Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEFFREY BRETT SACK, ) ) Appellant, ) ) v. ) Case No. 2D19-728 ) ) WSW RENTAL OF SARASOTA, LLC, ) a Florida limited liability company, and ) MORTON WOLVERTON, an individual, ) ) Appellees. ) ) ) Opinion filed October 9, 2020. Appeal from the Circuit Court for Sarasota County; Hunter W. Carroll, Judge. Nick Roknich, III of Roknich Law Firm, P.A., Sarasota, for Appellant. David A. Wallace of Bentley & Bruning, P.A., Sarasota, for Appellees. MORRIS, Judge. Jeffrey Brett Sack appeals a final judgment entered in favor of WSW Rental of Sarasota, Inc. (WSW), and Morton Wolverton. Sack argues that the trial court erred in its award of damages for three reasons. We find merit in his first issue and part of his second issue for the reasons explained below. Wolverton is the manager of WSW, which he owns with his wife. WSW owns a Cessna Citation 550 aircraft. Sack, a licensed pilot, entered into an agreement with Wolverton to pilot the aircraft. Sack was conducting a landing at the Sarasota Bradenton International Airport when the aircraft left the pavement and entered the grass, resting in mud. As a result of this landing, the aircraft suffered damages. WSW and Wolverton filed a complaint against Sack, each alleging a count of negligence. After a nonjury trial, the trial court entered a final judgment in favor of WSW and Wolverton. The trial court found that Sack was the legal cause of the accident and the proximate cause of the damage to the aircraft. The court found that the value of the aircraft before the accident was $550,000 and that the value of the aircraft after the accident, without repairs, was $250,000. The aircraft had been repaired after the accident, and the trial court found that the value of the aircraft after repairs was $350,000. The trial court also found that the cost of repairs was $219,106.81 and that "insurance paid $179,106.81, with the difference remaining unpaid being $40,000." The trial court awarded WSW $300,000 in damages to the aircraft. The trial court further awarded Wolverton $165,000 in damages for loss of use. That amount was calculated "by multiplying the reasonable hourly rate of renting the [a]ircraft ($1500) by the reasonable length of time Wolverton was without the [a]ircraft (11 months) by the reasonable number of hours per month Wolverton used the [a]ircraft (10)." -2- On appeal, Sack contends that the award of damages to WSW constitutes an impermissible double recovery because the trial court combined the cost of repairs with the diminution of value before the repairs. Sack also argues that $300,000 represents the diminution of value after the accident and before repairs but that this amount was improper where WSW had elected to repair the aircraft. "Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value," the plaintiff may make an election out of two theories of recovery in addition to compensation for the loss of use. Badillo v. Hill, 570 So. 2d 1067, 1068 (Fla. 5th DCA 1990) (quoting Restatement of Torts § 928 (Am. Law Inst. 1939)). In addition to compensation for the loss of use, the plaintiff may elect either "the difference between the value of the chattel before the harm and the value after the harm" or "the reasonable cost of repairs or restoration where feasible, with due allowance for any difference between the original value and the value after repairs." Id. (quoting Restatement of Torts § 928). Sack is incorrect that the trial court awarded a double recovery to WSW, but he is correct that the trial court awarded an amount based on the wrong theory of recovery. At trial, WSW elected for "the reasonable cost of repairs or restoration where feasible, with due allowance for any difference between the original value and the value after repairs." WSW specifically asked for $40,000 in unpaid repairs plus the difference between the original value of $550,000 and the postrepair value, which difference the trial court found to be $200,000. Thus, the trial court erred in awarding the "difference between the value of the chattel before the harm and the value after the harm," i.e., $300,000, and in failing to award the proper damages under the election made by -3- WSW. The trial court should have awarded $200,000, representing the difference in the original value and the postrepair value, plus an additional $40,000, representing the amount of repairs claimed by WSW that had not been paid by insurance. Accordingly, we reverse the award of damages to WSW. Sack also argues on appeal that the loss of use damages awarded to Wolverton was erroneous because Wolverton admitted that he did not charter or rent another aircraft during the eleven months that it took to repair the aircraft. Sack also contends that the trial court erred in awarding loss of use damages to Wolverton because he is not the owner of the aircraft. The trial court properly awarded damages for loss of use, despite the fact that Wolverton testified that he had never chartered or rented another aircraft while this aircraft was out of use. See Meakin v. Dreier, 209 So. 2d 253, 254-55 (Fla. 2d DCA 1968) ("[L]oss of use of a pleasure vehicle during the time reasonably necessary to make the repairs, though no substitute vehicle is leased, is properly an element of damages."); Badillo, 570 So. 2d at 1068 ("In establishing loss of use damages, it is appropriate to consider the cost of renting a replacement vehicle during the period of repairs, whether or not the plaintiff has actually rented another car."). Sack contends that the supreme court held that loss of use damages based on rental replacement value should not be awarded when no such rental replacement actually occurred. See MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 229 (Fla. 2008). However, in Mastec, a telecommunications company sought loss-of-use damages for a damaged fiber optic cable, and the court held that "loss-of-use damages based on rental replacement value is not the appropriate measure of damages when there have -4- been no such damages incurred and the telecommunications traffic carried by the damaged cable has been accommodated within the telecommunications carrier's own network so there has been no loss of service." Id. at 229-30. The holding was consistent with the majority of cases from other jurisdictions holding that a "telecommunication carrier was not entitled to loss-of-use damages based on the cost to rent a replacement cable where there has been no rental and there has been no interruption in service." Id. at 224. We decline to extend Mastec to this case, which does not involve uninterrupted telecommunications services. But we agree with Sack that the trial court erred in entering the award in favor of Wolverton because he is not the owner of the aircraft. See Meakin, 209 So. 2d at 254 ("The 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 . . . ." (emphasis added) (quoting Restatement of Torts, § 931)). Accordingly, we reverse the award for loss of use damages entered in favor of Wolverton. Reversed and remanded for further proceedings consistent with this opinion. SLEET and LUCAS, JJ., Concur. -5-