loss of use

Under workers' compensation law, a schedule loss of use is the set amount of compensation an employee may receive for the inability to use a particular body member, such as an arm, hand, finger, leg, foot, or toe. An injured employee will receive monetary benefits for the loss of use of such a body member during periods of temporary disability associated therewith, and/or at the time a judicial finding is made of permanent impairment. These monetary benefits are in addition to other benefits for compensation such as medical benefits.See, e.g., N.Y. WCL § 15 (New York Workers' Compensation Law section 15, "Schedule in case of disability").[http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS] An essential basis for calculating a Schedule Loss of Use ("SLU") is often a multiple of the injured employee's pre-injury average weekly wage, or some percentage thereof, as determined by a state's Workers' Compensation Law. This wage information is utilized in conjunction with a medical assessment by an evaluating physician, together with a schedule which standardizes the value of particular injuries. This standardization is necessary to ensure Equal Protection while applying a Workers' Compensation scheme. The physician's loss assessment is converted to a period of weeks, utilizing the schedule published in law, and then this number of weeks is multiplied by the wage basis to determine the total value of the SLU. Due to the complexity of the calculations involved in determining an SLU, it may be useful to utilize an SLU calculator, such as may be provided on legal, public service, academic, or informational websites.For example, see the calculators for New York Workers' Compensation Law at http://criscuololaw.com/workers_compensation_and_social_security_disability_resources.php {{Webarchive|url=https://web.archive.org/web/20110708204118/http://criscuololaw.com/workers_compensation_and_social_security_disability_resources.php |date=2011-07-08 }}

The etymology of tort is from the French word for twisted—as in wrongful, trespassing, sick, perverted, or disturbed.{{Citation needed|date=February 2008}} Unlike in other aspects of tort law, rather than being figurative, the meaning is sometimes literal, whereby a worker's arm has been twisted by machinery, and is rendered useless for work.Worker's compensation is usually not considered part of tort law, but is thought of as a statutory scheme that replaces tort law.

Under property law, almost any possible property can be the subject of loss of use. This might include equipment, goods, inventory, a residence, a farm, a motor vehicle, office building, or commercial property. For example, the real property can not be used due to a chemical spill, or the car can not be driven because it was damaged in a motor vehicle accident.

When business equipment is damaged the injured business is entitled to a loss of use claim for the damaged property. In the trucking industry this is often referred to as downtime. Downtime claims indemnify for loss of earnings resulting from inability to operate because of damage to a tractor or trailer from an insured peril such as a collision or a fire. These claims can be made against the adverse party’s insurance policy. The loss must be established by presenting the previous income for the damaged equipment. {{Cite web|url=http://www.landlinemag.com/Magazine/2013/July/Section4/whats-up-with-downtime.aspx|title=Land Line Magazine: The Business Magazine for Professional Truckers|website=Land Line Magazine: The Business Magazine for Professional Truckers|access-date=2018-09-10}}

Insurance companies may use various formulas to calculate downtime losses. A common method is to determine gross income for 90 days before the accident, then subtract all variable expenses such as fuel, tolls, oil, etc. to figure a net income amount. Next, divide net income by the days actually driven during the 90 days before the truck was disabled in order to get a daily net loss figure. Finally, multiply the daily income times the number of days the truck is in the repair shop to arrive at your lost income amount.{{Cite web|url=http://www.landlinemag.com/Magazine/2013/July/Section4/whats-up-with-downtime.aspx|title=Land Line Magazine: The Business Magazine for Professional Truckers|website=Land Line Magazine: The Business Magazine for Professional Truckers|access-date=2018-09-10}}

Car rental companies charge renters for loss of use in case of accidents, though the charges have been controversial. Insurers want to see the rental company's fleet utilization logs. If the rental company had other unused similar cars at the time, insurers argue the rental company suffered no loss from the unavailability of the damaged car. The Florida Supreme Court supported that interpretation in 2008.{{cite web | url=http://www.autorentalnews.com/channel/fleet-insurance/article/story/2009/11/does-loss-of-use-require-proof-of-lost-revenue.aspx | title=Does Loss of Use Require Proof of Lost Revenue? | publisher=Auto Rental News | date= 2009 | accessdate=24 September 2016 | author=LaPlaca, Michael}}{{cite web | url=https://caselaw.findlaw.com/fl-supreme-court/1155147.html | title=MCI WORLDCOM NETWORK SERVICES, INC., Appellant, v. MASTEC, INC., Appellee. No. SC04-948. | publisher=Florida Supreme Court | date=July 10, 2008 | accessdate=24 September 2016}} The Colorado Supreme Court disagreed, saying a car rental company (originally National) was "entitled to recover loss of use damages irrespective of its actual lost profits" in 2012.{{cite news | url=https://www.washingtonpost.com/lifestyle/travel/travelers-have-little-recourse-against-rental-car-companies-loss-of-use-policies/2013/10/17/857f1ea4-32a8-11e3-8627-c5d7de0a046b_story.html | title=Travelers have little recourse against rental car companies' 'loss of use' policies | newspaper=Washington Post | date=October 17, 2013 | accessdate=24 September 2016 | author=Elliott, Christopher}} California, New York, and some other states restrict loss of use charges{{cite web | url=http://www.businessfleet.com/blog/auto-focus/story/2012/09/purco-win-what-now.aspx | title=PurCo Win: What Now? | publisher=Business Fleet | date=September 14, 2012 | accessdate=24 September 2016 | author=Brown, Chris}}

