What is Loss of Use?
Loss of use is compensation for the time the vehicle could not be used. When the rental vehicle is damaged the rental agency can not use the vehicle, and the rental agency has a right to be compensated for the loss of use of their property. Loss of use is a property right to which any owner of property is entitled. It is based on the principle that an owner of property has the right to use that property in whatever lawful manner that they choose. When an owner of property suffers damage for which another party is responsible, the owner is entitled to be compensated fully for the injury. Compensation for a harm to property includes the amount of damages to property and loss of use. Section 928 of the Restatement (Second) of Torts provides that damage for harm to chattels includes damages for the loss of the use of the chattel. Section 931 discusses loss of use damages. Comment (b) provides that "[t]he owner of the subject matter is entitled to recover as damages for the loss of the value of the use, at least the rental value of the chattel or land during the period of deprivation. This is true even though the owner in fact has suffered no harm through the deprivation, as when he was not using the subject matter at the time or had a substitute that the used without additional expense to him."
Hannah v. Brown, 400 So. 2d 410 (Ala. Civ. App. 1981). The loss of the use of a personal automobile during the reasonable period of repair is an element of recoverable damages in addition to the difference between the before and after reasonable market value.
Fryar v. Sanders, 301 Ark. 379, 784 S.W.2d 168 (1990). An automobile owner was entitled to reasonable damages for the loss of use of a vehicle, even though the vehicle was completely destroyed.
Koninklijke Luchtvaart Maatschaapij v. United Technologies Corp., 610 F.2d 1052 (2d Cir. 1979). The theory behind allowance of damages for loss of use of a damaged vehicle is that it is not the actual use, but the right to use, that is compensable and that is true whether the damaged property was employed in a commercial enterprise or used for pleasure. Under New York and Connecticut law, the owner of a commercial vehicle may recover loss of use damages based on rental value without proving that he suffered an actual financial loss and without proving that he needed a substitute vehicle to cover the loss of the damaged vehicle.
Hamacher v. Decker Livestock, Inc., 536 N.E.2d 304 (Ind. Ct. App. 1989). A claim for loss of use of personal property during the period of repair is a proper damage element in a suit for injury to personal property. The ordinary measure of loss of use damage is the fair rental value of the item.
Long v. McAllister, 319 N.W.2d 256 (Iowa 1982). The State Motor Vehicle Damage Rules are to be modified to permit full compensation, including loss of use damages.
Herzig v. Larson-Sawchak, 464 N.W.2d 754 (Minn. Ct. App. 1991). The owner of a commercial vehicle may recover damages for the loss of use of that vehicle while it is being repaired.
In Re Commodore Hotel Fire and Explosion Cases, 324 N.W.2d 245 (Minn. 1982). When a chattel is damaged, the damages include compensation for loss of use.
Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo. Ct. App. 1978). Ownership of property carries with it the right to use or control the use of that property, and therefore one who has been wrongfully deprived of the use of property has had a loss of one of the valuable rights or interests in property. Generally, damages for wrongful deprivation of the use of property are to be measured by its rental value.
Rosenberg v. Pritchard Servs., Inc., 774 F.2d 293 (8th Cir. 1985). Missouri law permitted an award of damages in a negligence action for office furnishings, other personal property, and for loss of use of personal property arising from a building fire.
Camaraza v. Bellavia Buick Corp., 216 N.J. Super. 263, 523 A.2d 669 (N.J. Super. Ct. App. Div. 1987). Damages for tortious damage to an automobile may include loss of use of the automobile during the time reasonably required to complete repairs, where the owner is temporarily deprived of the use of the automobile.
Stuart v. National Indem. Co., 7 Ohio App. 3d 63, 454 N.E.2d 158 (1982). Damages for loss of use are recoverable for the interval necessary to accomplish repairs in an action for tortious damage to a motor vehicle.
