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A Ferrari Owner’s Review of his Experience Dealing with Ferrari Maserati of Vancouver, British Columbia, Canada - UPDATE!
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Posts: 2From: VancouverRegistered: Feb 2014
Stryder
Junior Member


Monday, February 17, 2014 3:55 PM

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As someone who is part of the Ferrari ownership community, I felt it was important for me to advise others in the community of an experience I had with Ferrari Maserati of Vancouver.

The Ferrari Maserati of Vancouver dealership’s stated “mission” is to provide the highest level of customer service and satisfaction, and boasts that they are “renowned for the individual customer care and service that is provided to each and every client”. Sadly, I remain extremely disappointed with the dealership.

Before leaving for a business trip on May 22, 2013, I left my beautiful 2005 Ferrari F430F1 with Ferrari Maserati of Vancouver (owned by Brian Ross Motorsports Corp.) for a $2,200 scheduled servicing. During my trip, I anticipated a fun-filled summer of driving my Ferrari.
On May 29, 2013, on my way back to Vancouver, I called the dealership to see if the servicing had been completed. I was appalled to hear that my Ferrari had been damaged. I understood that the damage was minor, just a “scratch”.

When I arrived at the Ferrari dealership, I was surprised to learn my Ferrari was not there, and the dealership had taken it to a local non-Ferrari factory authorized auto body shop without my knowledge or permission. I was completed shocked when I saw the condition of my Ferrari! This was no mere “scratch”. My Ferrari was significantly damaged from end to end on the passenger’s side, and the panel in front of the passenger’s door was so torn and twisted that the door would not open!

Once the initial shock diminished somewhat, I attempted to resolve the matter in an amicable manner. Given what had taken place and the dealership’s stated mission, I expected the dealership would resolve the problem in short order. Sadly, that did not come to pass and it appeared to me that the dealership avoided my calls. So I sued the dealership. In the lawsuit, the dealership admitted its negligence in damaging my Ferrari while in its care and yet they still have not resolved the problem.

On July 23, 2013, to add insult to injury, the dealership sent me an invoice for $3147.48 (for the earlier “$2,200 service”), and refused to release my Ferrari until the invoice was paid! They only released my damaged Ferrari very recently and it is still not repaired; I missed out on using my Ferrari for the entire summer of 2013 (one of the sunniest Vancouver summers on record)! If the Ferrari Vancouver dealership had handled the situation differently, they would have had me as a loyal customer for life. Instead, I started a lawsuit and they have lost this customer for life. This is not the service I expect from anyone associated with the Ferrari name.

If this letter prevents even one person from going through this kind of experience with Ferrari Maserati of Vancouver, then I will have contributed in some way to the positive experience of Ferrari enthusiasts everywhere. I wish you all the best.


UPDATE!


I write to provide an update on my experience in dealing with Ferrari Maserati of Vancouver.

The trial in this matter began in November 2014 and lasted 3.5 days. The Reasons for Judgment were published August 7, 2015 and are as follows:

Miller v. Brian Ross Motorsports Corp., 2015 BCSC 1381 (CanLII)
Date: 2015-08-07
Docket: S135397
Citation: Miller v. Brian Ross Motorsports Corp., 2015 BCSC 1381 (CanLII), <http://canlii.ca/t/gkkbt> retrieved on 2015-08-14 Cited by 0 documents Show headnotes PDF Email Tweet Share
IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:
Miller v. Brian Ross Motorsports Corp.,

2015 BCSC 1381
Date: 20150807
Docket: S135397
Registry: Vancouver

Between:

Dr. Lawrence Miller and Dr. Lawrence Miller
Professional Psychology Corporation
Plaintiffs
And

Brian Ross Motorsports Corp. dba Ferrari Maserati of Vancouver

Defendant

Before: The Honourable Madam Justice Dardi

Reasons for Judgment

Counsel for the Plaintiffs:
A.S. Dosanjh
A. Doolittle
Counsel for the Defendant:
C.J. Bakker
K. Yaworski, Articled Student
Place and Date of Trial:
Vancouver, B.C.
November 24-26, 2014
February 12, 2015
Place and Date of Judgment:
Vancouver, B.C.
August 7, 2015


INTRODUCTION

[1] This dispute relates to the assessment of damages arising from the plaintiff’s temporary loss of use of a luxury automobile.

