The opinion
SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 81
Docket: Som-17-352
Argued: March 7, 2018
Decided: June 19, 2018
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Dissent: ALEXANDER. J.
AVIS RENT A CAR SYSTEM, LLC
v.
DARRON BURRILL
HUMPHREY, J.
[¶1] Darron Burrill appeals from a partial summary judgment entered
in favor of Avis Rent A Car System, LLC, on Avis’s claim for breach of contract
in the District Court (Skowhegan).1 Burrill challenges the court’s (Fowle, J.)
determination, issued as a partial summary judgment, that he is liable to Avis
for breach of contract and the court’s (E. Walker, J.) determinations of
damages and attorney fees, awarded after an evidentiary hearing. Avis
cross-appeals, challenging the court’s failure to award it pre- and
post-judgment interest. We affirm the partial summary judgment as to
1
The caption of the court’s order on Avis’s motion for partial summary judgment lists the
District Court location as Augusta while the text of the order states that the hearing on the motion
was held at the District Court in Skowhegan. Because this matter was docketed as a Skowhegan
case, we assume that the reference to Augusta was a clerical error.
2
liability for breach of contract but vacate the award of damages and remand
for further proceedings.
I. BACKGROUND
[¶2] The following facts relating to liability are taken from the parties’
statements of material fact and reflect the record as viewed in the light most
favorable to Burrill as the nonprevailing party. See Oceanic Inn, Inc. v. Sloan’s
Cove, LLC, 2016 ME 34, ¶ 25, 133 A.3d 1021. Facts relating to Avis’s alleged
damages are as found by the court.
[¶3] On November 20, 2012, Burrill, a Maine resident, rented a 2012
Ford Mustang from an Avis location in Las Vegas, Nevada. Burrill executed a
Rental Agreement and Addendum and declined the loss damage waiver
protection that was offered to him. By declining the loss damage waiver,
Burrill agreed to be responsible for “all loss of or damage to the car regardless
of cause, or who, or what caused it.” That same day, the vehicle was damaged
when it was involved in an accident in Las Vegas.
[¶4] According to Avis, the accident caused damages to the vehicle
totaling $15,342.57. Avis sent demands for payment to Burrill on January 16,
2013, April 3, 2013, and August 14, 2014, but Burrill failed or refused to pay.
3
[¶5] Avis filed a complaint against Burrill in the District Court on
July 20, 2015, alleging breach of contract and negligence and seeking
damages. On March 31, 2016, after discovery was concluded, Avis moved for
partial summary judgment to establish liability on the claim for breach of
contract. The court (Fowle, J.) held oral argument on the motion on
September 29, 2016.
[¶6] In its order granting Avis’s motion for partial summary judgment,
the court noted the parties’ agreement that the case is controlled by Nevada
substantive law and Maine procedural law.2 The court then determined that
there were no genuine issues of material fact that (1) the parties entered into
a valid and enforceable rental contract; (2) Burrill breached that contract; and
(3) “although the parties do dispute the extent of the damages sustained
during the course of the accident . . . damages did indeed occur.” As a result,
the court concluded that there were no genuine issues of material fact as to
the elements of the claim for breach of contract and that Avis was entitled to
partial summary judgment on the issue of liability as a matter of law. The
2 The rental agreement did not include a choice-of-law provision, but because the rental
agreement was executed in Nevada and the accident took place in Nevada, Nevada substantive law
applied. See Restatement (Second) of Conflict of Laws § 188 (Am. Law Inst. 1971); see also
State Farm Mut. Auto Ins. Co. v. Koshy, 2010 ME 44, ¶ 46, 995 A.2d 651.
4
court granted the motion on October 5, 2016, and ordered a hearing on
damages.3
[¶7] In dispute at the damages hearing on May 18, 2017, was whether
the affidavit of damages executed by an Avis claims examiner included
inadmissible hearsay. Several documents were attached to the affidavit: the
rental agreement; a vehicle valuation report prepared for Avis by J.D. Power
and Associates; a bill for towing the damaged vehicle; and a record of the
vehicle’s salvage value. Burrill objected to the admission of the affidavit on
the ground that, other than the rental agreement, the attachments were not
“business records” pursuant to the hearsay exception in M.R. Evid. 803(6). At
the hearing, the court (E. Walker, J.) accepted the affidavit with its attachments
de bene and did not then rule on its admissibility. Avis then called a witness to
testify about the amount of damages, but Burrill objected because the identity
of the testifying witness had not been disclosed prior to the hearing. Because
the witness Avis had previously identified to Burrill was unable to attend, Avis
brought a different witness to the hearing. The court declined to accept the
testimony of the witness present. Before the hearing concluded, Avis offered a
repair estimate as evidence of damages if the court determined that the
3 The day before the damages hearing, Avis moved to dismiss its negligence claim. The court
granted the motion at the hearing.
