WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 1 Last Updated 1/13/22
MATTHIESEN, WICKERT & LEHRER, S.C.
Hartford, WI ❖ New Orleans, LA ❖ Orange County, CA
❖ Austin, TX ❖ Jacksonville, FL ❖ Boston, MA
Phone: (800) 637-9176
[email protected]
www.mwl-law.com
LOSS OF USE IN ALL 50 STATES
Recovery of loss of use is a key element of automobile property subrogation. States differ as to whether and when a vehicle owner is allowed to recover the value of loss
of use of a vehicle as an element of damage from a responsible tortfeasor during the period of time the vehicle is being repaired or replaced. This is known as third-party
loss of use damages. Loss of use may refer to the inability to use a vehicle, living quarters, business facility, or equipment due to damage caused by the negligence of a
third party. However, where automobile insurance is involved, we are usually talking about vehicle damages in a collision, and loss of use would be the amount claimed
for the reasonable rental value of another vehicle during the period of time a vehicle is being repaired, or in some instances, a new vehicle being purchased. This period
of time must usually be “reasonable,” meaning the damages will be limited to a period in which it would reasonably take to have the vehicle repaired. This chart covers
the ability of a vehicle owner (or a subrogated carrier) to seek recovery of damages for third-party loss of use.
First-Party Loss of Use
This chart doesn’t address or discuss the ability of a person to make a claim for loss of use payments from an automobile insurance policy. First-party loss of use claims
involve an insured making a direct claim against his or her automobile insurer following a collision, even if someone else was responsible for the collision. First-party loss
of use calculations and formulas vary from state to state. First-party loss of use claims are sometimes determined by a three-part formula that calculates the number of
days the vehicle was out of service multiplied by the daily rental rate of a similar property.
1. One day is equal to four labor hours, representing the average number of hours that a vehicle is worked on per day.
2. Two weekend days are added for every five repair days, assuming every repair begins on a Monday to allow for the fewest weekends possible.
3. Three administrative days are allowed to obtain an estimate, take the vehicle to the shop, and retrieve the vehicle.
For example, if the estimate requires 26 labor hours, then the formula works as follows: 26 labor hours divided by 4 = 6.5; add 2 weekend days = 8.5; add 3 administrative
days = 11.5; multiply 11.5 by a daily rental rate $100.00 = a loss of use charge of $1,150.00. A third-party loss of use claim is different.
Third-Party Loss of Use
When a third-party tortfeasor negligently or intentionally causes damages to a vehicle, the owner usually has a right to sue that person or entity to recover for the
physical damage to his or her vehicle. In most states, the owner also has the right to recover damages in tort for “loss of use” of the damaged vehicle. The calculation of
loss of use damages will depend on the state. However, some states have said that damages for loss of use of a vehicle may be measured by: (1) lost profit; (2) cost of
renting a substitute chattel; (3) rental value of the plaintiff’s own chattel; or (4) interest. Straka Trucking, Inc. v. Estate of Peterson, 989 P.2d 1181 (Wash. App. 1999).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 2 Last Updated 1/13/22
States such as Texas provide that a person whose vehicle is totally destroyed may only recover the value of the lost vehicle, while a person whose vehicle is repaired may
also recover the loss of use of the vehicle. Such states may allow the plaintiff to prove damages for loss of use of a repairable car by establishing the reasonable rental
value of a substitute car for the time reasonably required to repair or replace it.
Third-party (liability) claims for loss of use also vary and depend greatly on state law. Some states have not set forth rules, formulas, or calculations to be used in awarding
damages, but simply require that they be causally related to the negligence of the third-party tortfeasor.
Rental Car Company and Fleet Loss of Use
Many states have special rules and laws governing the recovery of loss of use by a rental car company or fleet operator. For example, California provides that where a
waiver loss is signed, loss of use is not recoverable from a renter or authorized driver. Where there is no damage waiver signed (and the terms of the waiver may alter
this), California statutes provide that:
A claim against a renter resulting from damage or loss, excluding loss of use, to a rental vehicle shall be reasonably and rationally related to the actual loss
incurred. A rental company shall mitigate damages where possible and shall not assert or collect a claim for physical damage which exceeds the actual costs of
the repairs performed or the estimated cost of repairs, if the rental company chooses not to repair the vehicle, including all discounts and price reductions.
However, if the vehicle is a total loss vehicle, the claim shall not exceed the total loss vehicle value established in accordance with procedures that are customarily
used by insurance companies when paying claims on total loss vehicles, less the proceeds from salvaging the vehicle, if those proceeds are retained by the rental
company. Cal. Civil Code § 1939.07(a)
However, it may be recovered from third parties who cause damage to rental vehicles. This is true even though the rental car company has other vehicles available for
rent. Cal. Civil Code §§ 1939.07 and 1939.09. When there is a third-party recovery (subrogation) by the rental car company, § 1939(c) provides that “A rental company
shall not recover from an authorized driver for an item described in § 1939.03 (“Agreement for renter responsibility”) to the extent the rental company obtains recovery
from another person.” Loss of use of property is different from loss of property. For instance, assume that a vehicle is stolen from its owner. The value of the loss of use
of the car is the rental value of a substitute vehicle; the value of the loss of the vehicle is its replacement cost. The nature of loss of use damages is described in California
law as: “The measure of damages for the loss of use of personal property may be determined with reference to the rental value of similar property which the plaintiff
can hire for use during the period when he is deprived of the use of his own property.” Collin v. American Empire Ins. Co., 21 Cal.App.4
th
787 (Cal. App. 1994).
At the same time, many states have not addressed any special rules or limitations for the recovery of third-party loss of use damages by a car rental company or fleet
operator. Wisconsin law does not allow a car rental company to collect for loss of use, administrative fees, or any other charges not specifically permitted by the statute,
or any amounts already collected from a renter or authorized driver. Wis. Stat. Ann. § 344.574. It does allow recovery of such damages from a third party. In some states,
such as Tennessee, case law rather than statutory law provides the answer. In Tennessee, case law allows for recovery of third-party loss of use damages by a car rental
company when a rental vehicle is damaged, for the period of time necessary for the vehicle to be repaired. Tire Shredders v. ERM, 15 S.W.3d 849 (Tenn. 1999).
The following chart does not cover or discuss loss of use damages recoverable by a rental car company or fleet operator, although such rights of recovery are sometimes
subsumed within a state’s laws regarding recovery of damages for “lost profits.”
Calculating Loss of Use
Some states have established formulas, calculations, and/or rules with regard to calculating reasonable loss of use damage claims; others do not. Some states limit loss
of use damages by declaring that they cannot exceed the value of the vehicle; others have no limit at all. Georgia, for example, allows loss of use damage for the time
the insured was deprived of the use of the vehicle. Atlanta Furniture Co. v. Walker, 181 S.E. 498 (Ga. 1935). In Indiana, loss of use is calculated by a vehicle’s rental value
– if the property does not have a rental value, loss of use is calculated by the value of its use to the injured party for the time he was deprived of its use. Weddle v. I.R.C.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 3 Last Updated 1/13/22
& D Warehouse Corp., 85 N.E.2d 501 (Ind. App. 1949). In Kansas, loss of use is limited to the period reasonably necessary to complete the repairs (when feasible), but in
any case, the amount recovered may not exceed the value of the vehicle before the injury. Venable v. Imperial Volkswagen, Inc. 519 P.2d 667 (Kan. 1974). Some states—
like Texas in Balderas-Ramirez v. Felder (Tex. App. 2017), rev. denied (Apr. 6, 2018)—require that the loss of use damages be “reasonable.” Other states have no such
requirement.
Loss of Profits
A vehicle owner who uses a vehicle in the production of income is sometimes entitled to a claim for profits lost when the vehicle is unavailable during a reasonable period
for repair or replacement as a result of tortious destruction or damage. The claim may be that inability to use the chattel reduced the plaintiff’s income or that it increased
his expenses, either way reducing his net profit, which is recoverable if the proof is adequate. Straka Trucking, Inc. v. Estate of Peterson. 989 P.2d 1181 (1999). Some
states do not allow for recovery of lost profits. Still others allow it as long as the evidence provides some reasonable basis for estimating the amount of lost profits. Pac.
Office Automation, Inc. v. Duran, 2017 WL 629245 (Ariz. App. 2017); Maryland Cas. Co. v. Fla. Produce Distributors, Inc., 498 So.2d 1383 (Fla. App. 1986).
If you have any questions or would like to discuss recovery of loss of use damages, please contact Ashton Kirsch at [email protected].
STATE
LOSS OF USE
LOST PROFITS
ALABAMA
Yes. Loss of use (reasonable value of use or rental car) is
recoverable while owner is deprived of the vehicle’s use. Hunt v.
