Beware of Ferrari Maserati of Vancouver

I initially suspected that he did not, and I asked Mr. Edmonds to discuss the situation with him. Not being sure this was done, I later called Mr. Ross directly, and he said he was letting Mr. Edmonds deal with it, and that he had no influence over financial aspects of the dealership. Much later, Mr. Ross, through his lawyer, reiterated the same offer to by my damaged Ferrari for $120,000.

 

Finally managed to post this as promised! The format is a bit off, and there are some numbers and letters which refer to submission items not included (e.g., photos of damage to the Ferrari, etc...).


NO. S135397
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 SUBMISSIONS OF THE DEFENDANT
BRIAN ROSS MOTOR SPORTS DBA FERRARI MASERATI OF VANCOUVER

1. On May 22, 2013, the plaintiff took his Ferrari F430 to the defendant dealership for its an annual service. The service was performed by certified Ferrari technician who, upon the completion of the service on May 28, 2013, road tested the car for quality control.
2. During the course of operating the plaintiffs’ car the technician made contact with a delivery truck parked in the ally, causing damage to the car.
3. To be clear, the plaintiffs’ car was not being driven by a joy riding lot boy, but a 65 year old, Ferrari certified technician who appears to have had a lapse in judgment when driving the car in a tight ally. It was simply an accident.
4. The defendant, on May 28, 2013 took all reasonable steps to retain No. 1 Collision in order to obtain an estimate of the damage, report the accident to its insurer, ICBC, and opened a claim under its garage policy of insurance.
5. In meetings and telephone conversations that took place over the proceeding days and months, the plaintiffs and defendant, while continuing to talk, were unable to find a resolution.
6. Mr. Edmonds has testified that he was unaware until the commencement of this litigation that the defendant sent out an invoice for the service and that he was unaware that his service manager had instructed No. 1 Collision not to release the car to the plaintiffs until the service invoice had been paid. Mr. Edmonds did not take steps to collect the monies owing from the service invoice or secure a lien against the plaintiffs car.
7. Mr. Edmonds has further testified that he was instructed to ensure the car was secured and out of the elements and ultimately, the dealership released the car when instructed to do so by their insurer.
8. In any event, the defendant was in possession of the plaintiffs car from May 22, 2013 when it was provided to the defendant for servicing until December 18, 2013, or approximately 7 months.
9. A request was made of Mr. Edmonds to provide the plaintiffs’ with the car on or about July 24, 2013, and Mr. Edmonds has testified that we was not sure what to do with the car at that point because in his mind it did not make sense to release a damaged car to anybody but an auto body shop.
10. The plaintiffs did take steps to engage various auto body shops including Ferrari of Beverly Hills, Ferrari of Alberta and Queen City Auto Rebuild in an effort to retain a certified Ferrari auto body shop, however, it appears that none of these were suitable.
11. After the plaintiffs’ car was return to him, further settlement talks were held but to no avail.
12. Between December 18, 2013 and May 9, 2014 when the plaintiffs’ car had been returned to him and repaired, the defendant did not have care or control of the car.
LOSS OF USE
13. Kerbel v Fisher stands for the proposition that a person who has been wrongfully deprived of the use and enjoyment of a chattel may be entitled in appropriate circumstances to real damages, not merely nominal damages, for such loss of use and enjoyment even through the plaintiff is unable to establish any tangible pecuniary loss.

Kerbel v Fisher, [1981] BCJ No 1514 [1982] BCWLD 31, at para 29
(Tab 1 of Defendant’s Brief of Authorities)

14. The Court, however, goes on to state that the facts of each case must be scrutinized carefully before applying this principle to other, distinct cases.

Kerbel, supra at para 31.

