The Spyder and the Fly.

Armed with a camera, they decided they could earn eternal YouTube fame by videotaping “Gibby” urinating on the Ferrari

It was a nice day in Ontario, Canada, so a Ferrari owner decided to take a top-down drive in his 360 Spyder. During his motoring, he decided to make a stop to run an errand at a shopping mall. He found a safe parking place and left the top down while he went in “just for a minute.” When he returned to his Ferrari, he discovered that he had lost his key somewhere in the mall. A call to his Ferrari dealer hit a dead end. It was a weekend, and a new key couldn’t be made until Monday.

The mall’s security staff offered to move the car to an underground parking area for safekeeping. But the owner was worried the car might be damaged while being moved, and he decided it was best to leave it where it was. The security staff placed a tarp over the car and posted stanchions and rope around it to keep people away, which was about all they could really do under the circumstances.

Late that night, a group of drunken young men walked through the parking lot and spied the Ferrari. Armed with a video camera, they decided they could earn eternal YouTube fame by videotaping a prank with the Ferrari. Thousands have since viewed “Gibby” in his starring role as he urinated on the Ferrari. (It can be seen at www.sportscarmarket.com/flyferrari.)

What is it about people who post on YouTube? These guys filmed themselves committing vandalism, called each other by name, and then posted it in a public forum where they could easily be discovered and arrested. Go figure.

The story unleashed a lengthy diatribe on ferrarichat.com and other web sites, decrying such reprehensible disrespect of the Prancing Horse. While “Legal Files” agrees that this is disgusting conduct, it chooses to approach the situation with a more practical question: Whom might the owner sue?

Damages and diminished value

The video suggests there probably wasn’t much damage caused to the Ferrari. Gibby seems to have urinated on the exterior of the car, and a prompt wash and wax may be all that is necessary to restore the car to its previous condition. But what if the damages had been more physically substantial? What if these numbskulls had, say, keyed the car or beaten it with a pipe? Let’s analyze the situation from that assumption.

More extensive damage would not only have required more expensive repairs, but the Ferrari may not have been worth the same afterward no matter how well repaired. That is because any car damage that requires body and paint work will have a permanent effect on the value of the car. A subsequent purchaser will always pay less for the car because of the previous damage, even if “perfectly” repaired. The reasons for this market fact are real and logical. It is always difficult to know how well the work was done, and time will usually reveal any shortcomings.

Similarly, the paint on the car is now partly original, partly new. Even if it matches today, will it always match, or will the different paints fade differently? Will it last as long as the factory paint?

These questions can go on and on, and cannot be answered satisfactorily even under the best of circumstances. This effect is referred to as “diminished value,” and can often be around 25% of the pre-loss value of the car. (Michael Sheehan talks more on this subject in his p. 32 column.)

What about insurance?

The owner’s auto insurance policy should pay the claim, but it might not provide complete relief. The damage was clearly caused by vandalism, and would ordinarily be covered under the “comprehensive” coverage of the policy. Of course, the owner will be out the deductible, but things might be worse than that. Many insurance policies are now written to exclude coverage for “diminished value.” There is a very good chance that the owner’s policy will cover the body and paint work, but the owner may well be left with a “perfectly repaired” Ferrari that is nonetheless worth substantially less than it was before.

Gibby and his friends are equally liable

No doubt, Gibby and his friends committed a crime or two, they and could face criminal prosecution. But that isn’t going to help our Ferrari owner get his car fixed. He’ll have to pursue civil claims against them to accomplish that.

Of course, Gibby is liable for all damages he caused, including any diminished value. His friends may be liable as well, even if they never touched the Ferrari. They clearly seemed to be acting in concert, and the law would hold each of them equally liable as “joint tortfeasors.”

Their liability would be unlimited. They could be held liable for the repair costs, the diminished value, the loss of use of the Ferrari while it is being repaired, and even for punitive damages if their conduct was found to be egregious enough. The only losses the owner couldn’t recover would be his attorney fees.

Since the hooligans’ cars were not involved, their auto insurance would not cover their liability. But it might be possible that their homeowner’s or umbrella insurance might cover it, depending on the policy terms. If coverage were available, it would cover all the damages they would be liable for, except any punitive damages.

Gibby and friends would have “joint and several” liability for the damages. That means they are all jointly liable for the damages, and each one of them is severally liable for 100% of the damages as well. And that means the owner can sue all of them, get judgments against all of them, and then collect the judgments from any one or more of them, depending on who has the most money or insurance; that is, he doesn’t have to collect the same amount from each of them. In effect, the law takes the position that the owner is to be compensated the easiest way possible, and the culprits can later work out the details among themselves. If one pays more than his fair share, he can get his money back from his friends, although some states do not make provision for that type of recovery.

But is the shopping mall liable?

Now, to the mall’s position. When you leave your car in another’s possession, it is legally called a bailment. The bailee (the shopping mall) is required to exercise reasonable care in safeguarding the car, and can be held liable for failing to do so. But here, it would seem doubtful that the shopping mall would be liable for the damages. The security personnel did offer to move the car to a more secure location, but the owner declined, thinking it was safer where it was. Should they have posted a guard to watch the Ferrari? That would seem to be well beyond “reasonable” care under the circumstances. After all, the mall wasn’t in the car storage business, and cars aren’t supposed to be parked in the lot overnight.

More on diminished value

Publisher Martin posed the following: “I know that ‘Legal Files’ assumed physical damage would lead to diminished value, but don’t we have a situation where YouTube exposure, as it were, might lead to the same result? After all, this particular car is now infamous. Ask yourself-would you be interested in owning the “pisser Ferrari” at any price? What kind of bragging rights would that give you with your friends?”

Leaving aside the potential that, in some circles, this might actually enhance the value of this car, we may have to differentiate between the damage caused by the urine and the damage caused by the YouTube publicity. Gibby and his friends are liable for all of it, but it may get weirder with the others if these are seen as separate occurrences. The owner’s insurance carrier may be willing to pick up the cost of the wash and wax, but not cover the damages caused by publicity, on the basis that it was not part of the physical damage caused by the vandalism. Similarly, if the mall has any liability at all, it might try to make the same distinction and limit its liability.

If there is any lesson here, it is that Ferraris elicit different responses from different segments of society, and leaving one in a public place overnight is probably not the smartest of ideas. Yes, the perpetrators are fully responsible here, but really, if someone is wealthy enough to own a Ferrari, shouldn’t he be smart enough to have it towed to a safe storage area if he loses his keys?