1 Mr. Yaltz examined the aut omobile on behalf of Subaru of America. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Februar y 11, 2002 Se ssion
JACK COLBOCH v. QUALITY FORD, INC., ET AL 

### . Appeal from the Circuit Court for Hamblen County No. 00-CV-045 Kindall T. Lawson, Judge

JULY 12, 2002

No. E-2001-01220-COA-R3-CV

This appeal from the Circuit Court of Hamblen County questions whether the Tria l Court er red in finding Quality Ford, Inc., an automo bile dea lership, liable fo

r damage s caused

to Jack Colboch’s automobil e by an independent body shop pursuant to a manufacturer’s w arranty. We affirm the decision of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed ; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined.
Mark A. Cowan, Morristown, Tennessee, for the Appe llant, Quality Ford, Inc.
Jana D. Terry, Morristown, Tennessee, for the Appellee, Jack Colboch.

OPINION

In October, 1997, Mr. Colboch purchased a new Subaru Legacy f romQuality Ford Subaru, Inc. (hereinafter refe

rred to as “Quality Ford”) in Dandridge. In late December of that same year, Mr. Colboch was cleaning his automobile when he noticed irregular paint spots on the hood, roof and trunk lid. After attempting unsuccessfully to remove the spots from the automobile himself, Mr. Colboch contact

ed the se rvic e represent ative at Quality Ford, Darlene Bridges. Ms. Bridges informedMr. Colboch that a factory representative 1 would have to examine the paint spots and give approval in order

for the wo rk to be completed under the factory warr anty. Following an examina tion of the

automobile

by a factory representative, Mr. Colboc h was app roved to h ave his Subaru Legacy repainted under war ranty.-2-

Apparently, Quality Ford does not have a body shop and i s not equippe d to paint an automobile. Therefore, the decision was made that Roger Bunch Body Shop (hereinafter re ferred to as “Body Shop”) would paint the automobile. The par ties disag ree as t o who actually made that determination. Mr. Colboch testified that he gave the automobile to Mr. Bunch and that Mr. Bunch drove the automobile to his body shop. When the automobile was finished, thirteen days later, Mr. Colboch retrieved

the autom

obile. Mr . Colboch i mmediately notice d that the automobile

had been painted the wrong color and he notified Quality For

d of the mis take. Mr . Colboch t estified that Ms. Bridges and her husband took the automobile from Mr. Colboch’s house to the Body Shop, and had it repainted a second time. The automobile was returne d to Mr. Colboch by Quality Fo rd approximatelythirteen days later. Mr. Colboch testified that the automobile was returned with the paint full of dirt and pin holes.
Upon contacting Quality Ford again, Mr. Colboch’s automobile was painted a third time by the Body Shop. This time the automobile was returned after approximately thirteen days and all the windows in the automobile were scratched, the automobile still had not been painted correctly, and the automobile

was filth y and cov ered in r

ubbing co mpound. At

this point Mr. Colboch approached Allen Drinnon, the owner of Quality Ford. According to Mr. Colboch’s testimon y, Mr. Drinnon instructed Ms. Bridges to take care of Mr. Colboch’s automobile.

The fourth time the automobile needed to be painted, it was again taken to the Body Shop by Ms. Bridges and her husband. According to Mr. Colboch’s testimony, he attempted to contact Ms. Bridges on several occasions to find out where they had taken his automobile but was unsuccessful in his attempts. Finally, sixty-five days later, Mr. Colboch went to Mr. Bunch’s home and found his automobile sitting in the driveway with the keys in the ignition. Mr. Colboch drove his automobile

home. Mr. Colb och testif ied that th

e conditi on of his a

utomobile w as far w orse inside and outside than it had bee n prior to its fourth trip to the Body Shop. Additionally, Mr. Colboch found a h andwritt en note f rom Ms. Bri dges to Mr . Bunch in his automobile which stated:
Roger, Please r

e-paint this stupid automobile from the pin stripe up all the way around. Take your time 2 weeks would be good. If you need an ything ca ll me at work 1-800-287-1281 or David at home. I really appreciate your help, I owe you one . Darlene

