Beware of Ferrari Maserati of Vancouver

This guy!

I really, REALLY want the other side of the story.

Cheers,

Geo

 

Good day Geo,

Indeed, there may be more to the story... however, it is interesting that there is another thread about this dealer that also involved playing down paintwork issues...

http://www.ferrarichat.com/forum/canada/429804-ferrari-vancouver-warning.html

Cheers,

Sam

 

interesting. if there is any truth to the myth that level of sevice in inversely related to the grandeur of the showroom...

 

+1
I met Joseph 22yrs ago when i bought my first ferrari .He is hands down the best ferrari tech around. There is no one that take's more care and pride in his work.
His phone # 604 980 0843

 

I'm sorry to hear , you are another victim like myself of this dealer . Hope you are suing them . Your story confirms the lack of ethics at this dealer .

 

Joseph is a major headache to deal with. He operates without a business licence so he has no insurance. Temper tantrums and three month waits are just the start. I'd be happy to PM anyone on my experiences with him.

 

Happy new year to all and thanks for your support! With respect to my experience with Vancouver Ferrari Maserati, I really felt that they left me with no choice but to sue. To clarify, although Vancouver Ferrari Maserati recently released my Ferrari F430, it has still not been repaired to date. The legal case is ongoing...

Dr. Lawrence Miller

 

The fact they haven't repaired your car is horrible.

I hope they will buy the car back at value it was worth when you handed it to them (or compensate you for that when it comes to sell), and get another one. Damage sounds pretty serious.

Can you tell us how the damage happened? Did someone crash into them or did they drive like an ass and crashed it?

 

Many stories about Philipovich only accepting cash and when the resulting work is shody there is no recourse. A local 308QV had a major performed by Joseph for a surprise $18,000.00 bill and within 3000km had to be done again because of belt failure.


http://www.prancinghorseinc.ca/

 

Wow this is outrageous, this dealer should be ran out of the business. Did you ever get an explanation as to how this amount of damage happened? No doubt someone was being reckless and taking it out for a joy ride, that alone is worth a law suit IMO

 

IMHO the only proper thing for this dealership to do is to buy your damaged car and make you a great deal on another ferrari. I'm not sure I would accept anything less. I base this on your description of the damage which seems severe on a "ferrari".

 

Any further updates on this horrible experience? I truly believe that service is inversely proportional to the grandeur of the showroom! FMOV is proof of that! Two recent incidents of shoddy sales and service does not bode well for a prestige dealership. FNA should pull their franchise.
As for ZR in Post #14, don't be too hasty to recommend them either. I have proof of their shady repairs on the F355 I bought that supposedly had a full engine our service completed for $15,000 which after purchasing the car, I had to do again! Amongst other "erroneous" charges, one tensioner bearings were not replaced - one was seized and the other bone dry of grease. one bank of spark plugs were not replaced but invoiced (proof by R&M records).
Honesty seems to be a scarcity these days!
Good luck to both of you for a satisfactory settlement from FMOV.

 

What's the latest news update on this situation. I have purchased three Ferrari's from Vancouver Ferrari and had no issues what so ever. I'm going to ask Mark about these problems today when I take delivery of the Speciale.

 

UPDATE!


I write to provide an update on my experience in dealing with Ferrari Maserati of Vancouver.

My apologies for not responding previously to forum members' questions regarding my experience dealing with Ferrari Maserati of Vancouver. My lawyer advised me to wait until the court case was over.


The trial in this matter began in November 2014 and lasted 3.5 days. The Reasons for Judgment were published August 7, 2015, and are as follows:


Miller v. Brian Ross Motorsports Corp., 2015 BCSC 1381 (CanLII)
Date: 2015-08-07
Docket: S135397
Citation: Miller v. Brian Ross Motorsports Corp., 2015 BCSC 1381 (CanLII), <http://canlii.ca/t/gkkbt> retrieved on 2015-08-14 Cited by 0 documents Show headnotes PDF Email Tweet Share
IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:
Miller v. Brian Ross Motorsports Corp.,

2015 BCSC 1381
Date: 20150807
Docket: S135397
Registry: Vancouver

Between:

Dr. Lawrence Miller and Dr. Lawrence Miller
Professional Psychology Corporation
Plaintiffs
And

Brian Ross Motorsports Corp. dba Ferrari Maserati of Vancouver

Defendant

Before: The Honourable Madam Justice Dardi

Reasons for Judgment

Counsel for the Plaintiffs:
A.S. Dosanjh
A. Doolittle
Counsel for the Defendant:
C.J. Bakker
K. Yaworski, Articled Student
Place and Date of Trial:
Vancouver, B.C.
November 24-26, 2014
February 12, 2015
Place and Date of Judgment:
Vancouver, B.C.
August 7, 2015


INTRODUCTION

[1] This dispute relates to the assessment of damages arising from the plaintiff’s temporary loss of use of a luxury automobile.

[2] The plaintiff’s 2005 Ferrari F430 F1 (the “Ferrari”) was damaged on May 28, 2013, while it was being serviced at the defendant’s automotive dealership and service centre. The defendant concedes that the damage was sustained as a result of its negligence. Through an unfortunate series of circumstances, the defendant did not return the plaintiff’s Ferrari to him for some seven months.

[3] The plaintiff initially sought damages for repair costs, loss of value to the Ferrari, and loss of use of the Ferrari. Commendably, the parties resolved the issue of damages for repair costs and accelerated depreciation of the Ferrari’s value prior to trial. The sole issue left for determination is the assessment of damages for loss of use. To this end, the plaintiff seeks damages in the amount of $85,000. The defendant suggests an award of $5,000 would be appropriate.

[4] Before turning to the analysis, it is necessary to identify the parties, summarize the pertinent facts, and review the applicable legal principles.

FACTS

[5] Many of the essential facts are not in contention.

The Parties

[6] The plaintiff, Dr. Lawrence Miller, is a clinical psychologist and was, at all material times, either in his personal capacity, or through a professional corporation, the owner of the Ferrari. The plaintiff is a passionate Ferrari enthusiast.

[7] The defendant, Brian Ross Motorsports Corp. dba Ferrari Maserati of Vancouver, is an automotive dealership and service centre. As the name suggests, the defendant is associated with the luxury vehicle brands Ferrari and Maserati.

The Collision

[8] On May 22, 2013, the plaintiff took his Ferrari into the defendant’s dealership for its annual service which was performed by a Ferrari-certified technician employed by the defendant.

[9] On May 28, 2013, the technician road-tested the Ferrari as part of the quality control element of the annual service. Unfortunately, during the course of the road test, the technician made contact with a delivery truck parked in a laneway, which caused damage to the Ferrari. The defendant admits liability for the ensuing damage.

Post-Collision Events

[10] The defendant’s general manager, Mark Edmonds, explained that after the collision he took immediate steps to contact No. 1 Collision, a professional automotive repair shop. The defendant sought a quote and an estimate of the time it would take to make the required repairs. The Ferrari was taken to No. 1 Collision without the plaintiff’s authorization.

[11] On May 29, 2013, a representative of the defendant advised the plaintiff by telephone that his Ferrari had been damaged and that they would repair the damage. The plaintiff, who was out of town at the time, instructed the defendant’s personnel not to perform any work on the Ferrari until he had the opportunity to observe the damage first hand.

[12] On May 30, 2013, a representative of the defendant accompanied the plaintiff to No. 1 Collision to view the Ferrari. The plaintiff was shocked at the extent of the damage which he had initially understood to be “a scratch”. The Ferrari was damaged down the length of the passenger side, including damage to the rims and the passenger side mirrors. As it turns out, the cost of the repairs was $35,644.04.

[13] The plaintiff was dissatisfied with the choice of No. 1 Collision as the repair shop. He was concerned that it was not a “factory-authorized” facility to perform repairs on Ferraris. He wanted to explore alternatives which he felt were more appropriate. Throughout June 2013, the plaintiff contacted a number of Ferrari dealerships and repair shops throughout North America to inquire about superior options for the repair of the Ferrari.

[14] Through June into mid-July 2013, the plaintiff and representatives of the defendant discussed the possibility of trading in the Ferrari for a newer model. I find it was reasonable for the plaintiff to pursue this option and to delay having his Ferrari repaired. In any case, those negotiations were not fruitful, and the proposed alternative vehicle was ultimately sold by the defendant to a third party.

[15] In June 2013, the plaintiff attended at No. 1 Collision and was upset to discover his Ferrari was parked outside and exposed to the elements. On June 24, 2013, counsel for the plaintiff wrote to defendant’s counsel to reiterate the plaintiff’s instructions that no work was to be performed on the Ferrari by No. 1 Collision. Further, counsel demanded that the Ferrari be parked indoors or covered appropriately.

[16] On July 19, 2013, the plaintiff filed the Notice of Civil Claim in this action. It was served on the defendant on July 22, 2013.

[17] On July 23, 2013, a representative of the defendant contacted the plaintiff attaching a service invoice for the tune-up and annual service. Mr. Edmonds maintains that the employee who issued this invoice did so without his knowledge. In any event, on July 24, 2013, a representative of No. 1 Collision, on instructions from the defendant, advised the plaintiff by email that he would not be able to pick up the Ferrari until the service invoice had been paid. The plaintiff sent a reply email that he had no intention of paying any such invoice.

[18] On July 24, 2013, No. 1 Collision returned the Ferrari to the defendant’s premises and it was placed in a secure parking facility. On that same day, counsel for the plaintiff wrote to defendant’s counsel confirming his position that the defendant was not entitled to payment of its invoice. Further, counsel requested that the defendant contact him regarding making arrangements for the plaintiff to retrieve the Ferrari.

[19] Through a series of unfortunate events, the Ferrari was not returned to the plaintiff for several months. It is uncontroversial that the damaged Ferrari remained in the defendant’s possession until December 18, 2013, at which time the plaintiff retrieved his Ferrari from the defendant’s premises.

The Subsequent Repair of the Ferrari

[20] When the Ferrari was released to the plaintiff in December 2013, it had not yet been repaired.

[21] The plaintiff explored several potential repair shops in early 2014. He also explored the possibility of retaining an Albertan repair shop, an authorized repair shop in California, and a repair shop in Redmond, Washington. None of these shops turned out to be a viable option for the plaintiff.

