42
Fla. L. Weekly D1407aTop of Form

Wrongful
death — Automobile accident — Vicarious liability — Temporary control of car
by non-owner, who was driving vehicle at time of accident while owner was
present in passenger’s seat, fell within parameters of a loan for purposes of
statute limiting strict vicarious liability of owner who “loans” a motor
vehicle to a permissive user — Statute makes no distinction as to whether use
of vehicle occurs with or without the presence of the owner — Trial court
erred in denying motion to limit owner’s total liability under the judgment

GWEN E. RICHBELL and ALAN RICHBELL,
as Personal Representatives of the ESTATE OF DEVON LEIGH RICHBELL, deceased, on
behalf of Estate and on behalf of themselves as surviving parents, Appellants,
v. ERNST TOUSSAINT, WHOLFNEY K. JEAN FRANCOIS, GRADY GRAY, GRADY GRAY TRUCKING,
INC., SHADY GRADY TRUCKING, INC., TRIPLE “H” TRUCKING, INC., JEFFREY L.
LENNARD, and B.E. LENNARD & SONS, LLC., Appellees. 4th District. Case Nos.
4D14-4549 and 4D14-4550. June 21, 2017. Consolidated appeals from the Circuit
Court for the Nineteenth Judicial Circuit, Martin County; George Shahood,
Senior Judge; L.T. Case No. 432011CA000989CAAXMX. Counsel: Bard D. Rockenbach
and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and
Gregg Schlesinger and Zane Berg of Schlesinger Law Offices, P.A., Fort
Lauderdale, for appellant. Shannon Kain of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami, and Peter A. Miller of Peter A. Miller & Associates, P.A.,
Coral Gables, for appellee Ernst Toussaint and Wholfney K. Jean Francois. Peter
D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, and David M.
Goldstein of Marcos Rothman Scharf Valdez Nguyen & Goldstein, P.L.,
Hollywood, for appellees Jeffrey Lennard and B.E. Lennard & Sons, LLC.
Scott A. Cole and Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Fort
Lauderdale and Melinda S. Thornton of Cole, Scott & Kissane, P.A., Miami,
for appellee Triple “H” Trucking Inc. Warren Kwavnick of Cooney Trybus Kwavnick
Peets, Fort Lauderdale, for appellee Grady Gray and Grady Gray Trucking, Inc.

(MAY, J.) The plaintiffs appeal a
final judgment in a wrongful death action. They argue the trial court erred in
certain evidentiary rulings and in giving a special jury instruction. Two of
the defendants cross-appeal an order denying their motion to limit the judgment
against the owner of one of the vehicles, pursuant to section 324.021(9)(b)(3),
Florida Statutes (2014). We affirm all issues on direct appeal without further
comment. We reverse on the cross-appeal.

A bizarre sequence of events on a
two-lane road resulted in the tragic death of the plaintiffs’ daughter. Their
daughter, and a second vehicle following her, attempted to pass two
tractor-trailers. They began their attempt in a passing zone, but ended their
attempt in a no-passing zone. When they cut back in front of the two tractor-trailers,
they encountered a vehicle stopped to make a left turn.

The plaintiffs’ daughter was able to
stop, but the vehicle following her rear-ended her car, forcing her into
oncoming traffic where another truck traveling in the opposite direction
collided with her vehicle. She died as a result of the accident. The plaintiffs
filed suit against the driver and owner of the vehicle that rear-ended their
daughter’s vehicle, the driver and owner of the truck that ultimately collided
with her, and the owner of the trailer attached to his truck.

The plaintiffs’ theory against the
truck driver in the second collision was that he negligently failed to avoid
the accident, due in part to his age and physical condition, which caused him
to have a slower reaction time than reasonable. The plaintiffs’
accident-reconstruction expert rendered his opinion on the truck driver’s
negligence without having reviewed his medical records.

Prior to trial, the plaintiffs
obtained the truck driver’s medical records, and deposed his treating
physicians, over his objection and request for a protective order. The
plaintiffs ultimately sought a compulsory medical examination just prior to
trial. The trial court granted the motion, but we granted a petition for writ
of certiorari. Gray v. Richbell, 144 So. 3d 573 (Fla. 4th DCA 2014).

Based on our decision, the trial
court quashed its order permitting the compulsory medical examination and ruled
that “until the Fourth issues a final ruling, there will be no mention of the
medical condition.”1 The plaintiffs proffered their
expert’s medical testimony outside the presence of the jury. He would have
testified that the truck driver suffered from a form of dementia that causes
poor reaction time and perception. The trial court also granted the truck
driver’s motion to exclude evidence regarding his medical condition without
prejudice pending our opinion.