Ward, 262 Ala. 379, 79 So.2d 20 (1955). Loss of use recoverable
regardless of whether the vehicle is repairable or not. Ex parte S &
M, LLC, 120 So.3d 509 (Ala. 2012).
Owner of vehicle that has been totally destroyed may recover loss
of use damages in addition to the fair market value of the vehicle
prior to accident. Id.
No case law information regarding whether rental vehicle must
actually be rented in order to use a rental vehicle as a loss of use
calculation.
No. Lost profits damages not recoverable for a period of
time a commercial vehicle is out of commission for
repairs. Wilson and Co. v. Sims, 34 So.2d 689 (Ala. 1948);
L & N R.R. v. Bond Transfer & Storage Co., Inc., 190 So.2d
696 (Ala. 1966); Merrill v. Badgett, 385 So.2d 1316 (Ala.
App. 1980).
An award for lost profits is allowed in certain
circumstances such as when no substitute commercial
vehicle can be reasonably obtained while plaintiff’s
vehicle is being repaired. S & M, LLC v. Burchel, 120 So.3d
505 (Ala. Civ. App. 2012). However, upon Supreme Court
of Alabama’s review, the recoverability of lost profits
wasn’t discussed. Ex parte S & M, LLC, supra.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 4 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
ALASKA
Yes. Loss of use damages are recoverable for the reasonable period
of time required to make repairs to the damaged vehicle. No
distinction between cases in which the property is totally
destroyed or repairable. Burgess Const. Co. v. Hancock, 514 P.2d
236 (Alaska 1973).
Rental value of the damaged vehicle is a permissible standard to
measure loss of use, if applicable. Id.
No case law information regarding whether a rental vehicle must
actually be rented in order to use a rental value as a loss of use
calculation.
Loss of use is also recoverable when the vehicle is destroyed and is
not able to be repaired – this is calculated by a reasonable view of
the time it takes to replace the destroyed vehicle. Alaska Const.
Equip., Inc. v. Star Trucking, Inc., 128 P.3d 164, 169 (Alaska 2006).
Possibly. Alaska courts have noted informally that there
are four methods of measuring loss of use (lost profit, cost
of renting substitute chattel, rental value of the plaintiff’s
own chattel, or interest) and any of them may be used in
order to most accurately compensate the plaintiff. Alaska
Const. Equip., Inc. v. Star Trucking, Inc., supra.
ARIZONA
Yes. Loss of use is recoverable. Farmers Ins. Co. v. R.B.L. Inv. Co.,
675 P.2d 1381, (1983).
Arizona courts have not set a standard for calculation of loss of use
damages, but follows the Restatement of Torts. Aztlan Lodge No. 1
v. Ruffner, 155 Ariz. 163, 745 P.2d 611 (1987); City of Phoenix v.
Bellamy, 153 Ariz. 363, 366, 736 P.2d 1178 (App. 1987), which uses
rental value to calculate loss of use damages. R.B.L. at 1384. Case
law tends to support that reasonable evidence of rental value
alone would be sufficient without actual vehicle rental.
No Arizona case specifically speaks on loss of use for total loss
vehicles. In lieu of Arizona case law, the Restatement allows loss of
use when vehicle is a total loss. Restatement (First) of Torts § 927
(Comment on Claus (b)).
Yes. As long as the evidence provides some reasonable
basis for estimating the amount of lost profits. Gilmore v.
Cohen, 95 Ariz. 34, 386 P.2d 81 (1963); Martin v. LaFon,
100 P.2d 182 (1940); Hercules Drayage Co. v. Chanco
Leasing Corp., 540 P.2d 724, 727 (Ariz. App. 1975); Pac.
Office Automation, Inc. v. Duran, 2017 WL 629245 (Ariz.
App. 2017).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 5 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
ARKANSAS
Yes. Loss of use is recoverable and can be determined by:
1) The rental value or the amount which could have been
realized by renting out the article during the period;
2) The cost of hiring a substitute; or
3) The ordinary profits that could have been made from the use
of the vehicle.
Sharp v. Great S. Coaches, Inc., 510 S.W.2d 266, 267 (Ark. 1974).
No direct authority exists as to business vehicles regarding whether
a substitute must actually be rented. Arkansas does recognize that
other states allow for this measure without actual rental, however,
this may demonstrate a trend to do so in Arkansas as well. Stevens
v. Mid-Continent Investments, Inc., 517 S.W.2d 208, 209 (Ark.
1974).
Loss of use damages are not limited to vehicles which are only
partially damaged, nor does the statute exclude recovery when a
vehicle is totally destroyed. In the event of a totally destroyed
vehicle, courts will apply the measure of loss of use to be the prior
and subsequent value following the accident. Fryar v. Sanders, 784
S.W.2d 168, 170 (Ark. 1990).
Yes. Ordinary profits that could have been realized is an
option to recover loss of use. Sharp v. Great S. Coaches,
Inc., supra.
CALIFORNIA
Yes. Loss of use is calculated by referencing the rental value of
similar property which the plaintiff can hire for use during the
period when he is deprived of the use of his own property. 23 Cal.
Jur.3d, Damages, § 69, pp. 129-130; Collin v. Am. Empire Ins. Co.,
21 Cal.App.4
th
787, 818, (Cal. App. 1994).
A substitute vehicle doesn’t actually need to be rented in order to
use rental value as a measure of loss of use. Malinson v. Black, 188
P.2d 788 (Cal. App. 1948).
Upon proper pleading and proof, loss of use of a totally destroyed
commercial vehicle may be recoverable in order to compensate for
all detriment proximately caused by the wrongful destruction.
Reynolds v. Bank of Am. Nat’l T. & S. Ass’n, 345 P.2d 926, 928 (Cal.
1959) (Airplane).
Yes. As long as it does not result in a double recovery and
can be proven with testimony. If full profits are recovered,
that includes compensation for loss of use. If evidence of
lost profits is not available, loss of use may be shown by
what it would have cost to rent comparable equipment.
Tremeroli v. Austin Trailer Equip. Co., 102 Cal.App.2d 464,
483 (Cal. App. 1951).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 6 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
COLORADO
Yes. An owner may recover for the loss of use of a vehicle for the
length of time reasonably needed for repair, even if the property is
not actually repaired (as long as the time needed is reasonably
proven). Airborne, Inc. v. Denver Air Ctr., Inc., 832 P.2d 1086, 1089
(Colo. App. 1992).
A vehicle need not actually be rented to use rental value as loss of
use value. Cf. Francis v. Steve Johnson Pontiac–GMC–Jeep, Inc., 724
P.2d 84 (Colo. App. 1986).
There is no caselaw expressly disallowing recovery for loss of use
on a total loss claim. Accordingly, there is a strong argument that
such a claim can be sustained.
Yes. Loss profit damages may be calculated by the
reasonable rental value of a chattel or alternatively, net
lost profits that could have been earned by using the
chattel. Plaintiff may elect which measure of recovery to
pursue to make them whole. Koenig v. PurCo Fleet
Services, Inc., 285 P.3d 979 (Colo. 2012).
CONNECTICUT
Yes. Loss of use is considered an element of property damage
(“property damage means injury to or destruction of tangible
property, including loss of use thereof”). Conn. Agencies Regs. §
38a-334-2. However, “rental value will not furnish the measure of
damages for loss of use of an automobile. For the rental value of
an automobile includes necessarily a substantial sum for wear and
tear and depreciation. No definite general rule can be laid down
except that the award by verdict or judgment should be for fair and
reasonable compensation, according to the circumstances of each
case.” Hawkins v. Garford Trucking Co., 114 A. 94, 95 (Conn. 1921),
citing Cook v. Packard Motor Car Co. of New York, 92 A. 413 (Conn.
1914).
Rental value is not a generally accepted measure of loss of use,
though actual expenditure (from actual rental) may be used as a
persuasive value of loss of use. Hansen v. Costello, 5 A.2d 880
(1939).
There is no caselaw expressly disallowing recovery for loss of use
on a total loss claim. Accordingly, there is a strong argument that
such a claim can be sustained.
No authority beyond precedent to look at each case
individually.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 7 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
DELAWARE
Yes. Based on 21 Del. C. § 2118(a)(4), which includes “loss of use of
the motor vehicle” as compensation for damages to the motor
vehicle. However, no published case law authority exists for this
contention, and courts often look to the liability policy for any
language regarding loss of use.
Loss of use is currently recoverable when damages are proved by
the depreciated market value of the vehicle; therefore, rental
value of a substitute vehicle is not currently applicable in Delaware.