Kinter v. Claverack Rural Elec. Co-op, 329 Pa. Super. 417, 478 A.2d 858 (1984). Damages may be recovered for the loss of use of personal property whether or not the property is repairable.
Corporate Air Fleet of Tenn. v. Gates Learjet, Inc., 589 F. Supp. 1076 (D. Tenn. 1984). Ownership of an item of property carries with it the right to use, or to control the use of, that item of property and, therefore, when a defendant tortiously injures an item of property, a valuable right or interest is lost, namely, the right to use the property. Tennessee law permits recovery for loss of use in a case of a repairable chattel whether the chattel was used for commercial or pleasure purposes.
Badillo v. Hill, 570 So.2d 1067 (Fla. Dist. Ct. App. 1990). An appropriate measure of loss of use damages is the cost of renting a replacement during the period of repairs, regardless of whether or not one actually was rented.
Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750 (Fla. Dist. Ct. App. 1983). In cases involving the loss or interference with the use of a person's property, damages are measured by the amount necessary to rent a similar article, regardless of whether the article is actually rented.
Hamacher v. Decker Livestock, Inc., 536 N.E.2d 304 (Ind. Ct. App. 1989). A claim for loss of use of personal property during the period of repair is a proper damage element in a suit for injury to personal property. The ordinary measure of loss of use damage is the fair rental value of the item.
Persinger v. Lucas, 512 N.E.2d 865 (Ind. Ct. App. 1987). Damages for loss of use of personal property are measured by the reasonable value of the loss of use for the reasonable amount of time required for repair or to obtain a replacement. Generally, reasonable value is measured by the fair or reasonable rental value of like property in the market area.
Ashland Pipeline Co. v. Indiana Bell Tel. Co., 505 N.E.2d 483 (Ind Ct. App. 1987). Damages for loss of use are measured by fair rental value, but may be measured by lost profits where profits are ascertainable.
Public Serv. Co. of Ind., Inc. v. Bath Iron Works Corp., 773 F.2d 783 (7th Cir. 1985). Loss of use damages may be measured by the fair rental value of the property.
Jay Clutter Custom Digging v. English, 393 N.E.2d 230 (Ind. Ct. App. 1979). The proper measure of damages because of deprivation of the use of property is its fair rental value during the time that the injury existed.
Nisbet v. Yelnik, 124 Ill. App. 3d 466, 464 N.E.2d 230 (Ind. Ct. App. 1979). The measure of loss of use damages when the plaintiff has been deprived of the use of personal property is the reasonable rental value of similar property for the period of deprivation.
Nolan v. Auto Transporters, 226 Kan. 176, 597 P.2d 614 (1979). Loss of use is the value of renting a substitute vehicle while repairs are being made.
Romco, Inc. v. Broussard, 528 So.2d 231 (La. Ct. App. 1988), writ denied 533 So.2d 356; Earl Williams Constr. Co. v. Thornton & Brooks, Inc., 501 So.2d 1037 (La. Ct. App. 1987), writ denied 504 So.2d 881. Damages for loss of use are measured by the rental cost of a substitute vehicle.
Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo. Ct. App. 1978). Ownership of property carries with it the right to use or control the use of that property, and therefore one who has been wrongfully deprived of the use of property has had a loss of one of the valuable rights or interests in property. Generally, damages for wrongful deprivation of the use of property are to be measured by its rental value.
Lenz Constr. Co. v. Cameron, 207 Mont. 506, 674 P.2d 1101 (1984). Loss of use damages are measured by the reasonable rental value of a comparable vehicle, regardless of whether one is rented.
Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (1984). The owner of a bus which was damaged in an accident by the negligence of another was entitled to loss of use damages notwithstanding that the owner did not hire a substitute vehicle.
Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632 (1985). A person whose pleasure vehicle has been damaged need not actually rent a substitute vehicle to recover loss of use damages.
Gillespie v. Draughn, 54 N.C. App. 413, 283 S.E.2d 548 (1981), review denied 304 N.C. 726, 288 S.E.2d 805. The measure of damages for loss of use would be the cost of renting a similar vehicle during a reasonable time for repairs.
Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962). The right to compensation for loss of use is not dependent upon the owner having rented a substitute automobile while his own was being repaired.
United States v. Redland, 695 P.2d 1031 (Wyo. 1985). Fair rental value is the measure of damages where a property owner has lost the use of his property.
The renter, additional renter, authorized driver and a responsible third party are responsible to pay for the loss of use.
The rental contract holds the renter of the vehicle responsible for all loss or damage to the vehicle despite fault. The contract language specifically provides for loss of use. The presumption is that the bailee of the property had a duty to keep the property safe and in the same condition in which they received it.
When the property is returned damaged, the presumption is that the damage occurred while the renter had the property. The rental contract is not written to place an undue and unfounded burden on the renter, but rather to enforce the common law presumption that the bailee is responsible for all damage to the property in their care.
Hertz, "Your responsibility will not exceed the full value of the car at the time it is lost or damaged, less its salvage value, plus actual towing, storage and impound fees, an administrative charge and a reasonable charge for loss of use."
National, "I will pay you for all loss, or estimated damages to the vehicle including loss of use, claim processing fees and administrative charges, as permitted by law."
Budget, "Regardless of fault, renter is responsible for all other loss of and damage to the vehicle and all related expenses, plus Budget's loss of use and an administrative charge for expenses associated with processing the loss and damage claim."
Dollar, "Your liability will not exceed the full value of the vehicle, actual towing and storage charges, loss of use and reasonable administrative fees allowed by law."
Avis, "I'll also pay loss of use based on reasonable downtime or as specified by law. Plus a reasonable administrative fee determined by you or specified by law."
If a third party negligently damages the rental vehicle then they are responsible to put the injured party or parties in the position that they would have been in if the injury had never occurred. This includes the loss of use charges. Under the theory of indemnification the third party has a duty to make the injured party whole. This responsibility is to both the driver of the vehicle as well as the owner of the vehicle.
The damages that the rental agency are allowed to collect are intended to put the rental agency where they would have been if the accident or damage had never happened. They are to receive no more and no less than what would compensate them and make them whole for this loss.
The most basic principle of tort law is to make the claimant whole or to return him to his prior status before the tort.
As the renter or additional driver, if you have insurance coverage for rental vehicles, your policy may or may not have coverage for the loss of use. A responsible third party's policy will pay for what they become legally liable for. Since the loss of use is a proper element of the claim, the liability policy should cover this item.
Some credit cards offer a card member benefit which may provide coverage for the administrative fee. Whatever the card member benefit will cover does not effect what the renter owes for the administrative fee.
It has been our experience that American Express states that they state that they have coverage for loss of use but will not pay loss of use charges.
The American Express agreement states, "The Plan reimburses a Card member for payments for damage to or theft of a Rental Auto…The Plan also covers reasonable towing storage and loss of use charges (meaning loss of revenue to a Rental Company due to the loss or disablement of a vehicle)." American Express Guide to Car Rental Loss and Damage Insurance, 2000.
We routinely received letters from American Express that state, "Loss of use will only be considered when the fleet and or a specific class of vehicles (full size, midsize, etc.) is fully utilized and documentation can be provided to support the claim. Payment will be considered only if the specific vehicle type has at least 85% utilization."
It has been our experience that Visa Travel Assist will pay a reasonable amount for loss of use.
It has been our experience that MasterCard states that they state that they have coverage for loss of use but will not pay loss of use charges.
The member benefits plan stats, "Coverage will be provided for reasonable and customary loss of use charges that are substantiated by a fleet utilization log and imposed by the rental car company for the period of time the car is being repaired." Presenting the Benefits that Make Your Gold MasterCard Smart Money, 1996.
It has been our experience that Diner Club will pay a reasonable amount for loss of use.
