Roman v. Bogle

• Decision Date: 03 May 2013
• Docket Number: Case No. 5D12-1431
• Parties: WANDA I. ROMAN, Individually, And as a Personal Representative of the ESTATE OF LUIS ANGEL VALENTIN, Deceased and on Behalf of HIS SURVIVORS, Appellant, v. SEAN BOGLE, as the Personal Representative of the ESTATE OF LICKSON GABRIEL, Deceased, Appellee.
• Court: Court of Appeal of Florida (US)

WANDA I. ROMAN, Individually,
And as a Personal Representative of the ESTATE OF LUIS ANGEL VALENTIN,
Deceased and on Behalf of HIS SURVIVORS, Appellant,
v.
SEAN BOGLE, as the Personal Representative of the ESTATE
OF LICKSON GABRIEL, Deceased, Appellee.

Case No. 5D12-1431

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

JANUARY TERM 2013
Opinion filed May 3, 2013

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Appeal from the Circuit Court
for Orange County,
Walter Komanski, Judge.

Brandon G. Cathey, of Swope, Rodante
P.A., Tampa, and Alexander M. Clem, of
Morgan & Morgan, P.A., Orlando, for
Appellant.

Scott A. Cole, and Kathryn L. Smith of
Cole, Scott & Kissane, P.A., Miami, and
Joseph T. Kissane, and Blake Cole, of
Cole, Scott & Kissane, Jacksonville, for
Appellee.

SAWAYA, J.

The dangerous instrumentality doctrine provides that an automobile owner may be held vicariously liable for damages caused by a negligent driver who operates the

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vehicle with the owner's consent. The question presented is whether application of the doctrine necessarily makes the driver an agent of the owner for purposes of determining whether the provisions of a release, which releases and discharges the owner and his "agents," apply to relieve the negligent driver of liability.

This case involves a tragic automobile accident that took the lives of the driver of the vehicle, Lickson Gabriel, and his passenger, Luis Valentin. The accident allegedly occurred when, in the early morning hours, Lickson failed to stop at a red light and collided with a semi-trailer. A wrongful death action was filed by Wanda Roman, individually and as the personal representative of the estate of her deceased son, Luis. The action was filed against Sean Bogle, as Personal Representative of the estate of Lickson, and the owner of the vehicle, Lesore Gabriel, who is Lickson's father. The latter was included as a defendant pursuant to the dangerous instrumentality doctrine. For reasons not disclosed in the record, Roman executed a release that lies at the center of the current dispute between the parties. That release provides in pertinent part:

In consideration of an immediate cash payment[] of TEN THOUSAND DOLLARS AND NO/00 ($10,000.00) to THE ESTATE OF LUIS VALENTIN, receipt whereof is hereby acknowledged by the Releasor, her heirs, personal representatives and assigns, Releasor hereby releases and discharges Releasees, its parents, employees and subsidiaries including, but not limited to, LESORE GABRIEL AND FIRST ACCEPTANCE INSURANCE COMPANY, INC. including their officers, agents, employees, successors and assigns, from any and all claims, demands, damages, costs, expenses, and causes of action, whether direct or derivative, whether based on tort, contract or any other theory of legal recovery, for damages of every type and nature, including but not limited to compensatory damages and punitive damages, for injuries already sustained or that may hereafter

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be sustained in connection with the December 10, 2008[,] automobile accident which forms the basis of this claim.

The answer filed by Bogle included the affirmative defenses of release and accord and satisfaction based on the release executed by Roman. The release was attached as an exhibit. Roman did not file a reply to the affirmative defenses. Bogle filed a motion for judgment on the pleadings asserting that pursuant to the dangerous instrumentality doctrine, Lickson was the agent of Lesore by virtue of the fact that he was driving Lesore's automobile with Lesore's consent. The trial court agreed with that argument, granted the motion, and entered judgment in favor of Bogle based on the release.¹

Roman appeals, contending that procedurally, the lack of a reply triggers an automatic denial of the allegations in the answer and the affirmative defenses, and that the trial court failed to apply the proper standard that governs motions for judgment on the pleadings. She also argues that Lickson was not named in the release because the release was not intended to apply to him and that he was not the agent of Lesore simply because he was driving Lesore's vehicle when the accident occurred.

Bogle asserts that the lack of a reply essentially means that Roman did not attempt to avoid the affirmative defenses based on the release and therefore did not deny those defenses. Bogle argues, as he did to the trial court, that this document released Lesore Gabriel, his insurance carrier, and "their . . . agents . . . ." That

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argument is premised on the assertion that Lickson was the agent of Lesore under the dangerous instrumentality doctrine because he drove Lesore's automobile at the time of the accident with Lesore's consent.

We will briefly address first the procedural arguments made by the parties. A motion for judgment on the pleadings is a procedural device that allows trial courts to render a judgment as a matter of law prior to trial based solely on the pleadings. Thompson v. Napotnik, 923 So. 2d 537, 539 (Fla. 5th DCA 2006). When a defendant files the motion, "all well pleaded allegations in the complaint must be accepted as true and all allegations in the answer which are automatically denied must be accepted as false, the crucial question being whether a cause of action would be established by proving the plaintiff's allegations." Faircloth v. Garam, 525 So. 2d 474, 475 (Fla. 5th DCA 1988); see also Martinez v. Fla. Power & Light Co., 863 So. 2d 1204, 1205 (Fla. 2003); Williams v. Howard, 329 So. 2d 277, 280 (Fla. 1976); Plumbing Serv. Co. v. Progressive Plumbing, Inc., 952 So. 2d 1211, 1212 (Fla. 5th DCA 2007). Matters outside the pleadings may not be considered when deciding the motion. Faircloth. When a defendant files affirmative defenses and the plaintiff does not reply, the affirmative defenses are deemed denied and therefore false. Brewster v. Castano, 937 So. 2d 1268, 1269 (Fla. 2d DCA 2006) ("When there has been no reply to an affirmative defense, it is deemed to be denied and therefore false."); Ferris v. Ferris, 660...