Teitsworth v. Kempski, 127 A.2d 237, 238 (Del. 1956). However,
unpublished case law exists in Delaware holding that failure to
actually procure a replacement vehicle does not preclude recovery
for loss of use. The case law cites to several other jurisdictions for
this support, so a strong argument may be made in Delaware, in
the absence of published authority, that rental value may be used
as a measure of damages without the vehicle actually being rented.
There is no caselaw expressly disallowing recovery for loss of use
on a total loss claim. Accordingly, there is a strong argument that
such a claim can be sustained, especially with favorable policy
language.
No applicable authority exists for recovery of lost
revenue/profits as a measure of loss of use.
DISTRICT OF
COLUMBIA
Yes. Loss of use is calculated by the time needed for repairs and is
accepted in the absence of any evidence to show the time claimed
is unreasonable or unusual. Brooks Transp. Co. v. McCutcheon, 154
F.2d 841, 843 (D.C. Cir. 1946). Vehicle owner’s recovery for loss of
use must be limited to a period of time reasonably necessary to
repair or replace the car. Gamble v. Smith, 386 A.2d 692 (D.C. App.
1978).
Rental value is not the measure of loss of use value, but it may be
used as evidence of loss of use and actual rental is not required.
Brandon v. Capital Transit Co., 71 A.2d 621 (D.C. 1950).
For commercial vehicles, loss of use is allowed during the time
reasonable required to obtain a suitable replacement vehicle.
Gamble v. Smith, supra.
No applicable authority exists for recovery of lost
revenue/profits as a measure of loss of use.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 8 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
FLORIDA
Yes. Florida courts have noted that the Restatement (Second) of
Torts loss of use provision applies to tort actions involving a
damaged motor vehicle so as to include a separate claim for loss of
use damages. Damages may amount to the reasonable rental value
of a substitute vehicle during repairs, regardless of whether a
rental vehicle was actually obtained or whether the vehicle is a
pleasure automobile. Meakin v. Dreier, 209 So.2d 252 (Fla.2d Dist.
1968); Alonso v. Fernandez, 379 So.2d 685, 687 (Fla. App. 1980).
Loss of use damages are only available when an owner suffers a
complete deprivation of their property, which includes time for
repair when the property cannot be used. AT & T Corp. v. Lanzo
Const. Co., 74 F.Supp.2d 1223 (S.D. Fla. 1999).
Loss of use recovery does not require actual rental of another
vehicle. Meakin v Dreier, supra.
Courts have determined that loss of use special damages may be
awarded in the event of a total loss. Wajay Bakery, Inc. v Carolina
Freight Carriers Corp., 177 So.2d 544 (Fla. App. 1965).
No. When the measure of damages involves the loss of
use of property used in a business, “profits” allegedly lost
because of the loss of use of the property is a concept
subject to too many variables to be properly used as a
measure of the value of loss of use of the property and
the best evidence of lost use value of property is the
actual or theoretical reasonable rental value of similar
property. Maryland Cas. Co. v. Fla. Produce Distributors,
Inc., 498 So.2d 1383 (Fla. Dist. Ct. App. 1986).
GEORGIA
Yes. Recovery for loss of use of the insured vehicle (the time
insured was deprived of its use) is appropriate. Atlanta Furniture
Co. v. Walker, 181 S.E. 498 (Ga. 1935).
However, “the difference in ascertainment of damages as between
a total loss and a repairable vehicle serves to provide fair,
reasonable, and adequate compensation for the [damage] inflicted
in that the maximum recovery for a repairable automobile
including loss of use may not exceed [the fair market] value before
the [damage].” (Emphasis supplied.) Firestone Tire, etc., Co. v.
Jackson Transp. Co., 191 S.E.2d 110 (Ga. 1972); Boral Bricks, Inc. v.
Old S. Transp. Mgmt., Inc., 402 S.E.2d 777, 777–78 (Ga. App. 1991).
While hire of a substitute vehicle is an acceptable value of property
damage claimed, courts have not illustrated whether that vehicle
must actually be hired. Archer v. Monroe, 302 S.E.2d 583, 585 (Ga.
App. 1983).
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. Boral
Bricks, Inc. v. Old South Transp. Management, Inc., supra.
Yes. If there is a reasonably accurate calculation.
Lost profits of a commercial venture are not recoverable
if they are too speculative, remote, and uncertain.
However, lost profits are capable of recovery if a business
can perform a “reasonably accurate computation.”
Businesses with clearly defined experience as to profit
and loss will generally be able to accurately compute their
lost profits, while a new business will not, due to a lack of
such a track record. Molly Pitcher Canning Co. v. Cent. of
Ga. Ry. Co., 253 S.E.2d 392 (Ga. App. 1979).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 9 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
HAWAII
Yes. Loss of use is calculated by the cost of a replacement vehicle,
but the insured is not required to actually rent the vehicle. Fukida
v. Hon/Hawaii Serv. & Repair, 33 P.3d 204 (Haw. 2001). When the
vehicle is totaled, the owner may recover for the loss of use for the
period of time reasonably necessary for securing a replacement.
United Truck Rental Equip. Leasing, Inc. v Kleenco Corp., 929 P.2d
99 (Haw. App. 1996).
A substitute vehicle need not actually be rented. Fukida v
Hon/Hawaii Serv. & Repair, supra.
Damages for loss of use may also be recovered when the vehicle is
totally destroyed, since economic loss to the owner for the loss of
use is the same. United Truck Rental Equip. Leasing, Inc. v. Kleenco
Corp., supra. (Damages are generally limited to period of time
reasonably necessary to obtain a replacement). Ludlow v. Lowe’s
Companies, Inc., No. 12-00476 KSC, 2014 WL 12580233, at *8 (D.
Haw. Jan. 17, 2014), aff’d sub nom., Ludlow v. Lowe's Home
Centers, LLC, 713 F. App’x 673 (9th Cir. 2018).
Loss of use may also be calculated by lost profits, but the
replacement cost and lost profits are mutually exclusive
methods of calculation and both cannot be recovered.
Loss of profits [are] measured by the amount of profit that
a plaintiff could prove would have been generated had
the plaintiff not been deprived of the use of the property,
less the amount of profit actually generated during the
deprivation. Loss of use, on the other hand, is the loss of
an incident of ownership-the right to use. American Tel. &
Tel. Co. v. Connecticut Light & Power Co., 470 F.Supp. 105,
108 (Haw. 1979); United Truck Rental Equip. Leasing, Inc.
v. Kleenco Corp., supra.
IDAHO
Yes. Collision damage may be calculated by:
1) Replacement (recovery of the difference in the vehicle’s
value before and after the accident, plus damages for loss of
use).
2) Repair (recovery of the reasonable cost of necessary repairs,
including interest if borrowing is necessary, diminished
value after the repairs, and damages for loss of use).
Spreader Specialists, Inc. v. Monroc, Inc., 752 P.2d 617 (Idaho App.
1987), overruled on other grounds by Walton, Inc. v. Jensen, 979
P.2d 118 (Idaho App. 1999).
Rental value is not a measure of loss of use in Idaho, so whether a
rental vehicle was actually procured is not relevant here.
Loss of use does not appear to be recoverable for completely
destroyed vehicles; the measure of damages for totally destroyed
property is the value of the property at the time and place of its
destruction. Skaggs Drug Centers, Inc. v. City of Idaho Falls, 407
P.2d 695, 699 (1965).
Loss of use calculation, including the ability to recover lost
profits, is not further supported by case law or statute but
for any calculation, reasonable evidence must be
presented to support it.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 10 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
ILLINOIS
Yes. Individuals may recover for:
1) reasonable cost of repairs, as long as the cost of repairs does
not exceed the diminution in the value of the vehicle
resulting from the collision and without repairs having been
made;
2) diminution in the value of the car even after the repairs; and
3) loss of use of the car for the time reasonably necessary for
the repairs to be made. Loss of use is calculated by the rental
value of another vehicle, regardless of whether another
vehicle is actually rented.
Fairchild v. Keene, 416 N.E.2d 748, 749 (Ill. App. 1981).
Actual rental of a substitute vehicle is not required, as long as
credible testimony of the value is available. Welter v. Schell, 252 Ill.
App. 586, 589 (Ill. App. Ct. 1929).
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. Latham
v. Cleveland, C. C. & St. L. R. Co., 164 Ill. App. 559 (Ill. App. 1911).
Yes. With commercial vehicles, if feasible to rent a
replacement vehicle while the commercial vehicle is
undergoing repairs, the cost of renting a replacement is a
reasonable measure of damages. However, net profits
loss is an appropriate alternative measure of damages for
loss of use of vehicle while undergoing repairs. The
determination of net profits lost should be based on
either normal income which would be necessarily lost
over a similar period if the vehicle was unavailable or on
the business which vehicle owner in fact lost due to loss
of use of the vehicle during that period of time, deducting
from either of such measures the cost of operating the
vehicle over that period of time. Plesniak v. Wiegand, 335
N.E.2d 131, 139 (Ill. App. 1975).
