Estate of Miller ex rel. Miller v. Thrifty Rent-a-Car System

• Decision Date: 10 April 2009
• Docket Number: Case No. 6:07-cv-1358-Orl-19DAB.
• Court: U.S. District Court — Middle District of Florida
• Parties: ESTATE OF Madison MILLER, by and through Rita MILLER and Jerame Miller as co-personal representatives of the estate, Cori Miller, Rita Miller, Jerame Miller, Plaintiffs, v. THRIFTY RENT-A-CAR SYSTEM, INC., John Doe Manufacturer, Defendants.

609 F.Supp.2d 1235

ESTATE OF Madison MILLER, by and through Rita MILLER and Jerame Miller as co-personal representatives of the estate, Cori Miller, Rita Miller, Jerame Miller, Plaintiffs, v. THRIFTY RENT-A-CAR SYSTEM, INC., John Doe Manufacturer, Defendants.

Case No. 6:07-cv-1358-Orl-19DAB.

United States District Court, M.D. Florida, Orlando Division.

April 10, 2009.

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Alfred Washington, Jr., Ashleigh J. Smith, F. Bradley Hassell, Hassell, Moorhead & Carroll, Daytona Beach, FL, Douglas Desjardins, Michael B. Ely, Clapp, Desjardins & Ely, PLLC, Washington, DC, for Plaintiffs.

Emmett Peyton Hodges, Cameron, Hodges, Coleman, Lapointe & Wright, PA, Orlando, FL, for Defendant Thrifty Rent-A-Car System, Inc.

ORDER

PATRICIA C. FAWSETT, District Judge.

This case comes before the Court on the following:

1. Notice of Defendant Thrifty Rent-A-Car System, Inc. ("Thrifty") of Designation of Fabre Defendants (Doc. No. 106, filed Dec. 1, 2008);

2. Motion of Plaintiffs to Strike the Notice of Designation of Fabre Defendants (Doc. No. 108, filed Dec. 5, 2008);

3. Motion of Thrifty to Amend/Correct the Answer to the Complaint (Doc. No. 109, filed Dec. 15, 2008);

4. Response of Plaintiffs to the Motion of Thrifty to Amend/Correct the Answer to the Complaint (Doc. No. 110, filed Dec. 15, 2008) 5. Notice of Thrifty of Intent to Raise the Applicability of South Africa Law (Doc. No. 112, filed Dec. 19, 2008);

6. Response of Thrifty to Motion of Plaintiffs to Strike the Notice of Designation of Fabre Defendants (Doc. No. 114, filed Dec. 19, 2008);

7. Consent Motion of Plaintiffs for Leave to File Reply to Defendant's Opposition to Motion to Strike (Doc. No. 117, filed Dec. 23, 2008);

8. Notice of Thrifty of Filing the Statement of Bedver John Henry Irving in Support of Thrifty's Notice of Intent to Raise Applicability of the Law of South Africa (Doc. No. 118, filed Dec. 24, 2008);

9. Order Requiring Submission of Briefs Concerning the Issue of Choice of Law, 2009 WL 88494 (Doc. No. 121, filed Jan. 12, 2009);

10. Amended Answer and Affirmative Defenses of Thrifty (Doc. No. 126, filed Jan. 23, 2009);¹

11. Supplemental Brief of Thrifty Regarding Choice of Law (Doc. No. 127, filed Jan. 26, 2009);

12. Notice of Thrifty of Filing Report of Winston P. Nagan, FRS, in Support of Thrifty's Supplemental Brief (Doc. No. 129, filed Jan. 26, 2009);

13. Motion of Thrifty to Apply the Law of South Africa (Doc. No. 130, filed Jan. 26, 2009);

14. Response of Plaintiffs in Opposition to Motion of Thrifty to Apply the Law of South Africa (Doc. No. 154, filed Feb. 25, 2009);

15. Motion of Thrifty for Leave to File Reply to Plaintiffs' Response (Doc. No. 160, filed Feb. 27, 2009);

16. Response of Plaintiffs in Opposition to Motion of Thrifty for Leave to File Reply to Plaintiffs' Response (Doc. No. 162, filed Feb. 27, 2009); and

17. Supplemental Motion of Thrifty for Leave to Amend Answer and Affirmative Defenses to Include Fabre Defendants Identified Through Recent Discovery (Doc. No. 166, filed Mar. 23, 2009).

Background

I. Procedural History

The series of Motions, Responses, and Notices before the Court concerns the intent of Defendant Thrifty, a car rental service, to raise an affirmative defense to the claim of liability for a car accident that occurred in South Africa. Specifically, Thrifty relies on the Florida Supreme Court's decision in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), to designate twelve parties which it believes are wholly or partially responsible for the negligence alleged. (Doc. No. 106; Doc. No. 166.) The traditional common law rule in the United States is joint and several liability, whereby each defendant found liable could be required to pay for one-hundred percent of the plaintiff's injury at the plaintiff's election, provided that the plaintiff could never recover more than the full amount of his or her damages. Fabre, 623 So.2d at 1184-85; Black's Law Dictionary 933 (8th ed. 2004). In Fabre, the Florida Supreme Court created an affirmative defense that allows named defendants to apportion liability to non-parties termed Fabre defendants, thus abrogating the common law rule. Fabre, 623 So.2d at 1185-87 ("[S]ection 768.81 [of the Florida Statutes] was enacted to replace joint and several liability with a system that requires each party to pay for non-economic damages only in proportion to the percentage of fault by which that defendant contributed to the accident.").