5
attachments to the affidavit—specifically the vehicle valuation report—were
inadmissible. Again, Burrill objected on the basis of hearsay, and again the
court took the submission de bene, reserving its ruling on its admissibility.
[¶8] In its order on damages, the court determined that the
attachments to the affidavit, although containing hearsay, satisfied the
business records exception. The court devoted most of its discussion to the
vehicle valuation report.4 The report was not prepared by the affiant, but
instead by a third party, J.D. Power and Associates. The valuation report
purported to provide the market value of the vehicle prior to the loss by
taking into account the value of comparable vehicles with similar mileage
located in a similar geographic area, as well as any damage to the vehicle prior
to the loss. The affiant certified that the report was kept in the regular course
of Avis’s business, that the affiant maintained the report as part of her duties
as a claims examiner for Avis, and that it was made reasonably soon after the
incident. The court determined that there was sufficient foundation for the
admissibility of the affidavit and all of the attachments.
4 The rental agreement stated that in the event of damage, the renter of the vehicle “will pay our
estimated repair cost, or if, in our sole discretion, we determine to sell the car in its damaged
condition, you will pay the difference between the car’s retail fair market value before it was
damaged and the sale proceeds.”
6
[¶9] Based on the information in the affidavit, the court concluded that
the damages and fees claimed by Avis were reasonable and granted Avis its
requested amount of $15,342.57. It also granted Avis attorney fees totaling
$5,985.00 and costs in the amount of $433.24. The court declined to award
Avis pre- or post-judgment interest.
[¶10] Burrill appealed, challenging both the grant of Avis’s motion for
partial summary judgment and the award of damages. Avis cross-appealed,
challenging the court’s failure to award it interest and costs in the amount it
requested.
II. DISCUSSION
A. Breach of Contract
[¶11] Burrill first challenges the court’s grant of partial summary
judgment on the issue of breach of contract. “We review a trial court’s grant
of a summary judgment de novo, considering the evidence in the light most
favorable to the nonprevailing party. Summary judgment is properly granted
if the record reflects that there is no genuine issue of material fact and the
movant is entitled to a judgment as a matter of law.” Oceanic Inn, 2016 ME 34,
¶ 25, 133 A.3d 1021 (citation omitted) (quotation marks omitted).
7
[¶12] In order for a plaintiff to succeed in a claim for breach of contract,
Nevada law requires a plaintiff to show “(1) the existence of a valid contract,
(2) a breach by the defendant, and (3) damage as a result of the breach.” Saini
v. Int’l Game Tech., 434 F. Supp. 2d 913, 919-20 (D. Nev. 2006) (citing
Richardson v. Jones, 1 Nev. 405, 408 (1865)).
[¶13] The parties agreed on the following material facts: (1) Burrill
rented a car from Avis on November 20, 2012; (2) the vehicle was damaged
on November 20, 2012, when it was involved in an accident in Las Vegas;
(3) in the rental agreement, Burrill had waived the loss damage protection
and therefore agreed to be “responsible . . . for all loss of or damage to the car
regardless of cause, or who, or what caused it”; (4) Avis sent Burrill several
demands for payment of the alleged damages prior to the lawsuit; and (5)
Burrill failed or refused to pay the amount demanded. Because Burrill
admitted that the car was damaged in an accident while it was rented under
his name in a contractual arrangement that made him responsible for any
damage to the car, and acknowledged that he refused to pay the amount
demanded by Avis, there was no genuine issue of material fact that Burrill
8
breached the rental agreement by failing to pay Avis after the car was
damaged.5
[¶14] Because there were no genuine issues of material fact as to
(1) the existence of a valid contract; (2) breach of that contract; and (3) some
amount of damage as a result of the breach, we affirm the grant of Avis’s
motion for partial summary judgment as to liability. See M.R. Civ. P. 56(c) (“A
summary judgment, interlocutory in character, may be rendered on the issue
of liability alone although there is a genuine issue as to the amount of
damages.”).