Rental agencies account for their vehicles on a utilization log. This log tells them how cars are being used. It's primary purpose is to show how many cars are being rented. This log does not show each and every car is being used or all of the possible uses for the car.
No, since utilization only shows what vehicles are on rent and what vehicles are not, it only shows one use for the vehicle. Rental companies have many uses for their vehicles and the loss of use is to compensate the owner of the vehicle for the lost opportunity to use that vehicle is what ever manner that they choose.
While vehicles are an income asset, agencies have paid good money to have a large selection and supply of vehicles for their customers. The rental agency uses these vehicle for many diverse reasons. Vehicles are provided as part of employee compensation. Vehicles may be provided to corporate shareholders as well. Agency's may provide vehicles for complimentary or promotional purposes or awarded as employee perks or bonuses. All of these vehicles would be used but present no rental value to the company. Other promotional values exist: balloons in front of the station, for golf tournament use, etc. Rental companies also need adequate fleet variety and number for marketing purposes such as promotional upgrades. This goes to the heart of customer service which is integrally related to their business reputation. When agencies have inadequate numbers of cars or vehicle model types, their customer service and reputation is jeopardized.
Your damage claim is about the one car that was damaged. The rental agency purchased that piece of property and has the right to use that piece of property. When the vehicle is damaged, the owner is deprived of their right to use that piece of property in whatever manner that they see fit.
Many courts have looked at this issue. In American Telephone & Telegraph Company v. Connecticut Light & Power Company, 470 F.Supp 105 (US District Court of Connecticut 1979) the court explained, "…The value of an article to its owner…lies in his right to use, enjoy, and dispose of it. These are the rights of property which ownership vests in him, and whether he, in fact, avails himself of his right of use, does not in the least affect the value of his use…His right of user, whether for business or pleasure, is absolute, and whoever injures him in the exercise of that right renders himself liable for consequent damage…quoting from Cook v. Packard Motor Car Co., 92 A at 418, 88 Conn at 603 (Wheeler, J. Concurring)
The rental contact holds the renter responsible for all loss or damage to the vehicle despite fault. We always attempt to collect from the at fault third party first, but if they fail to pay for the damages, you are responsible under the contract.
The rental contact does not govern the third party. It is tort law which requires the third party to pay the administrative fee. However, if the third party fails to pay the loss of use and the renter is required to make payment to the rental agency, then the renter may have a cause of action against the third party. This is due to the fact that the renter would not have had this damage if it had not been for the negligence of the third party.
The case law concerning the amount of loss of use damages universally requires that loss of use be allowed for a reasonable period of time. Our formula has been designed to generate a reasonable charge for loss of use. Our loss of use formula is determined by a three-part formula which calculates the number of days that the vehicle was out of service multiplied by the daily rental rate on the contract.
First, for purposes of the formula, one day is equal to four labor hours, representing the average number of hours that a vehicle is worked on per day. It is reasonable to assume that a vehicle has waiting time in the shop. This can be due to paint drying, waiting for parts, or just downtime in the course of the shops cycles. In the normal course of a days work in a body shop the technician will not take one vehicle and work on that vehicle without interruption for the entire 8 hour day. Therefore it is completely reasonably to use the 4 hour figure to determine a work day on the damaged vehicle.
Second, two weekend days are added for every five repairs days, assuming that every repair beings on a Monday to allow for the fewest weekends possible. Obviously if the vehicle will be in the shop over the weekend, then the rental agency can not use it during that period and no work is being done on the repair. You have made the choice to theoretically being all repairs on a Monday. This ensures that you will not use a weekend to "create" additional loss of use.
Third, three administrative days are allowed to obtain an estimate, take the vehicle to the shop and retrieve the vehicle. The repair of the vehicle is from the time that the owner is deprived of the use until the property is repaired and returned to the owner. As long as the amount of time is reasonable the rental agency has a right to be compensated for these administrative days.
Some states have specific regulations for car rental companies and others allow common law to dictate damages to rental vehicles.