After retrieving his automobile, Mr. Colboch filed a Civil Warrant

in the General Sessions Courtof Hamblen County wh erein he rec eived a j udgment in the amoun

t of $4,761 .10 again st Quality Ford. Quality Ford appealed the judgment of the General Sessions Court to Cir cuit Court

. Following a hearing in Cir cuit Court on February 9, 2001, the Trial Court awarded Mr. Colboch $4,700.00 for cost s to repa ir his auto mobile an d $2,100.0 0 for loss of use of his automobile, for a total of $6,800.00.
Quality Ford appeals the decision of the Trial Court and pres ents for our review one issue which we re state: whether the Trial Court erred in finding Quality Ford liable for damage to M r

. Colboch’s automobile caused by Roger Bunch Body Shop.-3-

Mr. Colboch also raises one issue for our review which

we restate: whether the Trial Court erred in awarding damages based upon the estimated cost of repair of the automobile

plus loss of

use of the automobile during the four attempts to repaint the car rather tha n awarding dam age s based upon diminution in value of the automobile or in the alternative an additional award of damages for loss of use of his automobile during the time it would take to repair the automobile.

As mandated by Rule 13(d) of the Tennessee Rules of Appellate Procedure, our standard of review in this non-ju

ry case is de novo upon the T

rial Cour t recor d with a pr

esumption

of corr ectness
as to findings of fact by the Trial Court. There is no such pre sumption as to findings of law. Campbell v. Florida Steel Corporation , 919 S.W.2d 26 (Tenn. 1996).
Quality Ford argu es that the

Trial Cour

t improper

ly held it liable for

damages caused by an independent

third par ty under a manufac turer’swarran ty. Qualit y Ford asse

rts that the Trial Court based its dec ison on the law of ag ency, ra

ther tha n determ ining that t

he Body Sho

p was a n independent

contractor. Qua

lity Ford fu

rther c ontends th at the fa

cts in this case support its argument that Quality Ford simply made a referral to the Body Shop.
Quality Ford relies on Youngblood v. Wall , 815 S.W. 2d 512 (Te nn. Ct. App . 1991) in asserting that the Body Shop is an independent contractor. Quality Ford further argues that it had
no right of control over the conduct of the work perfor med by the Body Shop and the refore no agency relationship existed.

Mr. Colboch argues that based upon an opinion issued by thi s Court, Sain v. Ar a Manufacturing Co. , 660 S.W.2 d 499 (Te nn. Ct. App . 1983), Q

ualityFord is liable and that the key factor in making that determination is the right to control the co nduct o f the age nt with re spect to those matters entrusted to the agent and that Quality Ford had that control over the Body Shop.
We agree with Mr. Colboch. In its Memorandum Opinion, the Trial Court stated:

The real damagetoday see ms to come from the repair. It was damaged more in the

processof this re

pair tha n that the re was in the first place before they ever star ted attempting to repair it. I think the d

ealer b ecomes liable whe n they cho ose a nd essentially recommend or refer the customer to a person. The testimony is that this person that they referred to is not certified or qualified by anybod

y; that the

y really hadn’t a pparent ly done very much, if any, business with him before a nd kn ew appare ntly very littl e about him except maybe he worked at a Ford dealer somewhere before. I think they do become

liable wh en they begin to take

those steps and continue to do th at and so I thi nk liability does run to the dealership.-4-

In determining whet

he r the relationship is one of principal and agent, or indepe ndent contractor, the following factors must be considered: (1) the right to control the ma nner and conduct of the work; (2) the right

of termination; (3) the method of pay ment; (4) the freedom to select and hire helpers; (5) the furnishing of tools or equipment; (6) self scheduling of working hours; and (7) the freedom to render services to others. Masiers v. Arrow Transfer & Storage Co. , 639 S.W.2d 654, 656 (Tenn. 1982). The p rimary test of ag ency

is the rig ht to contr

ol the conduct of the age

nt with respect to matters entrusted to the agent. Sain v. Ara Manufacturing Co. , 660 S.W.2d 499 (Tenn. Ct. App. 1983). The Sixth Circuit addresses this issue in Doane Agricultural Service v. Coleman , 254 F.2d 40, 43 (1958), which this Court cited in Sain :