Whether the Fabre defense applies in this case is a particularly contentious issue for reasons related to both the unusual facts of this case and the scope of this Court's jurisdiction. Plaintiffs seek derivative damages related to the death of Madison Miller, a resident of Ohio at the time she died. (See Doc. No. 8, filed Oct. 1, 2007.) While vacationing in South Africa, the Miller family rented a car from a South African Thrifty franchisee called Safy-Trust. (Doc. No. 41 at 2-3.) During the trip, the car's brake system allegedly seized, causing the car to veer off the road and flip over. (Id.) Madison Miller survived the initial accident but died when the helicopter that evacuated her from the scene crashed. (Id.) Following the accident, Plaintiffs moved to Florida and sued both Thrifty, a corporation whose principal place of business and site of incorporation is Oklahoma, (Doc. No. 48 ¶ 1, filed Dec. 27, 2007), and the car's alleged manufacturer, Toyota Motor Corporation ("TMC"). After jurisdictional discovery, the Court determined that it lacked personal jurisdiction over TMC, leaving only the claims against Thrifty.² (Doc. No. 103, filed Oct. 6, 2008, 2008 WL 4525058.)

Thrifty's Answer asserts an affirmative defense premised on Fabre. (Doc. No. 48 ¶ 11.) However, Thrifty did not specify the actual Fabre defendants in its Answer. (Id.) Instead, Thrifty stated it was undertaking a "reasonable investigation and discovery with this affirmative defense as the case proceeds." (Id.) Thrifty has since moved the Court to allow it to amend the Answer and incorporate twelve specific non-party defendants. (Doc. No. 109; Doc. No. 166; Doc. No. 166-2.) These proposed Fabre defendants include the "Toyota corporate entity" responsible for the "manufacturing" and "sale" of the car involved in this accident, the helicopter operator, the helicopter manufacturer, and South Africa's civil aviation agency.³ (Id.)

Thrifty, while relying on Fabre as an affirmative defense, also contends that South African tort law controls certain aspects of this case. (Doc. No. 112 at 1-3.) According to Thrifty, "Florida has no significant relationship to this lawsuit." (Id. at 2.) Thrifty asserts that it has been advised that "the law of South Africa is significantly different than the law of the state of Florida, particularly with regard to a [w]rongful [d]eath claim." (Id.) In particular, Thrifty wishes to avail itself of limitations that South Africa law purportedly places on the damages recoverable by parents for the loss of a child. (Id.)

On January 12, 2009, the Court issued an Order requiring the parties to submit briefs identifying the body of law that governs the apportionment of liability in this case. (Doc. No. 121.) The Court noted that Fabre is a matter of Florida law, and if South Africa law controls the issue of damages in this case, as Thrifty contends, it would be unlikely that Florida rules governing the apportionment of liability also apply. (Doc. No. 121 at 2 (citing Connell v. Riggins, 944 So.2d 1174, 1180 (Fla. 1st DCA 2006) (determining that Georgia law governed the issue of fault apportionment in a tort case arising out of a car accident that occurred in Georgia)).)

In response to this Order, Thrifty now contends that South Africa law controls the issue of liability apportionment.⁴ (Doc. No. 130.) Plaintiffs, by contrast, contend that the law of Oklahoma, the state where Thrifty has its principal place of business, controls the apportionment of liability. (Doc. No. 154 at 1.) They also identify Ohio as an additional state with a potential interest in this litigation. (Id. at 13.) Neither party appears to contend that Florida's law is controlling on this issue.

II. Laws of the Various Jurisdictions⁵

A. South Africa Law

The Republic of South Africa possesses a single, centralized judiciary system.⁶ Francois du Bois & Daniel Visser, The Influence of Foreign Law in South Africa, 13 Transnat'l L. & Contemp. Probs. 593, 610 (2003); Central Intelligence Agency, The World Factbook, South Africa (2009), available at https://www.cia.gov/library/ publications/the-world-factbook/geos/sf. html. The original Dutch settlers of South Africa instituted a civil law system based on Roman-Dutch law, which itself is a combination of Germanic, Dutch, and ancient Roman legal principles. du Bois & Visser, supra, at 611. During the Nineteenth Century, the colony came under the control of the British, who put in place a common law legal system based on a framework of judicial precedents and narrowly construed statutes. Id. at 610. Today, the South African legal system is considered a "mixed" system of common and civil law, somewhat similar in operation to several other former British colonies and the state of Louisiana. See id.; see also JuriGlobe, World Legal Systems, http://www.juriglobe.ca/eng/index.php (last visited Apr. 2, 2009). The specific area of tort law in South Africa is labeled the law of delict and is derived from the lex aqulia, a Roman text governing legal wrongs. (Doc. No. 130 at 12-18); Black's Law Dictionary 927 (8th ed. 2004). As a general matter, "negligence" under the modern interpretation of the lex aquila is relatively similar to the Anglo-American formulation. (See Doc. No. 130 at 12-18.)

The South African government has legislated on the specific issue of liability apportionment. Under the Apportionment of Damages Act ("ADA") 34 of 1956 (BSRSA), South Africa adopted a system of...