Jensen v. Allan M. Matute, Alma Miladis Antunez Menocal, Geico Gen. Ins. Co.

• Decision Date: 29 January 2020
• Docket Number: NO. 2019-CA-0706,2019-CA-0706
• Citation: 289 So.3d 1136
• Parties: Kent JENSEN and Saeko Yatsuka Jensen, (Husband and Wife), for their own, and as Parents and Legal Guardians on Behalf of their Minor Children v. Allan M. MATUTE, Alma Miladis Antunez Menocal, GEICO General Insurance Company, and Imperial Fire & Casualty Insurance Company
• Court: Court of Appeal of Louisiana — District of US

289 So.3d 1136

Kent JENSEN and Saeko Yatsuka Jensen, (Husband and Wife), for their own, and as Parents and Legal Guardians on Behalf of their Minor Children

v.Allan M. MATUTE, Alma Miladis Antunez Menocal, GEICO General Insurance Company, and Imperial Fire & Casualty Insurance Company

NO. 2019-CA-0706

Court of Appeal of Louisiana, Fourth Circuit.

JANUARY 29, 2020

Robert C. Evans, Kristin M. Lausten, EVANS & COMPANY, 629 Cherokee Street, New Orleans, LA 70118, COUNSEL FOR PLAINTIFF/APPELLANT

Paul D. Oberle, Jr., RICHIE RICHIE & OBERLE, L.L.P., 1800 Creswell Avenue, Shreveport, LA 71134, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )

Judge Rosemary Ledet

This is a tort suit arising out of a rear-end collision. The narrow issue presented is quantum—the amount of compensatory (special or general) damages, if any, the plaintiff, Dr. Kent Jensen, is entitled to recover as a result of the loss of use of his nineteenth-century Granjon violoncello (the "Granjon Cello") for the 111-day period it took to repair the cello. Following a bench trial, the trial court dismissed Dr. Jensen's loss of use claim. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Jensen is a professional cellist and a member of the Louisiana Philharmonic Orchestra. He started playing the cello when he was ten-years old and obtained a doctoral degree in musical arts and cello performance. In 1985, while he was earning his master degree, Dr. Jensen purchased an unbranded, nineteenth-century French cello, which he characterized as a student instrument (the "Student Cello"). He paid $6,500 for the Student Cello. For approximately thirty years, Dr. Jensen played the Student Cello—twenty years of which was during his tenure with the Louisiana Philharmonic Orchestra.

In December 2014, Dr. Jensen purchased the Granjon Cello from a friend, William Schultz. Although the Granjon Cello's appraised value was $65,000, Mr. Schultz sold it to Dr. Jensen for $47,500.¹ Six months after purchasing the Granjon Cello (in June 2015), the car that Dr. Jensen was driving was rear-ended by a car driven by Allan Matute, owned by Alma Menocal, and insured by Imperial Fire and Casualty, Inc. ("Imperial").² At the time of the rear-end collision, the Granjon Cello was in the back of Dr. Jensen's vehicle. Although the cello sustained no visible signs of damage, Dr. Jensen noticed the next day that the cello did not sound right when he played it. Dr. Jensen sensed a "rattle." He also noticed that the cello made a "buzz" when he played it more aggressively.

To determine if the Granjon Cello was damaged, Dr. Jensen took it to Keller Strings, a violin shop in New Orleans. According to Dr. Jensen, Keller Strings determined that the cello might have some sort of crack. Although Keller Strings repairs cellos, Dr. Jensen opted to have a luthier with more expertise examine and repair the Granjon Cello. Dr. Jensen selected Robertson & Sons in Albuquerque, New Mexico, to do the repair work for two reasons. First, Mr. Schultz, the cello's prior owner, had used Robertson & Sons to do repair work on the Granjon Cello. Second, Dr. Jensen's attorney recommended Robertson & Sons.

On July 13, 2015, the Granjon Cello was shipped to Robertson & Sons. While the cello was being repaired, Dr. Jensen reverted to using the Student Cello. On October 16, 2015, the Granjon Cello was returned to Dr. Jenson. The Granjon Cello neither sustained permanent damage nor suffered a diminution in value.

Seeking to recover the damages sustained in the accident, including damages for loss of use of the Granjon Cello during the period that it was being repaired, Dr. Jensen³ filed this suit against Mr. Matute, Ms. Menocal, and Imperial (collectively the "Defendants").⁴ Before trial, Dr. Jensen settled all of his claims against the Defendants with one exception—his loss of use claim.

