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October 01, 2006 | Publication| Something Old...Something New...: the Availability of "Sentimental Value" Damages in Courts Throughout the United States

Denise M. Anderson

This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Fall 2006, Page 49. © Copyright 2006 by NASP. All rights reserved. Republished by Butler with permission from NASP. 
 

"My grandfather's law diploma means the world to me. It was framed and given to me after his death by my family, as I was the only child to become an attorney as well."[FN1] These self professed statements of value are heard over and over by subrogation attorneys throughout the United States during painstaking conferences with the insured to determine the value of his or her uninsured losses after a catastrophic loss. Quite simply, attorneys often attempt to assess the "value" of a certain personal items of the insured, when actually, no realistic fair market value exists. Such items are considered "irreplaceable" by the insured, and consist of photographs, family heirlooms, wedding memorabilia, and family documents such as marriage licences. While many people would find it difficult to value such property, courts throughout the Country are placed in the unique position, of being forced to deal such valuation problems. The result has brought about several court opinions throughout our Union, wherein each court has placed a unique spin on valuating items which essentially have no market value. This article attempts to provide a review of how different courts in the United States tackle the daunting task of valuing one's personal property when it has little or no market value.

As a general principle, most courts throughout the United States hold that the proper measure of damages for lost or destroyed personal property is its market value, the theory being that the injured party should be made whole, by being able to buy items to replace the others in the current marketplace.[FN2] However, many courts have recognized the inequities that arise when the market value of the item is inadequate to fully compensate the owner of the property. Thus, courts developed alternative mechanisms by which to compensate an injury party for items that the owner considers valuable, over an above any market value.

That being said, however, many state courts expressly state in decisions that the measure of damages for the loss or destruction of personal property should generally not include the sentimental or fanciful value of the property attached by the owner, including New York, Arizona, Georgia, Louisiana, Mississippi, Missouri, Wisconsin and Texas.[FN3]

New York courts, for instance, firmly hold that sentimental value should not be considered in assessing the value of a lost or converted item and that an "owner should be allowed to recover the value to him based upon his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property, not including, however, any sentimental or fanciful value he may for any reason place upon it."[FN4] In another decision involving an action against a bailee for the loss of a family photograph, a New York court reversed a judgment which awarded a plaintiff $100 for the photograph, holding that the proper measure of damages was the value of the photograph itself, and not its sentimental value.[FN5] However, the court did allow for the consideration of the probability (or lack thereof) of replacing the photo as a measure of evaluating the property for its value.[FN6]

While certain courts seem to discount the use of "sentimental value" when assessing damages awards, several courts throughout the United States will allow an award of damages based upon evidence of an item's actual value to a particular owner, including Alabama, Arizona, California, Florida, Georgia, Massachusetts, Minnesota, Mississippi, Missouri, New Mexico, New York, Ohio, Oregon, Tennessee, Louisiana, Illinois, Oklahoma, Connecticut, Texas and Wisconsin, Idaho, Illinois, Nebraska, and Arkansas.[FN7] In addition, courts consider various factors such as the original cost of the item, as well as the item's reproduction or replacement cost (including the probability, practicability or difficulty of replacement) when determining such "actual" value.[FN8]

As an example, in the Georgia decision of Cherry v. McCutchen,[FN9] a defendant storage company appealed a trial court's decision to admit testimony of an owner plaintiff regarding a lost oil painting, which was created by his deceased mother. The owner's testimony described what the he planned to do with the painting in connection with a home he was building at the time he discovered it missing, including the facts that plans were specifically drawn for a mantel and fireplace for the placement of the painting, and draperies were ordered for the home to match the painting.[FN10] Although the Georgia court did not discuss the owner's testimony related to his mother particularly, the court did find that the law of the case was properly laid down by trial court, stating that the suitable measure of damages was "the actual value of the picture to the owner, and anything properly going to show the actual value to the owner was admissible."[FN11] The McCutchen court also found that it was appropriate that the owner testified as to his personal value of $2,500 for the painting, which he stated was based upon "no sentiment whatsoever."[FN12]

