In J & D Towing, LLC v. American Alternative Insurance Corporation, 2016 WL 91201, at *1-2 (Tex., 2016), the Texas Supreme Court held that a party can recover loss of use in both partial and total loss situations.    Enjoy.  

Nearly a century ago, a Texas attorney argued that the rule at issue in this case made it “cheaper to kill a mare in Texas than it is to cripple her.” No American Pharoah herself, this one-eyed, underfed mare lived a simple life. One night, however, she was caught roaming the city streets in search of food and was placed in the city pound. Her owner failed to pay her board bill. Thus, the city marshal hired a man known as Panhandle Pete to put her out of her misery. As the court of appeals then put it, “when Panhandle Pete’s pistol popped, she petered, for which the poundkeeper paid Pete a pair of pesos.” Her owner protested her death and sued for damages, including $350 for the loss of her services in his occupation of hauling. The court rejected that claim, holding that although “[d]amages occasioned by the loss of the use and hire of an animal are recoverable where the animal is injured,” “no such damages are recoverable for the total loss or death of an animal.” Rather, “[t]he measure of damages in the case of a wrongful killing of an animal is its market value, if it has one, and if not, then its actual or intrinsic value, with interest.” That rule, the owner’s attorney responded, makes it “cheaper to kill a mare in Texas than it is to cripple her.”  This case places a modern twist on that rule and addresses whether it should be cheaper to totally destroy a truck than it is to partially destroy it. J & D Towing, LLC (J & D) lost its only tow truck when a negligent motorist collided with the truck and rendered it a total loss. The question presented is simply put: In addition to recovering the fair market value of the truck immediately before the accident, may J & D recover loss-of-use damages, such as lost profits?  American Alternative Insurance Corporation (AAIC) says no and the court of appeals below agreed. Relying upon holdings of other Texas courts of appeals and cases from this Court, they contend that Texas law distinguishes between partial destruction and total destruction of personal property, allowing loss-of-use damages for the former but not for the latter. J & D counters that this distinction belies common sense and is out of step with the majority trend in other jurisdictions permitting loss-of-use damages in total-destruction cases.  We agree with J & D and, therefore, reverse the court of appeals’ judgment and render judgment for J & D.