Opinion
A15-0861
02-08-2016
Lawrence Charles Nichols, Appellant, v. Erin Lynn Cimbura, Respondent.
Robert Edwards, Robert N. Edwards, Chartered, Anoka, Minnesota (for appellant) Steven P. Pope, Eden Prairie, Minnesota (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Affirmed
Chutich, Judge Anoka County District Court
File No. 02-CV-14-5790 Robert Edwards, Robert N. Edwards, Chartered, Anoka, Minnesota (for appellant) Steven P. Pope, Eden Prairie, Minnesota (for respondent) Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Hooten, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Lawrence Charles Nichols appeals the denial of his motion for summary judgment and the grant of respondent Erin Lynn Cimbura's summary-judgment motion. Nichols argues that, in addition to recouping the cost of repairs to his car resulting from an accident caused by Cimbura, he is entitled to the diminution in fair market value attributable solely to the car's involvement in the accident. Because genuine issues of material fact remained and Nichols failed to establish that he was entitled to recover for any remaining diminution in value beyond the cost of repairs, the district court properly denied his motion for summary judgment. Because no genuine issues of material fact remained on Cimbura's summary-judgment motion and she was entitled to judgment as a matter of law, the district court properly granted her motion. We affirm.
FACTS
This case arises from a car accident involving appellant, Lawrence Charles Nichols, and respondent, Erin Lynn Cimbura. On January 18, 2014, Cimbura collided with the passenger side of Nichols's car, a 2013 GMC Terrain, after failing to yield to him at a stop sign. Cimbura admitted fault for the accident, and her insurer paid Nichols $11,456 for the repairs made to his car.
After the repairs were complete, Nichols hired Justin Petty, a Texas-based appraisal expert, to conduct a diminished-value appraisal on his car. Petty has 18 years of experience in automobile-insurance claims and appraisals and regularly conducts diminished-value appraisals on repaired cars. In his appraisal of Nichols's car, Petty reported that the repair work was excellent quality and no repair-related diminution in value occurred. Based on the pre-accident value of Nichols's car and a survey of car dealerships in Nichols's area, however, Petty opined that Nichols's car suffered a diminution in value of $4,938.97 solely because of its involvement in the accident. Notably, Petty's report did not explain how he determined the pre-accident condition of Nichols's car. To explain the diminution in value, Petty's report emphasized "the general perception of the public that a collision history is a 'defect' that diminishes the value and quality of a vehicle."
In September 2014, Nichols sued Cimbura in conciliation court for the alleged diminution in value to his car, relying on Petty's opinion. After his claim was dismissed with prejudice, Nichols removed the case to district court. He later moved for summary judgment, relying on the police accident report, the repair invoice, and Petty's report. Cimbura filed a cross-motion for summary judgment. Before the summary-judgment motion hearing, Nichols refused to answer Cimbura's discovery requests and refused to be deposed. Ultimately, the district court denied Nichols's summary-judgment motion and granted Cimbura's motion. Nichols appeals.
DECISION
On a motion for summary judgment, "[j]udgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court reviews whether any genuine issues of material fact remain, and whether the district court erred in its application of the law. Dahlin v. Kroening, 796 N.W.2d 503, 504 (Minn. 2011). Genuine issues of material fact must be established by legally sufficient, substantial evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) ("[T]he party resisting summary judgment must do more than rest on mere averments."). "The purpose of summary judgment is to determine whether issues of fact exist, not to resolve issues of fact." Fain v. Andersen, 816 N.W.2d 696, 702 (Minn. App. 2012), review granted and stayed (Minn. Sept. 25, 2012), stay vacated and review denied (Minn. May 21, 2013).
We review the existence of genuine issues of material fact de novo. STAR Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). We also review de novo whether the district court erred in its application of the law. Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn. 1997). "In reviewing the record for the existence of a genuine issue of material fact, we view the evidence in the light most favorable to the party against whom summary judgment was granted." Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007) (quotation omitted).
