MacKenzie v. Sheppard

MacKenzie v. Sheppard

Damages are measured by the fair market value of the used 2007 trailer at the time of loss (or cost of repair if less), plus reasonable loss of use and incidental costs; claimants are not entitled to recover the cost of a new trailer or replacement on new-financing terms. Aviva's payment of policy limits and...

Source-derived case information.

Citation
2008 NSSM 47
Parties
Claimant: Philip MacKenzie; Claimant: Juanita MacKenzie; Defendant: James K. Sheppard
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
11 September 2008
Procedural Posture
Small Claims Court Tort (property Damage) / Decision (adjudication)
Outcome
Claim allowed in part. Judgment for the claimants in the net amount owing after insurer payment.
Legal Topics
Fair Market Value, Adjusted Cash Value (acv), Subrogation, Loss of Use, Measure of Damages, Repair Vs Total Loss
Source Language
english
Tort Property Damage Insurance/subrogation Damages Fair Market Value Adjusted Cash Value (acv) Subrogation Loss of Use +2 more

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Summary, issues, holding and outcome

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Parties

Philip MacKenzie

Claimant

Juanita MacKenzie

Claimant

James K. Sheppard

Defendant

Procedural Posture

Small Claims Court Tort (property Damage) / Decision (adjudication)

Legal Issues

  1. 1 Measure of damages for damaged recreational trailer (repair cost vs fair market value)
  2. 2 Whether claimants may recover cost of a new replacement trailer rather than value of used trailer
  3. 3 Appropriate treatment of ACV evidence vs fair market value

Ratio Decidendi

Damages are measured by the fair market value of the used 2007 trailer at the time of loss (or cost of repair if less), plus reasonable loss of use and incidental costs; claimants are not entitled to recover the cost of a new trailer or replacement on new-financing terms. Aviva's payment of policy limits and subrogation to ING did not extinguish the defendant's liability for the uninsured shortfall. The court fixed FMV at $24,000 and awarded the remaining items leading to a net judgment of $3,484.42 plus costs.

Court Disposition

Claim allowed in part. Judgment for the claimants in the net amount owing after insurer payment.

Orders

  • Findings: fair market value of the 2007 Crossroads trailer fixed at $24,000.00; add applicable tax and awarded incidental amounts and loss of use.
  • Award rental replacement (loss of use) in the amount of $5,833.80.