CLARKE D. ARICK, APPELLANT,
v.
NEIL G. MCTAGUE AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A FOREIGN INSURANCE CORPORATION, APPELLEES
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In this guest passenger statute case, the appellate court reversed summary judgment for the defendant-driver where the trial court improperly applied the now-repealed guest passenger statute, which required proof of gross rather than ordinary negligence. The court held that the statute's repeal should be given retrospective application to pending cases.
The court held that the guest passenger statute's repeal must be given retrospective application, and therefore the summary judgment must be reversed. The court concluded that once the statute was repealed prior to trial, the trial court committed error in applying it to require proof of gross negligence rather than allowing a claim for ordinary negligence.
[1] A repealed statute should be applied retrospectively to cases pending on appeal when the repeal occurred after the cause of action arose but before the appellate decision…
[2] A repealed guest passenger statute does not apply to a case where the repeal became effective before the finality of the appellate decision, even if the cause of action a…
Previewing 2 of 4 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“All parties agree that if the repeal of the guest statute is to be given retrospective application, this Court must reverse the summary judgment entered below inasmuch as appellant's complaint alleged facts of ordinary negligence.”
Establishes that the parties stipulated to the legal consequence of applying the statute's repeal retrospectively.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClarke Arick was injured as a passenger in an automobile driven by Neil McTague. Arick's complaint alleged both simple and gross negligence by McTague…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOHNSON, Judge.
The appellant herein was injured as a result of an automobile accident while riding as a passenger in a motor vehicle operated by appellee McTague. His complaint alleged both simple and gross negligence on appellee’s part. The trial court, in a final summary judgment in favor of appellee, found that the facts did not show gross negligence on appellee’s part and that appellant did not fall into the student exception of the guest passenger statute, formerly F.S. § 320.59, F.S.A., which would have permitted him to allege simple or ordinary negligence.
The only question now before this Court is whether the trial court erred in applying the guest statute to this case when the same had been repealed after the date of the accident but before the entry of the summary judgment in favor of appel-lees. All parties agree that if the repeal of the guest statute is to be given retrospective application, this Court must reverse the summary judgment entered below inasmuch as appellant’s complaint alleged facts of ordinary negligence.
This same issue has been decided adversely to appellees in the case of Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So. 2d 862 (Fla.App. 3rd, 1973). There, the Third District Court of Appeal held that since the guest statute had been repealed prior to trial, the trial court committed error in charging the jury that the plaintiff would be required to prove gross negligence in order to justify recovery. Appellees contend that the In-gerson case is not controlling because the summary judgment in the case sub judice was entered prior to the finality of the holding in Ingerson, supra. However, the Court in Ingerson further held that the same rule would apply even if a change occurs in the law after judgment but during the pendency of a direct appeal therefrom. While the present case was pending a determination on appeal, the Florida Supreme Court has entered an order denying a Petition for Writ of Certiorari in the In-gerson case (Case No. 43,558, order entered November 15, 1973), thus rendering the decision in Ingerson final.
Such being the case, we must reverse the summary judgment entered below and remand this cause for reconsideration in accordance with the law as changed; to wit: the repeal of the guest passenger statute, with leave granted to the parties to amend their pleadings as they may be advised prior to a new trial.
Reversed and remanded for further proceedings.
RAWLS, C. J., and HOWELL, CHARLES COOK, Jr., Associate Judge, concur.
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Richey v. Town OF Indian River Shores, 337 So. 2d 410 (Fla. 4th DCA 1976)…he pendency of this appeal. This court must decide this case on the law as it now exists (Summerlin v. Tramill, 290 So. 2d 53 (Fla.1974); Ingerson v. State Farm Mutual Automobile Insurance Company, 272 So. 2d 862 (Fla.App.3d 1973); Arick v. McTague, 292 So. 2d 31 (Fla.App.1st 1974), therefore it is clear that Section 165.12, Florida Statutes 1973, is not controlling in this case. Section 166.032, Florida Statutes 1974,1 does not revitalize the Hisgen holding, because that section (as Section 165.12 specifica…
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Cutler v. Claudette Pelletier and Pamela Caputo, 507 So. 2d 676 (Fla. 4th DCA 1987)…ary 25, 1985. Where a controlling statute is repealed or otherwise changed, the law as changed becomes applicable and controlling at trial. Ingerson v. State Farm Mutual Automobile Insurance Co., 272 So. 2d 862 (Fla. 3d DCA 1973); Arick v. McTague, 292 So. 2d 31 (Fla. 1st DCA 1973). In reviewing a judgment on direct appeal, an appellate court must dispose of the case according to the law prevailing at the time of the appellate disposition. Lowe v. Price, 437 So. 2d 142 (Fla.1983). Thus, applying the correct…
Authorities Cited
- Ingerson v. State Farm Mut. Auto. Ins. Co., 272 So. 2d 862 (Fla. 3d DCA 1973)