Gill v. Timm , 31 Utah Adv. Rep. 24 ( 1986 )

HOWE, Justice

(concurring and dissenting):

I concur in that part of the majority opinion holding that the trial court did not err in sua sponte amending the plaintiff’s complaint to state a cause of action in negligence. However, I dissent from the further holding that the plaintiff may recover over $3,000 in storage charges. This is not a case of the defendant’s failing to raise mitigation of damages; instead, it is a case where the plaintiff did not prove his entitlement to any storage costs.

The majority correctly states that the proper measure of damages was $3,362.57 for repairs and $150 for the reasonable loss of use of the vehicle. Our decision in Metcalf v. Mellen, 57 Utah 44, 192 P. 676 (1920), fully supports that conclusion. In addition, the plaintiff was entitled to recover reasonable storage charges, if any he incurred, for a reasonable period of time while he was awaiting the making of the repairs, if it was reasonably necessary to store the vehicle. 8 Am.Jur.2d Automobiles and Highway Traffic § 1139; 25 C.J.S. Damages § 48b; Blashfield, Automobile Law and Practice § 480.13, at 45 (1969). See also Annot., 55 A.L.R.2d 936. For example, in White v. Trahan, La.App., Ill So.2d 561 (1959), the court held that where the damaged party does not know whether his vehicle is a total loss, he should be allowed a reasonable time in which to make that determination. The court disallowed his claim for 139 days of storage while he was negotiating with an insurance company and limited him to 14 days, which the court found to be a reasonable time. Later, the same court, in Heider v. Employers Mutual Liability Insurance Co. of Wisconsin, La.App., 231 So.2d 438 (1970), again limited the plaintiff to 14 days’ storage where he was endeavoring to settle with an insurance company. Similarly, in Tuck v. Harmon, La.App., 151 So. 806 (1934), the court disallowed the plaintiffs claim for six months storage which was incurred due to his inability to pay the repair bill on the damaged vehicle.

In the instant case, the plaintiff in his complaint sought the cost of repair and damages for loss of use. Nothing was mentioned in the complaint regarding storage of the vehicle, and no request was made for recovery of storage charges. Since any such damages are special damages, they should have been specially pleaded so that the defendant was afforded an opportunity to present any available defense. Utah R.Civ.P. 9(g); Cohn v. J.C. Penney Co., Utah, 537 P.2d 306 (1975). The majority faults the defendant for not raising mitigation of damages as an affirmative defense in his answer to the complaint, but he could hardly be expected to do so when special damages for storage were not sought in the complaint.

The first witness for the plaintiff at trial was the manager of the body repair department of the automobile dealer from whom the plaintiff had purchased his automobile. He properly testified that $3,362.57 was the reasonable cost of repairing the damage to the vehicle. He was then asked by the plaintiffs counsel:

Question: What is the normal storage fees for a car to stay on your lot until it is repaired?

Mr. Blackham [counsel for defendant]: I’m going to object to that, your Honor, as not being material.

Mr. Dalby [plaintiffs counsel]: Your Honor, I think it’s part of the damages. Mr. Blackham: It hasn’t been alleged in the complaint, your Honor.

The Court: He’s either got a claim for loss or — and storage was a material issue in terms of the court’s determination on that. Your objection is overruled. What is your storage fee?

The Witness: At the time being it’s $5 a day.

The Court: $5 a day?

Witness: Yeah.

The witness then testified that the plaintiff’s automobile had been on his employer’s lot for 1,207 days up to the date of trial. At $5 per day, this would amount to total storage charges of $6,035.

This witness was followed by the plaintiff, who testified as to how the accident happened. On cross-examination, he admitted that the automobile had not yet been repaired because his insurance company had refused to cover the loss due to his failure to follow proper procedures in making his claim. The plaintiff then rested his case. Counsel for the defendant then moved to dismiss the complaint on the ground that it did not state a cause of action in negligence. The court denied the motion and sua sponte amended the complaint to conform with the proof that the defendant had negligently collided with the plaintiff, proximately causing him damages.