Tennessee courts also follow the more elastic doctrine of "value to the owner" when determining the value of lost or damaged personal property. While not mentioning the word "sentimental," one such court surmised its view of the doctrine:

The doctrine [...] is most frequently and conveniently resorted to in cases of loss of, or damage to, articles which the plaintiff has acquired for personal or domestic use and not for business purposes, such as household goods, clothing, pictures, books and the like. While usually these things have some slight value for sale at secondhand, this market value would be a very inadequate compensation to the plaintiff who acquired them for use, not for sale. The fact that the property was of this character, that is, used clothing or household goods intended for the owner's use, is a sufficient showing that market value as secondhand goods is an inappropriate standard, and casual holdings that proof must be made that there is no market value can hardly be supported.[FN13]

In addition, the recent Louisiana appellate court decision of National Union Fire Ins. Co. of Louisiana v. Harrington[FN14] is most instructive regarding the current state of Louisiana's recognition of the owner's actual or personal value when evaluating damages. In Harrington, a homeowner and her insurer filed an action against a vehicle manufacturer, owner, operator and their insurers to recover damages for destruction of a home which occurred when a rented vehicle started a fire in the home's carport. After the jury awarded general damages in the amount of $161,000.00, the defendants appealed on the ground that the award was excessive, as it did not factor in depreciation. The court held that the general rule of damages for valuation of tortiously damaged property without market value is the actual or intrinsic value of the property to the owner.[FN15] In affirming the jury's award, the court espoused that, while monetarily the homeowner's items had depreciated, for her, the value of such personal property actually appreciated as time progressed. The court noted that such items like "family photographs, her family Bible, the rosary she received when she made her first Communion, a teacup collection, and items that her husband had given her or built for her" were irreplaceable."[FN16]

South Carolina also follows the "value to the owner" doctrine when valuing personal property in such circumstances. In T.M. Nelson v. Coleman Co.,[FN17] the Supreme Court of South Carolina affirmed a jury award based upon a homeowner's own testimony as to the value of the contents of his home lost in a fire resulting from an oil-burning fuel furnace failure, despite the appellant's contention that the damages were not based upon competent evidence. The court explained that an owner's belongings are often more personal to the owner, and that another item of equal age, quality and condition is not interchangeable with the item that was destroyed. Moreover, the court agreed that certainly an owner may testify as to his estimate of the reasonable value of his personal property, or the property's "special value to him."[FN18]

Florida courts, as with many other jurisdictions discussed herein, generally hold that the proper measure of damages for loss of personal property is its market value on the date of the loss.[FN19] However, Florida courts do follow the trend of the majority to allow recovery above the objective diminution in market value for such items in certain circumstances.[FN20] Specifically, Florida courts have stated in dicta: "[i]f the item has no market value, such as heirlooms, etc., of necessity other sources must be used to determine value."[FN21]

The plaintiffs in Florida Public Utilities Co. v. Webster,[FN22] brought suit in their own name (also in the name of their fire insurance companies as subrogees) to recover damages for the value of their property destroyed by fire, including china, furniture, photos and a piano, on the theory that the utility company failed to furnish water sufficient to properly attend to the blaze. On appeal, the utility company stated that the evidence to sustain the plaintiff's award for damages for such items was insufficient, and speculative. However, the court, when discussing the proof of damages issue, found that although the evidence regarding the value of the property was largely opinion evidence [of the owners], it did not discredit such testimony or remove it from the province of the jury on which to predicate a verdict.[FN23]

The court further explained that the personal property of the owners, many of which were heirlooms inherited from their parents, were shown to be of great value. Thus, "[i]t is often impossible to place what is a current market value on such articles, but the law does not contemplate that this be done with mathematical exactness. The law guarantees every person a remedy when he has been wronged."[FN24] In conclusion, the Court found that when such wrong is demonstrated, it becomes the duty of the court and jury to apply a test that will reasonably compensate the person wronged rather than one that makes it impossible to do so.[FN25]

One recent Florida case focused particularly on the issue of an award of damages for the sentimental value of jewelry in light of its established fair market value. In Carye v. Boca Raton Hotel and Club Ltd. P'ship,[FN26] the plaintiff lost jewelry acquired by herself and her husband throughout their 48 year marriage, and sought damages for the sentimental value of the jewelry after it was stolen from a hotel safe.

