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

• Decision Date: 31 October 2002
• Docket Number: No. SC00-1755.,SC00-1755.
• Citation: 833 So.2d 109
• Parties: Richard TOOMBS, etc., Petitioner, v. ALAMO RENT-A-CAR, INC., Respondent.
• Court: Florida Supreme Court

833 So.2d 109

Richard TOOMBS, etc., Petitioner, v. ALAMO RENT-A-CAR, INC., Respondent.

No. SC00-1755.

Supreme Court of Florida.

October 31, 2002.

William L. Petros, P.A., Miami, FL; and Ralph O. Anderson and Dinah S. Stein of Hicks, Anderson & Kneale, P.A., Miami, FL, for Petitioner.

Daniel S. Pearson and Lenore C. Smith of Holland & Knight LLP, Miami, FL; and Walter A. Ketcham, Jr. and David W. Henry of Grower, Ketcham, More', Rutherford, Noecker, Bronson & Eide, P.A., Orlando, FL, for Respondent.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.

Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, FL, for the Florida Defense Lawyers Association.

Michael A. Tonelli of Barr, Murman, Tonelli, Slother & Sleet, Tampa, FL, for The Rental Car Association of South Florida, Inc.

PER CURIAM.

We have for review the decision in Toombs v. Alamo Rent-A-Car, 762 So.2d 1040 (Fla. 5th DCA 2000), which certified conflict with the decision in Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

The petitioner, Richard Toombs, personal representative of the estate of Julia Stuttard, filed a wrongful death action against Alamo Rent-A-Car seeking damages on behalf of her two surviving minor children. Julia Stuttard was killed in a car accident while a passenger in an Alamo automobile rented and driven by her husband, Ian Stuttard. Her husband and their two minor children, who were also passengers in the car, survived.¹ Recovery was sought on the basis of the dangerous instrumentality doctrine.²

Alamo moved for summary judgment on the ground that Julia Stuttard, as co-bailee of Alamo's vehicle, could not rely on the dangerous instrumentality theory because the injury occurred while the vehicle was in her possession. Stated differently, Alamo argued that because Julia Stuttard would have been unable to maintain an action and recover damages against it under the dangerous instrumentality doctrine as a co-bailee of the rental car, neither could her survivors under the Wrongful Death Act. The trial court granted Alamo's motion for summary judgment.³

On appeal, Toombs argued that the case was controlled by Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999). In Alley the Second District, under circumstances practically identical to those in the instant case, allowed a wrongful death action against a rental car company to stand despite the decedent's status as a cobailee of the rental car: "We conclude that although the deceased mother would have no right of action against [Enterprise] had she survived, since the underlying cause of action remained viable, her survivors' wrongful death action also survives." Id. at 272.

The Fifth District rejected Alley, concluding that Stuttard's status as co-bailee prevented a cause of action from existing altogether. See Toombs v. Alamo Rent-A-Car, 762 So.2d 1040, 1042 (Fla. 5th DCA 2000)

. Accordingly, the Fifth District affirmed the trial court's order granting summary judgment and certified conflict with Alley. Id.⁴

ANALYSIS

Section 768.19, Florida Statutes (1995), which defines the right of action under the Wrongful Death Act (the Act), provides:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

§ 768.19, Fla. Stat. (1995).⁵ Resolution of the conflict between Alley and the instant case revolves around the language in the second clause, which conditions the right of action created under the Act on the decedent's entitlement to "maintain an action and recover damages if death had not ensued."

