        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

 P&G TRUCKING OF BRANDON, INC., GOMES TRUCKING, INC., and
                MIGUEL ANGEL CAMACHO,
                       Appellants,

                                      v.

              RIVERLAND HEDGING & TOPPING, INC. and
                  CLEAR ZONE MAINTENANCE, INC.,
                            Appellees.

                              No. 4D19-1339

                             [August 26, 2020]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Janet Carney Croom, Judge; L.T. Case No.
312017CA000363.

    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables,
for appellants.

    Canda Brown,      Vero   Beach,   and   Mandy     Fetzer,   Vero   Beach,
for appellees.

DAMOORGIAN, J.

    In this negligence action, P&G Trucking of Brandon, Inc. (“P&G”),
Gomes Trucking, Inc. (“GTI”), and Miguel Angel Camacho (“Camacho”)
(collectively “Defendants”) appeal an amended final judgment awarding
Riverland Hedging & Topping, Inc. (“Riverland”) and Clear Zone
Maintenance, Inc. (“Clear Zone”) (collectively “Plaintiffs”) damages related
to the loss of a tractor and citrus topper. Defendants argue that the trial
court erred in denying (1) their motion for directed verdict as to the correct
measure of damages relating to the citrus topper; and (2) their motions for
partial summary judgment and directed verdict on the issue of “business
interruption damages.” We affirm the first argument without further
comment. Finding merit in Defendants’ second argument, we reverse.

   The material facts in this case are undisputed. While driving a truck
owned by P&G and leased by GTI, Camacho struck a tractor owned by
Clear Zone and a citrus topper owned by Riverland. Plaintiffs sued
Defendants for negligence, seeking damages for the total losses of the
tractor and citrus topper, lost profits, “inconvenience,” and
“administrative” costs. Defendants admitted fault but contested causation
and damages. Prior to trial, Defendants moved for partial summary
judgment on Plaintiffs’ claim for inconvenience and administrative
damages, arguing that such damages were not recoverable. The trial court
denied the motion.

   At trial, Robert Lindsey (“Lindsey”), the principal of Riverland and Clear
Zone, testified that, among other things, Riverland and Clear Zone suffered
damages in the form of inconvenience damages and administrative costs.
Regarding Riverland, Lindsey testified he spent about 50 hours overseeing
matters after the accident, which included clean-up of the accident scene
and “figur[ing] out what to do” for compensation costs. Regarding Clear
Zone, Lindsey testified he spent about 100 hours traveling to Georgia and
Charlotte County relating to contracts Clear Zone had committed to years
prior, and searching for replacement operators. Lindsey valued his time
at $150 per hour.

   At the close of Plaintiffs’ case, Defendants moved for a directed verdict
on Plaintiffs’ claims for inconvenience and administrative damages and
again argued that damages for such claims were not recoverable. The trial
court denied the motion and relabeled the inconvenience and
administrative claims as “business interruption” claims.          The jury
ultimately found in favor of Plaintiffs and awarded damages as follows:

Riverland:
Property Damage:         $221,330
Lost Profits:            $80,850
Business Interruption:   $7,500
Towing Costs:            $3,000

Clear Zone:
Property Damage:       $6,000
Lost Profits:          $49,647
Business Interruption: $15,000

An amended final judgment was entered awarding Riverland $312,680 and
Clear Zone $70,647.

    On appeal, Defendants argue that the time spent dealing with matters
related to the accident is not recoverable as business interruption damages
in this case. We agree.