The majority position across the country is that loss of use is an injury that must be compensated for as part of the damage claim.
The following is a sample of case law on the topic of loss of use.
Hannah v. Brown, 400 So. 2d 410 (Ala. Civ. App. 1981). The loss of the use of a personal automobile during the reasonable period of repair is an element of recoverable damages in addition to the difference between the before and after reasonable market value.
Fryar v. Sanders, 301 Ark. 379, 784 S.W.2d 168 (1990). An automobile owner was entitled to reasonable damages for the loss of use of a vehicle, even though the vehicle was completely destroyed.
Koninklijke Luchtvaart Maatschaapij v. United Technologies Corp., 610 F.2d 1052 (2d Cir. 1979). The theory behind allowance of damages for loss of use of a damaged vehicle is that it is not the actual use, but the right to use, that is compensable and that is true whether the damaged property was employed in a commercial enterprise or used for pleasure. Under New York and Connecticut law, the owner of a commercial vehicle may recover loss of use damages based on rental value without proving that he suffered an actual financial loss and without proving that he needed a substitute vehicle to cover the loss of the damaged vehicle.
Hamacher v. Decker Livestock, Inc., 536 N.E.2d 304 (Ind. Ct. App. 1989). A claim for loss of use of personal property during the period of repair is a proper damage element in a suit for injury to personal property. The ordinary measure of loss of use damage is the fair rental value of the item.
Long v. McAllister, 319 N.W.2d 256 (Iowa 1982). The State Motor Vehicle Damage Rules are to be modified to permit full compensation, including loss of use damages.
Herzig v. Larson-Sawchak, 464 N.W.2d 754 (Minn. Ct. App. 1991). The owner of a commercial vehicle may recover damages for the loss of use of that vehicle while it is being repaired.
In Re Commodore Hotel Fire and Explosion Cases, 324 N.W.2d 245 (Minn. 1982). When a chattel is damaged, the damages include compensation for loss of use.
Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo. Ct. App. 1978). Ownership of property carries with it the right to use or control the use of that property, and therefore one who has been wrongfully deprived of the use of property has had a loss of one of the valuable rights or interests in property. Generally, damages for wrongful deprivation of the use of property are to be measured by its rental value.
Rosenberg v. Pritchard Servs., Inc., 774 F.2d 293 (8th Cir. 1985). Missouri law permitted an award of damages in a negligence action for office furnishings, other personal property, and for loss of use of personal property arising from a building fire.
Camaraza v. Bellavia Buick Corp., 216 N.J. Super. 263, 523 A.2d 669 (N.J. Super. Ct. App. Div. 1987). Damages for tortious damage to an automobile may include loss of use of the automobile during the time reasonably required to complete repairs, where the owner is temporarily deprived of the use of the automobile.
Stuart v. National Indem. Co., 7 Ohio App. 3d 63, 454 N.E.2d 158 (1982). Damages for loss of use are recoverable for the interval necessary to accomplish repairs in an action for tortious damage to a motor vehicle.
Kinter v. Claverack Rural Elec. Co-op, 329 Pa. Super. 417, 478 A.2d 858 (1984). Damages may be recovered for the loss of use of personal property whether or not the property is repairable.
Corporate Air Fleet of Tenn. v. Gates Learjet, Inc., 589 F. Supp. 1076 (D. Tenn. 1984). Ownership of an item of property carries with it the right to use, or to control the use of, that item of property and, therefore, when a defendant tortiously injures an item of property, a valuable right or interest is lost, namely, the right to use the property. Tennessee law permits recovery for loss of use in a case of a repairable chattel whether the chattel was used for commercial or pleasure purposes.
Badillo v. Hill, 570 So.2d 1067 (Fla. Dist. Ct. App. 1990). An appropriate measure of loss of use damages is the cost of renting a replacement during the period of repairs, regardless of whether or not one actually was rented.
Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750 (Fla. Dist. Ct. App. 1983). In cases involving the loss or interference with the use of a person's property, damages are measured by the amount necessary to rent a similar article, regardless of whether the article is actually rented.
Hamacher v. Decker Livestock, Inc., 536 N.E.2d 304 (Ind. Ct. App. 1989). A claim for loss of use of personal property during the period of repair is a proper damage element in a suit for injury to personal property. The ordinary measure of loss of use damage is the fair rental value of the item.
Persinger v. Lucas, 512 N.E.2d 865 (Ind. Ct. App. 1987). Damages for loss of use of personal property are measured by the reasonable value of the loss of use for the reasonable amount of time required for repair or to obtain a replacement. Generally, reasonable value is measured by the fair or reasonable rental value of like property in the market area.
Ashland Pipeline Co. v. Indiana Bell Tel. Co., 505 N.E.2d 483 (Ind Ct. App. 1987). Damages for loss of use are measured by fair rental value, but may be measured by lost profits where profits are ascertainable.
Public Serv. Co. of Ind., Inc. v. Bath Iron Works Corp., 773 F.2d 783 (7th Cir. 1985). Loss of use damages may be measured by the fair rental value of the property.
Jay Clutter Custom Digging v. English, 393 N.E.2d 230 (Ind. Ct. App. 1979). The proper measure of damages because of deprivation of the use of property is its fair rental value during the time that the injury existed.
Nisbet v. Yelnik, 124 Ill. App. 3d 466, 464 N.E.2d 230 (Ind. Ct. App. 1979). The measure of loss of use damages when the plaintiff has been deprived of the use of personal property is the reasonable rental value of similar property for the period of deprivation.
Nolan v. Auto Transporters, 226 Kan. 176, 597 P.2d 614 (1979). Loss of use is the value of renting a substitute vehicle while repairs are being made.
Romco, Inc. v. Broussard, 528 So.2d 231 (La. Ct. App. 1988), writ denied 533 So.2d 356; Earl Williams Constr. Co. v. Thornton & Brooks, Inc., 501 So.2d 1037 (La. Ct. App. 1987), writ denied 504 So.2d 881. Damages for loss of use are measured by the rental cost of a substitute vehicle.
Riddle v. Dean Machinery Co., 564 S.W.2d 238 (Mo. Ct. App. 1978). Ownership of property carries with it the right to use or control the use of that property, and therefore one who has been wrongfully deprived of the use of property has had a loss of one of the valuable rights or interests in property. Generally, damages for wrongful deprivation of the use of property are to be measured by its rental value.
Lenz Constr. Co. v. Cameron, 207 Mont. 506, 674 P.2d 1101 (1984). Loss of use damages are measured by the reasonable rental value of a comparable vehicle, regardless of whether one is rented.
Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (1984). The owner of a bus which was damaged in an accident by the negligence of another was entitled to loss of use damages notwithstanding that the owner did not hire a substitute vehicle.
Martin v. Hare, 78 N.C. App. 358, 337 S.E.2d 632 (1985). A person whose pleasure vehicle has been damaged need not actually rent a substitute vehicle to recover loss of use damages.
Gillespie v. Draughn, 54 N.C. App. 413, 283 S.E.2d 548 (1981), review denied 304 N.C. 726, 288 S.E.2d 805. The measure of damages for loss of use would be the cost of renting a similar vehicle during a reasonable time for repairs.
Holmes v. Raffo, 60 Wash. 2d 421, 374 P.2d 536 (1962). The right to compensation for loss of use is not dependent upon the owner having rented a substitute automobile while his own was being repaired.
United States v. Redland, 695 P.2d 1031 (Wyo. 1985). Fair rental value is the measure of damages where a property owner has lost the use of his property.
No, loss of profits is a different damage. Loss of use deals with the property right to use your property in what ever manner that the owner deems fit. Loss of profits is the inability to make money on your property.
