Hubbard v. Albuquerque Truck Center, Ltd.

1998 NMCA 058, 958 P.2d 111, 125 N.M. 153
CourtNew Mexico Court of Appeals
DecidedMarch 18, 1998
Docket17716
StatusPublished
Cited by10 cases

This text of 1998 NMCA 058 (Hubbard v. Albuquerque Truck Center, Ltd.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. Albuquerque Truck Center, Ltd., 1998 NMCA 058, 958 P.2d 111, 125 N.M. 153 (N.M. Ct. App. 1998).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} This case provides an opportunity to analyze, among other issues, the measure of damages which should be applied when an item of personal property is improperly repaired by a party who was contracted to undertake such repair.

{2} Plaintiff David Hubbard (Hubbard) filed his Complaint for Breach of Contract and Warranties, Misrepresentation, Negligence, Negligence Per Se and Unfair Trade Practices against the Defendant Abuquerque Truck Center, Ltd. (ATC) and Cummins Southwest, Inc. (Cummins) asserting ATC had failed to properly conduct an inframe overhaul of the engine in his Kenworth semi-tractor. Hubbard asserted that Cummins had assisted ATC, to no avail, in diagnosing defects in the repair work. Cummins settled its differences with Hubbard for the sum of $4500, but the matter proceeded to a bench trial against ATC. The trial court found in favor of Hubbard on his breach of contract and breach of warranty claims, but found against him on his misrepresentation, negligence, negligence per se, and unfair trade practices theories. Hubbard appeals from the judgment asserting three points of error: (1) the apparent decision of the trial court to limit his general damages to the fair market value of the tractor if properly repaired, as of October 1993; (2) the trial court’s refusal to award any damages for loss of income or other consequential damages; and (3) the trial court’s refusal to find a violation of the Unfair Trade Practices Act, NMSA 1978, Sections 57-12-1 to -22 (1967 as amended through 1995). We affirm as to points one and three, but reverse as to point two.

FACTS AND PROCEEDINGS

{3} Hubbard owns a 1983 Kenworth semi-tractor. Prior to October 1993, Hubbard earned his living operating the tractor as an independent hauling contractor. In July 1992, when the tractor had approximately 800,000 miles on it, Hubbard noticed that the engine was leaking water and was using too much oil. He took the tractor to ATC for repairs. Hubbard chose to have a complete inframe overhaul of the engine performed at a cost of $6,296.39, ATC warranted the engine and its repairs for one year and/or 100,000 miles from the time the service was performed.

{4} Within two days after placing the tractor back in service after the repairs, Hubbard observed excess water leaking from both sides of the engine block. He immediately returned the tractor to ATC for further repairs. Hubbard was asked to return at a later date because the mechanic who had performed the overhaul was unavailable. Additional repairs, including removal of the center cylinder head, started on August 17, 1992, but were unsuccessful. Hubbard returned the tractor to ATC on September 24, 1992, twice in October 1992, and again in November 1992 for unsuccessful repair efforts by ATC. At one point, ATC tore down the engine a second time and rebuilt all of the cylinders, without success. The engine continued to leak excessively, despite ATC’s repair efforts, including consultations with Cummins repair personnel.

{5} After six attempts to fix the water leak, ATC advised Hubbard that there was something unusual about the engine, and that it was uneconomical for both parties to keep rebuilding it, ATC offered to give Hubbard full credit for the amount he paid for the overhaul as part payment for another reconditioned engine. Hubbard refused the suggestion.

{6} In December 1992 Hubbard again contacted ATC regarding the water leak. This time ATC refused to inspect or attempt further repairs on the tractor. Hubbard continued to drive the tractor unrepaired, accumulating over 80,000 miles on it, until October 1993 when a head bolt broke on the engine. Breakage of the head bolt was unrelated to the water leakage problem. Hubbard decided not to repair the head bolt and, so far as the record reveals, he had not repaired it through the date of trial.

{7} An inspection by another repair shop revealed that the water leaks were probably caused by uneven grinding of the engine block surface which prevented the head gaskets from seating properly. The inspector testified that the depressions were fairly sizeable and could have been detected by laying a straight edge across the engine block. In addition, some of the cylinder block liners were incorrectly positioned. Hubbard was told that continued use of the tractor in its condition would cause irreparable harm to the engine. He received an estimate for repairs of the engine in its current condition, or replacement, in the range of $10,000 to $12,000.

{8} It is undisputed that the tractor was in ATC’s shop in Albuquerque for repairs for at least twenty days from August to November 1992. While the tractor was in the shop, Hubbard could not work or earn income from it. In addition, it is undisputed that Hubbard incurred some unreimbursed expenses for lodging and meals while in Albuquerque for the repairs. ATC paid some, but not all of these per diem costs.

{9} In his requested findings of fact and conclusions of law, Hubbard requested damages as follows:

35. Hubbard’s gross income for the year 1992 was $93,348. Hubbard’s gross income for the year 1993 was $61,461 for three quarters of the year through breakdown of his tractor. He had wages of $5,550 through the last quarter of 1993 since he was unable to operate his tractor.
36. Hubbard’s damages are as follows:
a. repair/replace engine: $10,000.00-12,000.00
b. repair costs: $ 100.22
c. lost income (1992) (20 days $ 7,000.00 x 350.00):
d. per diem: (motels/meals): $ 800.00
e. loss of earnings: (1993) $26,337.00
(inclusive of wages)

{10} Relying on UJI 13-1815 NMRA 1998, ATC argued that Hubbard’s general damages, if any, should be limited as follows:

A Hubbard is entitled to the smaller of the two figures which are calculated as follows:
One figure is the reasonable expense of necessary repairs to the property damaged] plus the decrease, if any, in the fair market value of the repaired property as compared to its fair market value before the occurrence; (_, Repair figure chosen by Court) and,
The other figure is the difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence. (UJI 13-1815) (This amount is $7,500, being the $11,000 less the $3,500 salvage value of the truck).

In addition, ATC requested a finding that Hubbard was entitled to the “reasonable rental of similar property used during the time reasonably required for the repair of the damaged property. (A $110 rental per day for 24 days, or $2,640[.])”

{11} The trial court entered findings agreeing that ATC had verbally and expressly warranted that the repairs to the tractor would be performed in a workmanlike manner consistent with industry standards.

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Bluebook (online)
1998 NMCA 058, 958 P.2d 111, 125 N.M. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-albuquerque-truck-center-ltd-nmctapp-1998.