B. Damages
[¶15] Although there was no genuine issue of material fact that damage
did indeed occur, the parties disputed the extent of the damages, prompting
the court to order a hearing to determine the specific amount of damages.
Burrill argues that the court erred and abused its discretion when it admitted,
pursuant to the business records exception to the hearsay rule, the affidavit of
5 The trial court’s analysis of the breach element focused largely on the question of whether
Burrill’s girlfriend, who the parties agree was driving the vehicle at the time of the accident, was an
unauthorized driver according to the terms of the rental agreement. The court rejected Burrill’s
contention that a conversation he allegedly had with an Avis clerk prior to renting the vehicle
created genuine issues of material fact on the ground that evidence regarding the alleged
conversation would be barred by the parol evidence rule. See Klabacka v. Nelson, 394 P.3d 940, 949
(Nev. 2017). This remains Burrill’s main argument on appeal. It is a red herring, however. Even if
Burrill’s girlfriend was an authorized driver, he is still contractually responsible for the damage to
the car. By failing to pay for the damage after Avis sent demands for payment, Burrill breached the
contract.
9
an Avis representative and its attachments6 as the sole evidence of the amount
of damages. See M.R. Evid. 803(6).7
[¶16] “When admission of evidence under the business records
exception to the hearsay rule is challenged, we review a trial court’s
foundational findings to support admissibility for clear error and its ultimate
determination of admissibility for an abuse of discretion.” JPMorgan Chase
Bank, N.A. v. Lowell, 2017 ME 32, ¶ 8, 156 A.3d 727 (quotation marks omitted).
“Business records are hearsay and therefore inadmissible pursuant to M.R.
Evid. 802 unless they meet the requirements of the business records
exception in M.R. Evid. 803(6).” KeyBank Nat’l Ass’n v. Estate of Quint,
2017 ME 237, ¶ 14, 176 A.3d 717 (quotation marks omitted). Rule 803(6)
provides for the admissibility of a business record if
(A) The record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
6 Burrill did not object to the admission of the rental agreement as a business record.
7 Although we apply Nevada contract law in this case, the local law of the forum governs the
admissibility of evidence. See Restatement (Second) of Conflict of Laws § 138; see also Beaulieu v.
Beaulieu, 265 A.2d 610, 612 (Me. 1970); Holyoke v. Estate of Holyoke, 110 Me. 469, 477, 87 A. 40, 45
(Me. 1913). We therefore apply the Maine Rules of Evidence when determining whether the
business records exception applies to the attachments to the affidavit.
10
(C) Making the record was a regular practice of that activity;
(D) All these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11), Rule 902(12) or with a statute
permitting certification; and
(E) Neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
[¶17] Here, the affiant sought to certify the business records by
affidavit pursuant to Rules 803(6)(D) and 902(11). “[S]ubdivision 11 of
Rule 902 makes it possible to lay the foundation for domestic business
records without the need to call a live witness.”8 Field & Murray, Maine
Evidence § 902.11 at 554 (6th ed. 2007).
[¶18] A person certifying the records pursuant to Rule 902(11) must
still be a qualified witness, however. See M.R. Evid. 803(6), 902(11). As we
have previously explained, “[a] qualified witness is one who was intimately
8 M.R. Evid. 902(11) requires that the party seeking to certify business records in accordance
with the rule must, before the trial or hearing, provide the adverse party with reasonable written
notice of the intent to offer the record and must make the record and certification available for
inspection. The purpose of the notice requirement is to ensure that the adverse party “has a fair
opportunity to object to the authenticity of the record or on the basis of hearsay.” See M.R.
Evid. 902(11). There is no indication in the record whether notice was provided, but at the outset
of the hearing, Burrill appeared to have been aware of Avis’s plan to use the affidavit as proof of
damages. Neither at the hearing or to us has Burrill objected to the affidavit based on lack of notice
pursuant to M.R. 902(11); his objections were and are to the attachments to the affidavit. The rule
provides that, “[i]n the event of an adverse party’s objection to a record offered under this
paragraph, the court may in the interests of justice refuse to accept the certification under this
paragraph and require the party offering the record to provide appropriate foundation by other
evidence.” M.R. Evid. 902(11). The court did not do so at the hearing, and on appeal, Burrill does
not challenge the court’s failure to do so.
