Stellas v. Alamo Rent-A-Car, Inc.

• Decision Date: 22 May 1996
• Docket Number: No. 94-2583,RENT-A-CA,INC,94-2583
• Citation: 673 So.2d 940
• Parties: 21 Fla. L. Weekly D1202 Rachelle M. STELLAS, et al., Appellants, v. ALAMO, Appellee.
• Court: Florida District Court of Appeals

Page 940

673 So.2d 940

21 Fla. L. Weekly D1202

Rachelle M. STELLAS, et al., Appellants, v. ALAMO RENT-A-CAR, INC., Appellee.

No. 94-2583.

District Court of Appeal of Florida,

Third District.

May 22, 1996.

Feder & Fine and Scott Feder and Scott L. Poisson, for appellants.

Walton Lantaff Schroeder & Carson and G. Bart Billbrough and Geoffrey Marks, Miami, for appellee.

Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, Miami, for the Academy of Florida Trial Lawyers in support of appellants Rachelle and Frank Stellas as amicus curiae.

Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, Jacksonville, for the Florida Defense Lawyers Association as amicus curiae.

Before NESBITT, JORGENSON and GERSTEN, JJ.

NESBITT, Judge.

The Stellases rented a car from Alamo in Orlando and made arrangements to return it in Miami. During that portion of the trip returning to Miami, the Stellases' daughter, who was driving, took a wrong turn off the expressway into a high-crime area. While stopped at a traffic signal, Bernard Aaron approached the vehicle and smashed the passenger side window grappling with Mrs. Stellas before taking her purse and fleeing. The assailant was subsequently apprehended.

The Stellases make two chief claims of error in this case. First they argue that they should not have been required to show permanent injury before being able to recover for Mrs. Stellas's noneconomic damages. Second, they claim that the trial judge erred in permitting a nonparty intentional tortfeasor's name to appear on the verdict form so as to permit the jury to apportion fault with the negligent tortfeasor. For the reasons that follow we reverse in part and affirm in part the order under review.

Mrs. Stellas, joined by her husband on a derivative claim, brought an action against Alamo on a theory of negligent failure to warn. The Stellases claimed that Alamo knew or should have known of the dangers of touring in certain areas of Miami, especially where the vehicle bore an Alamo Rent-A-Car bumper sticker. When the Stellases rested their case in chief, it was immediately assailed by a motion for partial directed verdict on the issue of noneconomic damages, for failure of plaintiffs to have established, in accord with section 627.737(2), Florida Statutes (1993), that Mrs. Stellas had sustained a permanent injury. ¹

The Stellases' counsel strenuously argued that no showing of permanent injury was required because the statute in question was inapplicable, as this accident was not one "arising out of the ownership, maintenance, operation, or use" of a motor vehicle. An argument ensued as to whether, in making such determination, the trial court should follow Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla.1984) (employing the liberal nexus test in PIP cases) or Race v. Nationwide Mut. Fire Ins. Co., 542 So.2d 347 (Fla.1989) (employing a more restrictive test in the uninsured motorist context). Ultimately, the trial court opted for the test emanating from Novak, and, applying that test, concluded that a sufficient nexus existed between the motor vehicle and the Stellases' injuries so as to make the statute applicable.

We disagree with the lower court's decision to apply section 627.737 in this case. That section is part of the Florida Motor Vehicle No-Fault Law which encompasses sections 627.730-627.7405. In part "[t]he purpose of ss. 627.730-627.7405 is to provide ..., with respect to motor vehicle accidents, a limitation on the right to claim damages for pain, suffering, mental anguish, and inconvenience." § 627.731, Fla.Stat. (1993). The instant case involves a direct negligence action brought by the Stellases against Alamo for failure to warn of the dangers of driving a rental car in certain portions of Dade County. It plainly does not involve a "motor vehicle accident" as we believe that term was meant to be used by the legislature when it enacted sections 627.730-627.7405.

