B-144326, NOV. 23, 1960

B-144326, NOV. 23, 1960

TO FOSKO AND WHITE ELEVATOR SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1960, AND ITS ENCLOSURE, REQUESTING REVIEW OF THE ACTION TAKEN UNDER GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 72912 DATED SEPTEMBER 12, 1960, COVERING YOUR CLAIM IN THE AMOUNT OF $996 FOR SERVICES FURNISHED TO THE VETERANS ADMINISTRATION HOSPITAL, POPLAR BLUFF, MISSOURI. UNDER THE SETTLEMENT THE SUM OF $969.60 REPRESENTING DAMAGES CAUSED BY YOUR FIRM TO A GOVERNMENT- OWNED MOTOR WAS COLLECTED BY SET-OFF RESULTING IN A NET PAYMENT TO YOU OF $26.40 ON YOUR CLAIM.

IT IS STATED IN YOUR LETTER THAT YOU DO NOT FEEL RESPONSIBLE FOR THE DAMAGE TO THE MOTOR, THAT IT IS NOT COVERED BY YOUR INSURANCE, AND THAT BEING A SMALL BUSINESS CONCERN YOU ARE FINANCIALLY UNABLE TO STAND THIS LOSS.

IN THE ACCOMPANYING REPORT OF JUNE 29, 1960, TO THE CHIEF ENGINEER OF THE HOSPITAL, YOU STATED THAT THE MOTOR WAS REMOVED BY YOU TO REPLACE TWO BLOCK AND THRUST BEARINGS ON THE ELEVATOR ACHINE; THAT WHILE REPLACING THE MOTOR ON JUNE 24, 1960, THE HOOK USED TO LIFT THE MOTOR GAVE WAY CAUSING THE MOTOR TO ROLL OVER, BREAKING COMMUTATOR END AND CRACKING SPOKE ON OPPOSITE SIDE OF ENDBELL, AND THAT THIS DAMAGE, IN YOUR OPINION, HAD NO EFFECT UPON THE MOTOR. YOU ALSO STATED IN THIS REPORT THAT THE MOTOR WAS PUT INTO OPERATION AT 10 A.M., JUNE 24, 1960, AND OPERATED UNTIL APPROXIMATELY 5 P.M.; THAT A CHECK BY YOU AND HOSPITAL PERSONNEL DISCLOSED THAT EVERYTHING RAN SMOOTHLY, LINED UP PROPERLY; TOP TO BOTTOM SPOKE WAS NOT AFFECTED BY JOLT; THE FRONT BEARING ON SHAFT END HAD AMPLE OIL, OIL RING WAS FREE AND WORM SHAFT AND BLOCK BEARING WAS FREE. YOU ALSO STATED THAT YOU RETURNED TO THE HOSPITAL ON JUNE 28, TO MAKE AN INSPECTION AND REPORT, ACCOMPANIED BY ELECTRICIAN HOWARD HERNON WHO HAS HAD 21 YEARS EXPERIENCE WITH D.C. MOTORS; THAT AFTER THOROUGH EXAMINATION OF THE MOTOR YOU FOUND "SHUNT FIELDS AND ARMATURE BURNED OUT, DIRECTIONAL LEADS ON CONTROL PANEL BURNED OUT, THE MOTOR HAS BABBITT LINED BEARINGS, WHICH STUCK TO THE SHAFT ON DRIVE END OF MOTOR.' YOU ALLEGED IN THE REPORT THAT THE "EXACT CAUSE OF BEARING RUNNING HOT AND FREEZING TO SHAFT IS NOT DEFINITELY KNOWN, APPARENTLY THE OIL RING FAILED TO DELIVER SUFFICIENT OIL TO BEARING.' YOU ALLEGED FURTHER THAT THE "HOISTING HOOK WHICH GAVE WAY AND WAS USED IN REMOVING AND REINSTALLING MOTOR WAS MADE BY HOSPITAL FOR THIS USE AND HAD BEEN USED PREVIOUSLY BY THEM.'

