[Cite as Avis Rent-A-Car System, L.L.C. v. Atkinson, 2012-Ohio-4921.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




AVIS RENT-A-CAR SYSTEM, LLC                       :            JUDGES:
                                                  :            Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        :            Hon. William B. Hoffman, J.
                                                  :            Hon. Sheila G. Farmer, J.
-vs-                                              :
                                                  :
DAVID R. ATKINSON                                 :            Case No. 12-CA-15
                                                  :
        Defendant-Appellant                       :            OPINION




CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Case No. 10CV1095



JUDGMENT:                                                      Affirmed




DATE OF JUDGMENT:                                              October 22, 2012




APPEARANCES:

For Plaintiff-Appellee                                         For Defendant-Appellant

MARC J. KESSLER                                                BELINDA S. BARNES
65 East State Street                                           471 East Broad Street
Suite 1400                                                     19th Floor
Columbus, OH 43215                                             Columbus, OH 43215
Licking County, Case No. 12-CA-15                                                         2

Farmer, J.

      {¶1}   On September 14, 2009, appellant, David Atkinson rear-ended a rental

vehicle owned by appellee, Avis Rent-A-Car System, LLC.           The vehicle sustained

structural damage and as a result, was sold at auction in its unrepaired state.

      {¶2}   On July 13, 2010, appellee filed a complaint against appellant for

damages incurred from the accident. On November 23, 2011, the parties entered into a

stipulation of liability and certain damage amounts.      The stipulation stated the fair

market value of the vehicle prior to the accident was $16,336.49. Appellee sold the

vehicle for $9,800.00 and, after paying an auctioneer's fee of $185.00, collected

$9,615.00 for the sale of the vehicle. Appellee also sought damages for the loss of the

use of the vehicle ($512.40) and administrative expenses ($150.00).               The latter

damages were not included in the stipulation.

      {¶3}   On November 28, 2011, appellee filed a motion for summary judgment.

By decision and order filed January 19, 2012, the trial court granted the motion and

awarded appellee the loss of the fair market value of the vehicle ($6,536.49). A final

judgment entry was filed on February 8, 2012 wherein the trial court increased the

award to $6,721.49 to include the $185.00 auctioneer's fee.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

      {¶5}   "THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE AVIS RENT-A-CAR SYSTEM, LLC

BECAUSE QUESTIONS OF FACT EXIST AS TO THE AMOUNT OF COMPENSATION
Licking County, Case No. 12-CA-15                                                       3


OWED FOR A DAMAGED VEHICLE THAT IS CAPABLE OF BEING REPAIRED, BUT

IS ELECTIVELY SOLD AT A SPECIALTY AUCTION."

                                             I

      {¶6}   Appellant claims the trial court erred in granting summary judgment to

appellee as genuine issues of material fact existed. Appellant claims the trial court used

an incorrect valuation to access damages. We disagree.

      {¶7}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

      {¶8}   "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

      {¶9}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.
Licking County, Case No. 12-CA-15                                                       4


      {¶10} By decision and order filed January 19, 2012 and final judgment entry filed

February 8, 2012, the trial court granted summary judgment to appellee and awarded

appellee $6,721.49 as against appellant. The trial court adopted appellee's position

relative to damages as set forth in the affidavit of Veronica Weston, appellee's Director

of Vehicle Damage Claims, attached to its November 28, 2011 motion for summary

judgment as Exhibit 1:

      7. The fair market value of the Chevrolet immediately prior to the accident has

      been stipulated to be $16,336.49.

      8. It has been further stipulated by the parties that on or about October 15,

      2009, the Chevrolet was sold at an auction for $9,800.00.

      9. The sale was a commercially reasonable arm's-length transaction where

      the buyer of the vehicle was not affiliated with or related to Avis.

      10. The auctioneer, Manheim of Cincinnati, charged Avis $185.00 in fees and

      Avis received $9,615.00 from the sale of the vehicle.

      14. Mr. Atkinson refuses to pay the claim because he is calculating damages

      by the repair cost and requesting a repair cost discount that Avis does not

      receive when the car is sold and not repaired.         Avis merely wants to be

      placed into the position it would have been had the accident not occurred.

