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Loss of Use: The Law vs. The Practical

Posted by Bradley Thayer | Nov 26, 2019 | 0 Comments

Bjt.oct.1.loss 20of 20use

The law governing loss of use claims can lead to some pretty amazing potential results, but practical considerations can sometimes serve to tamp those down. 

First, the law in Washington and Oregon:

Washington

A claimant is entitled to recover damages for loss of use during the period between the date of the accident and the date on which the vehicle was released from the repair facility.  Straka Trucking, Inc. v. Estate of Peterson, 98 Wn.App. 209, 989 P.2d 1181 (1999).

A claimant may recover general damages for the loss of use of the vehicle damaged in this collision even though no rental car charges were actually incurred; reasonable rental rates for similar vehicles are sufficient evidence of the amount of such damages.  Holmes v. Raffo, 60 Wn.2d 421, 374 P.2d 536 (1962).  A claimant is entitled to recover damages for loss of use during the period between the date of the accident and the date on which the vehicle was released from the repair facility.  The proper measure of a claimant's damages is the use value of his or her own vehicle.  Straka Trucking,, 98 Wn. App. at 211.

Oregon

 

A claimant is entitled to recover damages for loss of use during the period between the date of the accident and the date on which the vehicle was released from the repair facility, as provided in Oregon Uniform Civil Jury Instruction No. 70.10:

If you find that the defendant's [fault / negligence] caused damage to the plaintiff's property and that such property could reasonably be repaired or replaced, you shall then determine the amount of damages, if any, for loss of use of that property.  Damages for loss of use are measured by the fair rental value of the property, and are limited to the period reasonably necessary for repairing or replacing the damaged property.

[Emphases added]; See Williams v. International Co., 172 Or 270, 285–286, 141 P2d 837 (1943), overruled on other grounds, Rogue Val. Mem. Hosp. v. Salem Ins., 265 Or 603, 615, 510 P2d 485 (1973); Graf v. Don Rasmussen Co., 39 Or App 311, 316, 592 P2d 250 (1979); see also Hudson v. Peavey Oil Company, 279 Or 3, 10, 566 P2d 175 (1977); Anderson v. Columbia Contract Co., 94 Or 171, 192–197, 184 P 240 (1919).

A claimant may recover general damages for the loss of use of the vehicle damaged in the accident even though no rental car charges were actually incurred; reasonable rental rates for similar vehicles are sufficient evidence of the amount of such damages.  Graf, supra, 39 Or App at 317; DeVaux v. Presby, 136 Or App 456, 902 P2d 593 (1995); see also Holmes v. Raffo, 60 Wn.2d 421, 374 P.2d 536 (1962) (cited by Graf, supra).  The proper measure of a claimant's damages is the use value of his or her own vehicle.  Id.

 

What does all of this legalese mean?  Well, if you were driving a rare or exotic car at the time an incident occurs and you can prove that it would cost a lot of money to rent your exact car and your car is unavailable to you for a significant amount of time while it's being repaired (within reason)—then you might have a pretty big potential claim.  For a not terribly exotic example—if you were driving an Audi Q3 and were involved in a crash and it took two weeks to repair your vehicle in the shop and it would've cost $124/day to rent that exact car—you'd have a potential claim worth $1,736 ($124 x 14 days).  As you can imagine—if you were driving a 1964 Porsche 911 and you think about what it might cost to rent a car like that (were it even possible)—these claims can be potentially massive.

Now the practical side—who is your ultimate factfinder (meaning, who is deciding the value of your claims)?  An arbitrator, a judge, or the members of a jury.  Everyday people who more likely than not own and drive vehicles more for function than form.  Suffice it to say, there's a chance that the factfinder—who may very well drive a 1992 Toyota Corolla with 149,000 miles on it or the like—is not willing to award the potentially massive numbers the law may arguably provide for in certain loss of use instances. 

If you have questions about loss of use and would like some help trying to figure out your rights under your particular circumstances, give us a call.

About the Author

Bradley Thayer

Brad Thayer is a partner at the Schauermann Thayer firm. Brad is licensed in both Oregon and Washington. He has been practicing law since 2015. He was presented the 2018 Rising Star Award by the Clark County Bar Association. Brad's practice focuses on automobile collision, motorcycle, bicycle, pedestrian injury, dog bite, and myriad other types of injury and insurance cases. During his free time, Brad enjoys following the Portland Trail Blazers, playing basketball, going to concerts, and playing the drums. He especially enjoys hiking in the Columbia River Gorge and exploring other Northwest wonders.

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