[2] The plaintiff’s 2005 Ferrari F430 F1 (the “Ferrari”) was damaged on May 28, 2013, while it was being serviced at the defendant’s automotive dealership and service centre. The defendant concedes that the damage was sustained as a result of its negligence. Through an unfortunate series of circumstances, the defendant did not return the plaintiff’s Ferrari to him for some seven months.

[3] The plaintiff initially sought damages for repair costs, loss of value to the Ferrari, and loss of use of the Ferrari. Commendably, the parties resolved the issue of damages for repair costs and accelerated depreciation of the Ferrari’s value prior to trial. The sole issue left for determination is the assessment of damages for loss of use. To this end, the plaintiff seeks damages in the amount of $85,000. The defendant suggests an award of $5,000 would be appropriate.

[4] Before turning to the analysis, it is necessary to identify the parties, summarize the pertinent facts, and review the applicable legal principles.

FACTS

[5] Many of the essential facts are not in contention.

The Parties

[6] The plaintiff, Dr. Lawrence Miller, is a clinical psychologist and was, at all material times, either in his personal capacity, or through a professional corporation, the owner of the Ferrari. The plaintiff is a passionate Ferrari enthusiast.

[7] The defendant, Brian Ross Motorsports Corp. dba Ferrari Maserati of Vancouver, is an automotive dealership and service centre. As the name suggests, the defendant is associated with the luxury vehicle brands Ferrari and Maserati.

The Collision

[8] On May 22, 2013, the plaintiff took his Ferrari into the defendant’s dealership for its annual service which was performed by a Ferrari-certified technician employed by the defendant.

[9] On May 28, 2013, the technician road-tested the Ferrari as part of the quality control element of the annual service. Unfortunately, during the course of the road test, the technician made contact with a delivery truck parked in a laneway, which caused damage to the Ferrari. The defendant admits liability for the ensuing damage.

Post-Collision Events

[10] The defendant’s general manager, Mark Edmonds, explained that after the collision he took immediate steps to contact No. 1 Collision, a professional automotive repair shop. The defendant sought a quote and an estimate of the time it would take to make the required repairs. The Ferrari was taken to No. 1 Collision without the plaintiff’s authorization.

[11] On May 29, 2013, a representative of the defendant advised the plaintiff by telephone that his Ferrari had been damaged and that they would repair the damage. The plaintiff, who was out of town at the time, instructed the defendant’s personnel not to perform any work on the Ferrari until he had the opportunity to observe the damage first hand.

[12] On May 30, 2013, a representative of the defendant accompanied the plaintiff to No. 1 Collision to view the Ferrari. The plaintiff was shocked at the extent of the damage which he had initially understood to be “a scratch”. The Ferrari was damaged down the length of the passenger side, including damage to the rims and the passenger side mirrors. As it turns out, the cost of the repairs was $35,644.04.

[13] The plaintiff was dissatisfied with the choice of No. 1 Collision as the repair shop. He was concerned that it was not a “factory-authorized” facility to perform repairs on Ferraris. He wanted to explore alternatives which he felt were more appropriate. Throughout June 2013, the plaintiff contacted a number of Ferrari dealerships and repair shops throughout North America to inquire about superior options for the repair of the Ferrari.

[14] Through June into mid-July 2013, the plaintiff and representatives of the defendant discussed the possibility of trading in the Ferrari for a newer model. I find it was reasonable for the plaintiff to pursue this option and to delay having his Ferrari repaired. In any case, those negotiations were not fruitful, and the proposed alternative vehicle was ultimately sold by the defendant to a third party.

[15] In June 2013, the plaintiff attended at No. 1 Collision and was upset to discover his Ferrari was parked outside and exposed to the elements. On June 24, 2013, counsel for the plaintiff wrote to defendant’s counsel to reiterate the plaintiff’s instructions that no work was to be performed on the Ferrari by No. 1 Collision. Further, counsel demanded that the Ferrari be parked indoors or covered appropriately.

[16] On July 19, 2013, the plaintiff filed the Notice of Civil Claim in this action. It was served on the defendant on July 22, 2013.

[17] On July 23, 2013, a representative of the defendant contacted the plaintiff attaching a service invoice for the tune-up and annual service. Mr. Edmonds maintains that the employee who issued this invoice did so without his knowledge. In any event, on July 24, 2013, a representative of No. 1 Collision, on instructions from the defendant, advised the plaintiff by email that he would not be able to pick up the Ferrari until the service invoice had been paid. The plaintiff sent a reply email that he had no intention of paying any such invoice.