                                     2
   Although there are no Florida cases specifically addressing the
availability of business interruption damages in the context of negligence
actions, we take guidance from cases discussing business interruption
damages in the context of insurance law. Business interruption damages
are generally awarded in property loss cases involving business
interruption insurance policies. See, e.g., Hotel Props., Ltd. v. Heritage Ins.
Co. of Am., 456 So. 2d 1249 (Fla. 3d DCA 1984). The general purpose of
business interruption insurance “is to protect earnings which the insured
would have enjoyed had no interruption occurred.” 31 Fla. Jur. 2d
Insurance § 2438 (emphasis added); see also 31 Fla. Jur. 2d Insurance
§ 2440 (“Business interruption insurance is intended to return to the
insured’s business the amount of profit it would have earned had there
been no interruption of the business or suspension of its operations.”
(emphasis added)); Nat’l Union Fire Ins. Co. v. Scandia of Hialeah, Inc., 414
So. 2d 533, 534 (Fla. 3d DCA 1982) (basing the availability of business
interruption damages on whether the insured could sufficiently show lost
profits). In other words, business interruption damages are generally only
recoverable to compensate a business for its lost earnings, not to
compensate for other potential consequential losses. See 43 Am. Jur.
Insurance § 509 (“Potential consequential losses are not, even if proved by
a preponderance of the evidence, compensable under a policy’s business
interruption coverage.” (footnote omitted)); see also Nat’l Union Fire Ins. Co.
of Pittsburg v. Anderson-Prichard Oil Corp., 141 F.2d 443, 445 (10th Cir.
1994) (“The purpose, scope and legal effect of the insurance contract is to
protect the prospective earnings of the insured business only to the extent
that they would have been earned if no interruption had occurred . . . .
In other words, the policy is designed to do for the insured in the event of
business interruption caused by fire, just what the business itself would
have done if no interruption had occurred—no more.”). 1

   Here, the time spent by Lindsey overseeing clean-up of the accident
scene, figuring out compensation for damages, traveling for meetings with
administrators relating to preexisting contracts, and searching for a
replacement operator is not tied to Plaintiffs’ loss of business income. The
fact that Plaintiffs themselves originally labeled the loss of time as
“inconvenience damages” and “administrative costs” further buttresses
this conclusion. Rather, if anything, the time spent tending to those
matters qualifies as a potential consequential loss and is not recoverable
as business interruption damages.

1We do not cite these cases and authorities to suggest that Florida law recognizes
a claim for business interruption damages in the context of a negligence action.
We cite these cases and authorities solely to define the type of damages
purportedly sought in this claim.

                                        3
    Moreover, even if the loss of time was compensable as business
interruption damages, the award in this case is duplicative of the lost
profits award. A double recovery based on the same element of damages
is prohibited. Besett v. Basnett, 437 So. 2d 172, 173 (Fla. 2d DCA 1983).
As the award of business interruption damages for the loss of time and the
award for lost profits were for the same period of time subsequent to the
accident, permitting Plaintiffs to recover for both the loss of time and loss
of earnings would yield a duplicative award of damages. See Lambert v.
Hasson, 823 P.2d 167, 174 (Idaho Ct. App. 1991) (recognizing that
permitting plaintiff to recover for both loss of earnings and loss of time
would “yield a duplicative award of damages”); Cox v. Chi. Great W. R.R.
Co., 223 N.W. 675, 677 (Minn. 1929) (holding that “[l]oss of time and loss
of earnings, as covering the same period of time, are a duplication”).

    Finally, whether labeled inconvenience damages, administrative costs,
or business interruption damages, the loss of time in this case is not
recoverable as an element of damages because that specific harm was too
remote and thus not proximately caused by Defendants’ negligent act.
See McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992) (“[H]arm
is ‘proximate’ in a legal sense if prudent human foresight would lead one
to expect that similar harm is likely to be substantially caused by the
specific act or omission in question.”). Stated differently, the 150 hours
spent overseeing the clean-up, figuring out compensation for damages,
traveling for meetings, and searching for a replacement operator was not
an obvious consequence of the accident, or reasonably foreseeable.
See Dick v. Pilot Travel Ctrs., LLC, No. 1:17cv230-MW/GRJ, 2018 WL
2760150, at *1 (N.D. Fla. Apr. 6, 2018) (striking plaintiff’s claim for
damages for the losses he suffered after his truck was broken into while
he was seeking medical attention after falling at the defendant’s truck stop,
and concluding that while it is true that the truck likely would not have
been broken into had the fall not occurred, those damages were too remote
under Florida law); see also Papenheim v. Lovell, 530 N.W.2d 668, 674
(Iowa 1995) (holding, in the context of a negligence action, that there was
no authority or precedent to award damages to plaintiff for time spent
dealing with matters related to the accident, but affirming the award
because of defendant’s failure to challenge the award below).