[22] Subsequently, on or about February 4, 2014, the plaintiff retained Korva World Class Collision in Vancouver to provide an estimate regarding the required repairs. The plaintiff elected to proceed to have the Ferrari repaired at that facility. However, because of their workload, the plaintiff was not able to bring the Ferrari in for repairs until March 21, 2014. The repaired Ferrari was returned to the plaintiff on May 9, 2014.

Rental Possibilities

[23] Mr. Stirrat was called by the plaintiff. He operates the Vancouver Car Club, a virtual enterprise which facilitates fractional ownership of exotic and ultra-luxury vehicles. The Vancouver Car Club does not own any the vehicles in its own right. As an ancillary aspect of its main business, it also facilitates rentals of vehicles and acts as a “middle man”; connecting interested renters with suitable vehicles owned by private parties. The Vancouver Car Club is not involved in any actual rental transactions.

[24] In 2013 and 2014, the Vancouver Car Club website advertised a 2007 F430 Ferrari Spider convertible. The daily rental rate for the vehicle was $1,250. In addition, renters would be required to pay $99 per day for insurance coverage and a deposit of $2,500. The vehicle was also available for rental at a monthly rate of $9,381. Mr. Stirrat conceded that he could not say for sure whether the rental rate advertised on the Vancouver Car Club website had ever been realized.

[25] The plaintiff did not contact Mr. Stirrat regarding rental possibilities nor did he rent a comparable vehicle in the period during which the Ferrari was damaged.

Overview of the Plaintiff’s Claim for Loss of Use

[26] The plaintiff’s work as a clinical psychologist includes meeting with clients and preparing reports. He rents office space on an as-needed basis in the lower mainland where he meets with clients on average 10 to 15 hours per week. He also maintains a home office where he works 30 to 35 hours per week. The plaintiff travels for work purposes. At trial, he estimated that he had taken three to four work trips, of approximately one week each, within the preceding 12 months. In addition, he travelled for holidays, stating that he took a holiday for one week to Hawaii and several weekend trips.

[27] The plaintiff owns several vehicles. His primary vehicle for transportation, including for commuting to work, is an Acura which he purchased in 2002. In addition, the plaintiff owns two motorcycles and the Ferrari. One motorcycle is stored in Ottawa for purposes of transportation when he is there on business. The other is kept in Vancouver, and the plaintiff drives it for pleasure, primarily during the summer months.

[28] The Ferrari is insured for “pleasure use” and not as a commuter vehicle. However, under this insurance policy, the plaintiff is entitled to use it for work purposes up to a maximum of six days per month. The plaintiff indicated he rarely does so. The plaintiff drives the Ferrari all-year-round when the weather is suitable, but he does not drive it in the rain. He estimated that in the first year he owned the Ferrari, he drove it approximately 20 days per month, but acknowledged that he drove it less frequently in the winter.

[29] The plaintiff, who is unmarried, with no children, purchased the Ferrari in November 2011. He derives great joy from driving his Ferrari which he described as a “work of art” and a “pure pleasure vehicle’. The plaintiff explained that driving the Ferrari is his preferred pastime from which he derives his peace of mind; the activity constitutes a form of stress relief for him .The plaintiff is engaged in a community of likeminded car enthusiasts, and attends automotive shows. It is clear that the plaintiff enjoys the social elements associated with ownership of a Ferrari.

[30] According to the plaintiff, renting a vehicle would be no substitute for the very special “pride of ownership” of the Ferrari.

ISSUE

[31] It is common ground that the retention of the Ferrari by the defendant was wrongful, and that the plaintiff is entitled to damages for the loss of use of the Ferrari.

[32] The essential issue for determination is the quantum of damages to be assessed for the plaintiff’s loss of use of the Ferrari.

POSITION OF THE PARTIES

The Plaintiff

[33] The plaintiff framed his claim in negligence. In his pleadings, he also alleges a breach of the contract of bailment.

[34] At trial, I raised with counsel whether the claim was properly framed as a claim in detinue. Counsel addressed this point in supplemental submissions. The essence of their submissions was that the assessment of damages is not materially different however the claim is framed.



[35] The plaintiff’s primary contention is that, despite having suffered no pecuniary loss, the appropriate approach for the assessment of damages is to consider the cost for renting a similar Ferrari over a one-year period. The plaintiff calculates one year’s loss as $112,572, based on a rental rate of $9,381 per month. However, the plaintiff acknowledges that there are contingencies which the court should consider and that, and “all factors being considered”, an appropriate award would be $85,000. Such an award, the plaintiff assert, is commensurate with his investment in the Ferrari and his special experience of driving it. He emphasizes that he was deprived of the experience of driving his Ferrari through the summer of 2013.

The Defendant

[36] The defence did not take a technical position on the adequacy of the plaintiff’s pleadings; they concede that the plaintiff is entitled to damages for loss of use of the Ferrari. However, they underscore that the award must be reasonable in all the circumstances of the case.

[37] The defendant’s essential submission is that the quantum of damages sought by the plaintiff is unreasonable. They point out that the plaintiff purchased the Ferrari for $134,288 in 2011. An award of $85,000 would equate to almost two-thirds of the total purchase price of the Ferrari.

LEGAL FRAMEWORK

[38] It is common ground that the authorities establish that a person who has been wrongfully deprived of the use and enjoyment of a chattel will, in appropriate circumstances, be entitled to damages, even where they suffered no tangible pecuniary loss: “The Mediana”, [1900] A.C. 113 (H.L.); Kerbel v. Fisher, [1981] B.C.J. No. 1514 at para. 29; Sabo v. Canada (Attorney General), 2013 YKCA 2 (CanLII) at para. 82.

[39] This proposition that a plaintiff is entitled to damages for loss of use of a chattel is derived from the decision of the House of Lords in “The Greta Holme”, [1897] A.C. 596. In that case, the House of Lords concluded that the harbour authority was entitled to recover damages for the loss of use of a dredger, despite having incurred no pecuniary losses or replacement expenses. This principle was applied shortly thereafter in The Mediana, a decision which also concerned deprivation of the use of a vessel.

[40] The weight of the authorities in British Columbia endorses a cautious approach to the assessment of damages for loss of use. The authorities demonstrate divergent approaches taken by B.C. courts in determining whether an award for loss of use of a non-profit-generating chattel ought to be made, and how such damages should be quantified.

[41] The Court of Appeal in Vancouver Ice & Storage Company v. British Columbia Electric Railway Company, [1927] 1 W.W.R. 631 (B.C.C.A.) reversed the trial judge’s award for damages for loss of use of a truck. On appeal, the Court cautioned that the particular facts of The Greta Holme and The Mediana must be carefully scrutinized. The Court stated that in order to come within those authorities, the plaintiff in the case under consideration would have had to show that the depreciation of the damaged truck delayed it in its work or otherwise caused damage: at 634. The evidence established that the plaintiff in Vancouver Ice & Storage Co. had intended to have the damaged truck repaired in any event. Accordingly, the Court disallowed the award for loss of use.

[42] In Kerbel, Hinds J. considered the application of the principles regarding loss of use in respect of a plaintiff owner of a Mercedes Benz which was damaged in an accident. The car was unavailable to him for a period of about three months. Hinds J. declined to award damages for loss of use, on the basis that the plaintiff was away for a significant portion of the repair time and, in any case, he did not regularly drive the vehicle during the winter months and in inclement weather.

[43] In Duckworth v. Armstrong (1996), 29 C.C.L.T. (2d) 239 (B.C.S.C.) the plaintiff’s vintage Camaro, which he kept in pristine condition, was damaged in an accident. The evidence established that the plaintiff used the vehicle during the summer months, and stored it, uninsured, on blocks during the wintertime. In December, while the vehicle was in the shop for repairs, it was stolen. The Camaro was never recovered.

[44] With respect to the plaintiff’s claim for loss of use of the Camaro, the court noted that at the time the vehicle was stolen, it would have been stored for the winter and thus the plaintiff would not be driving it in any event until the spring. The court assessed general damages of $1000 for loss of use and stated as follows:

… Although there is evidence that he did not replace the Camaro, there is no evidence of what he used for transportation, or of any costs he had for transportation as a result of loss of the use of the Camaro. In any event, I consider that the period from the time of the loss until the spring, when he would normally have been using the vehicle, was a reasonable time in which to make alternate arrangements for transportation, and I thus make no award for additional costs arising from the loss of the Camaro. However, the case law does establish that where, as a result of negligence of the defendant, the plaintiff loses the use of a chattel, the plaintiff is entitled to recover general damages: No. 7 Steam Sand Pump Dredger (Owners) v. “Greta Holme” (The) [1897] A.C. 596 (H.L.); Basted v. Grafton [1948] 1 W.W.R. 614 (B. C. County Court). There is no doubt the plaintiff sustained a loss of enjoyment of the vehicle, which was his pride and joy. I thus award $1,000 general damages for loss of use.

[45] The most recent consideration provided by the parties is the decision of Mr. Justice Grauer in Signorello v. Khan, 2010 BCSC 1448 (CanLII). In that case, the lessee of a rare luxury Mercedes Benz sought damages for loss of use as compensation for being deprived of the use of the vehicle for two months, while it was repaired after an accident. The plaintiff argued that while the vehicle was unavailable to him in the automotive shop, he nonetheless had to maintain his lease payments. The court noted the plaintiff did have the use of a replacement Mercedes for part of the material time period, and that that the plaintiff was also out of the city on business for approximately half of the material time period. The court awarded the plaintiff $3,000 for loss of use.

[46] In S.M. Waddams, The Law of Damages, loose-leaf, 4th ed. (Toronto: Canada Law Book, 2004) the author notes that the jurisprudence is unsettled regarding the scope of the entitlement to recovery for loss of use and methodologies for assessing those damages. He concludes that the assessment of damages for the loss of use for a “non-profit making chattel” ultimately turns on “the basis of convenience of assessment”.

