Rosado v. Daimlerchrysler Financial Servs.

• Decision Date: 06 February 2009
• Docket Number: No. 2D07-3690.,2D07-3690.
• Citation: 1 So.3d 1200
• Parties: Alejandro ROSADO, Appellant, v. DAIMLERCHRYSLER FINANCIAL SERVICES TRUST, a/k/a DCFS Trust; LaMondue Law Firm, PCL; Carl C. LaMondue; and Terrell A. Parham, Appellees.
• Court: Florida District Court of Appeals

1 So.3d 1200

Alejandro ROSADO, Appellant, v. DAIMLERCHRYSLER FINANCIAL SERVICES TRUST, a/k/a DCFS Trust; LaMondue Law Firm, PCL; Carl C. LaMondue; and Terrell A. Parham, Appellees.

No. 2D07-3690.

District Court of Appeal of Florida, Second District.

February 6, 2009.

Matthew E. Kaplan of Kaplan and Freedman, P.A., Miami; and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.

Michael B. Buckley, Lauren S. Curtis, and Rebecca O'Dell Townsend of Buckley & Fudge, P.A., St. Petersburg, for Appellee DCFS Trust.

No appearance for other Appellees.

PER CURIAM.

Alejandro Rosado appeals a partial final summary judgment dismissing his claim against DaimlerChrysler Financial Services Trust (DaimlerChrysler). Mr. Rosado sued DaimlerChrysler for injuries he sustained in an automobile accident because DaimlerChrysler was the owner and lessor of the car driven by the person allegedly at fault in this accident. Mr. Rosado claimed that DaimlerChrysler was liable because it had failed to ensure that the vehicle was covered by insurance to the limits of liability described in section 324.021(9)(b)(1), Florida Statutes (2002), at the time of the accident. The trial court entered summary judgment in favor of DaimlerChrysler on the theory that Florida law had been preempted by 49 U.S.C. § 30106, commonly referred to as the Graves Amendment, which shields long-term lessors and rental car companies from vicarious liability imposed under state law under some circumstances.

This appears to be the first case in which a court has addressed the application of the Graves Amendment to a long-term automobile lease under section 324.021(9)(b)(1). The Amendment's application, however, has been addressed at length in reference to rental cars under section 324.021(9)(b)(2). See Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 (11th Cir.2008); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980 (M.D.Fla.2007); Karling v. Budget Rent A Car Sys., Inc., 33 Fla. L. Weekly D2777, 2 So.3d 354, 2008 WL 5100530 (Fla. 5th DCA Dec. 5, 2008); Tocha v. Richardson, 995 So.2d 1100 (Fla. 4th DCA 2008); Vargas v. Enter. Leasing Co., 993 So.2d 614 (Fla. 4th DCA 2008); Kumarsingh v. PV Holding Corp., 983 So.2d 599 (Fla. 3d DCA 2008). Much of that discussion is relevant to this case, and it convinces us that the trial court properly entered summary judgment in favor of DaimlerChrysler.

I. THE FACTS

On June 29, 2003, Terrell Parham drove a car across the median on U.S. Highway 27 near Haines City and collided with a car driven by Alejandro Rosado. Mr. Rosado sustained serious injuries.

At the time of the accident, Mr. Parham was a Polk County resident who had recently graduated from Virginia Polytechnic Institute and State University (Virginia Tech), where he played football. The car that Mr. Parham was operating was a Mercedes Benz C230 that was owned by DaimlerChrysler Financial Services Trust. It had been leased to the LaMondue Law Firm in Virginia on January 15, 2003, for a period of four years. The connection between the LaMondue Law Firm and Mr. Parham is not disclosed in our record except to the extent that Mr. Parham is not an employee of the law firm. The law firm had apparently given the car to Mr. Parham to use, and there is no claim that he was not a permissive user and lawful bailee of this car at the time of the accident. The testimony in the record indicates that the car had been in Florida for only a short time. The car was registered in Virginia, and we assume for purposes of this opinion that it was subject to the requirements, if any, of Virginia law concerning compulsory liability insurance and financial responsibility.

The lease between DaimlerChrysler and the LaMondue Law Firm required the law firm, as lessee, to insure the car for not less than $100,000 per person and $300,000 per accident in bodily injury coverage and $50,000 in property coverage. At the end of the lease document, the lessor verified that it had determined that insurance coverage was provided by United Services Automobile Association.¹ The record indicates that immediately before this accident, insurance in this amount was actually provided by Progressive Insurance Company, but that insurance policy lapsed for nonpayment the day before the accident.

