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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Construction Equipment, Inc. v. Star Trucking, Inc. (01/27/2006) sp-5980

Alaska Construction Equipment, Inc. v. Star Trucking, Inc. (01/27/2006) sp-5980, 128 P3d 164

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11555
Appellant, )
) Superior Court No.
v. ) 4FA-03-2189 CI
Appellee. ) [No. 5980 - January 27, 2006]
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  Brent  Edwards  and  Bruce   E.
          Falconer,  Boyd,  Chandler &  Falconer,  LLP,
          Anchorage,  for Appellant.  James D.  DeWitt,
          Aisha  Tinker Bray, and Matthew Cooper, Guess
          & Rudd P.C., Fairbanks, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Carpeneti,  Justices.  [Fabe,
          Justice, not participating.]

          CARPENETI, Justice.

          We  have permitted an owner of property to obtain  loss
of use damages for the reasonable period of time required to make
repairs to the property damaged by a lessee or bailee.1   We  are
now  asked  whether a lessor may obtain loss of use damages  even
where the lessee caused the property to be totally destroyed  and
not repairable.  We hold that such damages are recoverable during
          the period of time that is reasonably necessary for the owner to
secure a suitable replacement of the property.
          On  August 19, 2002 Alaska Construction Equipment, Inc.
(ACE) leased a Volvo A-35 rock dump truck3 to Star Trucking, Inc.
The lease agreement stated that the trucks value was $140,000 and
set the rental rate at $17,500 per month.  The lease document was
a  one-page  standardized  form  with  a  few  listed  terms  and
conditions, including the following:
          Equipment maintenance, repairs and  care  are
          the sole responsibility of the Lessee.  After
          inspection,  Lessee assumes all  repairs  and
          maintenance necessary to return the  unit  in
          the   same  condition  as  it  was  received,
          reasonable wear and tear excepted.
Star  Trucking  took possession of the truck  in  Glennallen  and
hauled  it  to the Fort Knox mine outside Fairbanks.  On  October
14,  2002, less than two months after the start of the  lease,  a
Star  Trucking  employee hooked the bed  [of  the  truck]  on  an
overhead conveyor belt at the Fort Knox mine, and rolled the A-35
onto  its  side.   The incident report noted  that  the  accident
damag[ed]  right  side  of cab, and also caus[ed]  right  &  left
cylinders to be torn loose from box; also possible engine  damage
to be assessed at a later time.
          On  October 29 Star Trucking moved the damaged  vehicle
to  its  yard  in  Fairbanks.  According  to  Star  Trucking,  it
considered  the truck repairable, and at its shop it  immediately
disassembled the vehicle, assessed the damage to the vehicle, and
ordered parts to repair the vehicle in an effort to . . . get  it
back  out  on  the road as soon as possible.  On November  1  the
general  manager of ACE, Roy Rank, inspected the vehicle in  Star
Truckings  yard.   After only ten minutes it was  clear  to  [Mr.
Rank]  that the truck was totaled, especially but not limited  to
the noticeably bent frame.
          On  November 4 Rank told Star Trucking that  the  truck
had  to  be  inspected  and repaired by a Volvo-certified  repair
facility, and recommended Construction Machinery Industries,  LLC
(CMI).   Rank  later  testified to his  rationale  for  requiring
inspection and repair by a Volvo-certified facility:
          Because  of liability and resale concerns  we
          only  have a Volvo certified repair  facility
          do  our  major  repairs.   We  know  a  Volvo
          certified repair facility is going to  do  it
          right.  We certainly do not want a bad repair
          job getting someone hurt or something damaged
          when  the  truck  goes  back  out  on  lease.
          Having   major  repairs  done  by   a   Volvo
          certified repair facility also assures a well
          documented  heavy  maintenance  history   and
          preserves the resale value of the truck. .  .
          .  ACE  does do routine maintenance and minor
          repairs on its equipment, and ACE allows  its
          lessees to do the same.
Star  Trucking admitted that it was not a Volvo-certified  repair
facility  and that none of its mechanics were Volvo  trained  and
certified to make repairs to the A-35.
          After  numerous  requests by ACE  and  some  scheduling
difficulties, Star Trucking delivered the damaged truck to CMI in
Anchorage on November 19.  About one week later Rank met  with  a
CMI mechanic, who explained that the truck suffered major damage,
e.g.,  bent frame and blued (burnt) bearings.  On December 9  CMI
faxed  an estimate for repairs totaling $99,931.69, not including
the  cost of a new cab.  (CMI, acting on Volvos advice, concluded
that  the  cab  needed  to  be replaced  rather  than  repaired.)
According to Rank, after reviewing this estimate with Paul Miller
of  Star  Trucking, [w]e both felt the truck was  totaled.   Star
Trucking  directed  its insurer, Firemans  Fund  of  Seattle,  to
handle the claim.
          Firemans  Fund  made numerous offers to  ACE,  but  ACE
rejected  these  offers and demanded nothing less than  $140,000,
the stated value of the truck in the lease agreement.  On May  2,
2003  Firemans Fund offered to pay $100,000 with ACE keeping  the
salvage,  which  had an estimated value of around  $45,000.   ACE
agreed  to this offer on May 7, but on May 9 Firemans Fund stated
its  belief  that this payment would also settle  any  claim  for
attorneys  fees or for loss of use damages.  After receiving  the
$100,000 check from Firemans Fund, Star Trucking refused to  hand
the  check over to ACE until ACE signed a release of all  claims.
On  May 20 ACE reiterated its belief that the $100,000 settlement
only  covered property damage, and on May 23 it filed a complaint
against Star Trucking for the $100,000 check and for loss of  use
damages.  On July 8 Star Trucking delivered the check to ACE.
          Star  Trucking later moved for summary judgment on ACEs
loss  of  use damages claim.  ACE opposed this motion and  cross-
moved  for  summary  judgment in its favor on  this  issue.   ACE
sought  a  total  of  $154,000 in loss of use damages,  based  on
$17,500  per  month  from the date of the accident,  October  15,
2002,  to  the  date  it  received  the  $100,000  Firemans  Fund
settlement check from Star Trucking on July 8, 2003.4  On June  1
Superior  Court Judge Richard D. Savell granted summary  judgment
in  Star Truckings favor without comment, and denied ACEs  cross-
motion for summary judgment.  ACE appeals.
          We  review a grant of summary judgment de novo, drawing
all  factual inferences in favor of, and viewing the facts in the
light  most favorable to the non-prevailing party (generally  the
non-movant).5  A grant of summary judgment will be affirmed  when
there  are  no genuine issues of material fact and the prevailing
party  is  entitled to judgment as a matter of law.6  Whether  an
owner of property may obtain loss of use damages against a lessee
or  bailee who caused the total destruction of the leased chattel
is  a  question  of  law, which we review using  our  independent
judgment.7  We will adopt the rule of law that is most persuasive
in light of precedent, reason, and policy.8
     The  Superior  Court Erred in Granting Summary  Judgment  to
     Star Trucking on ACEs Loss of Use Damages Claim.
          A.   ACE has a claim for damages for loss of use.