[47] In summary, the determination of appropriate quantum of damages for loss of use is primarily a fact-driven analysis. While the authorities are instructive they provide general guidance only. The legal principles that animate the assessment of damages for loss of use have not been well-developed and the jurisprudence is difficult to reconcile. The authorities demonstrate divergence in the range of factors considered by the court and the methodology for calculating damages.

DISCUSSION

[48] With these general principles in mind I turn to consider the facts of this case.

[49] The starting point in the analysis is to determine the time period for which the defendant reasonably should be liable for the loss of use or wrongful detention of the Ferrari.

[50] The plaintiff urges this court to conclude that the plaintiff is entitled to recover damages from loss of use from May 2013 to May 2014. This encapsulates the time span from when the damaged Ferrari was initially detained by the defendant until the Ferrari was ultimately repaired. The plaintiff says that the fact Mr. Korva’s repair shop was unable to accommodate the repairs expeditiously is a foreseeable consequence of the defendant’s wrongful detention of the damaged Ferrari.

[51] The defendant counters with the submission that it should be not responsible for any loss of use period after December 18, 2013, when the Ferrari was returned to the plaintiff. As I mentioned, there were significant delays in the ensuing months and the repairs were not completed until May 9, 2014.

[52] The Ferrari was returned to the plaintiff in December 2013 without having been repaired and, as such, the plaintiff was reasonably required to make arrangements for repairing the Ferrari. In the circumstances, I am of the view that the plaintiff should be entitled to damages for an extended period of loss of use. He should be afforded a “grace period” to reflect the reasonable amount of time necessary to arrange for, and complete, the Ferrari’s repairs.

[53] I accept Mr. Edmonds’s testimony that although the defendant refers work to Mr. Korva’s shop in Vancouver, No. 1 Collision is their “go-to place” for repairs. The evidence establishes that the delay in effecting the repairs to the Ferrari was due, at least in part, to the plaintiff’s exacting standards with respect to suitable automotive repair shops. Having rejected No. 1 Collision, the plaintiff explored repair options in the United States and Alberta, before ultimately settling on Mr. Korva’s shop.

[54] Having regard to all of the circumstances, I am not persuaded that the defendant should be responsible for the loss of use until May, 2014. At least part of the delay with respect to completing the repair was attributable to the plaintiff, for which he should bear responsibility. I find that the Ferrari should reasonably have been repaired by the end of February 2014. To be clear, the period of wrongful detention spans from May 29, 2013, to February 28, 2014 (the “Material Period”).

[55] I turn next to consider the quantum of damages.

[56] It is common ground that the plaintiff is entitled to general damages for the loss of use of the Ferrari, despite having incurred no pecuniary loss: Kerbel at para. 29. However, the analytical framework which informs some of the decisions with respect to loss of use relied upon by the plaintiff cannot be easily extrapolated to cases addressing the loss of use of luxury vehicles, such as in the case at hand.

[57] As I mentioned, the plaintiff suggests that even though he did not rent a replacement car, the most appropriate approach for assessing damages would be to apply the rate to rent a comparable Ferrari. He grounds his submission in the reasoning of Lord Scott of Foscote, in dissent, in Lagden v. O’Connor, [2003] UKHL 64. The case concerned an impecunious claimant who was unable to rent another vehicle at the spot rate (pure rental rate), and thus required the assistance of a credit hire company, who charged rental rate plus financing charge, in order to replace his vehicle while it was being repaired. The majority in Lagden concluded that the plaintiff, who had rented a replacement vehicle, was entitled to damages equivalent to the “reasonable costs of a credit hire company”: Lagden, at para. 6. In dissent, Lord Scott concluded that even if the plaintiff had not rented a substitute vehicle, the “measure of damages for this deprivation would, prima facie, have been the spot rate charge for a comparable vehicle over the repair period”, without any consideration of “the degree of use to which he would, if his car had not been damaged, have been likely to put it”: Lagden at para. 76.

[58] First, the commentary upon which the plaintiff relies is obiter dicta and derived from the dissenting judgment of Lord Scott. Further, the Lagden decision is not binding on this court and the plaintiff did not submit any cases, nor am I aware of any cases, in which Lord Scott’s commentary has been applied in this province. Indeed, as the plaintiff acknowledges, courts in British Columbia have considered the use to which the vehicle would have been put during the time it was not available to a plaintiff. In the end, I am not persuaded that it is appropriate to adopt the reasoning of Lord Scott in assessing damages in this case.

[59] In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:

• The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.

• During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.

• Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.

• The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.

• Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.

[60] The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.

[61] Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 1991 CanLII 1127 (BC CA), 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.

[62] On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.

CONCLUSION

[63] The plaintiff is awarded damages for loss of use of the Ferrari in the amount of $15,000.

[64] Subject to any pertinent circumstances of which I am not aware, the plaintiff is entitled to his costs at Scale B. If either party seeks a different costs award, they may reserve a date through Supreme Court Scheduling to address the issue.

“The Honourable Madam Justice Dardi”



Cost of repair to my Ferrari F430F1: $35,644.04
(First paid by me - then later refunded by ICBC).


My legal fees to date: $65,350.47 to Gudmundseth Mickelson LLP - Arpal S. Dosanjh

Estimate legal fees to be received back: About $15,000

Loss of use of Ferrari award: $15,000

Accelerated depreciation award: $36,350.25

Not including accelerated depreciation which will be instantly lost when I sell my Ferrari, I will have lost approximately $35,000 on the case even though the judge found Ferrari Maserati of Vancouver "negligent" in damaging my Ferrari, and they were "wrongful" in withholding my Ferrari (from approximately late May 2013 until December 18, 2013).

Despite the considerable personal stress and cost, I would do it all again - not just for myself, but for Ferrari enthusiasts everywhere. My thinking, perhaps naively, is that by holding Ferrari dealerships accountable for "wrongful" actions, they may be less likely to repeat these actions with other customers.

I am currently considering an appeal of the loss of use award. I welcome any and all comments, suggestions, or advice in dealing with this matter.

Thank you very much for your support!

 

Wow, thanks for the update. I read through the entire ruling. You asked for comments. Here are my immediate thoughts.

Apparently the defendant is not required to pay your legal fees even though the judgement was not in their favor.

Although the accelerated depreciation award was $36K, you may not lose that much when you sell the vehicle.

I think the judge's ruling was fair. Perhaps she could have awarded you a little more, but frankly I think the $85K you were asking for was way out of line.

I must say I admire your tenacity and pursuit of principle. However, at this point I would let it go and just enjoy your F430.

 

i feel ya

you got a better situation than I did.

I sued and won and the verdict is $40,000.

nothing was paid until now, 6 months after the verdict. and the shop was closed.

 

Lawrence,
Thank you for sharing your story. Just like in the head shrinking business, we can all learn something from it. I hope that all of your 'toy car' experiences will be miles (kilometers) better in the future.

 

For those who are interested, a copy of my lawyer's closing arguments is provided below. The format may be a bit off, and some of the letters and numbers refer to separate submission items not included (e.g., photos of the damage, etc...)

I am also trying to post a copy of the defendant's closing arguments, but it has so far resisted all attempts at attaching a link, copying, or cutting and pasting to the forum. I have requested a copy in different format, and if that works will post it at that time. Thank you.


No. VLC-S-S-135397
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

DR. LAWRENCE MILLER and DR. LAWRENCE MILLER PROFESSIONAL PSYCHOLOGY CORPORATION

PLAINTIFFS
AND:

BRIAN ROSS MOTORSPORTS CORP. dba FERRARI MASERATI OF VANCOUVER

DEFENDANT
________________________________________
CLOSING ARGUMENT OF THE PLAINTIFFS________________________________________


Introduction


1. On May 22, 2013 Dr. Miller took his 2005 Ferrari F430 F1 2 Door Coupe (the “Ferrari”) to the Ferrari Maserati of Vancouver (the “Dealership”) for a tune-up. On May 28, 2013, while the car was in the care and control of the Dealership, it was involved in a collision.

2. The Dealership has admitted the collision was the result of its negligence. The only issue at trial is damages for loss of use of the Ferrari. Dr. Miller claims damages for the long period he was unable to drive the Ferrari as a result of the Dealership’s actions.

3. Prior to trial, the parties were able to resolve the special damages claim for cost of repair, and also the damages owing to the Plaintiffs due to accelerated depreciation of the Ferrari caused by the collision.

Overview

4. There is a community that loves Ferraris. To the uninitiated, Dr. Miller’s passion for his Ferrari may seem peculiar.

5. The Dealership, however, understands. Mr. Edmonds testified that the staff of the Dealership knew how much Dr. Miller loved his car. They share his passion and enthusiasm. In fact, the Dealership profits from selling consumers the special experience of owning these vehicles, some of which, according to Mr. Edmonds, cost upwards of half a million dollars.

6. It hardly lies in the mouth of the Dealership to minimize the loss of that special experience.

7. The issue in this case is the quantum of general damages Dr. Miller is entitled to as a result of the loss of use of the Ferrari caused by the Dealership’s negligence and subsequent refusal to release the Ferrari.

8. The Dealership admits there was no reason to hold the Ferrari. Mark Edmonds told the Court the Dealership did not expect Dr. Miller to pay the invoice sent to him on July 23, 2013, as they “of course, knew they owed him something and wouldn’t be seeking payment” for that invoice.

9. Mark Edmonds claims he was confused about holding the Ferrari and blames the Dealership’s former counsel for only advising the Dealership in December 2013 that the Dealership’s retention of the Ferrari was hindering repair. He says he now understands the July 24, 2013 letter demanded the return of the Ferrari. The Dealership advances this evidence, waiving its privilege, without calling its former counsel as a witness to testify to this fact. The fact is, the Dealership was on notice it was increasing Dr. Miller’s damages by holding onto his Ferrari and it is not credible for them to claim otherwise. The only one to blame for the length of time Dr. Miller was deprived of his Ferrari is the Dealership.

10. The law is clear that Dr. Miller is entitled to an award of general damages for the loss of use for the Ferrari. This is in the alternative to the award of special damages he would have been entitled to if he had rented a comparable vehicle.

11. In awarding general damages for loss of use, the Court must “give a proper equivalent for the unlawful withdrawal of the particular subject-matter”. Where there is some evidence as to the value of the rental of a comparable vehicle, that amount is the measure of the loss.

