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A Bathurst woman's white Hyundai SUV went to a car dealership's body shop in need of front-end repairs and left in need of a new catalytic converter.
Now Sheri Harvey says she thinks the dealership should be liable to replace the $1,200 car part, which was stolen from the vehicle while it sat in the company's lot waiting to be repaired.
"I do have the insurance, but it's the principle of it," Harvey said. "The principle that you have my vehicle in your possession, you had parts stolen off of it, and now you're coming at me to pay for it."
Harvey, who's been working in California as a travel nurse since August, said her son hit a deer while driving the SUV on Sept. 1.
On advice from her insurance company, the SUV was taken to Bayside Chrysler in Bathurst to have its front end repaired at its body shop.
Harvey said her mother went to the dealership on Oct. 1 to check on the status of the SUV, only to find out the repairs would be completed by Oct. 5, but someone had crawled under the vehicle and cut off and taken its catalytic converter.
Bathurst police Sgt. Julie Daigle wasn't able to provide details on the specific incident when contacted Thursday afternoon but said police have responded to calls about catalytic converter thefts in recent weeks.
After a discussion with dealership staff over the phone, Harvey said their position was she'd have to file another claim with her insurance to replace the part, which would cost her $250 for the deductible.
"To me, I felt they should be liable," Harvey said. "It was their responsibility. They had my vehicle in their possession."
Thefts of catalytic converters appear to be on the rise in New Brunswick and other parts of Canada, with numerous instances reported by police forces in recent months. The exhaust component is typically removed from the bottom of parked vehicles and later sold for the precious metals they contain.
Jason Moffitt, president of Bayside Chrysler, said Harvey isn't the only customer whose vehicle had its catalytic converter stolen while at the dealership in the past few months.
In those other instances, the customer was the one who filed a claim to have the part replaced, and the same should be done by Harvey, Moffitt said.
"Instances similar to this that have occurred in the past. It's the individual who has to start a claim with their insurance company because the theft occurred to her property is the way I understand it."
Moffitt said his company also did what it could to prevent theft from happening at the business, including installing security cameras and putting up a fence.
"So we did everything we could to prevent the theft from happening. But I mean, unfortunately in society, theft is a fact of life sometimes."
Factors could sway case in either direction, says expert
While there's no clear answer as to who's responsible for replacing the catalytic converter, there are some factors that could determine the outcome if it went to court, said Jane Thomson, an associate professor of law at the University of New Brunswick.
Thomson said the first thing to consider is whether an exculpatory clause was contained in any contracts the dealership required signing off on.
"An exculpatory clause in contracts are clauses that say, for example, we are not responsible if your stuff gets stolen while we have it," Thomson said.
If that's the case, the company needs to explicitly point out the clause and ensure that the party signing the contract is aware of it, Thomson.
Aside from whether an exculpatory clause was contained in any agreements, Thomson said, "bailment" is another concept to examine in such cases.
"Bailment is a relationship that occurs when there is a temporary transfer of possession from the owner of the property to somebody else," she said.
In Harvey's case, having her SUV sent to the dealership for repairs would be a case of "contractual bailment," where she's paying them to do work on her car.
"And so they have a pretty high duty standard of care not to have the car damaged or things stolen, or to themselves damage her car while it is in their possession."
If the matter were to go to court, Thomson said, the onus would then fall on the dealership to convince a judge that they acted reasonably in ensuring vehicles in their possession wouldn't get stolen or damaged.
"And that is just a matter of, if it's a trial, calling in experts to say what's expected of an auto mechanic repair shop in this scenario. Security cameras? Was it locked? Did you take all reasonable steps?
"Because if they acted reasonably, then a judge could find they met the standard of care and it wasn't their fault that it got stolen and she would be in the position where she has to go through her insurance."
Now Sheri Harvey says she thinks the dealership should be liable to replace the $1,200 car part, which was stolen from the vehicle while it sat in the company's lot waiting to be repaired.
"I do have the insurance, but it's the principle of it," Harvey said. "The principle that you have my vehicle in your possession, you had parts stolen off of it, and now you're coming at me to pay for it."
Harvey, who's been working in California as a travel nurse since August, said her son hit a deer while driving the SUV on Sept. 1.
On advice from her insurance company, the SUV was taken to Bayside Chrysler in Bathurst to have its front end repaired at its body shop.
Harvey said her mother went to the dealership on Oct. 1 to check on the status of the SUV, only to find out the repairs would be completed by Oct. 5, but someone had crawled under the vehicle and cut off and taken its catalytic converter.
Bathurst police Sgt. Julie Daigle wasn't able to provide details on the specific incident when contacted Thursday afternoon but said police have responded to calls about catalytic converter thefts in recent weeks.
After a discussion with dealership staff over the phone, Harvey said their position was she'd have to file another claim with her insurance to replace the part, which would cost her $250 for the deductible.
"To me, I felt they should be liable," Harvey said. "It was their responsibility. They had my vehicle in their possession."
Thefts of catalytic converters appear to be on the rise in New Brunswick and other parts of Canada, with numerous instances reported by police forces in recent months. The exhaust component is typically removed from the bottom of parked vehicles and later sold for the precious metals they contain.
Jason Moffitt, president of Bayside Chrysler, said Harvey isn't the only customer whose vehicle had its catalytic converter stolen while at the dealership in the past few months.
In those other instances, the customer was the one who filed a claim to have the part replaced, and the same should be done by Harvey, Moffitt said.
"Instances similar to this that have occurred in the past. It's the individual who has to start a claim with their insurance company because the theft occurred to her property is the way I understand it."
Moffitt said his company also did what it could to prevent theft from happening at the business, including installing security cameras and putting up a fence.
"So we did everything we could to prevent the theft from happening. But I mean, unfortunately in society, theft is a fact of life sometimes."
Factors could sway case in either direction, says expert
While there's no clear answer as to who's responsible for replacing the catalytic converter, there are some factors that could determine the outcome if it went to court, said Jane Thomson, an associate professor of law at the University of New Brunswick.
Thomson said the first thing to consider is whether an exculpatory clause was contained in any contracts the dealership required signing off on.
"An exculpatory clause in contracts are clauses that say, for example, we are not responsible if your stuff gets stolen while we have it," Thomson said.
If that's the case, the company needs to explicitly point out the clause and ensure that the party signing the contract is aware of it, Thomson.
Aside from whether an exculpatory clause was contained in any agreements, Thomson said, "bailment" is another concept to examine in such cases.
"Bailment is a relationship that occurs when there is a temporary transfer of possession from the owner of the property to somebody else," she said.
In Harvey's case, having her SUV sent to the dealership for repairs would be a case of "contractual bailment," where she's paying them to do work on her car.
"And so they have a pretty high duty standard of care not to have the car damaged or things stolen, or to themselves damage her car while it is in their possession."
If the matter were to go to court, Thomson said, the onus would then fall on the dealership to convince a judge that they acted reasonably in ensuring vehicles in their possession wouldn't get stolen or damaged.
"And that is just a matter of, if it's a trial, calling in experts to say what's expected of an auto mechanic repair shop in this scenario. Security cameras? Was it locked? Did you take all reasonable steps?
"Because if they acted reasonably, then a judge could find they met the standard of care and it wasn't their fault that it got stolen and she would be in the position where she has to go through her insurance."