The Tennessee cases have defined “a gency” in its broa

dest sens e to include “every relation in which o ne per son acts f or or re present s another.” Howard v. Haven , 198 Tenn. 5 72, 281 S.W.2d 480, 485; Gulf Refining Company v. Huffman & Weakley , 155 Tenn. 580, 297 S.W. 199. The cases largely determine that an emp loyee sta

tus is determinedby whether

the alleged employer has the right of control
over the metho d as disting

uished fr om th e res ults and look to such things as the right to hire and fire, to direct the manner and method of the work, asto who pai d the wag es, whether the pay was based upon time or by the job, whether the work was ordinary labor, or skilled labor, and who pr

ovided the

tools for the work. Rose & Co. v. Snyder , 185 Tenn. 499, 514, 206 S.W.2d 897; Mayberry v. Bon Air Chemical Com pany , 160 Tenn. 459, 26 S.W.2d 148. See Conasauga R iv e r Lumber Company v. Wade , 6 Cir., 221 F.2d 312.

As in Sain , not all the criteria mentioned in Doane Agricultural Service have be en met in th e case sub judice ; however, we are persuade d by the facts in the record that Quality F ord exercised sufficient con trol over t he Body Shop in the many failed attempts to repair the paint on Mr. Colboch’s automobile to be held liable for the damages resulting therein.
In support of our decision, there are numerous examples to point out the amount and level of control Quality Ford had with respect to the Body Shop painting this automobile. Ms. Bridge s,
an employee

of Qualit y Ford who holds the tit

l e of Suba ru Warranty Administrator, testified on cross-examination:

Q

. . . Ms. Bridges, you basically werea pproached by Mr. Colboch and aske d to refer him to someone to paint the car, is that cor rect? A Not

really. The way i t worked, I was not the Service Manager at the time Mr. Colboch came to the dealership. We had had a ne w employee and sinc e I had de alt with Subaru of America for so long I was brou ght into it. I was not aware that there was actually a pr oblem till th e day tha t Mr. Yalt

z2 Ex hibi t #4 i s t he afor ementione d let ter from Ms. Bri dges t o Mr. Bunch re gardi ng the pa int ing o f th e automobile found by Mr. Colboch upon retrievi ng his car f rom M r. Bunch’s house t he final time.
-5- was there to look at the vehicle and because I a m the Warra nty Administrator he brought me out there and said, yes
we will paint the car, you need to , you know, look up the operations and the labor amount and find someone tha t wi ll do it for th at dollar

amount. Q Okay. And that would be Roger Bunch? A That’s who we decided to do t he work, yes.

. . . Q Now, you don’t deny that each subsequent time from

the first time that you actually wen t ou t physically and got Mr. Colboch’s car and

took it to Mr . Bu nch’s Body Shop, you don’t den y that? A No, ma’a

m, I do not.

. . . Q I’ m goin g to ask you what’s been marked as Exhibit #4 and can you identify that as your handwriting? 2 A Yes, that’s my handwriting. Q And that was instructio ns to Mr. Bunch to repai nt this car , is that right ? A Yes.

It was undisputed that

on mor e than one occasion Quality Ford’s employee delivered Mr. Colboch’s automobile

to the Body Shop and then returned the automobile to Mr. Colboch following completion of the work. It was further undisputed that Quality Ford was paid by Subaru of Ame rica, Inc. for the repairs and they, in turn, paid the Body Shop following the first attempt to repaint the automobile

thereby controlling the method of payment. The Body Shop did not receive payment from Quality Ford, Mr. Colboch, or Subaru of America, Inc. for the three remaining at tempts to
correctly paint the automobile. It is evident from the record tha t Quality Fo rd was the

entity directing the Body Shop as to what to do to the automobile, the appropriate amount of time to spend
on the automobile, and how much, if anything, he would be paid, thereby controlling the manner and conduct of the work.
Mr. Colboch questions whether the Trial Court erred in awarding damages based upon the estimated cost of r