[18] On July 24, 2013, No. 1 Collision returned the Ferrari to the defendant’s premises and it was placed in a secure parking facility. On that same day, counsel for the plaintiff wrote to defendant’s counsel confirming his position that the defendant was not entitled to payment of its invoice. Further, counsel requested that the defendant contact him regarding making arrangements for the plaintiff to retrieve the Ferrari.

[19] Through a series of unfortunate events, the Ferrari was not returned to the plaintiff for several months. It is uncontroversial that the damaged Ferrari remained in the defendant’s possession until December 18, 2013, at which time the plaintiff retrieved his Ferrari from the defendant’s premises.

The Subsequent Repair of the Ferrari

[20] When the Ferrari was released to the plaintiff in December 2013, it had not yet been repaired.

[21] The plaintiff explored several potential repair shops in early 2014. He also explored the possibility of retaining an Albertan repair shop, an authorized repair shop in California, and a repair shop in Redmond, Washington. None of these shops turned out to be a viable option for the plaintiff.

[22] Subsequently, on or about February 4, 2014, the plaintiff retained Korva World Class Collision in Vancouver to provide an estimate regarding the required repairs. The plaintiff elected to proceed to have the Ferrari repaired at that facility. However, because of their workload, the plaintiff was not able to bring the Ferrari in for repairs until March 21, 2014. The repaired Ferrari was returned to the plaintiff on May 9, 2014.

Rental Possibilities

[23] Mr. Stirrat was called by the plaintiff. He operates the Vancouver Car Club, a virtual enterprise which facilitates fractional ownership of exotic and ultra-luxury vehicles. The Vancouver Car Club does not own any the vehicles in its own right. As an ancillary aspect of its main business, it also facilitates rentals of vehicles and acts as a “middle man”; connecting interested renters with suitable vehicles owned by private parties. The Vancouver Car Club is not involved in any actual rental transactions.

[24] In 2013 and 2014, the Vancouver Car Club website advertised a 2007 F430 Ferrari Spider convertible. The daily rental rate for the vehicle was $1,250. In addition, renters would be required to pay $99 per day for insurance coverage and a deposit of $2,500. The vehicle was also available for rental at a monthly rate of $9,381. Mr. Stirrat conceded that he could not say for sure whether the rental rate advertised on the Vancouver Car Club website had ever been realized.

[25] The plaintiff did not contact Mr. Stirrat regarding rental possibilities nor did he rent a comparable vehicle in the period during which the Ferrari was damaged.

Overview of the Plaintiff’s Claim for Loss of Use

[26] The plaintiff’s work as a clinical psychologist includes meeting with clients and preparing reports. He rents office space on an as-needed basis in the lower mainland where he meets with clients on average 10 to 15 hours per week. He also maintains a home office where he works 30 to 35 hours per week. The plaintiff travels for work purposes. At trial, he estimated that he had taken three to four work trips, of approximately one week each, within the preceding 12 months. In addition, he travelled for holidays, stating that he took a holiday for one week to Hawaii and several weekend trips.

[27] The plaintiff owns several vehicles. His primary vehicle for transportation, including for commuting to work, is an Acura which he purchased in 2002. In addition, the plaintiff owns two motorcycles and the Ferrari. One motorcycle is stored in Ottawa for purposes of transportation when he is there on business. The other is kept in Vancouver, and the plaintiff drives it for pleasure, primarily during the summer months.

[28] The Ferrari is insured for “pleasure use” and not as a commuter vehicle. However, under this insurance policy, the plaintiff is entitled to use it for work purposes up to a maximum of six days per month. The plaintiff indicated he rarely does so. The plaintiff drives the Ferrari all-year-round when the weather is suitable, but he does not drive it in the rain. He estimated that in the first year he owned the Ferrari, he drove it approximately 20 days per month, but acknowledged that he drove it less frequently in the winter.

[29] The plaintiff, who is unmarried, with no children, purchased the Ferrari in November 2011. He derives great joy from driving his Ferrari which he described as a “work of art” and a “pure pleasure vehicle’. The plaintiff explained that driving the Ferrari is his preferred pastime from which he derives his peace of mind; the activity constitutes a form of stress relief for him .The plaintiff is engaged in a community of likeminded car enthusiasts, and attends automotive shows. It is clear that the plaintiff enjoys the social elements associated with ownership of a Ferrari.