Counsel for the defendant declined to put on any evidence and rested his case. The court then began his ruling by turning to the plaintiff and saying:

One problem you’ve got, Mr. Dalby, and no one has addressed it, is mitigation. Dr. Gill’s car has been sitting down there building up more storage costs than it costs to repair and the plaintiff has a responsibility to mitigate his damages, and maybe he can’t do it. That is, maybe he is unable to have the $3,362.57.

The court then proceeded to rule that since the cost of repair ($3,362.57) and the 1,207 days of storage at $5 per day ($6,035) would exceed the value of the automobile, he would limit the plaintiff to the value of the automobile, which was $6,500, and $150 loss of use. The net result of this judgment is that the plaintiff recovers $3,137.43 for storage. This cannot stand.

There is no foundation in the evidence for any award of storage costs to the plaintiff. The plaintiff presented no evidence as to why storage on the dealer’s lot was reasonably necessary. He offered no explanation as to why it could not have been stored at his home without any cost. Furthermore, the manager of the body repair department did not testify that $5 per day was reasonable; he only testified that $5 per day was the “normal storage fee for a car to stay on his employer’s lot. Even more seriously, the plaintiff's explanation as to why the car had been in storage for more than three years and three months awaiting repairs reflected that it was his own fault for not following the proper procedures in presenting his claim to his insurance company. Thus, the lengthy period of storage was not reasonably necessary. The trial court made no finding that the storage charges awarded were reasonable in amount, that they were reasonably necessitated, nor that the long period of storage was reasonably necessary. The court’s only finding on storage was that “plaintiff has further incurred storage charges of $3.00 [sic] per day from Dec. 2, 1979 to the date of trial.” Obviously, this finding is wholly inadequate to support any award. In sum, there is no evidentiary basis for the award of any storage costs by the court.

Even if the issue is viewed as being one of mitigation of damages, as does the majority, instead of the plaintiff’s failure to prove his case, as I view it, the issue of mitigation was clearly before the trial court. The defendant cross-examined the plaintiff as to why he had left the car in storage for more than three years. The plaintiff stated that he had not abandoned the vehicle, that he had made contact with his insurance company, and that “under the circumstances they don’t feel like they are responsible for it.” He gave no indication whether he was still pursuing the claim and offered no explanation as to why he allowed storage charges to continue to mount up. Moreover, he did not testify that he could not otherwise pay for the repairs. He offered no explanation as to why he could not obtain a loan to finance the repairs. It requires only a simple calculation to show that the interest on a $3,400 loan would have been much less than the $5-per-day storage charges.

.Not only did counsel for the defendant pursue mitigation of damages on cross-examination of the plaintiff, but the trial judge brought it up himself immediately after the defendant rested his case, as has been heretofore shown. Thus, the court was fully aware of the need for the plaintiff to mitigate, and nothing the defendant could have said would have given the court more notice that mitigation was in issue. The judge did not afford either counsel the opportunity to argue his case. In spite of the judge’s concerns about what he termed the plaintiffs failure to mitigate, he nevertheless proceeded to award the plaintiff over $3,000 in storage costs. This is untenable and cannot stand. The majority faults the defendant for not pursuing the issue more vigorously in the trial court. This argument overlooks the fact that the burden was on the plaintiff to provide the proper evidentiary basis for the award of storage costs. There was no burden on the defendant at trial to challenge the award when no competent evidence was presented on that subject by the plaintiff. Delatore v. Delatore, Utah, 680 P.2d 27 (1984).

I would reverse the judgment and limit the plaintiff to the cost of repairs of $3,362.57 and $150 for loss of use. Whether the plaintiff should have been entitled to interest on those amounts from the date of the accident is not before us, as the plaintiff at no time requested interest. He asked for attorney fees and costs of court. The trial court properly denied him attorney fees but did award him costs.

STEWART, J., concurs.