Roth v. Cannel, s. 70--233

• Decision Date: 29 December 1970
• Docket Number: 70--234,70--724,70--236,70--306 and 70--796,Nos. 70--233,70--235,70--305,s. 70--233
• Parties: Ronald ROTH, Appellant, v. Annie CANNEL and Max Cannel, Appellees. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. OLD REPUBLIC INSURANCE COMPANY and North River Insurance Co., Appellees (two cases). Ronald ROTH, Appellant, v. Sidney S. SOLOMON, as Administrator of the Estate of Mollie Solemon, Deceased, et al., Appellees.
• Court: Florida District Court of Appeals

Page 491

242 So.2d 491

Ronald ROTH, Appellant, v. Annie CANNEL and Max Cannel, Appellees.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. OLD REPUBLIC INSURANCE COMPANY and North River Insurance Co., Appellees (two cases).

Ronald ROTH, Appellant, v. Sidney S. SOLOMON, as Administrator of the Estate of Mollie Solemon, Deceased, et al., Appellees.

Nos. 70--233, 70--234, 70--305, 70--724, 70--235, 70--236, 70--306 and 70--796.

District Court of Appeal of Florida, Third District.

Dec. 29, 1970.

Rehearing Denied Jan. 20, 1971.

Opinion Vacated 270 So.2d 52.

Walton, Lantaff, Schroeder, Carson & Wahl, and Richard J. Thornton, Miami, for appellants.

Preddy, Haddad, Kutner & Hardy, Miami, for Yellow Rent-a-Car and Old Republic.

Wicker, Smith, Pyszka, Blomqvist & Davant, miami, for Plax and North River.

Bretan & Marks, Miami, for Solomon, Cannels and Rae Roth.

Before PEARSON, C.J., and HENDRY and SWANN, JJ.

HENDRY, Judge.

This is a consolidated appeal arising out of two automobile negligence suits. The questions raised on appeal relate to indemnification and insurance coverage.

The appellants are Ronald Roth ('Driver') and State Farm Mutual Automobile Insurance Company ('State Farm'). There are two sets of appellees: (1) Yellow Rent-A-Car ('Owner') and its insurer, Old Republic Insurance Company ('Old Republic'); and (2) Ira L. Plax ('Renter') and his insurer, north River Insurance Company ('North River').

State Farm, the insurance carrier of Driver, who was a minor driving the rented automobile, contends: (a) Driver was also covered by the Old Republic policy issued to Owner, under the implied consent rule of the dangerous instrumentality doctrine; (b) Driver was covered by the Old Republic policy because, prior to the accident, that policy was certified as proof of financial responsibility for the future, under Ch. 324, FlaStat., F.S.A., thereby amending the Old Republic policy by operation of law, and also such certification made applicable an express policy provision that it covered persons using the car with the owner's implied consent; (c) since Driver was covered under the Old Republic policy, he was also covered under the North River policy of the Renter because of the implied permission of the Owner, the express permission of Renter, or application of the dangerous instrumentality doctrine; (d) State Farm is entitled to restitution for settlement paid to the injured pedestrian; (e) State Farm's fund is only excess and not primary,--rather, Old Republic's fund is primary, We affirm the judgments and orders appealed.

An automobile owner held vicariously liable for negligence of a driver is entitled to common law indemnity. Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672, 674. However, where the owner has liability insurance affording coverage to the negligent driver, then the owner may not be indemnified. Morse Auto Rentals, Inc. v. Lewis, Fla.App.1964,161 So.2d 235.

Nevertheless, the line of cases represented by Morse Auto Rentals, Inc. v. Lewis, Fla.App.1964, 161 So.2d 235, is distinguished in Hertz Corporation v. Richards, Fla.App.1969, 224 So.2d 784. There, the renter of a leased automobile permitted it to be driven by a person excluded from coverage in the liability policy for which the renter paid the owner, and the owner was held entitled to indemnification from a negligent, permissive drive.

In the case here, the parties stipulated that the rental charge paid by Renter included a cost factor representing owner's liability insurance premiums, although the rental contract is silent as to liability coverage. Also, while the rental contract is silent as to insurance, Renter signed for and paid for 'full coverage collision protection' insurance. The lease contract here provides:

'Renter agrees and certifies as follows:

'4. That the rented automobile will not be operated by anyone other than the undersigned renter without the express written consent of Yellow Rent-A-Car.'

Renter-Plax gave the car to Driver-Roth, but Driver, a minor, did not have the express written consent of the Owner-Yellow Rent-A-Car, which constituted a breach of the rental agreement.

Therefore, upon these fact, we conclude that the instant case falls within the general rule of Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672. The instant case is substantially like Hertz Corporation v. Richards, Fla.App.1969, 224 So.2d 784, and...