          ACE  seeks  loss  of use damages for a period  of  time
after  the  accident,  even though the truck  was  destroyed  and
essentially  not  repairable.   We  have  not  had  occasion   to
determine  whether loss of use damages are permissible  in  these
circumstances, so the legal issue is one of first  impression  in
          Generally, loss of use damages are available as a  form
of special or consequential damages for harm to or destruction of
personal  property.9  Recoverable special damages are those  that
are within the proximate cause limits, that can be proven with  a
reasonable  degree  of  certainty,  and  that  do  not  duplicate
elements  of damage awarded under the general damages headings.10
The   ordinary  measure  of  damages  in  contract  law  is   the
expectation  interest, which strives to give the benefit  of  the
bargain to the non-breaching party.11  For example, where a lessee
returns  leased property  to the owner in damaged condition,  the
award  of damages often includes an award of special loss of  use
damages  to  satisfy  the owners expectation  interest.   If  the
lessor  were merely awarded the decline in market value  for  its
damaged  equipment, then the lessor would not be compensated  for
the economic harm resulting from the lessors impaired ability  to
continue leasing out the equipment to other customers during  any
period needed for repair.
          Following  this line of reasoning, we have specifically
recognized  the remedy of loss of use damages in a  contract  for
lease or bailment.  In Burgess Construction Co. v. Hancock,12   a
lessee-bailee returned equipment to the lessor-bailor in  damaged
condition.13  We stated that it is well established that an owner
of  equipment  may recover for loss of that use of the  equipment
during  the  period required for making repairs which could  have
been  made  with ordinary diligence.14  We also stated  that  the
rental value of a damaged vehicle is one permissible standard for
measuring damages for loss of use.15  We calculated loss  of  use
damages  by  multiplying the time necessary  for  repair  by  the
rental value of the equipment, and we rejected the rule that  the
plaintiff, to recover, must first establish that in fact he hired
a replacement for his damaged vehicle.16
          While  we have not previously decided the precise issue
presented  in  this case  whether to allow loss  of  use  damages
where  the  chattel  is completely destroyed rather  than  merely
damaged   we  have commented on it in past cases.   In  State  v.
Stanley,17 we noted that there is a dispute [among jurisdictions]
as  to  allowance  of damages for loss of use in  case  of  total
destruction,  but  under the circumstances of that  case  it  was
unnecessary to take a position on the matter.18  Stanley involved
a  constructive total loss of a bailors property.   The  superior
court  had awarded damages for loss of use for a reasonable  time
to accomplish a replacement of the article  which it deemed to be
eighteen months  in addition to general damages compensating  for
the  propertys reasonable market value.19  We affirmed the figure
of eighteen months, but we did not comment on the superior courts
underlying  adoption  of  the reasonable  time  to  accomplish  a
          replacement of the article standard because it had not been
raised  as an issue on . . . appeal.20  In a later case we noted,
again  without  resolving it, that [t]here is a  current  dispute
among  courts as to the propriety of allowing loss of use damages
in a case involving total destruction of property.21
          What  should  be  the rule for loss of use  damages  in
cases involving the total destruction of a chattel?  We begin  by
noting that the general trend in other jurisdictions has been  to
allow  loss of use damages in these cases.22  Similarly,  it  has
been  noted that traditional limitations on this kind of recovery
were  based  on a questionable analogy between total  destruction
loss  of  use claims and historical trover or conversion  claims.
Earlier decisions assumed that the owner of the property would be
fully compensated for its injury by receiving the market value of
the  destroyed  chattel, making additional loss of  use  recovery
excessive.23   Jurisdictions permitting loss of  use  damages  in
cases  of total destruction have rejected this analogy,  and  its
market-value ceiling on recovery, as a fallacy.24  As explained by
one court:
          When  an  automobile is damaged  through  the