[30] According to the plaintiff, renting a vehicle would be no substitute for the very special “pride of ownership” of the Ferrari.

ISSUE

[31] It is common ground that the retention of the Ferrari by the defendant was wrongful, and that the plaintiff is entitled to damages for the loss of use of the Ferrari.

[32] The essential issue for determination is the quantum of damages to be assessed for the plaintiff’s loss of use of the Ferrari.

POSITION OF THE PARTIES

The Plaintiff

[33] The plaintiff framed his claim in negligence. In his pleadings, he also alleges a breach of the contract of bailment.

[34] At trial, I raised with counsel whether the claim was properly framed as a claim in detinue. Counsel addressed this point in supplemental submissions. The essence of their submissions was that the assessment of damages is not materially different however the claim is framed.



[35] The plaintiff’s primary contention is that, despite having suffered no pecuniary loss, the appropriate approach for the assessment of damages is to consider the cost for renting a similar Ferrari over a one-year period. The plaintiff calculates one year’s loss as $112,572, based on a rental rate of $9,381 per month. However, the plaintiff acknowledges that there are contingencies which the court should consider and that, and “all factors being considered”, an appropriate award would be $85,000. Such an award, the plaintiff assert, is commensurate with his investment in the Ferrari and his special experience of driving it. He emphasizes that he was deprived of the experience of driving his Ferrari through the summer of 2013.

The Defendant

[36] The defence did not take a technical position on the adequacy of the plaintiff’s pleadings; they concede that the plaintiff is entitled to damages for loss of use of the Ferrari. However, they underscore that the award must be reasonable in all the circumstances of the case.

[37] The defendant’s essential submission is that the quantum of damages sought by the plaintiff is unreasonable. They point out that the plaintiff purchased the Ferrari for $134,288 in 2011. An award of $85,000 would equate to almost two-thirds of the total purchase price of the Ferrari.

LEGAL FRAMEWORK

[38] It is common ground that the authorities establish that a person who has been wrongfully deprived of the use and enjoyment of a chattel will, in appropriate circumstances, be entitled to damages, even where they suffered no tangible pecuniary loss: “The Mediana”, [1900] A.C. 113 (H.L.); Kerbel v. Fisher, [1981] B.C.J. No. 1514 at para. 29; Sabo v. Canada (Attorney General), 2013 YKCA 2 (CanLII) at para. 82.

[39] This proposition that a plaintiff is entitled to damages for loss of use of a chattel is derived from the decision of the House of Lords in “The Greta Holme”, [1897] A.C. 596. In that case, the House of Lords concluded that the harbour authority was entitled to recover damages for the loss of use of a dredger, despite having incurred no pecuniary losses or replacement expenses. This principle was applied shortly thereafter in The Mediana, a decision which also concerned deprivation of the use of a vessel.

[40] The weight of the authorities in British Columbia endorses a cautious approach to the assessment of damages for loss of use. The authorities demonstrate divergent approaches taken by B.C. courts in determining whether an award for loss of use of a non-profit-generating chattel ought to be made, and how such damages should be quantified.

[41] The Court of Appeal in Vancouver Ice & Storage Company v. British Columbia Electric Railway Company, [1927] 1 W.W.R. 631 (B.C.C.A.) reversed the trial judge’s award for damages for loss of use of a truck. On appeal, the Court cautioned that the particular facts of The Greta Holme and The Mediana must be carefully scrutinized. The Court stated that in order to come within those authorities, the plaintiff in the case under consideration would have had to show that the depreciation of the damaged truck delayed it in its work or otherwise caused damage: at 634. The evidence established that the plaintiff in Vancouver Ice & Storage Co. had intended to have the damaged truck repaired in any event. Accordingly, the Court disallowed the award for loss of use.

[42] In Kerbel, Hinds J. considered the application of the principles regarding loss of use in respect of a plaintiff owner of a Mercedes Benz which was damaged in an accident. The car was unavailable to him for a period of about three months. Hinds J. declined to award damages for loss of use, on the basis that the plaintiff was away for a significant portion of the repair time and, in any case, he did not regularly drive the vehicle during the winter months and in inclement weather.

[43] In Duckworth v. Armstrong (1996), 29 C.C.L.T. (2d) 239 (B.C.S.C.) the plaintiff’s vintage Camaro, which he kept in pristine condition, was damaged in an accident. The evidence established that the plaintiff used the vehicle during the summer months, and stored it, uninsured, on blocks during the wintertime. In December, while the vehicle was in the shop for repairs, it was stolen. The Camaro was never recovered.

