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Amerson v. Willis3/2/1993
LEWIS, Judge.
On 28 March 1989 a tractor trailer dump truck operated by defendant Willis and owned by defendant Potter tipped over onto its side and hit a ten-wheel spreader body truck operated by plaintiff Phillip Amerson. At the time of the accident the spreader truck was owned by and titled in the name of plaintiff Janet Amerson, Phillip Amerson's wife. Plaintiff husband used this truck in his lime-fertilizer spreading business. The cab of the truck was destroyed, but the spreader body of the truck was not damaged. Plaintiff immediately began searching for a suitable truck to rent. Upon learning that there were no available rental trucks, he began searching for a replacement truck on which he could attach the undamaged spreader. Plaintiff was unable to locate a replacement truck until sometime prior to 27 April 1989. Plaintiff kept a record of those days on which he could have been working had a truck been available, and testified at trial as to how much money he could have made on each of those days.
On 18 July 1989 plaintiffs filed suit against defendants, alleging negligence and seeking monetary relief for the damage to the truck and for Phillip Amerson's lost profits. In their answer defendants claimed Phillip Amerson should be dismissed as a party because he had no ownership interest in the vehicle, denied negligence, and alleged contributory negligence. The jury found defendants negligent and plaintiffs free from contributory negligence. On 24 January 1991 the jury awarded plaintiff wife $7,500 for damage to her personal property, and awarded plaintiff husband $9,500 for lost profits. On 10 May 1991 the trial Judge entered judgment according to the verdict. Defendants appeal on the issue of damages for lost profits, claiming that only someone with an ownership interest may recover for lost profits due to damage to personal property. After reviewing the relevant cases, we conclude that plaintiff properly recovered damages for lost profits.
In Reliable Trucking Co. v. Payne, 233 N.C. 637, 65 S.E.2d 132 (1951), our Supreme Court noted that lost profits are recoverable if they are the "direct and necessary result of the defendant's wrongful conduct," and can be shown with "a reasonable degree of certainty." Id. at 639, 65 S.E.2d at 133. Loss of use of a business vehicle may be the basis of a claim for lost profits. See Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 160 S.E.2d 712 (1968). If the vehicle is totally destroyed or parts are unavailable, the
damaged party must purchase another vehicle as soon as possible. Id. at 606, 160 S.E.2d at 717. Damages for loss of use may be recovered only for that period reasonably necessary to acquire another vehicle. Id. Usually, recovery is limited to the cost of renting a substitute vehicle while the damaged vehicle undergoes repairs. Id. at 607, 160 S.E.2d at 718. However, if no substitute vehicle is located, damages for lost profits may be available providing two prerequisites are met: (1) plaintiff must show he or she made a reasonable effort to obtain a substitute vehicle in the interim, and (2) plaintiff must show such vehicle was not available "in the area reasonably related to his [or her] business." Id.
Appellants point to several cases as support for their position that an actual ownership interest in the vehicle is required before recovery for lost profits is allowed. See Ponder v. Budweiser of Asheville, Inc., 30 N.C. App. 200, 226 S.E.2d 539, disc. rev. denied, 291 N.C. 176, <
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