may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed September 15, 1998
Affirmed as modified
Hennepin County District Court
File No. AC9618380
Steven L. Theesfeld, Yost & Baill, LLP, 2350 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Holtan, Judge.[*]
Appellant Brent Russell's taxicab was damaged in an accident in which respondent Theodor Olson was at fault. On appeal from a judgment, Russell argues that the trial court awarded him insufficient damages for loss of use. We affirm as modified.
The accident was reported to State Farm on January 25, 1994. Michael Bothwell, an estimator for State Farm, inspected the taxi on February 2, 1994. There was evidence that another estimator for State Farm had an appointment to inspect the taxi on February 1, 1994. However, no inspection occurred on that date. Bothwell thought that the taxi might have been unavailable for inspection on February 1, 1994, but was not certain why the other estimator failed to inspect the taxi. Bothwell assessed the taxi as a total loss.
Russell testified that he opted to keep the taxi and have it repaired because doing so would take less time than obtaining a replacement vehicle. Russell testified that a replacement vehicle would have required painting and equipment installation and would have had to pass city and safety inspections.
Russell testified that after Bothwell inspected the taxi, Russell contacted three car dealerships. Two of the dealerships said they could begin repairing the taxi in two to three weeks and the other dealership did not have the necessary equipment to make the repairs.
On February 16, 1994, Russell brought the taxi to Frank Fornborth's Auto Body to be repaired. Fornborth's subcontracted out alignment work that needed to be done on the taxi because Fornborth's did not have an alignment rack. Fornborth's did not complete the repairs until March 22, 1994.
Bothwell testified that during his training to become an estimator, he had taken many courses about cars, including courses regarding body shop repairs and mechanical repairs. Bothwell testified that in working as an estimator for State Farm for eight years, he had worked with about 200 body shops. He opined that once Russell's taxi got to a body shop, two weeks would have been a reasonable time to complete the repairs. Bothwell's time estimate accounted for normal problems that arise during repairs and for the fact that body shops typically work on more than one vehicle at a time.
Russell testified that it was not feasible for him to have a replacement vehicle available for use while his taxi was being repaired because each taxi license is assigned to a single vehicle and a license costs about $20,000. Russell also testified that it was not profitable to maintain an extra taxi because even an unused vehicle depreciates.
From the time of the accident until Fornborth's completed repairs, Russell was without the use of his taxi for 57 days. The trial court found that two weeks was the time necessarily required to make needed repairs to Russell's taxi and awarded Russell damages for two weeks' loss of use.
We will not reverse a finding of fact unless it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."
Milbank Ins. Co. v. Johnson, 544 N.W.2d 56, 59 (Minn. App. 1996) (quoting Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)). We must defer to the trial court's assessment of witness credibility. Minn. R. Civ. P. 52.01.
1. Olson argues that the issue of whether Russell was entitled to damages for loss of use of the taxi from the time of the accident is not properly before this court because the trial court did not address the issue and Russell failed to move for a new trial. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court generally considers only those issues that the record shows were presented to and decided by the district court); Tyroll, 505 N.W.2d at 56 ("matters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error").
At trial, Russell requested damages for the 57 days he was unable to use his taxi. In deciding that Russell was entitled to damages for only two weeks, the district court implicitly decided that Russell was not entitled to damages for the remaining 43 days. The issue, therefore, was presented to and decided by the trial court.
Regarding Russell's failure to make a new trial motion, Russell is requesting that this court determine whether the evidence supports the trial court's damages award. The issue is not one of trial procedure but rather a question of whether the trial court properly applied the law to the facts of the case. Whether the evidence sustains the trial court's findings of fact and conclusions of law are appropriate issues to review on appeal from a judgment. Tyroll, 505 N.W.2d at 56; see also Williams v. Boswell, 444 N.W.2d 887, 888 (Minn. App. 1989) (whether lessee was entitled to recover damages for the loss of use of a leased taxicab was appropriate issue for review on appeal from a judgment), review denied (Minn. Oct. 31, 1989). The issue of whether Russell was entitled to damages from the time of the accident is properly before this court.