Mr. Rosado filed his lawsuit in Polk County against the LaMondue Law Firm, Mr. LaMondue, Mr. Parham, and DaimlerChrysler. The claim against DaimlerChrysler alleged that it was vicariously liable for Mr. Parham's negligent operation of the car under Florida's dangerous instrumentality doctrine because it had failed to comply with the insurance requirements of section 324.021(9)(b)(1).

DaimlerChrysler moved for summary judgment in August 2006. Although it argued in part that its liability should be based on Virginia tort law, it also argued that Florida law, if it applied, was preempted by the Graves Amendment, which we describe in greater detail below.² After Judge William Terrell Hodges issued a decision interpreting the Graves Amendment to preempt section 341.021(9)(b)(2) as applied to a Florida short-term rental agreement in Garcia v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 821 (M.D.Fla.2007), aff'd, 540 F.3d 1242 (11th Cir.2008), the trial court in this case granted summary judgment in favor of DaimlerChrysler, relying extensively on the Garcia decision. Mr. Rosado appealed the summary judgment to this court. Recently, while this appeal was pending, the Eleventh Circuit affirmed Judge Hodges' decision in Garcia. Garcia, 540 F.3d at 1244-45.

II. THE GRAVES AMENDMENT

The Graves Amendment was enacted as a federal statute effective August 10, 2005. See Garcia, 510 F.Supp.2d at 829. The Graves Amendment applies to any "action commenced on or after [its] date of enactment ... without regard to whether the harm that is the subject of the action, or the conduct that caused the harm, occurred before such date...." 49 U.S.C. § 30106(c). It provides, in pertinent part:

Section 30106. Rented or leased motor vehicle safety and responsibility.

(a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if—

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

(b) Financial responsibility laws.— Nothing in this section supersedes the law of any State or political subdivision thereof—

(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or

(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

(c) Applicability and effective date.— Notwithstanding any other provision of law, this section shall apply with respect to any action commenced on or after the date of enactment of this section without regard to whether the harm that is the subject of the action, or the conduct that caused the harm, occurred before such date of enactment.

Mr. Rosado challenges the application of this preemptive statute on three fronts. First, he argues that the Graves Amendment is unconstitutional as a violation of the Commerce Clause. The Eleventh Circuit rejected that argument in Garcia. 540 F.3d at 1253. This issue has been raised and rejected in many other cases. See, e.g., Flagler v. Budget Rent A Car Sys., Inc., 538 F.Supp.2d 557, 559 (E.D.N.Y.2008) (holding the Graves Amendment to be constitutional under the second and third Lopez³ categories); Berkan v. Penske Truck Leasing Canada, Inc., 535 F.Supp.2d 341, 345 (W.D.N.Y. 2008) (same); Jasman v. DTG Operations, Inc., 533 F.Supp.2d 753, 757 (W.D.Mich. 2008) (holding the Graves Amendment to be constitutional under all three Lopez categories); Garcia, 510 F.Supp.2d at 835 (same); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980, 985 (M.D.Fla.2007) . (holding the Graves Amendment to be constitutional under the second Lopez category). We likewise reject this argument, relying upon the explanations in Garcia and the other existing precedents.

Second, Mr. Rosado maintains that the Graves Amendment does not apply to this case because both the accident and the filing of this lawsuit occurred before the enactment of the Graves Amendment, even though DaimlerChrysler was joined as a defendant after the enactment.⁴ We decline to consider this issue because it was not argued in the trial court and is not the type of error that can be raised for the first time on appeal as a fundamental error. See N.L.E. v. Dep't of Children & Family Servs., 970 So.2d 486 (Fla. 2d DCA 2007) (holding that, absent fundamental error, petitioner could not present for first time on appeal issues not raised before the trial court).

Finally, Mr. Rosado argues that the Graves Amendment does not limit DaimlerChrysler's liability in this context because this federal statute contains two exceptions to the reach of its preemption. This is the issue that cannot be resolved without additional analysis.

III. THE GRAVES AMENDMENT PREEMPTS SUBSECTION 324.021(9)(b)(1)

Subsection 324.021(9)(b) is a definitional provision within chapter 324 of the Florida Statutes, which is entitled "Financial Responsibility." It states:

(9) OWNER; OWNER/LESSOR.—

....

(b) Owner/lessor.—Notwithstanding any other provision of the Florida Statutes or existing case law:

1. The lessor, under an...