Opinion
112395-2015
05-23-2018
Allison Jacobson, Plaintiff, v. Edward C. Purdue, NEW SOUTH INSURANCE COMPANY and NATIONAL GENERAL INSURANCE, Defendants.
Plaintiff commenced the above entitled action against defendants seeking damages she sustained when her car was struck by the defendant, Edward C. Perdue, on April 20, 2012. Plaintiff's 2011 BMW X3 SUV was repaired at a cost of $33,832.00. Defendants paid for the cost of repairs to the automobile. Plaintiff commenced this action seeking compensation for the diminished value of her car after it was repaired, together with damages for the loss of use of her automobile while it was being repaired.
The parties stipulated to the facts herein and further stipulated that this Court would render a decision thereafter based upon those stipulated facts. The Court is in receipt of the parties' "Stipulation of Facts" dated October 27, 2017 and an "Additional Stipulation of Facts" dated April 28, 2018. The Court is in further receipt of each parties' memorandum of law.
The facts as stipulated are as follows:
The plaintiff is the owner of a 2011 BMW XC SUV that was purchased on April 23, 2011 ("Plaintiff's Vehicle"). On April 20, 2012, the plaintiff parked the plaintiff's vehicle on Main Street in downtown Canandaigua, left the car, and crossed the street to go to a local shop. The plaintiff heard a loud crash and turned and saw that her car had been struck. The defendant had driven his vehicle ("Defendant's Vehicle") carelessly and negligently and struck the car parked behind the plaintiff's vehicle, causing a chain reaction whereby the car behind the plaintiff's vehicle struck the plaintiff's vehicle, and the plaintiff's vehicle struck a third vehicle parked in front of the plaintiff's vehicle. The plaintiff's vehicle was sandwiched between the car struck by the defendant's vehicle and the third vehicle (hereinafter the "Accident"). The plaintiff's vehicle incurred substantial damage to both the front and the rear and needed to be repaired. At the time of the accident, the plaintiff's car was twelve months old and had 13,062 miles.
The parties stipulated and agreed that the accident was caused solely by the defendant's negligence and that the plaintiff was not at fault.
Defendant National Insurance initially estimated the cost to repair the plaintiff's vehicle to be $23,598.00. Defendant National Insurance did not declare the vehicle a total loss. Instead, they would only pay the cost of repairing the vehicle. The plaintiff's vehicle was ultimately repaired at a cost of $33,832.00 by Garber Collision located at 3890 West Henrietta Road in Rochester, New York. The repair costs were paid by the defendant insurance company. The plaintiff lost the use of her car as a result of the accident from April 20, 2012 until August 31, 2012.
Defendant, through the defendant National Insurance claims adjuster, offered to provide the plaintiff with a Toyota Camry to use while her car was being repaired which would cost $30.00 per day to rent. The plaintiff asked the claims adjuster to provide a car comparable to the plaintiff's vehicle which cost $60.00 per day to rent. Defendant National Insurance would not agree to provide a car comparable to the plaintiff's vehicle. Defendant National Insurance would only pay for the cost of the Toyota Camry if the plaintiff actually rented the car. The plaintiff did not want to drive a Toyota Camry. She wanted to drive a car comparable to her BMW SUV, because she felt it was safer and because she wanted to drive a car of similar quality and value. However, she did not want to incur an additional $30.00 per day, so the plaintiff borrowed her husband's car until the plaintiff's vehicle was repaired.
The parties stipulated and agreed that the rental value of the Toyota Camry for the period between April 20, 2012 and August 31, 2012 was $3,600.00. The parties stipulated and agreed that the rental value of a car comparable to the plaintiff's vehicle for that same period of time was $7,200.00. Defendant National Insurance has not paid the plaintiff anything for the loss of use of her vehicle.
The plaintiff's vehicle was in good condition and had never been in an accident before this accident. Her car was physically repaired; however, the value of the plaintiff's vehicle was diminished because it was in the accident. It could not be resold for the same amount as an identical car that was not in an accident. The plaintiff could not trade in her car without accepting a discount equal to the car's diminished value, in part because BMW would not resell the car as a BMW Certified Preowned Car because it was in the accident. If the car were to be sold at an auction, the amount realized would reflect the car's lower trade-in value resulting from the accident, as disclosed in the Carfax Report, which is made known to the buyer. The parties stipulated and agreed that the diminished value of the plaintiff's vehicle resulting from the accident was $8,000.00, even though the car was physically repaired. Defendant National Insurance has not paid the plaintiff anything for the diminished value of the plaintiff's vehicle.
