This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-144

 

Craig Tekse,

Appellant,

 

vs.

 

William Mitchell, et al.,

Respondents.

 

Filed August 26, 2003

Affirmed
Forsberg, Judge
*

 

Meeker County District Court

File No. C0-02-385

 

Craig Tekse, 3735 Orchard Avenue North, Minneapolis, MN 55422 (pro se appellant)

 

Matthew P. Kostolnik, J. Vincent Stevens, Gislason & Hunter LLP, Suite 215E, 9900 Bren Road East, P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondents)

 

            Considered and decided by Randall, Presiding Judge, Hudson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            After his vehicle was damaged in an automobile accident, appellant received from respondents’ insurer a check for the cost of repairs.  Appellant claimed further “intangible losses,” such as possible undiscovered damages and loss of peace of mind in driving the now-repaired vehicle, and sought damages to allow him to trade in his vehicle to obtain a new one.  The conciliation court awarded him damages and the insurer paid the additional damages.  On appeal, the district court rejected his claims and ordered him to repay the additional damages awarded by the conciliation court.  Because the district court did not err in directing a verdict for respondents when it concluded that the conciliation court had awarded appellant an overpayment, we affirm.

FACTS

            Craig Tekse appeals from a district court judgment for $2,064 in favor of William and Dianne Mitchell. The district court concluded that in conciliation court, Tekse had received this amount in overpayment for damages incurred to Tekse’s pickup truck as a result of an accident caused by William Mitchell.

            On January 27, 2002, Tekse’s truck was struck from behind by a vehicle driven by William Mitchell.  Mitchell conceded liability for the accident.  Farmers Insurance Company, the Mitchells’ insurer, estimated the cost for repairs to be $4,886.22.  Tekse also obtained his own estimate of the damage, which was about $1,000 less than the sum estimated by Farmers.  When he received the check for $4,886.22 from the insurance company, Tekse cashed it but did not repair his truck, other than to replace the rear bumper and pound out some parts to make the truck drivable.

            Tekse then filed suit in conciliation court, claiming that the insurance check covered only the repair costs and that to return the truck to its pre-accident condition, he would have to purchase a new vehicle at a cost of $10,200.  Therefore, he asked for $7,500 plus costs, which would have resulted in a total award greater than needed to purchase a new truck.  In conciliation court, he was awarded $2,064 in uncompensated damage, the difference between the truck’s blue book value of $9,925 and the sum of its current value ($3,000) and the insurance payment already received ($4,886), plus a $35 filing fee.[1]  Farmers then issued a check for $2,064, which Tekse cashed. 

            Tekse then appealed to district court.  He contended that the conciliation court award would still require that he pay $8,200 out-of-pocket for a new truck, which he believed was too much considering that the accident was not his fault.  Tekse maintained that although the conciliation court award would enable him to trade in the truck as if he had traded it in the day before the accident, he had no intention of trading in the truck before the accident occurred and would likely have kept it for about 15 years.  He stated that he was willing to contribute $1,700 toward the cost of a new truck, but that was all. 

            The district court, after a court trial, found that although Tekse had presented no evidence of a diminished value for his truck, he believed that he was entitled to compensation for “intangible losses,” such as possible undiscovered damages and loss of peace of mind in driving a damaged truck, even if it were repaired.  The district court granted the Mitchells’ motion for a directed verdict, concluding that Tekse’s damages were zero, because he had been fully compensated for the damage to his truck in the amount of $4,886.22, and he had received an overpayment in the amount of $2,064.  Consequently, the Mitchells were entitled to judgment against Tekse for the amount of overpayment plus interest, costs, and disbursements.  This appeal followed.  

D E C I S I O N

            A district court may grant a motion for a directed verdict when the evidence is insufficient, as a matter of law, to present a factual question.  Wall v. Fairview Hosp.  & Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998).  This court reviews de novo the district court’s ruling on a directed verdict.  Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App. 2000), review denied (Minn. July 25, 2000). 

            If personal property is damaged, but not destroyed, the plaintiff may elect one of two measures of damage.  O’Connor v. Schwartz, 304 Minn. 155, 158, 229 N.W.2d 511, 513 (1975) (relying on Restatement, Torts, § 928).  He may either recover the difference in value of the property before and after the harm, or the reasonable cost of repair.  Id.  If repairs have not fully restored the property, the owner is entitled to the remaining diminution in value, as long as the total damages awarded do not exceed (1) the difference in the value of the property before and after the damage, or (2) the cost of restoring the property to substantially its former value, whichever is less.  Rinkel v. Lee’s Plumbing & Heating Co., 257 Minn. 14, 20, 99 N.W.2d 779, 783 (1959).  The comment to the Minnesota Civil Jury Instruction Guide, CIVJIG 92.10, further explains the governing law:

            A claimant suing for less than total destruction to his property has an election under the law of damages to choose the cost of repair or the value before and after the accident.  This election is exercised by the evidence introduced by the claimant. 

 

* * * *

 

If plaintiff fails to elect his measure of damages and introduces evidence of the difference in value of the automobile before and after the accident and also the cost of repair, plaintiff is deemed to have elected as his measure of damages that which will give the lowest recovery.

 

4A Minnesota Practice, CIVJIG 92.10 (1999) (citation omitted).   

            In this case, it is unclear from the record before us whether Tekse introduced evidence both of the cost of repairing the truck and of its difference in value before and after the accident.  The conciliation court apparently considered the blue book value of the truck in making its initial award of damages.  But whether or not we deem Tekse to have exercised his election of damages, the result remains the same.  He definitely introduced evidence of the cost of repairs, which was the $4,886.22 that he received from the insurance company.  Because this cost of repairs was less than the measure of the difference in value of the truck before and after the accident, the cost of repairs controls as the proper measure of damages.  Therefore, the district court acted properly in holding that the conciliation court erred in awarding Tekse damages over and above the cost of repairing his truck, and directing a verdict for the Mitchells. 

            Tekse argues that he has a constitutional right to recover damages on another theory besides property-damage law.  But the constitution creates no such right.   “‘Compensation is what the law aims to give in such cases.’”   Kopischke v. Chicago, St. P., M. & O. Ry. Co., 230 Minn. 23, 30, 40 N.W.2d 834, 839 (1950) (quoting Justice Mitchell in Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290, 294, 30 N.W. 888, 890 (1886)).   Tekse further contends that he has a right to recover for intangible losses, such as the risk and loss of security in driving a vehicle that was damaged in an accident, even if repaired.  But, again, the law provides for no such recovery.  See, e.g., Giacomino v. Tri-State Ins. Co., 595 N.W.2d 530, 532 (Minn. App. 1999) (holding that owner of antique car that was totally destroyed could recover only market value, not replacement value, of destroyed vehicle, even though owner claimed that market value was not an accurate reflection of “special value” that car had to him).

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The record shows that the conciliation court mistakenly awarded Tekse $2,064 when the total award should have been $2,074 ($2,039 in uncompensated damages, plus a $35 filing fee).