PRESENTATION OF PROPERTY DAMAGE CLAIMS

Transcription

1 PRESENTATION OF PROPERTY DAMAGE CLAIMS John D. Malanga MALANGA LAW FIRM 3116 West 5th Street Suite 212 Fort Worth, Texas Telephone: Facsimile:

2 1. PROVING PROPERTY DAMAGES IN COURT A. PROOF OF MARKET VALUE Under Texas law, any witness may testify regarding market value, so long as the witness is competent to testify about the subject. The witness must establish that he or she has knowledge of the market value of the item in question, and that such knowledge is based upon some degree of personal observation. Bavarian Auto Haus, Inc. v. Holland, 570 S.W.2d 110 (Tex. Civ. App. Houston [1 st ] 1978, no writ). Testimony regarding market value must be of value of the property at the time it was damaged or destroyed, not the value at the time of trial. The opinion testimony regarding market value may be given by the owner of the property. For example, an owner of an automobile may testify as to the vehicle s market value. Coleman v. Gournet, 59 S.W.2d 550 (Tex. App. Houston [14 th ] 1993, writ dismissed). However, the owner s opinion testimony as to the value of the property must refer to market value, rather than the property s intrinsic or sentimental value to the owner. Certain evidence may not be used by a claimant to establish market value. For example, the purchase price of a property cannot be used to prove market value. Taiwan Shrimp Farm Village Association v. USA Shrimp Farm Dev., Inc., 915 S.W.2d 61 (Tex. App. Corpus Christi 1996, writ denied). Similarly, an amount paid by an insurance company is not evidence of reasonable market values. Hartford Insurance Company v. Jiminez, 814 S.W.2d 551 (Tex. App. Houston [1 st ] 1991, no writ). In addition to owner testimony, a Plaintiff may prove market value through the use of expert testimony. In order for the expert opinion to be admissible, the proponent of the testimony is required to demonstrate that such evidence is relevant and reliable under guidelines set forth by the Texas Supreme Court. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998). Other admissible evidence of market value includes published appraisal guides and before-and-after photographs of the damaged property. B. PROOF OF COST OF REPAIRS To prove cost of repairs, a Plaintiff may offer evidence of the actual cost of parts and replacements, so long as the Plaintiff proves that the costs were both reasonable and necessary. JHC Ventures, LP v. Fast Trucking, Inc., 94 S.W.3d 762 (Tex. App. - San Antonio 2002, no pet.). Evidence of the cost of repairs, without evidence that such charges are reasonable and necessary, is insufficient to support an award for cost of repairs. Barr v. AAA Texas, LLC, 167 S.W.3d 32 (Tex. App. Waco 2005, no pet.). To obtain this evidence, a Plaintiff may utilize the testimony of the party who performed repairs to prove reasonable and necessary repair costs. Becker v. Schneider, 335 S.W.2d 850 (Tex. Civ. App. Austin 1960, no writ). With repair costs, as well as with market value, the Plaintiff s evidence must take into account the location, usually the county, where the property was damaged. Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995). 2

3 To prove loss of use damages, the Plaintiff must provide evidence of (1) the reasonable rental value of the substitute item; and (2) the time period in which the Plaintiff was deprived of using the damaged item. Kollision King v. Calderon, 968 S.W.2d 20 (Tex. App. Corpus Christi 1998, no pet.). II. SAMPLE PLEADINGS Forms adapted from Dorsaneo, Texas Litigation Guide, Ch. 20, Damages in Tort, Sec ; (Matthew Bender) and O Connor s COA Pleadings, Ch. 45 (2007). General Allegation of Injury to Tangible Personal Property [Alternate One. Claim for diminution in value] As a proximate result of the negligence of Defendant, Plaintiff s [identify personal property. e.g., automobile] was damaged beyond repair. Immediately prior to the incident complained of, the [e.g., automobile] had a reasonable cash market value in. County, Texas, of, and immediately after the incident it had a cash market value of only $ in County, Texas, all to the damage and loss of Plaintiff in the sum of $, for which [he or she] hereby sues. [Alternate Two. Claim for cost of repairs and loss of use] As a proximate result of the negligence of Defendant, Plaintiff s [identify personal property and damage, e.g., automobile] was damaged. The entire right side and the entire front of the motor vehicle, including the hood and fenders, were crushed, torn and dented]. The necessary and reasonable cost of repairing said [e.g., automobile] and restoring it to its condition immediately prior to the accident is $. [Add as appropriate: If it is found that Plaintiff is only entitled to recover damages for the diminution in value of (his or her) (e.g., automobile) (he or she) would show that the fair cash market value of the (e.g., automobile) in County, Texas, immediately prior to the accident was $, and that its same value in the same place immediately after the accident was only $ ]. For Plaintiff s resulting loss and damage in the sum of $, [he or she] hereby sues. [Optional. If loss of use damages claimed] As a further proximate result of the damage done to Plaintiff s [specify property], [he or she] lost the use and enjoyment of the same for the reasonable period of days while it was undergoing repairs. The reasonable rental value for days of a [specify property] in the condition of Plaintiff s [specify property] immediately before the damage was $, for which sum Plaintiff hereby sues. 3