12. Inn Lagden v O’Connor, [2003] UKHL 64 the House of Lords considered the issue of whether an impecunious plaintiff could recover as special damages for the loss of use of his car the amount he paid for “credit hire” of a replacement vehicle (rental rate plus a financing charge) as opposed to the “spot hire” rate (the pure rental rate). Lord Scott of Foscote in dissenting reasons summarized the law of general damages for loss of use of an automobile as follows:

So, in car accident cases as in ship accident cases, the negligent driver must compensate the owner of the other car for his loss of use of the car while it is undergoing repair. If there is no more to the loss of use claim than that, the claim will be for general damages and a fair approach to quantum would be to award a sum based upon the spot rate hire charge for a comparable vehicle.

13. As the loss of use is entirely at the feet of the Dealership, a “fair approach” to quantum is simply to award Dr. Miller the rental rate for a comparable vehicle.

14. This case is straight forward. This fair approach will give Dr. Miller a proper equivalent in damages for the almost one year that he was without the use of his Ferrari. Unlike as set out in the Dealership’s Opening, this case is about reinstatement, not about retribution. The suggestion of retribution is wholly unsupported in the evidence.

15. It was Dr. Miller who had communicated to the Dealership on several occasions that he wanted his car back and that their refusal to return it was preventing him from mitigating his damages. This claim is for those damages.

The Law

Preliminary Issues

16. As a preliminary matter, the plaintiffs are not seeking damages for loss of enjoyment, only loss of use. There has never been a doubt from the outset of this litigation that the plaintiffs were making a loss of use claim.

17. In terms of heads of damages, the Notice of Civil Claim isn’t restricted. It particularizes some heads of damages, but specifically states the claim is not limited to those heads of damages. While loss of use is not particularized explicitly in the Notice of Civil Claim, no particulars were sought by the defendant, presumably because it was well understood that the plaintiffs sought damages for loss of use.

18. The correspondence between the parties indicates that throughout the litigation, the loss that was discussed was the loss of use. Loss of use is also mentioned in the plaintiffs’ Trial Brief. The defendant seems to have premised its Opening Statement to this trial on the plaintiffs bringing only a loss of enjoyment claim. As is apparent from the undisputed fact that Dr. Miller did not have his vehicle for an extended period of time, this is a loss of use case.

19. Further, the defendant has also emphasized that this is properly a claim in contract. In this case, the quantum for general damages for loss of use will be the same whether the claim is in tort or in contract. For the defendant to argue this is strictly a breach of contract claim makes no sense, as the defendant has specifically admitted to its negligence in its Response to Civil Claim.

20. That is not to say there hasn’t been a breach of contract. As the Dealership is a bailee for reward, they are liable for breach of contract under the contract of bailment due to their admitted negligence in damaging the Ferrari.

Duckworth v. Armstrong (c.o.b. Superior Autobody), [1996] BCJ No 1337, at para. 23

21. Whether in contract or in tort, the quantum of damages will be the same. Dr. Miller lost the use of his Ferrari for an extended period of time because the Dealership effectively converted his Ferrari by retaining it without lawful excuse.

General Damages for Loss of Use

Tangible Pecuniary Loss is not required for an award of General Damages for Loss of Use

22. The fact that Dr. Miller suffered no tangible pecuniary loss due to the loss of use of his Ferrari is no bar to the recovery of general damages for such loss.

No 7 Steam Sand Pump Dredger (owners) v SS Greta Holme (owners), The Greta Holme [1897] AC 596 at 604, [1895-99] All ER Rep 127 (HL)

SS Mediana (owners) v Lightship Comet (owners), The Mediana [1900] AC 113 at 117, [1900-03] All ER Rep 126 (HL)

23. In The Greta Holme and The Mediana, the issue was what damages were to be paid to the plaintiffs for the loss of use of their ships during the period in which the damage caused by the defendants’ negligence was being repaired.

24. The Greta Holme was the first case to award general damages for loss of use of a non-profit making commercial vessel. Although the Court allowed the appeal and found damages were payable, there was a dispute as to how they should be calculated. As the Master of Rolls had accepted no evidence which would aid in the calculation of damages, and the parties did not wish to be sent back for an assessment of damages, the Court chose a suitable figure.

25. Lord Herschell, concurring with the majority, stated the core principle succinctly at 132:

I take it to be clear that in general a person deprived of the use of a chattel is entitled to recover damages in respect thereof, even though he cannot prove a tangible pecuniary loss, by which is meant a definite sum of money out of pocket, by the wrong sustained. That is not disputed.

26. In The Mediana the Court followed the principle in The Greta Holme. The Mediana had damaged the “lightship” Comet, employed by the Mersey Commissioners. The Mersey Commissioners had a spare lightship called the Orion in reserve. The Mersey Commissioners claimed general damages for loss of use measured by what it would cost to hire the Orion which they had put into service to replace the Comet during its repairs. Damages were calculated of the estimate of the hire rate of the Orion at 4 pounds, 4 shillings for 74 days, for a total of 310 pounds 16 shillings.

27. The Earl of Halsbury LC stated the following at 129:

In this particular case the broad proposition is that the respondents were deprived of their vessel. I purposely do not use the words the use of their vessel. For the wrongdoer has no right to inquire what or whether any use would have been made of the vessel of which the respondents were deprived. Suppose, for example, someone went into my house and took away a chair and retained it for some months, could anyone say that I as owner am entitled to no reparation on the ground that I have other chairs or that I was not in the habit of sitting upon that particular chair? The jury's task is often it difficult one in cases of that character, and an arbitrator or jury often has to take an artificial hypothesis; such as in the case to which I have referred what it would cost to hire such a chair.

The broad principle applicable to this appeal is quite independent of the particular use which the respondents would make of the Comet. It is wholly different from a case of special damage, where you have to ascertain the specific loss of profit or other advantage which would otherwise have accrued. Where special damage is alleged you must show precisely the nature and extent of the injury sustained, and the person liable must have an opportunity of inquiring into the details before the case comes into court. In the case, however, of general damage no such principle applies, and the jury have only to give a proper equivalent for the unlawful withdrawal of the particular subject-matter. That broad principle comprehends this and many other cases, and the jury may assess damages which are not nominal damages though the amount may be trifling. It appears to me, therefore, that what the learned Lords in The Greta Holme (1) intended to point out – and LORD HERSCHELL gives expression to it in plain terms - was that the unlawful keeping back of what belongs to another person is a ground for real and not nominal damages.

[Emphasis added]

28. All the Law Lords concurred that the claim be affirmed. Lord Shand stated the following at 130:

I entirely concur with the motion of the Lord Chancellor. It was established that the Orion was kept expressly for the purpose of meeting such a contingency as happened. It appears that no fewer than eleven cases have occurred during the last twenty-five years in which a substitute has been called for to replace lightships damaged by collision on the Mersey. If the Mersey Commissioners had hired a ship for the purpose of doing the duty for which this sixth vessel was kept, there could be no answer to the claim for the cost of hire. It seems to me, therefore, if there be no answer in that case neither can there be any to this.

29. Lord Shand’s point applied to this case is that had Dr. Miller rented a comparable vehicle and was before this Court asking to be reimbursed for those special damages, the Dealership would be liable for this loss. It follows then that Dr. Miller should be entitled to the equivalent amount for general damages for loss of use.

Application of General Damages for Loss of Use in British Columbia

30. General damages for loss of use was first discussed in British Columbia in Vancouver Ice and Cold Storage Co. v. British Columbia Electric Railway Co., [1927] 1 W.W.R. 631 (CA), in a case involving an ice truck damaged in a collision in December 1925.

31. The ice truck company had relied on The Greta Holme and The Mediana in support of their loss of use claim. The trial judge granted damages for loss of use based on a rental rate for the truck.

32. The trial judge’s award for loss of use was overturned. At paragraph 11, Galliher J.A. explained:

Secondly, loss of use of truck: Plaintiff's evidence is that it had a number of trucks some of which were not in use at the time of the accident, and it took one of these and used it in place of the damaged truck, but most important of all is that the truck which was damaged was going in for overhauling and necessary repairs in a week, and its mechanic says that the truck lay in the garage for some time before he had instructions to go ahead with repairs and yet, in face of all this they sued to recover from the defendant for the full period between the accident and completion of repairs. I cannot see upon what principle, and would disallow this item of $1,200.

33. Macdonald J.A. concurred and distinguished The Greta Holme and The Mediana on the basis that the ice truck company did not suffer any loss whatsoever, as the truck was going in for repairs regardless, and had admitted that fact.

34. The second consideration of general damages for loss of use was by Dawson C.C.J. in Basted v Grafton and Wilde, [1948] BCJ No 79 (British Columbia County Court).

35. Grafton and Wilde had taken Dr. Basted’s car for a joyride and damaged it. Dawson C.C.J. found that Dr. Basted was entitled to $391 in special damages based on estimated repairs which would have been required to put the car the condition it was before the accident, less the amount obtained by Dr. Basted for salvage of the wreck.

36. Dr. Basted made a claim for an additional $300 in general damages for the loss of use of his automobile, despite the fact that Dr. Basted had purchased a new car subsequent to the accident and the garage had provided him with a car for no cost during the interval between the accident and that purchase (para. 6).

37. Dawson C.C.J., citing the principle set out in The Greta Holme and approved of in The Mediana, despite the fact that Dr. Basted was provided a car, awarded $100 as a fair sum to Dr. Basted for general damages for loss of use nonetheless (para. 18).

38. Justice Wilson in Duckworth v. Armstrong (c.o.b. Superior Autobody), [1996] BCJ No 1337, also awarded general damages for loss of use.

39. In Duckworth, the plaintiff’s 1968 Camero was stolen from the defendant’s garage, where it was to be repaired. It was never recovered. Loss of use was claimed from the time that it was stolen from the garage.

40. At trial it was determined that the fair market value of the vehicle at the time it was stolen was $8,500 (para. 39).