15. In Kerbel the plaintiff’s Mercedes was damaged in an accident from which ICBC provided funding for repairs and rental of a substitute car. The action arose from the plaintiff’s claim for additional damages, including loss of use and enjoyment of the car.
16. In Kerbel, however, the Court declined to make an award under loss of use and enjoyment head of damage because the Court found that the plaintiff went on holiday during the time period his car was being repaired and secondly, the car was not operated during the winter months but rather put in storage, which would have occurred if not for the accident.
17. The difficulty with the application of Kerbel to the case at bar is the plaintiff has testified that:
(a) the car was insured for pleasure use only and could not be driven for work travel more than six days a month and was not driven to get to the plaintiffs’ office in any event;
(b) the plaintiff further travelled for business three to four times a year often for a week at a time and was in fact out of town on a business trip when the accident occurred;
(c) the car was no stranger to the service shop; and
(d) it was not driven in the rain.
18. The plaintiff has further testified he had the use of his Acura and motorcycle for day to day transportation and did not require the rental of another car for transportation.
19. This principle in Kerbel with respect to availability of an award of damages for loss of use and enjoyment was followed in Teschner v Yarish where the Ontario Court of Justice found that loss of use is a proper head of damage.
Teschner v Yarish, [1995] OJ No 156955 ACWS (3d) 874
(Tab 2 of Defendant’s Brief of Authorities)
20. Teschner involved damage to the plaintiff’s sailboat, from a collision with another boat. The plaintiff’s claim for loss of use of the boat was for approximately one month of the sailing season.
21. The Court in Teschner noted, however, the uncertainty about the appropriate method of calculation of damages where there is no direct monetary loss. Citing Waddams, The Law of Damages, 2d, the Court in Teschner accepted the following principle:
The owner of property who is using it to perform a public duty, or for her pleasure, or to confer a benefit on a friend or relative, does suffer a loss if the property is put out of use. The interest on the capital value of the property is a minimum measure of what the owner foregoes by not selling it and investing the money, and this (with the addition of depreciation and maintenance costs) represents a measure of the cost to the plaintiff of owning the property and therefore one acceptable measure, in absence of better evidence, of the value of its use.
Teschner, supra at para 35
22. The plaintiff in Teschner had claimed damages for loss of use based upon the equivalent cost of renting a similar boat in the Caribbean.
23. Ultimately, in Teschner the loss of use and enjoyment award was determined based on the above Waddams principle and the plaintiff’s calculated interest on capital value, depreciation, and maintenance costs.
24. More recently, in Signorello v Khan, the British Columbia Supreme Court was required to determine an award for loss of use.
Signorello v Khan, 2010 BCSC 1448
(Tab 3 of Defendant’s Brief of Authorities)
25. The plaintiff in Signorello owned an extremely rare, high-performance Mercedes-Benz luxury sports convertible, with a retail value of over $210,000.00. The convertible was damaged while being valet parked, which resulted in repair costs of $26,000. The repairs were carried out by Mercedes and led to full restoration of the car. These costs were fully recovered. The issue in this case was whether the plaintiff was entitled to damages for accelerated depreciation, loss of use, and emotional distress, among other things.
26. In determining an appropriate award for loss of use, the Court in Signorello, citing Sharma v Andrews at para 31:
The plaintiff was paying money for the use of his car on a lease basis…what better measure of his loss is there than the monies he was forced to continue paying without the benefit of use and without gaining any advantage – an advantage, I would suggest, that he would have got if he had been buying the car and simply continuing the payments. I do not think the car payments would have been a measure of damages but in my view lease or rent payments would be.
Signorello, supra at para 31
27. With respect to loss of use, Justice Grauer in Signorello awarded the plaintiff $3,000 for loss of the use of the convertible for two months. The plaintiff claimed a total of $5,915.52 which was equivalent to his lease payments for two months. However, the Court did not award the plaintiff this full amount for three reasons: the plaintiff was out of town for close to half the time in question; the plaintiff was able to enjoy the use of a substitute Mercedes vehicle, provided by Mercedes at no charge, for a significant portion of the time; and part of the monthly lease payments did pay down the residual value of the plaintiff’s car, advantaging the plaintiff.
28. In the absence of inconvenience due to lack of available transportation and evidence of actual expense incurred by the plaintiff for a rental or lease, the analysis adopted by the Court in Teschner, cited from Waddams, is attractive in that it balances compensation to a plaintiff who today has full use of the car, and is consistent with the principle that such an award be reasonable and not punitive with respect to the position of the defendant.
REASONABLENESS
29. In Kates v. Hall the plaintiff sued the defendant in trespass for cutting down 13 mature trees, each about 40’ tall. The plaintiff sought approximately $200,000.00 in damages based upon expert evidence to transplant mature trees of a similar size onto his property. The Court of Appeal rejected this approach holding that while the wishes of the plaintiff should be considered the court must be satisfied that those wishes are reasonable and are not to make the largest possible demand on the defendant. In so doing, the Court of Appeal pointed out that doing justice between the parties must concern itself with reinstatement rather than retribution.
Kates v. Hall (1991), 1991 CanLII 1127 (BC CA) at pages 6 and 15
(Tab 4 of Defendant’s Brief of Authorities)
30. The Kates decision was followed in Khaira v Nelson & Lidder where the plaintiff purchased a home owned by the defendant. The purchase was conditional on a building inspection; the plaintiff hired the defendant inspector to perform the inspection. The defendant’s inspection did not reveal a sloping problem in the home. After the transaction, the plaintiff noticed that the floor sloped in his home and he obtained a quotation to repair the defect. The plaintiff sought as damages the repair cost contained in the quotation or, alternatively, the diminution in the value of this home.
Khaira v Nelson & Lidder, 2002 BCSC 1045
(Tab 5 of Defendant’s Brief of Authorities)
31. In resisting the higher cost of repair measure of damages, the Court in Khaira emphasized that reasonableness and fairness must influence the courts assessment of damages.
Khaira, supra at para 57
 
