7 Fla. L. Weekly Supp. 434a
Insurance — Leased vehicles — Rental car company seeking indemnity from drivers listed on rental agreement and driver to whom vehicle was loaned and who was cited for accident in which rental car and another automobile struck by rental car were damaged
ADRIANA E. SUAREZ; VALUE RENT-A-CAR, INC., a Florida Corporation; MARIA PERDOMO; and ABDIAS CIMAN, Appellants/Petitioners, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Maryland Corporation, Appellee/Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-091 AP. Lower Court Case No. 98-6970-CC 05(01). Opinion filed May 10th, 2000. On Appeal from the judgment of the County Court, General Jurisdiction Division, J. Shelley Kravitz, Miami-Dade County, Florida. Counsel: Angel L. Gimenez, for Appellant. Caryn Bellus-Lewis, for Appellee.
(Before JON I. GORDON, AMY STEELE DONNER, and MARTIN D. KAHN, JJ.)
(PER CURIAM.) AFFIRMED. (GORDON, KAHN, JJ. CONCUR.)
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(STEELE DONNER, J., Dissenting.) The majority accepts the position of the trial court without considering the controlling issue of vicarious liability, not raised at the trial nor the appellate level. In this appeal, the appellants contend that the policy issued by Government Employees Insurance Company, (“GEICO”), the appellee herein, is ambiguous and as such, the trial court erred in granting summary judgment in favor of the appellee.
The facts of this case are undisputed. Appellant, Value Rent-A-Car, rented to Co-Appellant, Suarez, an automobile which she later loaned to Co-Appellant, Ciman. Mr. Ciman was cited for an accident in which both the rental car and the automobile struck by Ciman were damaged. The damages sustained by both the rental vehicle and the automobile which was struck were paid for by Value Rent-A-Car.
Subsequently, Value Rent-A-Car sought indemnification from Appellants, Suarez, Perdomo (the additional driver listed on the rental agreement), and Ciman. Consequently, Suarez sought coverage from GEICO under her automobile insurance policy. GEICO, in turn, brought this action seeking declaratory relief that its policy did not cover liability and damages where neither the insured or her relative was driving the non-owned vehicle. The trial court granted summary judgment for GEICO finding that the insured’s policy provided no coverage to her and to the other Appellants in this case.
Neither at the trial level nor on appeal did the appellants argue the issue of vicarious liability. In this Court, Appellees correctly argued and established that the insurance policy was not ambiguous. As such, because there are no disputed issues of fact, and this case involves solely an application of law, we are in as good a position as the trial judge to decide how to apply the law to the facts of this case. Brown v. National Car Rental System, Inc., 707 So. 2d 394, 395 (Fla. 3d DCA 1998) citing Mansell v. State, 609 So. 2d 679 (Fla. 1st DCA 1992) (holding that as to the correction of an erroneous application of law a non-deferential standard of review applies).
Under the doctrine of dangerous instrumentality, coverage should have been provided to the insured under its policy with GEICO. This doctrine provides that the owner of an automobile who entrusts its use to another is liable for the negligence of the person to whom the instrumentality is entrusted. Sun Chevrolet, Inc., v. Crespo, 613 So. 2d 105, 107 (Fla. 3d DCA 1993) citing Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832, 836 (Fla. 1959).1 Liability under the doctrine is derivatively imposed as the owner is liable for negligent operation of the automobile no matter where the driver goes, stops, or starts. Chase and Company of Benefield, 64 So. 2d 922, 924 (Fla. 1953).
