Summary
In Francois v. Nikiforides, No. FSTCV166027643S, 2016 WL 8115544, at *4 (Conn.Super.Ct. Oct. 19, 2016), the court quoted from disclaimer language from KBB along these lines.
Summary of this case from Rigakos v. OneillOpinion
FSTCV166027643S
10-19-2016
Natacha Francois v. Vasili Nikiforides
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
This is a lawsuit arising from a motor vehicle accident, in which the defendants have admitted liability. Further narrowing the issues, the plaintiff's vehicle had been parked at the time of the collision, such that this is a property-damage-only dispute. The dispute relates to the proper measure of damages, and in particular, the measure of damages for an older car that would require substantial expenditures to repair the damage (arguably " totaled"), but which car is drivable (and had been driven approximately 10, 000 miles between the time of the accident and the time of trial) without any repairs.
The standard applicable to this situation is well-established:
" Our rule is that, when the injury is less than a complete loss, as was the instant case, the measure of damages is the difference in value between the property before and after the loss, with interest from date of loss." Bullard v. De Cordova, 119 Conn. 262, 175 A. 673, 675 (1934). See, also, Willow Springs Condo. Ass'n, Inc. v. Seventh BRT Dev. Corp., 245 Conn. 1, 59, 717 A.2d 77 (1998).
Modern jurisprudence under General Statutes § 37-3a treats the award of interest as discretionary; see, e.g., Bartnik v. Stehr, No. HHBCV136019999, 2014 WL 5094332, at *2 (Conn.Super.Ct. Sept. 2, 2014) .
But for the fact that the cost of repairs is estimated to approach the full pre-accident value of the car, the parties would have little in disagreement. The defendants have relied upon lower hourly charges for labor than does the plaintiff, but have acknowledged that the rate utilized in their estimate is low for this area of the state. (There also are modest disagreements as to the condition of the vehicle, pre-accident, and the extent to which repairs would restore the vehicle to pre-accident condition.)
The evidence at trial was limited. The plaintiff offered three exhibits unaccompanied by any testimony. (Although not technically testimony, during argument on a proffered exhibit that was not admitted, the self-represented plaintiff (an attorney) claimed that even after repair, the vehicle's value likely would be diminished as a result of having been in an accident.) The defendants, in turn, offered a number of exhibits as well as the testimony of a motor vehicle damage appraiser.
At this point, the court must note the existence of, and need to disregard, the legal fiction that in motor vehicle accident tort cases, insurance plays no role. (See, e.g., § 2.9-2 of the Connecticut Judicial Branch Civil Jury Instructions.) The defendants' appraiser repeatedly made reference to the fact that in appraising the damage to the plaintiff's vehicle, he and his coworkers were required to comply with Insurance Department requirements/regulations, including a number of mandatory dos and don'ts. Insurance regulations are intended to ensure some minimum level of fairness in the process of adjusting claims, but that does not ensure congruence with the standards applicable in tort law (particularly to the extent that insurance imports contract principles).
The measure of damages, as recited above, " is the difference in value between the property before and after the loss." Here, there was no explicit effort made to determine the value of the subject vehicle, after the collision. Therefore, a direct before-and-after comparison is unavailable. An alternative approach to determining the diminution in value is well-established: " [W]hen the property injured may be repaired, if the repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss." Littlejohn v. Elionsky, 130 Conn. 541, 542, 36 A.2d 52 (1944) (internal quotation marks and citation, omitted). There are implicit provisos to the use of the cost of repair as a measure of diminution in value: " [T]hat that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged." Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59, 717 A.2d 77 (1998).
As discussed below, the defendant's representatives did a survey of salvage values for similar cars, which was an attempt to derive a typical or average value, but was not a value based on the actual condition of the subject vehicle.
To summarize the evidence presented by the plaintiff: At the time of the accident, the plaintiff's 2005 Acura TSX had approximately 163, 000 miles on the odometer, and according to the online version of the Kelly Blue Book (Exhibit 2), the full value of the vehicle was approximately $8,158. The estimate obtained by the plaintiff for the needed repairs, after the accident, totaled $6,773.55 (Exhibit 1). Based on a claimed need of three weeks for repairs, the claimed cost to obtain replacement transportation for that three-week period (with a luxury vehicle as the replacement) is $1,622.57. (Exhibit 3.)
