4 Fla. L. Weekly Supp. 627b
Torts — Insurance — Automobile insurer’s subrogation action against tortfeasor seeking to recover expenses of rental vehicle when insured’s pleasure vehicle had been totally destroyed — Loss of use is recoverable as an element of damages when a pleasure vehicle has been totally destroyed by a tortfeasor
KEVIN RALPH DALDORF, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a/s/o CLYDE METCALF and CLYDE METCALF, Appellees. 12th Judicial Circuit in and for Sarasota County, Civil Appeal. Case No. 96-2859 CA01. Opinion filed February 11, 1997. Appeal from the County Court for Sarasota County; Emanuel LoGalbo, Jr., Judge. Counsel: Beth M. Gordon, Parrillo, Weiss, & O’Halloran, Miami, for Appellant.
The facts giving rise to this appeal were stipulated in the trial court. The stipulation says that a personal vehicle belonging to State Farm’s insured, Clyde Metcalf, was totally destroyed by the negligence of Kevin Daldorf on October 30, 1994. As a result, the insured rented a vehicle for eight days. As required by its policy, this expense was reimbursed by State Farm. State Farm sued Daldorf in County Court for $120.00, the amount it claims is due for subrogation. The parties agreed the cost to rent the replacement vehicle was reasonable.
The issue on appeal is whether loss of use is recoverable as an element of damages when a pleasure vehicle has been totally destroyed by a tortfeasor. The lower court concluded such special damages were permitted and entered summary judgment in favor of the subrogated plaintiff.
Appellant acknowledges that Wajat Bakeries, Inc. v. Carolina Freight Carriers Corp., 177 So. 2d 544 (Fla. 3d DCA, 1965) extended loss of use damages to commercial vehicles which have been totally destroyed, but argues that the application of the principle to pleasure vehicles has not yet been explicitly sanctioned by any Florida appellate court. Appellant urges the court to limit damages to the value of the personal property at the time of loss in accordance with the general principle of tort damages found in Burtless v. Pallero, 570 So.2d 1140 (Fla. 4th DCA 1990).
Neither party has presented a Florida case precisely on point. Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968) allowed loss of use for a personal vehicle which was not totally destroyed, based on Restatement of Torts, Sections 928 and 931. But the holding of Meakin v. Dreier can not be fairly read as prohibiting loss of use damages when the chattel destroyed is a non-commercial vehicle.
Like the county judge below, this court can see no logical basis for applying one rule to the negligent demolition of a commercial vehicle and a different one to a pleasure vehicle, assuming in both situations there is a factual basis upon which the special damages can be measured.
To the case citations relied on by the trial judge, this court would add one additional authority. In Dobbs, Handbook on the Law of Remedies, Section 5.11 (West, 1973) the author reviews the rationale for the older rule which restricted special damages for loss of use in destruction cases, concluding:
The more recent cases that have given serious consideration to the rule limiting recovery in cases of destruction to the value of the chattel have rejected the rule, and have instead allowed loss of use claims in destruction cases just as in repair cases. But of course, the relevant period of time in destruction cases is only the time reasonably required to obtain a replacement. Ibid, p.385.
In expressly adopting the modern view in Wajat Bakery, Inc. v. Carolina Freight Carriers that special damages for loss of use are permitted when commercial property is totally destroyed, the Third District Court of Appeal by implication paved the way for the principle to be extended to pleasure vehicles.
For the reasons stated, the lower court opinion is AFFIRMED.
* * *
