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Proof of Damages Essential in Tort Case
- by Erin C. Herbold
June 1, 2009
A tort is a civil wrong to another person or their property. But, what damages can be recovered? The answer to that question is almost always tied to the plaintiff’s ability to prove actual damages. That point was illustrated in this case. Here, the defendant needed a dredge to assist in pumping out a dairy farm manure lagoon. The defendant leased a dredge from the plaintiff, an Indiana firm, with the lease agreement providing that the defendant would insure the dredge while it was in his possession and that he would return it in the same condition as when received, normal wear and tear excepted. Unfortunately, upon delivery the leased dredge was not in usable condition, and by agreement between the parties it was left in a grassy area near the edge of the lagoon throughout the winter. The defendant did not obtain insurance on the dredge, and never did use the dredge eventually making arrangements to ship the dredge back to the plaintiff in Indiana. During the loading process, employees of the defendant allegedly damaged the dredge’s pontoon. The dredging company claimed that there was even more damage done to the dredge when they inspected it upon its return. However, when an insurance adjuster took photos of the dredge, no discernible damage was recorded. The parties agreed to meet in Iowa to resolve their dispute. A subsequent written agreement was drafted, whereby the contractor agreed to pay up to $14,000 of the repair costs with the dredging company paying any excess repair costs and all transportation costs. In addition, pictures of the actual damage were to be provided to the defendant. The agreement was signed and dated by both parties. Months later, the contractor received an invoice for $14,000. No pictures accompanied the invoice and the defendant drove to Indiana to look at the damage and inquire about the bill. However, when he went to the repair shop, he was told there was no bill for him to pay. He also tried to contact the company and they told him he could not look at the dredge, because it was being used. No pictures were ever provided and the defendant did not pay the $14,000. The plaintiff sued to recover the repair costs in an Iowa trial court.
The trial court held that the parties' agreement constituted an accord and that the plaintiff did not prove that any damage went beyond normal wear and tear. Importantly, the plaintiff failed to provide pictures of the damaged areas or proof of the repairs that the plaintiff claimed to have made. On appeal, the appellate court found substantial evidence of the district court's findings and deferred to the district court's credibility determinations. The plaintiff did not provide photographic documentation, which was a condition precedent to the defendant’s obligation to pay for repairs. Giving due deference to the district court's credibility determination, the court could not conclude that the district court erred in its conclusion that the plaintiff breached the parties' accord. Consequently, the defendant was not required to pay for the alleged damage to the dredge. Ahrens v. Axmear, No. 8-868/07-1863 (Iowa Ct. of App., April 22, 2009)