The court notes the following observations about the evidence offered by the plaintiff: The Kelly Blue Book valuation requires an input of relevant data, and the plaintiff characterized her vehicle as being in " excellent" condition. That does not comport with the evidence presented by the defendant, including photographs and the verbal description of the condition of the vehicle, including interior wear, faded paint, etc. While the court does not doubt the sincere belief of the plaintiff that her vehicle had been in what she considers to have been excellent condition, that characterization does not appear to have been objectively appropriate. That, however, means that the valuation based on that characterization was almost certainly higher than appropriate.
The court also notes that the cost for replacement transportation during the expected repairs also appears to be unreasonably high. Again, although the plaintiff may consider her vehicle to have been a luxury vehicle such that she is entitled to replacement transportation with a luxury vehicle, the proposed rental replacement is not an 11-year-old luxury vehicle but a relatively new luxury vehicle. Therefore, even assuming that it would take three weeks to repair the vehicle--and the nature of the damage sustained would not seem, inherently, to require such a lengthy repair process (and there was no credible evidence that repairs would take that long)--the court believes that the $1,622.57 figure is excessive.
To summarize the evidence presented by the defendants: The value of the vehicle, prior to the damage, was approximately $7,106.31. (Exhibit A.) The cost to perform the necessary repairs was estimated to be $6,102.12. (Exhibit E.) If the car were deemed to be beyond economic repair, the salvage value of the vehicle was determined to be $1,755.30 (based on an average of salvage values of other similar vehicles; Exhibit F).
The court recognizes the " false precision" inherent in such an estimate that purports to be " to the penny."
The court notes the following observations about the evidence offered by the defendants. As noted earlier, there is a disparity in labor rates, and the defendants utilized a rate of $49.50 per hour in their estimate of the cost of repairs. (The plaintiff's estimate used a rate of $60 per hour.) Based on the surveys done by the appraiser and his employer, the current rate in the Fairfield County area is approximately $52.50 per hour. That figure, however, may reflect the rate that a volume purchaser of services such as the insurer might be able to negotiate; it is questionable whether an individual such as the plaintiff would be able to obtain as advantageous a rate as that.
At this point, the court must note the insurance-influence on the evidence presented by the defendants, effectively forcing the defendants to adopt a vehicle value higher than might otherwise be the case. In valuing the vehicle, insurance appraisers are required by the insurance Department to utilize at least two sources, and one of them must be the NADA (" yellow book") value. Regulatory requirements imposed on appraisers may ensure fairness in adjustment of losses, but do not necessarily mesh with the function of the court in ascertaining actual values and damages.
National Automobile Dealers Association.
" Doing the math" based on the plaintiff's own figures demonstrates the problem. With an estimated repair cost of $6,773.55 plus a claimed cost for substitute transportation of $1,622.57, the plaintiff is seeking damages of $8,396.12 with respect to a vehicle claimed to have been worth $8158 prior to the accident--and that does not allow for any adjustment due to the approximate 10, 000 miles of use she has gotten from the vehicle since the accident (which presumptively/necessarily would impact (reduce) the value). That also does not take into consideration the plaintiff's optimistic estimation of the condition of the vehicle as " excellent" notwithstanding the $1,168 of downward adjustments recited in Exhibit A for the appraiser's determination of a pre-accident fair-to-average condition of the identified components. And this does not take into account that the damage sustained did not reduce the value of the car to " $0" --the car was estimated to have a salvage value in excess of $1,700, and it is not clear that that value took into account the " use" value of the vehicle, i.e. that it could be and actually was driven extensively, as is, after the accident (over 10, 000 miles).
Although it is not clear that it is or would be linear, the excess mileage adjustments reflected on page 4 of Exhibit A imply a per-mile adjustment of somewhere between 2.3 cents and 4.3 cents per excess mile, which for approximately 10, 000 miles implies a reduction of approximately $230 to $430.
The court now must return to the basic measure of damages--the diminution in value of the property as a consequence of the defendants' tortious conduct. Again, the cost of repair is often (presumptively?) a practical surrogate for actually determining the before-and-after values. The problem is that with older cars, the cost of repairs may not accurately reflect the diminution in value. For example, using the plaintiff's own figures, with a claimed the full value (pre-accident) of $8,150, and a cost of repair of $6,773.55, was the value of the vehicle, immediately after the accident, under $1,385? The vehicle had moderately extensive sheet-metal damage that mostly accounted for the cost of repair, but had minimal to no apparent (material) impact on the ability of the vehicle to serve as reliable transportation. If some allowance is made for the likelihood that the plaintiff overestimated the pre-accident quality of the vehicle as " excellent, " the repair-based calculation of the after-accident value would be even less. Those calculated after-accident values must be compared with the salvage value of the damaged vehicle as determined by the defendants' appraiser, i.e. $1,755 (and the court does not understand salvage value as allowing anything for the continued use-value of the vehicle).
