BNUMBER:  B-261274
DATE:  January 16, 1996
TITLE:  Americar Rental System, Inc.-Damage to Rental Cars

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Matter of:Americar Rental System, Inc.-Damage to Rental Cars

File:     B-261274

Date:   January 16, 1996 

DIGEST

A rental car company appeals settlements denying claims for 
reimbursement for damage to two vehicles rented by government 
employees on official business.  Under terms of an agreement with the 
Military Traffic Management Command (applicable to most federal 
agencies), in renting cars to government employees, the rental company 
assumes all liability for the vehicles unless one of several specified 
exceptions apply, two of which the rental company seeks to apply in 
this case.  In one claim, the issue is whether the driver committed 
willful or wanton negligence when he left the keys in the ignition and 
the engine running in an unattended vehicle that was stolen.  In the 
other, the issue is whether the employee was under the influence of 
alcohol when he drove off the side of the road.  In each case, the 
standard is controlled by the law of the state in which the conduct 
occurred.  Both settlements are affirmed on the basis that there is 
insufficient evidence in the record to support the claims under either 
exception.

DECISION

Americar Rental System, Inc., of Madison, Alabama, appeals two 
settlements by our Claims Group denying claims for damage to vehicles 
Americar rented to federal government employees who were authorized by 
their agencies to rent the vehicles incident to their temporary duty 
assignment.[1]  The settlements are affirmed.

BACKGROUND

In the first case, the vehicle was stolen after the employee, Junior 
D. Kerns, a civilian employee of the Department of Defense, left the 
keys in the ignition and the engine running when he went inside a 
convenience store in Huntsville, Alabama, to pay for gasoline.  The 
vehicle eventually was recovered in damaged condition.  Americar's 
$2,662.42 claim consists of $1,840.17 for repairs and $822.25 for lost 
rental revenue at $14.95 a day for the 55 days the car was missing or 
being repaired.

In the second case, James G. Powers, then an employee of the National 
Aeronautics and Space Administration, ran off the side of a road 
returning to his motel after dinner at a friend's home near 
Huntsville, Alabama.  The vehicle was a total loss.  Mr. Powers 
asserts that the accident, which occurred at about 10:30 p.m., 
resulted from darkness and his temporary blindness caused by an 
approaching car's failure to dim its lights, and his unfamiliarity 
with the road, which he states went from four lanes to two lanes 
abruptly and without sufficient warning.  Mr. Powers acknowledged 
having two beers between 5 p.m. and 6 p.m., prior to dinner, but 
asserts he was not under the influence of alcohol when the accident 
occurred.  Mr. Powers's statement is supported by a statement from the 
friend at whose home he had spent the evening.

Mr. Powers also states that he passed several field sobriety tests 
administered by the police at the accident scene, although the fact 
that these tests were administered is not noted on the police report.  
The police report includes a notation of alcohol, but gives no further 
explanation.  Mr. Powers states that the notation was made because he 
told the policeman that he had consumed two beers earlier in the 
evening.  According to the report, the investigating officer did not 
cite Mr. Powers for driving under the influence of alcohol.

Americar's claim for this loss is $10,538.84, which includes the value 
of the vehicle (less salvage value), towing, and loss of use for 28 
days.

Both rentals are covered by the basic U.S. Government Car Rental 
Agreement, promulgated by the Military Traffic Management Command.  
Americar on August 28, 1992, accepted the terms of this agreement as 
covering its rental of cars to federal employees authorized to rent 
vehicles at government expense.[2]

Paragraph 9a of the agreement provides in pertinent part as follows:

     "b.  Loss of or Damage to Vehicle.  Notwithstanding the 
     provisions of any Company vehicle rental agreement executed by 
     the Government renter, the Company hereby assumes and shall bear 
     the entire risk of loss of or damage to the rented vehicles 
     (including costs of towing, administrative costs, loss of use, 
     and replacements), from any and every cause whatsoever, including 
     without limitation, casualty, collision, fire, upset, malicious 
     mischief, vandalism, falling objects, overhead damage, glass 
     breakage, strike, civil commotion, theft and mysterious 
     disappearance, except where the loss or damage is caused by one 
     or more of the following:

        "(1)  Willful or wanton misconduct on the part of a driver.

                    .     .     .     .     .

        "(3)  Operation of the vehicle by a driver who is under the 
        influence of alcohol or any prohibited drugs;"

Paragraph 9c provides that claims for damage to a vehicle "will not 
include amounts for loss of use."

The two agencies involved and our Claims Group denied Americar's 
claims on the basis that liability is precluded by the terms of the 
agreement.  Americar disagrees, arguing that the exception for willful 
or wanton misconduct on the part of the driver applies to Mr. Kerns's 
leaving the keys in the ignition and the engine running, and the 
exception for operation of the vehicle by a driver who is under the 
influence of alcohol applies to Mr. Powers.