The parties' arguments as to whether the Race or Novak line of cases is applicable entirely miss the point. Those cases all arose in the context of a plaintiff attempting to collect PIP or uninsured motorist benefits. The instant case falls outside the No-Fault Law as it involves, as stated earlier, a direct action against Alamo, not in its capacity as an owner of a motor vehicle, but instead as a business which owed its customers a common law duty of care. Accordingly, it was error for the lower court to require the Stellases to cross the permanency threshold before they could recover noneconomic damages. Thus, we affirm the jury's findings with respect to liability but reverse and remand for a new trial on damages. ²

Because we are ordering a new damages trial, we must address the issue of whether it was error to permit the jury to apportion fault between the negligent actor, Alamo, and the nonparty intentional tortfeasor, Aaron. The question presented involves an interpretation of section 768.81, Florida Statutes (1993). That section, among other things, abrogates the doctrine of joint and several liability with respect to noneconomic damages and requires courts to apportion liability for such damages in accord with each party's percentage of fault. ³ In addition to the parties' briefs, we have been favored with amicus briefs from both the Academy of Florida Trial Lawyers as well as the Florida Defense Lawyers Association. We might delve into the matter at some length were it not for Judge Ervin's dissent in Department of Corrections v. McGhee, 653 So.2d 1091, 1093 (Fla. 1st DCA 1995), approved, 666 So.2d 140 (Fla.1996). ⁴ We are convinced that Judge Ervin's reasoned and well-supported opinion not only analyzes but deals with the necessary aspects of the problem. See generally R. David de Armas & Edward L. White III, Apportioning Fault Between the Negligent and Intentional Tortfeasor, Fla.B.J., Oct. 1995, at 92 (noting that "Judge Ervin's position is consistent with the principle that liability equates fault, which is the backbone of § 768.81"). We adopt and embrace Judge Ervin's analysis of the present issue, McGhee, 653 So.2d at 1099, as though it were our own opinion. Based on this analysis we conclude that the trial court did not err in allowing the jury to apportion fault between the negligent and intentional tortfeasors. ⁵

To Judge Ervin's dissent, we add only the following observations. Because the legislature undoubtedly had the power to enact section 768.81 it is this court's duty to give effect to the legislature's intent in enacting the statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). Where that intent is clear from the language used in the statute, the court need not look any further. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The unmistakable intent of 768.81(3) is to limit a negligent defendant's liability to his percentage of fault. The whole fault, of which a negligent defendant's acts are but a part, is broad enough to encompass an intentional tortfeasor's acts. One dictionary defines fault as follows: "With reference to persons: Culpability; the blame or responsibility of causing or permitting some untoward occurrence; the wrongdoing or negligence to which a specified evil is attributable." 4 The Oxford English Dictionary 104 (1933). The Stellas's damages are partially the fault of Alamo and partially the fault of Bernard Aaron. Alamo, as a negligent defendant, is entitled to have its liability limited to its percentage of fault.

We respectfully disagree with the Fourth District's recent opinion to the contrary in Slawson v. Fast Food Enters., 671 So.2d 255 (Fla. 4th DCA 1996). It simply fails to give effect to the previously discussed clear legislative intent to limit a negligent defendant's liability to its percentage of fault. Further, the argument that statutes, such as 768.81, which are in derogation of the common law should be strictly construed in favor of retaining the preexisting common law rule was indirectly addressed by the Supreme Court in Fabre v. Marin, 623 So.2d 1182 (Fla.1993), when the court noted that the act, of which section 768.81 is a part, "disfavors joint and several liability to such a degree that it survives only in those limited situations where it is expressly retained." This case clearly does not involve one of those "limited situations." Because the issue posed herein is one that ultimately can only be resolved by our Supreme Court, we certify the question to the Florida Supreme Court as being one of great public importance so that it can be paired for decision with Slawson v. Fast Food Enters., 671 So.2d 255 (Fla. 4th DCA 1996).

We affirm the judgment with respect to liability but reverse for a new trial on damages consistent with this opinion.

GERSTEN, J., concurs.

JORGENSON, Judge, dissenting in part and concurring in part.

I respectfully dissent as to that portion of the court's opinion which allows the jury in the negligence action to apportion fault between the negligent actor and the criminal actor. The effect of the court's opinion today is to insulate the negligent actor from liability even though all elements of negligence have been established. The opinion eviscerates the cause of action for negligent failure to protect.

Under the common law, joint responsibility for a negligent act arose only in the case of jointly liable tortfeasors; distinct and independent tortfeasors could not seek indemnity from each other. See, e.g., Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). Joint tortfeasors have been defined as "two or more wrongdoers [who] negligently contribute to the injury of another by their several acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable." Albertson's, Inc. v. Adams, 473 So.2d 231, 233 (Fla. 2d DCA 1985), rev. denied, 482 So.2d 347 (Fla.1986) (emphasis added). Therefore, if a plaintiff sued one joint tortfeasor, that defendant could seek contribution from any other joint...