LOSS OF ENJOYMENT
32. The plaintiffs have plead this case in contract and seeks damages for the loss of enjoyment flowing from the breach of contract.
33. The plaintiffs have testified that the primary use of the car is enjoyment, to unwind at the end of the day, to show the car to other Ferrari enthusiasts and escape on vacation with it. With such a busy schedule, he finds piece of mind through the use of the car.
34. In Wharton v Tom Harris Chevrolet Oldsmobile Cadillac Ltd. the British Columbia Court of Appeal upheld the trial judge’s award of $5,000 for “loss enjoyment and inconvenience.” In that case, the problem was the failure of the defendants to effect repairs properly, leaving a buzzing sound in the vehicle. The vehicle was purchased in January of 1996 for $62,714.40 and did not receive proper repair until October of 1998.
Wharton v Tom Harris Chevrolet Oldsmobile Cadillac Ltd., 2002 BCCA 78
(Tab 6 of the Defendant’s Brief of Authorities)
35. The Court in Wheaton outlined the law in relation to non-pecuniary damages for loss of enjoyment, frustration and anxiety flowing from a breach of a contract purported to provide “piece of mind” at para 57:
(a) A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension, or aggravation which the breach of contract may cause to the innocent party.
(b) The rule is not absolute. Where a major or important part of the contract is to give pleasure, relaxation or peace of mind, damages will be awarded if the fruit of the contract is not provided or if the contrary result is instead procured.
(c) …
Wharton, supra at para 57
36. The Court, in Wharton was also clear that with respect to quantum, awards should be “restrained and modest”.
Wharton, supra at para 63
37. It is the defendant’s position that the contract for the car’s annual service falls into the “peace of mind” category of contracts.
 