      This cannot happen where Mr. Atkinson claims a discount for repairs that are

      never made. We understand our damages to be the difference between the

      fair market value of the vehicle immediately before and immediately after the

      accident.
Licking County, Case No. 12-CA-15                                                      5


      {¶11} The stipulation entered into by the parties on November 23, 2011 stated

the vehicle in question was valued at $16,336.49 prior to the accident and the amount

netted to appellee after the auction was $9,615.00.

      {¶12} In his brief at 6-7, appellant states there are two methods of calculating

the damage: the difference in the fair market value of the vehicle before and after the

accident which the trial court used, and the cost of repair which appellant argues is the

true measure of damages. Appellant argues using the values before and after the

accident was incorrect in this case because the subject vehicle was not a total loss and

could have been repaired. Weston depo. at 119. Appellee argues because the vehicle

sustained structural damage and had to be removed from its fleet of rental cars, the

appropriate measure of damages is diminution in value and incidental fees and costs.

      {¶13}   Undisputed by appellee is the fact that as a rental car company, it has a

policy of not repairing and returning significantly damaged vehicles to its fleet. Weston

aff. at ¶3-6. Appellee sold the subject vehicle per that policy and claimed the amount of

diminution in value as damages.

      {¶14} Appellant also argues the auction was not an open market sale, but a

distressed sale. Appellant relies on the argument that a dealer only auction is somehow

not the open market. The affidavits filed with appellee's motion for summary judgment

state the sale was an open market transaction. Weston aff. at ¶6 and 9; Spaulding aff.

at ¶1-4.   Appellant also argues appellee failed to mitigate damages in choosing a

wholesale auction.

      {¶15} Although appellant's arguments are valid in certain situations, appellee

presented undisputed testimony as to why the cost of repairs to the vehicle was not the
Licking County, Case No. 12-CA-15                                                     6


appropriate measure of damages. As a rental car company, appellee is entitled to be

made whole as a result of appellant's negligence. "[T]he measure of damages is that

which will make the injured party whole." Rakich v. Anthem Blue Cross & Blue Shield,

172 Ohio App.3d 523, 2007-Ohio-3739, ¶ 8. When damaged vehicles of the nature as

the vehicle sub judice are not repaired, the alternative method of fair market value

before and after the accident is appropriate. "This is the preferred method of computing

damages." Erie Insurance Co. v. Howard, 9th Dist. No. 21999, 2004-Ohio-5171, ¶ 4.

      {¶16} Despite appellant's argument that the wholesale auction was not an open

market transaction, appellant offered no evidentiary quality materials to support the

argument.

      {¶17} Upon review, we find the trial court did not err in granting summary

judgment to appellee and accepting the diminution in value amount for damages.

      {¶18} The sole assignment of error is denied.

      {¶19} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. concurs and

Hoffman, J. dissents.
                                           s/ Sheila G. Farmer_______________



                                           _s/ W. Scott Gwin_________________



                                           _______________________________

SGF/sg 910                                            JUDGES
Licking County, Case No. 12-CA-15                                                     7

Hoffman, J., dissenting

       {¶20} I respectfully dissent from the majority opinion.

       {¶21} While I agree with most of the majority’s analysis, I disagree with its

conclusion the wholesale auction constituted an open market transaction sufficient to

establish the vehicle’s fair market value after the accident.      I find this damage

determination insufficient as a matter of law and, as such, did not require Appellant to

offer evidentiary materials to establish an alternative value. The burden to prove the

vehicle’s “fair market value” is upon Appellee.




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN
[Cite as Avis Rent-A-Car System, L.L.C. v. Atkinson, 2012-Ohio-4921.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



AVIS RENT-A-CAR SYSTEM, LLC                           :
                                                      :
        Plaintiff-Appellee                            :
                                                      :
-vs-                                                  :            JUDGMENT ENTRY
                                                      :
DAVID R. ATKINSON                                     :
                                                      :
        Defendant-Appellant                           :            CASE NO. 12-CA-15




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                                      s/ Sheila G. Farmer_______________



                                                      _s/ W. Scott Gwin_________________



                                                      _______________________________

                                                                        JUDGES
