Recent Developments in Co-Owner Vicarious Liability
By Martin G. Deptula, Esq.
Published in “Paraclete,” The Magazine for the Legal Professional, April 2014
In Ortiz v. Regalado, 113 So.3d 57 (Fla. 2d DCA 2013), the Second DCA
addressed the issue of vicarious liability amongst vehicle co-owners. Mr. Ortiz
jointly owned a motor vehicle with his son, Andy Ortiz. While operating the jointly-owned vehicle,
Andy struck and killed the Lourdes Regalado Falcon (“Ms. Regalado”). A jury found that the negligence of Andy
Ortiz and Ms. Regalado herself contributed equally to the accident. The verdict resulted in a final judgment
ordering the Ortiz defendants to pay more than half of the approximately $1.4
million in damages awarded to the Regalados.
addressed the issue of vicarious liability amongst vehicle co-owners. Mr. Ortiz
jointly owned a motor vehicle with his son, Andy Ortiz. While operating the jointly-owned vehicle,
Andy struck and killed the Lourdes Regalado Falcon (“Ms. Regalado”). A jury found that the negligence of Andy
Ortiz and Ms. Regalado herself contributed equally to the accident. The verdict resulted in a final judgment
ordering the Ortiz defendants to pay more than half of the approximately $1.4
million in damages awarded to the Regalados.
On appeal, Mr. Ortiz argued
that, as a vicariously liable defendant, his damages were limited to $100,000
per person and $300,000 per accident pursuant to Florida Statute §
324.021(9)(b)(3), which states:
that, as a vicariously liable defendant, his damages were limited to $100,000
per person and $300,000 per accident pursuant to Florida Statute §
324.021(9)(b)(3), which states:
(b) Owner/lessor.—Notwithstanding any other
provisions of the Florida Statutes or existing case law:
provisions of the Florida Statutes or existing case law:
…
3. The owner who is a natural person and loans a
motor vehicle to any permissive user shall be liable for the operation of the
vehicle or the acts of the operator in connection therewith only up to $100,000
per person and $300,000 per incident for bodily injury and up to $50,000 for
property damage.
motor vehicle to any permissive user shall be liable for the operation of the
vehicle or the acts of the operator in connection therewith only up to $100,000
per person and $300,000 per incident for bodily injury and up to $50,000 for
property damage.
Mr. Ortiz argued he was entitled
to the protections of § 324.021(9)(b)(3) because the term “loan” was ambiguous
in the context of co-owners. He took the position that co-owners must necessarily grant temporary use of a
jointly owned vehicle to the other co-owner and, therefore, a loan was created
by default. Based on this interpretation, Ortiz claimed he was entitled to the statutory cap on vicarious liability
damages.
to the protections of § 324.021(9)(b)(3) because the term “loan” was ambiguous
in the context of co-owners. He took the position that co-owners must necessarily grant temporary use of a
jointly owned vehicle to the other co-owner and, therefore, a loan was created
by default. Based on this interpretation, Ortiz claimed he was entitled to the statutory cap on vicarious liability
damages.
The Second DCA rejected Mr.
Ortiz’s statutory interpretation based on the plain language of the statute,
which requires a “loan” from an “owner” to a “permissive user.” In holding that an “owner of an object can
only loan that object to another who has no legal right to the object” the
Second DCA effectively eliminated a co-owners right to limit vicarious
liability damages under § 324.021(9)(b)(3).
Ortiz’s statutory interpretation based on the plain language of the statute,
which requires a “loan” from an “owner” to a “permissive user.” In holding that an “owner of an object can
only loan that object to another who has no legal right to the object” the
Second DCA effectively eliminated a co-owners right to limit vicarious
liability damages under § 324.021(9)(b)(3).
But the Court did not stop
there. In a footnote, the Second DCA
noted that Ortiz had not raised the issue, and the Court did not decide if
Mr. Ortiz could be held vicariously liable for his son’s negligence “in the
first instance.” Of course, there was no
reason for the Court to make this observation unless it intended to point to
the fact that under Florida law, vicarious liability is premised upon the
theory that “one who originates the danger by entrusting the automobile to
another is in the best position to make certain that there will be adequate
resources with which to pay the damages caused by its negligent
operation.” Aurbach v. Gallina,
753 So. 2d 60, 62 (Fla. 2000) (citation
omitted). Thus, in Florida “an owner
who gives authority to
another to operate the owner’s vehicle by either express or implied consent has
a non-delegable obligation to ensure that the vehicle is operated
properly.” Hertz Corp. v. Jackson,
617 So. 2d 1051, 1053 (Fla. 1993) (emphasis
added). In other words, the
cornerstone of vicarious liability is control and the relinquishment
thereof. In light of the owner’s right
and ability to control who may operate an automobile, Florida law “imposes
under the common law dangerous instrumentality doctrine strict vicarious
liability upon the owner of a motor vehicle who voluntarily entrusts it to
another.” Id.
there. In a footnote, the Second DCA
noted that Ortiz had not raised the issue, and the Court did not decide if
Mr. Ortiz could be held vicariously liable for his son’s negligence “in the
first instance.” Of course, there was no
reason for the Court to make this observation unless it intended to point to
the fact that under Florida law, vicarious liability is premised upon the
theory that “one who originates the danger by entrusting the automobile to
another is in the best position to make certain that there will be adequate
resources with which to pay the damages caused by its negligent
operation.” Aurbach v. Gallina,
753 So. 2d 60, 62 (Fla. 2000) (citation
omitted). Thus, in Florida “an owner
who gives authority to
another to operate the owner’s vehicle by either express or implied consent has
a non-delegable obligation to ensure that the vehicle is operated
properly.” Hertz Corp. v. Jackson,
617 So. 2d 1051, 1053 (Fla. 1993) (emphasis
added). In other words, the
cornerstone of vicarious liability is control and the relinquishment
thereof. In light of the owner’s right
and ability to control who may operate an automobile, Florida law “imposes
under the common law dangerous instrumentality doctrine strict vicarious
liability upon the owner of a motor vehicle who voluntarily entrusts it to
another.” Id.
The Ortiz case implies that co-owners of a motor vehicle cannot be
vicariously liable to one another because neither can relinquish control of the
vehicle to the other. This, however, is
a decision for another day.
Significantly, the Second DCA certified the following question to the
Florida Supreme Court:
vicariously liable to one another because neither can relinquish control of the
vehicle to the other. This, however, is
a decision for another day.
Significantly, the Second DCA certified the following question to the
Florida Supreme Court:
DOES §
324.021(9)(b)(3) APPLY TO LIMIT THE AMOUNT OF DAMAGES ONE CO-OWNER OF A VEHICLE
MUST PAY WHEN THE OTHER CO-OWNER OPERATES THEIR JOINTLY OWNED VEHICLE
NEGLIGENTLY AND INCURS DAMAGES PAYABLE TO A THIRD PARTY?
324.021(9)(b)(3) APPLY TO LIMIT THE AMOUNT OF DAMAGES ONE CO-OWNER OF A VEHICLE
MUST PAY WHEN THE OTHER CO-OWNER OPERATES THEIR JOINTLY OWNED VEHICLE
NEGLIGENTLY AND INCURS DAMAGES PAYABLE TO A THIRD PARTY?
As of the date this article was
written, the Supreme Court had not yet accepted review of Ortiz. But its resolution of
this certified question will help clarify the matter of one co-owner’s
vicarious liability for another owner’s negligence.
written, the Supreme Court had not yet accepted review of Ortiz. But its resolution of
this certified question will help clarify the matter of one co-owner’s
vicarious liability for another owner’s negligence.