38. The reasoning in Wharton has been followed in Commercial Electronics Ltd v Savics, where the defendant owner was having a new home built in West Vancouver.
Commercial Electronics Ltd v Savics, 2011 BCSC 1275
(Tab 7 of Defendant’s Brief of Authorities)
39. The defendant hired the plaintiff supply and install a “residential integration system.” The system (“System 1”) included a home theatre, a music system, a video distribution system, and a “house control system” that would control both the lighting and music system in the home. The cost of System 1 was approximately $179,000.00.
40. Construction on the home, including the installation of System 1, was completed in about February 2000. Once the defendant and his family moved into the home, however, he found that System 1 did not work. Consequently, he resisted paying the final amount that the plaintiff said was owing for System 1.
41. By November 2003, the parties had entered into an agreement for the installation of another system (“System 2”) for approximately $400,000.00. The installation of System 2 was not completed until the end of July 2004. The defendant again resisted paying the final amount that the plaintiff was asking him to pay, because System 2 also did not perform as the defendant expected and desired.
42. The case arose from the plaintiff’s claim for a judgment against the defendant, for the balance owing in respect of the two systems. The defendant sought damages for breach of contract in relation to both System 1 and System 2, including damages for breach of contract that included a loss of enjoyment claim.
43. The Supreme Court awarded the defendant $15,000 with respect to his claim for loss of enjoyment over a period of more than four years.
Commercial Electronics Ltd., supra at para 222
44. Commercial Electronics was cited recently by the British Columbia Supreme Court in Chamberlain v Pro Star Mechanical Technologies Ltd, 2014 BCSC 1931. In Chamberlain, the plaintiffs purchased a home and retained the defendants to install a geothermal exchange system (“GXS”) to heat and cool the home. The contract price was $31,253.04.
Chamberlain v Pro Star Mechanical Technologies Ltd, 2014 BCSC 1931
(Tab 8 of Defendant’s Brief of Authorities)
45. Shortly after the plaintiffs moved into the home they experienced problems with the GXS as installed by the defendants. Although efforts were made to rectify the situation, the GXS never worked to the plaintiffs’ satisfaction.
46. In assessing the breach of contract award, the Court awarded non-pecuniary damages of $15,000 for the following reasons at para 74:
I accept that [the defendant] made a genuine attempt to resolve the puzzling troubles with the GXS it had designed and sold to the plaintiffs. Be that as it may, the stress on the [plaintiffs] in having to live in a new home that was not properly heated and that had a continually malfunctioning heat pump was real and it resulted in a serious strain on the plaintiffs’ marriage. While it has taken a significant amount of time, effort and expense to get a properly functioning GXS, the plaintiffs now have one, and therefore I do not find their situation to be as egregious as the one in Kaira. It is, on the other hand, more pronounced than the inconvenience and distress described in Wharton. In my view, considering all of the circumstances of this case, an appropriate award of non-pecuniary damages is $15,000.
SUMMARY OF AWARDS
47. Kerbel
• No Award for loss of use.
48. Teschner
• Adopting the principles outlined in Waddams the Ontario Court of Justice awarded $5,406.47 for the loss of use of the boat for one month during the sailing season.
49. Signorello
• The British Columbia Supreme Court awarded the plaintiff $1,500.00 for each month for the two month loss of use of a $210,000.00 Mercedes.
50. Wharton
• The British Columbia Court of Appeal upheld an award of $5,000.00 or $2,500.00 a year, for the loss of enjoyment experienced by the plaintiff over two years of operating a car with a stereo that was a source of frustration.
51. Commercial Electronics Ltd.
• The British Columbia Supreme Court awarded the plaintiff approximately $3,750.00 a year or, $15,000.00 for the loss of enjoyment experienced over four years, with respect to the installation and operation of a home entertainment system valued at approximately $400,000.00.
52. Chamberlain.
• The British Columbia Supreme Court awarded the plaintiff $15,000.00 for the loss of enjoyment experienced with the use of a home heating system that did not ever function correctly.
CONCLUSION
53. The defendant says that while damages for loss of enjoyment flow as a result of a breach of contract, the principles outlined above apply and with respect to quantum, awards should be restrained and modest.
54. From July 24, 2013 when the service invoice was sent until December 18, 2013 when the car was released, the plaintiff would reasonably have expected to enjoy the car over the summer months of August and September and less so during the rainy fall months of October, November and December.
55. Based upon the above principles, the defendant submits an award of $5,000.00 is reasonable compensation for the loss of enjoyment of a $120,000.00 car over the summer months of 2013.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Date: November 26, 2014
Christopher J. Bakker
Lawyer for the Defendant