INDIANA
Yes. Loss of use is calculated by a vehicle’s rental value – if the
property does not have a rental value, loss of use is calculated by
the value of its use to the injured party for the time he was
deprived of its use. Weddle v. I.R.C. & D Warehouse Corp., 85
N.E.2d 501 (Ind. App. 1949).
No case law requiring that a vehicle actually be rented in order to
determine the rental value of a replacement. Weddle v. I.R.C. & D.
Warehouse Corp., supra.
When reviewing for loss of use damages, courts see no distinction
between repairable or unrepairable damage, as the property
owners in both cases have lost the same thing, use of the property.
However, owners must make an attempt to mitigate their damages
and recovery will be limited to the reasonable time necessary to
replace the property. New York Cent. R. Co. v. Churchill, 218 N.E.2d
372 (Ind. App. 1966).
There is no authority to apply the measure of lost profits
to loss of use in the automobile arena. However,
generally, “[w]here loss of use of real property involves a
known and established business the value of such loss of
use of property may be determined from loss of profits, if
profits can be shown with reasonable certainty.” Maddox
v. Yocum, 52 N.E.2d 636 (Ind. App. 1944).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 11 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
IOWA
Yes. Iowa courts have included recovery for loss of use in several
situations:
1) When the vehicle is totally destroyed, or the reasonable cost
of repair exceeds the difference in reasonable market value
before and after the injury, the measure of damages is the lost
market value plus the reasonable value of the use of the
vehicle for the time reasonably required to obtain a
replacement.
2) When the injury to the motor vehicle can be repaired so that,
when repaired, it will be in as good condition as it was in before
the injury, and the cost of repair does not exceed the
difference in market value of the vehicle before and after the
injury, then the measure of damages is the reasonable cost of
repair plus the reasonable value of the use of the vehicle for
the time reasonably required to complete its repair.
3) When the vehicle cannot by repair be placed in as good
condition as it was in before the injury, then the measure of
damages is the difference between its reasonable market
value before and after the injury, plus the reasonable value of
the use of the vehicle for the time reasonably required to
repair or replace it.
Long v. McAllister, 319 N.W.2d 256, 261 (Iowa 1982).
Rental value is not a generally accepted measure of loss of use in
Iowa, so whether a rental vehicle was actually procured is not
relevant here.
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. Pfingsten
v. Westenhaver, 244 P.2d 395 (Cal. 1952) (California case governing
Iowa law).
When there is evidence of rental value, that is the proper
measure of the loss of use, not the loss of profits for a
given period. Knaus Truck Lines v. Commercial Freight
Lines, 29 N.W.2d 204, 210 (Iowa 1947).
There is no authority for the measure of damages for loss
of use when the rental figure is not available.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 12 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
KANSAS
Yes. Loss of use is limited to the period reasonably necessary to
complete the repairs (when feasible), but in any case, the amount
recovered may not exceed the value of the vehicle before the
injury. Venable v. Imperial Volkswagen, Inc. 519 P.2d 667 (Kan.
1974).
Damages for loss of use of a motor vehicle may be measured by
the cost of renting a substitute vehicle while repairs are being
made. 8 Am. Jur.2d, Automobiles and Highway Traffic § 1047, p.
608; Nelson v. Hy-Grade Construction & Materials, Inc., 527 P.2d
1059 (Kan. 1974).
Property owner need not actually rent a substitute vehicle to use
the value as a measure of loss of use. Warren v. Heartland Auto.
Services, Inc., 144 P.3d 73 (Kan. App. 2006).
Generally, loss of use damages not available on totally destroyed
vehicles; however, courts have found that some special
circumstances may exist where recovery is available for loss of use,
such as when the vehicle was specially constructed for the
performance of a particular service and a substitute vehicle is not
available. Peterson v. Bachar, 392 P.2d 853 (Kan. 1964). Therefore,
in the absence of additional authority, loss of use should be
pursued even on completely destroyed vehicles.
Yes. Loss of profits from earnings or the use of the vehicle
may be allowed as an element of damages for the
complete demolition of the vehicle if they are not too
speculative…but it must be shown that the owner could
not obtain a suitable substitute vehicle, or that there was
a loss of time in their ability to obtain a substitute vehicle.
Peterson v. Bachar, supra.
KENTUCKY
Yes. Pursuant to K.R.S. § 304.39-115, “loss of use of a motor
vehicle, regardless of the type of use, shall be recognized as an
element of damage in any property damage liability claim. Such a
claim for loss of use of a motor vehicle shall be limited to
reasonable and necessary expenses for the time necessary to
repair or replace the motor vehicle.” Direct evidence of reasonable
and necessary expenses (such as substitute vehicle rental costs) is
required. In re Greyhound Lines Trial Grp., No. CV 05-239, 2008 WL
11343421, at *3 (E.D. Ky. Oct. 22, 2008).
Evidence of a rental vehicle value is sufficient, and the failure of an
owner to hire another vehicle during the process of repair does not
preclude loss of use recovery. Pope’s Admr. V. Terrill, 214 S.W.2d
276 (Ky. 1948).
Whether vehicle is partially or totally destroyed is unimportant for
loss of use damages. Daniel v. Kerby, 420 S.W.2d 393 (Ky. 1967).
No support for lost profits as a measure of loss of use.
“The legislature’s inclusion of the word ‘necessary’ makes
sense given that one purpose of the statute was to allow
loss of use compensation where the vehicle had been
damaged beyond repair, thereby necessitating
replacement.” Am. Premier Ins., 159 S.W.3d at 348 (Ky.
2004). “Had the legislature intended otherwise, it easily
could have omitted the word ‘necessary’….[t]herefore,
because the plain language requires that any loss of use
expense be ‘necessary.’” State Farm Mut. Auto. Ins. Co. v.
Norcold, Inc., 143 F. Supp.3d 586, 591 (E.D. Ky. 2015),
aff’d, 849 F.3d 328 (6th Cir. 2017).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 13 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
LOUISIANA
Yes. Loss of use may be recovered for the period necessary for the
vehicle to be repaired. Romco, Inc. v. Broussard, 528 So.2d 1309
(La. App. 1988) writ denied, 533 So.2d 356 (La. 1988). Damages for
loss of use are measured by the rental cost of a substitute vehicle.
Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La.
1977).
Loss of use value recoverable, even though no substitute vehicle is
rented. Guidry v. Covington, 225 So.2d 311 (La. App. 1969).
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. Skinner v.
Scott, 116 So.2d 696 (La. 1959). However, it may be possible to
recover loss of use for the time needed to determine whether
repairs are possible. Alexander v. Liberty Mut. Ins. Co., 341 So.2d
1273 (La. 1977).
No case law or statutory support for lost profits as a
measure of loss of use damages.
MAINE
Yes. However, damages are limited to rental costs of a replacement
vehicle, and for a reasonable amount of time (case law supports 30
days for a commercial vehicle). 14 M.S.R.A. § 1454; Flynn Const. Co.
v. Poulin, 570 A.2d 1200 (Me. 1990).
No case law information regarding whether a rental vehicle must
actually be rented in order to use a rental value as a loss of use
calculation.
Reasonable rental costs for loss of use are recoverable even on
destroyed vehicles. Flynn Const. Co. v. Poulin, supra.
No case law or statutory support for lost profits as a
measure of loss of use damages.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 14 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
MARYLAND
Yes. A measure of damages may include a reasonable allowance
for loss of use of the vehicle. Taylor v. King, 213 A.2d 504 (Md.
1965). “Damages are supposed to compensate the injured person
for the wrong which has been done him.” Restatement, Torts, §
910. “If his loss is greater than the market value of the chattel at
the time of its destruction, an owner should, on principle, be
allowed additional items which will adequately compensate him
unless some of those claimed items are so speculative as to create
danger of injustice to the defendant.” Weishaar v. Canestrale, 217
A.2d 525, 530-31 (Md. App. 1966).
No case law information regarding whether a rental vehicle must
actually be rented in order to use a rental value as a loss of use
calculation.
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. Barnes v.
United R. & Electric Co., 116 A. 855 (Md. 1922).