          negligence of another, temporary loss of  the
          use   of  such  vehicle  pending  repair   or
          replacement   is  a  reasonably   foreseeable
          consequence   of   the  defendants   tortious
          conduct.  Compensation for the temporary loss
          of  use  is  directed at plaintiffs  economic
          loss,  the amount of money plaintiff  had  to
          pay  for rental of a car.  This is an  injury
          different  in kind from property damage,  the
          amount  of  money  necessary  to  repair   or
          replace the damaged vehicle.  A plaintiff  in
          a  total  destruction case  deprived  of  his
          reasonable  loss-of-use expenses  has  simply
          not been made whole.[25]
          Our  case  law  is  in accord with these  jurisdictions
rejecting  the market-value ceiling of recovery for loss  of  use
damages.  Indeed, we have indicated that a plaintiff is permitted
to  recover loss of use damages above and beyond the total market
value  of  the damaged chattel.26  We therefore see no compelling
reason  to treat loss of use claims differently where the chattel
is  totally  destroyed as opposed to only partially damaged.   We
believe  that making loss of use compensation available in  cases
of  total destruction will enable damage awards to fully  reflect
the  expectation  interest of the owner  seeking  damages.   This
expectation interest includes both the expectation that the owner
would obtain the benefit of the bargain (loss of use) and that it
would  have a useful piece of property at the end of the contract
          In  cases  of  total destruction, loss of  use  damages
should  be  permitted for the period of time that  is  reasonably
required  to  obtain a suitable replacement for  the  property.27
Because  the  act of seeking a replacement is predicated  on  the
property  being  destroyed,  this period  includes  a  reasonable
          period of time, if any, following the accident that is needed to
determine whether the property has in fact been totally destroyed
or  whether  it  remains repairable, so  long  as  any  delay  in
reaching this determination is not the fault of the party seeking
damages.   To  obtain  loss of use damages, the  owner  need  not
necessarily  establish as part of its proof  that  there  was  an
actual  attempt  or  ability  to obtain  a  replacement  for  the
destroyed property.28  Rather, we adopt the replacement  standard
because  it  is a sensible measurement to capture the expectation
interest;  the damages suffered by the owner of the property  are
not  necessarily affected by whether a replacement was ultimately
          We   reiterate  our  rule  regarding  the  relationship
between  an  award  of  loss  of use  damages  and  an  award  of
prejudgment interest, as discussed in State v. Stanley:30
          [T]he court awarded interest on the value  of
          the  vessel from the date of its loss.   Such
          an award is to compensate for the loss of the
          use  of  the funds representing the value  of
          the vessel. . . . To grant such an award plus
          a  separate  one for damages attributable  to
          loss  of  use  of  the vessel  constitutes  a
          double  recovery.  In order to make a wronged
          plaintiff whole, under certain circumstances,
          it  may  be  more appropriate  to  award  the
          actual, provable damages attributable to loss
          of  use  of  property than to award  interest
          from the date of loss.  Both interest and  an
          award  for  loss  of  use  of  the  property,
          however, are not permissible.[31]
Thus,  we  have  made  clear that loss of  use  damages  are  not
available  where the party seeking them has already been  awarded
prejudgment  interest  on  the value of the  destroyed  property.
Prejudgment interest adequately compensates the owner of  damaged
property  for  economic loss for the period of time  between  the
accident  and  the  later award of the  propertys  value.   As  a
corollary, loss of use damages may no longer accrue for an  owner
once  the owner has received actual payment for the value of  its
property, as, for example, where the owner obtains a cash  amount
pursuant to a settlement agreement.
          Because we adopt the rule that loss of use damages  are
available  in  cases of total destruction, we conclude  that  the
superior  court  erred  in  granting  summary  judgment  to  Star
