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Diminished Value/Loss of Use - Camaraza v. Bellavia Buick -3-24-1987
Camaraza v. Bellavia Buick Corp., 523 A.2d 669, 216 N.J.Super. 263
(N.J.Super.App.Div. 03/24/1987)
[2] No. A-4418-85T1
[3] 523 A.2d 669, 216 N.J.Super. 263, 1987.NJ.40464
[4] Decided: March 24, 1987.
[5] RAMIRO CAMARAZA, PLAINTIFF-APPELLANT,
v.
BELLAVIA BUICK CORPORATION, A NEW JERSEY CORPORATION,
DEFENDANT-RESPONDENT
[6] On appeal from Superior Court of New Jersey, Law Division,
[7] Frank Peretore argued the cause for appellant (Lowenstein,
Sandler, Brochin, Kohl, Fisher, Boylan & Meanor, attorneys;
David L. Harris, of counsel and Frank Peretore, on the
brief).
[8] Joel B. Hopmayer argued the cause for respondent (Weiner,
Staubach & Hopmayer, attorneys; Joel B. Hopmayer, on the
brief).
[9] Michels, Skillman and Landau. The opinion of the court was
delivered by Skillman, J.A.D.
[10] Skillman
[11] The issue presented by this appeal is whether damages for
loss of use of an automobile resulting from commission of a
tort are limited to actual expenditures for substitute
transportation. We hold that loss of use damages are not thus
limited and therefore reverse the contrary determination of
the trial court.
[12] Plaintiff's automobile was stolen while in the custody of
defendant for servicing. The thief was involved in an
accident in which plaintiff's automobile was seriously
damaged. The automobile allegedly could not be repaired for
five months, during which time plaintiff was deprived of its
use.
[13] Plaintiff filed suit, alleging that defendant had been
negligent in maintaining custody of his automobile.
Plaintiff's motion for summary judgment was granted. However,
the trial court limited his damages to $250, which was the
deductible on the collision coverage of his insurance
policy.*fn1 Plaintiff's claim for additional damages for loss
of use of his automobile while it was being repaired was
rejected. The trial court held that plaintiff's damages would
include any sums actually expended for substitute
transportation, but not "the valuation of a hypothetical
rental vehicle which plaintiff, in fact, chose not to rent."
Since plaintiff was unable to present any evidence of actual
expenditures for substitute transportation, the trial court
declined to award any damages for loss of use of his
automobile.
[14] It is axiomatic that "[t]he normal measure of damages for the
commission of a tort is all damages proximately caused by the
injury." Schroeder v. Perkel, 87 N.J. 53, 66 (1981).
Consequently, damages are not limited to pecuniary losses
which are capable of precise measurement. Rather, a jury or
other trier of fact is frequently asked to place a monetary
value on non-monetary consequences of a tort, such as a
victim's disability, pain and suffering, see Baxter v.
Fairmont Food Co., 74 N.J. 588 (1977), personal humiliation,
see Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399
(1973), or emotional anguish, see Portee v. Jaffee, 84 N.J.
88 (1980).
[15] Although damages resulting from property loss are generally
pecuniary in nature, the same basic principles of damages
resulting from the commission of a tort apply to both
personal injuries and property losses. Thus, "[i]n an action
for injury to an automobile (or other personal property), the
general rule is that the measure of damages . . . is the
amount which will compensate for all detriment naturally and
proximately caused." Hintz v. Roberts, 98 N.J.L. 768, 770 (E.
& A. 1923); see also Lane v. Orl Delivery, Inc., 216 N.J.
Super. 413, 419-420 (App.Div.1987).
[16] Damages for tortious property damage to an automobile include
costs of repair and the difference in value of the automobile
before the accident and after the repairs are completed.
Fanfarillo v. East End Motor Co., 172 N.J. Super. 309, 313
(App.Div.1980). Where a plaintiff is temporarily deprived of
the use of an automobile, damages also may include the loss
of use of the automobile during the time reasonably required
to complete repairs. Jones v. Lahn, 1 N.J. 358, 362-363
(1949); Hintz v. Roberts, supra, 98 N.J.L. at 771;
Baltimore & N.Y. RR.