This does not take into account the further decrease in value inherent in a vehicle having been in an accident and sustaining damage; although the plaintiff did not offer any competent proof, her unsuccessful offer of a recent valuation of the vehicle had been accompanied by a claim that the stigma of having been in an accident reduced the value of the vehicle even after repairs.
This also does not consider the extent to which a fresh paint job on most or all of the sheet metal--as compared to the faded pre-accident condition of the paint as reported in the defendants' appraisal--might tend to increase the value of the car.
Finally, the plaintiff's source of valuation of the vehicle--Exhibit 2--itself reflects a level of unreality as to the figure quoted. The term " excellent" is defined/explained:
" Excellent" condition means that the vehicle looks new, is in excellent mechanical condition and needs no reconditioning. The vehicle has never had any paint or bodywork and is free of rust. The vehicle has a clean Title History and will pass a smog and safety inspection. The engine compartment is clean with no fluid leaks and is free of any wear or visible defects. The vehicle also has complete and verifiable service records. Less than 5% of all use vehicles fall into this category.
Exhibit 2 then goes on with a further disclaimer relating to ability to treat the figure reported as a true measure of value for the subject vehicle:
The Kelley Blue Book Suggested Retail Value is representative of dealers' asking prices and is the starting point for negotiation between a consumer and a dealer. This Suggested Retail Value assumes that the vehicle has been fully reconditioned and has a clean Title History. This value also takes into account the dealers' profit, costs for advertising, sales commissions and other costs of doing business. The final sale price will likely be less depending on the vehicle's actual condition, popularity, type of warranty offered and local market conditions. (Emphasis added.)
A number of conditions reported in the defendants' appraisal and accompanying paperwork indicate that this vehicle was not in excellent condition. There were signs of wear; the paint was faded; etc. Perhaps more important is that the figure quoted is stated to be an asking price, " and is the starting point for negotiation between a consumer and a dealer." That figure also " assumes that the vehicle has been fully reconditioned" and " also takes into account the dealers' profit, [etc.], " factors that are not present (or have not been considered).
In order to compare " apples to apples, " the court adjusted the labor rates on both estimates, decreasing the plaintiff's $60 hourly rate and increasing the defendants' $49 and $50 hourly rates, to $55.00, ($2.50 more than the figure that the defendants' witness testified to be the prevailing body shop hourly rate in Fairfield County--as it is unlikely that an individual would be able to negotiate the same rate that an insurance company could negotiate). On that basis, the plaintiff's estimate becomes $6,606.54 (leaving the much-higher frame-work rate at the amount stated in the plaintiff's estimate) and the defendants' estimate becomes $6,443.53. Thus, the primary difference in estimates is attributable to the general body shop labor rate utilized.
Synthesizing the foregoing, the court cannot provide the plaintiff with all of the relief she seeks, as she is seeking substantially more than the value of the vehicle in order to be able to repair the vehicle. Further, this is without adequate attention to the actual post-accident value of the vehicle, i.e. a relatively high mileage vehicle in drivable condition.
The court is required to decide the case based on the credible evidence presented. The court concludes that the proper damages in this case total $6,600 for the repairs plus $250 for temporary transportation during repairs. Taking into consideration the " salvage value" or unrepaired use value of the vehicle--and even assuming that the $1,755 salvage value advanced by the defendant is on the high side--the plaintiff will have cash + unrepaired car that approximates her pre-accident value of the vehicle (without consideration of the substitute transportation allowance). Again, the court must note that the plaintiff's pre-accident value was " optimistic" for the reasons already stated, and does not allow for the likely (but unquantified) " improvement" of the condition of the vehicle to the extent that there would be extensive repainting of a previously-faded exterior.
The court is required to use the evidence presented, and may not resort to speculation. As discussed above, the evidence presented by both sides could not be credited without reservation; there were flaws in each side's presentation. The court has attempted to synthesize the available information, applying the appropriate legal principles. Plaintiff continues to own the vehicle, and can apply as much or as little of the damages awarded to repair of the vehicle, as she sees fit.
Accordingly, judgment enters in favor of the plaintiff in the amount of $6,850.
POVODATOR, J.