No case law or statutory support for lost profits as a
measure of loss of use damages. However, Maryland does
acknowledge that economic loss includes the loss of
profits resulting from loss of use, which may be
persuasive. Village of Cross Keys, Inc. v. Gypsum, 556 A.2d
1126 (Md. 1989); A.J. Decoster Co. v. Westinghouse, 634
A.2d 1330, 1332 (Md. 1994); Lloyd v. Gen. Motors Corp.,
916 A.2d 257, 291 (Md. 2007).
MASSACHUSETTS
Yes. “The loss of use of the automobile during the period of repair
is as much the natural and necessary consequence of the tortious
act of the defendant described in the declaration as is the cost of
the repair. It is as plainly as is the loss of time of an individual arising
from personal injuries, or the loss of use of any chattel arising from
wrongful act… the fair value of the loss of use of the plaintiff's
automobile while being repaired was the hire paid for the one to
take its place” Antokol v. Barber, 143 N.E. 350, 352 (Mass. 1924).
Recovery for loss of use must be limited to the time reasonably
necessary to make repairs – owners of a commercial vehicle must
take reasonable action to limit or mitigate damages. Urico v.
Parnell Oil Co., 552 F. Supp. 499 (D. Mass. 1982), aff’d, 708 F.2d 852
(1st Cir. 1983) (applying Massachusetts law).
Measure of the amount to rent a substitute vehicle as loss of use is
not allowed. Antokol v Barber, supra.
No caselaw expressly disallowing recovery for loss of use on a total
loss claim. Accordingly, there is a strong argument that such a claim
can be sustained, especially with favorable policy language.
There is no direct support for lost profits as a measure of
loss of use; however, the same is not strictly barred. “A
plaintiff may be entitled to loss of use damages extending
beyond the time actually necessary to make repairs,
depending on the reasonableness of his efforts to
minimize his damages. This, in turn, depends on a number
of factual circumstances, including the financial situation
of the plaintiff, the cause of the plaintiff’s inability to
minimize his loss, the role played by the defendant in
contributing to the difficulty in which the plaintiff finds
himself at the time mitigation would be required, and the
relative ability of both parties to prevent the aggravated
loss.” Urico v. Parnell Oil Co., supra.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 15 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
MICHIGAN
Yes. The plaintiff may present the reasonable value of the use of
their car while it is being repaired. Andries v. Everitt, Metzger,
Flanders Co., 142 N.W. 1067 (Mich. 1913). No other guidance is
provided on how to calculate loss of use damages.
No case law information regarding whether a rental vehicle must
actually be rented in order to use a rental value as a loss of use
calculation.
There is no case law expressly disallowing recovery for loss of use
on a total loss claim. Accordingly, there is a strong argument that
such a claim can be sustained, especially with favorable policy
language.
No case law or statutory support for lost profits as a
measure of loss of use damages.
MINNESOTA
Yes. “When one asks damages for loss of use, or for rental value,
he must show the value, which includes the question of the time
reasonably necessary to make the needed repairs.” Allen v. Brown,
198 N.W. 137, 137 (Minn. 1924).
The measure of damages suffered as the result of harm to a
commercial vehicle includes the reasonable value of the benefit
which would have been derived from its use during the period it
was undergoing repairs. Hanson v. Hall, 279 N.W. 227, 230 (Minn.
1938). Rental value is not a generally accepted measure of loss of
use in Minnesota, so whether a rental vehicle was actually
procured is not relevant here.
Loss of use recoverable even no substitute rental vehicle was
obtained. Trout Auto Livery Co. v. People’s Gas Light & Coke Co.,
168 Ill. App. 56, 60 (Ill. App. Ct. 1912).
Loss of use is appropriate even when the vehicle is destroyed,
along with the difference in reasonable market value immediately
before and after the incident. Kopischke v. Chicago, St. P.M. & O.R.
Co., 40 N.W.2d 834 (Minn. 1950).
Yes. Generally, to recover for loss of use it must be shown
that a substitute vehicle could not be hired. If the vehicle
cannot be replaced while it is being repaired, the measure
of the value of use of a commercial vehicle is determined
by the income derived from its use at the time of the tort.
Longworth v. McGrath, 738, 143 A. 845 (Conn. 1928);
Trout Auto Livery Co. v. People’s Gas Light & Coke Co.,
supra.; Cincinnati Traction Co. v. Feldkamp, 19 Ohio App.
421 (1924); Hanson v. Hall, supra.
“Lost profits, provided they are foreseeable by the seller,
are clearly recoverable under § 336.2-714(3), and were
long recognized as a form of compensable damage prior
to adoption of the Uniform Commercial Code.” Bemidji
Sales Barn, Inc. v. Chatfield, 250 N.W.2d 185, 188 (Minn.
1977).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 16 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
MISSISSIPPI
Yes. Loss of use of a repairable vehicle is measured by the
reasonable rental value of a similar unit. National Dairy Products
Corp. v. Jumper, 130 So.2d 922 (Miss. 1961).
Reasonable value of replacement vehicle may be recovered even
though no other vehicle was actually obtained. Pelican Trucking Co.
v. Rossetti, 170 So.2d 573 (Miss. 1965).
No caselaw expressly disallowing recovery for loss of use on a total
loss claim. Accordingly, there is a strong argument that such a claim
can be sustained, especially with favorable policy language.
Yes. While damages for loss of use of a vehicle should
normally be measured by the cost of hiring another
vehicle, if the owner can show that no substitute vehicle
was available, loss of profits may be recovered as long as
there is sufficient evidence to measure the lost profits.
National Dairy Products Corp. v Jumper, supra.
MISSOURI
Yes. The calculation of loss of use damages is the cost of
hiring/renting a replacement vehicle during the time reasonably
required for repairs, but the plaintiff has the burden of proof of the
damages’ reasonableness. Stallman v. Hill, 510 S.W.2d 796 (Mo.
App. 1974).
There is no direct case law addressing whether a vehicle must
actually be rented in order to use that value as a measure of loss
of use; however, it appears that testimony as to loss of use value is
accepted in other areas, such as reasons why a replacement
vehicle is not available to rent. Conley v. Kansas City Rys. Co., 259
S.W. 153, 155 (Mo. App. 1921). Therefore, it is appropriate to
pursue evidence of a rental vehicle value as a measure of loss of
use even when the vehicle itself is not rented.
There is no recovery for loss of use when a vehicle has been
substantially destroyed or is not substantially repairable. German
v. Centaur Lime Co., 295 SW 475 (Mo. App. 1927).
Yes. sometimes. Lost profits cannot be recovered unless it
can be shown that no replacement vehicle was available.
Conley v. Kansas City Rys. Co., supra.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 17 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
MONTANA
Yes. The owner can recover loss of use damages for being deprived
of the use of the damaged vehicle, but only for the period of time
reasonably necessary in making repairs or purchasing a
replacement. Gammel v. Dees, 498 P.2d 1204 (Mont. 1972).
The proper measure for loss of use damages is the reasonable
rental value of a comparable vehicle for the period of time
necessary for replacement, regardless of whether another vehicle
is actually rented. Lenz Const. v. Cameron, 674 P.2d 1101 (Mont.
1984). Another case says the applicable time period is the amount
of time necessary to find a replacement vehicle. McPherson v. Kerr,
636 P.2d 1101 (Mont. 1981).
Loss of use is recoverable for the period of time reasonably
necessary for replacement when the vehicle is a total loss. Gammel
v. Dees, supra; Lenz Const. Co. v. Cameron, supra.
Yes. Plaintiff may be entitled to lost earning during the
time reasonably required by him to repair or replace
vehicle. McPherson v. Kerr, supra. Lost profits/business
interruption claim cannot be speculative. Lenz Const. v.
Cameron, supra.
NEBRASKA
Yes. Loss of use is measured by the fair rental value of a similar
vehicle or the amount actually paid for the rental, whichever is less.
When a damaged vehicle can be repaired, the measure of damages
is reasonable cost of repair plus reasonable value of loss of use for
the amount of time required to complete repair. When a damaged
vehicle cannot be repaired, the measure of damages is lost market
value plus reasonable value of loss of use of the property for the
reasonable amount of time required to obtain a replacement.
Chlopek v. Schmall, 396 N.W.2d 103 (Neb. 1986).
Yes. In some situations. When property used for
commercial or business purposes cannot be rented, loss
of profits may establish reasonable value of loss of use for
the purpose of assessment of damages. Chlopek v.
Schmall, supra.
NEVADA
Yes. Loss of use damages may be recovered for the time period for
which an individual cannot use their vehicle. Damages are
measured by the reasonable rental car costs for the reasonable
time period it takes to repair the vehicle. Actual rental of a vehicle
is not required in order to recover loss of use damages. Dugan v.
Gotsopoulos, 22 P.3d 205 (Nev. 2001).
No case law or statutory authority available on whether loss of use
is recoverable when vehicle is a total loss.