During trial, and in response to a
question posed by plaintiffs’ counsel, the truck driver stated that he had not
taken any continuing courses on truck driving, but he had “safe driving” on his
license. During a sidebar, plaintiffs’ counsel told the court that the truck
driver’s commercial license did not have “safe driver” on it, and asked to
impeach him on that fact. The court prohibited counsel from doing so because a
pretrial order prohibited the plaintiffs from introducing any evidence of the
truck driver’s driving record.

Plaintiffs’ counsel then asked the
truck driver whether the words “safe driver” appeared on his license. The truck
driver’s attorney objected and moved for a mistrial, arguing that the
plaintiffs violated the pretrial order by questioning the truck driver about
his license. The trial court denied the motion for mistrial.

The trial judge then asked the truck
driver how he knew he had “safe driver” on his license, and he responded
someone at the Department of Motor Vehicles told him. When the court reviewed
the commercial license, however, it did not include a designation for “safe
driver.” But, the court noted that the truck driver’s Florida motor vehicle
driver’s license did designate “safe driver.” The trial court denied the
plaintiffs’ request to impeach the truck driver about the “safe driver”
designation.

The truck driver’s attorney asked
the trial court to instruct the jury that there were no issues with the truck
driver’s commercial driver’s license. The trial court agreed to do so. The
plaintiffs argued against the jury instruction because they believed it gave
judicial imprimatur to the truck driver’s statement that his license indicated
he was a “safe driver.” The trial court adhered to its previous ruling, and
read the following: “The Court has determined and now instructs you that at the
time of the subject accident [the truck driver] had a valid commercial driver’s
license.”

The jury found the driver of the car
that rear-ended the daughter’s vehicle negligent and 60% at fault, with the decedent
comparatively negligent and 40% at fault. The jury found no negligence on the
part of the truck driver. The court denied the plaintiffs’ motion for a new
trial and entered final judgment for the truck driver, his companies, and the
trailer’s owner.

Post-verdict, the owner of the
vehicle that rear-ended the plaintiffs’ daughter moved to limit the judgment to
$100,000, based on section 324.021(9)(b)(3), Florida Statutes, which limits the
liability of the motor vehicle owner who “loans” a vehicle to a permissive
user. The court denied the motion, finding there was no “loan” of the vehicle,
but rather a joint undertaking by the owner and driver. The court entered
judgment against the owner and driver for $750,000, their percentage of the
total damages based on the comparative negligence finding.

The plaintiffs now appeal the
judgment. The owner and driver of the vehicle that rear-ended the decedent have
cross-appealed.

We have de novo review. Fla.
Dep’t of Envtl. Prot. v. ContractPoint Florida Parks, LLC, 986 So.
2d 1260, 1264 (Fla. 2008).

The owner and driver argue the car
was loaned to the driver as a permissive user, entitling the owner to the
financial limitation set forth in section 324.021(9)(b)(3). The plaintiffs
respond the trial court correctly found no loan occurred because there was a
joint undertaking by the owner and driver as both were in the car at the time
of the accident.

The statute does not define the word
“loan,” but the term is not so extraordinary that it cannot be applied by use
of its own plain meaning without reference to some outside source. That being
said, to loan is to give temporary control of property to another without
relinquishing ownership with the intent that you regain control over the
property. Loan, The Random House Dictionary of the English Language (1967).

No one disputes that the passenger,
not the owner, of the vehicle was driving at the time of the accident. They had
traveled together to South Florida and were returning home at the time of the
accident. The owner had asked the passenger to drive while he slept in the
passenger seat. The sole claim against the owner was based on his vicarious
liability under Florida’s dangerous instrumentality doctrine.

Under that doctrine, a car owner is
liable for damages caused by the operation of his vehicle by a permissive user.
See Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993). The
vicarious liability of a permissive user under the dangerous instrumentality
doctrine is then limited by Florida’s financial responsibility statute, section
324.021(9)(b)(3).

That section provides in part: “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 . . . .” §
324.021(9)(b)(3).

The legislature added this provision
to address the real and perceived inequities created by the application of the
dangerous instrumentality doctrine. See Fischer v. Alessandrini, 907 So.
2d 569, 571-72 (Fla. 2d DCA 2005). By its plain language, the statute caps a
motor vehicle owner’s vicarious liability at $100,000 per person and $300,000
per incident for bodily injury, with additional limits for economic damages
depending on the permissive user’s insurance coverage. The “per person” limit
applies per person injured, not per claimant. See Lewis v. Enter. Leasing
Co., 912 So. 2d 349, 351 (Fla. 3d DCA 2005).

