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).