HERTZ CORPORATION AND WILLIAM H. BROWN, APPELLANTS,
v.
AMERISURE INSURANCE COMPANY, APPELLEE
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Hertz Corporation and William H. Brown appealed a summary judgment denying coverage under Brown's auto liability policy with Amerisure. The court reversed, holding that Brown's liability as a bailee under the dangerous instrumentality doctrine was covered under his policy's broad definition of "use" to include permitting another to operate the vehicle.
Brown has liability coverage under his automobile liability policy with Amerisure. The policy's coverage of "use" of the automobile by a covered person includes Brown's act of permitting Davis to drive the rented automobile, and Brown's vicarious liability for the sub-bailee Davis's operation falls within the scope of coverage.
[1] An owner who gives consent for another to operate their automobile is liable for negligent operation, regardless of the driver's location or actions.
[2] A bailee is liable to third persons for the misuse of a vehicle by anyone operating it with the bailee's knowledge and consent.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“under the law of this state, if the owner once gives his express or implied consent to another to operate his automobile, he is liable for the negligent operation of it no matter where the driver goes, stops, or starts.”
Establishes the dangerous instrumentality doctrine under Florida law that makes an owner liable for negligent operation by one operating with consent.
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Join FLexlaw to unlock all legal intelligenceWilliam H. Brown rented a car from Hertz for his friend Tom Davis, who lacked a credit card and was to be the actual operator. Brown never drove or ro…
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[*23] PER CURIAM.
This appeal is taken from a final summary judgment entered in Amerisure Insurance Company’s action for declaratory judgment in which it sought a determination of its obligation to its insured, William H. Brown. The trial court found no coverage and no duty to defend under Brown’s motor vehicle liability policy with Amerisure, and Brown and Hertz Corporation appeal. We reverse.
Mr. Brown rented an automobile from Hertz for his friend, Tom Davis, who did not have a credit card as required by Hertz. Davis intended to be the operator of the automobile and paid for the rental. Brown testified by affidavit that it was only with this belief and under these conditions that he signed the Hertz rental agreement. Brown never drove the automobile nor was he ever in the automobile. At all times, the automobile was garaged at Davis’ home when not being driven. Davis, while driving the rented automobile, was involved in an accident which caused the death of Samuel Ira Rivers. Rivers’ estate sued Hertz for wrongful death, and Hertz successfully sued Brown for indemnification under the rental agreement. In the indemnification action, the court issued a partial summary judgment as follows:
The court finds as a matter of law that defendant Wm. H. Brown, is liable in indemnity to Hertz for damages incurred in excess of $25,000 arising out of the automobile accident that fatally injured Samuel Ira Rivers.
Thereafter, Amerisure filed its action for declaratory judgment.
Brown’s liability for damages arises under the dangerous instrumentality doctrine. As stated in Boggs v. Butler, 176 So. 174, 176 (1937): “[ujnder the law of this state, if the owner once gives his express or implied consent to another to operate his automobile, he is liable for the negligent operation of it no matter where the driver goes, stops, or starts.” To the same extent as an owner, a bailee is likewise liable to third persons under the doctrine. As stated in Sauer v. Sauer, 128 So. 2d 761 (Fla. 2d DCA), cert. denied, 135 So. 2d 742 (Fla.1961):
It would therefore appear that the rule which is applicable to the instant case is not essentially based on respondeat superi-or nor on agency conceptions but on the practical fact that the bailee of a means of death and destruction should in justice answer for misuse of the vehicle by anyone operating it with his knowledge and consent.
128 So. 2d at 764 (citations omitted).
The applicable liability provisions in Brown’s policy with Amerisure provide: “[w]e will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” The policy further provides: “[cjovered person” as used in this Part means: “1. You or any family member for the ownership, maintenance or use of any auto or trailer.”
Insurance contracts are to be construed strictly against the insurer and liberally in favor of coverage. United States Aviation Underwriters v. Van Houtin, 453 So. 2d 475, 477 (Fla. 2d DCA 1984).
We construe the quoted policy provisions to afford coverage to Brown under the facts of this case. Even if, arguably, the operation of the automobile by sub-bailee Davis, was not “use” of the automobile by the named insured Brown, the liability asserted against Brown is vicarious liability for the ownership, maintenance or-use of the automobile by sub-bailee Davis.
The word “use” in the policy provision can include Brown’s act of permitting Davis to drive the rented auto. In American Fire & Casualty Company v. Blanton, 182 So. 2d 36 (Fla. 1st DCA 1966), the First District held, in the context of automobile liability insurance, that the word “use” is a broader concept than “operation,” and includes the concept of a permittee’s operating an automobile for the use of the insured.
In sum, we hold that Brown has liability coverage under his automobile liability policy with Amerisure. We therefore reverse and remand for further proceedings.
RYDER, A.C.J., and CAMPBELL and THREADGILL, JJ., concur.
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Sanders v. Mid-Century Ins. Co., 695 So. 2d 494 (Fla. 1st DCA 1997)…dangerous instrumentality doctrine for her decision to allow Sanders to use the car. In an almost identical situation, the second district relying on case law from this district, found coverage for the insured. See Hertz Corp. v. Amerisure Ins. Co., 627 So. 2d 22 (Fla. 2d DCA 1993). In Hertz, Amerisure issued a policy to Brown who rented a car from Hertz. The policy in that case stated in relevant part as follows: We will pay damages for bodily injury or property damage for which any covered person becomes…
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Budget Rent-A-Car Sys., Inc. v. State Farm Mut. Auto. Ins. Co., 727 So. 2d 287 (Fla. 2d DCA 1999)…Farm’s policy, there is no question that Ms. Tolbert is an insured for purposes of this analysis. There is also no question that her decision to allow Mr. Grant to drive the vehicle was a “use” of the vehicle. See Hertz Corp. v. Amerisure Ins. Co., 627 So. 2d 22 (Fla. 2d DCA 1993). The question is whether a short-term rental vehicle is a “non-owned” car for purposes of this policy.4 If so, the policy protects Ms. Tolbert concerning her liability for bodily injury damages arising out of her use of the vehicl…
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Arnold v. Beacon Ins. Co. OF Am., 687 So. 2d 843 (Fla. 2d DCA 1996)…oked the broad brush effect of the substitute auto provision and neglected to apply the general rule that “[i]nsurance contracts are to be construed strictly against the insurer and liberally in favor of coverage.” Hertz Corp. v. Amerisure Ins. Co., 627 So. 2d 22, 23 (Fla. 2d DCA 1993) (citing United States Aviation Underwriters v. Van Houtin, 453 So. 2d 475, 477 (Fla. 2d DCA 1984)). The Hertz vehicle substituted for a covered auto. The Toyota truck, which was used in garage operations, would have been cover…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boggs v. Butler, 129 Fla. 324 (Fla. 1937)
- Am. Fire & Cas. Co. v. Blanton, 182 So. 2d 36 (Fla. 1st DCA 1966)
- Sauer v. Sauer, 128 So. 2d 761 (Fla. 2d DCA 1961)
- United States Aviation Underwriters v. van Houtin, 453 So. 2d 475 (Fla. 2d DCA 1984)
- Petrus v. Bunnell, 135 So. 2d 742 (Fla. 1961)
- Richards v. State, 135 So. 2d 742 (Fla. 1961)