Ming v. Interamerican Car Rental, Inc., 5D04-2222.

• Decision Date: 02 September 2005
• Docket Number: No. 5D04-2222.,5D04-2222.
• Citation: 913 So.2d 650
• Parties: Patricia Ann Doyle MING, etc., Appellant, v. INTERAMERICAN CAR RENTAL, INC., etc., et al., Appellees.
• Court: Florida Supreme Court

913 So.2d 650

Patricia Ann Doyle MING, etc., Appellant, v. INTERAMERICAN CAR RENTAL, INC., etc., et al., Appellees.

No. 5D04-2222.

District Court of Appeal of Florida, Fifth District.

September 2, 2005.

Rehearing Denied October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Charles B. Draper of Draper Law Office, Kissimmee, for Appellant.

David R. Evelev, Julianne J. Flynn and Griffith J. Winthrop, III of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Appellee Interamerican Car Rental, Inc.

Sean M. McDonough and Kristy L. Harrington of Bussey, White, McDonough and Freeman, P.A., Orlando, for Appellee Callie Elaine Robinson.

No Appearance for Appellee Leslie Danielle Robinson.

SHARP, W., J.

Ming, the personal representative of the estate of Robert Doyle, appeals from two final summary judgments, which determined no liability on the part of the two defendants below, Interamerican Car Rental, Inc., and Callie Robinson, in a wrongful death case. Interamerican rented a car to Robinson. She was the only authorized driver. On the day of the accident, Robinson's daughter, Leslie, drove the car to her mother's workplace. On the way, she struck and killed Doyle.

We reverse because this record presents material questions of fact regarding whether Leslie had Robinson's implied consent to drive the car and whether her use of the car constituted a conversion. This is bolstered because the two key actors in this case, Robinson and Leslie, made a number of conflicting statements and their credibility was at issue.

The record disclosed that Robinson owned several vehicles, including a Mazda, a Cadillac, a Pontiac, two Dodge Caravans, and two older Chevrolets. She permitted Leslie to drive the Mazda and the Cadillac. Leslie lived for a time with her boyfriend after her driver's license was revoked because of a drug offense. Leslie testified she let her boyfriend's sister and others drive her in the Cadillac.

At some point, Leslie moved back into her mother's home, which they also shared with her brother, Landon. She was on probation at the time of the accident. When asked if she ever drove one of her mother's cars after losing her license, she admitted she would occasionally "sneak around the block." Her brother was aware of this and he told Robinson about it. Robinson told Leslie: "You know you ain't got no license, you don't need to be driving."

A few weeks before the accident, Robinson rented the car involved in the accident from Interamerican, to use for work because her other cars were not in working order. She never gave Leslie or Landon express permission to use the rental car, nor did she expressly prohibit them from using it. She normally had the keys in her purse, or put them on the top of her dresser.

On the day of the accident, Robinson could not find her keys. She asked Leslie and Landon if they had seen them. When no one could find them, Robinson rode to work with a neighbor.

Leslie found the keys, but her statements and Robinson's are conflicting as to where. In her examination under oath, Leslie said she found them in her mother's bathroom. In her deposition, she testified she looked in the bathroom for the keys but could not find them. She did find them on her mother's bed "under the covers and stuff." Robinson testified Leslie told her she found the keys in her bathroom. In her deposition, Robinson said Leslie told her she found the keys under the dust ruffle under the foot of the bed.

Leslie testified she decided to drive the car to her mother's place of work so that her mother could drive to lunch and home from work. Robinson testified Leslie told her she was bringing the rental car to her so that she could keep a doctor's appointment that afternoon. Robinson agreed that she had a doctor's appointment that day, but an affidavit from the doctor's office asserted she did not.

At the accident scene, Leslie pretended to the police to be her sister and produced her sister's driver's license. According to the police report, Robinson's written statement identified her as both the renter of the car and the driver. Robinson's written statement given to the police alleged: "I was driving down 192 a little man tryed [sic] to cross the road I put on brakes he ran into the tire the little fellow was o.k." In a discovery response, Robinson alleged she wrote the statement "verbatim, based on what her daughter ... told her" and signed it because an employee of Interamerican directed her to do so.

Standard of Review

We review the issues on appeal de novo. Kaplan v. Morse, 870 So.2d 934, 936 (Fla. 5th DCA 2004). In reviewing a summary judgment, we must determine whether there is any "genuine issue as to any material fact" and whether "the moving party is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). Generally, "[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000). The evidence contained in the record, including supporting affidavits, must be considered in the light most favorable to the non-moving party, and if the slightest doubt exists, summary judgment must be reversed. Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001).

