July 9, 2021 by Greg Meckbach
If a commercial auto client is accused of causing damage to a third-party vehicle, the client could be harming its legal position if it fails to produce a statement from its own driver.
United Parcel Service Canada Ltd. is on the hook for nearly $800 after Kurt Kolb alleged that a UPS truck damaged his vehicle.
In Kolb v. United Parcel Service Canada Ltd., released July 6, the British Columbia Civil Resolution Tribunal ordered UPS to pay Kolb $750 in damages (the deductible on his insurance) as well as $23.78 in pre-judgment interest and $67.50 for CRT fees.
Kolb’s vehicle was parked Dec. 19, 2018, at Kolb’s North Vancouver office building.
UPS confirmed it made a delivery that day to that office building, but denied that any UPS truck collided with Kolb’s car.
Kolb did not witness the alleged collision. However, another worker in the same building, identified in the CRT decision only as “L.S.,” made a witness statement.
UPS did not produce a statement from its driver. As a result, CRT member Eric Regehr made an adverse inference against UPS.
“An adverse inference is when a decision maker, like the CRT, assumes that a party failed to provide evidence because the missing evidence would not have supported their case,” wrote Regehr.
The witness LS worked in the same office building as Kolb at a desk that faces the window. The unnamed witness reported watching a UPS truck attempt to reverse into the stall next to Kolb’s car.
“LS said that they heard a loud bang and then the truck stopped abruptly,” Regehr wrote in his decision. “When the truck pulled away, LS said that they saw Mr. Kolb’s car move, which confirmed to LS that the vehicles had collided.”
The witness LS says they did not know Kolb before the day Kolb discovered his vehicle was damaged. The witness saw Kolb inspecting damage to his vehicle, so the witness approached Kolb to tell him what they saw.
Evidence included photos showing Kolb’s car had a scrape that started at the rear left corner and ran along the side to just before the rear wheel well. The main damage was between 24 and 25 inches off the ground and reached as high as about 29.5 inches, Regehr wrote.
For its part, UPS argued its vehicle has a metal grated step between 19 and 21 inches off the ground that protrudes from the back. Therefore, UPS argues, had its truck backed into Kolb’s car, the damage would have been significantly closer to the ground.
But Regehr found it is possible that the side of the UPS truck, which does not have a metal step, hit the side of Kolb’s car.
Regehr dismissed Kolb’s claim against UPS for $1,000 for loss of earnings. Kolb claimed that separate amount because of the time he spent dealing with UPS and getting his vehicle repaired. Kolb did not provide time sheets or other evidence showing when he missed work time or exactly how much time he missed, wrote Regehr.
Feature image via iStock.com/jetcityimage