In American Telephone & Telegraph Company v. Connecticut Light & Power Company, 470 F.Supp 105 (US District Court of Connecticut 1979) the court held that loss of use is a right associated with the rights of ownership. It should not be compared with loss of profits and should be proven with a degree of certainly and reasonableness. One possible way to measure loss of use damages is the rental value less overhead costs saved.
"At the outset, a distinction should be drawn between loss of profits and loss of use. Loss of profits would be measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation. Loss of use, on the other hand, is the loss of an incident of ownership the right to use."
…The value of an article to its owner…lies in his right to use, enjoy, and dispose of it. These are the rights of property which ownership vests in him, and whether he, in fact, avails himself of his right of use, does not in the least affect the value of his use…His right of user, whether for business or pleasure, is absolute, and whoever injures him in the exercise of that right renders himself liable for consequent damage…quoting from Cook v. Packard Motor Car Co., 92 A at 418, 88 Conn at 603 (Wheeler, J. Concurring)
Footnote 2 "Ownership of an item of property carrier with it the right to use, or to control the use of, that item of property. Therefore, where the defendant tortiously injures, destroys, or takes an item of property, there has been a loss of one of the valuable rights or interests in property the right to use the property. Awarding plaintiff only the cost of repair or the decrease in market value fails to recognize that he has lost the use of the property item during the time reasonable needed to repair or replace it…" 22 Am.Jur.2d Damages 152 (1965)
Lost profits is to difficult to determine and is usually not allowed by the courts.
In National Dairy Products Corporation v. Jumper, 241 Miss. 339, 130 So.2d 922 (1961), the court stated, "The weight of authority is that, except in special circumstances, loss of profits cannot be considered as a measure of such damages. Such an element usually contains considerable speculation and conjecture. 4 A.L.R. 1361; 5A Am.Jur., ibid., Sec. 1116 25 C.J.S. Damages § 83, p 602; Annotation 169 A.L.R. 1074 (1947). A more precise and easily defined measure for loss of use of a commercial vehicle is the rental or useable value of the property during the period the owner has been deprived of it. This is the generally recognized criterion. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered even though no to her was actually procured during the interval. 5A Am.Jur., ibid., Sec. 1115."
In Southern Crate & Veneer Company v. McDowell, 293 S.E. 2d 541, 163 Ga.App. 153 (Georgia 1982) the court held, "Generally expected profits of a commercial business are too uncertain and speculative to be awarded. One exception would be if the type of business made the calculation of the history of profits readily ascertainable."
Maryland Casualty Co. v. Florida Produce Distribs., Inc., 498 So.2d 1383 (Fla. Dist. Ct. App. 1986). When the measure of damages properly involves the loss of use of property used in a business, "profits" allegedly lost because of the loss of use of the property is a concept subject to too many variables to be properly used as a measure of the value of the loss of use, and the best evidence of lost use value of property is the actual or theoretical reasonable rental value of similar property.
Chlopek v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986). An award of damages for loss of use of a commercial vehicle in the amount of loss of profit until the vehicle could be replaced was improper, as the proper measure was the fair rental value of property of a like or similar nature or the amount actually paid for rental.
Robbins Motor Transp., Inc. v. Key GMC Truck Sales, Inc., 56 Ohio App. 2d 165, 381 N.E.2d 1329 (1978). When a vehicle has been negligently damaged in part and is capable of being repaired within a reasonable period of time, the owner may recover two elements of damage: loss in value, measured by the difference in the value of the vehicle immediately before and immediately after the damage; and the loss of use of the vehicle for such reasonable period of time as is necessary to make the repairs, measured by the reasonable rental value of a vehicle of like kind. It is reversible error to use the gross earnings of the damaged vehicle or the reasonable value to the owner himself.
Wheatland Irrigation Dist. v. McGuire, 562 P.2d 287 (Wyo. 1977). Any approach to damages for loss of use is a speculative and fruitless venture when based upon profitability of operation. Rental value is a practical measure to be used in determining damages for loss of use of property.