[44] With respect to the plaintiff’s claim for loss of use of the Camaro, the court noted that at the time the vehicle was stolen, it would have been stored for the winter and thus the plaintiff would not be driving it in any event until the spring. The court assessed general damages of $1000 for loss of use and stated as follows:

… Although there is evidence that he did not replace the Camaro, there is no evidence of what he used for transportation, or of any costs he had for transportation as a result of loss of the use of the Camaro. In any event, I consider that the period from the time of the loss until the spring, when he would normally have been using the vehicle, was a reasonable time in which to make alternate arrangements for transportation, and I thus make no award for additional costs arising from the loss of the Camaro. However, the case law does establish that where, as a result of negligence of the defendant, the plaintiff loses the use of a chattel, the plaintiff is entitled to recover general damages: No. 7 Steam Sand Pump Dredger (Owners) v. “Greta Holme” (The) [1897] A.C. 596 (H.L.); Basted v. Grafton [1948] 1 W.W.R. 614 (B. C. County Court). There is no doubt the plaintiff sustained a loss of enjoyment of the vehicle, which was his pride and joy. I thus award $1,000 general damages for loss of use.

[45] The most recent consideration provided by the parties is the decision of Mr. Justice Grauer in Signorello v. Khan, 2010 BCSC 1448 (CanLII). In that case, the lessee of a rare luxury Mercedes Benz sought damages for loss of use as compensation for being deprived of the use of the vehicle for two months, while it was repaired after an accident. The plaintiff argued that while the vehicle was unavailable to him in the automotive shop, he nonetheless had to maintain his lease payments. The court noted the plaintiff did have the use of a replacement Mercedes for part of the material time period, and that that the plaintiff was also out of the city on business for approximately half of the material time period. The court awarded the plaintiff $3,000 for loss of use.

[46] In S.M. Waddams, The Law of Damages, loose-leaf, 4th ed. (Toronto: Canada Law Book, 2004) the author notes that the jurisprudence is unsettled regarding the scope of the entitlement to recovery for loss of use and methodologies for assessing those damages. He concludes that the assessment of damages for the loss of use for a “non-profit making chattel” ultimately turns on “the basis of convenience of assessment”.

[47] In summary, the determination of appropriate quantum of damages for loss of use is primarily a fact-driven analysis. While the authorities are instructive they provide general guidance only. The legal principles that animate the assessment of damages for loss of use have not been well-developed and the jurisprudence is difficult to reconcile. The authorities demonstrate divergence in the range of factors considered by the court and the methodology for calculating damages.

DISCUSSION

[48] With these general principles in mind I turn to consider the facts of this case.

[49] The starting point in the analysis is to determine the time period for which the defendant reasonably should be liable for the loss of use or wrongful detention of the Ferrari.

[50] The plaintiff urges this court to conclude that the plaintiff is entitled to recover damages from loss of use from May 2013 to May 2014. This encapsulates the time span from when the damaged Ferrari was initially detained by the defendant until the Ferrari was ultimately repaired. The plaintiff says that the fact Mr. Korva’s repair shop was unable to accommodate the repairs expeditiously is a foreseeable consequence of the defendant’s wrongful detention of the damaged Ferrari.

[51] The defendant counters with the submission that it should be not responsible for any loss of use period after December 18, 2013, when the Ferrari was returned to the plaintiff. As I mentioned, there were significant delays in the ensuing months and the repairs were not completed until May 9, 2014.

[52] The Ferrari was returned to the plaintiff in December 2013 without having been repaired and, as such, the plaintiff was reasonably required to make arrangements for repairing the Ferrari. In the circumstances, I am of the view that the plaintiff should be entitled to damages for an extended period of loss of use. He should be afforded a “grace period” to reflect the reasonable amount of time necessary to arrange for, and complete, the Ferrari’s repairs.

[53] I accept Mr. Edmonds’s testimony that although the defendant refers work to Mr. Korva’s shop in Vancouver, No. 1 Collision is their “go-to place” for repairs. The evidence establishes that the delay in effecting the repairs to the Ferrari was due, at least in part, to the plaintiff’s exacting standards with respect to suitable automotive repair shops. Having rejected No. 1 Collision, the plaintiff explored repair options in the United States and Alberta, before ultimately settling on Mr. Korva’s shop.