Some rental company terms say they will "charge for loss of use, regardless of fleet utilization" (Alamo,{{cite web | url=https://www.alamo.com/en_US/car-rental/checkin/terms-and-conditions.html | title=ALAMO ONLINE CHECK-IN TERMS AND CONDITIONS | accessdate=24 September 2016}} Avis,{{cite web | url=https://www.avis.com/avis/html/global/en/terms/vr_terms.htm | title=TERMS AND CONDITIONS | publisher=Avis | accessdate=24 September 2016}} Hertz—adding the words in October 2016,{{cite web | url=https://www.hertz.com/rentacar/emember/join/gold/displayTermsAndConditions.do | title=Terms and Conditions | publisher=Hertz | work=items 4.b and 4.c | accessdate=24 September 2016 | url-status=dead | archiveurl=https://web.archive.org/web/20160927035614/https://www.hertz.com/rentacar/emember/join/gold/displayTermsAndConditions.do | archivedate=27 September 2016 }} National{{cite web | url=https://www.nationalcar.ca/en_US/car-rental/loyalty/enrollment/terms-and-conditions.html | title=Terms & Conditions | publisher=National, Canada | accessdate=24 September 2016}}).

• Alamo and Enterprise charge for loss of use at the same daily rate the renter was paying, for twice as many days as the repair needs, since they charge a day for each four hours of repair work.{{cite web | url=http://elliott.org/blog/enterprise-misinterpretations-over-loss-of-use-fees-are-creating-confusion/ | title=Enterprise: "Misinterpretations" over loss of use fees are creating confusion | publisher=Elliott | date=September 13, 2011 | accessdate=24 September 2016 | author=Elliott, Christopher}}
• National also charges a day for each 4 hours of repair, plus 40% to cover weekends, plus 3 administrative days, so a 26-hour job is charged as 11.5 days.{{cite web | url=https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC159.pdf | title=No. 10SC159, Judith Koenig v. PurCo Fleet Services | publisher=Colorado Supreme Court | date=September 10, 2012 | accessdate=24 September 2016 | author=Eid | pages=19–20}}
• Enterprise CarShare (hourly rentals) charges four days for each hour of repair time.{{cite web | url=https://www.enterprisecarshare.com/us/en/damage-waiver.html | title=Damage Waiver Info | publisher=Enterprise | accessdate=24 September 2016}}
• In 2008 Hertz loss of use was "calculated by dividing daily rental rate by percent of fleet utilization"{{cite web | url=http://www.denverpost.com/2008/03/21/comparison-of-rental-car-policies/ | title=Comparison of rental car policies | publisher=Denver Post | date=March 21, 2008 | accessdate=24 September 2016 | author=Uhland, Vicky}} ("dividing" may be a misprint for "multiplying").

A property owner may purchase insurance to indemnify against the loss of use of property, especially real property, such as a home, office, or business premises.{{Cite web |url=http://moneycentral.msn.com/quickref/quickref.asp?Cat=10&SelCat=2&RefType=0&Topic=4&Sub=2 |title=Fast Answers: Insurance, Home, Loss of Use. - MSN Money |access-date=2007-03-22 |archive-url=https://web.archive.org/web/20060311145349/http://moneycentral.msn.com/quickref/quickref.asp?Cat=10&SelCat=2&RefType=0&Topic=4&Sub=2 |archive-date=2006-03-11 |url-status=dead }}

{{reflist}}

• [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS New York State Worker's Comp law Government web site], type in WKC, at N.Y. WCL section 15.
• [https://web.archive.org/web/20071227044008/http://criscuololaw.com/workers_compensation_slu_schedule_loss_award.html Legal Definitions Page]
• [https://web.archive.org/web/20060311145349/http://moneycentral.msn.com/quickref/quickref.asp?Cat=10&SelCat=2&RefType=0&Topic=4&Sub=2 MSN Money Central web site]
• [http://www.nysba.org/MSTemplate.cfm?MicrositeID=67 New York State Bar Association TICL Section (Torts, Insurance and Compensation Law) official site]

• Insurance law

Category:Tort law

Category:Property law

Category:Insurance law