final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No.
M. Burlington and Nichole J. Segal of Burlington &
Rockenbach, P.A., West Palm Beach, and Richard D. Schuler of
Schuler, Halvorson, Weisser, Zoeller & Overbeck, West
Palm Beach, for appellant.
Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for
plaintiff appeals a final summary judgment in favor of an
auto dealership. The plaintiff argues summary judgment was
entered in error as genuine issues of material fact remained.
Those issues are whether: 1) the vehicle involved in the
accident was a courtesy loaner vehicle; and 2) the Graves
Amendment applied to that vehicle. We disagree with
the plaintiff and affirm.
plaintiff was severely injured when struck by a vehicle
driven by an auto dealership employee. He filed an amended
complaint against the driver and one count for vicarious
liability against the dealership. The dealership claimed the
vehicle was a short-term courtesy vehicle provided to its
employee in his capacity as a customer while his car was
undergoing service at the dealership. It further claimed the
Graves Amendment limited the dealership's liability.
answer, the dealership admitted it owned the vehicle but
denied all other allegations. It asserted the following as
defenses: comparative negligence; the plaintiff's failure
to mitigate damages; the damages were limited by section
324.021, Florida Statutes, because the dealership leased the
vehicle to its employee; and the protection of the Graves
Amendment, 49 U.S.C. § 30106. It also asserted
entitlement to a setoff for all collateral source payments.
to the original answer was a rental agreement dated March 31,
2017 ("first rental agreement"), documenting the
rental of a 2017 Chevy Malibu purportedly signed by the
employee. It stated the car was returned April 3, 2017, prior
to the accident. The employee later denied signing this
rental agreement and testified in deposition that the
signature and initials were not his.
dealership subsequently filed an answer, affirmative defenses
to the amended complaint, and asserted a third-party
complaint against its employee. The answer pled the same
affirmative defenses. But, this time, the dealership attached
a different rental agreement ("second rental
agreement"). This agreement covered the time of the
accident and was for a different vehicle. The employee had
signed this agreement, but it was undated and executed after
the employee returned to work following the accident.
dealership moved for summary judgment. The dealership's
service manager attested that the car driven by the employee
at the time of the accident was a short-term
"rental," with the dealership "factor[ing] the
cost of the short-term rental vehicle into the price for
service on the customer's vehicle." He also attested
that a true and accurate rental agreement was attached.
dealership filed an amended motion for summary judgment
arguing entitlement to a judgment as a matter of law based on
the Graves Amendment. The dealership alternatively argued it
was entitled to a partial summary judgment, pursuant to
§ 324.021, Fla. Stat., which caps the dealership's
liability at $600, 000 if the permissive user had less than
$500, 000 of insurance. The dealership filed the deposition
of another employee and an affidavit from the service manager
authenticating the first and second rental agreements.
response to the amended motion for final summary judgment,
the plaintiff argued there were genuine issues of material
fact as to whether the dealership had leased the car as a
rental vehicle. He argued the first rental agreement was
fabricated because the employee denied ever seeing or signing
it. The plaintiff further contended the rental agreements
were tantamount to perjury and were sufficient to warrant
dismissal of the dealership's pleadings. He did not,
however, ask for that relief.
with the discrepancies in the rental agreement paperwork, the
plaintiff raised issues about whether the car driven by the
employee was a dealership designated loaner. Other courtesy
vehicles were new, had never been sold, and had stickers on
the back window indicating they were dealership rental cars.
The car involved in the accident was pre-owned and did not
have a courtesy vehicle sticker.
plaintiff also argued the dealership was not entitled to
partial summary judgment capping liability at $600, 000,
pursuant to § 324.021(9)(b)3., Fla. Stat., because the