No case law or statutory support for lost profits as a
measure of loss of use damages.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 18 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
NEW HAMPSHIRE
Yes. Loss of use is measured by the cost of a rental vehicle during
the reasonable time required for repairs. Copadis v. Haymond, 47
A.2d 120, 122 (N.H. 1946).
Loss of use not recoverable in instances of total destruction in
value. Id.
When vehicle is total loss, the lost value of a reasonable use for
business purposes would be the cost of other reasonable
substitute means of transportation in excess of what expense of
the operation of the plaintiff’s own car would’ve been. Rogers v.
Nelson, 80 A.2d 391 (N.H. 1951).
No case law or statutory support for lost profits as a
measure of loss of use damages.
NEW JERSEY
Yes. Loss of use damages are recoverable for the time reasonably
necessary to compete repairs to the vehicle. Damages may be
calculated based on rental value of a substitute vehicle but may
also include “personal inconvenience” suffered due to the lack of a
vehicle. Camaraza v. Bellavia Buick Corp., 523 A.2d 669 (N.J. Super
1987).
A plaintiff should not be barred from recovery for loss of use of a
vehicle simply because he has not rented a substitute vehicle. Id.
Where a vehicle is totally destroyed, loss of use damages may be
awarded for time period required to purchase a replacement
vehicle. Bartlett v. Garrett, 325 A.2d 866 (N.J. Super. 1974).
Possibly. Evidence of lost profits was not admissible since
the plaintiff had not provided evidence that a similar
vehicle could not be hired. Francischini v. McMullen, 142
A. 651 (N.J. Sup. Ct. 1928). Therefore, it seems possible
that lost profits may be claimed as a calculation for loss of
use if proof is provided that a similar vehicle cannot be
rented. The measure of damages is the amount that will
compensate the plaintiff for “all detriment.” Hintz v.
Roberts, 98 N.J.L. at 770-771, 121 A. at 712 (1923); Graves
v. Baltimore & N.Y.R. Co., 69 A. 971 (N.J. Super. 1908), and
in some cases, loss of earnings or business profits are
allowed as damages if the loss is the proximate result of
the damage to the motor vehicle. Nightengale v. Public
Service Co-ord. Transport, 149 A. 526 (N.J. Super. 1930).
NEW MEXICO
Yes. For the amount of time needed to repair the vehicle. Curtis v.
Schwartzman Packing Co., 299 P.2d 776 (N.M. 1956). Loss of use
damages are measured by the actual rental costs reasonably
incurred if a substitute vehicle were to be rented, even if it was not
actually rented. Cress v. Scott, 868 P.2d 648 (N.M. 1994). Jury
instructions define “loss of use” as the “reasonable rental value of
similar property during the period reasonably required for the
repair of the damaged property.” N.M.R.A., Rule 13-1818.
Loss of use is recoverable even in the absence of actual rental.
Cress v. Scott, supra.
The court allowed a jury instruction that would allow an award of
damages for total loss of a vehicle or repair costs plus loss of use,
but not both. Curtis v. Schwartzman Packing Co., 299 P.2d 776
(N.M. 1956).
No case law or statutory support for lost profits as a
measure of loss of use damages.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 19 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
NEW YORK
Yes. Where the property has a usable value, the loss of use damage
is determined according to the fair market rental value of the
property. Franjo Transp., Inc. v. B & K Fleet Serv., Inc., 226 A.D.2d
674 (N.Y. 1996).
N.Y. Pattern Jury Instr. Civil 2:310.
Cannot recover loss of use when the vehicle is a total loss. Cecere
v. Harquail, 481 N.Y.S.2d 533 (N.Y. 1984).
Yes. If not speculative.
Loss of revenue from business interruption is not
recoverable in damages where the claim is based upon
lost profits, revenues or labor productivity which are
“speculative” in nature. Koch v. Consol. Edison Co. of New
York, 468 N.E.2d 1 (N.Y. 1984).
Proof of lost profits might specific enough to warrant
recovery in damages. Milliken & Co. v. Consol. Edison Co.
of New York, 644 N.E.2d 268 (N.Y. 1994).
The burden of establishing a loss of revenue claim with
certainty is a heavy one and depends in part upon
whether the missed revenue is merely delayed, or
permanently lost. Sanwep Rest. Corp. v. Consol. Edison Co.
of N.Y., 611 N.Y.S.2d 177 (N.Y. 1994).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 20 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
NORTH CAROLINA
Yes. If vehicle can be economically repaired, then plaintiff is
entitled to recovery for the loss of use during the time he was
necessarily deprived of it. Roberts v. Pilot Freight Carriers, Inc., 160
S.E.2d 712 (N.C. 1968).
If vehicle is destroyed or repairs not feasible, the owner is entitled
to damages for loss of use for a period reasonably necessary to
acquire a new vehicle. Damages limited to a reasonable time
necessary to acquire a new vehicle. Id.
Measure of damages for loss of use is not loss profits during time
deprived of vehicle, rather the cost of renting a similar vehicle
during a reasonable period for repairs. Id.
Yes. If reasonably certain. Where the profits lost are the
direct and necessary result of defendant’s tortious
conduct, and are reasonably definite and certain, they are
recoverable; those which are speculative and contingent,
are not. Kitchen Lumber Co. v. Tallassee Power Co., 174
S.E. 427 (N.C. 1934).
NORTH DAKOTA
Yes. The measure of damages for injury to property is presumed to
be the reasonable cost of repairs necessary to restore the property
to the condition it was in immediately before the injury was
inflicted and the reasonable value of the loss of use pending
restoration of the property, unless restoration of the property
within a reasonable period of time is impossible or impracticable,
in which case the measure of damages is presumed to be the
difference between the market value of the property immediately
before and immediately after the injury and the reasonable value
of the loss of use pending replacement of the property. N.D.C.C. §
32-03-09.1.
No case law or statutory support for the recovery of loss of use
damages without the actual rental of a substitute vehicle.
Yes, damages for lost profits are recoverable where they
are reasonable and not speculative. Leingang v. City of
Mandan Weed Bd., 468 N.W.2d 397 (N.D. 1991).
In cases where the amount of damages may be hard to
prove, “the amount of damages is to be left to the sound
discretion of the finder of facts.” Keller v. Bolding, 678
N.W.2d 578 (N.D. 2004).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 21 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
OHIO
Yes. When a vehicle is damaged only to the extent that it is
reparable within a reasonable time, the owner may also recover
for the loss of use of vehicle for the reasonable time necessary to
make the repairs. Hayes Freight Lines v. Tarver, 73 N.E.2d 192 (Ohio
1947).
Loss of use may not be recovered if a vehicle is totaled and the
owner has recovered the full value of the vehicle. Id.
The injured party elects the proper measure of damages. The
preferred method of figuring damages is replacement rental cost.
If there is no vehicle available for hire, the value of use to the
owner becomes the appropriate measure of damages. Indorf v. B.
J. Mcadams, Inc., 1982 WL 5567 (Ohio Ct. App. 1982).
Yes. You can recover profits lost as a result of a
defendant’s tortious conduct if such damages may
naturally be expected to follow from the wrongful act and
if the damages are reasonably ascertainable. Michigan
Millers Mut. Ins. Co. v. Christian, 794 N.E.2d 68 (Ohio
2003).
Further, lost profits resulting from an auto accident
caused by another’s negligence are certainly cognizable
damages. Id.
OKLAHOMA
Yes. Damages for loss of use are allowed (1) during a time period
reasonably required for replacement and repair, including a
reasonable time to determine if the vehicle is repairable, and (2) in
a reasonable amount equal to that which was actually expended.
DTS Tank Serv., Inc. v. Vanderveen, 683 P.2d 1345 (Okla. 1984);
Chambers v. Cunningham, 5 P.2d 378 (Okla. 1931).
Loss of use damages are equal to the rental or useable value of the
vehicle during the time the owner is without the vehicle. Brennen
v. Aston, 84 P.3d 99 (Okla. 2003).
A person whose vehicle is totaled can receive compensation for
loss of use from the time the vehicle is destroyed until the time it
is replaced. DTS Tank Serv., Inc. v. Vanderveen, supra.
Yes. Loss profits can be recovered if you can show by a
preponderance of the evidence that such damages were
suffered. Boatsman v. Southwestern Bell Yellow Pages,
Inc., 30 P.3d 1174 (Okla. 2001).
Uncertainty as to the amount of profit loss does not
prevent the recovery of lost profits. Ferrell Const. Co. v.
Russell Creek Coal Co., 645 P.2d 1005 (Okla. 1982).
OREGON
Yes. A vehicle owner is entitled to recover for loss of use of a
vehicle for the time reasonable to make repairs. Graf v. Don
Rasmussen Co., 592 P.2d 250 (Or. App. 1979).
