Legal Question in Business Law in California
Let's assume that a person has a highly customized car with a performance modified engine, transmission, turbocharger, engine management computer, and a lot of instrumentation/gauges.
This person has regular auto insurance for his vehicle from AAA.
This person takes this heavily modified car to a shop for repair. A mechanic who is supposed to be working on the car at this shop decides to take it for a full throttle reckless joyride. The mechanic uses full throttle with the car, revving its engine, spinning its tires, fishtailing it, and in the process of this reckless full throttle joyride, he loses control of the car and crashes it head on into a tree, totaling the car.
The police report of the collision shows an estimated 65-70mph in a 25 mph zone. The police report also shows that the force of the impact was so great that the city tree that was hit had to be removed due to the extent of damage to it. The police report also identifies a witness who saw the car coming at a high rate of speed while spinning its tires, fishtailing, revving its engine, and who ran to avoid being struck by the vehicle. She witnessed the driver lose control of the car while driving it in this manner and witnessed the driver crash it head-on into a tree. She even runs to avoid being potentially struck by the out of control vehicle. In addition, there are approximately 50 to 100 feet of tire skid marks on the road prior to the impact with the tree.
The police report also states that the mechanic claims that he was on a "test drive."
The owner of the vehicle is then informed by the mechanic shop of this collision of his vehicle as a result of this mechanic's "test drive." When the owner of the vehicle attempts to get the mechanic shop's insurance information, they tell him that they do not have auto insurance.
The vehicle owner then calls his own insurance company, AAA, to report the accident. When AAA looks at the car, the vehicle owner informs them of all the performance modifications made to the vehicle. AAA then informs the vehicle owner that they do not cover all the performance modifications made to the vehicle. AAA informs him that they only cover the actual cash value of the unmodified vehicle in its stock form.
Therefore, the vehicle's owner has now suffered significant damages as a result of this mechanic shop's full throttle reckless joyride. Furthermore, the vehicle owner's own insurance will not even fully cover him for his damages since they do not cover all the aftermarket performance modifications made to the vehicle.
If the vehicle owner wants to sue the mechanic shop for his damages, is he entitled to recover his attorney's fees to sue?
The reason I ask is because as far as I know, under the American Rule in US law, each party must bear their own costs of litigation unless there is a contract or a statute that specifically provides for the recovery of the prevailing party's attorney's fees. Because of this:
1) I would like to know if the vehicle owner will be entitled to recover for his attorney's fees to sue the mechanic shop for damages. In other words, will the vehicle owner be entitled to his attorney's fees to sue as part of his damages?
2) If the vehicle owner IS entitled to his attorney's fees as part of his damages, what section of law is this under?
I look forward to your response.
5 Answers from Attorneys
The owner and the garage may have a contract that says the winner of any lawsuit arising out of the contractual relationship can recover attorney fees from the other side. Such clauses are fairly common in automobile service contracts. Otherwise, I don't see a basis on which the owner could claim fees.
1. Only if the contract with the repair shop has an attorney fees clause in it. Read whatever paperwork you received from the repair shop.
2. If the contract has an attorney fees clause in it, this would be covered by Civil Code � 1717(a).
3. All the above presupposes that the repair shop has insurance or assets with which to pay a judgment.
As the previous responses sort of say, you won't be entitled to recover attorney fees unless your contract with the repair shop has an attoprney-fee clause.
Maybe you're the one-in-20 plaintiff that doesn't need an attorney to win?
Absent a contract for leg a fees and court costs these kind of cases will not include them. That being said, (and it does go a little beyond your question...but I thought I would share this with you), if this happened before you could potentially argue that the employer was on notice of the driver's propensity for such reckless misconduct to be personally liable beyond his shop's business policy but unless the employer-boss has assetsbyou could still be out in the cold not only for you damages but you legal fees and court costs. I hope this also helps you. Good luck. Bob
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