Trucking  on  this issue.  Viewing the facts in  the  light  most
favorable to ACE, (1) there was a valid lease for the truck,  (2)
the  accident was the fault of the lessee, Star Trucking, (3) the
accident  caused total destruction of the truck, and (4)  ACE  no
longer  received rental payments or other economic benefits  that
it  otherwise likely would have received from the truck after the
truck  was  destroyed.   These facts, if indeed  true,  would  be
sufficient to support some award of loss of use damages  to  ACE.
It  was therefore error to find that there were no genuine issues
of  material fact and that Star Trucking was entitled to judgment
          as a matter of law.  Upon remand, the superior court should
determine  whether  the facts support an award  of  loss  of  use
damages to ACE under the legal standard announced today.  If  so,
the  court must calculate a damages award to fully compensate ACE
for  its  expectation  interest.  This calculation  will  require
findings regarding the proper measure of loss of use damages  for
ACE32  and the relevant time period for which such damages should
be  made  available,  i.e., what amount of  time  was  reasonably
required for ACE to obtain a suitable replacement for its truck.
          B.   None  of  Star Truckings defenses entitled  it  to
               summary judgment.
          Consideration  of Star Truckings numerous  defenses  to
loss  of use damages  does not change our conclusion that summary
judgment was improper.  We consider each briefly.
               1.   Repudiation by ACE
          Star  Trucking  argues  that ACE repudiated  the  lease
contract  by  insisting that a certified facility, and  not  Star
Trucking,  repair  the  damaged truck,  thereby  preventing  Star
Truckings   performance   of   the  contract.    Star   Truckings
repudiation  argument  is based on language  in  the  lease  that
required  the  lessee  to  perform all  repairs  and  maintenance
necessary  to  return the unit in the same condition  as  it  was
received,  reasonable wear and tear excepted.  However,  contrary
to  Star Truckings argument that ACEs demand for competent repair
prevented  Star Trucking from performing its contractual  duties,
the only performance actually demanded of Star Trucking under the
contract  was  the  payment of rents for the truck.   The  repair
clause placed the responsibility on Star Trucking to repair,  but
it  did  not give Star Trucking an absolute right to repair  such
that Star Trucking could control all aspects of a repair job  and
exclude  ACEs  participation.  In other words, the repair  clause
was one of Star Truckings burdens of the contract, not one of its
benefits.   Therefore, we cannot accept Star  Truckings  argument
that  ACEs  requirement for competent repair, in  itself,  was  a
repudiation of the contract.
               2.   Termination by ACE
          Star  Trucking next argues that ACE terminated the  at-
will lease by re-taking possession of the truck.  But even if ACE
were  found to have terminated the lease contract, it  would  not
follow that ACE could not recover any loss of use damages.   Such
termination,   after  all,  was  occasioned  by  Star   Truckings
destruction  of the truck.  Thus, the termination might  end  the
time  period in which ACE could collect loss of use damages,  but
it  would not change the facts that ACE was harmed by the  damage
Star  Trucking caused to the vehicle, including the economic loss
of  use of that vehicle, and that it is entitled to some form  of
               3.   Failure to mitigate and modification  of  the
                    contract by ACE
          Star  Trucking argues that ACE had a duty  to  mitigate
damages that it failed to meet, and that by allowing credits  for
earlier downtime periods ACE had modified the contract.  We  have
examined  these arguments and are satisfied that neither entitled
          it to summary judgment.  Both at the least raise disputed issues
of material fact.
          Loss  of  use  damages are available  to  an  owner  of
damaged  property  even  where  the  property  has  been  totally
destroyed  and  is  not repairable.  Because  genuine  issues  of
material  fact  remain as to whether ACE is entitled  to  recover
loss  of use damages for the destruction of its leased truck,  we
REVERSE  the  superior courts grant of summary  judgment  to  the
lessee, Star Trucking, and REMAND for proceedings consistent with
this opinion.
     1     Burgess  Constr. Co. v. Hancock, 514 P.2d 236  (Alaska