The measure of damages is the reasonable rental value of a similar
vehicle for a reasonable repair period. Scott v. Elliott, 451 P.2d 474
(Or. 1969).
No case law or statutory authority directly on point regarding
recovery of loss of use when vehicle is a total loss.
Yes. Loss of profits, if properly proven, is an acceptable
measure of the loss of use of a commercial vehicle. Bullock
v. Hass, 571 P.2d 902 (Or. 1977).
Loss of profits are properly proven to the extent that the
evidence affords a sufficient basis for estimating the
amount of such profits with reasonable certainty.
Hardwick v. Dravo Equip. Co., 569 P.2d 588 (Or. 1977).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 22 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
PENNSYLVANIA
Yes. The owner of a vehicle which is damaged, whether repairable
or not, may recover loss of use in addition to other damages
claimed relating to the loss. This is calculated by the time needed
to obtain a functional substitute on the market, not necessarily the
time for repair or rebuilding. Nelson v. Johnson, 55 Pa. D. & C.2d
21, 32 (Pa. Com. Pl. 1970).
Any reasonable expense naturally and proximately resulting from
loss of, or damage to, property, even though not actually paid out,
usually is a proper element of recovery. This likely includes the cost
of renting a substitute vehicle. Id.
Yes. If reasonably certain. A plaintiff seeking damages for
anticipated lost profits must offer evidence providing a
basis for estimating them “with reasonable certainty.”
Exton Drive-In, Inc. v. Home Indemnity Co., 261 A.2d 319
(Pa. 1969).
Although a new business with no record of profitability
cannot usually satisfy this standard, there is an exception
for new businesses that can show a “significant interest”
in its product or service before the contract breach
occurred. Delahanty v. First Pa. Bank, N.A., 464 A.2d 1243
(Pa. 1983).
RHODE ISLAND
Yes. A plaintiff’s loss of use of his vehicle is an element of damage
for the jury to consider. Longo v. Monast, 40 A.2d 433 (R.I. 1944);
see also Petroleum Heat & Power Co. v. United Elec. Rys. Co., 150
A. 259 (R.I. 1930).
A plaintiff’s testimony as to what he paid per day for use of a
replacement vehicle is admissible as prima facie proof of damages
for loss of use of a vehicle. Longo v. Monast, supra.
No case law or statutory authority on point regarding recovery of
loss of use when vehicle is a total loss.
Yes. Plaintiff may recover lost profits when plaintiff’s
business has been interrupted. Troutbrook Farm, Inc. v.
DeWitt, 611 A.2d 820 (R.I. 1992)
One must be able to prove the amount of lost profits and
the cost and expenses involved in generating that income
with reasonable certainty. Long v. Atl. PBS, Inc., 681 A.2d
249 (R.I. 1996).
Mathematical precision is not required to calculate lost
profits, but such losses must be supported with some
rational model on how the losses were computed. Abbey
Medical/Abbey Rents, Inc. v. Mignacca, 471 A.2d 189 (R.I.
1984).
SOUTH CAROLINA
Yes. A jury may award a plaintiff for the loss of use of a vehicle for
the reasonable length of time that it was being repaired. Fuller v.
E. Fire & Cas. Ins. Co., 124 S.E.2d 602 (S.C. 1962).
Where a plaintiff’s vehicle is totally demolished, no loss of use
damage may be recovered. Vanderford v. Smith, 111 S.E.2d 777
(S.C. 1960).
No case law or statutory authority supporting loss of use damages
being recoverable without having actually rented substitute
vehicle.
Yes. Lost profits are recoverable if plaintiff can present
evidence of a fair and reasonable approximation of the
lost profits. Petty v. Weyerhaeuser Co., 342 S.E.2d 611
(S.C. App. 1986).
Evidence supporting lost profits “must consist of actual
facts from which a reasonably accurate conclusion
regarding the cause of the loss and the amount of the loss
can be logically and rationally drawn” Drews Co. v.
Ledwith-Wolfe Assoc., 371 S.E.2d 532 (S.C. 1988).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 23 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
SOUTH DAKOTA
Yes. “When a motor vehicle has been damaged by the negligence
of another, the proper measure of damages is the cost of repairs
and the value of its use during the time it is being repaired.” Joseph
v. Kerkvliet, 642 N.W.2d 533 (S.D. 2002); see also Thormahlen v.
Foos, 163 N.W.2d 350 (S.D. 1968).
When property is totally destroyed in an accident, the appropriate
measure of damages is only the full market value. Joseph v.
Kerkvliet, supra.
No case or statutory authority directly on point answering whether
actual rental of substitute vehicle is required to recover loss of use.
However, see Landeen v. Yonker, Inc., 175 N.W.2d 50, 51 (S.D.
1970) (“Damages are usually measured by the rental value of the
item involved or by the reasonable cost of hiring a replacement
item for the required period. Only such expense as is reasonably
incurred is recoverable.”)
Yes. A plaintiff’s lost profits may be recovered; however,
the evidence must show with reasonable certainty both
the occurrence and extent of the loss of profits. Hepper v.
Triple U Enterprises, Inc., 388 N.W.2d 525 (S.D. 1986).
TENNESSEE
Yes. Loss of use damages are available to a plaintiff only when the
vehicle is repairable. Prewitt v. Brown, 525 S.W.3d 616 (Tenn. Ct.
App. 2017).
Tennessee courts have recognized an exception to the above rule
when commercial property has sustained irreparable damage and
cannot be replaced within a reasonable time. Tire Shredders, Inc. v.
ERM-N. Cent., Inc., 15 S.W.3d 849 (Tenn. Ct. App. 1999).
In determining the amount of loss of use, you may consider the
reasonable rental cost of the property for that period of time and
the use or lack of use the plaintiff would have made of it except for
the incident. Id.
Yes. A plaintiff can recover lost profits when the plaintiff’s
personal property has been negligently destroyed by the
defendant and the property cannot be replaced within a
reasonable period of time. Waggoner Motors, Inc. v.
Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App.
2004).
Lost profits are not recoverable when the plaintiff’s
property has been completely destroyed and is not
capable of being repaired. Tire Shredders, Inc. v. ERM-
North Cent., Inc., supra.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 24 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
TEXAS
Yes. Plaintiff must establish the reasonable rental value of a
substitute car for the time reasonably required to repair or replace
it. Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex. 1984).
The period of compensatory loss of use will be the amount of time
plaintiff was deprived of the use of his vehicle. Id.
Texas allows loss of use damages in total-destruction cases. J&D
Towing, LLC v. Am. Alternative Ins. Corp., 478 S.W.3d 649 (Tex.
2016). The loss of use damages must be “reasonable.” Balderas-
Ramirez v. Felder (Tex. App. 2017), rev. denied (Apr. 6, 2018).
Yes. lost profits are available where “the property cannot
be used during the repair or replacement period. J&D
Towing, LLC v. Am. Alternative Ins. Corp., supra.
Loss profits must be proven with reasonable certainty.
Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877
S.W.2d 276 (Tex. 1994).
A claim for loss profits must not be hypothetical or
hopeful - but substantial in the circumstances. Id.
UTAH
Yes. Can recover any loss of use for a reasonable period of time
until the vehicle can be repaired. Metcalf v. Mellen, 192 P. 676
(Utah 1920).
Recovery for loss of use of a vehicle is not contingent upon having
rented a replacement vehicle. Castillo v. Atlanta Casualty Co., 939
P.3d 1204 (Utah Ct. App. 1997). However, must prove the extent
of damage by showing how much the vehicle would have been
used (how many days replacement needed). Id. Loss of use “should
not be calculated simply by reference to the number of days that
the vehicle sits idle, absent evidence that the vehicle would have
been in use for the entire period.” Id.
In Castillo, the court did not reference the fact that the vehicle was
a total loss, leading to the assumption that loss of use is
recoverable on total loss claims when the amount of days for
replacement is proven. Id. Also see Castillo case, footnote 8.
Yes. [Utah courts] have recognized that lost profits may
be recovered when the evidence submitted provides a
basis for estimating them with reasonable certainty.
Acculog, Inc. v. Peterson, 629 P.2d 728 (Utah 1984).
While the evidence must not be so indefinite as to allow
the jury to speculate as to their amount, some degree of
uncertainty is tolerable. Id.
VERMONT
Yes. 4-3 Vt. Code R. § 7 provides that loss of use damages may be
recovered for the reasonably-incurred cost of transportation or for
the reasonably-incurred rental cost of a substitute vehicle.
If vehicle cannot be economically repaired, such expense for loss
of use shall be paid until the claimant can reasonably obtain a
replacement motor vehicle. Id.