41. Wilson J. found the following in relation to the claim for loss of use at para. 40:

The plaintiff also claims damages for loss of use of the vehicle. However, the claim is for the loss due to the theft in December, 1992, not for any delay in completing the repairs before that date. By December, 1992, Mr. Duckworth's evidence is that the car would have been up on blocks in his parents' garage for the winter, and he would not have been using it until the spring. Although there is evidence that he did not replace the Camaro, there is no evidence of what he used for transportation, or of any costs he had for transportation as a result of loss of the use of the Camaro. In any event, I consider that the period from the time of the loss until the spring, when he would normally have been using the vehicle, was a reasonable time in which to make alternate arrangements for transportation, and I thus make no award for additional costs arising from the loss of the Camaro. However, the case law does establish that where, as a result of negligence of the defendant, the plaintiff loses the use of a chattel, the plaintiff is entitled to recover general damages: The "Greta Holme" [1897] A.C. 596 (H.L.); Basted v. Grafton and Wilde [1948] 1 W.W.R. 614 (B. C. County Court). There is no doubt the plaintiff sustained a loss of enjoyment of the vehicle, which was his pride and joy. I thus award $1,000 general damages for loss of use.

42. In Duckworth the Court determined that there were no evidence of special damages to be awarded in relation to the loss of use and so in the alternative awarded general damages for loss of use.

43. Aside from Basted and Duckworth, there are also British Columbia cases which contemplate awarding general damages for loss of use, but decline to do so, or reduce the value of awards, because it was clear that the plaintiff would not have used the vehicle during some or all of the time of deprivation.

44. One example is Kerbel v. Fisher, [1981] BCJ No 1514, where during part of the period of repair the plaintiff was away on holiday, and further, it was his practice to store his vehicle for the winter and so would not have made use of the vehicle in any event.

45. Signorello v. Khan, 2010 BCSC 1448 is an example of where an award was made for the loss of use for two months of a high end Mercedes-Benz. The quantum the plaintiff asked was the equivalent of two months of lease payments for the car, $5,915.52. The Court awarded $3,000. There were a number of factors the Court considered in arriving at this amount, including the fact some of the lease payments went to paying down the residual value of the Mercedes and the fact that the plaintiff was out of town one of the two months in question. The Court also considered the fact that the plaintiff was given a replacement Mercedes SUV at no charge for part of the month he was without a vehicle, and also the fact that he had suffered some inconvenience in having to return the vehicle to the garage on several occasions.

46. Dr. Miller’s case, however, differs from Basted, Duckworth, Kerbal, and Signorello. Unlike those cases, Dr. Miller’s case is not complicated by lease payments, lengthy absences or the Dealership having had provided him with a replacement for the Ferrari. There is evidence of the duration for which Dr. Miller has been deprived of his vehicle, coupled with evidence of the cost of renting a comparable vehicle. This being the case, calculating general damages for loss of use is a simple exercise.


Assessment of General Damages for Loss of Use

47. In both Basted and Duckworth, (and to a certain extent, Signorello), the Court made an award for loss of use in the absence of evidence on the basis of which loss of use could be reasonably calculated.

48. The simplest evidence of the value of loss of use, as discussed in The Mediana, is the cost of the hire of whatever chattel of which the plaintiff has been deprived.

49. In a case such as this, where renting a comparable Ferrari would provide Dr. Miller a replacement for what he has lost, the rental hire rate will be the “proper equivalent for the unlawful withdrawal of the particular subject-matter” – as mentioned by Lord Halsbury LC in The Mediana.

50. The case of Matthews v. Heintzman & Co. (1914), 16 D.L.R. 522 (Sask SC en banc), demonstrates this simple method of calculating the cost of general damages for loss of use through reliance on evidence of the rate of hire of a comparable chattel.

51. Matthews purchased a piano from Heintzman & Co. for $300 to be paid according to a payment plan. When Matthews failed to make a payment, Heintzman seized the piano, wrongfully thinking they had the right to do so under the purchase contract. Matthews was deprived of the piano for approximately 9 months and 19 days.

52. Matthews sued for damages for loss of use and general damages to his reputation, and Heintzman made a counterclaim for the amount of the unpaid monthly installments. The trail judge awarded Matthews $5 per month damages for the loss of use and another $75 for general damages. The $5 per month was awarded on the basis that Heintzman demonstrated Matthews could have hired a substitute piano at $5 per month. The trial judge dismissed the counterclaim. Heintzman appealed.

53. The Court of Appeal reversed much of the trial decision and dismissed the general damages claim in relation to Matthews’ credit and reputation. It did, however, uphold the loss of use award. The Court stated the following at para. 17:

The only thing left to decide on this point is the amount to be allowed to the plaintiff for loss of the use of the piano. There is uncontradicted evidence that the plaintiff could have obtained another piano for $5 or $6 a month. He was deprived of the use of his piano for about nine months and nineteen days. He should, therefore, be allowed $60 damages for that item.

54. This simple approach to the assessment of general damages for loss of use of automobiles is in line with Lord Scott of Foscote’s summary of the law of general damages for loss of use in Lagden.

55. Lagden concerned whether the damages payable for the loss of use of a damaged car included the added costs of a “credit hire” rental company above a regular rental. A credit hire rental company, by way of a combination of credit facilities and insurance coverage, makes a substitute car available to the plaintiff and then seeks to recover its charges from the defendants’ insurers. The majority found that where an innocent claimant could not afford to pay the regular rental rate, the defendant was responsible for the added costs of the credit hire rental, on the principle that you must take your victim as you find them.

56. Lord Scott dissented, and in so doing, summarized the law of general damages for loss of use. None of the other Law Lords disagreed with Lord Scott’s following summary of the law at 76:

In trying to resolve that issue I find it helpful to start with first principles. The damage to Mr Lagden's car, or for that matter to Mrs Dimond's, led to two heads of recoverable loss. First, there was the physical damage to the car. The car was not a write-off. It was repairable and the measure of the recoverable damages for this head of loss was the reasonable cost of the repairs. There is no issue about this. Second, there was the loss of use of the car. Mr Lagden had been deprived of the use of his car for the 17-day period between the date of the accident and the completion of the repairs. He was entitled to damages as compensation for that deprivation. If he had not hired a substitute vehicle, he would still have been entitled to general damages. His entitlement to general damages would not have depended on the degree of use to which he would, if his car had not been damaged, have been likely to put it. He had been deprived of the benefit of having his car available for whatever use he might from time to time decide upon. The measure of damages for this deprivation would, prima facie, have been the spot rate charge for a comparable vehicle over the repair period. In [The Greta Holme] at 132 Lord Herschell said:

'I take it to be clear law that in general a person who has been deprived of the use of a chattel through the wrongful act of another is entitled to recover damages in respect thereof, even though he cannot prove what has been called "tangible pecuniary loss," by which I understand is meant that he is a definite sum of money out of pocket owing to the wrong he has sustained. This was not disputed.'

And in [The Mediana] the Earl of Halsbury LC said:

'What right has a wrongdoer to consider what use you are going to make of your vessel? ... Here, as I say, the broad principle seems to me to be quite independent of the particular use the plaintiffs were going to make of the thing that was taken ...'

In both these cases the issue was as to the damages to be paid to the plaintiffs for their loss of use of a ship while the damage caused by the defendants' negligence was being repaired. In Cmrs for Executing Office of Lord High Admiral of UK v SS Susquehanna (owners), The Susquehanna [1926] AC 655 at 661, [1926] All ER Rep 124 at 127, another ship collision case, Viscount Dunedin made clear that: 'There is no difference in this matter between the position in Admiralty law and that of the common law ...' So, in car accident cases as in ship accident cases, the negligent driver must compensate the owner of the other car for his loss of use of the car while it is undergoing repair. If there is no more to the loss of use claim than that, the claim will be for general damages and a fair approach to quantum would be to award a sum based upon the spot rate hire charge for a comparable vehicle.

However if the owner of the damaged car--or the damaged ship, as the case may be--hires a replacement vehicle for use during the repair period, the general damages claim becomes a special damages claim based upon the cost of hire. In Prehn v Royal Bank of Liverpool (1870) LR 5 Exch 92 at 100 Martin B explained: '... special damages are given in respect of any consequences reasonably or probably arising from the breach complained of.'

[Emphasis added]


57. Had the Dealership provided Dr. Miller with a comparable replacement vehicle, Dr. Miller would have suffered no loss of use. Mr. Edmonds told the Court that the Dealership had never offered Dr. Miller a substitute vehicle after the Ferrari was damaged. After having described the special experience of owning a Ferrari, Mr. Edmonds, presumably in jest, told the Court that Dr. Miller had the use of his own Acura and motorcycle.

58. This, of course, completely misses the point. The Dealership didn’t damage Dr. Miller’s commuter vehicle. The Dealership damaged his Ferrari. Mark Edmonds admitted on cross examination that Dr. Miller’s Ferrari was not a commuter vehicle. To suggest that his 2002 Acura is a reasonable substitute makes is at odds with his evidence about the special experience that Ferraris represent.

59. On the basis of the law as described in Lagden, Dr. Miller’s general damages for loss of use is the cost of hiring a comparable vehicle multiplied by the duration of the deprivation. This is the case regardless of the “the degree of use to which he would, if his car had not been damaged, have been likely to put it”.

60. Some of the case law in British Columbia, however, does consider the use, or non-use to which a vehicle may have been put during the time that it was made unavailable to the plaintiff.

61. In this case, that consideration poses absolutely no barrier for Dr. Miller. In fact, in light of Dr. Miller’s passion and pattern of use of his Ferrari, and the Dealership’s recognition of that enthusiasm, it would be the rare individual who was more enthusiastic about using his vehicle.

Dr. Miller’s Passion for and Use of the Ferrari


62. Dr. Miller began searching for a Ferrari to purchase in 2008. He travelled to several locations including Huntington Beach in California, Montana and Toronto in search of a Ferrari that suited his taste and budget. He finally found the Ferrari he was looking for in Vancouver in 2011.

63. When Dr. Miller first saw the Ferrari advertised by Westport Motor Cars Ltd. (“Westport”) he was very interested, however, he hesitated in purchasing it because the sticker price of $139,000 was higher than he wanted to pay.

64. When Dr. Miller noticed Westport had cut the price to $119,900, he called right away and asked to go on a test drive. He was taken for a ride and thought it was pretty amazing. He thought to himself, “this is perfect, this is what I want”.

