Ins. Co. of North America v. Avis Rent-A-Car Systems, Inc.

• Decision Date: 14 June 1976
• Docket Number: RENT-A-CAR,No. 74-4215,74-4215
• Citation: 533 F.2d 310
• Parties: INSURANCE COMPANY OF NORTH AMERICA, etc., Plaintiff-Appellee, v. AVISSYSTEM, INC., etc., and Liberty Mutual Insurance Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 310

533 F.2d 310

INSURANCE COMPANY OF NORTH AMERICA, etc., Plaintiff-Appellee, v. AVIS RENT-A-CAR SYSTEM, INC., etc., and Liberty Mutual Insurance Company, Defendants-Appellants.

No. 74-4215.

United States Court of Appeals Fifth Circuit.

June 14, 1976.

James E. Tribble, Miami, Fla., for defendants-appellants.

John G. Poole, Arnold I. Levy, Coral Gables, Fla., Jeanne Heyward, Miami, Fla., for plaintiff-appellee.

Before COLEMAN, RONEY and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This appeal raises important questions of Florida law which we hereby certify to the Supreme Court of Florida. Whatever issues may remain after that Court's decision we will decide.

The Court requested the parties to submit an agreed statement of the facts and issues for decision. They were unable to agree on the formulation of the issues but did agree on a statement of facts with the exception of one paragraph. That paragraph was not part of the pre-trial stipulation but was inserted by the trial court as a brief description of the defendant's insurance policy. The description may or may not be an accurate characterization of the insurance policy in question; however, it is not necessary for this Court to make that determination. The policy is a part of the record and is transmitted with this certificate. If the Florida Supreme Court finds it necessary to construe the terms of the policy in question, it can do so without reference to

the District Court's description of the policy's terms.

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO

SECTION 25.031, FLORIDA STATUTES 1975, AND RULE 4.61,

FLORIDA APPELLATE RULES

TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:

The resolution of this case turns on questions of Florida law, and there appears to be no clear, controlling precedents in the decisions of the Supreme Court of Florida. Pursuant to Section 25.031, Florida Statutes 1975, F.S.A., and Rule 4.61, Florida Appellate Rules, this Court therefore certifies the following questions of law to the Supreme Court of Florida for instructions concerning said questions of law, based on the facts recited herein:

(1) Style of the Case

The style of the certified case is Insurance Company of North America, plaintiff-appellee, versus Avis Rent-A-Car System, Inc., and Liberty Mutual Insurance Company, defendants-appellants, Case No. 74-4215, United States Court of Appeals for the Fifth Circuit on appeal from the United States District Court for the Southern District of Florida.

(2) Statement of Facts

This action was originally brought by the Insurance Company of North America in the Circuit Court of the Eleventh Judicial Circuit of Florida and removed to the United States District Court. The parties stipulated to the facts and moved for summary judgment based on the stipulation and the documents attached to the pleadings. The District Court granted the plaintiff's motion, and the defendant has appealed.

The stipulated facts are as follows:

"On June 27, 1969, AVIS RENT-A-CAR SYSTEM, INC., (hereinafter AVIS) leased a 1969 Chevrolet Station Wagon owned by AVIS to Camp Ocala, Inc. A true copy of the lease is attached to Defendants' Answer to the Amended Complaint as Exhibit A. On July 26, 1969, during the time of the lease, on U. S. Road No. 27 approximately nine miles north of Haines City, Hillsboro County, Florida, the 1969 Chevrolet Station Wagon was being operated by one Jane C. Spitzer with the consent and permission of Camp Ocala, Inc. Jane C. Spitzer was an employee of Camp Ocala, Inc., and was operating the 1969 Chevrolet Station Wagon within the course and scope of her employment with Camp Ocala, Inc.

"On July 26, 1969, Jane C. Spitzer, while operating the 1969 Chevrolet Station Wagon, collided with another vehicle resulting in serious personal injury to Martha L. Rubenstein, a minor, who was riding as a passenger in the Chevrolet Station Wagon being operated by Jane C. Spitzer. Martha Rubenstein was a camper at Camp Ocala, Inc.

"Subsequently, Martha L. Rubenstein and her father, Arthur Rubenstein, brought suit in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Camp Ocala, Inc., and AVIS, being Case No. 70-9414. That action was filed on May 25, 1970.

"At the time of the accident, the Defendant LIBERTY MUTUAL INSURANCE COMPANY (hereinafter LIBERTY MUTUAL) insured AVIS under a liability insurance policy, a true copy of which is attached to Plaintiff's Amended Complaint as Exhibit 1. INSURANCE COMPANY OF NORTH AMERICA (hereinafter INA) insured Camp Ocala, Inc., under a liability insurance policy (a true copy of which is attached to the deposition of Raymond K. Hampson, an insurance agent, which deposition was taken October 8, 1974).

"LIBERTY MUTUAL defended both AVIS and Camp Ocala, Inc., in the State Court action.

"Just prior to the Rubenstein case coming to trial, a settlement of that action was reached for the sum of $350,000.00. The settlement sum was agreed to by both LIBERTY MUTUAL and INA without prejudice to either company litigating their respective rights under the policies at a later time. See Exhibit No. 5 attached to Amended Complaint.

"A Final Judgment was entered in favor of the Plaintiffs, Martha Rubenstein and Arthur Rubenstein, on March 7, 1972, in the sum of $350,000.00 (Exhibit 3 to Plaintiff's Amended Complaint) and a satisfaction of said Final Judgment was signed by Arthur Rubenstein, individually, and as next...