IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002 SUSAN McDOWELL, Et Al., Appellant, v. CASE NO. 5D SECOND CORRECTED OPINION MARTHA RODRIGUEZ, Etc., Et Al, Appellee. / Opinion filed March 1, 2002 Appeal from the Circuit Court for Brevard County, Vincent G. Torpy, Judge. David C. Knapp and Daniel F. Dill, of Rogers, Dowling & Coleman, P.A., Orlando, for Appellant, Susan McDowell. Tracy Raffles Gunn, Charles Tyler Cone and Charles W. Hall, of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, and St. Petersburg, and Elizabeth C. Wheeler of Wheeler & Wilkinson, LLP, Orlando, for Appellant, Infinity Insurance Company. R. Matthews Miles, Jr., of R. Matthews Miles & Associates, Daytona Beach, for Appellees Boniface Hiers Buick, Inc., and Universal Underwriters Insurance Company. PER CURIAM. EN BANC OPINION We sua sponte withdraw our prior opinion and substitute the following revised opinion:

2 The issue in this case concerns the application of the concept of indemnification as modified by the dangerous instrumentality doctrine in Florida. The operative facts are: In 1993 Susan McDowell purchased a 1988 Cadillac from Boniface Hiers Buick, Inc. (Boniface). She had multiple problems with the vehicle and returned it. Boniface and McDowell agreed that she would trade the Cadillac in on a 1993 Buick. Although attempts by Boniface to obtain bank financing for McDowell proved unsuccessful, she was allowed the use of the Buick while these attempts (which may or may not have been authorized by McDowell) were in progress. She permitted her son s girlfriend, Carolyn Parent, to drive the car. While doing so, Parent collided with a van owned by Scamp Rental and driven by Valezka Rodriguez. This resulted in a lawsuit by the five passengers of the van against Scamp Rental, Rodriguez, Boniface and Parent. Susan McDowell was not a named defendant in that action. Thereafter, Boniface filed a third-party complaint against McDowell and her carrier, Infinity Insurance Company (Infinity), seeking indemnification from her as the bailor of the vehicle to Parent. Infinity asserted a coverage defense against McDowell based upon an alleged material misrepresentation. 1 In the main action the carrier for Boniface, Universal Underwriters Insurance Company (Universal), provided a courtesy defense to Parent. In time, Universal obtained releases from the original plaintiffs on behalf of Parent (the active tortfeasor) and Boniface, the settlement of these claims aggregating $838, Subsequently, Universal was added as a party plaintiff in Boniface s pending third-party indemnification action against McDowell and Infinity. Thereafter, the circuit court entered a summary judgment holding that Universal was 1 The coverage issue raised by Infinity is the subject of separate litigation. 2

3 entitled to indemnification against McDowell 2 for the amount of $1,279, That judgment is the subject of the instant appeal. McDowell s first argument on appeal is that Boniface (hence Universal) cannot seek indemnity because it is guilty of fault - - i.e., corrupt conduct (forgery) in attempting to obtain financing for her in the proposed purchase of the Buick and failure to promptly repossess the vehicle from McDowell when the financing failed. This argument is a specious mixture of apples and oranges, and completely misconceives the dangerous instrumentality doctrine. The financial dealings between McDowell and Boniface are unrelated to the issues of active (i.e., causative) and passive (i.e., imputed) negligence that impact Florida s dangerous instrumentality doctrine, 3 and any indemnification arising therefrom. McDowell s allegations against Boniface do not relate to the type of fault which appears in cases denying indemnification to a party guilty of some causative conduct. See, e.g., National Beverage Corp. v. Costco Wholesale Corp., 736 So. 2d 142 (Fla. 3d DCA 1999). 4 The controlling concept in this case is the dangerous instrumentality doctrine as explained in Budget Rent-A-Car Systems, Inc. v. State Farm Mutual Automobile Insurance 2 This judgment did not include, nor exculpate, Infinity. The latter s liability vel non is not at issue in this appeal. 3 See Susco Car Rental System v. Leonard, 112 So. 2d 832 (Fla. 1959)(citing Anderson v. Southern Cotton Oil Co., 64 So. 975). 4 It is noteworthy that McDowell s argument in the lower court was not that Boniface was barred from indemnification by its own actions, but rather that the entire fault lay with Parent and that McDowell s bailment to Parent, standing alone, could not support an indemnification action by either Boniface or Universal. 3

4 Co., 727 So. 2d 287 (Fla. 2d DCA 1999). Therein, Judge Altenbernd wrote: We recognize that common law indemnity usually allows passively negligent tortfeasors to recover from actively negligent tortfeasors. Both Budget and Ms. Tolbert are vicariously or passively liable in this case. Florida s dangerous instrumentality doctrine, creating liability on the part of owners and lessees for the negligence of operators, is unusual. When there is a chain of custody of the automobile, as a dangerous instrumentality, indemnity flows between the vicariously liable tortfeasors so that ultimate vicarious liability rests with the tortfeasor who entrusted the negligent driver with the vehicle. This is true even if the act of entrustment was not negligent. Id. at 289 n. 2. In Budget the original bailor, Budget, is analogous to Boniface in the instant case; the interim bailee/bailor in that case, Ms. Tolbert, is analogous to McDowell in the instant case. Just as Tolbert was subject to an indemnification claim by Budget in that case, so is McDowell subject to an indemnification claim by Boniface (hence Universal) in the instant case. McDowell s second and third issues on appeal are unpersuasive. The summary judgment entered below is AFFIRMED. THOMPSON, C.J., HARRIS, PETERSON, GRIFFIN, SAWAYA, PALMER and ORFINGER, JJ., concur. PLEUS, J., dissents with opinion, with which SHARP, W., J., concurs. COBB, J., recused. 4