65. The paper work was completed soon after on November 3, 2011 for a total of $134,288 (plus an additional 3% luxury tax).

Exhibit 3, Tabs 1 and 2

66. The first time Dr. Miller drove the car, he was “elated”. He remembers it as a very special day. Dr. Miller testified that while some people take vacations, and others concentrate on family, the Ferrari was his “something special”.

67. Since buying the car Dr. Miller drives it “every chance” he gets. He drives for both pleasure and stress relief. As he is self-employed, he can tailor his schedule so that he can use the Ferrari whenever he wants. He stated he’s not the “type of person that lets it sit in a garage” and that he wants to use it as much as he can. On average he drives the Ferrari “about 20 days per month”, and “perhaps a bit less in the winter months.”

68. Dr. Miller also owns a 2002 Acura and two motorcycles, one of which he stores in Ottawa for the purpose of having transportation when he travels there for work. Since buying the Ferrari he drives it more often than his motorcycle. In the first year of owning the Ferrari he drove the motorcycle “approximately 3 to 5 times a month in the summer, and only once or twice in the winter – when he can only drive in ideal weather and for short distances”. He drives the Acura for transportation to and from work.

69. There is also a very important social aspect to the Ferrari for Dr. Miller. People are interested in the Ferrari, and Dr. Miller very much enjoys discussing the Ferrari with them. To take advantage of this benefit of owning the Ferrari, he attended several car shows with the Ferrari before the Dealership damaged the Ferrari.

70. Dr. Miller attended the Luxury Super Car Weekend as a VIP at Van Dusen Gardens in 2012 with his Ferrari. His Ferrari was not part of the display of cars, but he parked close by and was able to participate and interact with people who were interested.

71. Similarly, in 2012 Dr. Miller attended the Crescent Beach Invitational Concours d’Elegance. He attended with his Ferrari, but it was not entered as part of the show.

72. Both of these shows were great experiences for Dr. Miller. He stated it “was an opportunity for people to meet and talk about the thing that we all love”.

73. In an effort to keep the Ferrari running properly and looking good Dr. Miller ensured he took good care of it, and had brought it to the Dealership on two occasions for servicing in 2012.

Exhibit 3, Tabs 3 and 4

Dr. Miller’s intended use of the Ferrari in 2013

74. Had he been able to drive the Ferrari from end of May 2013 to May 9, 2014 Dr. Miller certainly would have driven it all he could. As Mr. Edmonds agreed on discovery, “the month of July in 2013 broke the record for hours of sunshine in Vancouver”.

75. He had planned on taking it to Huntington Beach California to visit a friend in the summer of 2013 but of course could not because the Dealership hung on to the Ferrari.

76. Dr. Miller continued to attend various car shows in 2013, such as the Luxury Super Car Weekend at Van Dusen Gardens and the Lonsdale Quay Car Show. However, he had to attend these shows without his Ferrari.

77. Since picking up the Ferrari from Korva World Class Collision (“Korva”) on May 9, 2014 Dr. Miller has driven the Ferrari “approximately 20 days a month”. That pattern has continued through to the date of his testimony in late November. Dr. Miller has continued to participate in car shows and other Ferrari related events. He returned with his car to the show at the Van Dusen Gardens, entered his car at the Lonsdale Quay Car Show, where he had a great time, and also has attended the “Cars and Coffee” get-togethers for exotic car owners twice since he has got the Ferrari back.

78. The Dealership was well aware of Dr. Miller’s passion for his Ferrari. Mr. Edmonds described Dr. Miller as an “enthusiast” and mentioned that he “had seen Dr. Miller at car shows” and “can tell his car is very important to him”.

79. Many of the Dealership’s clients are car enthusiasts. Mr. Edmonds also described the majority of their clients are male and wealthy with high standards. He agreed his clients are “discerning”. He agreed that the vehicles they are purchasing are exceptional. He stated that Ferrari is one of the “most recognizable ultra-luxury brands in the world”.

80. Mr. Edmonds agreed that for most, owning a Ferrari is a “special experience” and that “the Dealership promotes itself as wanting to be an active participant in its client’s ownership experience”.

81. In light of these facts there can be no doubt that Dr. Miller would have made use of his Ferrari during the period he was deprived of that use. This period was unnecessarily lengthened by the Dealership’s unjustified detention of the Ferrari.

The Collision

82. In anticipation of frequently driving the car during the summer of 2013, Dr. Miller brought his Ferrari into the Dealership on May 22, 2013 for a yearly tune-up, estimated at $2,200. He was going away on a business trip at that time, and planned on picking the Ferrari up on his return to Vancouver. Dr. Miller co-ordinated the business trip with the tune-up so that he would not miss out on the opportunity to drive the Ferrari – “time management” as he called it.

Exhibit 3, Tab 6

83. Dr. Miller called the Dealership on May 29, 2013, asking for an update on the tune-up. Ash Moshen, a sales representative from the Dealership, told Dr. Miller that there had been a “mishap” resulting in a “scratch” to the Ferrari. Mr. Moshen gave Dr. Miller the impression it was not a big deal, but Dr. Miller asked to see the scratch nonetheless when he got back. Dr. Miller told him not to do anything until he took a look.

84. Dr. Miller was concerned about the scratch because a “Ferrari’s value is tied to its condition”. When he was looking at Ferraris initially, he testified he was told “not to buy one with too much damage or scratches”.

85. On May 30, 2013, Dr. Miller arrived at the Dealership. He met with Mr. Moshen and Mark Edmonds, the Dealership’s manager. They apologized and Dr. Miller asked to see the damage.

86. He was asked to accompany Mr. Moshen. Dr. Miller was “confused” as to why they were leaving the Dealership. Mr. Moshen took him to No. 1 Collision, a local non-Ferrari factory authorized auto body shop. Dr. Miller stated they had taken the Ferrari there “without his knowledge or consent”.

87. When Dr. Miller saw the Ferrari, he was shocked at the extent of the damage, the tear in the front passenger side panel being so deep that the passenger side door would not open. He exclaimed “Oh my God” and turned to Mr. Moshen telling him “this is not just a scratch”. The Ferrari was damaged from end to end on the passenger side, including damage to the rims and passenger side mirror. The damaged widened to approximately 6 inches towards the rear tire.

88. Dr. Miller testified that Mr. Edmonds had later “vaguely” explained the accident and indicated that Jacek, the top mechanic at the Dealership, had attempted to drive the Ferrari through an area where there was a truck on one side and a wall on the other, but misjudged the distance. Rather than stopping when the impact started, he kept driving, causing damage to the whole length of the car.

89. The following facts are important and show that in light of the circumstances surrounding the collision and the initial events after the collision, the steps taken by Dr. Miller while without his Ferrari were reasonable such that he should be compensated for his loss of use during the entire period.

Dr. Miller’s initial efforts to work with the Dealership in June and July, 2013

90. After he saw the damage, Dr. Miller testified he “went with Ash back to the dealership and we all spoke together, Mark, Ash and myself – and I repeated ‘I’m shocked’.”

91. Dr. Miller then told the Court that Mr. Edmonds said – “let’s see if we can work something out, we have a 2010 Ferrari 458”. Dr. Miller stated “the concept was that they would take the damaged Ferrari and for a sum of money they would make a trade.”

92. Dr. Miller wanted to take the weekend to think. Dr. Miller testified offers were exchanged and the negotiation continued from June into “approximately mid-July”. Dr. Miller then testified the negotiations stopped when Mr. Edmonds stopped returning his phone calls.

93. On July 4, 2013 Dr. Miller communicated with No. 1 Collision to the effect that he was still negotiating with the Dealership and they may yet take the damaged Ferrari off his hands. Soon after he was surprised to learn that the Dealership had sold the Ferrari 458 out from under him. He testified he found this “very disappointing”.

Exhibit 3, Tab 13 and 16

94. Dr. Miller eventually went into the Dealership and spoke with Mr. Edmonds in person as he wasn’t returning Dr. Miller’s calls. Dr. Miller testified Mr. Edmonds said he would “call him back tomorrow for sure” but he never received a call.

95. Mr. Edmonds testified that the Dealership had damaged a “Ferrari 599 with a jumpy clutch” in the past. His testimony was that as a “direct result of the accident” the Dealerhsip entered negotiations with the owner of that car, who hadn’t expressed an interest in buying a new car prior to the accident, and made a deal whereby the Dealerhsip ultimately bought the damaged car back off the owner and “sold him a new ferrari”.

96. This is what the Dealership was suggesting for Dr. Miller, and it was entirely reasonable that Dr. Miller pursue this option and so delay having any work done on his car. Further, as will be set out below, as the Dealership had sent the Ferrari to No. 1 without Dr. Miller’s knowledge or consent, and that No. 1 was not a factory authorized repair shop among other issues – including the fact they left the Ferrari out exposed to the elements. Dr. Miller’s delay to have the Ferrari repaired from June and into July, 2013 makes perfect sense.

The Ferrari left out in the Rain and the Dealership’s refusal to release the Ferrari

97. Dr. Miller attended No. 1 Collision to check-up on his Ferrari on June 21 only to find the car parked, without rear or front bumper, outside, exposed to the elements. He took video of the car that day, and then returned on June 24 to take further video.

98. Dr. Miller asked No. 1 Collision to put his car inside. Counsel for Dr. Miller sent a letter instructing that no work was to take place on his Ferrari at the local body shop at this time. Further, the Dealership was advised that the Ferrari was parked outside in the elements at No. 1 Collision, and that this was unacceptable. Counsel demanded that the Ferrari either be moved inside, or appropriately covered to protect it from the rain. The Dealership never responded and only brought it out of the elements when Dr. Miller sued.

99. Mr. Edmonds testified that the Dealership received the letter of June 24, 2013 a “couple of days after” June 24. Mr. Edmonds testified that as a result he asked No. 1 to put the Ferrari inside but they couldn’t so the Dealership “stored it at an appropriate facility, as per the instruction” in the June 24 letter.

Exhibit 4

100. On cross-examination, it was suggested to Mr. Edmonds that “the dealership taking the Ferrari into storage wasn’t in response to the June 24 letter”. He disagreed. When the emails from Billy Christensen from No. 1 were put to him Mr. Edmonds admitted that in fact the Dealership had not moved the Ferrari into their storage facility until July 24, 2013.

