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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 ONDINE SCOTT,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,475

 5 NICOLAS MORALES,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Nan G. Nash, District Judge

 9 Thomas C. Montoya
10 Albuquerque, NM

11 for Appellant

12   O’Brien & Padilla, P.C.
13   Daniel J. O’Brien
14   Alicia M. Santos
15   Albuquerque, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 VANZI, Judge.
 1   {1}   Plaintiff Ondine Scott appeals from a judgment entered in her favor against

 2 Defendant Nicolas Morales following a jury trial on the issue of causation and

 3 damages. The jury awarded Scott compensatory damages for, among other things, the

 4 reasonable loss of use of her vehicle, which had been totaled in an accident caused by

 5 Morales. Scott contends that it was error for the district court to not instruct the jury

 6 that she was entitled to recover both the reasonable value of the total loss of her

 7 vehicle and reasonable loss-of-use damages. We affirm.

 8   {2}   Scott and Morales were involved in an automobile accident. Prior to trial,

 9 Defendant stipulated to liability, leaving the issues of causation and damages to be

10 tried to a jury. There was undisputed evidence at trial that Scott’s vehicle was a total

11 loss following the accident and could not be repaired. Scott testified that, from the

12 time of the accident until the time of trial, she could not find or afford to purchase a

13 replacement vehicle that was reliable and dependable. As a result, she shared her

14 parents’ vehicle, relied on family and friends to take her to work, and also incurred

15 expenses when she rented a car from a friend.

16   {3}   At trial, Scott submitted a proposed jury instruction in which she sought to

17 claim, as an element of damages, “the fair market value of the property immediately

18 before the occurrence” and “[t]he reasonable rental value of similar property during

19 the period reasonably required for the repair or replacement of the damaged

20 property[.]” After hearing argument from counsel, the district court ruled that Scott

                                               2
 1 was entitled to recover either the reasonable value of the totaled vehicle or the

 2 reasonable loss of use of the vehicle, but not both. Scott elected to seek damages for

 3 the loss of use of her vehicle, and the jury ultimately returned a verdict in her favor

 4 in the amount of $3,240.49. The only issue on appeal is whether a party can recover

 5 for both the reasonable value of the total loss of a vehicle and the reasonable loss of

 6 use of a vehicle.

 7   {4}   While this case was pending—but before briefing was complete—this Court

 8 addressed the precise issue raised in this appeal. See Behrens v. Gateway Court, LLC,

 9 2013-NMCA-097, 311 P.3d 822, cert. granted, 2013-NMCERT-009, 311 P.3d 452.

10 As an initial matter, we appreciate the fact that Plaintiff’s counsel informed us of

11 Behrens decision in the reply brief and for conceding that Behrens is likely dispositive

12 here. In Behrens, we affirmed the district court’s ruling that the plaintiff could not

13 seek loss-of-use damages for completely destroyed property. Id. ¶¶ 1, 16. In reaching

14 our conclusion, we analyzed the relevant cases relied upon by the parties in this case,

15 including Curtis v. Schwartzman Packing Co., 1956-NMSC-070, 61 N.M. 305, 299

16 P.2d 776; Cress v. Scott, 1994-NMSC-008, 117 N.M. 3, 868 P.2d 648; and Robb v.

17 Universal Constructors, Inc., 665 F.2d 998 (10th Cir. 1981). Behrens, 2013-NMCA-

18 097, ¶¶ 11-14. Further, we considered many of the arguments made here, including

19 recognition of the developing trend in other jurisdictions allowing loss-of-use

20 damages for completely destroyed property. Id. ¶ 15. Ultimately, however, our

                                              3
 1 holding was compelled by our Supreme Court’s precedent in Curtis. Behrens, 2013-

 2 NMCA-097, ¶ 16. This Court determined that, under Curtis and New Mexico law,

 3 loss-of-use damages are available for reparable property but not for completely

 4 destroyed property. Behrens, 2013-NMCA-097, ¶ 16. Consequently, we held that the

 5 district court in Behrens did not err in denying the plaintiff’s loss-of-use damages

 6 claim for the destroyed personal property. Id.

 7   {5}   Based on our reasoning in Behrens, we reach the same result in this case. We

 8 conclude that Scott was entitled to either the reasonable value of her totaled vehicle

 9 or the reasonable loss of use of the vehicle. Thus, the district court in this case did not

10 err in refusing Scott’s proposed jury instruction that would have allowed an award of

11 damages for both the total loss and the loss of use of the vehicle.

12 CONCLUSION

13   {6}   We affirm the district court’s ruling that a party cannot recover damages for

14 both the total loss of a vehicle and the loss of use of a vehicle.

15   {7}   IT IS SO ORDERED.

16                                           __________________________________
17                                           LINDA M. VANZI, Judge

18 WE CONCUR:


19 _________________________________
20 RODERICK T. KENNEDY, Chief Judge


                                                4
1 _________________________________
2 JAMES J. WECHSLER, Judge




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