 

That is a very good question! This is one of the problems that gives me pause whenever I think about buying another Ferrari. Given Ferrari Maserati of Vancouver's negligence in damaging my Ferrari, and subsequent "wrongful" actions against me, it would require a different owner and different manager to even think about returning there again. So the closest other option would be Seattle Ferrari, but that is not very convenient when you are busy. In any case, in answer to your question, I have had my Ferrari serviced at Euro Exotic Auto in Langley.

 

I sorry that you had to go through that - It's very frustrating to say the least.

 

Thank you for the question. I know a posted a lot of information, and so here is a summary of costs and awards. I did not pay the dealership for the annual service cost because they broke the service contract by damaging my Ferrari.

Cost of repair to my Ferrari F430F1: $35,644.04
First paid by me - then later refunded to me by ICBC. Because it was FMOV who damaged my car, this does not effect my insurance rates.


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).

I have decided to appeal the loss of use award even though it will means more legal fees and a greater strain on my financial resources (which are far more limited than FMOV's). The legal cost of justice is high, but the cost of injustice to the larger Ferrari community is higher if I do not appeal - one man's opinion.

 

I agree completely regarding your comment about legal expenses! I did the right thing ethically by holding fmov to account for their negligent and "wrongful actions", won the case, and yet had to pay 65k in legal costs (which I will probably get about 15k reimbursed). Fmov has more financial resources for legal fees than the average Ferrari owner which tends to give them an advantage in any litigation process. I suspect they thought I would not or could not afford to sue them due to the high legal costs, and they would walk away with the win at my expense. But as I said to Brian Ross during an informal meeting when he was in Vancouver before the trial, "there is a principle at stake here and I'm prepared to defend that principle in court if necessary". In my view, acting with integrity may not make a person rich, but it leads to a richness in character that money can never buy.

 

Excellent point! I wonder how many people were unable to get justice because of the high legal costs? Since the judge's decision in my case, I have been receiving a number of calls from people who have been treated unfairly by dealerships - including a recent one regarding FMOV. In my view, FMOV has sadly learned nothing from being held to account for their negligent and "wrongful" actions in the case of my Ferrari - though I must admit I suspected they would not change their priorities. Although their website trumpets their commitment to customer service, in my case, they were more committed to making a profit at my expense than providing good customer service. I thought I was dealing with professionals who represent Ferrari, but now think they hide behind the name and represent their own financial self-interest. In my opinion, a Ferrari dealership is only as good as the people who own and manage it.

 

If poor customer service by the mother company it is part of the Ferrari mystique, then it would seem to reflect poorly on the management of the Ferrari brand. However, despite my negative experience with FMOV, I would like to think that many Ferrari dealerships generally provide good customer service.

 

You may be right about Ferrari Maserati of Vancouver (FMOV) making it so difficult for customers to pursue a claim that they will simply give in. Through their negligence, FMOV did more than $36,000 damage to my Ferrari, mislead me about the damage (i.e., Ash Mohsen saying it was "just a scratch"), and took it to a local non-Ferrari factory authorized auto body shop without my knowledge or permission, and where my Ferrari was stored outside in rain. When I protested, FMOV (Brain Ross, owner, and Mark Edmonds, manager) intentionally withheld my Ferrari from me on one of the sunniest summers on record in a malicious and mean-spirited way - and this despite my lawyer sending them several letters demanding its release. They had to know that it was wrong to deprive a fellow Ferrari enthusiast from driving his Ferrari in the summer months, and yet they resisted releasing my Ferrari until the winter months when the best of the driving season was over.

