Guemes v. Biscayne Auto Rentals, Inc.
| Decision Date | 20 April 1982 |
| Docket Number | No. 80-1381,80-1381 |
| Citation | 414 So.2d 216 |
| Parties | Luis Bernard GUEMES and South Carolina Insurance Company, a South Carolina corporation, authorized to do business in the State of Florida, Appellants, v. BISCAYNE AUTO RENTALS, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Walton, Lantaff, Schroeder & Carson and Edward J. Schack and George W. Chesrow, Miami, for appellants.
Papy, Poole, Weissenborn & Papy, Coral Gables, and Sheridan K. Weissenborn, Miami, for appellee.
Before HENDRY, SCHWARTZ and NESBITT, JJ.
On October 24, 1978, the appellee, Biscayne Auto Rentals, Inc., leased an automobile to James Oliver. Oliver permitted Luis Guemes to operate the leased vehicle. Guemes had an accident on November 7, 1978 severely injuring Jose Silveira. Silveira commenced an action against Biscayne Auto Rentals, Inc. 1 Biscayne commenced a third-party action against Guemes, the permittee-driver of the leased vehicle and his insurer, South Carolina Insurance Company, seeking: (1) declaratory judgment as to the carrier's primary responsibility for coverage; and (2) indemnification. After the third-party action matured on the pleadings, both Biscayne and South Carolina filed motions for summary judgment. The trial court denied South Carolina's motion and granted Biscayne's motion determining that South Carolina's policy afforded primary coverage and Biscayne's policy afforded excess coverage. The question of indemnity became moot when the summary judgment was granted in favor of Biscayne. However, on appeal, Biscayne, in support of its favorable judgment, asserts that even if summary judgment was erroneous with respect to the determination of primary coverage, it was nonetheless properly entered in favor of Biscayne because it was entitled to common law indemnity. Consequently, we must examine both aspects on appeal. 2
With respect to the coverage question, South Carolina contends that Biscayne did not sufficiently comply with Section 627.7263, Florida Statutes (1977) so as to shift its primary [statutory] responsibility from Biscayne and place it upon South Carolina. Our inquiry begins with the statute, which provides:
Rental and leasing driver's insurance primary.--
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee's insurance company's name if the lessor's insurance is not to be primary.
From an inspection of the lease agreement between Biscayne and Oliver, it is apparent that Biscayne, which admittedly drafted the lease, did not comply with Section 627.7263, supra.
Where the lessee's insurer is to be primarily responsible, the statute requires said provision to be in bold type. The type used is neither larger nor heavier than that used for the remainder of the lease. The use of a red stamp does not correct this deficiency.
A more substantial defect is the insufficiency of the contents of the notice to effectively inform the lessee that his insurer, if he has one, will be primarily responsible for any claim against the use and operation of the vehicle. The notice states:
NOTICE--Florida Statutes 627.7263 provides that the rental customer's automobile liability and personal injury insurance shall be primary.
This is an incorrect statement of the law at the time when the automobile was leased. 3 A lessee reading the notice provided by Biscayne would believe that, by statute, his own insurer is responsible. The lessee is not informed that, to the contrary, he is contracting for a responsibility not otherwise required by law. 4 In order to satisfy the requirements of Section 627.7263, supra, we find that the lessee must be clearly informed that his insurance carrier will be responsible for any claim against the lessee during the use and...
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