Persinger v. Lucas

• Decision Date: 01 September 1987
• Docket Number: No. 03A01-8701-CV-00015,03A01-8701-CV-00015
• Citation: 512 N.E.2d 865
• Parties: George PERSINGER, Defendant-Appellant, v. Roberta LUCAS, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 865

512 N.E.2d 865

George PERSINGER, Defendant-Appellant, v. Roberta LUCAS, Plaintiff-Appellee.

No. 03A01-8701-CV-00015.

Court of Appeals of Indiana First District.

Sept. 1, 1987.

Mark R. Smith, Jennings, Maas & Stickney, Indianapolis, for defendant-appellant.

Stephen R. Heimann, Columbus, for plaintiff-appellee.

Indiana Trial Lawyers Ass'n, Daniel A. Roby, Kathryn J. Roudebush, Roby and Hood, Fort Wayne, for amicus curiae.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

George Persinger appeals from the Bartholomew County Court an award of damages in favor of Roberta Lucas in the amount of Three Thousand Five Hundred Fifteen Dollars ($3515). We affirm the judgment but reduce the damages.

FACTS

On November 26, 1985, Roberta Lucas's 1976 Vega, which was being operated by her husband Lee Roy Lucas, was struck from behind by a 1977 Suburban driven by George Persinger. After the collision, the Vega was towed to Ronnie's Body Shop instead of Lucas's home, because Lucas was unable to pay the Thirty-five Dollar ($35) towing bill. On November 27, 1986, Lucas obtained a repair estimate from the body shop which indicated that the vehicle was totaled. However, Lucas was forced to leave the vehicle in storage at Ronnie's Body Shop, because she was unable to pay the towing and storage bill. Thus, storage costs accrued over the duration of the present litigation.

The Lucases did not own another vehicle and out of necessity rented a vehicle from a member of the church they attended. Later, the Lucases rented a vehicle from their landlord. Finally, the Lucases rented a vehicle from a relative. All of the rentals were made on credit and for Twenty Dollars ($20) per day. The Lucases testified that they were unable to rent from a regular car rental agency because of financial inability. The Lucas's only means of financial support was provided by food stamps, A.D.C., and scrapping of aluminum cans.

On December 3, 1985, Lucas filed a complaint for damages. On January 31, 1986, Persinger filed a demand for jury trial which was denied as untimely. On May 22, 1986, a bench trial was held. Final judgment was entered on June 24, 1986, in favor of Lucas. The trial court awarded damages as follows:

"Storage of Defendant's vehicle for a period of 120 days at the rate of four dollars ($4.00) per day; rental of a replacement vehicle for a 120 day period at the rate of twenty dollars ($20.00) per day; towing charges in the sum of thirty-five ($35.00) and reasonable value of Plaintiff's vehicle being in the sum of six hundred dollars ($600.00). Total damages due and owing to the Plaintiff as a result of Defendant's negligence being in the sum of $3,515.00 and judgment shall and does enter in favor of Plaintiff and against Defendant in said amount, plus the costs of this action and statutory postjudgment interest."

Persinger appeals this award.

ISSUES

Persinger presents four (4) issues for review, which we restate as follows:

1. Whether the trial court erred in awarding Twenty-Four Hundred Dollars ($2400) in damages for loss of use of the destroyed vehicle by finding that the reasonable time for replacement was One Hundred Twenty (120) days.

2. Whether the trial court erred by finding that the reasonable rental value for loss of use purposes was Twenty Dollars ($20) per day.

3. Whether the trial court erred in awarding Four Hundred and Eighty Dollars ($480) for storage costs based on a per day charge of Four Dollars ($4.00) for One Hundred and Twenty (120) days.

4. Whether the trial court erred in allocating zero percent (0%) fault to Lucas.

DISCUSSION AND DECISION

Issue One

Persinger first argues that the trial court's award of Twenty-Four Hundred Dollars ($2400) in damages to Lucas for loss of use was excessive. An appeal of a damage award as excessive is governed by a strict standard of review. We will neither reweigh the evidence nor judge the credibility of the witnesses and will consider only the evidence favorable to the award. Upchurch v. Henderson (1987), Ind.App., 505 N.E.2d 455, 457; Ashland Pipeline v. Indiana Bell Telephone Co. (1987), Ind.App., 505 N.E.2d 483, 490, (transfer pending). A judgment is not excessive unless the amount cannot be explained upon any basis other than prejudice, passion, partiality, corruption, or some other improper element. Crump v. Rhodes (1986), Ind.App., 488 N.E.2d 741, 743, trans. denied. A damage award must be supported by probative evidence and cannot be based on mere speculation, conjecture, or surmise. Ashland Pipeline, at 490; Lake Monroe Regional Waste v. Waicukauski (1986), Ind.App., 501 N.E.2d 466, 472. Thus, a damage award will be reversed when it is not within the scope of the evidence before the finder of fact. Ashland Pipeline, at 490; Upchurch, at 458.