     2     We  set  out the facts in the light most favorable  to
ACE,  because  Star Trucking moved for and prevailed  on  summary
judgment  below.   Martinez v. Ha, 12  P.3d  1159,  1162  (Alaska

     3     This  six-wheeled  vehicle weighs 56,660  pounds  when
empty,  stands  over  eleven feet high, and is  thirty-five  feet

     4    The lease agreement set monthly payments at $17,500 per
month,  as  mentioned above.  The first invoice (for  the  period
8/20/02 to 9/19/02) was paid, although ACE credited Star Trucking
almost  $4,700 for downtime due to vehicle problems.  The  second
invoice (for the period 9/20/02 to 10/19/02) was also paid.   But
Star  Trucking paid nothing on the invoices it received after  it
rolled the rock truck.

     5    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

     6    Id.

     7     Cent. Bering Sea Fishermens Assn v. Anderson, 54  P.3d
271, 277 (Alaska 2002) (The determination of what law to apply is
a legal question for which we use our independent judgment.).

     8    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     9    1 Dan B. Dobbs, Law of Remedies  5.15(1) (2d ed. 1993).

     10    Id.

     11     See  Restatement (Second) of Contracts  347 & cmt.  a
(1981)  (Contract  damages are ordinarily based  on  the  injured
partys  expectation interest and are intended  to  give  him  the
benefit of his bargain by awarding him a sum of money that  will,
to the extent possible, put him in as good a position as he would
have been in had the contract been performed.).

     12    514 P.2d 236 (Alaska 1973).

