Date: 10-02-2012
Case Style: Joseph Milton v. Extreme Paint and Body Shop, Inc.
Case Number: CJ-2011-2644
Judge: Lisa T. Davis
Court: District Court, Oklahoma County, Oklahoma
Plaintiff's Attorney: James D. Harvey
Defendant's Attorney: Janet L. Cox
Description: COMES NOW the Plaintiff, Joseph Milton, by and through his attorney of record, James D. Harvey, Jr. of Riggs, Abney, Neal, Turpen, Orbison & Lewis, 5801 Broadway Extension, Suite 101, Oklahoma City, Oklahoma 73118, and for his Petition alleges and states as follows:
1. That the Plaintiff is a resident of Oklahoma County, State of Oklahoma. That the Defendant is a Domestic Business Corporation whose business offices are located in, and which does business in, Oklahoma County, State of Oklahoma. That the actions and events that form the basis of this action took place in Oklahoma County, State of Oklahoma. That the Contractual relationships described herein were entered into, the performance under the Contract was performed in and the Contract was intended to be performed in Oklahoma County, State of Oklahoma. That jurisdiction and venue are properly laid before this Court.
2. That the Plaintiff is the owner of a 2009 Buick Enclave motor vehicle (herein referred to as “the Buick” or “Buick”).
3. That the Defendant is an Oklahoma Domestic Corporation in the business of repairing motor vehicles.
4. That, prior to the parties entering into the relationship which forms the basis of this action, Plaintiffs vehicle sustained hail damage causing the Plaintiff to seek repairs to the Buick.
5. That the Plaintiff hired the Defendant to perform, and the Defendant agreed to perform, certain repairs to the Buick necessitated by the hail damage to the Buick.
6. That the Defendant performed service on the Buick which Plaintiff, using finds provided by Plaintiff’s insurance company, paid for in fill.
7. That the work performed on the Buick by Defendant was done in an unworkmanlike manner, caused extensive damage to the Buick beyond the hail damage, failed to adequately repair the hail damage to the Buick and negligently damaged the Buick.
8. That Plaintiff is entitled to recover damages in Contract and Tort from Defendant resulting from the un-workmanlike and negligent work done by Defendant.
COUNT 1-BREACH OF CONTRACT
9. Plaintiff realleges and readopts those allegations set forth above as hilly and completely as if set forth again.
10. That Plaintiff and Defendant entered into a Contract/Agreement wherein Defendant promised to repair the hail damage to the Buick and Plaintiff promised to pay Defendant for the parts and labor required to complete the promised repairs.
11. That by agreeing to perform work in a contract, a person promises to use reasonable skill, care, and diligence and that the work will be done in a workmanlike manner and be reasonably fit for its intendcd use. Keel v. Titan Constr, Corp. 639 P.2d 1228 (Okla. 1981); Cox i Curneft, 271 P.2d 342 (Okla. 1954). That this term was implied in the Contract/Agreement between the parties.
12. That the Defendant breached the Contract/Agreement between the parties in that Defendant did not perform the work contracted for in a workmanlike manner, did not use reasonable skill, care, and diligence in performing the work and that the result of the work performed was not reasonably fit for its intended use.
13. That Plaintiff has suffered damages as a result of Defendant’s breach in that the Buick is now in a condition worse than when it was brought to Defendant for work and Plaintiff must now retain the services of a third party to not only perform the work originally contracted for with Defendant, but to repair the damages to the Buick caused by Defendant.
14. That Plaintiff is entitled to recover damages from Defendant for breach of Contract, along with his reasonable attorney’s fees and costs.
15. Plaintiff realleges and readopts those allegations set forth above as fully and completely as if set forth again.
16. That the Defendant owed a duty to the Plaintiff to use the care and prudence that a reasonably prudent person in Defendant’s position would use in the repair and care of the Buick.
17. That the Defendant breached its duty of care to the Plaintiff in that, through the negligent work of the Defendant, and Defendant’s negligent care of the Buick, the Buick was in worse condition when it left the care of the Defendant that when it was left in the care of the Defendant.
18. That Plaintiff has been damaged by Defendant’s negligence in that Plaintiff must now retain the services of third parties to repair both the original damage the Buick was brought to Defendant to repair and the damages caused by Defendant’s negligent work on, and care of, the Buick.
19. That Plaintiff is entitled to recover damages from Defendant for damages actually and proximately caused by the negligence of the Defendant, along with a reasonable attorney’s fee and costs.
COUNT III - BREACH OF BAILEE’S DUTY
20. Plaintiff realleges and readopts those allegations set forth above as fully and completely as if set forth again.
21. As a Bailee for hire, Defendant had a duty to Plaintiff to use at least ordinary care to preserve the Buick. “Ordinary care” is the care which a reasonably careful person would use under the same or similar circumstances.
22. Plaintiffs entrusting of the Buick to the Defendant was not gratuitous, and Defendant was therefore a bailee for hire.
23. Defendant breached its duty of care to Plaintiff as set forth above.
24. Plaintiff is entitled to damages from Defendant for breach of Defendant’s duty to Plaintiff as a bailee for hire, along with a reasonable attorney’s fee and costs.
WHEREFORE Plaintiff prays this Court award him judgment against the Defendant for Breach of Contract, Negligence and/or brcach of Defendant’s duty as a bailee for hire, all in excess of ten thousand dollars ($10,000.00), his reasonable attorney’s fees and costs, and such other relief as the Court deems fit and proper.
COMES NOW the Defendant, EXTREME PAINT AND BODY SHOP, NC., by and through their attorney of record, JANET L. COX, and for its Answer to the Petition of Plaintiff, alleges and states as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted
5. Admitted.
6. Admitted.
7. Defendant denies the allegations set forth in Paragraph 7 of Plaintiff’s Petition and demands strict proof thereof.
8. Defendant denies the allegations set forth in Paragraph 8 of Plaintiff’s Petition and demands strict proof thereof
COUNT I -BREACH OF CONTRACT
9. No admission required.
10. Admitted subject to strict proof thereof as to the terms and conditions ofthe contract between Plaintiff and Defendant.
11. Admitted subject to the terms and conditions of the agreement between the parties.
12. Denied. Defendant demands strict proof thereof
13. Denied. Defendant demands strict proof thereof.
14, Denied.
COUNT II- NEGLIGENCE
15. No Admission required. Defendant realleges and reaxiopts its answers to Plaintiffs Petition set forth above as fully and completely as if set forth again.
16. Denied. Any and all claims of Plaintiff are subject to the terms and conditions of the agreement between the parties and any allegations of negligence are subject to the contractual relationship between the parties. Defendant specifically denies any claims of negligence and demands strict proof
17. Denied. Defendant demands strict proof thereof
18. Denied. Defendant re-alleges its answer to Paragraph No. 16.
19. Denied. Defendant demands strict proof thereof and re-alleges its answer in Paragraph No. 16.
COUNT III- BREACH OF BAILEE’S DUTY
20. No Admission required. Defendant realleges and readopts its answers to Plaintiffs Petition set forth above as fully and completely as if set forth again.
21. Denied.
22. Denied.
23. Denied.
24. Denied
WHEREFORE, Defendants pray that the relief sought by Plaintiff be denied; Defendant be granted a reasonable attorney fee for the defense of this action, and for such other and further relief as this court deems necessary and proper.
Outcome: Plaintiff's verdict for $11,353.79
Plaintiff's Experts:
Defendant's Experts:
Comments:
