Gapud v Kaur (2007 NY Slip Op 50513(U))

Gapud v Kaur

2007 NY Slip Op 50513(U) [15 Misc 3d 1105(A)]

Decided on March 20, 2007

Nassau Dist Ct

Dane, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through March 26, 2007; it will not be published in the printed Official Reports.

This is an action to recover damages to plaintiff's motor vehicle arising from an accident on October 28, 2006. A trial of this matter was held on February 22, 2007. Liability was not an issue.

Plaintiff selected Auto Tech Collision in Rockville Center, New York to repair her 2004 Jaguar X-Type vehicle. Repair's were completed for a total of $16,026.38. The itemized invoice evidencing the repairs (plaintiff's exhibit 1) reflected inter alia, a labor rate of $70.80 per hour.

Plaintiff seeks $1,665.97 representing the difference between the hourly rate charged by the repair shop ($70.80) and, the hourly rate paid by defendants' insurance carrier ($50.00). Defendants conceded that 80.1 hours were expended in repair of plaintiff's vehicle.

Plaintiff's witnesses testified that the hourly rate charged by the repair was fair and reasonable. Workmanship, experience, the make/model of a vehicle, the specialized equipment necessary to make the requisite repairs, quality of replacement parts and, the ability to restore the vehicle to its pre-accident condition justify the hourly rate charged.

Defendants' witness testified to good faith negotiations with the repair shop plaintiff's designated representative, and the belief that an agreement had been reached at the hourly rate of $50.00. Further, that the hourly rate paid was fair and customary based upon a survey of other repair shops in the area.

New York State Insurance Regulation 64 (11 NYCRR 216.7) provides that negotiations between an insurance carrier and an insured or the insured's designated representative regarding the costs to repair a vehicle damaged by a collision must be conducted in good faith, with the basic goal of promptly arriving at an agreed price. In the event an agreed price cannot be reached Section 216.14(I) of the regulation provides that "the insurer must furnish the insured with a prescribed Notice of Rights letter (NYS APD 1), contained in Section 216.12 of this Part." This notice would enable the insured to elect to have the damaged motor vehicle repaired at a different repair shop at the insurer's estimated cost of repair. See Section 216.14(ii).

After considering the testimony and evidence this Court concludes that no agreement as to the total cost of repair was reached between the plaintiff-insured's designated representative [*2]and the insurer. A memorialization of the purported agreement in writing does not exist. The erroneous assumption that an oral agreement existed is not given credence by this Court.

The record is devoid of any testimony or evidentiary material as to whether the insurer furnished plaintiff with the prescribed Notice of Rights letter. Though plaintiff testified that she chose Auto Tech Collision to undertake the repairs she, nevertheless, was denied an alternative.

Determining the labor rate to be awarded by the Courts remains a major issue between insurers and repair shops. The interests of each side of this dispute are abundantly apparent.

An insured is not automatically entitled to be reimbursed for the full amount charged by the repair shop authorized by the insured to make the repairs. The burden of establishing the reasonable costs of the repairs necessary to bring the vehicle to its condition prior to the loss rests with the insured. Rizzo v Merchants and Businessmen's Mutual Insurance Company, 188 Misc. 180, 727 NYS2d 250 (App Term 2001).

In Dorfler v. Cummings, Index No. SC195/03, (Nassau Dist. Ct. 5/8/03), Judge Pardes ruled upon a similar fact pattern. The insurer offered $38.00 per hour to the body shop to repair a damaged vehicle. The body shop charged at the rate of $55.00 per hour. The insurer's claims supervisor testified that the fair and customary rate was $38.00 per hour. Judge Pardes sustained the repair shop's rate of $55.00 per hour as being fair and reasonable. See also, Mass v. Meylmont, 1 Misc 3d 906 (A), 781 NYS2d 625 (NY Dist. Ct. 2003).

This Court credits plaintiff's first witness, a retired insurance adjuster, that the labor preformed on the subject vehicle warrants $65.00 per hour. Based upon all of the testimony, case law and exhibits, the Court concludes that plaintiff has sustained her burden of proving that a $65.00 per hour rate is fair and reasonable.

Accordingly, plaintiff is awarded the sum of $1,201.50 (calculated at 80.1 hours at the rate of $15 an hour), together with interest, costs and disbursements.