     13     Id.  at  237.  Even though the parties had created  a
rental  contract for the equipment, we disregarded  the  contract
and  treated the transfer of property as a bailment. Id. at  239-
40.  (A bailment is a delivery of personal property by one person
to  another  in trust for a specific purpose, with an express  or
implied  contract that the property will be returned or accounted
for  when the specific purpose has been accomplished or when  the
bailor   reclaims  the  property.   United  Truck  Rental  Equip.
Leasing,  Inc.  v.  Kleenco Corp., 929 P.2d 99,  103  (Haw.  App.
1996),  quoting Davis v. MLG Corp., 712 P.2d 985,  987-88  (Colo.
1986).)   This distinction is not analytically important for  our
purposes  today,  for  [a]t common law, the  rental  of  a  motor
vehicle creates a bailment for the mutual benefit of the parties.
United  Truck Rental, 929 P.2d at 103.  Thus, loss of use damages
would  be available to the same extent in a lease contract and  a

     14     Burgess, 514 P.2d at 238 (citing Annot., 18  A.L.R.3d
497 at  6 (1972)).

     15    Id. (citing 18 A.L.R.3d 497 at  14).

     16    Id. at 238 (emphasis added).

     17    506 P.2d 1284 (Alaska 1973).

     18    Id. at 1292-93 & n.17 (collecting cases on both sides).

     19    Id. at 1292 (internal quotation omitted).

     20    Id. at 1293.

     21    ERA Helicopters, Inc. v. Digicon Alaska, Inc., 518 P.2d
1057, 1060 n.5 (Alaska 1974).

     22     See, e.g., Reynolds v. Bank of America, 345 P.2d 926,
927-28  (Cal. 1959) (There appears to be no logical or  practical
reason  why a distinction should be drawn between cases in  which
the  property is totally destroyed and those in which it has been
injured but is repairable. . . .); Long v. McAllister, 319 N.W.2d
256, 259-61 (Iowa 1982); Chlopek v. Schmall, 396 N.W.2d 103, 108-
10 (Neb. 1986).  See also Dobbs, supra note 9,  5.15(2) at 891-92
(courts today appear to have very generally allowed rental  value
claims  even  in cases of complete destruction of  the  chattel).
This  view  is  also  reflected in the Restatement.   Restatement
(Second) of Torts  927 (1979).

     23     Long,  319 N.W.2d at 259 (Damages for destruction  of
chattels  were  based on analogy to conversion.   The  reasonable
market  value  of the chattel was viewed as adequate compensation
under  this  concept  in  the  common  law  action  of  trover.);
Reynolds, 345 P.2d at 928 (original rule appears to be the result
of  historical  limitations upon the action of trover  at  common

     24    Long, 319 N.W.2d at 260.

     25     Bartlett  v. Garrett, 325 A.2d 866, 867  (N.J.  Dist.
1974) (emphases in original).

     26     See Ben Lomond, Inc. v. Campbell, 691 P.2d 1042, 1047
(Alaska  1984)  (holding  that award  not  limited  to  value  of
property but may include loss of use); ERA Helicopters, 518  P.2d
at  1059-60 (award not limited to repair costs, may include  loss
of use).

     27     Long, 319 N.W.2d at 261; Reynolds, 345 P.2d  at  927.
See  also  Recovery for Loss of Use of Motor Vehicle  Damaged  or
Destroyed, 18 A.L.R.3d 497 at  9 (1968).

     28     Cf. Burgess Constr. Co. v. Hancock, 514 P.2d 236, 238
(Alaska  1973)  (rejecting  rule  that  to  obtain  loss  of  use
compensation for repairable damage plaintiff must first establish
that  in  fact  he hired a replacement for his damaged  vehicle).
Accord United Truck Rental Equip. Leasing, Inc. v. Kleenco Corp.,
929  P.2d 99, 110 (Haw. App. 1996) (a plaintiffs recovery  should
not  be  premised  on  his or her actual ability  to  purchase  a

     29     See  United  Truck, 929 P.2d at  110  (regardless  of
whether  the  plaintiff furnishes the funds to hire a  substitute
vehicle, he or she still suffers an injury while deprived of  the
vehicle and should be awarded damages for the inconvenience).

     30    506 P.2d 1284 (Alaska 1973).

     31    Id. at 1295 (citation omitted) (emphases added).

     32     We note that it is commonly said that there are  four
measures  for loss of use damages: (1) lost profit, (2)  cost  of
renting  a substitute chattel, (3) rental value of the plaintiffs
own  chattel, or (4) interest.  Dobbs, supra note 9,  5.15(1)  at
875.  If the court determines that ACE is entitled to loss of use
damages,  it  may  calculate the damages  according  to  whatever
measure  most  accurately  compensates ACE  for  its  expectation

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