[54] Having regard to all of the circumstances, I am not persuaded that the defendant should be responsible for the loss of use until May, 2014. At least part of the delay with respect to completing the repair was attributable to the plaintiff, for which he should bear responsibility. I find that the Ferrari should reasonably have been repaired by the end of February 2014. To be clear, the period of wrongful detention spans from May 29, 2013, to February 28, 2014 (the “Material Period”).

[55] I turn next to consider the quantum of damages.

[56] It is common ground that the plaintiff is entitled to general damages for the loss of use of the Ferrari, despite having incurred no pecuniary loss: Kerbel at para. 29. However, the analytical framework which informs some of the decisions with respect to loss of use relied upon by the plaintiff cannot be easily extrapolated to cases addressing the loss of use of luxury vehicles, such as in the case at hand.

[57] As I mentioned, the plaintiff suggests that even though he did not rent a replacement car, the most appropriate approach for assessing damages would be to apply the rate to rent a comparable Ferrari. He grounds his submission in the reasoning of Lord Scott of Foscote, in dissent, in Lagden v. O’Connor, [2003] UKHL 64. The case concerned an impecunious claimant who was unable to rent another vehicle at the spot rate (pure rental rate), and thus required the assistance of a credit hire company, who charged rental rate plus financing charge, in order to replace his vehicle while it was being repaired. The majority in Lagden concluded that the plaintiff, who had rented a replacement vehicle, was entitled to damages equivalent to the “reasonable costs of a credit hire company”: Lagden, at para. 6. In dissent, Lord Scott concluded that even if the plaintiff had not rented a substitute vehicle, the “measure of damages for this deprivation would, prima facie, have been the spot rate charge for a comparable vehicle over the repair period”, without any consideration of “the degree of use to which he would, if his car had not been damaged, have been likely to put it”: Lagden at para. 76.

[58] First, the commentary upon which the plaintiff relies is obiter dicta and derived from the dissenting judgment of Lord Scott. Further, the Lagden decision is not binding on this court and the plaintiff did not submit any cases, nor am I aware of any cases, in which Lord Scott’s commentary has been applied in this province. Indeed, as the plaintiff acknowledges, courts in British Columbia have considered the use to which the vehicle would have been put during the time it was not available to a plaintiff. In the end, I am not persuaded that it is appropriate to adopt the reasoning of Lord Scott in assessing damages in this case.

[59] In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:

• The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.

• During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.

• Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.

• The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.

• Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.

[60] The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.

[61] Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 1991 CanLII 1127 (BC CA), 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.

[62] On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.

CONCLUSION

[63] The plaintiff is awarded damages for loss of use of the Ferrari in the amount of $15,000.

[64] Subject to any pertinent circumstances of which I am not aware, the plaintiff is entitled to his costs at Scale B. If either party seeks a different costs award, they may reserve a date through Supreme Court Scheduling to address the issue.

“The Honourable Madam Justice Dardi”



Cost of repair to my Ferrari F430: $35,644.04
(First paid by me - then refunded by ICBC).


My legal fees to date: $65,350.47 to Gudmundseth Mickelson LLP - Arpal S. Dosanjh
Estimate legal fees to be received back: About $15,000
Loss of use of Ferrari award: $15,000
Accelerated depreciation award: $36,350.25

Not including accelerated depreciation which will be lost when I sell my Ferrari, I will have lost approximately $35,000 on the case even though the judge found Ferrari Maserati of Vancouver negligent in damaging my Ferrari, and they were "wrongful" in withholding my Ferrari.

I am currently considering an appeal of the loss of use award.




-------------------------
Dr. Lawrence Miller

 Message edited by: Stryder on 08/14/2015 23:35:10


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Posts: 2From: VancouverRegistered: Feb 2014
Stryder
Junior Member


Thursday, January 26, 2017 10:29 PM

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January 2017 UPDATE!

UPDATE!

Please accept my apologies for not responding sooner to forum members’ questions regarding my experience dealing with Ferrari Maserati of Vancouver (FMOV), and the response of Ferrari S.p.A (Italy) and Ferrari of North America (FNA) to my letter of complaint in September 2015. We were attempting to negotiate a settlement to this dispute and I thought it best to wait until those negotiations played out until making a further post.

To recap the history.