THE RECORD SHOWS THAT ON JUNE 28, 1960, AN INVESTIGATION OF THE DAMAGE TO THE MOTOR INVOLVED WAS CONDUCTED BY AN INVESTIGATION BOARD COMPOSED OF DONALD L. ROTH, ENGINEER OFFICER, BYRON E. LOMAX, STATION ELECTRICIAN, AND VIRGIL W. WAGSTER, CONSTRUCTION AND MAINTENANCE SUPERVISOR, AT THE HOSPITAL. THE REPORT OF THE INVESTIGATION (COPY ATTACHED) DISCLOSES THAT MR. BERNARD FOSKO ACCOMPANIED THE BOARD AS A REPRESENTATIVE OF YOUR FIRM.

IT APPEARS THAT YOUR PRIMARY CONTENTION BEFORE THE BOARD WAS THAT SINCE A GOVERNMENT-OWNED HOISTING HOOK HAD BEEN USED THE DAMAGE SHOULD BE BORNE BY THE GOVERNMENT. ON THE OTHER HAND, THE HOSPITAL REPRESENTATIVE CONTENDED THAT SINCE YOUR FIRM HAD USED THE HOOK WITHOUT THE KNOWLEDGE OR PERMISSION OF THE HOSPITAL PERSONNEL THE DAMAGE WAS YOUR RESPONSIBILITY. IT ALSO APPEARS THAT MR. FOSKO WAS ADVISED "THAT TWO HOOKS WHICH WERE IN THE PENTHOUSE WERE STATION-FABRICATED AND HAD BEEN USED IN COMBINATION TO LIFT A LOAD OF ONLY THREE-HUNDRED POUNDS," AND FURTHER THAT YOU ,ATTEMPTED TO MOVE A LOAD OF APPROXIMATELY FIFTEEN HUNDRED POUNDS WITH ONE HOOK, CONNECTED 45 DEGREE OFF CENTER.'

A REVIEW OF ALL OF THE FACTS AND CIRCUMSTANCES INVOLVED WOULD SEEM TO EVIDENCE A FAILURE ON YOUR PART TO EMPLOY THE SKILL AND CARE REQUIRED IN THE PERFORMANCE OF THE WORK, AND IT REASONABLY APPEARS THAT YOU ASSUMED THE RISK AND THE RESPONSIBILITY FOR ANY DAMAGE RESULTING FROM THE USE OF THE HOOK. THE FACT THAT THE HOOK WAS GOVERNMENT-OWNED OR THAT YOUR INSURANCE COVERAGE WAS INADEQUATE AFFORDS NO BASIS FOR RELIEVING YOU OF THIS RESPONSIBILITY.

IN ITS RECOMMENDATIONS, THE BOARD STATED THAT "SINCE THE FROZEN BEARING IS THE EVIDENT CAUSE OF MOTOR FAILURE AND, SINCE THE BEARING WAS EVIDENTLY DAMAGED WHEN THE CONTRACTOR DROPPED THE MOTOR, FURTHER, SINCE THE TEST PERIOD TO WHICH THE MOTOR WAS SUBJECTED BY THE CONTRACTOR WAS INADEQUATE, IT IS FELT THAT THE CONTRACTOR SHOULD BE HELD RESPONSIBLE FOR THE DAMAGES RESULTING FROM THE FALL AND THE DAMAGES RESULTING FROM THE FIRE.'

IN OUR OPINION, THE RECOMMENDATIONS ARE AMPLY SUPPORTED BY THE INFORMATION AND EVIDENCE OF RECORD, AND THE ACTION TAKEN TO RECOVER THE AMOUNT OF THE DAMAGES BY SET-OFF AGAINST YOUR CLAIM WAS PROPER. THE SETTLEMENT OF SEPTEMBER 12, 1960, IS THEREFORE SUSTAINED.