Bowen v. Taylor–Christensen

• Decision Date: 02 October 2012
• Docket Number: No. 5D09–3888.,5D09–3888.
• Citation: 98 So.3d 136
• Parties: Mary Jo BOWEN as Personal Representative, etc., Appellant, v. Mary Gregory TAYLOR–CHRISTENSEN, et al., Appellee.
• Court: Florida District Court of Appeals

98 So.3d 136

Mary Jo BOWEN as Personal Representative, etc., Appellant,

v.Mary Gregory TAYLOR–CHRISTENSEN, et al., Appellee.

No. 5D09–3888.

District Court of Appeal of Florida, Fifth District.

Aug. 31, 2012.

Rehearing Denied Oct. 2, 2012.

Stephen J. Pajcic, III, and Thomas F. Slaterof Pajcic & Pajcic, P.A., Jacksonville, S. Sammy Cacciatore, Jr., of Nance, Cacciatore, Hamilton, Berger, Nance & Cacciatore, Melbourne, and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant.

Warren B. Kwavnick of Cooney, Trybus, Kwavnick, Peets, PLC, Fort Lauderdale, and Dennis R. O'Connor of Ogden, Sullivan & O'Connor, P.A., Orlando, for Appellee Robert L. Christensen.

No Appearance for Appellee Mary Gregory Taylor–Christensen.

ON MOTION FOR REHEARING EN BANC

TORPY, J.

We grant the motion for rehearing en banc, recede from the panel opinion, and substitute this opinion in its place.¹

The issue we address in this wrongful death lawsuit is whether Robert Christensen (“Appellee”) is vicariously liable for damages arising from an automobile collision caused by his now ex-wife, Mary Gregory Taylor–Christensen (“Ms.Taylor–Christensen”), who was operating a car while under the influence of alcohol when she struck and killed Appellant's husband. The car that Ms. Taylor–Christensen was driving was titled in both her and Appellee's names as co-owners. Because we conclude, as a matter of law, that Appellee had an identifiable property interest in the car at the time of the collision, we reverse the lower court's order that denied Appellant's motion for directed verdict, and remand the case with instructions to enter judgment against Appellee in accordance with the damage verdict—as might be modified after due consideration of Appellee's fifth affirmative defense.²

Appellee testified that he separated from Ms. Taylor–Christensen in April 1999, and Ms. Taylor–Christensen relocated to another county. In April 2003, after the conclusion of the court proceedings for the dissolution of their marriage, but before the final judgment was entered, Appellee attempted to reconcile with Ms. Taylor–Christensen and went to visit her. Ms. Taylor–Christensen told him that she needed a second car because the vehicle she had was unsuitable for transporting her grandchildren. After shopping together, Appellee purchased the car that Ms. Taylor–Christensen was operating at the time of the fatal collision.

Appellee and Ms. Taylor–Christensen signed numerous documents in connection with the purchase of the car identifying themselves as “purchaser[s]” or “co-owner[s]”or both. They signed a purchase agreement that identified each as “buyer” and “purchaser.” They signed a HSMV 82994 form (required to obtain title) as “Buyer[s].” Under penalty of perjury, they signed an application for title wherein they designated themselves at the top of the page as “co-owner[s],” and each of their signatures appeared over the typewritten designation “APPLICANT (CO–OWNER).” The application included a sworn attestation to the correctness of the information. Both Appellee and Ms. Taylor–Christensen produced their driver's licenses and provided their social security numbers and birth dates for recordation in the transaction paperwork. The purchase transaction took a considerable period of time to complete. Appellee described the process as “tak[ing] longer to buy a vehicle than anything else in [one's] life.” When asked about the documents, Appellee acknowledged that the title to the car was issued to Ms. Taylor–Christensen “or” Appellee, in accordance with the application, but he claimed that his intention in signing the paperwork was to make a “gift” of the car to his “wife.” According to Appellee,

the salesman filled out the paperwork, gave me the paperwork, and I signed it. My intention was to buy a gift for my wife so that she could drive a car and, of course, that was my interest, was to buy her a car for that purpose. And so I signed the documents there so that I could purchase that car for her.

(Emphasis added).

According to Appellee, he saw the car only twice after the purchase—the day after the purchase when he drove it to a car wash and one other time in the summer of 2003, during a second and last attempt at reconciliation. The fatal collision occurred on February 21, 2005.

After the court denied Appellant's motion for directed verdict on Appellee's liability, the jury returned a special verdict finding that Appellee was not the owner of the car at the time of the collision. Appellant challenges that ruling, arguing that, as a matter of law, Appellee was the owner of the vehicle. We agree and reverse.

