Do I have my terms mixed up or does the article? Wouldn’t the claim be for loss of business and not loss of use? Loss of use covers alternate transportation – such as a comparable vehicle, e.g. another tow truck – to use while the loss vehicle is undriveable. Aren’t they really talking about a loss of business claim here?
He lost the use of his vehicle which caused loss of business since that is his livelihood. Try finding another tow truck to use as alternate transportation. It is not like finding a pick up or car.
In it’s written opinion, the Texas Supreme Court consistently uses the term “loss-of-use damages.” At one point the Court also uses the phrase, “loss-of-use damages, such as lost profits.” So it seems to view “loss-of-use” as having
meaning beyond simply the need for alternate transportation.
The article begins with a question and then fails to answer the question. The word “profits” appears only once in the entire article – in the initial question. Texas allows for recovery of the reasonable rental value of a substitute car for the time reasonably required to repair or replace the vehicle – known as “loss of use.” That is all the J & D Towing case addresses. However, loss of profits is recoverable in tort in Texas. It is possible to prove and recover lost profits. However, the burden is high. Recovery of lost profits must be predicated on one complete calculation. See, e.g., Fleming Mfg. Co. v. Capitol Brick, Inc., 722 S.W.2d 399, 402 (Tex.1986) (evidence legally sufficient to support lost profits; did not discuss evidence), on remand, 734 S.W.2d 405 (Tex.App.—Austin 1987, writ ref’d n.r.e.) (evidence held factually insufficient to support lost profits; detailed evidence shows what was in the record for the Supreme Court to consider as part of no evidence review; demonstrates a complete calculation of lost profits); Chemical Express Carriers, Inc. v. French, 759 S.W.2d 683, 687–88 (Tex.App.—Corpus Christi 1988, writ denied) (demonstrating a complete calculation of lost profits); Keller, 694 S.W.2d at 357 (same); Reliance Universal Inc. v. Sparks Indus. Serv., Inc., 688 S.W.2d 890, 893–96 (Tex.App.—Beaumont 1985, writ ref’d n.r.e.) (same); Village Square, Ltd., 660 S.W.2d at 559–60 (statement of total lost profits without supporting analysis held legally insufficient); Frank B. Hall & Co., 733 S.W.2d at 259 (same); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex.Civ.App.—Dallas 1961, no writ) (held no evidence of lost profits because no evidence of supporting calculations). Texas does not sanction any one method for determining lost profits. Southwest Battery Corp., 115 S.W.2d at 1099. However, once a party has chosen a particular method for measuring their lost profits, they must provide a complete calculation.
Do I have my terms mixed up or does the article? Wouldn’t the claim be for loss of business and not loss of use? Loss of use covers alternate transportation – such as a comparable vehicle, e.g. another tow truck – to use while the loss vehicle is undriveable. Aren’t they really talking about a loss of business claim here?
He lost the use of his vehicle which caused loss of business since that is his livelihood. Try finding another tow truck to use as alternate transportation. It is not like finding a pick up or car.
It couldn’t have helped AAIC’s case in the mind of the jury if the statement ‘they denied the claim and cancelled the policy’ is accurate.
In it’s written opinion, the Texas Supreme Court consistently uses the term “loss-of-use damages.” At one point the Court also uses the phrase, “loss-of-use damages, such as lost profits.” So it seems to view “loss-of-use” as having
meaning beyond simply the need for alternate transportation.
The article begins with a question and then fails to answer the question. The word “profits” appears only once in the entire article – in the initial question. Texas allows for recovery of the reasonable rental value of a substitute car for the time reasonably required to repair or replace the vehicle – known as “loss of use.” That is all the J & D Towing case addresses. However, loss of profits is recoverable in tort in Texas. It is possible to prove and recover lost profits. However, the burden is high. Recovery of lost profits must be predicated on one complete calculation. See, e.g., Fleming Mfg. Co. v. Capitol Brick, Inc., 722 S.W.2d 399, 402 (Tex.1986) (evidence legally sufficient to support lost profits; did not discuss evidence), on remand, 734 S.W.2d 405 (Tex.App.—Austin 1987, writ ref’d n.r.e.) (evidence held factually insufficient to support lost profits; detailed evidence shows what was in the record for the Supreme Court to consider as part of no evidence review; demonstrates a complete calculation of lost profits); Chemical Express Carriers, Inc. v. French, 759 S.W.2d 683, 687–88 (Tex.App.—Corpus Christi 1988, writ denied) (demonstrating a complete calculation of lost profits); Keller, 694 S.W.2d at 357 (same); Reliance Universal Inc. v. Sparks Indus. Serv., Inc., 688 S.W.2d 890, 893–96 (Tex.App.—Beaumont 1985, writ ref’d n.r.e.) (same); Village Square, Ltd., 660 S.W.2d at 559–60 (statement of total lost profits without supporting analysis held legally insufficient); Frank B. Hall & Co., 733 S.W.2d at 259 (same); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex.Civ.App.—Dallas 1961, no writ) (held no evidence of lost profits because no evidence of supporting calculations). Texas does not sanction any one method for determining lost profits. Southwest Battery Corp., 115 S.W.2d at 1099. However, once a party has chosen a particular method for measuring their lost profits, they must provide a complete calculation.