In May 2013, Ferrari Maserati of Vancouver (FMOV) crashed my Ferrari resulting in more than 36k damage.
They lied to me about the extent of the damage (i.e. “Just a scratch” - see photo of a portion of the damage)
They wrongfully withheld my Ferrari for about 9 months after it was damaged.
I was able to settle the issues of damages and accelerated depreciation with Brian Ross, owner of FMOV, but not damage for the loss of use of the Ferrari.

I took Brian Ross to court in November 2014 and in August 2015 a BC Supreme Court judge ordered him to pay $15,000 for my loss of use of the Ferrari because FMOV wrongfully held onto the Ferrari for 9 months after it was damaged. Brian Ross was also ordered to pay my legal costs (actually only a fraction of the true legal costs) in the amount of approximately $25,000. I appealed the $15,000 loss of use award because I felt that it does not reflect the market value of the loss of use of my Ferrari for 9 months.

Shortly after I gave notice to Brian Ross that I had filed an appeal regarding the $15,000 loss of use amount, and presumably upon his seeing the FerrariChat comments that I was going to send a letter to Ferrari S.p.A. about my unprofessional treatment from FMOV, Brian Ross’ lawyer sent me a letter threatening to sue if I made any more postings about this matter to FerrariChat.com, or if I communicated in any way with FMOV’s suppliers and business partners (e.g., Ferrari S.p.A. and FNA). So, to me it seemed instead of trying to make me a satisfied customer, Brian Ross wanted to prevent me from telling anyone about it – especially anyone at Ferrari S.p.A. or FNA.

In September 2015, I sent a letter to Sergio Marchionne, CEO of Ferrari, informing him of my unprofessional treatment by FMOV and Brian Ross. In reply I received a letter from Mr. Edwin Fenech, President and CEO of Ferrari of North America, who apologized for my experience with FMOV. In particular, he wrote, “I am sorry to hear about your experience at Ferrari of Vancouver. As you might imagine, an experience such as what you’ve described is definitely not what we ultimately want for our clients. We have communicated with Ferrari of Vancouver internally and handled your case accordingly.” Mr. Fenech referred the issue to Mr. Enzo Francesconi, Head of Aftersales at Ferrari of North America, with the aim of working closely with me to try and find a replacement vehicle. I found this to be a professional response to my legitimate complaint about FMOV and Brian Ross.

When I first spoke with Mr. Francesconi, I emphasized, “This is not about me anymore - it’s about making sure no one ever has to go through what I have gone through with FMOV”. I told him I did not want any money or anything. He assured me that “We talked to Brian Ross and it’s not going to happen again”, but he would not tell me what if any disciplinary action had been taken against FMOV or Brian Ross. Mr. Francesconi then repeatedly asked, “What can we do to make you a satisfied customer?” Frankly, I was surprised and even a bit confused by this level of professionalism because it was in such stark contrast to my unprofessional treatment by FMOV and Brian Ross. I remember thinking that if FMOV or Brian Ross had asked me this in the beginning, we would not have reached the point where I had to deal with FNA and Ferrari S.p.A.

After lengthy negotiations, in early May 2016, Mr. Francesconi and I reached a settlement agreement which included a provision whereby Ferrari Maserati of Vancouver would buy my Ferrari for $130,000 (which is the amount FMOV was going to try to sell it for following the accident), and, as a goodwill gesture I would be given a $20,000 credit towards the purchase of a new Ferrari 488. I sent the specifications for the new Ferrari 488 to Mr. Francesconi, and signed the agreed upon settlement agreement. I felt that FNA was making this agreement as a way of trying to make up for my unprofessional treatment by FMOV and Brian Ross. Accordingly, I felt satisfied that the whole negative experience with FMOV and Brian Ross would soon be behind me, and that I had achieved a measure of justice for myself and ultimately the entire Ferrari community.

Unfortunately, when the settlement agreement Mr. Francesconi and I agreed to was sent to Brian Ross for his signature, I received back a different agreement in which I would have to give up my court ordered loss of use award of $15,000 and my court ordered award of legal costs of approximately $25,000 related to the original trial. This was very surprising. Mr. Francesconi’s lawyer blamed this on Mr. Francesconi’s having misunderstood the original agreement we made.

This, as you can imagine, was also very disappointing. In an effort to compromise and finally move on from this dispute, I made a simplified offer on the basis of the goodwill gesture only – the $20,000 discount on a new Ferrari 488 (I would drop my loss of use appeal, keep my Ferrari 430 damaged by FMOV, and Brian Ross would not act on his threatened law suit). I thought that this would surely bring a quick end to the dispute and we could all move on with our lives.