   Accordingly, we reverse the awards for business interruption damages
and remand with instructions for the trial court to deduct from the final
judgment the $7,500 awarded to Riverland and the $15,000 awarded to
Clear Zone.

   Affirmed in part, reversed in part and remanded.

                                     4
FORST, J., concurs.
ARTAU, J., concurs specially with opinion.

ARTAU, J., concurring specially.

   I agree with the majority that business interruption damages are not
recoverable as an element of damages here. Unlike the majority, however,
I see no need to seek guidance from insurance cases involving business
interruption claims. Those cases rely on contract law where expectation
damages may be awardable to protect an injured party’s interest in
realizing the value of the expectancy that was created by the promise of
the contracting parties.     The claim here does not arise from any
enforceable promise or contract. It arises in tort from a truck accident
that damaged a motorized citrus topper and tractor.

    The proper measure of compensation at common law and under Florida
law for damage in tort to personal property or chattel is generally limited
to the cost or value of repairing or replacing the damaged item, and its loss
of use. See, e.g., Meakin v. Dreier, 209 So. 2d 252, 254 (Fla. 2d DCA 1968)
(“Florida has adopted the Restatement of Torts as the rule of damages
applicable for injuries to chattels” [inclusive of] “loss of use” (citing
Restatement of Torts § 928 (Am. Law Inst. 1939))).

   Loss of use damages are generally measured by the amount necessary
to rent a similar article to perform the services usually performed by the
damaged article during the period of repair. E.g., MCI WorldCom Network
Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 223–24 (Fla. 2008) (citing
Restatement (Second) of Torts § 931 (Am. Law Inst. 1979)) (recognizing
rental cost as a proper measure of loss of use damages). However, loss of
use damages are not strictly limited to the rental value of the personal
property. See Meakin, 209 So. 2d at 254 (“The measure of damage is ‘loss
of use’ not rental value. Rental value is merely indicative of ‘loss of use’
value.”).

   In A. Mortellaro & Co. v. Atl. Coast Line R.R. Co., 107 So. 528 (Fla. 1926),
the Florida Supreme Court held that a plaintiff whose delivery truck was
damaged in a railroad accident was not entitled to recover for any “loss to
plaintiff’s business by reason of the damage to the truck” during the period
“the truck was out of use.” Id. at 528–29. Instead, our supreme court
recognized that the plaintiff would have been entitled to recover “upon
common-law principles of liability” whatever amount was necessary to rent
or hire a truck or other suitable vehicle “to perform the services usually
performed by the damaged truck.” Id. at 529.

                                      5
    The plaintiffs conflated the proper measure of damages here by
pursuing business interruption damages as if they were entitled to
compensation for their interrupted time spent addressing the effects of the
accident on their businesses. This is no more compensable than the time
that a motorist spends calling his or her insurance company and searching
for a rental car or replacement vehicle after it is regrettably damaged in an
accident.

   By conflating the measure of damages, the plaintiffs led the trial court
into incorrectly denying the defendants’ motion for directed verdict on the
plaintiffs’ claim for business interruption damages. While the majority
arrives at the same conclusion, it does so by finding that such damages
are too remote and duplicative of the lost profits awarded as the plaintiffs’
loss of use. But that assumes that business interruption damages would
have been compensable as a proper measure of loss of use, if not remote,
and if not duplicative. The only proper measure of damages that should
have been quantified after determining the value of the damaged personal
property here, was its loss of use. 2 Undoubtedly, all accidents cause
interruptions to our personal lives and our businesses, but those
interruptions were not compensable at common law, and they remain not
compensable under Florida law.

                             *         *         *

    Not final until disposition of timely filed motion for rehearing.




2 Because there was no readily available rental market for this type of personal
property, the parties apparently used lost profits to quantify their loss of use
claim. The award of lost profits as a proper measure of loss of use was not the
subject of this appeal. Thus, we did not reach the issue of whether lost profits
were a proper measure of loss of use under the circumstances here.

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