NATURE OF THE ACTION CREATED UNDER THE WRONGFUL DEATH ACT

An action for wrongful death is a purely statutory right. See, e.g., Florida East Coast Ry. v. McRoberts, 111 Fla. 278, 149 So. 631, 632 (1933). Although such an origin ordinarily requires strict construction under traditional rules of construction, the legislature has expressly provided that the Act should be liberally construed to effect its remedial purposes. See § 768.17, Fla. Stat. (2001); see also, Stern v. Miller, 348 So.2d 303, 308 (Fla.1977)

.⁶

In that vein, this Court has long characterized the Act as creating a new and distinct right of action from the right of action the decedent had prior to death. In Florida East Coast Railway v. McRoberts, 111 Fla. 278, 149 So. 631 (1933), this Court, in addressing the import of the second clause of the Act, explained:

The fact that the statute provides that an action for death by wrongful act can be maintained by the statutory beneficiaries only when the alleged wrongful death has been caused under such circumstances as would have entitled the injured party himself to maintain an action had he lived is simply a regulation of, and a limitation on, the new statutory right of action created.

Sections 4960, 4961, R.G.S., sections 7047, 7048, C.G.L., the Florida death by wrongful act statutes, do not purport to transfer to the statutory representatives of a person killed by another's wrongful act the right of action which the injured party might have maintained for his injury had he lived, but those sections gave to such statutory representatives, subject to terms, conditions and limitations of the statute, a totally new right of action for the wrongful death, and that on different principles.

Id. at 633 (emphasis added).

In Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1946) (on rehearing), we again emphasized the distinct nature of an action for wrongful death under our statutory scheme:

It will be observed that the statute gives a right of action to certain statutory beneficiaries for the recovery of damages suffered by them by reason of the death of the party killed; but it makes no provision for the recovery of the damages suffered by the injured person by reason of the injury inflicted upon him. Nor was the death by wrongful act statute ever intended to afford such a remedy. It was not the purpose of the statute to preserve the right of action which the deceased had and might have maintained had he simply been injured and lived; but to create in the expressly enumerated beneficiaries an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tortfeasor.

Id. at 221; accord, e.g., Bilbrey v. Weed, 215 So.2d 479 (Fla.1968)

; Stokes v. Liberty

Mut. Ins. Co., 213 So.2d 695 (Fla.1968); Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968); Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla. 1956); Brailsford v. Campbell, 89 So.2d 241 (Fla.1956); Klepper v. Breslin, 83 So.2d 587 (Fla.1955); Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Epps v. Railway Express Agency, Inc., 40 So.2d 131 (Fla.1949).

It is this characterization of the right of action created under the Act that comprises the fulcrum of the petitioner's claim that a right of action for wrongful death survived the decedent in the instant case. Specifically, the petitioner argues that this Court's decision in Shiver v. Sessions precludes the decedent's status as a co-bailee of the rental car from barring the right of the survivors to maintain an action for wrongful death. The petitioner reads Shiver too broadly.

SHIVER V. SESSIONS

In Shiver, four surviving minor children brought a wrongful death action against the estate of their stepfather, who had shot and killed their mother and then killed himself. The trial judge dismissed the suit, finding the plaintiffs barred from maintaining suit for the wrongful death of their mother as interspousal immunity would have prevented her from maintaining an action against their stepfather. This Court reversed, characterizing the interspousal immunity defense as personal to the decedent, not inhering in her husband's tortious act, and therefore incapable of barring the plaintiffs' independent right of action for wrongful death:

Thus, it is settled law in this jurisdiction that the wife's disability to sue her husband for his tort is personal to her, and does not inhere in the tort itself. The tortious injury to the wife "does not cease to be an unlawful act, though the law exempts the husband from liability for the damage." It is also well settled that our Wrongful Death Act creates in the named beneficiaries "an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tort-feasor." This right is "separate, distinct and independent" from that which might have been sued upon by the injured person, had he or she lived.

80 So.2d at 908 (citations omitted).

Relying heavily on this distinction, the Second District in Alley allowed a wrongful death action against a rental car company to proceed despite the fact that the decedent would have been unable to maintain an action as a co-bailee of the subject rental car. The decedent in Alley was killed in a single vehicle accident when her husband fell asleep at the wheel and crashed the rental car into a guard rail. The decedent's husband and two minor children, who were also passengers in the automobile, survived. The Alley court rejected the rental company's claim that the...