The Court found that indeed the jewelry had sentimental value, having been collected by the plaintiff for over a period of several years. However, the court noted that because the jewelry also had a significant market value, it would not be "manifestly unfair," for the jury to consider its market value alone. The court stated that as the burden of damages rests with the plaintiffs: "[W]e conclude that in a situation where the lost property has both a market value and sentimental value, as is the case here, the burden again rests with the plaintiff to prove that the market valuation would be manifestly unfair."[FN27]

Moreover, as we are aware, personal property is not limited to just tangible possessions, and includes those creatures dear to our hearts: their pets. In Florida, courts have allowed evidence as to an owner's mental suffering associated with the malicious killing of her dog to be submitted to the jury for its consideration in assessing damages,[FN28] however, such testimony cannot be considered when only negligence is alleged.[FN29]

It does appear that North Carolina Courts, if given the opportunity, would consider personal factors in the valuation of lost or damaged personal property. Recently, a North Carolina appeals court reversed a trial court's decision awarding a plaintiff its replacement cost of certain trees lost as a result of a defendant developer's construction of a road, finding that damage to real property is valued as the difference between the market value of the property before and after the injury.[FN30] However, the court did note that when such property is used for a purpose which is personal to the owner, the replacement cost is an acceptable measure of damages.[FN31]

Of course, the admissibility and relevance of an insured's testimony must always be considered when evaluating what elements of proof should be offered to prove an insured's uninsured losses. To that end, it has frequently been held that an owner's testimony is allowed to establish the worth of a particular to him.[FN32]

In conclusion, when evaluating the value of certain nostalgic property of an insured, be mindful that such "sentimental" property may have an intrinsic market value despite its nostalgic qualities. Therefore, attempt to determine whether a personal property item holds some unique historical, cultural or personal value independent of its sentiment in an effort to assist courts and juries to evaluate the item based upon its actual or intrinsic value.

Footnotes

FN1.This diploma belongs to the first author of this article.

FN2.W.E. Shipley, Annotation, Measure of Damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R. 902, § 1(a)(1950).

FN3.Id. at § 7; But see Brown v. Frontier Theaters, Inc., 369 S.W.2d 299 (Tex. 1963)(held that although generally recovery for sentimental value for personal property cannot be had in a suit for loss of property for personal use such as wearing apparel and household goods, such a rule does not deny recovery for sentimental value in a suit for loss of heirlooms or in a suit to recover for loss of items which has their primary value in sentiment).

FN4.Twerskey v. Pennsylvania R. Co., 152 Misc 300, 301 (N.Y. App. Div. 1934)(quoting Lake v. Dye, 232 N.Y. 209).

FN5.Ottavio Valentino v. Nasio Studio, Inc., 136 Misc. 826, 826 (N.Y. App. Div. 1930).

FN6.Id.

FN7.W.E. Shipley, Annotation, Measure of Damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R. 902, § 3(a)-(b)(1950).

FN8.Id. at §§  4-5.

FN9.23 S.E.2d 587 (Ga. App. 1942).

FN10.Id. at 594.

FN11.Id. (emphasis added).

FN12.Id.

FN13.R. Clift v. Fulton Fire Ins. Co., 44 Tenn. App. 483(1958)(quoting McCormick on Damages(1935)170-71).

FN14.854 So. 2d 880 (La. App. 3rd Cir. 2003).

FN15.Id. at 896-97.

FN16.Id.

FN17.155 S.E.2d 917 (S.C. 1967).

FN18.Id.

FN19.McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So. 2d 697 (Fla. 4th DCA 1973).

FN20.Reis, John W., Measure of Damages in Property Loss Cases, 76 OCT Fla. B.J. 32 (2002).

FN21.John Brown, Inc. at 698.

FN22.150 Fla. 378 (1942).

FN23.Id. at 381.

FN24.Id. at 381.

FN25.Id. at 382.

