6 Fla. L. Weekly Supp. 394a
Insurance — Subrogation — Leased vehicles — Insurer seeking subrogation from entity which leased automobile to its insured — Insurer may not raise for first time on appeal its contention that, according to ruling by First District Court of Appeal, single limit policy in effect at time of accident did not absolve automobile lessor of responsibility as the owner of vehicle under dangerous instrumentality doctrine — Summary judgment in favor of lessor affirmed
STATE FARM MUTUAL AUTO INS. CO., as subrogee of Robert Robinson, Appellant/Petitioner, vs. AUTOMOTIVE RENTALS, INC., and GUSTAVO F. LANATA, jointly and severally, Appellee/Respondent. 11th Judicial Circuit in and for Miami-Dade County. Appellate Case No. 98-229AP. County Case No. 93-13749 CC-05 SEC. 3. Opinion filed March 12, 1999. An Appeal from County Court, Marvin H. Gillman, Judge. Counsel: Scott A. Beatty, for Appellant. Kenneth G. Turkel, for Appellee.
(Before: Fredricka G. Smith, Arthur L. Rothenberg, Thomas S. Wilson, Jr., JJ.)
(Thomas S. Wilson, Jr., J.) State Farm appeals from a final summary judgment entered against it in a subrogation case on the issue of whether Automotive Rentals had complied with Florida Statute § 324.021(9)(b) and, therefore, was absolved of any responsibility to State Farm’s insured since it could not be considered an owner. At the time of the accident, Florida Statute § 324.021(9)(b) read as follows,
“(b) Owner/lessor. Notwithstanding any other provision of the Florida Statutes or existing case law, the lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operation in connection therewith; further, the insurance required under such lease agreement remains in effect.”
The affidavit filed by Automotive Rentals said that they had a $1,000,000.00 single limits (combined property damage liability and bodily injury liability) insurance policy in effect at the time of the accident. State Farm filed nothing in opposition. After a hearing, the judge ruled against State Farm. Neither side ordered a court reporter and, therefore, no transcript of the hearing exists.
Interestingly, a little less than one year before the hearing on the motion for summary judgment, the case of Bush Leasing v. Gallo, 634 So. 2d 737 (Fla. 1st DCA 1994) rev. denied, 645 So. 2d 450 (Fla. 1994) was decided.1 The First District Court of Appeals held that since the legislature referred only to split liability ($100,000/$300,000) in §324.021(9)(b) and did not include a single limit liability policy in that section that the single limit liability policy did not absolve the lessor of his responsibility as the owner of the vehicle under the dangerous instrumentality doctrine. Apparently, neither side was aware of the Bush decision.
State Farm in its initial brief cited, for the first time, in the record Bush v. Gallo, supra., and its progeny. Automotive Rentals in its brief argued that State Farm had not argued Bush or presented that issue to the trial court and, thus, waived it. State Farm’s response was complete silence. They did not ask to supplement the appellate record pursuant to Fla.R.App.P. 9.200(b)(4) or even file a reply brief.
This court, therefore, has no way of knowing whether the issue presented to this court was ever presented to the trial court. Under these circumstances, the only logical conclusion is that this issue was not presented to the trial court.
In the absence of fundamental error, it is axiomatic that the trial court has to be given the opportunity to determine the issue that the appellant presents to the appellate court. Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984). In Wildwood Properties, Inc., v. Archer of Vero Beach, Inc., 621 So. 2d 691 (Fla. 4th DCA 1993) the court held that the appellant could not contest a summary judgment entered against it on grounds which were not brought to the attention of the trial court. See also Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981) and Marks v. Delcatillo, 386 So. 2d 1259 (Fla. 3rd DCA 1980). Since the issue on appeal was not properly preserved, the decision below is affirmed. (FREDRICKA G. SMITH and ARTHUR L. ROTHENBERG, JJ., concur.)
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1The Third District Court of Appeal in Lavado v. General Electric Capital Auto Financial Service, Inc., 711 So. 2d 1237 (3rd DCA 1998) agreed with the First District. Subsequently, the legislature took up the issue and amended the statute to include single limit liability policies. The statute now reads,
“(b)Owner/lessor. — Notwithstanding any other provision of the Florida Statutes or existing case law, the lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage liability and bodily injury liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection therewith: further, this paragraph shall be applicable so long as the insurance meeting these requirements is in effect. The insurance meeting such requirements may be obtained by the lessor or lessee, provided, if such insurance is obtained by the lessor, the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor’s blanket policy.”
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