101. The fact that the Dealership didn’t move the Ferrari until July 24, 2013 is significant. July 24 is not just some random date. As will be explained below, the only reasonable inference to be drawn from the events described below is that the Dealership moved the Ferrari into storage not to get it out of the rain, as was requested, but to detain the Ferrari in response to the lawsuit Dr. Miller served on it. As well in response it issued an invoice for the May tune up even after causing tens of thousands of dollars of damage to his Ferrari.

102. The events were as follows. On July 22, 2013 Dr. Miller served a Notice of Civil Claim on the Dealership.

Exhibit 3, Tab 14

103. The very next day - July 23, 2013, Mr. Moshen sent an invoice for the tune-up to Dr. Miller for $3,147.48. This amount was for the tune-up service which took place at the Dealership before the collision. It was for 50% more than the initial estimate.

Exhibit 3, Tab 15

104. Mr. Edmonds testimony was that he “just learned of this fact because of investigations related to this litigation”, and that “did not instruct Ash” to do this. He stated the Dealership took no steps to collect from Dr. Miller. The Dealership would like to portray this as something beyond their control, or perhaps something unintentional. The Dealership, however, did not call Mr. Moshen to give evidence as to why the invoice was sent to Dr. Miller. Mr. Moshen is an employee of the Dealership and is clearly in the best position to give this evidence.

105. Early in the morning on July 24, 2013 Billy Christiansen, General Manager of No. 1 Collision emailed Dr. Miller informing him that the Dealership “just let me know that I can’t release your car until your service bill is paid for” and that if the service bill didn’t get paid today he would have to drop Dr. Miller’s car off at the Dealership because No. 1 didn’t have room for it.

Exhibit 3, Tab 16

106. Dr. Miller responded that he wouldn’t be paying the invoice. He felt that it “wasn’t a reasonable request as the tune-up they wanted him to pay for resulted in tens of thousands of dollars in damage” to his Ferrari.

Exhibit 3, Tab 16

107. Later that same day, on July 24, 2013, counsel for Dr. Miller wrote to the Dealership warning the Dealership that their refusal to release the Ferrari to Dr. Miller was preventing Dr. Miller from mitigating his loss.

Exhibit 3, Tab 17

108. Mr. Edmonds testified that they July 24 letter was forwarded to him, Brian Ross and the Dealership’s controller by their corporate lawyers.

109. On his direct examination, Mr. Edmonds testified he sent the letter on the Dealership’s ICBC counsel, Britni Troy. He said he wanted to “stay ahead of it” and followed up with her in August, but “she never mentioned returning the car in the course of this”.

110. Mr. Edmonds testified that he was under an “incorrect” impression, and that he didn’t “understand the document” until he spoke with a second ICBC lawyer, Scott McFarlane, who informed him that the Dealership was being “represented as holding the car and refusing to release it”. As a result, Mr. Edmonds testified that the Dealership finally decided to release the car to Dr. Miller on December 18, 2013.

Exhibit 3, Tab 23

111. In our submission, it is highly unlikely that after having receiving the July 24, 2013 letter, counsel would not have advised the Dealership as to its meaning or import. The Dealership did not call Britni Troy nor Scott McFarlane to testify about what instructions they gave the Dealership. As a result, Mr. Edmonds testimony is unreliable.

112. On August 20, 2013 counsel for Dr. Miller wrote to counsel for the Dealership reiterating the fact that the Dealership still retained the damaged Ferrari, and asking that Dr. Miller be able to pick up his passport which was in the glove box. The Dealership did not return the Ferrari to Dr. Miller at that time. Dr. Miller testified that attended the Dealership and retrieved his passport. Mr. Edmonds testified that he received subsequent correspondence about the passport and “looked, but didn’t see it.” Mr. Edmonds is then communicating with his counsel about the Ferrari at this date and the fact that the Dealership is still holding the Ferrari.

Exhibit 3, Tab 18

113. On November 1, 2013 the Dealership received a further letter from counsel for Dr. Miller attaching the July 24, 2013 letter and noting that because the Dealership “has held onto the Ferrari, thus preventing Dr. Miller from mitigating this loss”.

Exhibit 3, Tab 22

114. In our submission, a reasonable inference can be drawn that the Dealership’s counsel forwarded or communicated this “without prejudice” letter of November 1, 2013 to the Dealership such that the Dealership was well aware that their holding the Ferrari was preventing Dr. Miller from mitigating his loss.

115. Regardless of whether the Dealership understands this fact or not, either at July 24, August 20, or November 1, 2013, the fact is these communications were in possession of their lawyers. The Dealership cannot absolve themselves of liability by blaming their legal agents for their failure to release the Ferrari when so clearly instructed to do so by Dr. Miller’s counsel.

116. In light of this fact, the damages for loss of use suffered by Dr. Miller are entirely foreseeable and were caused by the Dealership. Mr. Edmonds agreed that “holding a car is a means of getting an invoice paid”. Whether the Dealership was doing this to Dr. Miller in response to the action he filed against them, or whether, if we can somehow accept Mr. Edmonds strange explanations that he didn’t understand the letter and his lawyer failed to properly instruct him, is immaterial.

117. The result is the same – in the face of clear requests to return the Ferrari, the Dealership failed to do so and as a result, is liable for compensating Dr. Miller for his general damages for loss of use.

Dr. Miller’s contact with the authorized Ferrari repair shop at Ferrari of Beverly Hills

118. Further, the facts that Dr. Miller’s hesitated in having the Ferrari repaired at No. 1 because he was looking into having the car sent to a factory authorized repair facility (among other important reasons for not going with No. 1) is also completely reasonable in the circumstances, and any delay associated with that effort was foreseeable by the Dealership. Had the Dealership been co-operative with Dr. Miller in facilitating this request, instead of detaining his vehicle, the damages for loss of use would have been much, much lower. Those facts are as follows.

119. During the time that the Ferrari was with No. 1 Collision in June, 2013 Dr. Miller began researching the best place to have his Ferrari repaired. He was concerned No. 1 was not a factory authorized Ferrari repair shop, and further, had concerns about the way he had been treated by the Dealership, who misled him about the amount of damage to the Ferrari, and also by No. 1, who had left his car out in the rain.

120. Being “factory authorized” is a big deal. The Dealership is British’s Columbia’s only factory authorized Ferrari dealership. Mr. Edmonds confirmed that the Dealership advertises that fact in an effort to instill confidence in their customers.

121. Dr. Miller is then completely justified in being concerned when the Dealership took his damaged Ferrari to a repair shop which was not factory authorized. Dr. Miller testified that “if they are authorized they are used to working on those cars, they know how to do it. It makes sense that they would be doing it better than a non-authorized location.”

122. As a result Dr. Miller did some initial searching for repair shops in June 2013 and had contacted Ferrari of Beverly Hills and Ferrari of Alberta (both factory authorized Ferrari repair shops) and Queen City Auto Rebuild in Seattle (not Ferrari authorized).

123. Dr. Miller sent pictures of the damage out to get an estimate on repair and transportation in hopes of having his car repaired at an authorized Ferrari repair facility. Dr. Miller sent pictures and received an estimate from Queen City Auto Rebuild in Seattle as he was under the impression that Queen City was an authorized repair shop, but later learned they were not. He didn’t hear back from Ferrari Alberta at that time because there was a “flooding issue” in at their shop.
Exhibit 3, Tabs 10, 11 and 12

124. Dr. Miller continued his inquiries in September 2013 while the Dealership continued to retain the Ferrari. Ferrari of Alberta, however, would not provide an estimate without seeing the car. Dr. Miller decided it was too risky to transport the Ferrari there for repairs without an estimate in advance. He did receive an estimate from Ferrari of Beverly Hills, and communicated about transporting the Ferrari with them.

125. Soon after getting the Ferrari back, Dr. Miller also renewed contact with Ferrari of Beverly Hills, but learned his contact was no longer there.

126. When he got the Ferrari back on December 19, he soon left to visit his mother for the holidays. There was some additional delay in having the car repaired as well caused by the litigation. In January there was some discussion between counsel about permitting experts to inspect the Ferrari prior to repair.

Exhibit 3, tab 24

127. Dr. Miller eventually decided against Ferrari of Beverly Hills as shipping the car to the U.S. was riskier at that point as the Canadian dollar fell in January. The repair shops located in the U.S. also presented complications in having the car shipped across the border. There was also risk in shipping the Ferrari to Alberta, as they had refused to provide him with an estimate before seeing the Ferrari.



Dr. Miller decides to have the Ferrari repaired at Korva World Class Collision in Vancouver


128. As Dr. Miller considered those options, he also looked into local shops. The more he learned about Korva World Class Collision (“Korva”), the more he felt he could trust them. He researched Korva, and “felt he could trust Boris”, the mechanic at Korva, especially after visiting his shop and meeting him. Dr. Miller also testified Boris had also been recommended by others like Joseph Phillipovich, who “repairs Ferraris in North Vancouver”.

129. Dr. Miller received an estimate from Korva on February 4, 2014 and Dr. Miller “was prepared to go ahead at that time” but the shop couldn’t take the car for a several weeks as Boris was very busy.

130. The fact that Korva couldn’t take the Ferrari in right away is a reasonable consequence of the Dealership’s actions and that further delay is foreseeable. In circumstances where the quality of repair to the Ferrari is of such importance to its future value, the Dealership must accept that Dr. Miller’s choice of a repair shop that he trusts will get that job done, despite the fact that that shop is busy and so there may be some additional delay. This is consistent with the principle of restitution in integrum – and the principle that the Dealership must take its victim as it finds them.

131. Further, Dr. Miller also met with Brian Ross, owner of the Dealership at this time. There were renewed talks about a Ferrari 458. Dr. Miller sent details about what type of Ferrari 458 he might be interested in, however, he didn’t not hear back right away. He sent a follow up email asking if “there was still interest”, but when there was no response to that email, he decided to take the car into Korva. Any delay to repair the vehicle caused by an attempt to settle between the parties is reasonable and foreseeable as well, as Dr. Miller cannot be expected to push forward when there is still a possibility that he will not have to repair the Ferrari.