11
involved in the daily operation of the business and whose testimony showed
the firsthand nature of his knowledge” but who “need not be an employee of
the record’s creator.” Estate of Quint, 2017 ME 237, ¶ 15, 176 A.3d 717
(quotation marks omitted). Where records are created by one business and
then transmitted to another, the records will be admissible pursuant to M.R.
Evid. 803(6) “if the foundational evidence from the receiving entity’s
employee is adequate to demonstrate that the employee had sufficient
knowledge of both businesses’ regular practices to demonstrate the reliability
and trustworthiness of the information.” Beneficial Me. Inc. v. Carter, 2011 ME
77, ¶ 13, 25 A.3d 96. In order to satisfy the requirements for the business
records exception in the circumstances of this case, the witness must
demonstrate knowledge that
• the producer of the record at issue employed regular business
practices for creating and maintaining the records that were
sufficiently accepted by the receiving business to allow
reliance on the records by the receiving business;
• the producer of the record at issue employed regular business
practices for transmitting them to the receiving business;
• by manual or electronic processes, the receiving business
integrated the records into its own records and maintained
them through regular business processes;
• the record at issue was, in fact, among the receiving business’s
own records; and
12
• the receiving business relied on these records in its day-to-day
operations.
Estate of Quint, 2017 ME 237, ¶ 16, 176 A.3d 717 (quotation marks omitted).
[¶19] Here, the certification of the Avis representative failed to provide
the foundational predicate necessary for admission in evidence of the
attached vehicle valuation report. See Deutsche Bank Nat’l Trust Co. v. Eddins,
2018 ME 47, ¶ 13, 182 A.3d 1241. The affiant certified that the vehicle
valuation report was (1) a business record kept within Avis’s claim file for the
incident; (2) maintained as part of her duties as a claims examiner for Avis;
(3) kept in the regular course of Avis’s business and as part of its regularly
conducted activity; and (4) made reasonably soon after the incident.
However, because the affiant did not certify that she had any knowledge of J.D.
Power and Associates’s regular business practices, she failed to lay a proper
foundation for the report pursuant to Rule 803(6), and the court abused its
discretion by admitting the document in evidence. See id. ¶ 14. For these
same reasons, the affiant failed to lay a proper foundation for the towing
invoice and salvage proceeds documentation9 as well.10
9 As Burrill points out, even if the salvage proceeds documentation were admissible, that record
is meaningless without the market value of the vehicle provided in the vehicle valuation report.
13
[¶20] Further, the affidavit was used to accomplish more than is
contemplated by Rule 902(11). In addition to Avis’s attempt to lay the
foundation for the admission of the attachments pursuant to Rule 803(6), the
affidavit set forth the basis for other portions of the damages award as well.
Not only did the affiant provide the amount allegedly due for the damage to
the vehicle itself and the towing fee, she also listed a loss-of-use fee of
$1,238.79, title and license fees in the amount of $101.80, and an
administrative fee of $150.00. Although the rental agreement stated that the
signatory to the agreement would be required to pay for such fees in the event
of damage to the vehicle, none of the other attachments purported to provide
a basis for the specific amounts of those fees. A certification submitted
pursuant to Rule 902(11) can only lay the foundation for a business record; it
is not a device to provide a basis for damages that are not included in the
attached business records.11 See Field & Murray, Maine Evidence § 902.11 at
10 The affiant properly certified the rental agreement, however. The rental agreement, unlike
the vehicle valuation report, the towing invoice, and the salvage proceeds documentation, was
prepared by Avis and meets the requirements of Rules 803(6) and 902(11). Because it was not
prepared by a third party and because the affiant laid the proper foundation pursuant to Rule
902(11), the rental agreement would be admissible. Although the rental agreement informs the
signatory of the types of fees and costs he or she will incur in the event of damage to or loss of the
vehicle, it does not provide the specific amounts of those fees and costs. The rental agreement
alone therefore cannot provide a basis for the damages award sought by Avis.
11 Therefore, paragraphs 3 and 4 of the affidavit—which provide the total amount of damages
suffered by Avis and a list of fees and costs that comprise that total—are not certifications pursuant
to Rule 902(11) and are thus inadmissible hearsay. See M.R. Evid. 801(c), 802.
