Allstate Insurance Co. v. Reep , 7 Ohio App. 3d 90 ( 1982 )

Moyer, J.

This matter is before us on plaintiffs-appellants’ appeal from a judgment of the Municipal Court of Franklin County dismissing the complaint of plaintiffs, Allstate Insurance Company and Paul Davis, Jr., against defendant-appellee, Jerry Reep.

The parties having agreed that defendant' was liable for damages to plaintiff Davis’s car and that plaintiff Allstate Insurance Company was entitled to subrogation for its cost of repairing plaintiff Davis’s car, the matter was tried to the court on the question of damages only. At the conclusion of plaintiffs’ evidence, the trial court found that plaintiffs had failed to sustain their burden of proving mitigation of their damages and rendered judgment for defendant.

Plaintiffs assert the following two assignments of error in support of their appeal:

“1. The Court erred in holding that an insurance company has a duty to mitigate its damages by using used parts in repairing an automobile for their insured.

“2. The Court erred in holding that the plaintiff-appellant had failed to prove damages in this case, where, by stipulation, damages as such were not an element required by the plaintiff to prove.”

The assignments of error are interrelated and are considered together. The evidence in the case consisted of testimony of the wife of plaintiff Paul Davis, Jr., the owner of Paul Davis Paint Company which owned the car, who stated the car was worth $7,000 immediately before the acident, and “in really bad shape” after the accident; repair bills for $4,521.23, which included the cost of all new parts for the damaged automobile; and testimony of the adjuster for plaintiff Allstate Insurance Company that, in estimating the cost of repairing the car, he did not remember obtaining the cost of used parts and did not know to what extent the use of used parts in repairing the vehicle would have reduced the cost of the repair. The photographs of the car that were introduced as exhibits corroborate testimony that the entire front end of the car was extensively damaged.

Although" defendant did not assert mitigation of damages as an affirmative defense in his answer, the defendant’s primary argument at trial was that plaintiff Allstate Insurance Company should have used, or at least attempted to obtain, used parts and that, if repairs had been made with used parts, the cost of repair would have been $2,253.95. 1

While the usual measure of damages in a case such as this would be the difference between the fair market value of the car before and after the accident, an alternative method — the cost of repair — is an acceptable measure of damages if the cost of repair does not exceed the amount of damages that would be arrived at using the primary measure of damages. In other words, the cost of repair must not exceed the diminution in market value. Nor may the cost of repair exceed the fair market value of the property before the accident. Newark Gardens, Inc. v. Royal Globe Insurance Co., Inc. (Feb. 11, 1982), Franklin App. No. 81AP-618, unreported.

In this case there was no direct evidence tending to prove the difference in the market value before and after the accident. The only evidence was from the wife of the owner who described the condition of the car after the collision and opined that the car was worth $7,000 before the accident. However, in the case before us, evidence regarding the cost of repairs was introduced without objection in the absence of any evidence of diminution of market value. Under these circumstances, the objection to the absence of market-value evidence has been waived. Northern Union Holdings Corp. v. Amber Builders, Inc. (June 12, 1973), Franklin App. No. 73AP-47, unreported. Defendant has cited no persuasive legal authority for his assertion that plaintiff Allstate Insurance Company was required to obtain used parts to repair the Davis automobile. Plaintiff Allstate Insurance Company was entitled to a judgment for the full amount of the cost of repairs. The assignments of error are well taken and are sustained.

For the foregoing reasons, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion a.nd in accordance with law.

Judgment reversed and cause remanded.

Whiteside, P.J., and NoRris, J., concur.

1

Apparently the parties agreed before the trial that the issue to be determined was whether plaintiffs were required to repair the damaged car with used parts. Any objection plaintiffs may have had to defendant’s failure to assert mitigation of damages as an affirmative defense has been waived.