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Having a Case versus Proving it

Tuesday, June 12, 2012 @ 09:06 PM
Brian Montague

Lawyers might call this an illustration of the difference between having a case and proving it.  Others might see it as an example of how lawyers tend to complicate the most basic disputes.

You are driving along, minding your own business (or, as your lawsuit might one day state, “operating [your] vehicle lawfully and prudently at all relevant times”) when “BAM!” someone texting and driving broadsides you.  Though the accident is upsetting and the incident is serious, you are fortunate in the sense that your damages are to the vehicle only and for loss of use.  In fact, after speaking with a lawyer, you are hopeful that the case can be handled through a simple one day trial.

You appear on your court date, have your repair invoice or estimate in hand, and are ready to go.  You testify, begin telling the judge what happened, get to the part about cost of repair, and, just as the repair costs are about to come into evidence, you hear “objection, improper opinion, hearsay.”  “Sustained,” says that judge quickly.  You ask yourself what just happened.

The answer is that, to prove costs of repair in Mississippi, you need an expert witness!  To prove cost of repair, one must prove that the costs of repairs were reasonable and that the repairs were necessary due to the alleged wrongful act.  “Repair bills alone are insufficient to prove either reasonableness or necessity.  Only an expert may express an opinion as to the cost of repairs.”   Sims v. Collins, 762 So.2d 785, 791 (Miss. Ct. App. 2000) (owner was not a mechanic and failed to qualify as an expert; thus, owner was unqualified to express his opinion on the repairs).

Here is the good news:  “If … the owner has lost the vehicle’s use for a period of time, … he is entitled to the value of the use of the property during this period.  [A] precise and easily defined measure for loss of use of a commercial vehicle is the rental or usable value of the property during the period the owner has been deprived of it. …. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered, even though no other was actually procured during the interval.”  Nat’l Dairy Products Corp. v. Jumper, 241 Miss. 339, 343-44, 130 So. 2d 922, 922 (1961).

Written by Brian Montague

Brian Montague

A fourth generation Hattiesburg native, an Iraq and military veteran, and a 1983 graduate of the University of Mississippi Law School, Brian Montague has established an AV rated, well-respected neighborhood law practice focusing on trying cases in state and federal court, corporate and transactional work, insurance defense and coverage, personal injury and wrongful death, residential construction and development issues, and estate probate and administration.