Plaintiff need not rent a replacement vehicle to recover loss of use.
Id.
No. unless expected profits are not too speculative,
uncertain, and remote. Madowitz v. Woods at Killington
Owners’ Ass’n, Inc., 93 A.3d 571 (Vt. 2014).
Evidence of expected profits from a new business are
considered too speculative. Id.
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 25 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
VIRGINIA
Yes. Va. Stat. § 8.01-66 outlines that recovery of damages for loss
of use are allowed and may be calculated by the reasonable cost
actually incurred in hiring a comparable substitute vehicle for the
time in which the individual is deprived of the use of the motor
vehicle.
Virginia standard jury instructions for determining damages in
negligence actions include the loss of use statute as support for
calculation of damages to the vehicle damaged in order to fully and
fairly compensate the individuals for the damages sustained.
VAPRAC JI §23.1
There is no support that loss of use can be recovered if a rental
vehicle is not actually obtained, as the statute provides that the
damages are calculated by the cost actually incurred.
Potentially. Loss of future profits is recoverable when
caused by wrongful conduct, which results in the
interruption or destruction of an established business,
provided the lost profits are capable of reasonable
ascertainment and are not uncertain, speculative, or
remote. United Constr. Workers v. Laburnum Constr.
Corp., 75 S.E.2d 694 (Va. 1953).
Plaintiff is not required to prove exact amount of profits
lost but must present enough evidence for a jury to rule
on a reasonable estimate of the damages. Goldstein v.
Kaestner, 413 S.E.2d 347 (Va. 1992).
WASHINGTON
Yes. R.C.W.A. § 4.56.250(1)(a) defines economic damages as
including “loss of use of property.” Holmes v. Raffo, 374 P.2d 536
(Wash. 1962) (approving damages for loss of use of a vehicle).
Damages to compensate for this loss may only take into account
the reasonable time in which the vehicle should have been
repaired. 5 Berry, Law of Automobiles § 5.233 (1935); Madden v.
Nippon Auto Co., 206 P. 569 (Wash. 1922).
Right to compensation for loss of use of a vehicle is not dependent
upon owner having hired a substitute vehicle during period when
his vehicle was being repaired. Id. Even though plaintiff did not rent
a substitute vehicle, he was nevertheless entitled to receive as
general damages such sum as would compensate him for his
inconvenience, and proof of what it reasonably would have cost to
hire a substitute vehicle was sufficient to present question of such
damages to jury. Id.
Loss of use is recoverable even when the vehicle is a total loss,
however this is limited to the period between the date of accident,
and the date on which the owner was paid for the cost of the
vehicle. Straka Trucking, Inc. v. Estate of Peterson, 989 P.2d 1181
(Wash. 1999).
Yes. Principles for mitigation of damages would cause lost
profits claim to exist only when there was no available
rental vehicle. Damages for loss of use of a chattel may be
measured by: (1) lost profit; (2) cost of renting a substitute
chattel; (3) rental value of the plaintiff’s own chattel; or
(4) interest. Straka Trucking, Inc. v. Estate of Peterson,
supra.; Ackerman v. Tonkoff, 435 P.2d 31 (Wash. 1967).
Moreover, the owner who uses a chattel in the production
of income is always entitled to claim profits lost when the
chattel is unavailable during a reasonable period for
repair or replacement as a result of tortious destruction
[or] damage. The claim may be that inability to use the
chattel reduced the plaintiff’s income or that it increased
his expenses, either way reducing his net profit, which is
recoverable if the proof is adequate. Any such claim is
subject to normal rules for special damages, duplication
of damages, and mitigation of damages. Id.
Recovery of lost profits allowed where a reasonable
estimation of damages can be made based on an analysis
of the profits of an identical or similar business under
substantially the same market conditions. No Ka Oi Corp.
v. Nat’l 60 Minute Tune, Inc., 863 P.2d 79 (Wash. 1993).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 26 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
WEST VIRGINIA
Yes. Loss of use damages are recoverable. Ellis v. King, 400 S.E.2d
235 (W.Va. 1990). Loss of use is measured by rental value. O’Dell v.
McKenzie, 145 S.E.2d 388 (W.Va. 1965). It is recoverable for the
period of time during which the owner is deprived of his vehicle.
Hardman Trucking v. Poling Trucking Co., 346 S.E.2d 551 (W.Va.
1986).
There is no authority requiring that a replacement vehicle actually
be rented in order claim loss of use, instead the relevant caselaw
appears to support such a claim for the cost of a hypothetical
rental. Somerville v. Dellosa, 56 S.E.2d 756, 763 (W.Va. 1949).
Loss of use is recoverable whether or not the vehicle is repaired or
totaled. Ellis v. King, 400 S.E.2d 235 (W.Va. 1990).
Yes. Loss of profits is recoverable when no replacement
vehicle is available. The Court has established stringent
prerequisites to such recovery: “In order to recover for
loss of profits as the result of a tort, they must be such as
would be expected to follow naturally the wrongful act
and are certain both in their nature and the cause from
which they proceed.” Ohio-West Virginia Co. v.
Chesapeake & Ohio Railway., 124 S.E. 96 (W.Va. 1928);
see also, Stewart v. Pollack-Forsch Co., 143 S.E. 98 (W.Va.
1928); Shatzer v. Freeport Coal Co., 107 S.E. 2d 503 (W.Va.
1959). In a case where a vehicle owner might lessen his
damages by renting a replacement, “the plaintiff would
not be entitled to recover the vehicle’s earnings, but only
the amount it would have cost him to replace the
vehicle…If that had been shown to be impossible then the
earnings of the vehicle, not including those of its driver,
would have been relevant on the question of damages.”
Somerville v. Dellosa, supra.
WISCONSIN
Yes. Loss of use is recoverable in Wisconsin. Hellenbrand v. Hilliard,
687 N.W.2d 37 (Wis. App. 2004). The time period for measuring
loss of use damages is normally the time the vehicle is out of
service. Id. The time period does not necessarily end when the
owner purchases a new vehicle. Id. The owner is entitled to loss of
use damages relating to the time period after he returned his
rental vehicle and until his repaired vehicle is returned to him, even
if he purchases a new vehicle in the interim. Id.
Loss of use is recoverable even when the owner does not obtain a
replacement rental vehicle. Kim v. American Family Mutual Ins. Co.,
501 N.W.2d 24 (Wis. 1993).
Loss of use is recoverable even when the vehicle is not repairable.
Nashban Barrel & Container Co. v. G. G. Parsons Trucking Co., 182
N.W.2d 448 (Wis. 1971).
Yes. Lost profits are the appropriate measure of damages
when a functionally equivalent rental vehicle is proven to
not be available. Balcsik v. Fil-mor Express, Inc., 756
N.W.2d 478 (Wis. 2008). The Plaintiff must show the
anticipation of a profit with reasonable certainty. Krueger
v. Steffan, 141 N.W.2d 200 (Wis. 1966).
WORK PRODUCT OF MATTHIESEN, WICKERT & LEHRER, S.C. Page 27 Last Updated 1/13/22
STATE
LOSS OF USE
LOST PROFITS
WYOMING
Yes. Loss of use is recoverable in Wyoming. Farmers Home
Administration v. Redland, 695 P.2d 1031 (Wyo. 1985). Rental
value is a practical measure used in determining damages for loss
of use. Wheatland Irrigation Dist. v. McGuire, 562 P.2d 287 (Wyo.
1977). Another method may be to prove rental or useable value of
the vehicle lost. Id. The fact finder must have sufficient evidence in
which it can reasonably determine the amount of the loss with
some degree of certainty. Id. There shouldn’t be any speculation
when determining loss of use damages. Colorado Kenworth v.
Archie Meek Transp. Co., 495 P.2d 1183 (Wyo. 1972).
A usual method of proof to sustain this type of loss is the cost of
hiring or renting another vehicle. Id. This may be interpreted to
allow for loss of use even when another vehicle is not rented.
There is no caselaw expressly disallowing recovery for loss of use
on a total loss claim. Accordingly, there is a strong argument that
such a claim can be sustained.
Probably. The court has not ruled directly on this issue,
however the Court has hinted at its applicability with the
necessary proofs. The party claiming loss of use must
show with reasonable certainty the claimed amount of
damages. Colorado Kenworth, Inc. v. Archie Meek Transp.
Co., supra.
These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have
questions regarding the current applicability of any topics contained in this publication or any publications distributed by Matthiesen, Wickert & Lehrer, S.C., please
contact Ashton Kirsch at akirsch@mwl-law.com. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should
not be construed as legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer,
S.C. on specific facts disclosed within the attorney\client relationship. These materials should not be used in lieu thereof in anyway.