B-230064, Apr 14, 1988, Office of General Counsel

B-230064, Apr 14, 1988, Office of General Counsel

CIVILIAN PERSONNEL - Travel - Rental vehicles - Property damages - Claims - Payments DIGEST: Absent willful and wanton negligence by the government employee, a rental car company that participates under the Military Traffic Management Command agreement assumes the entire risk of direct loss or damage to its vehicle when it is rented by an authorized government employee.

Mr. Al Blicker President, A. B. Recovery Services, Inc.:

This is in response to your letter of January 7, 1988, which asks our Office to consider the claim of your client, Express Leasing, Inc., d/b/a Budget Rent A Car of Tallahassee (Budget). The claim stems from an automobile rental agreement entered into between Budget and Allan C. Richardson, a government employee, on August 12, 1987. The claim is for $5,656.77, which includes normal rental fees plus costs incurred due to damage done to the car.

On August 12, 1987, as part of his temporary duty assignment in Tallahassee, Florida, Mr. Richardson entered Budget's airport location to rent a car. Mr. Richardson carried with him valid government travel orders which indicated that he was traveling on government business and was authorized to rent a car.

Budget is one of the car rental companies that has agreed to make special rates and privileges available to government employees under the agreement negotiated by the Department of Defense's Military Traffic Management Command (MTMC). In most instances under this agreement, the rental company is obligated to assume the entire risk of direct loss or damage to its vehicle. The government advises its employees to use only rental car companies that agree to adhere to the terms and conditions of the MTMC agreement.

Paragraph 2.H of the MTMC agreement provides that the rental company assumes liability for all vehicle damage "except where the loss or damage is caused by the willful and wanton negligence of the government employee." The police report concerning the accident shows that the car was driven down a boat ramp into the water after the driver, also a government employee, had consumed alcohol. However, these facts do not demonstrate willful and wanton negligence under Florida law.

The definition of willful and wanton negligence is controlled by the law of the state in which the accident occurred. Florida continues to follow its common law tradition distinguishing among the traditional categories of negligence: (1) ordinary negligence; (2) gross negligence; and (3) willful and wanton negligence. The latter is considered the more culpable form of misconduct, that is, conduct more in the nature of an intentional wrong. Boyce v. Pi Kabba Alpha Holding Corp., 476 F.2d 447, 451-52 (5th Cir. 1973); See Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959); Glaab v. Caudill, 236 So. 2d 180, 183-84 (Fla. App. 2d 1970).

Under Florida law, two elements can generally be deemed as essential to a finding of willful and wanton misconduct:

"(1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights." Boyce, 476 F.2d at 452; See 57 Am. Jur. 2d, Negligence Secs. 101-105, 65 C.J.S. Negligence Sec. 63(38).

Based on this standard, Budget would have to demonstrate that the driver knew he was about to drive into the lake and intended to do so. The facts of this case do not demonstrate the requisite "knowledge" and "intent" needed to establish willful and wanton negligence.

Knowledge. The police report reflects that the driver stated that it was rainy and dark, he had trouble seeing, and because he did not know where he was going, he turned into Lake Drive, which leads to the boat ramp, to turn around. In addition, the water level of the lake had risen well past the warning sign near the end of the ramp, and it is reasonable to believe that the driver did not have knowledge that he was driving into the Lake Jackson. The police report tends to support this conclusion in stating that there is a need for "speed" bumps or large reflective signs or road markings warning of the impending boat ramp" if accidents of this nature at this location are to be avoided.

Intent. Without a showing of knowledge, the question of intent need not be addressed, for one must show knowledge and intent to prove willful and wanton negligence. However, evidence concerning that issue also favors the driver. First, Budget offers no evidence to prove that he intended to drive the car into the lake. Although there is evidence of alcoholic consumption by the driver, this consumption was so minimal that the officer who ticketed him for carelessness did not consider this beyond the legally prescribed limits. Thus, we cannot infer that such drinking shows a reckless indifference that was equivalent to an intent to drive the car into the water.

Second, Ms. Amy Hirsch, an eyewitness, stated to the police that she saw the vehicle's brake lights come on before it went into the water. The statement by the witness corroborates the statement by the driver that he attempted to stop the car when he realized that it was going into the water.

We conclude that Mr. Richardson did not violate the MTMC agreement. Therefore, Budget will not be allowed to recover for repairs to the vehicle.