Brian Ross and Mark Edmonds fought the lawsuit every step of the way in spite of my lawyer and I making VERY reasonable offers to settle. Brian Ross and Mark Edmonds intentionally decided to spend their money on legal fees (undoubtedly in the 10's of thousands of dollars) rather than trying to right their "wrongful" actions in withholding my Ferrari. I suspect they thought I could not afford the accumulation of legal costs over time, and they would then walk away with the win at my expense. If so, then they thought wrong. Based on their negligent and "wrongful" actions, they do not deserve the business of this Ferrari enthusiast. And so I ask the entire Ferrari community who have been so supportive, do they deserve yours?

 

Yes. I too was disappointed in Brian Ross' treatment of a fellow tifosi - especially given that he knows the special exhilarating experience of driving a Ferrari himself, and yet he and FMOV intentionally chose to take that experience away from me during one of the sunniest summers on record. Unlike Brian Ross, I only have one (used) Ferrari which I worked very hard over the years to purchase and drive. Initially, I could not understand why they were treating a fellow tifosi in such a malicious and mean-spirited way, but was enlightened by many of my friends in Ferrari community who opined that they are simply more concerned with making money than providing good customer service.

Let us consider:

Ash Mohsen, Ferrari salesperson, initially told me the damage to my Ferrari was "just a scratch", and Mark Edmonds initially repeatedly estimated the damage at about $7,000 (thereby minimizing the damage in favor of FMOV's own financial self-interest), but when faced with expert estimates of the damage, FMOV agreed the loss of value was more then 36k. They offered me $120k for my damaged Ferrari, and were going to try to sell it for $129,995. In my view, the only way they could get this higher price after more than $36k damage would be to minimize it - i.e. "just a scratch" as they had told me. It has been said that the definition of "character" is what people do when they don't think anyone is looking.

I had initially said to both Brian Ross and Mark Emonds, "You should not look at this [damaging my Ferrari] as an opportunity to make more money from me. This is damage control". The fact that Brian Ross and FMOV later in the summer reiterated their $120k offer for my damaged Ferrari provides evidence that they were still trying to make a profit at my expense. In addition, Mark Edmonds said he consulted with a lawyer and he knew the extent of FMOV's liability. The implication being that if I wanted my Ferrari back, I would have to either sell my Ferrari to them for less than what it was worth before the accident, pay the $3147.48 (initial estimate = $2200) for the very spring tune-up which resulted in the more than $36k damage to my Ferrari, or pursue an expensive legal case with associated accumulating costs. The first 2 options were unacceptable given FMOV was negligent in damaging my Ferrari and "wrongful" in withholding of my Ferrari. In a conference call with Brian Ross, myself, and our respective lawyers during the summer in which FMOV was withholding my Ferrari, Brain Ross said that he has been to court "probably 50 times". I told him I have never been to court. There has never been any reason - until now. What happened next is well documented in this thread.

 

Thank you for your support! If more people hold dealerships to account for their negative behaviors, then they will (theoretically) be less likely to engage in these behaviors. I recently received a call from a fellow Ferrari owner whose Ferrari had been damaged by FMOV. I was pleased to learn that after referencing my case, the loaner car he was given by FMOV (while repairs were being done) was upgraded from a Fiat to a new Ferrari. This of course does not negate the effects of damaging his Ferrari. Still, it is a source of great satisfaction to me to have any positive impact on the Ferrari community who have been so supportive in my quest for fair treatment from FMOV.

 

I'm pleased you have had a more positive experience with the dealership. I will say that Mark Edmonds and Ash Mohsen are very easy to deal with and helpful - as long as they are making money from you. However, in my experience, when there is a problem that could cost them money, they minimize the problem and tend to avoid / not return phone calls. It's analogous to the old saying, "Anyone can hold the helm when the sea is calm", but not everyone can hold the helm in rough seas. The maritime analogy likely arises from the fact that I'm originally from Prince Edward Island