132. The repairs began on March 21, 2014 and the Dr. Miller picked up the Ferrari on May 9, 2014. The Ferrari would have been ready several days earlier, however, experts involved in the litigation needed time to inspect it. Again, another delay which is the direct result of the damage done to the vehicle by the Dealership. The repairs cost $35,644.04.

Exhibit 3, Tab 26

133. In total, what the facts between May 28, 2013 and May 9, 2014 show is that the period of loss of use was initiated by the Dealership and extended by the Dealership by their detention of the vehicle. The subsequent delay in getting the vehicle repaired was reasonable and that loss of use was entirely foreseeable and a consequence of the Dealership’s actions. As a result, it is the Dealership who is responsible for providing compensation for the entire period of the loss of use, which is just under one year.

Adverse Inferences

134. In comment on the facts of this case as were presented to the Court by the Dealership, in our submission, this Court should draw an adverse inference from the fact that the Dealership chose not to call Britni Troy, their former counsel, nor Ash Moshen as witnesses.

135. As discussed, Mr. Edmonds gave evidence in relation to his misunderstanding of the July 24, 2013 letter – which blamed on Ms. Troy. Mr. Edmonds also spoke about the intent of the Dealership in sending Dr. Miller the invoice for the tune-up on July 23, 2013 without calling Ash Moshen, the employee who actually sent it.

136. The unexplained failure to call these material witnesses justifies an adverse inference against the Dealership.

137. Here, in particular, as the Dealership has special access to both of these missing witnesses, there will be a stronger basis for the adverse inference being drawn.

R. v. Jolivet, 2000 SCC 29 at para. 27

Quantum of Damages

Time of loss of use

138. As a result of the negligence of the Dealership, the Ferrari was not available for Dr. Miller’s use between May 30, 2013, and May 9, 2014.

139. Steps taken by Dr. Miller between May 29 and July 24, 2013 were reasonable in the circumstances. Dr. Miller cannot be faulted for not wanting to proceed with the repair at No. 1 considering the fact that the Dealership attempted to push through a very expensive repair at a non-factory authorized shop without consulting Dr. Miller.

140. As Dr. Miller stated, the value of a Ferrari is tied to its condition, and so the quality of the repair has serious consequences in relation to the resale value of the vehicle. Further, No. 1 left the car out in the elements, which further caused Dr. Miller to question their professionalism.

141. On these facts there can be no doubt that the Dealership is responsible for Dr. Miller’s loss of use between May 30, 2013 and December 19, 2013. The Dealership held onto the vehicle until December 19, 2013 even after Dr. Miller demanded its return. The Dealership was put on notice about the impact of this decision on Dr. Miller, and for whatever reason, they continued to retain the Ferrari.

142. Following December 19, a number of factors, many of which were related to either the litigation or the necessarily slow speed of repair on such extensive damage, prolonged the loss until May 9, 2014.

143. All this amounts to just less than one year.

Rental Rate for a Comparable Vehicle

144. Ward Stirrat testified that the Vancouver Car Club had played middle man and connected interested renters to a red 2007 F430 during 2013 and 2014. As posted in their website, the daily rental rate offered was $1,250, plus $99/day insurance and $2,500 deposit plus taxes. Mr. Stirrat also testified that the monthly rental rate for that 2007 Ferrari F430 was $9,381. This information was not posted but would be provided on request. A number of individuals had contacted Mr. Stirrat upon reviewing the posted rates. He would then connect those individuals with the owner of the F430.

Exhibit 1

145. Mr. Stirrat testified that he was not aware of any other companies offering Ferraris for rent in 2013 and 2014. His evidence is the best available evidence.

146. The fact is, had Dr. Miller contacted Mr. Stirrat through the Vancouver Car Club website in 2013 he would have been put him contact with the party adverting the 2007 Ferrari F430 and there should be no doubt that it could have been rented. Mr. Stirrat testified that he recalls connecting others – so there is no reason why Dr. Miller could not have as well.

147. Any argument suggesting that without an exact figure for the daily or monthly rental value for exactly the same model and year of the Ferrari is required to assess damages misunderstands the nature of general damages. They are to be assessed, not calculated, and there is certainly enough evidence here to do so.

148. To suggest that the relative unavailability of rental data for a 2005 Ferrari F430 F1 should somehow be a bar to the application of the most reasonable method for arriving at an assessment of damages is spurious. The 2007 Ferrari F430 and the rates posted by Mr. Stirrat at the Vancouver Car Club are reliable and may act as a guide for the valuation of loss of use.

149. Using the monthly rental rate for valuing “proper equivalent for the unlawful withdrawal of the particular subject-matter”, the number for one year is $112,572.

150. In this case a launching point is the monthly rental rate.

151. The plaintiff recognizes that there are a lot of contingencies that the Court must consider in assessing the proper equivalent and, all factors being considered, the plaintiffs submit that a proper equivalent in this case would amount to $85,000.

152. This number should not come as a surprise or shock to the Dealership. The number is big for two reasons.

153. First, this case is unique in that the actions of the Dealership prolonged the loss of use claim to many times what that figure would normally have been. This is not a case that will set a precedent for outrageous or unreasonable awards of damages. Generally, dealerships or garages do not just hang onto vehicles for no reason. It’s a head scratcher that the Dealership detained the vehicle with the July 24, 2013 letter in hand and with legal advice readily available.

154. Second, everything about Ferraris is expensive. Dr. Miller’s latest service in which a hose was replaced and squeaky wheels were sprayed cost over $6,000. The Dealership charged more than $3,000 for a tune up. Dr. Miller mentioned that the rims on the wheels were “insanely expensive”. Ferraris are expensive to buy, maintain, insure and by extension to rent.

155. This, however, should be no barrier to awarding Dr. Miller with the appropriate sum for general damages for loss of use. In fact, a high award for loss of use is commensurate with Dr. Miller’s investment in owning and maintaining the Ferrari and the special experience of driving it. Mr. Edmonds testified that they are in the ultra-luxury business, and in it to make a profit. The flip side is that when you damage an ultra-luxury vehicle, you must pay for those damages.


Conclusion


156. The Dealership has agreed to compensate Dr. Miller for the cost of repair of the Ferrari and for the loss caused by accelerated depreciation. Essentially, these payments have put Dr. Miller’s Ferrari back in the position it would have been had it not been damaged.

157. What Dr. Miller has not been compensated for is the fact that for almost a year, the Dealership took away from him something that he truly treasured, the experience of driving the Ferrari for pleasure, stress relief, and socializing.

158. The Dealership understands the value of Ferraris. This is their business. They profit from individuals expecting the highest quality product available and a high quality service available.

159. The Dealership is not in the business of merely selling cars. They sell a special experience to the few people who can afford it.

160. Dr. Miller didn’t purchase a car. He purchased the experience of driving a race car whenever he chose. The Dealership, however, took that experience away from Dr. Miller for almost a year.

161. The Dealership makes money by selling this experience to people. How then can the Dealership, when they take this experience away, not provide equivalent compensation?

162. The Dealership’s Opening Statement says that “any award must be reasonable and fair as between the parties and be concerned with reinstatement rather than retribution.”

163. Dr. Miller is not asking for retribution. All he was asking for is equivalent compensation for what the Dealership took from him – the use of his Ferrari for almost a year.

164. The Dealership’s suggestion that $5,000 is a reasonable measure is completely unrealistic. Would the Dealership allow someone to drive one of their Ferraris to someone for $5,000 for the year? For a month even? It is highly unlikely.

165. The Dealership could have crystallized its losses at any time by releasing the Ferrari to Dr. Miller. Had it done so the award for loss of use would still be relatively high, because of the value of the vehicle, but the Dealership must accept this, as it’s part and parcel of their business. The Dealership, however, chose to retain the Ferrari, and as a result, have no one to blame for the high quantum of this award but themselves.

Order Sought

166. Special damages for the cost of repair in the amount of $35,644.04.

167. General damages for accelerated depreciation in the amount of $36,350.25.

168. General damages for loss of use in the amount of $80,000.


ALL OF WHICH IS RESPECTFULLY SUBMITTED:

Date: November 26, 2014 ___________________________________
Arpal S. Dosanjh
Counsel for the plaintiffs

 

Lawrence,
Thank you for sharing your story. Just like in the head shrinking business, we can all learn something from it. I hope that all of your 'toy car' experiences will be miles (kilometers) better in the future.

 

Yes. I too was under the impression that if you won a legal case, you would then get all your legal fees reimbursed. My lawyer tells me this is a myth, and only a relatively small portion gets reimbursed to the client (depending on the number of trial days, disbursements, and other factors). Of course, this reduces accessibility to legal services. For example, even if someone has been egregiously wronged and their case just, they may not be able to pursue the case due to the legal costs - especially knowing they will not be fully reimbursed.

Obviously, I would be a lot further ahead if all the legal fees were reimbursed, and then I would consider it closer to a just outcome from a financial perspective.

 

That is very true and I thank you for your support. "Life is a great teacher" as my wise old grandfather used to say, but "you have to pay attention to the lessons".

 

Thank you for reading the whole article! I actually tried to trade in my Ferrari for a F458 at Alberta Ferrari. I told them about the accident, and even sent them photos of the damage. I believe they offered $90,000. Incidentally, after the accident, Ferrari Maserati of Vancouver offered me $120,000 (without the 15% tax I paid on the car) for my damaged car. An email indicates they were going to try to sell it for a "$129,995 max and attempt to hold as much as possible" after repairs.

 

Sorry if I missed it, but did they have to pay for the repairs?

 

I guess it is too bad you couldn't strike a deal for the 458, unless of course you are glad to have your car back.

As far as my comment about asking for $85K as being "way out of line", that didn't come out right. I think it was proper to ask for such a high amount knowing it may well be reduced. I suppose if you asked for $15K you would have been awarded $10K or even less.

I am amazed that the owner, Brian Ross, allowed this to go so far. Wasn't he monitoring the activity of Mr. Edmonds?

 

The court case was going on for a long time so I paid the cost of repair which was done in spring 2014 and ICBC later refunded me that cost.