Minnesota follows the approach of the Restatement of Torts in measuring damages resulting from harm to personal property. O'Connor v. Schwartz, 304 Minn. 155, 158, 229 N.W.2d 511, 513 (1975); see also Hart v. N. Side Firestone Dealer, Inc., 235 Minn. 96, 98, 49 N.W.2d 587, 588 (1951) (noting Minnesota's early commitment to the same rule). The Restatement of Torts provides
Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for [] the difference between the value of the chattel before the harm and the value after the harm or, at the plaintiff's election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs[.]Restatement of Torts § 928 (1939) (emphasis added); see also Restatement (Second) of Torts § 928 (1965) (reflecting only minor wording changes). If the repairs have not fully restored the property, "the owner is entitled to the remaining diminution in value so long as the total damages awarded do not exceed" the lesser of the two measures. Rinkel v. Lee's Plumbing & Heating Co., 257 Minn. 14, 20, 99 N.W.2d 779, 783 (1959).
Torts commentators have called this approach the "option rule." 4 Fowler V. Harper et al., Harper, James, & Gray on Torts § 25.6 (3d ed. 2007). Under this approach, "[a]n injured party may choose between those [measures of] damages." Waseca Sand & Gravel, Inc. v. Olson, 379 N.W.2d 592, 595 (Minn. App. 1985) (citing Hart, 235 Minn. at 98, 49 N.W.2d at 588); see also Kopischke v. Chicago, St. P., M. & O. Ry. Co., 230 Minn. 23, 31, 40 N.W.2d 834, 839 (1950) (noting that "[t]he nature of the evidence, of course, will vary, depending upon the choice [plaintiff] makes"). A claimant chooses the measure of damages by introducing evidence of damages. See Waseca Sand & Gravel, 379 N.W.2d at 595; see also 4A Minnesota Practice, CIVJIG 92.10 use note (2006).
Here, the district court determined that the repairs had returned Nichols's car to substantially the same condition, which precluded his claim for damages for the accident-related diminution in value. Even if this were not the case, it determined that it could not grant Nichols's summary-judgment motion because Nichols failed to establish several elements required to calculate his proposed damages. Further, the district court found that Nichols had elected the cost of repairs as his measure of damages when he introduced evidence of those costs. Once he did so, no genuine issues of material fact remained and Cimbura was entitled to judgment as a matter of law.
Nichols argues that the district court erred in concluding that he was not entitled to recover the diminished value of his car in addition to the cost of repairs. He maintains that he is entitled to the diminution in value under Rinkel and several cases from other jurisdictions, asking us to reverse and remand for entry of judgment in his favor. His arguments are unavailing.
The parties agree that Rinkel, a 1959 Minnesota Supreme Court case regarding property damage to a home resulting from plumbing leaks, applies to resolve this case; the parties propose diverging outcomes, however. In Rinkel, a plumber installed faulty pipes that burst several months later while the homeowners were out of town, causing major water damage to the home. 257 Minn. at 15, 99 N.W.2d at 780. At trial, the homeowners were awarded damages for the cost of repairs related to the water damage, in addition to the deterioration in the value of the carpeting, drapes, and other furnishings. Id. at 19-20, 99 N.W.2d at 783. The supreme court upheld the damages award, relying on the rule that
when the repairs have not fully restored the building the owner is entitled to the remaining diminution in value so long as the total damages awarded do not exceed the difference in the value before and after, or the cost of restoring the building to substantially its former condition, whichever is less.Id. On the record in Rinkel, the damages awarded, including the cost of repairs and the water-damage-related diminution in value of the furnishings, were not excessive. Id.
Because Rinkel concerns damage to a home and not to a car, it is not the most relevant example of application of the "option rule" to this case. Moreover, the parties' focus on Rinkel's "whichever is less" provision distracts from the application of the "option rule," which preserves the claimant's right to elect the measure of damages.
More instructive under these circumstances is the supreme court's decision in O'Connor v. Schwartz, a case involving the cost of repairs that applies the pertinent clause of section 928 of the Restatement of Torts: "with due allowance for any difference between the original value and the value after repairs." 304 Minn. at 158, 229 N.W.2d at 513. In O'Connor, the plaintiff's car was damaged while in the care of Schwartz, the defendant mechanic. After having the engine replaced, the plaintiff sued for the cost of repairs. Id. at 156, 229 N.W.2d at 512.