FN26.676 So. 2d 1020 (Fla. 4th DCA 1996).

FN27.Id. (emphasis added).

FN28.La Porte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964.

FN29.See Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st DCA 2004).

FN30.Huberth v. Holly, 462 S.E.2d 239 (N.C. App. 1995).

FN31.Id.

FN32.W.E. Shipley, Annotation, Measure of Damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R. 902, § 1(a)(1950).

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Contact the authors for the full version of the article.

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December 05, 2006 PublicationUnderwriters Laboratories—The Forgotten Island In The Litigation Seas—"Full Of Fruit"—For Bolstering Or Undercutting Product Integrity

Underwriters Laboratories Inc. ("UL") is a nonprofit organization conducting product safety evaluations. UL Marks are on 19 billion products ( www.ul.com ). As of 2005, there are more than 71,000 manufacturers producing UL-certified products and 97 countries where UL customers are located. UL publishes hundreds of safety standards and disseminates safety information globally.

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November 12, 2006 PublicationSubrogating Hurricane Claims

The word "hurricane" originates from the Spanish word, "Huracán," for the ancient Mayan "storm god." No doubt the Mayans suffered frequently from Huracán's wrath. But unlike the Mayans, recent storms have led insurers to vigorously pursue subrogated hurricane claims. This article will explore issues associated with the successful pursuit of subrogation claims arising from hurricanes.[1]

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August 01, 2006 PublicationThe Big Daubert Hurdles in Fire & Explosion Litigation

Over a decade has passed since the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc ., 509 U.S. 579 (1993), and it is time to evaluate where we've been, where we are, and where we are headed on the admissibility of expert opinion testimony in fire and explosion cases.

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May 09, 2006 Publication"Top-Dog" Depositions The Hurdles to Overcome

High-level executives are frequently sought to be deposed because of their unique corporate roles for, inter alia, policy making, corporate governance and implementing policy compliance and corrective actions. On a tactical basis, the executive deposition is pursued so that your adversary's "figurehead" directly feels the "hot buttons" of your case, real-time, without layers of filtering and spin. "Top-dog" depositions, commonly called "apex depositions," cover a wide range of executives, including CEOs, presidents and other senior management positions.

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May 01, 2006 PublicationAlternative Ways To Use Evidence Of "Other Conduct" That Would Otherwise Not Be Admitted

In developing your case, as plaintiff or defendant, it is important to appreciate the various alternative ways for opening the door to "other conduct" evidence to prove relevant facts at issue. Below is a synopsis of strategic methods and insights for proffering evidence of character for a non-propensity purpose, habit, subsequent remedial measures and prior occurrences/failures.

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April 01, 2006 PublicationRecent Change in Florida's Spoliation Law

Until 2003, Florida courts recognized an independent tort of spoliation for both first and third party claims. However, that all began to change with the Fourth District Court of Appeal's decision in Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003). In Martino, the plaintiffs filed a premises liability action against Wal-Mart, alleging that Mrs. Martino was injured while shopping at a Wal-Mart store when her shopping cart collapsed. Later, when Wal-Mart could not produce the shopping cart nor the security video that may have recorded the incident, the plaintiffs added a claim against Wal-Mart for spoliation of evidence. Wal-Mart filed a motion to dismiss the plaintiff's spoliation claim, which the trial court granted.

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October 01, 2005 PublicationFire Department Negligence Not Considered Intervening Cause in Franklin County, Ohio

This case involves a subrogation action following payments made by a commercial property carrier to its insured as a result of a fire that occurred at an insured apartment complex located in Franklin County, Ohio. The fire occurred on January 28, 2003, after one of the tenants in the apartment complex placed hot ashes from his fireplace into a cardboard box, and then left the box unattended inside of his unit. Approximately 30 minutes later, a fire ignited. The tenant quickly called the fire department, who responded and extinguished the fire. The fire damage was confined to the tenant's unit which suffered approximately $10,000 worth of damage.

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May 03, 2005 PublicationHow "What We Learned in Little League" Paves the Way for Winning Litigation!"