14
554. Because Avis presented no admissible evidence12 as to the amount of
damages, it failed to prove it was entitled to the damages awarded to it.
[¶21] According to Nevada contract law, when a plaintiff has
established liability on behalf of the defendant in a claim for breach of
contract but has failed to provide proof for the specific amount of damages,
the plaintiff is entitled only to nominal damages.13 See Gramanz v. T-Shirts &
Souvenirs, 894 P.2d 342, 347 (Nev. 1995); Commercial Cabinet Co. v. Mort
Wallin of Lake Tahoe, 737 P.2d 515, 517 (Nev. 1987) (explaining that “[a]
plaintiff who proves a right to damages without proving the amount as well is
only entitled to nominal damages”); Richardson, 1 Nev. at 408. Because Avis
established liability on behalf of Burrill but failed to prove the amount of
actual damages, we vacate the court’s award of damages and remand with
instructions for the court to award Avis nominal damages in accordance with
Nevada law. Further, given that Avis will be entitled to an award of only
12 Avis also offered a repair estimate at the conclusion of the damages hearing “if the fair market
value report were to be rejected.” The repair estimate, like the fair market value report, was
prepared by a third party. There was no reference to the repair estimate in the affidavit of
damages, nor did an Avis representative testify to any personal knowledge of the business practices
of the company that prepared the repair estimate. Therefore, the repair estimate would likely have
been inadmissible hearsay as well. See Deutsche Bank Nat’l Trust Co. v. Eddins, 2018 ME 47,
¶ 14, 182 A.3d 1241.
13 Nominal damages are defined as “[a] trifling sum” and are “awarded for the infraction of a
legal right, where the extent of the loss is not shown.” Nominal Damages, Black’s Law Dictionary
(10th ed. 2014) (quotation marks omitted). “The obtaining of nominal damages will also, in many
cases, entitle a plaintiff to costs.” Id. (quotation marks omitted).
15
nominal damages, we vacate the award of attorney fees to Avis to allow the
court on remand to determine whether and to what extent attorney fees are
proper in this case pursuant to the rental agreement.
[¶22] Finally, we reach the issue raised in Avis’s cross-appeal of
whether the court erred when it failed to award it interest pursuant to the
express terms of the rental agreement. Because Nevada contract law applies
in this case, Nevada law also governs the recovery of interest. See Roc-Century
Assocs. v. Giunta, 665 A.2d 220, 221 (Me. 1995); see also Restatement (Second)
of Conflict of Laws § 207 & cmt. e (Am. Law Inst. 1971). On remand, we
instruct the court to apply Nevada law to determine whether and to what
extent interest should be awarded to Avis.
The entry is:
Partial summary judgment affirmed. Award of
damages vacated. Remanded for further
proceedings consistent with this opinion.
ALEXANDER, J., dissenting.
[¶23] I concur in the Court’s holding affirming the trial court’s grant of
partial summary judgment determining that Darron Burrill is liable for breach
of contract as a result of his allowing an unauthorized driver to damage a
16
vehicle owned by Avis Rent a Car System, LLC. With liability decided, the
Court recognizes that there are no genuine issues of material fact that there
was “some amount of damage as a result of the breach.” Court’s Opinion ¶ 14.
[¶24] The amount of damage, including some amounts that do not
appear to be disputed, is established by the affidavit submitted by the Avis
claims representative. The Court references M.R. Evid. 902(11) to suggest
that Avis may have given insufficient notice of its intention to rely on the
affidavit to prove a point without calling a live witness. Court’s Opinion
¶ 17 n.8. As the Court’s opinion recognizes, Avis was prepared to present a
live witness to support its damages evidence, but the live witness was,
erroneously in my view, excluded by the trial court. Court’s Opinion ¶ 7.
[¶25] The Court approves the use of the affidavit, recognizing that,
pursuant to M.R. Evid. 902(11), it is possible to lay the foundation for
admission of a business record, M.R. Evid. 803(6), without a live witness.
Court’s Opinion ¶ 20. I respectfully dissent from that part of the Court’s
opinion holding that portions of the affidavit and supporting exhibits provided
by the Avis claims representative, who was assigned to value the claim and be
a custodian of the records related to the claim, do not qualify as business
17
records pursuant to M.R. Evid. 803(6), and thus may not support award of any
damages in this matter.
