State Farm Mut. Auto. v. Austin Outdoor

• Decision Date: 25 January 2006
• Docket Number: No. 4D04-4257.,4D04-4257.
• Citation: 918 So.2d 446
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Eric Peck, Appellants, v. AUSTIN OUTDOOR INC. and OneSource Landscape & Golf Services, Inc., Appellees.
• Court: Florida District Court of Appeals

918 So.2d 446

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Eric Peck, Appellants, v. AUSTIN OUTDOOR INC. and OneSource Landscape & Golf Services, Inc., Appellees.

No. 4D04-4257.

District Court of Appeal of Florida, Fourth District.

January 25, 2006.

Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellant State Farm Mutual Automobile Insurance Company.

Robert Garven, Coral Springs, and Dan Cytryn of Cytryn & Santana, P.A., Tamarac, for appellant Eric Peck.

Clinton D. Flagg and Jenelle E. La Chuisa of the Law Offices of Clinton D. Flagg, P.A., Coral Gables, for appellees.

FARMER, J.

In this motor vehicle, personal injury case, there was a dispute as to whether the driver was operating the defendants' vehicle with their knowledge and consent, or was instead a thief. If the latter, defendants would not be liable under the dangerous instrumentality doctrine. The trial court granted a motion for summary judgment on this issue filed by defendants. We reverse.

The record evidence emerging during discovery showed that the truck involved in the accident bore a legend saying "OneSource Landscaping Golf" and beneath it a phone number, "1-877-1-Source." Plaintiff testified that the two men in the truck were of Haitian descent, spoke Creole to one another at the scene, and wore the same forest green uniforms. He also swore that at the scene he obtained the above vehicle information and the tag number. Defendants concededly owned the vehicle and have employees of Haitian descent who speak Creole and wear uniforms similar to those described at the scene.

Defendants filed affidavits in support of their motion for summary judgment. The affidavits swore that they have never had any employee bearing the name given by the driver,¹ that to the best of their knowledge no one connected with the corporations ever gave the driver permission to drive its vehicle, and that no one connected with the defendants had any knowledge that this vehicle was involved in an accident on the day in question.

"The moving party has the burden to conclusively prove the nonexistence of a material fact. However, once this burden is met, it then shifts to the nonmoving party." Partridge v. Partridge, 790 So.2d 1280, 1282 (Fla. 4th DCA 2001) [c.o.]. The owner of a vehicle driven by another is "required to conclusively show that there were no genuine issues of material facts with regard to their ownership of the [vehicle] or their consent to [Driver's] use of it." Medina v. Yoder Auto Sales Inc., 743 So.2d 621, 622 (Fla. 2d DCA 1999). "Circumstantial evidence [is] appropriate to prove that [an...