Warren v. Heartland Auto. Services, Inc., No. 95,577.
| Decision Date | 20 October 2006 |
| Docket Number | No. 95,577. |
| Citation | 144 P.3d 73 |
| Parties | Shawn WARREN and Jennifer Warren, Appellees, v. HEARTLAND AUTOMOTIVE SERVICES, INC., d/b/a/ Jiffy Lube, Appellant. |
| Court | Kansas Court of Appeals |
Mark M. Iba and David E. Sampson, of Kansas City, Missouri, for appellant.
Philip C. Lorton, of Kansas City, Kansas, for appellees.
Before McANANY, P.J., PIERRON, J., and BRAZIL, S.J.
Heartland Automotive Services, Inc., operates the Jiffy Lube facility in western Wyandotte County where Shawn and Jennifer Warren had their automobile serviced before a vacation trip to Minnesota. In the course of the trip, the automobile lost its oil, causing the engine to throw a rod. The Warrens' damage suit against Heartland resulted in a jury verdict in favor of the Warrens. Heartland now appeals the judgment against them.
The automobile in question was a 2002 Isuzu Rodeo which the Warrens purchased for $27,000 in July 2002 as a demonstrator with 8,495 miles on it. Their trip to Minnesota was planned for April 6, 2003. The day before, Shawn Warren took the Isuzu to Heartland for an oil change and other service. The car had approximately 20,400 miles on it at the time.
The next day, while driving through Iowa, the engine breakdown occurred. The car was towed to an automobile dealership in Mason City, Iowa. Since it was Sunday, the Warrens stayed in a motel overnight and met with the service personnel the next day. That Monday they also contacted a representative of Heartland, who told them to rent a car and to continue with their vacation. When the Warrens returned to Kansas City, Heartland told them that the engine failure was not its fault and refused to pay for the rental car or any repairs. The Warrens sued.
In the course of discovery a dispute arose concerning the Warrens' identification of their expert witnesses. The district court overruled Heartland's motion to strike the Warrens' expert witnesses, and the case was tried to a jury. The jury found Heartland was 100% at fault and awarded $17,500.34 in damages to the Warrens delineated as follows:
Cost of vehicle repairs $8,061.67
Loss of use of vehicle $9,281.00
Towing expense $ 97.30
Lodging $ 60.37
Expert Testimony
Heartland challenges the district court permitting the trial testimony of witnesses Steven Schukei, Arthur Basinger, and Alex Herve. All were presented as expert witnesses on behalf of the Warrens. The qualification of experts and the admissibility of their testimony are discretionary matters for the trial court. We will overturn the trial court's decision on these matters only if the court abused its discretion. See Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996).
Heartland argues that Schukei was not disclosed as an expert as required by K.S.A. 60-226(b) before his deposition was taken to perpetuate his testimony for trial. The Warrens do not dispute that they failed to comply with the statutory requirements, but argue that Heartland suffered no prejudice from the nondisclosure.
The discovery provisions of our Rules of Civil Procedure were designed from the outset to do away with trial by ambush, a popular sport before adoption of the Rules. It is clear that the Warrens failed to comply with the requirements of K.S.A. 60-226(b)(6) which requires a specific and detailed disclosure regarding Schukei and his anticipated testimony. The court could not have permitted the testimony of Schukei had the Warrens' nondisclosure about him and his testimony resulted in prejudice to Heartland.
When a plaintiff brings an action for damage to personal property, damages are measured by the cost of repair (plus reasonable compensation for plaintiff's loss of use while the property is being repaired) unless the repair costs exceed the value of the damaged property, in which case the plaintiff's damages are measured by the fair market value of the damaged property immediately before the loss. In either event, the fair market value of the property before the loss establishes a ceiling for damages. Nolan v. Auto Transporters, 226 Kan. 176, 183, 597 P.2d 614 (1979). Here, it was clear from the Warrens' initial interrogatory answers that they based their claim on the cost of repair not the value of the automobile before the loss. At trial, both sides proposed to instruct the jury, and the trial court did so, in accordance with PIK Civ.3d 171.10 which sets forth this measure of damages.