2. An owner of a commercial vehicle may recover for damages for loss of use of the vehicle during the time reasonably necessary to repair the vehicle. Kopischke v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 230 Minn. 23, 32-33, 40 N.W.2d 834, 839 (1950); Williams, 444 N.W.2d at 888. To recover for damages suffered as a result of loss of use of a commercial vehicle a plaintiff must show that a replacement vehicle could not have been obtained while repairs were being made. Hanson v. Hall, 202 Minn. 381, 388, 279 N.W. 227, 231 (1938).
The trial court found:
From the time of the accident until the taxicab was repaired, [Russell] lost income that he would have made pursuant to the lease agreements with Haney and Nelson.
This finding recognizes that the taxi could not be used from the date of the accident until repairs were completed and that a replacement vehicle could not have been obtained while repairs were being made. The evidence supports this finding.
Based on Bothwell's testimony, the trial court found that the necessary repairs to the taxicab could have been completed by an automobile repair shop that had the necessary equipment, including an alignment rack, in two weeks.
Bothwell testified that once the taxi got to a body shop, two weeks would have been a reasonable time for a body shop to complete the repairs. Bothwell's testimony supports a finding that the reasonably necessary repair time, after getting the taxi to a body shop, was two weeks. However, absent evidence that the taxi could have been brought to a body shop for repairs immediately after the accident, Bothwell's testimony does not support a finding that repairs to Russell's taxi could have been completed within two weeks after the accident.
In concluding that Russell was entitled to loss of use damages for only 14 days, the trial court failed to consider the amount of time that was necessary to get the taxi to the repair shop, time during which the taxi could not be used. The evidence showed that an inspection of Russell's taxi by a State Farm estimator was a necessary part of the repair process and had to be performed before repairs could be started. Bothwell made the inspection on February 2, 1994.
Russell testified that after the inspection, he contacted three car dealerships. Two of the dealerships could begin repairing the taxi in two to three weeks and the other dealership did not have the necessary equipment to make the repairs. Russell brought his taxi to Fornborth's for repairs on February 16, 1994, two weeks after Bothwell's inspection. Olson did not present evidence that another body shop could have begun repairs sooner, and the evidence did not indicate that Russell unreasonably delayed bringing his taxi in for repairs.
Absent evidence that repairs could have been started before February 16, 1994, the time from the date of the accident until Russell brought his taxi to Fornborth's should have been included in the time reasonably necessary to make repairs. Russell testified that it was not feasible for him to have a replacement vehicle available for use while his taxi was being repaired, and no contrary evidence was presented. We, therefore, conclude that, under the rule in Kopischke, Russell was entitled to loss of use damages from the date of the accident (January 24, 1994) through the date his taxi had been at Fornborth's for two weeks (March 1, 1994).
Russell argues that Bothwell's testimony that repairs to his taxi reasonably could have been completed two weeks after the taxi got to the shop was speculative and should not have been relied on by the trial court. We disagree. Russell argues that Bothwell did not account for problems that arose during repairs to Russell's taxi, but does not cite evidence showing that any problems occurred beyond the normal problems accounted for by Bothwell. Russell also argues that Bothwell's time estimate was inaccurate because he did not include frame and suspension damage in his estimate of damage to Russell's taxi. However, Russell cites no evidence showing the frame and suspension damage made Bothwell's time estimate unreasonable.
The trial court's award of loss of use damages to Russell equaled the damages incurred by Russell during the first two weeks his taxi was at Fornborth's, from February 16, 1994, through March 1, 1994. In addition, Russell was entitled to loss of use damages incurred from January 24, 1994, through February 15, 1994. Applying the formula used by the trial court, Russell incurred the following loss of use damages from January 24, 1994, through February 15, 1994:
$4,260.94 that he would have earned driving the taxi himself six days per week for three weeks plus one day ($244.26 per day times 19 days); and
$150 under the lease agreement with Haney ($50 per shift times three Mondays); and
$1150 under the lease agreement with Nelson ($50 per shift times 23 days).
The total loss of use damages incurred by Russell from January 24, 1994, through February 15, 1994, was $5,560.94. We modify the judgment in Russell's favor from $4,219.64 to $9,780.58.
Affirmed as modified.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.