Brian Ross however, then insisted that to receive the $20,000 discount I would have to negotiate down my $25,000 order for court costs related to the original trial. We informed them that these costs are court ordered and Brian Ross is obligated to pay them, but to no avail. If I had agreed to Brian Ross’ conditions, I would actually be no better off than I was in September 2015 when Mr. Francesconi of FNA asked me what he could do to make me a satisfied customer!

On October 1, 2016, I sent another letter to Mr. Marchionne of Ferrari S.p.A. explaining the situation and requesting his assistance to resolve this matter. I believe that Mr. Marchionne communicated with Mr. Francesconi of FNA, but Brian Ross would still not honor the agreement made by Mr. Francesnoni and me in early May 2016, or agree to the simplified deal whereby I would receive the $20,000 discount on a new Ferrari 488 as a goodwill gesture.

Mr. Francesconi has been unable to further assist, negotiations have seemingly come to a disappointing end, and the prospect of further litigation seems unavoidable. I have already paid my lawyer a flat rate ($15,000 in total) for the appeal of the loss of use amount of my Ferrari for the 9 months. The evidence seems clear, Brian Ross would rather pay tens of thousands of dollars in legal fees than try to make me a satisfied customer through facilitating the $20,000 goodwill discount.

Brian Ross has threatened to sue if I make any further posts to FerrariChat regarding this matter. My understanding is that anyone may sue anyone for just about anything, and even though there is no merit to Brian Ross’s threatened suit, I understand it could cost upwards of $100,000 in legal costs to fight it. When I heard this, I immediately thought of another person who had previously strongly complained about his unprofessional treatment by FMOV on FerrariChat, and then very suddenly stopped making any postings at all to the thread. I’m guessing he got a similar letter threatening to sue if he continued posting. In a conference call with Brian Ross, myself, and our respective lawyers prior to the original trial, Brian Ross said that he has been to court “probably 50 times”. I’m not sure what those court cases involved, however, for my part, I will not be intimated by threats of legal action. If they wish to sue, I will stand up to them for the rights of Ferrari owners and enthusiasts everywhere, and begin a legal defense fund (crowdfunding) on FerrariChat and the many other Ferrari websites around the world.

As I told Mr. Francesconi and Mr. Marchionne, I feel strongly that the worldwide Ferrari community has a right to know how FMOV and FNA have handled this situation. My aim in posting my negative experiences with FMOV is to try to prevent as many Ferrari owners and enthusiasts as possible from going through this kind of experience. As I said to Brian Ross during an informal meeting before the original trial, “there is a principle at stake here and I’m prepared to defend that principle in court if necessary”.

I feel that Brian Ross owes the worldwide Ferrari community on FerrariChat.com an explanation for what I view as his unprofessional handling of my case. In particular, even with a Supreme Court judge citing FMOV’s wrongful actions, FNA’s CEO Mr. Fenech acknowledging this and offering his apologies, and the worldwide Ferrari community watching FerrariChat (over 45,000 views and rapidly rising), it seems to me that Brian Ross is still trying to make money from me by trying to take away the $20,000 goodwill gesture offered by FNA. As I told Mr. Francesconi, it seems Brian Ross has absolutely no interest in making me a satisfied customer. The question I have is, “How is FMOV still in business?”

Why would anyone do business with FMOV when we still do not know if anything concrete has been done to prevent this sort of thing from happening again? And also knowing that, at least in my case, it seems FNA will in the end defend the dealership rather than a loyal Ferrari customer? I feel that FNA also owes the worldwide Ferrari community here on FerrariChat.com an explanation.

As I said earlier in this thread, this nightmare experience dealing with FMOV happened to me, and so it stands to reason that it could still happen to any other Ferrari owner or enthusiast. Therefore, I believe that the Ferrari community should come together in fighting these kind of negligent and wrongful behaviors on the part of FMOV and other Ferrari dealerships. In my view, the court of public opinion has more power to change Ferrari dealerships’ negative dealings with their customers than the Supreme Court did in my case. If more people hold dealerships to account for their negative behaviors, then they will (theoretically) be less likely to engage in these behaviors.

I appreciate very much the support I have received from forum members, and welcome any further questions or comments. Thank you!

Dr. Lawrence Miller


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Dr. Lawrence Miller


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