We have previously applied the term
“loan” consistent with the statute’s purpose. Fireman’s Fund Ins. Co. v.
Dollar Sys., Inc., 699 So. 2d 1028, 1030 (Fla. 4th DCA 1997). We
interpreted an insurance policy provision that excluded bodily injury “arising
out of the ownership, maintenance, use, or entrustment to others of any . . .
auto . . . loaned to any insured.” Id. at 1029. There, the insured
company was sued for negligent entrustment of a vehicle that was provided to
the wife of a vice president of the insured company for her personal use. Id.
The car was actually owned by Southeast Toyota and provided to the insured
company as a courtesy car. Id. at 1030. The insured company was not
permitted to sell or lease the car to a third party, but could entrust the
vehicle to whomever it chose. Id.

The evidence showed that Southeast
Toyota provided the vehicle as an inducement for the insured company to
purchase its products. Southeast Toyota expected to receive the car back from
the insured company, although there was no set time for its return. Id. The
insured company argued the exclusion did not apply because the term “loaned”
contemplated a gratuitous “bailment without reward” rather than a bailment for
the mutual benefit of the parties. Id. at 1031. We disagreed.

We looked to the dictionary meaning
of “loan,” and noted “the most frequently encountered definition of ‘loan’ is
‘a grant of the temporary use of something.’ ” Id. (quoting Loan, The
Random House Dictionary of the English Language (1967)). Applying the plain
and ordinary definition, we concluded that the courtesy car arrangement fell
within the exclusion of the policy because the arrangement was temporary and
contemplated the return of the car. Id.

Here, the driver was a permissive
user under the statute. The owner relinquished temporary control of the vehicle
while maintaining his ownership interest. Our application of the statute under
the facts in this case comports with the statute’s goal of limiting the
financial responsibility of an owner vicariously liable only because of the
dangerous instrumentality doctrine.

Yet, the plaintiffs argue the Second
District reached a contrary conclusion in Ortiz v. Regalado, 113 So. 3d
57 (Fla. 2d DCA 2013). We disagree.

There, a father and son shared legal
title to a vehicle. The son was involved in a fatal collision while driving. Id.
at 59. The Second District looked to Black’s Law Dictionary, which
defined “loan” as a “grant of something for temporary use.” Id. at 60
(quoting Loan, Black’s Law Dictionary (8th ed. 2004)). It also
looked to the definition of “loans,” “loaned,” or “on loan” in section
265.565(2)(b), Florida Statutes (2012), for guidance. Id. at 64 n.4. The
Second District held that section 324.021(9)(b)(3) did not limit the father’s
financial responsibility because he had not “loaned” the vehicle to his son in
the ordinary sense of the word since he co-owned the vehicle with his son. Id.
at 59-61.

Similarly, in Youngblood v.
Villanueva, 141 So. 3d 600, 603 (Fla. 2d DCA 2014), the Second District
held the financial limitation did not apply to a vehicle owner, who had
consigned his uninsured vehicle to another with instructions to sell the
vehicle, with no intent to ever retake possession of the vehicle. Id. at
603.

This case does not involve either a
co-owner or someone who has consigned the vehicle to another. Rather, it
involves a permissive grant of temporary use of the vehicle without transfer of
title. Neither Ortiz nor Youngblood dictate the result here.

The temporary control of the car by
the passenger in this case falls within the parameters of a loan. This is
especially true given the legislative intent of this statute. Section
324.021(9)(b) was enacted to limit strict vicarious liability against innocent
owners and lessors of motor vehicles who entrust their vehicles to another who is
at fault. Lewis, 912 So. 2d at 351.

The statute makes no distinction as
to whether the use of the vehicle occurs with or without the presence of the
owner. At the time of this accident, the owner had loaned control of the
vehicle to the passenger despite the fact that they were engaged in a joint
undertaking. To hold otherwise would do an injustice to the purpose for which
the legislature created this statute.

The trial court erred in denying the
motion to limit the owner’s total liability under the judgment. See Lynn v.
Feldmeth, 849 So. 2d 481, 483 (Fla. 2d DCA 2003) (reversing trial court’s
refusal to limit judgment against vehicle owner where statute limiting
liability for damages caused by permissive user was applicable).2

Affirmed on direct appeal; reversed
on the cross-appeal. (KLINGENSMITH and KUNTZ, JJ.,
concur.)

__________________

1We granted the petition with an opinion
to follow, but the issue arose at the eve of trial; our opinion issued after
trial.

2If the
permissive user is uninsured or has any insurance with limits less than
$500,000 combined for property damage and bodily injury liability, the owner is
liable for up to an additional $500,000 in economic damages. §
324.021(9)(b)(3). Here, the Richbells were awarded $1,200,000 in noneconomic
damages and $50,000 in economic damages. Thus, because the driver was found 60%
at fault for the accident and is uninsured or has insurance with limits less
than $500,000 combined property damage and bodily injury, the judgment against
the owner should be limited to $100,000 in noneconomic damages and $30,000 in
economic damages (60% of $50,000), for a total of $130,000.

* * *