A damage award must be referenced to some fairly definite standard, such as cost of repair, market value, established experience, rental value, loss of use, loss of profits, or direct inference from known circumstances. Waicukauski, at 472. In Indiana, damages for loss of use of personal property are measured by the reasonable value of the loss of use of the property for the reasonable amount of time required for repair or to obtain a replacement. Universal C.I.T. Credit Corp. v. Shepler (1975), 164 Ind.App. 516, 532, 329 N.E.2d 620, 629 (Garrard, J., concurring), trans. denied; Jerry Alderman Ford Sales, Inc. v. Bailey (1972), 154 Ind.App. 632, 650, 291 N.E.2d 92, 105, on reh. (1973), 154 Ind.App. 632, 294 N.E.2d 617; Commercial Credit Corp. v. Miller (1972), 151 Ind.App. 580, 587, 280 N.E.2d 856, 860-61; New York Central Railroad Co. v. Churchill (1966), 140 Ind.App. 426, 434, 218 N.E.2d 372, 377, trans. denied. Generally, the value for loss of use is measured by the fair or reasonable rental value of the property in the market area. Shepler, 164 Ind.App. at 532, 329 N.E.2d at 629. However, lost profits may be used to determine the loss of use value when calculating damages. Jerry Alderman Ford, 154 Ind.App. at 651, 291 N.E.2d at 105. Regardless of the measure used to calculate value, when the property is totally destroyed the damages must be limited to the reasonable amount of time necessary for replacement, including a reasonable amount of time to determine if the property is repairable. Churchill, 140 Ind.App. at 434, 218 N.E.2d at 377; see also, Stevens v. Mid-Continent Investments, Inc. (1974), 257 Ark. 439, 441, 517 S.W.2d 208, 209; Fairchild v. Keene (1981), 93 Ill.App.3d 23, 25, 48 Ill.Dec. 475, 477, 416 N.E.2d 748, 750; Reynaud v. Leonard (1983), La.App., 430 So.2d 314, 317; Lenz Construction Co. v. Cameron (1984), --- Mont. ----, 674 P.2d 1101, 1103; McPherson v. Kerr (1981), 195 Mont. 454, 460, 636 P.2d 852, 855; Chlopek v. Schmall (1986), 224 Neb. 78, 396 N.W.2d 103, 110; Bartlett v. Garrett (1974), 130 N.J.Super. 193, 196, 325 A.2d 866, 867; Allanson v. Cummings (1981), 81 A.D.2d 16, 17, 439 N.Y.S.2d 545, 548; DTS Tank Service, Inc. v. Vanderveen (1984), Okla., 683 P.2d 1345, 1347. The court must consider all the facts and circumstances of each case in determining the time that is reasonably necessary to obtain a replacement as the time will vary from case to case.

In the present case Persinger argues that the trial court cannot consider all the facts and circumstances of the case in determining the reasonable period of time to obtain a replacement. Specifically, Persinger argues that the court's consideration of the plaintiff's financial inability to obtain a replacement is improper and cites to Cuddy v. United States (D.Mont.1980), 490 F.Supp. 390; Brandon v. Capitol Transit, Co. (1950), D.C.App., 71 A.2d 621. Prothro v. Dillahunty (1986), La.App., 488 So.2d 1163; Menard v. Prejean (1979), La.App. 374 So.2d 1275; Hoffman v. All Star Insurance (1974), La.App., 288 So.2d 388; and Cecere v. Harquail (1984), 104 A.D.2d 6, 481 N.Y.S.2d 533. These cases all stand for the proposition that in determining loss of use damages, financial inability to procure repair or replacement is an improper consideration. The basic reason given in these cases for the refusal to consider financial inability as a factor is the potential for abuse in inflating damages. E.g., Menard, at 1277. Although we recognize the potential for abuse, we reject the rule that unequivocally prohibits the consideration of financial inability in determining the time reasonably necessary to obtain a replacement. Instead, we choose to follow those authorities that allow the consideration of financial inability in calculating the time for loss of use damages. State v. Stanley (1973), Alaska, 506 P.2d 1284, 1293; Valencia v. Shell Oil, Co. (1944), 23 Cal.2d 840, 846, 147 P.2d 558, 561; Chesapeake and Ohio Ry. Co. v. Boren (1924), 202 Ky. 348, 355, 259 S.W. 711, 714; McPherson, 195 Mont. at 460, 636 P.2d at 856. However, to avoid the potential for abuse, we require evidence of other factors to establish the time reasonably necessary to obtain a replacement.

In proving the reasonable time necessary to obtain a replacement, the plaintiff must provide the court with evidence of all the factors that go into the process of obtaining a replacement, including: the time required to determine that the property is unrepairable, the nature of the property, market availability of a replacement, the time required to locate a replacement, the availability and time required to obtain financing, the plaintiff's efforts to locate and obtain a replacement, the plaintiff's efforts to locate and obtain financing, the defendant's good or bad faith efforts to settle or litigate, and the plaintiff's financial ability to obtain a replacement. Valencia, 23 Cal.2d at 846, 147 P.2d at 561; McPherson, 195 Mont. at 460, 636 P.2d at 856. Although financial ability is a factor in the determination, proof of financial inability alone will not establish the reasonable time required to obtain a replacement. Furthermore, financial inability cannot be used to inflate...