Schukei testified to the fair market value of the Warrens' Isuzu before the engine failure. Heartland's own expert, Matt McGuire, testified that the fair market value of the Isuzu before the loss exceeded the cost of repairs. This testimony laid the groundwork for the damage calculation based upon the costs of repair. However, Schukei's testimony also had the effect of establishing a $17,500 ceiling for any damage award, since the jury was instructed that the repair costs and any damages for loss of use cannot exceed the value of the automobile before it was damaged. This ceiling was higher than the ceiling established in the testimony of McGuire, who opined that the Isuzu was worth $12,500 before the loss. The appropriate ceiling was significant only when the jury considered the Warrens' loss of use claim. As we will discuss later in this opinion, the ultimate outcome of the loss of use claim ameliorates any harm to Heartland from Schukei's testimony.
Heartland challenges the applicable expertise of Schukei, Basinger, and Herve. Pursuant to K.S.A. 60-456(b) they could render expert opinions only on matters that were within the scope of their special knowledge, skills, experience, or training.
Schukei's testimony was limited to his opinion of the fair market value of the Isuzu before the engine failure. Schukei testified from his experience of 29 years in the automobile sales business, including 8 years as an Isuzu dealer. Heartland's challenge goes to the weight to be given Schukei's testimony, not its admissibility. We do not reweigh the credibility of witnesses.
Heartland challenges Basinger's testimony because he had no special skill or experience in diagnosing or repairing Isuzu vehicles. Basinger, the service manager at Schukei's dealership, testified that the oil filter was loose and there was no oil in the pan when the Warrens' Isuzu was towed to the shop. This was fact testimony, not opinion testimony.
Next, Basinger testified that there should have been oil in the pan when he examined it because This comment on his observations seems more of a statement of the obvious, akin to the notion that water runs downhill, rather than an expert opinion. The gist of Basinger's comment was that an oil pump that is not running does not pump oil. The admission of this testimony does not constitute reversible error.
Basinger also testified that his job duties included estimating the cost of repairs. He opined that it would cost $8,000 or $9,000 for a new engine to be installed in the Isuzu. Basinger is not a mechanic. However, an auto dealership service manager with almost 6 years of experience, such as Basinger, does not need personal expertise in removing damaged engines and installing new ones in order to estimate the cost of repairs.
Finally, Heartland argues that Basinger should not have been allowed to testify there was no hole in the oil pan. Kohler, Heartland's expert, testified that there was a hole in the oil pan. Unlike in Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 631, 822 P.2d 591 (1991), cited by Heartland, Basinger did not offer an expert opinion on the cause of the loss. He merely recounted his observations about the condition of the vehicle after it arrived at the dealership, which required no particular expertise, and gave his opinion about the repair costs, which he was qualified to do. The trial court did not abuse its discretion in admitting Basinger's testimony.
Herve was a service technician with 12 years of experience at Schukei's dealership. He worked on automotive repairs in general and specialized in transmission repairs. Heartland argues that he was not trained on Isuzu engines, and that he did not perform an adequate investigation into the cause of the engine failure. These arguments go to the weight of Herve's testimony and not to its admissibility. With respect to Herve's generalized experience in automotive repairs, Heartland does not explain what unique design is found in the Isuzu engine that distinguishes it from every other gasoline-powered internal combustion four-cycle automobile engine in use today, and how that unique design would affect its performance when operated without lubrication as compared to the performance of other engines. Herve's testimony was sufficiently within the scope of his expertise in automotive repairs in order to permit him to express an opinion of cause of the engine failure.
More troubling is the jury's award for loss of use. The jury awarded damages of $9,281 for the loss of use of the Warrens' automobile. Heartland claims there was insufficient evidence to support this award. In considering this claim we review the evidence in the light most favorable to the Warrens, the prevailing parties at trial. Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 115-16, 883 P.2d 1120 (1994). When we do so, we only find evidence of the cost of (1) the engine repair, (2) the motel, (3) the tow, and (4) part of the rental car expense. The trial exhibits are not included in the record, so in examining the trial transcript we find only the following testimony regarding the Warrens' loss of use.
Shawn Warren testified that Exhibit...
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