OPINION

As a preliminary matter, we note that as the Claims Group stated, the 
amounts claimed for loss of use of the vehicles in both cases would 
not be payable because of the specific exclusion of claims for loss of 
use stated in paragraph 9c, quoted above, whether or not the cases are 
covered by an exception in paragraph 9a.

As to the two exceptions to which Americar refers, the meanings of the 
terms "wanton or willful misconduct" and "under the influence of 
alcohol," used in paragraph 9a of the agreement, are not defined in 
the agreement.  Therefore, it is appropriate to look to the law of the 
state in which the conduct occurred in construing those terms.  Thus 
the issues here are whether, under Alabama law, Mr. Kerns's act of 
leaving the keys in the unattended car with the motor running while 
paying for gasoline amounts to willful or wanton misconduct, and 
whether Mr. Powers was under the influence of alcohol, thus causing 
his accident.

The Kerns case

In Lynn Strickland Sales v. Aero-Lane Fab., 510 So. 2d 142 at 145 
(Ala. S. Ct. 1987), the Alabama Supreme Court, in distinguishing 
between negligence and wanton or willful conduct, stated that 
"Implicit in wanton, willful, or reckless misconduct is an acting, 
with knowledge of danger, or with consciousness, that the doing or not 
doing of some act will likely result in injury."  Wanton or willful 
misconduct is distinguished from negligence not by the level of 
misconduct, but rather by the actor's state of mind.  Valley Building 
& Supply, Inc. v. Lombus, 590 So. 2d 142 (Ala. S. Ct. 1991).  The 
actor must possess some degree of consciousness "that injury is likely 
to result from his act or omission."  Id. at 144.  The test for wanton 
misconduct also has been expressed as whether the "act or failure to 
act is in reckless disregard of the consequences."  Hamme v. CSX 
Transportation, Inc., 621 So. 2d 281 (Ala. S. Ct. 1993).

In this case, there is no evidence that Mr. Kerns believed that, in 
the brief time it would take him to pay for the gasoline, the car was 
likely to be stolen or that he had no regard whether or not the car 
was stolen.  As the Claims Group noted, the theft of the car clearly 
was contrary to Mr. Kerns's interests.  Therefore, while Mr. Kerns may 
have been negligent, we do not believe his conduct rose to the level 
of willful or wanton.[3]

The Powers case

The Alabama Code provides that "[a] person shall not drive or be in 
actual physical control of any vehicle while:  . . . (2) Under the 
influence of alcohol . . . ."  Ala. Code 1975  32-5A-191(a)(2).  This 
statute does not define "under the influence."  However, the Alabama 
Supreme Court has interpreted this phrase to require evidence that the 
driver had consumed alcohol "to the extent that it affected his 
ability to operate his vehicle in a safe manner."  Ex Parte Buckner, 
549 So. 2d 451, 453 (Ala. S. Ct. 1989).  This may be established with 
eyewitness testimony regarding how the person had been driving, his 
physical appearance and his inability to perform certain coordination 
tests.  Frazier v. City of Montgomery, 565 So. 2d 1255, 1258 (Ala. Ct. 
App. 1990).

There is no evidence that the two beers Mr. Powers admits to drinking 
prior to his dinner, and some 5 hours before the accident, affected 
his ability to drive in a safe manner.  None of the types of evidence 
cited in Frazier, supra, is present in the record here.  Moreover, the 
investigating officer's failure to cite Mr. Powers for driving under 
the influence, or even to note administration of a breath test, 
suggests that he did not consider that Mr. Powers had been driving 
under the influence of alcohol.

Therefore, we do not believe Americar has provided sufficient evidence 
to establish its claims under the cited exceptions to the agreement in 
either of the two cases.  Accordingly, the Claims Group settlements 
are affirmed.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. The two settlements are Z-2869367-01, Jan. 27, 1995, which involved 
a vehicle driven by Junior D. Kerns, and Z-2869367, April 4, 1995, 
which involved a vehicle driven by James G. Powers.  Ms. Anna P. 
Weeks, the owner of Americar Rental Systems, Inc., submitted the 
appeals on behalf of the company.

2. Americar is one of several rental companies that entered into the 
agreement to make special rates and privileges available to government 
employees, including maintaining full comprehensive and collision 
insurance, the cost of which is built into the rental rates charged.

3. The Alabama Supreme Court, in a case in which it held that the 
operator of a vehicle was not liable for damages caused to a third 
party by someone who stole the vehicle, even though the operator left 
the vehicle unattended with the keys in the ignition, recognized that 
leaving the keys in the ignition may constitute negligence, but made 
no mention of wanton or willful conduct.  Linner Vines, etc., et al. 
v. Plantation Motor Lodge et al., 336 So. 2d 1338 (S. Ct. 1976).