As in baseball, whether being the batter, pitcher, or outfielder, successful litigation requires a strong belief and conviction that one has the power to shape reality. Certainly, without the batter's confidence that he or she will hit the ball, irrespective of its speed, twists or turns, few home runs would be made, let alone "singles or doubles"

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April 01, 2005 PublicationNew Amendments to Florida Law For Making Claims Against Contractors For Construction Defects

Florida's Construction Defect Statute, F.S. § 558.001 et seq. ("Construction Defect Statute"), first became effective on May 27, 2003. This law drastically changed how claims for construction defects are to be made by homeowners against contractors in Florida.

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April 01, 2005 PublicationFlorida's "Made Whole" Doctrine: Returning A Portion of the Insured's Deductible Is Permissible – For Now!

Per Florida's Made Whole Doctrine, insurers need only reimburse their insureds to the extent of their insured's legally recoverable loss. In the recent case of Monte De Oca v. State Farm Fire & Casualty Co., ---So.2d---, 2004 WL 2955008 (Fla. 3d DCA 2004), the Third District Court of Appeal supported the partial return of a deductible to an insured based on the insured's comparative negligence. This case is significant because it clarifies that an insurer, in Florida, does not violate the Made Whole Doctrine when the insurer returns only a prorated portion of the deductible to the insured due to the insured's comparative negligence.

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April 01, 2005 PublicationFlorida's Supreme Court Finally Brings Clarity to the Economic Loss Rule

After years of confusing and contradictory rulings, Florida's Supreme Court finally reigned in the scope of the Economic Loss Rule. In Indemnity Ins. Co. v. American Aviation, Inc., 891 So. 2d 532 (Fla. 2004), the Florida Supreme Court cogently limited the Economic Loss Rule. It held that the Economic Loss Rule does not bar a negligence action to recover solely economic damages where the defendant is not a product manufacturer or distributor. The Court also held that the Economic Loss Rule simply does not apply to any situation where there is no privity between the litigants.

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April 01, 2005 PublicationLive . . . From The House Of Subrogation!

 The Hilton Hotel in Austin, Texas will truly be "The House of Subrogation" from November 13 through 16, when over 1,200 subrogation professionals from around the globe assemble for the NASP Annual Conference. And this year's conference is expected to be even bigger, better and more alive than ever before!

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January 01, 2005 PublicationSpoliation of Evidence - Limiting the Duty to Preserve

A summary of Killings v. Enterprise Leasing Company, Inc., 2008 WL 4967412 (Ala. 2008). A recent case from the Supreme Court of Alabama.  In Killings v. Enterprise Leasing Company, Inc.,1 the Alabama Supreme Court recently held that a Plaintiff may proceed with a claim of spoliation against a third party responsible for negligently discarding necessary evidence in an underlying case.

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October 01, 2004 PublicationForcing the Issue: Virginia Courts Begin to Expand Recoveries in Tort Between Parties to a Contract

When subrogating against an adverse party having a contractual relationship with your insured, it is routine to face the argument that your damages are barred by the economic loss rule. Most jurisdictions have carved out an exception to the sometimes harsh results that can flow from the operation of this rule. One such exception is the “other property” exception, which typically allows for tort recovery when the damaged “other property” is not a subject of the contract.
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February 01, 2004 PublicationNew Florida Law Changes Procedure For Making Claims Against Contractors For Construction Defects

Florida Governor Jeb Bush approved Senate Bill No. 1286 (“Bill 1286”), which drastically changes the method for presenting a claim for construction defects. Effective May 27, 2003, Florida homeowners and their subrogees cannot file a construction defect lawsuit without fully complying with new pre-suit requirements.

In Section 1 of Bill 1286, the Florida Legislature states the intent of the new law.

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January 06, 2004 PublicationGoing Toe-to-Toe With Your Opposing Expert

Experts oftentimes make or break cases.  As knowledge and science have grown, so has the range of experts that parties call upon to advocate their cause.  Not only must a party always look to bolster one's own expert case, a party must simultaneously be mindful of the need to undercut your adversary's expert.  As the client, you want to ensure that your assigned counsel appreciates the following practical ways for tackling the opposing expert during the discovery process

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