State Farm Mutual Auto Ins. Co. v. Toro, 127 N.J. Super. 223,
227 (Law Division 1974); see also
N.J. Super. 193 (Cty.D.Ct.1974) (holding that where an
automobile is totally destroyed, loss of use damages may be
awarded for time period required to purchase a replacement
vehicle). However, the prior decisions in this State have not
specifically considered whether the rental of a substitute
vehicle is a precondition to the award of loss of use damages
for the time required to repair an automobile used only for
personal purposes.*fn2
[17] We conclude that under the general principles of damages
previously summarized a plaintiff should not be barred from
recovery for loss of use of an automobile simply because he
has not rented a substitute vehicle. Although such a
plaintiff does not incur pecuniary loss in the form of rental
payments for a substitute vehicle, he may suffer substantial
personal inconvenience due to the lack of an automobile. He
may be forced to walk to work or to take inconvenient public
transportation. He may be prevented from engaging in normal
recreational pursuits or his enjoyment of those pursuits may
be diminished. We conclude that such inconveniences caused by
the wrongful conduct of a tortfeasor are compensable. We add
that this conclusion is supported by the overwhelming weight
of authority in other jurisdictions. See Ben Lomond, Inc. v.
Stephens v. Foster, 46
(Sup.Ct.1935); Malinson v. Black, 83 Cal.App. 2d 375, 188 P.
2d 788, 791-792 (Ct.App.1948); Francis v. Steve Johnson
Pontiac-GMC-Jeep, 724 P. 2d 84, 85-86 (Colo.App.1986); Meakin
v. Dreier, 209 So. 2d 252 (Fla.Dist.Ct.App.1968); Chriss v.
Manchester Ins. & Ind. Co., 308 So. 2d 803, 805-806
(La.App.1975); National Dairy Products Corp. v. Jumper, 241
Transit Co. v. Navajo Freight Lines, Inc., 528 S.W. 2d 475,
484 (Mo.Ct.App.1975); Mountain View Coach Lines v. Storms,
102 A.D. 2d 663, 476 N.Y.S. 2d 918 (App.Div.1984); Graf v.
Don Rasmussen Co., 39 Or.App. 311, 592 P. 2d 250, 254
(Ct.App.1979); Luna v. North Star Dodge Sales, Inc., 667 S.W.
2d 115, 118-119 (Tex.Sup.Ct.1984); Holmes v. Raffo, 60
2d 421, 374 P. 2d 536, 541-542 (Sup.Ct.1962); see generally,
Annot., "Recovery for Loss of Use of Motor Vehicle Damaged or
Destroyed," 18 A.L.R. 3d 497, 528-532 (1968).
[18] The further question presented is the appropriate measure of
damages for loss of use of an automobile where no substitute
vehicle has been rented. Some jurisdictions hold that the
measure is what it would cost to rent a substitute vehicle.
See, e.g., Francis v. Steve Johnson Pontiac-GMC-Jeep, supra.
Although this approach has the virtue of relying upon an easy
to acquire, precise measure of use value, we conclude that it
is not consistent with general principles of damages. The
degree of inconvenience for loss of use of an automobile will
vary depending upon the individual circumstances of the
plaintiff. Indeed, if a plaintiff were hospitalized for the
entire time required to repair his automobile, there very
well may be no inconvenience from loss of use of the vehicle.
On the other hand, another person may suffer very severe
personal deprivations from loss of use of a personal
automobile. We conclude that the trier of fact should be
permitted to consider the individual circumstances of a
plaintiff in determining loss of use damages. Therefore,
while the rental value of a substitute vehicle may be
admitted as evidence of loss of use damages, it is not
conclusive and the trier of fact also may consider other
evidence of such damages.*fn3 We note that this is the
approach followed in a number of other jurisdictions. See,
e.g., Holmes v. Raffo, supra; Stephens v. Foster, supra;
Meakin v. Dreier, supra; Graf v. Don Rasmussen Co., supra;
see also Brooklyn Eastern Dist. Terminal v.
170, 175-176, 53
[19] For the foregoing reasons the part of the judgment fixing
damages at $250 is reversed and the case is remanded for
further proceedings in conformity with this opinion.*fn4
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Opinion Footnotes
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[20] *fn1 The subrogation rights of the carrier for amounts it
paid to plaintiff presumably were pursued pursuant to
intercompany arbitration.
[21] *fn2 Where a vehicle or other personal property has been used
in business, our courts have allowed loss of use damages
without a showing that a substitute has been rented. See,
e.g., Jones v. Lahn, supra; Graves v. Baltimore & N.Y. RR.
A.1877).
[22] *fn3 We have no occasion to determine what other types of
evidence may be admissible to prove loss of use damages when
no substitute vehicle has been rented.
[23] *fn4 On remand defendant may pursue its claim that the time
taken to repair plaintiff's automobile was unreasonably long
and that it therefore should not bear responsibility for