In a non-construction case, but an interesting case nonetheless, the Second District Court of Appeals talks about the measure of damages when dealing with chattel (property) including loss of use damages.  Chattel, you say?   While certainly not a word used in everyday language, a chattel is “an item of tangible movable or immovable property except real estate and things (such as buildings) connected with real property.”  Equipment, machinery, personal items, furniture, etc. can be considered chattel.

With respect to the measure of damages for a chattel:

“Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value,” the plaintiff may make an election out of two theories of recovery in addition to compensation for the loss of use. Badillo v. Hill, 570 So. 2d 1067, 1068 (Fla. 5th DCA 1990) (quoting Restatement of Torts § 928 (Am. Law Inst. 1939)). In addition to compensation for the loss of use, the plaintiff may elect either “the difference between the value of the chattel before the harm and the value after the harm” or “the reasonable cost of repairs or restoration where feasible, with due allowance for any difference between the original value and the value after repairs.” Id. (quoting Restatement of Torts § 928).

Sack v. WSW Rental of Sarasota, LLC, 45 Fla.L.Weekly D2306a (Fla. 2d DCA 2020).

Sack is a good example of a case dealing with the measure of damages with a chattel, here, an aircraft, including loss of use damages.

An owner rented its aircraft to a pilot.  The pilot had an accident landing the aircraft causing damage to the aircraft and resulting in it resting in mud.  The owner of the aircraft and its managing member sued the pilot for damage to the aircraft including loss of use of the aircraft.  At trial, there was evidence that the aircraft incurred $219,106.81 in damages of which $40,000 remained unpaid (the balance being paid by insurance).  Furthermore, there was evidence that the value of the aircraft before the accident was $550,000 and the value of the aircraft after repairs was $350,000.   Thus, the appellate court held the measure of damages was $240,000 ($40,000 in unpaid repair costs + $200,000 associated with the diminution in value of the pre-accident aircraft to the repaired post-accident aircraft) plus loss of use damages.  (Loss of use damages was awarded at trial of $165,000 calculated “by multiplying the reasonable hourly rate of renting the [a]ircraft ($1500) by the reasonable length of time [the owner] was without the [a]ircraft (11 months) by the reasonable number of hours per month [the owner] used the [a]ircraft (10).”  Sack, supra.)

Of interest, loss of use damages were properly awarded “despite the fact that [the owner] testified that he had never chartered or rented another aircraft while this aircraft was out of use.”  Sack, supra.  Hence, the fact that the owner did not rent or charter another aircraft during the eleven months its aircraft was out of use did NOT preclude the owner from pursuing and being awarded loss of use damages.  The Second District did, however, state that loss of use damages was properly awarded to the owner—the entity that owned the aircraft—but not the managing member that was not the registered owner.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.