4 Claim for Household Goods, Clothing, and Personal Effects As a proximate result of [describe occurrence, e.g., the fire which damaged Plaintiff s residence], the following items of household goods, clothing, and personal effects were destroyed. The actual worth or value to Plaintiff for use in the condition in which they were at the time of the loss is stated next to the description of the item. [List articles and values.] Plaintiff hereby sues for the resulting loss and damage in the sum of $. Claim for Lost Profits As a result thereof, Plaintiff was prevented from [specify inability to perform profit-making activity, e.g., producing 100,000 glass gallon jugs], which Plaintiff would have sold for $. The cost of producing [e.g., glass jugs], including labor and material, would have been $ and the cost of preparation for sale and transportation would have been $. The net loss to Plaintiff was $, for which sum [he or she] hereby sues. Permanent Injury to Land Total Loss As a proximate result of the negligence of the Defendant in [describe injury, e.g., introducing atomic waste onto the realty of Plaintiff], said real estate was totally and completely destroyed. The fair market value of the real estate immediately before the incident complained of was $, for which sum Plaintiff hereby sues. Permanent Injury to Land Partial Loss (Isolated Event) As a proximate result of the negligence of the Defendant in [describe injury and resulting loss, e.g., allowing salt water to sweep over Plaintiff s land, the roots of native grass on five acres of the land have been completely destroyed and washed away]. The market value of Plaintiff s realty immediately prior to the incident was $ and its value immediately after the incident was $. Plaintiff sustained a loss in the sum of $, for which [he or, she] hereby sues. 4

5 DAMAGES PERSONAL PROPERTY A. Count 1 {(1)Name of cause of action} 1. {In separately numbered paragraphs, identify elements and facts supporting the cause of action.} 2. Defendant s breach of duty proximately caused injury to Plaintiff, which resulted in the following damages: {CHOOSE APPROPRIATE DAMAGES} a. Market value damages, which is the difference between the item s value immediately before and immediately after the damage. b. Actual or intrinsic value damages, which is the value of the property to Plaintiff in the condition it was in when it was damaged. c. Replacement value damages, which is the cost of replacing or reproducing the property. d. Sentimental value damages, which is the reasonable special value of the property to Plaintiff. e. Repair damage, which is the value of the reasonable cost of repairs. f. Loss-of-use damages, which is the reasonable cost of renting a replacement. g. Lost profits, which is the value for the loss of anticipated profits. h. Mental anguish damages for egregious conduct. i. {List other damages.} 5

6 DAMAGES REAL PROPERTY A. Count 1 {(1)Name of cause of action} 1. {In separately numbered paragraphs, identify elements and facts supporting the cause of action.} 2. Defendant s breach of duty proximately caused injury to Plaintiff, which resulted in the following damages: {CHOOSE APPROPRIATE DAMAGES} {Injury to land} a. Market value damages for permanent injury to land, which is the difference between the property s value immediately before and immediately after the damage. b. Actual or intrinsic value damages for permanent injury to land, because there is no market value for the land. c. Damages for cost of repairs and loss of use for temporary injury to land. {Injury to improvements} d. Market value damages for permanently destroyed or injured improvements, which is the difference between the property s value immediately before and immediately after the damage. e. Actual or intrinsic value damages for destroyed improvements, because there is no market value for the improvements. f. Damages for cost of repairs and loss of use for temporary injury to improvements. {Injury to vegetation} g. Market value damages for loss of crops, which is the value of the probable crop less the expenses of cultivating the crop and bringing it to market. h. Market value damages for loss of timber, which is the value of the timber standing as trees before they were felled and cut into logs. j. Actual or intrinsic value damages for damage to ornamental vegetation, which is the value of the vegetation s uses, its particular fitness for those uses, and its adaptability for any other uses or purposes. k. Manufactured value of timber damages, which is the highest value of the timber while it was in Defendant s possession. j. Restoring indigenous vegetation damages, which is the cost to restore the land to its former condition. 6

7 {Injury to oil and gas wells} l. Reproduction damages, which is cost of reproducing and equipping the well in the manner in which it was equipped before the injury, less any salvage value. m. Cash market value damages for destruction of a well, which is the market value of the well less any salvage value, because the cost of reproducing the well exceeds its value. {Injury resulting from removal of minerals} n. Value in situ damages, which is the fair market value of the minerals, less Defendant s cost of bringing them to the surface and to market. o. Enhanced value damages, which is the value of the product when and where it was finally converted, without any deduction for expenses incurred by Defendant or for any value added to the mineral by Defendant s labor. {Other injury to real property} p. Lost profits directly attributable to Defendant s injury to the real property. 7