingly, this requirement permits the recovery of lost earnings, so long as they can be fixed in some amount that “comes within that authorized with reasonable certainty by the legal evidence submitted,” such that “[m]ere difficulty in fixing their exact amount” is no insuperable impediment to their recovery. Dossie, 308 Ga.App. at 188, 707 S.E.2d 131 (citation and punctuation omitted). And our Court has acknowledged that lost earnings in cases like this one can be fixed with reasonable certainty by sufficient proof of past earnings. See, e.g., Mote, 136 Ga.App. at 618(2), 222 S.E.2d 57; Perpall, 105 Ga.App. at 686(3), 125 S.E.2d 511; Vellines, 14 Ga.App. at 688–689(2), 82 S.E. 166. With these principles in mind, we now turn to the arguments advanced by French about the proof of lost earnings in this case.

As to his reliance on his weekly earnings statements for the nine weeks preceding the accident, the four weeks he was without use of his trailer, and the four weeks that followed his return to the road after the permanent repairs were done, Dilleshaw explained that the business of hauling freight by truck slows during the winter months and picks up in the summer. Dilleshaw sought to recover his lost earnings for four weeks in late June and July 2009, and the weekly earnings statements that he tendered at trial show his earnings from late April to mid-August 2009. Given the testimony about the effects of the changing seasons upon the trucking business, the record shows, we think, a reasonable basis for the selection of the weekly earnings statements upon which Dilleshaw and the court below relied. To be sure, some reasonable people might have chosen to include statements for more weeks, fewer weeks, or different weeks in their analysis of the earnings that Dilleshaw lost, but we cannot say as a matter of law that Dilleshaw was required to do so. Some things...