5 CASE NO. 5D PLEUS, J., dissenting. I would deny the motion for rehearing en banc. The purpose of Rule 9.330, Florida Rules of Appellate Procedure, is not to reargue the merits, but to bring to the court s attention something the court overlooked or misapprehended. It is not a request for the court to change its mind as to a matter already decided. The instant motion for rehearing simply reargues the merits. It does not identify matters overlooked or misapprehended. In short, the motion is nothing more than a request for the court to change its mind. This is another case in which a majority of this court is using the en banc rule improperly to overrule a prior panel. 1 Florida Rule of Appellate Procedure 9.331(a) provides: En banc hearings and rehearings shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court s decisions. This case, with its highly unique facts, is neither of exceptional importance, nor is a change in outcome necessary to maintain uniformity in the court s decision. I doubt we will even see another case with facts similar to this case. Certainly, the initial opinion, while extremely important to the litigants, sets no judicial precedent important to the jurisprudence of Florida. Again, calling to mind the admonition of Judge Cowart in State v. Georgoudiou, 560 So. 2d 1241, 1247 (Fla. 5th DCA 1990), the Constitution contains no authorization for a district court of appeal to sit en banc. The appellate rules allow only for en banc rehearings 1 In Chancellor Media Whiteco Outdoor, etc., et al. v. Department of Transportation, State of Florida, 26 Fla. L. Weekly D627 (Fla. 5th DCA Mar. 2, 2001), we reversed the entry of a summary judgment by a unanimous three judge panel. This court then changed its mind by an improper use of the en banc rule. 1

6 in cases of exceptional importance and where there is a need for uniformity. 2 In an effort to justify changing the result in this case, the majority opinion in this case suggests that Ms. McDowell may or may not have authorized unsuccessful attempts to obtain financing, thereby attributing some fault to her. However, the undisputed facts established in this record are that she signed an application for a lease which had to be approved by Barnett Bank. Barnett, on the following day, denied financing on a lease. Without contacting McDowell on that date, or asking her to return the car, Boniface forged McDowell s signature on a purchase (not a lease) agreement, which also was turned down. Failing on that ground to justify changing the result, the majority states that the issue on appeal was not properly preserved for appellate review. How they arrived at that conclusion is a mystery because the trial court granted a summary judgment as a matter of law. McDowell has a right to appeal that judgment based on the status of the record at the time of the ruling. The failure of her attorney to argue at the summary judgment hearing the exact same issue as the issue framed on appeal does not mean the issue was not properly preserved. Finally, the majority concludes as a matter of law that the fault of Boniface Buick must be the proximate cause of the injury, for which indemnity is sought, in order to bar recovery from McDowell. In other words, the forgery and neglect to get the car back must be the proximate cause 3 of the car wreck involving Carolyn Parent. There is no clear precedent which requires application of this (I submit) new rule of law. Common law indemnity is a 2 Article V, Section 4(a), Florida Constitution, provides that in the district courts of appeal three judges shall consider each case and the concurrence of two shall be necessary to a decision. 3 The majority uses the term causative conduct. I assume it to be the functional equivalent of proximate cause. 2

7 creature of equity and not of statute. Unclean hands will bar relief in equity whether or not the dirty hands caused the harm. The hands of Boniface are dirty from the forgery and its failure to timely seek return of the vehicle. This is particularly important in this case because there is support in the record to conclude Boniface assured McDowell the vehicle was covered by its insurance while in her possession and control -- a fact which was untrue -- and had McDowell known the true status of the car, she likely would have immediately returned it. I submit, the record, for summary judgment purposes, establishes that but for the forgery and neglect, the accident would never had occurred. That is sufficient to bar Boniface seeking indemnity from McDowell. Florida recognizes that a legal duty arises whenever a human endeavor creates a generalized and foreseeable risk of harming others. In McCain v. Florida Power Corp, 593 So. 2d 500 (Fla. 1992), the supreme court said: Where a defendant s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon the defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that risk poses. Boniface ignored its duty to inform McDowell that financing had been rejected and she should return the car. In our prior opinion, we relied on Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979), which is the seminal Florida case on common law indemnity. Without citing Houdaille, the majority now concludes that the misconduct of Boniface must constitute causative conduct. They rely instead on Budget Rent-A-Car-Systems, Inc. v. State Farm Mutual Automobile Insurance Co., 727 So. 2d 287 (Fla. 2d DCA 1999). The problem with their analysis is that Budget did not involve a rental car company at fault. If Boniface had no fault, Budget would be the controlling case, but Budget Rent-A-Car Systems is not controlling. 3

8 Furthermore, as noted by Judge Altenbernd, the controlling issue in Budget was insurance coverage and not indemnity. 727 So. 2d at 290. The main difference for our purposes, however, is in the fact that the party claiming indemnity in Budget was without fault. It should be of constant concern to our appellate process, and the efficient administration of justice, that we render prompt justice. Justice delayed is justice denied may be a cliche to some, but to a litigant it is reality. Too many cases languish in this court for month after month while all ten judges pour over briefs and transcripts and then vote. In some cases, the delay is warranted. In this case, it is not. This case, and others, send a message to the appellate bar that opinions of this court are simply a proposed order until we rule on the inevitable motions for rehearing en banc which seemingly follow most decisions we render. Finality is an important ingredient of the justice we administer. Granting motions for rehearing en banc for the sole purpose of changing the court s mind is simply not the appropriate way to achieve finality under our Constitution and appellate rules. SHARP, W. J., concurs. 4