Legal Question in Civil Litigation in Virginia

My friend has not paid for my CD's that were supposedly stolen from her car

My best friend told me that my 57 CD's were stolen from her car along with her sister's camcorder and her son's gameboy. She said that she filed a police report and a claim with her insurance company and she would have the check by Wednesday, 1/15/03 and would give me $565 on Friday 1/17/03(this was the amount her insurance company was giving her) and the difference when she got her tax return ($237).

I contacted the police department to obtain a copy of the police report that she said was taken on 1/9/03. They did not have one on record as of 1/13/03. I then contacted her insurance company and the adjsuster told me that he specifically explained to her that her policy did not cover any damage to personal belongings in the vehicle and there was no damage to the vehicle. He also confirmed that no money was being paid for this claim. I left a message for her last night notifying her that I needed to know by midnight how I would be reimbursed and this must be paid by 1/23/03. (initially she told me that she would have the insurance check by 1/25/03 and on 1/19/03 stated that the check was mailed on 1/17/03 or 1/18/03). I don't think she has any intention on paying for this. What should I do?

Asked on 1/20/03, 12:51 pm

3 Answers from Attorneys

John Kirby Law Offices of John M. Kirby
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Re: My friend has not paid for my CD's that were supposedly stolen from her car

Wow. I'll chime in too. I cannot clearly discern from the question whether this is a VA or NC question, as my caption states "VA (NC)." I do not know Virginia law, but as a matter of general law, largely applicable in NC and perhaps VA, I would add the following:

(1) Your primary claim against this person would, in my opinion, be a "bailment" claim, based on the fact that he/she did not return the items to you. It is somewhat unclear whether this is truly a "negligence" claim or not. Under the predominant NC law, you must show "negligence," but there is a "presumption" of negligence, and it is your friend's burden to disprove negligence. If, e.g., she can show that her vehicle was struck by lightening, or a Hurricane, or the Masked Avenger, then I think she may not be liable to you under a bailment claim. As an evidentiary/trial matter, her apparent inconsistencies would make her somewhat an un-credible witness.

2. As for a "contract" claim, that is complicated also. The first responder is somewhat correct by noting the he/she promised to pay you. It is not clear, however, if this is a true "contract." This is related to the second comment regarding the lack of "consideration," which generally would be a defense for your friend. In response, however, you can argue that this was not a mere promise, but it was supported by a "moral obligation," which in some jurisdictions will solve your "consideration" problem. This too is likewise unclear.

3. As for "conversion," my understanding of this action is that it requires that you show that he/she converted the items for his/her own use. This, in turn, on your fact scenario depends on whether she is lying. If so, then she probably converted them; if not, then they stolen, they are not being used by her, and they were not converted.

4. As for the insurance issue, that too is cloudy. That raises a host of issues regarding whether there was insurance, whether it covered your items, whether they paid your friend, whether if they did they erred in doing so. It appears, however, that this is a Red Herring, as the insurer has denied any coverage.

As for a practical solution, I do not know if your jurisdiction has small claims court. NC does and, if you're in NC, I would utilize that. That assumes, of course, that a civil judgment would do you any good. E.g. you would technically have to collect on the judgment. The other option to consider would be some sort of criminal action, if the DA (or solicitor or whatever) would do that. There should be some crime for her action, perhaps criminal conversion or theft or something. You could get restitution from that proceeding, or perhaps the charges themselves would motive her to pay up. Good luck.

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1/22/03, 10:16 pm
Edward Gonzalez Edward Gonzalez, PC
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Re: My friend has not paid for my CD's that were supposedly stolen from her car

Sue in small claims. You can do it yourself. Check with the court clerk on filing procedures. The claim is contractual: she promised to pay you.

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1/20/03, 3:09 pm
Daniel Hawes Hawes & Associates
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Re: My friend has not paid for my CD's that were supposedly stolen from her car

I respectfully disagree with Mr. Gonzalez: there was no consideration to support the allegation of a contract, it was a mere promise to pay, which is legally unenforceable in Virginia. Also, there is no small claims court in most jurisdictions in Virginia (Fairfax and some other jurisdictions have experimental small claims courts, but the procedure is the same).

It appears to me that the supposed friend is lying - you said there was no police report, so the friend simply stole the CD's. Since you don't know for sure, and it's not really your problem anyway, go on what you do know: the friend borrowed the cd's and won't give them back. That's called "conversion", because the friend converted them from yours to hisorhers. If it were me, I'd also claim "negligence": the friend failed to protect the cd's from harm. If you want to get more technical, the friend was a "bailee" (one who holds personal property belonging to another) who was responsible for the proper return of the property.

You can sue in the local general district court where the friend lives. Go to the clerk's office, civil division, and ask to fill out a "warrant in debt" form. It'll cost you about $36, including service of process, probably. Be sure you know the friend's true full name and address. Be prepared to pick a date you can be in court at least 60 but not more than 90 days from the date you file.

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1/20/03, 4:36 pm

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