[Cite as Avis Rent-A-Car System, L.L.C. v. Atkinson, 2012-Ohio-4921.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
AVIS RENT-A-CAR SYSTEM, LLC : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
DAVID R. ATKINSON : Case No. 12-CA-15
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 10CV1095
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 22, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARC J. KESSLER BELINDA S. BARNES
65 East State Street 471 East Broad Street
Suite 1400 19th Floor
Columbus, OH 43215 Columbus, OH 43215
Licking County, Case No. 12-CA-15 2
Farmer, J.
{¶1} On September 14, 2009, appellant, David Atkinson rear-ended a rental
vehicle owned by appellee, Avis Rent-A-Car System, LLC. The vehicle sustained
structural damage and as a result, was sold at auction in its unrepaired state.
{¶2} On July 13, 2010, appellee filed a complaint against appellant for
damages incurred from the accident. On November 23, 2011, the parties entered into a
stipulation of liability and certain damage amounts. The stipulation stated the fair
market value of the vehicle prior to the accident was $16,336.49. Appellee sold the
vehicle for $9,800.00 and, after paying an auctioneer's fee of $185.00, collected
$9,615.00 for the sale of the vehicle. Appellee also sought damages for the loss of the
use of the vehicle ($512.40) and administrative expenses ($150.00). The latter
damages were not included in the stipulation.
{¶3} On November 28, 2011, appellee filed a motion for summary judgment.
By decision and order filed January 19, 2012, the trial court granted the motion and
awarded appellee the loss of the fair market value of the vehicle ($6,536.49). A final
judgment entry was filed on February 8, 2012 wherein the trial court increased the
award to $6,721.49 to include the $185.00 auctioneer's fee.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE AVIS RENT-A-CAR SYSTEM, LLC
BECAUSE QUESTIONS OF FACT EXIST AS TO THE AMOUNT OF COMPENSATION
Licking County, Case No. 12-CA-15 3
OWED FOR A DAMAGED VEHICLE THAT IS CAPABLE OF BEING REPAIRED, BUT
IS ELECTIVELY SOLD AT A SPECIALTY AUCTION."
I
{¶6} Appellant claims the trial court erred in granting summary judgment to
appellee as genuine issues of material fact existed. Appellant claims the trial court used
an incorrect valuation to access damages. We disagree.
{¶7} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶8} "Civ.R. 56(C) provides that before summary judgment may be granted, it
must be determined that (1) no genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶9} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
Licking County, Case No. 12-CA-15 4
{¶10} By decision and order filed January 19, 2012 and final judgment entry filed
February 8, 2012, the trial court granted summary judgment to appellee and awarded
appellee $6,721.49 as against appellant. The trial court adopted appellee's position
relative to damages as set forth in the affidavit of Veronica Weston, appellee's Director
of Vehicle Damage Claims, attached to its November 28, 2011 motion for summary
judgment as Exhibit 1:
7. The fair market value of the Chevrolet immediately prior to the accident has
been stipulated to be $16,336.49.
8. It has been further stipulated by the parties that on or about October 15,
2009, the Chevrolet was sold at an auction for $9,800.00.
9. The sale was a commercially reasonable arm's-length transaction where
the buyer of the vehicle was not affiliated with or related to Avis.
10. The auctioneer, Manheim of Cincinnati, charged Avis $185.00 in fees and
Avis received $9,615.00 from the sale of the vehicle.
14. Mr. Atkinson refuses to pay the claim because he is calculating damages
by the repair cost and requesting a repair cost discount that Avis does not
receive when the car is sold and not repaired. Avis merely wants to be
placed into the position it would have been had the accident not occurred.
This cannot happen where Mr. Atkinson claims a discount for repairs that are
never made. We understand our damages to be the difference between the
fair market value of the vehicle immediately before and immediately after the
accident.
Licking County, Case No. 12-CA-15 5
{¶11} The stipulation entered into by the parties on November 23, 2011 stated
the vehicle in question was valued at $16,336.49 prior to the accident and the amount
netted to appellee after the auction was $9,615.00.
{¶12} In his brief at 6-7, appellant states there are two methods of calculating
the damage: the difference in the fair market value of the vehicle before and after the
accident which the trial court used, and the cost of repair which appellant argues is the
true measure of damages. Appellant argues using the values before and after the
accident was incorrect in this case because the subject vehicle was not a total loss and
could have been repaired. Weston depo. at 119. Appellee argues because the vehicle
sustained structural damage and had to be removed from its fleet of rental cars, the
appropriate measure of damages is diminution in value and incidental fees and costs.
{¶13} Undisputed by appellee is the fact that as a rental car company, it has a
policy of not repairing and returning significantly damaged vehicles to its fleet. Weston
aff. at ¶3-6. Appellee sold the subject vehicle per that policy and claimed the amount of
diminution in value as damages.
{¶14} Appellant also argues the auction was not an open market sale, but a
distressed sale. Appellant relies on the argument that a dealer only auction is somehow
not the open market. The affidavits filed with appellee's motion for summary judgment
state the sale was an open market transaction. Weston aff. at ¶6 and 9; Spaulding aff.
at ¶1-4. Appellant also argues appellee failed to mitigate damages in choosing a
wholesale auction.
{¶15} Although appellant's arguments are valid in certain situations, appellee
presented undisputed testimony as to why the cost of repairs to the vehicle was not the
Licking County, Case No. 12-CA-15 6
appropriate measure of damages. As a rental car company, appellee is entitled to be
made whole as a result of appellant's negligence. "[T]he measure of damages is that
which will make the injured party whole." Rakich v. Anthem Blue Cross & Blue Shield,
172 Ohio App.3d 523, 2007-Ohio-3739, ¶ 8. When damaged vehicles of the nature as
the vehicle sub judice are not repaired, the alternative method of fair market value
before and after the accident is appropriate. "This is the preferred method of computing
damages." Erie Insurance Co. v. Howard, 9th Dist. No. 21999, 2004-Ohio-5171, ¶ 4.
{¶16} Despite appellant's argument that the wholesale auction was not an open
market transaction, appellant offered no evidentiary quality materials to support the
argument.
{¶17} Upon review, we find the trial court did not err in granting summary
judgment to appellee and accepting the diminution in value amount for damages.
{¶18} The sole assignment of error is denied.
{¶19} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. concurs and
Hoffman, J. dissents.
s/ Sheila G. Farmer_______________
_s/ W. Scott Gwin_________________
_______________________________
SGF/sg 910 JUDGES
Licking County, Case No. 12-CA-15 7
Hoffman, J., dissenting
{¶20} I respectfully dissent from the majority opinion.
{¶21} While I agree with most of the majority’s analysis, I disagree with its
conclusion the wholesale auction constituted an open market transaction sufficient to
establish the vehicle’s fair market value after the accident. I find this damage
determination insufficient as a matter of law and, as such, did not require Appellant to
offer evidentiary materials to establish an alternative value. The burden to prove the
vehicle’s “fair market value” is upon Appellee.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as Avis Rent-A-Car System, L.L.C. v. Atkinson, 2012-Ohio-4921.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
AVIS RENT-A-CAR SYSTEM, LLC :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DAVID R. ATKINSON :
:
Defendant-Appellant : CASE NO. 12-CA-15
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer_______________
_s/ W. Scott Gwin_________________
_______________________________
JUDGES