The opinion
STATE OF MAINE { FILEDANDENTSHED — supERIOR COURT
PENOBSCOT, SS. | SUPFRINRAOURT | Docket No. SA 98-01
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MARILYN BRALEY, PENOBSCOT COUNTY
Plaintiff, Lee ees cern ence
Vv. DECISI D_ JUDGMENT
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HEATHER CHEPREN, DONALD}. aye!
Defendant. -
MAY 295 2000
This matter arises from a minor automobile collision on a travel way
within a shopping center. The Plaintiff and the Defendant testified about
the accident and each, though credible, had a different version of the
causative event. However, because the Plaintiff failed to prove damages by
a preponderance of the evidence, judgment must be for the Defendant.
The Plaintiff was the owner of a twelve (12) year old car when the
incident occurred on October 8, 1996. It had been a gift to her from her
daughter when it was a year old. The car was repaired subsequent to the
accident and is still owned and operated by the Plaintiff. In short, the
vehicle suffered only minor damage which did not impair its functional
state. It was driven from the scene and has been in constant use ever
since.
This case is brought in Plaintiff's name by State Farm Insurance
Company. It paid the Plaintiff a sum of money based upon its contract with
her and its understanding of its responsibility to her. In order to do that, it
followed certain procedures which it uses in the ordinary course of its
business. Those procedures are of little relevance to the Defendant unless
they are corroborated by evidence required under Maine law to prove
damage.
Raymond Smith was State Farm’s agent who appeared and offered
testimony relative to the Plaintiff's car which he has never seen. Although
this auto has been constantly used since the incident in 1996, he valued it
only at $150.00. That was his view of the salvage value of it. His opinion
evidence made no reference to the car at issue. He dealt with evidence
generated by records used in the ordinary course of his duties as an —
adjuster who works on approximately 200 files a month. It is to be noted
that the Court accepted him as a person qualified by education, training
and experience to offer opinion evidence. Further, his opinion was based
on hearsay evidence “not excluded by the hearsay rule” See Rule 803
especially Rule 803(17) M.R.Evid. His testimony established the amount
due his customer, the Plaintiff, under his view of State Farm’s contract
with her.
There are no inferences suggested by his testimony which are
relevant or persuasive to the Court on the issue of damages. “A monetary
award of damages based on a judgmental approximation is proper,
provided the evidence establishes facts from which the amount of damages
may be determined to a probability.” Bradford v. Dumont, 675 A.2d 957
(Me. 1996). There is no such evidence here. In this Court’s view this case
falls within the doctrine most clearly announced by Qualey v. Fulton, 422
A.2d 773 (Me. 1980). In State _v. Bartlett, 661 A.2d 1107, 1108 (Me. 1995)
relying on Qualey, supra, the Maine Law Court said: “. . . the trial court, as
factfinder, is not required to adopt the version of the truth proffered by
either party. “The factfinder is permitted to draw a reasonable inference
that logically flows from testimony or proved physical facts, so long as the
evidence is such that it is probable and the inferred fact exists.” Bradford v
Harris, 499 A.2d 159, 161 (Me. 1985). A factfinder is entitled to believe
some parts of witness testimony to the exclusion of others. Cit.om. It has
the prerogative to selectively accept or reject testimony and to combine
such testimony in any way.”
Applying those maxims to the case at bar requires this Court to find
that the opinion testimony of Raymond Smith bears no rational
relationship to the Plaintiff's actual damage and is not credible with
respect to “before and after value” of the automobile in question and is,
therefore not relevant. Neither is his “cost of repair’.
It is to be noted that the actual cost of repair was inquired into when
Vernon Braley testified and he did not know the figure. Although he felt it
was more than $500.00, this Court is not prepared to accept his hazy
recollection as a basis of cost of repair. Moreover, it was not his car and
there was no testimony that he paid any bill. Thus, while his testimony
might fix the maximum amount payable at $500.00, it is insufficient to
support such a finding absent evidence of what was actually repaired.
More importantly, the owner of the vehicle expressed no opinion as
to the value of the car prior to the accident and offered no opinion as to its
value after the accident. In Black v. Goodrich, 237 A..2d 148 (Me. 1968)
the Maine Law Court rejected a repair bill when there was no valid
evidence of the fair market value of the vehicle before and after the
accident. Its opinion was based on the fact that the witness “professed no
independent knowledge of the condition of the automobile before the
accident.” Id. page 148. That is the case here.
No inference can be drawn in the case at bar from the statistical
hearsay of the Plaintiff’s witness. Raymond Smith’s testimony is not
relevant to the case at bar and the amount State Farm elected ‘to pay under
its contract is not evidence of the cost of repair. Maine law has long been
“that the plaintiff is entitled to recover the difference between the value of
the car before and after the accidend (cit. om.) The cost of repair may be
an important element in determining that figure, but it is not conclusive.”
Collins v. Kelley, 133 Me 410, 412, 175 A. 65 (Me. 1935). Judgment must
be for the Defendant because there is no valid evidence of damage.
The Order will be: Judgment for the Defendant. The Clerk is directed
to incorporate this Order into the docket by reference pursuant to
M.R.Civ.P Rule 79 (a).
Dated: MAY 8, 2000
Francis C. Marsano
JUSTICE, SUPERIOR COURT
Date Filed ____ 8/3/98 PENOBSCOT Docket No. 5A-98-01
County
Action CIVIL~MONEY JUDGMENT
Assigned to Justice Francis C. Marsano
MARILYN BRALEY, VS. HEATHER CHEPREN,
Plaintiff's Attomey Defendant's Attomey
Charles Hodsdon, Esq. Gari-Mc€ues-Esq. Paul J. Morrow, Esq.
PO Box 1006 40 Western Ave., PO Box 655
Bangor, Maine 04402-1006 Hampden, Maine 04444-0655
Date of
Entry
8/3/98 Removal from District Court, District Three, Division of Southern
Penobscot, Bangor, Maine. BAN-98-CV-281 The following papers
were received and filed:
l. Complaint with attached exhibit A
2. Summons
3. Notification of Discovery Service
4. Answer to Complaint
5. Notice of Removal
6. 3 miscellaneous filings
7. Attested copy of District Court docket entries
8/4/98 Case File Notice and Pretrial Scheduling Statement and Jury
Demand forwarded to Plaintiff's attorney.
8/4/98 Notice of Removal forwarded to attorneys of record.
8/10/98 Pretrial Scheduling Statement filed by Plaintiff.
9/15/98 Expedited Pretrial Order filed. Discovery to be closed by 3/01/99.
This case will be placed on the non-jury trial list 30 days after
close of discovery. This Order is incorporated into the docket by
reference at the specific direction of the court. (Mead, J.)
Copy forwarded to attorneys of record. Report of Conference of
Counsel form forwarded to Plaintiff's counsel.
9/29/98 Notification of Discovery Service filed by Defendant: Defendant's
Answers to Plaintiff's Interrogatories and Interrogatories Propounded
to Plaintiff.
10/29/98 Notification of Discovery Service filed by Plaintiff: Plaintiff's
Answers to Interrogatories Propounded by Defendant.