Moreover, Florida provides under its Financial Responsibility laws that the primary insurer of the owner of the motor vehicle is primarily responsible for damages. §§ 324.151(a) and 324.021(7), Fla. Stat. (1999); Allstate Ins. Co. v. Fowler, 480 So. 2d 1287 (Fla. 1985). Section 324.021(7) requires that an owner of a motor vehicle establish proof of ability to respond to damages to the extent of $10,000 per person for one accident and that any liability policy issued to an owner of a motor vehicle provide a minimum of $10,000 as above described. Thus, the financial responsibility law mandates that liability insurance must insure the owner named therein and any other person as operator using the motor vehicle with the express or implied permission of the owner. § 324.151(1)(a); 31 Fla. Jur. 2d. Coverage of Motor Vehicle Risks and Liability of Motor Vehicle Insurers § 2961 (1995).
The policy provisions in dispute in Hertz Corp. v. Amerisure Ins. Co., 627 So. 2d 22 (Fla. 2d 1993) are similar to those at bar. There the policy provided that Hertz would pay damages “for bodily injury or property damages which any covered person becomes legally responsible because of an auto accident.” Id. at 23. Further, under covered person, the policy outlined “[c]overed person” as . . . 1. You or any family member for the ownership, maintenance or use of any auto or trailer.” Id. The court reasoned there that because insurance policy provisions are to be construed strictly against the insurer and liberally in favor of coverage, there was coverage under the policy issued by Amerisure. The court stated that the liability asserted against the insured was vicarious liability for the ownership, maintenance or use of the automobile by the second permissive driver. The court went a step further and defined the term “use” to mean the owner’s act of permitting another to drive the rented auto, finding a non-delegable obligation to ensure that the vehicle is operated safely. Id.
The Second Circuit went even further in Budget Rent-A-Car Systems, Inc. v. State Farm Mutual Automobile Insurance Company, 727 So. 2d 287, 290 (Fla. 2d DCA 1999). There the Court dealt with a situation similar to that presented in this appeal. That case held that the automobile policy provided coverage to the insured under the disputed policy. The court stated that “when a driver borrows an automobile from a friend who owns the car, the owner’s insurance is primary and provides a defense to both the owner and the operator.” Id. citing Fowler, 480 So. 2d at 1289, supra.
In the instant case, it is evident that Appellant Suarez is vicariously liable to Appellant Value Rent-A-Car for damages to the rental vehicle and to the other damaged vehicle involved in the accident. As such, GEICO as Appellant Suarez’ insurer, is responsible to provide coverage under the subject policy to the insured and her designee, Perdomo. The trial court misconstrued the law in granting summary judgment in favor of GEICO against its insured Suarez and its designee, Perdomo.
In its most recent opinion on the issue of vicarious liability, the Florida Supreme Court stated that “whether an entity or individual is vicariously responsible as a bailee for the negligent operation of a motor vehicle may be a fact-based inquiry”. Aurbach v. Gallina, 25 Fla. L. Weekly S74 (Fla. February 4, 2000) citing Brown v. Goldberg, Rubenstein & Buckley, P.A., 455 So. 2d 487, 488 (Fla. 2d DCA 1984). Therefore, such a determination would not be suitable for summary judgment. Id.
In Aurbach, the Court firmly asserted that in determining who is vicariously liable under the dangerous instrumentality doctrine, it has repeatedly required that the person held vicariously liable have an identifiable property interest in the subject vehicle, such as ownership, bailment, rental, or lease of that vehicle. Id. citing Kraemer v. General Motors Acceptance Corp., 572 So. 2d 1363, 1364-67 (Fla. 1990). Here, GEICO’s responsibility stems from the fact that Suarez is its insured and Suarez is vicariously liable for the actions of Ciman.
In light of the foregoing analysis on vicarious liability, I would reverse the order of the trial court denying coverage to Appellants Suarez who is vicariously liable for Ciman. It is clear that GEICO should be responsible for coverage for liability and damages to Value Rent-A-Car as the insured/Appellant Suarez was liable for the actions of Ciman in the accident which occurred.
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1In Susco, the Court extended vicarious liability to the owner of a vehicle acting a lessor or bailor for the negligent operation of the vehicle by the lessee or bailee. Id. at 835-36.
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