[¶26] “Business records are hearsay and therefore inadmissible
pursuant to M.R. Evid. 802 unless they meet the requirements of the business
records exception in M.R. Evid. 803(6).” KeyBank Nat’l Ass’n v. Estate of Quint,
2017 ME 237, ¶ 14, 176 A.3d 717. When admission of evidence as a business
record is challenged, we review the trial court’s foundational findings to
support admissibility for clear error and its ultimate determination of
admissibility for an abuse of discretion. JPMorgan Chase Bank, N.A. v. Lowell,
2017 ME 32, ¶ 8, 156 A.3d 727; Midland Funding LLC v. Walton, 2017 ME 24,
¶ 18, 155 A.3d 864.
[¶27] M.R. Evid. Rule 803(6) authorizes the admissibility of a business
record if
(A) The record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
(C) Making the record was a regular practice of that activity;
(D) All these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
18
complies with Rule 902(11), Rule 902(12) or with a statute
permitting certification; and
(E) Neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
[¶28] The purpose of the business records exception is “to allow the
consideration of a business record, without requiring firsthand testimony
regarding the recorded facts, by supplying a witness whose knowledge of
business practices for production and retention of the record is sufficient to
ensure the reliability and trustworthiness of the record.” Beneficial Me. Inc. v.
Carter, 2011 ME 77, ¶ 12, 25 A.3d 96. Important for this case, “[t]he affiant
whose statements are offered to establish the admissibility of a business
record . . . need not be an employee of the record’s creator.” Id. ¶ 13. Thus, “if
the records,” in this case vehicle valuation records, “were received and
integrated into another business’s records and were relied upon in that
business’s day-to-day operations, an employee of the receiving business may
be a qualified witness.” Id.
[¶29] A qualified witness must demonstrate knowledge that the
producer of the record used regular business practices to create the record;
the receiving business integrated the record into its own records and
maintained them through regular business processes; and the receiving
19
business relied on these records in its day-to-day operation. See id. ¶ 14. If
the affiant demonstrates the requisite knowledge, records created by another
source, applying its regular business practice, will be admissible pursuant to
M.R. Evid. 803(6). Id.
[¶30] The Avis representative’s affidavit of damages bases its
information on several sources, not just the J.D. Power report focused on by
the Court. There is no dispute that the Avis representative assembled and
possessed the business records and that she, herself, calculated the damages
amounts asserted by Avis and found by the trial court.
[¶31] The Avis records include a copy of an invoice for $155 for towing
charges incurred by Avis. A copy of that invoice is included in the appendix.
Other than a generalized hearsay objection, there is no dispute indicated in
the record that the towing charge was incurred, that Avis was billed for the
charge, that the bill was paid, or that the bill was made a part of Avis’s
business records in the regular course of Avis’s business. Accordingly, the
towing charge being part of Avis’s business records, there was no apparent
basis to object to the trial court’s use of the $155 towing charge in calculating
the total damages amount.
20
[¶32] There also appears to be no dispute about the calculation of the
salvage proceeds for the vehicle in the amount of $6,905.
[¶33] The primary dispute relates to the calculation of the fair market
value of the vehicle at the time of the loss, which the claims representative
asserted was $20,601.98. This claim is based on a J.D. Power/Mitchell Vehicle
Valuation Report attached as Exhibit B to the Avis representative’s affidavit.
This report demonstrates that it is based on a review of documentary
evidence, including vehicle valuations for comparable vehicles available for
sale in the Las Vegas area. These valuations are drawn from AutoTrader.com,
Cars.com and other sources, including dealer contacts. Most of the report
appears to reflect document-based reviews, necessary considering the very
fast time for preparation of the valuation report provided to the Avis claims
representative.
[¶34] The trial court found that the Avis representative reasonably
relied on the J.D. Power report in reaching her conclusions regarding the
vehicle valuation and that the vehicle valuation report was admissible as part
of the Avis business records pursuant to M.R. 803(6) after finding that “the
Affidavit provide[d] a sufficient foundation for the reliability and
trustworthiness of the report.” The court based that finding on the following
21
observations: the vehicle valuation report was made within two days of the
accident; preparing and maintaining such a report would be in the ordinary
course of business for a claims representative at a car-rental company, whose
job it is to create a complete and reliable record of the damage to a car; and
nothing indicated that the report was prepared in an unusual or
untrustworthy way. The court also referenced the inclusion of J.D. Power’s
valuation methodology in the report, which the court found to be “rigorously
objective and mathematical, and transparent about its sources of
information.”
