Dude, Where’s My Car?

When you pull up to a restaurant or hotel and valet-park your car, it is reasonable to expect to get that car back in the same condition as when you dropped it off.

Unfortunately for Mr. Carlo DiMarco, that is not always the case.

According to a case filed in the District Court of Harris County, TX, Mr. DiMarco valet parked his 2014 Porsche Panamera at the DoubleTree by Hilton Hotel & Suites in Houston, TX.

The hotel charged him a $50 parking fee. When he returned the next day to retrieve the vehicle, he was told that the car was missing.

According to a police report filed the next day, video footage allegedly shows that the Porsche was delivered to two unknown men during the night. After the hotel and the independent valet service both rejected his claim for reimbursement of the market value of the car, Mr. DiMarco brought legal action naming both the hotel and valet service as defendants. As of this writing, the car has still not been recovered.

It seems straightforward, right? Mr. DiMarco gave his car to the valet at the hotel and didn’t get it back. Therefore, he should be entitled to reimbursement for the stolen car. As we shall see, that depends.

Bailment created

When the car was delivered to the valet, a bailment was created.

A bailment is established when four elements are present:

1. Delivery of property by the owner (the “bailor”) to another (the “bailee”).
2. Acceptance of such delivery by the bailee.
3. An express or implied understanding that the property will be held in trust.
4. An understanding that the property will be returned to the bailor.

Every time you drop clothes at the dry cleaner or your Porsche at a repair shop, you have created a bailment.

It is difficult to dispute that a bailment was created. Mr. DiMarco delivered the keys to the valet at the hotel and was given a claim check. The valet took possession of the car, and all parties understood that the car was to be returned to Mr. DiMarco at the conclusion of his stay.

The parties agree that Mr. DiMarco left his Porsche with the valet on the night of May 25, 2015 — and paid an extra fee to have the car left in front of the hotel.

According to surveillance video, at some point later in the evening, two unknown men approached the valet, claiming the car belonged to them. Even though the men didn’t have a claim check, the valet apparently provided them with the keys to the car and they drove off.

While a bailee is not required to take a bullet when protecting the bailed property, the bailee is required to exercise reasonable care of the property.

What is reasonable depends on the circumstances of each case.

For example, did the valet do enough to reasonably believe he gave the car to the actual owner? Did the valet leave the car running when he parked it, or was the car properly locked and secured? Did the valet leave the keys in the car in an unattended garage, or was the garage properly secured and supervised? Were the keys maintained in a secured area, or were they hanging in an open box by the front of the hotel? Questions such as these will be answered as the case progresses.

What about personal items in the car?

The duty of ordinary care also extends to items reasonably expected to be in the car. It probably covers items such as cell phones and tablets that are commonly left in cars — although if they are left in plain view that may cloud the issue. The duty of care would probably not extend to unforeseeable items such as the Picasso you left in the back seat, or JFK’s golf clubs (for you “Seinfeld” fans).

In addition, it is unlikely that weapons, even in Texas, would be included in the duty of care.

Who pays?

There are three potential parties that may end up paying or getting bail bonds through a bondsman: the hotel, the valet service or DiMarco’s insurance company. It could end up being any of them.

Let’s start with the hotel. At common law, a hotel was considered to be an insurer of its guests’ belongings except against acts of God or public enemies (traveling must have been interesting in those days).

Times have changed, and hotels are no longer considered insurers of their guests’ possessions. Rather, the law of bailments determines their responsibilities. One possibly important point is that, once a bailment is considered to have occurred, the burden of proof shifts to the bailee to show they exercised reasonable care.

DiMarco thinks the hotel was a bailee. He pulled up to the DoubleTree Hotel and handed the keys to a valet wearing a uniform bearing the DoubleTree logo.

Upon checkout, DiMarco was charged $50 on his hotel bill for parking services.

Nonetheless, the hotel denies liability because it contracted with an independent third party for valet services. In other words, the hotel claims it was not the bailee, the valet service was. The hotel denies that the valet service was its agent or that it had any control over the acts of the valet service. It insists that it merely acted as a facilitator for the valet service when it charged DiMarco for the parking fee.

Tough roads for the hotel, valet service

It would seem an uphill battle for the hotel to win this claim. The parking attendants wore DoubleTree uniforms and received the car at the entrance to the hotel.

In fact, it is to the hotel’s financial benefit to make the process appear seamless, so its guests receive a full-service experience. Whatever private arrangement the hotel had with the parking service, DiMarco believed that he entrusted his car to the hotel staff. He was under no duty to inquire about the valet’s relationship to the hotel.

On the other hand, it seems near impossible for the valet service to claim it was not a bailee.

However, the valet service claims that it did exercise reasonable care, but the loss of the car was the result of the criminal act of unknown individuals.

To win that, the valet service will have to show that it exercised proper control over the car, the keys and the parking lot — and that the loss is solely attributable to the wrongful acts of others without any breach of duty on its part.

While relevant, the wrongful intervention by another party does not automatically change the duty of care owed by the bailee. For example, if keys were stolen from a key cabinet, the valet service would still be on the hook if they left the cabinet unlocked and unsupervised. Conversely, if the cabinet was locked and the thieves pried it open with a crowbar, that might let the valet service off the hook.

If both the hotel and the valet service prove that they exercised reasonable care, then they would be off the hook. Mr. DiMarco’s insurance company would then be responsible for the replacement of the missing car.

One odd plaintiff

There is something odd about this case — Mr. DiMarco is bringing the suit personally. In most cases, the owner of the stolen car would report the theft to his insurance company, collect the proceeds and be done with it.

At that point, the insurance company would step into the owner’s shoes and proceed against the hotel and valet service.

“Legal Files” was unable to reach DiMarco’s counsel, so we have to speculate about what is going on here.

It appears that the unusual state of affairs may have arisen because Mr. DiMarco’s insurance company only offered him $68,000 for the car, and he believes it is worth twice that amount.

Perhaps Mr. DiMarco believes it would be easier to recover the higher value from the hotel and valet service than it would be to recover it from his insurance company.

Whatever the reason, it seems that Mr. DiMarco chose to bring suit personally. If so, then he takes on significant legal expense in doing so.

That can be an expensive proposition, but he apparently has the resources and the time to do it. We wish him luck.