Interamerican's Summary Judgment

Ming argues that the lower court erred in granting summary judgment for Interamerican because Interamerican failed to conclusively prove that Leslie's possession of its rental vehicle on her drive to Robinson's work place, amounted to conversion. Ming sued Interamerican pursuant to the dangerous instrumentality doctrine. That doctrine recognizes that a motor vehicle operated on a public highway is a dangerous instrumentality and the owner who entrusts it to another is liable for injury to others caused by negligence of the person to whom the instrumentality is entrusted. Southern Cotton Oil Co. v. Anderson, 86 So. 629 (1920).

As applied to rental car companies, the supreme court has held that the owner of a rented vehicle may be held responsible for damages resulting from the operation of the vehicle by someone other than the person to whom it was rented, even though the operation was contrary to the express terms of the rental agreement. Stupak v. Winter Park Leasing, Inc., 585 So.2d 283, 284 (Fla.1991). "When control of such a vehicle is voluntarily relinquished to another, only a breach of custody amounting to a species of conversion or theft will relieve an owner of responsibility for its use or misuse." Id., quoting Susco Car Rental System of Florida v. Leonard, 112 So.2d 832, 835-36 (Fla.1959).

In the instant case, it was undisputed that Interamerican rented the car to Robinson. Therefore, Ming established that Interamerican consented to the use of the car beyond its own immediate control. Theft was not an issue in this case as there was no evidence to show that Leslie intended to steal the rental car. Thus, the issue is whether there was a conversion. To obtain a summary judgment on this issue, the evidence must show the nonexistence of an issue of material fact on the issue of conversion. See Conklin v. Carroll, 865 So.2d 597 (Fla. 2d DCA), rev. dismissed, 871 So.2d 874 (Fla.2004).

In City of Cars, Inc. v. Simms, 526 So.2d 119, 120 (Fla. 5th DCA), rev. denied, 534 So.2d 401 (Fla.1988), we stated that conversion occurs when a person asserts a right of dominion over chattel which is inconsistent with the right of the owner and deprives the owner of the right of possession. In United American Bank of Cent. Florida, Inc. v. Seligman, 599 So.2d 1014, 1017 (Fla. 5th DCA), rev. denied, 613 So.2d 7 (Fla.1992), we ruled that the "tort of conversion constitutes the exercise of wrongful dominion or control of the property to the detriment of the rights of its actual owner. The essence of the tort cause of action of conversion is the disseisin of the owner or interference with legal rights incident to ownership, such as the right to possession." See also, 12 FLA. JUR.2D CONVERSION AND REPLEVIN § 1 (2005).

The question of whether a vehicle has been the subject of a conversion is a factual one based on the distinct circumstances of each individual case. Hertz Corp. v. Jackson, 617 So.2d 1051, 1054 (Fla.1993). For example, in Thomas v. Atlantic Associates, Inc., 226 So.2d 100 (Fla.1969), Atlantic owned a car and allowed Roberts to use it. While Roberts was out of town, his 13-year-old daughter took his car keys, which were sitting on top of his bedroom dresser, drove the car and caused an accident. At no time prior to the accident was Roberts aware that his daughter ever drove or could drive an automobile. The trial court granted summary judgment in favor of Atlantic and Roberts, finding that the daughter used the car without his consent.

The supreme court quashed the summary judgments, holding that because the car owner consented to the car's use beyond its own immediate control, the real issue was whether the car owner had "in fact been deprived of the incidents of ownership or, as stated elsewhere in Susco, there had been `a breach of custody amounting to a species of conversion or theft.'" Id. at 102, quoting Susco, 112 So.2d at 836. The court reasoned that unlike a house guest who surreptitiously takes the keys to a company car from the employee's dresser while the employee is sleeping, the father's leaving the car home from time to time, where it was used by other members of the household, and leaving the keys on top of his dresser "must have seemed like an open invitation" to his daughter to drive the car. Id. at 103. Accordingly, the court found that a genuine issue of material fact existed regarding the issue of whether the daughter's actions amounted to a conversion.

In Christenson-Sullins v. Raymer, 765 So.2d 955 (Fla. 1st DCA 2000), the plaintiff was injured by a car owned by Raymer but driven by Thorton. The evidence showed that Raymer loaned her car to Bisel....