[¶35] In reality it appears that the valuation report damages number
was determined largely by subtracting the undisputed salvage proceeds from
the valuations of comparable vehicles offered for sale in the Las Vegas area,
identified by an internet review.
[¶36] Burrill has not demonstrated that the trial court clearly erred in
its findings. The Avis representative certified that the valuation report was
“prepared at the request of and on behalf of Avis” and that the report was
“kept within the claim file for this incident; maintained as part of [her] duties
as a Claims Examiner for Avis; kept in the regular course of Avis’s business
and part of its regularly conducted activity; that it was made at or reasonably
22
soon after the incident; and that the copy is an exact duplicate of the original.”
Because the trial court did not err, and because the valuation report fits within
this Court’s articulation of the purpose of the business records exception to
the hearsay rule, it was within the court’s discretion to admit the affidavit in
its entirety. See Midland Funding LLC, 2017 ME 24, ¶ 18, 155 A.3d 864.
[¶37] As the trial court stated: “Avis may not be in the vehicle valuation
business, but its car rental activities require reliable means of valuating cars,”
especially in instances where its rental cars sustain damage. The Avis claims
examiner appropriately requested a third party in the vehicle valuation
business to create a report on the vehicle’s valuation prior to damage from an
accident. The report was “kept within the claim file for [each] incident” and
“kept in the regular course of Avis’s business and part of its regularly
conducted activity.” Although litigation may be possible in some instances of
damage to Avis’s rental cars, a vehicle valuation report commissioned
immediately after a vehicle has been damaged cannot be considered to have
been “prepared in anticipation of litigation” by an advocate in the same way
that a forensic report prepared by an expert advocating for one party would
be. See State v. Tomah, 1999 ME 109, ¶ 10, 736 A.2d 1047.
23
[¶38] The Court’s application of the business records exception to
reject all of Avis’s claimed damages and direct an award of only nominal
damages disregards the damages not addressed in the J.D. Power report,
including the apparently undisputed $155 towing charge. Court’s Opinion
¶ 41. Thus, rather than nominal damages, damages of at least $155 are
established without regard to the propriety, or impropriety, of the claims
representative’s utilizing the J.D. Power report in making her calculations.
[¶39] As to that report, the trial court correctly found that the Avis
representative properly utilized that valuation report, with its method of
calculation explicitly documented and based largely on documentary
information available in business records, vehicle valuation reports, or on the
internet through websites such as AutoTrader.com and Cars.com—material
that appears to be regularly and widely utilized in calculating car valuations
and car appraisals in today’s internet age.
[¶40] Burrill does not challenge the amount of damages awarded; he
only challenges the admission of the claims representative’s affidavit in its
entirety as a basis for the award. Because the trial court did not err or abuse
its discretion in determining that the affidavit and its attachments satisfied
M.R. Evid. 803(6), this Court should affirm the award of damages in the
24
amount of $15,342.57, or a lesser amount that includes the undisputed towing
charge, and the undisputed salvage proceeds deducted from the comparable
vehicle valuation based on apparently undisputed document reviews.
[¶41] Burrill also challenges the court’s award of attorney fees to Avis.
He does not challenge the amount of the award but argues that because this
Court should determine that the court erred in granting Avis’s motion for
partial summary judgment, it should also vacate the attorney fees award as
well. Because this Court should affirm the grant of partial summary judgment
and the award of damages, it should also affirm the award of attorney fees.
See Estate of Gagnon, 2016 ME 129, ¶¶ 15-16, 147 A.3d 356. The rental
contract provided for attorney fees in the event of a breach. Avis submitted an
attorney fee affidavit outlining the charges. It was within the trial court’s
discretion to grant the attorney fees in the amount included in the attorney
fees affidavit.
Walter F. McKee, Esq., and Henry E.M. Beck, Esq. (orally), McKee Law, P.A.,
Augusta, for appellant Darron Burrill
Cheryl J. Cutliffe, Esq. (orally), Basham & Scott, LLC, Brunswick, for appellee
Avis Rent A Car System, LLC
Skowhegan District Court docket number CV-2015-152
FOR CLERK REFERENCE ONLY