The dangerous instrumentality doctrine was adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Its evolution has been the product of state and federal legislation,³ as well as judicial construction. The Florida Legislature, in the Financial Responsibility Law, imposed limited statutory liability on “owners” who permit the use of their vehicles:

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 up to $300,000 per incident for bodily injury and up to $50,000 for property damage.

§ 324.021(9)(b) 3., Fla. Stat. (1999) ⁴ (emphasis added). Section 324.021(9)(a), Florida Statutes (2005), defines “owner” as the “person who holds the legal title of a motor vehicle.” (Emphasis added). Two of the so-called exceptions to title holder liability addressed by the courts have also been addressed by statute in the Florida Uniform Traffic Control Law. See§ 316.003(26), Fla. Stat. (2005) (conditional sales exception—“owner” defined as one who holds legal title or conditional sales vendee); § 319.22(2), Fla. Stat. (2005) (incomplete transfer—transferor not liable for incomplete transfer if certain formalities are honored).

If the answer to this case involved the application of the statutory scheme, withoutmore, it would be easy. Because Appellee never transferred title of the vehicle in accordance with section 319.22(2), Florida Statutes (2005), and was not a conditional sale vendor as set forth in section 316.003(26), Florida Statutes (2005),⁵ he remained a co-owner of the car by virtue of holding legal title at the time of the collision. Thus, he was legally liable for the acts of his co-owner while she was operating the car, at least to the statutory limits set forth at section 324.021(9)(b) 3. However, in Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955), the supreme court recognized an “extremely limited” exception that allows the title holder to “escape” liability if the title holder consummates a “common law sale,” even if the sale does not meet the formalities of the statutory scheme. See Aurbach v. Gallina, 753 So.2d 60, 63–64 (Fla.2000) (characterizing holding in Palmer as “extremely limited” exception under which titled owner may “escape” liability).⁶

In Palmer, the title holder, a used car dealer, sold a car to Mr. Hughes under a conditional sales contract. 81 So.2d at 635. The contract and other papers were signed, indicating that the buyer had purchased the car, a down payment had been paid, and the car had been delivered to the buyer. The buyer subsequently caused a collision while driving the car. Id. The used car dealer argued that it was not the beneficial owner of the vehicle because it had sold its interest to Mr. Hughes, even though it had not attended to statutory formalities for transfer and avoidance of transferor liability. ⁷Id. at 636. Our high court agreed. It concluded that, although a transfer of ownership using the formalities contained in section 319.22, would, as the statute states, terminate the transferor's liability, the statutory method of transfer was not intended to be exclusive. A transferor's liability could also terminate upon a completed “common law sale.” Id. Our high court concluded:

We think these facts supported the verdict rendered. Before Hughes drove the car out of the Evans lot, the definite intention existed on the part of Hughes and the Evans representative to make immediate transfer of the beneficial ownership of the vehicle to Hughes, and nothing appears to suggest a contrary intention.

Id. (emphasis added).

Appellee heavily relies on Palmer and its progeny, urging that this is a case where the issue of beneficial ownership was properly placed before the jury because it was a question of fact whether Appellee had divested himself of his ownership interest in the vehicle by “gift.” Assuming that the “extremely limited” exception in Palmer—a case involving a well-documented exchange between unrelated parties with no contradictory evidence—may be extended to this situation, to prevail on this argument, Appellee had the burden to present material evidence to support his theory that he gifted all of his interest in the vehicle to Ms. Taylor–Christensen, rather than a mere co-ownership interest. See Palmer, 81 So.2d at 636–37 (emphasizing lack of evidence “to suggest a contrary intention”).

To make a valid gift, three elements must be shown: donative intent, delivery of possession, and an intent by the donor to divest himself of all dominion and control. Reiner v. Reiner, 400 So.2d 1292, 1293 (Fla. 4th DCA 1981); Sihler v. Sihler, 376 So.2d 941, 942 (Fla. 2d DCA 1979); Eulette v. Lynch, 101 So.2d 603 (Fla. 3d DCA 1958). In determining the donor's intent, the evidentiary focus must be on the donor's words when making the purported gift. Canova v. Fla. Nat'l Bank of Jacksonville, 60 So.2d 627, 628 (Fla.1952); Winner v. Winner, 370 So.2d 845, 846–47 (Fla. 3d DCA 1979). Here, the only evidence of the words Appellee used to manifest an intent to make a gift was in the documents he signed when he acquired the car from the dealer. The complete void in Appellee's proof, however, is that...