The unrefuted evidence established that the car was in "perfect operating condition" when Schwartz received it, but when Schwartz returned it, "its engine became frozen up, the pistons were 'seized' to the block, at least a third of the rings were cracked, the muffler and exhaust were bent, and mud and dirt were found on the underside hanging 'fresh over the new paint.'" Id. The plaintiff obtained a default judgment for $1,092, the cost of repairs he alleged, which included major repairs to the engine. Id. at 158, 229 N.W.2d at 513.
On appeal, the defendant insurance company argued that, because after its repair, "the engine was mechanically as good as new," the damages did not accurately reflect the increase in the car's value related to the repairs. Id. The supreme court remanded to the district court because "no due allowance appears to have been made for the vehicle's increased market value after its repair," instructing the district court to reassess the amount of the plaintiff's loss. Id.
Accordingly, we must evaluate the parties' summary-judgment motions under the "option rule" that applies when property damage does not amount to total destruction of the property. This rule allows for recovery of the cost of repairs, with "due allowance for any difference between the original value and the value after repairs." Id. at 158, 229 N.W.2d at 513.
Nichols's memorandum in support of his summary-judgment motion stated that Cimbura's insurer paid for the repairs to his car, and he introduced accompanying evidence showing that the cost of his repairs was $11,456. Thus, he elected the cost of repairs as his measure of damages. See 4A Minnesota Practice, CIVJIG 92.10 use note (noting that election is exercised by evidence introduced by the claimant). As O'Connor illustrates, this election does not preclude further "due allowance for any difference between the original value and the value after repairs." 304 Minn. at 158, 229 N.W.2d at 513.
But, although the approach of the Restatement of Torts supports Nichols's assertion that he should be permitted to recover the diminution in fair market value now attributable to the car's accident history, Nichols's summary-judgment motion lacked the necessary detail to calculate the permissible "due allowance" for any diminution in the car's value. His expert failed to examine the car before the accident, and Nichols presented no evidence to substantiate the conclusion that the car was in "excellent" condition before the accident. Nichols further failed to provide an appraisal of the car's post-accident, pre-repair value or a detailed appraisal of the car after repairs were completed. Without these figures, the district court could not, as a matter of law, determine that Nichols's chosen measure of damages—the cost of repairs—would not exceed the alternative measure of damages, diminution in value. Because genuine issues of material fact remained, Nichols was not entitled to judgment as a matter of law. The district court properly denied his motion for summary judgment.
In addition, we note that at least six other states apply section 928 of the Second Restatement of Torts to permit recovery for diminution in fair market value attributable solely to a car's involvement in an accident. See Max of Switzerland, Inc. v. Allright Corp. of Del., 930 P.2d 1010, 1013 (Ariz. Ct. App. 1997); Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 253 (Ind. 2005); Papenheim v. Lovell, 530 N.W.2d 668, 672 (Iowa 1995); Premier XXI Claims Mgmt. v. Rigstad, 885 A.2d 521, 522-23 (N.J. Super. Ct. App. Div. 2005); Rosenfield v. Choberka, 529 N.Y.S.2d 455, 458 (N.Y. Sup. Ct. 1988); Brennen v. Aston, 84 P.3d 99, 102 (Okla. 2003); see also Noteboom v. Farmers Texas Cty. Mut. Ins. Co., 406 S.W.3d 381 (Tex. App. 2013) (holding that diminution in value was recoverable under the parties' insurance policy). --------
Turning to Cimbura's summary-judgment motion, we conclude that she met her burden of showing that no genuine issue of material fact remained and that she was entitled to judgment as a matter of law. After Cimbura accepted liability for the accident, Nichols's car was repaired. Cimbura's insurer paid the full cost of the repairs, which Nichols accepted. Nichols introduced evidence of his cost of repairs, thereby electing the cost of repairs as his measure of damages. Because Nichols's summary-judgment motion failed to factually support any remaining diminution in value to the car, Cimbura's payment of the cost of repairs satisfied her obligation under the law. Accordingly, the district court properly granted her motion for summary judgment.
Affirmed.