In April 2019, a one-day bench trial was held on the loss of use claim. At the beginning of the trial, the parties stipulated to the following:

• Dr. Jensen was without the use of his properly functioning Granjon Cello for 111 days—the period from the date of the rear-end collision, June 27, 2015, through the return of the repaired Granjon Cello on October 16, 2015;

• Mr. Matute was solely at fault in causing the rear-end collision;

• Imperial had a policy in effect on the date of the collision that provided coverage for the loss of the cello subject to the limits in the policy, which included a $25,000 property damage limit;

• The property damage limit of the Imperial policy was reduced by $3,272.05 by prior payments to Dr. Jensen—$878.10 for the repair of the vehicle; $1,500 for the repair of the cello; and the cost of shipping the cello to Robertson & Sons—leaving a remaining limit of $21,727.95;

• Dr. Jensen agreed there would be no judgment against the individual defendants, Mr. Matute and Ms. Menocal; and

• Dr. Jensen owned the Granjon Cello at the time the accident occurred.⁵

The testimony and evidence introduced at trial established the following. During the 111-day repair period, Dr. Jensen neither inquired about renting nor rented a replacement instrument for three reasons. First, he believed it would only take Robertson & Sons a week or two to repair his cello. Second, he knew he could not find a similar instrument locally and that he would have to travel to New York to find a comparable instrument. Finally, he was able to practice and perform professionally using the Student Cello. Indeed, he had only purchased the Granjon Cello six months before the rear-end collision; whereas, he had used the Student Cello to perform professionally for thirty years. Dr. Jensen did not lose any jobs as a professional cellist during the repair period. Dr. Jensen acknowledged that the Granjon Cello worked as well after the repairs as before the accident.

In an attempt to establish the Student Cello was not an adequate substitute, Dr. Jensen called as an expert witness his colleague, Jordan Gerhardt.⁶ Mr. Gerhardt —who was qualified as an expert cellist—opined that the Granjon Cello and the Student Cello were not equivalent instruments. Mr. Gerhardt described the Student Cello as "thin and unsubstantial." He explained that the principal difference between the instruments was the sound quality. He opined that the Student Cello was an inadequate substitute for the Granjon Cello because it lacked the quality and depth of sound to produce satisfying musical expression. Nonetheless, he acknowledged that Dr. Jensen had used the Student Cello for over twenty years in the Louisiana Philharmonic Orchestra without complaint.

To establish the rental value of the Granjon Cello, Dr. Jensen called Ms. Keller Smith, the co-owner of Keller Strings, as an expert witness. Ms. Smith was qualified as an expert in the sale and rental of stringed musical instruments and the market rates for such rentals. Ms. Smith testified that in order to rent a rare and delicate instrument, like the Granjon Cello, the rental price would be twenty-five percent of the value of the instrument per month. Given the Granjon's appraised value was $65,000, she calculated that the rental would be $16,250 per month ($541.67 per day). Ms. Smith agreed with the trial court's suggestion that if one were to rent the instrument for 120 days, the rental value would be the full value of the cello. Ms. Smith confirmed that Keller Strings did not have a cello of the same caliber as the Granjon Cello available to rent or to sell. She also confirmed that Dr. Jensen never inquired about renting a cello.

Following the bench trial, the trial court ruled in the Defendants' favor and dismissed Dr. Jensen's loss of use claim. In its written reasons for judgment, the trial court observed:

Dr. Jensen testified that he suffered no economic loss as a result of the accident for which he has not been compensated. The defendant insurance company paid for the repair of his car, the cost of shipping the cello to New Mexico and the cost of repairing the cello. The Court can't help but wonder if the time for repair would have been shortened had Dr. Jensen let his local expert Paula Keller repair the cello. Dr. Jensen testified that he lost no jobs as a professional cellist during the repair period.... Once repaired, the cello had no permanent damage nor reduction in value.

Plaintiff's expert, Paula Keller, testified that ... [i]f one was to rent a vintage instrument for four months, one would pay in rental the full value of the instrument. Interestingly, plaintiff claimed the cost of $65,000 although he ultimately paid only $47,500 for the Granjon. Plaintiff is arguing that he is entitled to recover a rental cost that he did not incur. Plaintiff did not nor did he need to rent a substitute cello as he had the same instrument he had used professionally for thirty years.

Much was made of the relative differences between the two cellos. It was suggested that the Granjon was a superior cello to the instrument Dr. Jensen had played for thirty years. The suggestion that his original cello was an inadequate substitute was belied by the facts. Dr. Jensen used that cello to become what he is today—a respected professional cellist. No one at the symphony ever complained about the inferiority or inadequacy of the original cello.

The goal of tort recovery is to make the victim whole. Dr. Jensen has neither rental expenses nor did he suffer considerable inconvenience or mental anguish for the time his cello was being repaired. Accordingly, his claim for loss of use is denied.

This appeal followed.

DISCUSSION

As noted at the outset, the issue here is quantum—the compensatory damages, if any, that Dr. Jensen is entitled to recover as a result of the loss of use of the Granjon Cello. Compensatory damages are designed to place an injured party in the position he or she would have been in had the tortious conduct not occurred. Wainwright v. Fontenot...