epair of the autom

obile plus loss of use

of the automobile

during the

four atte mpts to repaint the car rather than awa rding damages based upon diminution in value of

the autom

obile
or in the alte rnative an additi onal awa

rd of damages for

loss of use of

his automobile

during the

time it would take to repair the automobile. As for Mr. Colboch’s argument that the Tria l Court should have awarde d him the dim inution in v alue of h

is automob ile rathe

r than the estimate d cost

of repair, we disagree.-6-

Mr. Colboch relies on Yaz oo & M.V.R. Co. v. Williams , 185 S.W.2 d 527 (Te nn. 1945) , in arguing that because his automobile cannot be restored to substantially the samevalue prior to the damage, he is entitled to the differencein the fair market value of the automobile immediately before and immediate

ly after the incident. Mr. Colboch further argues that the value of his car prior to the damage was $18,0 00.00, wh ich is the p

rice he paid for his automo

bile, and that testi mony by his expert witness, Mr. Widener, valued his car at $9250.00 following the damage
, and ther efore, he is entitled t o $8750.00 . The re cord fa ils to suppo

rt this ar gument.
Kenny Widener , an autom obile app rais er and Mr. Colboch’s expert witness, testified on direct e xaminatio n to the fo llowing wit h respect to the da

mages:
Q Have you prepared an opinion or do you ha ve an opinion as to the value of Mr. Colboch’s car and the damages tha t were incurred? A Yes, I do. Q Can you tell the Court your opinion? A Well, my opinion, the car was wort h about Twelve Thousand Seven Hundred Dollars and then due to the work tha t had been done toit and the diminis hing of it, it would dim inish it about Four

Thousand

Dollars. Q Okay. How did you reach that conclusion? A Well, the condition of the car, looking at it and knowing the values of cars and how much they take away if the car has ha d any damage done to it, you kn ow, and ju st doing it that way. Q Okay. In looking at Mr. Colboch’s car what types of damage did you see? A Well, I foundthat the paint, the car had been re painted a nd it had been a very poor quality of a job, the sanding and the buffing of it. None of the moldings that I could te ll had been taken off; they had been painted and they had paint on them. Where they had

tried to sand the car they had hit the windows withthe DA sander it looked like, and scra tched the windows, stuff like that. Q Ok ay. Now, you didn’t acutally do an appraisal to tel l ho w much the car would cost to be repaired? A No. Q You did an appraisal of diminution value? A Just the diminished, yes, the diminution value. Q And let me

ask you. If

Mr. Colboc

h’s car were re paired c ould it be restored to the same value as another ca r? A I don’t think so.-7-

On cross examination, Mr. Widener was asked again if he had testified that the diminution value of the car was “somewhere between Three ThousandFive Hundred to Four Thousand Dollars” and Mr. Widener responded, “Un-huh.”

We find no support in the record for Mr. Colboch’s argument that the diminution value of the Subar u Legac y was $875 0.00. The refore , we find

that this a

rgument iswithout me

rit.
Lastly, Mr. Colboch argues t hat he is e ntitled to t he value of the los s of use of

his automo

bile during the period of

time it would take to repair it. Mr. Morrison testified that it would take between three and four

weeks to repair the car. Mr. Widener testified that a rental c ar would cost $15 to $20 per day. In relying upon Yazoo & M.V.R. Co. v. Williams , 185 S.W.2d 5 27 (Tenn. 1945), Mr. Colboch’s reasoning is flawed as he has asse rted and the rec ord ref

lects tha t his automo

bile is not capable of being restored to a value substantia

lly the sam

e as its value prior to the damage caused by the four attempts to paint the automobile. Yazoo sets forth that one is entitle d to the va lue of los s of use when the property c an be restor ed to its original value following repair. According to the
ev idence in the case sub judice, that is not the case. We, therefore, find this argum ent is withou t merit.

The judgment of the Trial Court is accordingly affirmed and the cause remanded for collection of the judgment and costs below. Costs of appeal as well as costs below are adjudged against the Appellant, Quality Ford, Inc., and its surety.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE