The Subrogation Strategist

In Jensen v. Matute, 2020 La. App. LEXIS 160, the Court of Appeal of Louisiana considered whether the plaintiff could recover compensatory, loss of use damages following a rear-end car collision. The court held that because the plaintiff was able to mitigate the loss of use and, consequently, suffered no actual loss of use damages, he had no recoverable claim.

Dr. Kent Jensen is a professional cellist and a member of the Louisiana Philharmonic Orchestra. In 1985, Dr. Jensen purchased an “unbranded” nineteenth-century French cello, which he referred to as a “student cello.” Dr. Jensen used this cello for practice and performances until December of 2014, when he purchased a nineteenth-century Granjon violoncello (Granjon Cello) from a friend. Although the Granjon Cello was appraised at $65,000.00, the friend sold it to Dr. Jensen for $47,500.00.

In June of 2015, a car driven by Allan Matute rear-ended Dr. Jensen’s car. Liability for this accident was not in dispute. The Granjon Cello was in the back of Dr. Jensen’s car at the time of the accident. Although he did not notice any visible damage to the cello at the time of the accident, he later noticed sound quality issues with it. He then had a local violin shop examine it and the shop determined that the cello might have a crack. On July 13, 2015, Dr. Jensen sent the Granjon Cello to Robertson & Sons (a luthier based out of Albuquerque, New Mexico that Dr. Jensen trusted) for repairs. Robertson & Sons returned the cello to Dr. Jensen on October 16, 2015, with no permanent damage or diminution in value.

Dr. Jensen filed suit against Mr. Matute, alleging that he was owed loss of use damages in the amount of $60,125.37.[1] He reached this number by using his expert witnesses’ valuation of $541.67 per day for the rental of an instrument like the Granjon Cello, multiplied by the 111 days that his own cello was being repaired. However, the plaintiff did not rent an instrument while his Granjon Cello was undergoing repairs. Instead, he used the student cello he was using prior to purchasing the Granjon Cello. After a one-day bench trial, the trial court ruled in favor of the defendants and dismissed the loss of use claim.

Although the appellate court stated that a plaintiff does not always have to rent a substitute to obtain loss of use damages, it also stated that the plaintiff needed to prove actual damages to recover. In this case, Dr. Jensen suffered “no substantial inconvenience” since he was able to use his student cello, which he had used for thirty years prior. Thus, because the plaintiff fulfilled his duty as an injured tort victim to mitigate his damages, the court affirmed the lower court’s ruling that there were no actual loss of use damages suffered.

As an ancillary issue, the court also denied the plaintiff’s claim for general damages based on his alleged mental anguish and emotional upset over concern that his cello was damaged. The court held that the plaintiff’s claims did not meet any of the four special circumstances under which a plaintiff can recover for mental anguish based on property damage.[2]

This case is a good reminder to subrogation attorneys that proving damages is not always just a matter of presenting an expert that will support particular values. It also highlights the notion that damages are not sustained in abstract terms. For a plaintiff to recover special damages, there must be real damages at issue. Furthermore, while plaintiffs often like to claim mental anguish associated with property damage claims, common annoyance or inconvenience often does support a claim for recoverable damage, as we see is the case in Louisiana.

[1] Although there were other family-member plaintiffs, defendants and claims involved in the original lawsuit, they were not at issue in this appeal.

[2] The four circumstances are: 1) the result of illegal or intentional act; 2) strict or absolute liability; 3) nuisance; or 4) psychic trauma as a direct result of being present or nearby when the property is damaged.