The parties further stipulated and agreed that the value of plaintiff's vehicle before the accident was $45,000.00 and the value of the plaintiff's vehicle immediately after the accident and before repairs was $10,000.00.
The plaintiff asserts that she should be compensated for the stipulated diminished value of her car ($8,000.00) remaining after the automobile was physically repaired. Plaintiff argues that since the purpose of awarding damages in a tort action is to make the plaintiff whole, the plaintiff should be entitled to recover the diminished value of her value after the accident. The plaintiff further argues that she should be compensated for the loss of use of her car based on the rental value of a comparable vehicle, even though she declined the insurance company's offer to provide her with an inferior car.
The defendants argue that the law on damages is clear: plaintiff is entitled to either the difference between her car's market value immediately before and immediately after it was damaged, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is less. In this case, the vehicle was repaired and restored to its condition before the accident. Plaintiff is not entitled to damages based on unrealized diminution in resale value because of the accident itself.
It is well settled that the purpose of awarding damages in a tort action is to make the plaintiff whole (see generally, Campagnola v. Mulholland, Minion & Roe, 76 NY2d 38 [1990]). In situations where property has depreciated in value since its purchase and is subsequently damaged by the negligence of another, plaintiff is entitled to the difference between the market value of her car immediately before and immediately after the vehicle was damaged, or the reasonable cost of repairs necessary to restore it to its former condition, whichever is less. This is the "typical" measure of damages to property that has depreciated in value since its purchase and is subsequently damaged by the negligence of another (see, Franklin Corp. v. Prahler, 91 AD3d 49 [4th Dept. 2011]; Johnson v. Scholz, 276 A.D. 163 [1949]). With this type of property, courts have rejected claims for diminution in resale value if the repairs placed the property in the same condition it was in before the accident (Franklin Corp. v. Prahler, supra). That is situation in the instant case. Only in more unusual cases where property has allegedly increased in value since its purchase and is then subsequently damaged will the plaintiff be entitled to recover the diminution in value of the property (Franklin Corp. v. Prahler, supra). Here, there is no dispute that the repairs fully restored plaintiff's vehicle to its condition before the accident. The only basis for the claim made by plaintiff for the difference in value immediately before and immediately after the accident is not that her automobile could not be fully repaired, but, rather, that after repair the resale value would be diminished because the car had been in an accident, "the diminution in resale value is not to be taken into account" (Parkoff v. Stavsky, 109 AD3d 646 [2nd Dept. 2013], citing Johnson v. Scholz, supra at 165). Given that plaintiff submitted no evidence demonstrating that her vehicle appreciated in value from the time that she had purchased it to the time of the accident, the rule articulated in Johnson v. Scholz, supra is applicable and the measure of damages is the difference in the market value immediately before and after the accident or the reasonable cost of repairs necessary to restore it to its former condition, whichever is less. The diminution in resale value is not to be taken into account (see, Angielczyk v. Lipka, 132 AD3d 1380 [4th Dept. 2015]).
Based upon the foregoing, this Court determines that plaintiff is not entitled to the $8,000 diminution in value.
As to the plaintiff's claim for loss of use of her vehicle while it was being repaired, this Court finds that plaintiff is entitled to the stipulated sum of $7,200, representing the rental value of a car comparable to plaintiff's vehicle during the period of repair, i.e. April 20, 2012 and August 31, 2012. Plaintiff is entitled to compensation for the loss of use of her vehicle for the time reasonably needed to make the repairs (see, Johnson v. Scholz, supra). This principle rests upon the theory that one deprived of the use of his property by the wrong of another is entitled to compensation for such loss [Allen v. Fox, 51 NY 562 [1873]). Not only is plaintiff entitled to loss of use, but she is entitled to the loss of use of a similar vehicle (see, Central Greyhound Lines v. Bonded Freightways, 193 Misc. 320 [1948]; Pattern Jury Instructions §2:310). No claim was made herein that the period of time it took for repairs was unreasonable. Hence, plaintiff is entitled to damages for the loss of use of her vehicle during the time it took for the repairs to be made. That sum is $7,200.00. Plaintiff is further entitled to interest on these damages.
This constitutes the Decision of the Court. Counsel is directed to submit an order in accordance herewith. __________
Craig J. Doran
Supreme Court Justice Dated at Canandaigua, New York, this 23rd day of May, 2018.