The Florida Legislature once believed they should. It may still believe so, but its will has been overridden by federal law.

Section 324.021(9), Florida Statutes, requires rental and leasing companies to maintain substantial minimum liability insurance on vehicles operated in this state. But that requirement has been superseded by 49 U.S.C. § 30106 – the Graves Amendment – enacted in 2005.

Notably, the Graves Amendment appears to preserve state “financial responsibility” laws. Section 30106(b) provides:

“(b) Financial Responsibility Laws.—Nothing in this section supersedes the law of any State … (2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.”

Despite this language, the Florida Supreme Court held that § 324.021(9) is not a financial responsibility law. Rosado v. DaimlerChrysler Financial Services Trust, 112 So. 3d 1165 (Fla. 2013). As a result, rental and leasing companies have no obligation to maintain liability insurance on their vehicles.

Two lessons emerge.

First, We the People should not assume that state and federal governments always act in our best interests. Sometimes profits win out over people. The Graves Amendment is a prime example: it was designed to shield rental and leasing companies’ profits, leaving injured individuals without the insurance protections the Florida Legislature intended.

Second, at least in Florida, individuals do have a way to protect themselves against uninsured or underinsured drivers: uninsured/underinsured motorist (UM/UIM) coverage. The contours of UM/UIM coverage are set out in § 627.727, Florida Statutes. In short, vehicle owners can purchase this coverage to protect themselves and their families from irresponsible vehicle owners and operators.

Here is a real life example of how the Graves Amendment harms innocent people: We were contacted by a young woman who lost her leg in a horrific crash near Hard Rock Stadium. Her car had broken down. A friend came to help and parked behind her disabled vehicle. As she stood between the two cars, another vehicle slammed into the friend’s car, crushing her between the bumpers.

The at-fault vehicle was under a long-term lease – the type of lease addressed in § 324.021. But because the lessee failed to maintain the insurance required by that statute, and because the Graves Amendment prevents the lessor from being held responsible, only $10,000 in liability coverage was available for her catastrophic injuries. We could not help her.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Florida’s Dangerous Instrumentality Doctrine is a long-standing legal principle that makes the owner of a motor vehicle vicariously liable for injuries caused by someone else driving that vehicle with the owner’s knowledge and consent. In other words, if you own a vehicle and give another person permission—express or implied—to drive it, you are liable for any negligence that driver commits while operating the vehicle. The doctrine comes from common law, not statute. Florida first adopted it in Southern Cotton Oil Co. v. Anderson (1920), reasoning that automobiles are inherently dangerous when operated and therefore owners must be held responsible for their use.

Premium charges for Florida motor vehicle insurance policies are primarily risk-based—meaning insurers calculate how likely a claim will be filed against the policyholder and how costly that claim might be. The higher the risk, the higher the premium. One factor that affects the level of risk to the insurer under a motor vehicle policy is the number of individuals who are likely to be driving the insured vehicle, such as individuals living in the same household.

During the insurance application process, applicants are required to disclose all household members, particularly those of driving age. Providing false or incomplete information in response to this question may give the carrier grounds to deny coverage in the event of an accident.

One way policyholders can help manage their premium levels is by designating certain household members as excluded drivers under the policy. See Florida Statute 627.747. When a driver is specifically listed as an “excluded driver” on an automobile insurance policy, that exclusion is very strong. Here’s how it works:

• No coverage for the excluded driver: If the excluded person is operating the vehicle and causes a crash, the insurer will deny liability coverage for that driver. That means the policy does not step in to defend or indemnify the excluded driver.
• Coverage for the named insured/owner: If the vehicle owner (who is the policyholder) is sued under a theory of vicarious liability (for example, because Florida law generally makes owners liable for the negligence of permissive drivers under the dangerous instrumentality doctrine), the outcome depends on how the exclusion is written:
  • Many Florida policies expressly exclude not just the driver, but also any liability imputed to the owner arising from that driver’s negligence. In those cases, the insurer will deny coverage both for the excluded driver and the owner.
  • However, if the exclusion is worded narrowly (excluding only the driver’s liability, not the owner’s vicarious liability), the owner may still be covered for lawsuits brought against them, even though the driver is excluded.

Our firm recently encountered such an issue. Our client was injured in a crash caused by another driver’s negligence. It was later revealed that the driver had been designated as an excluded operator under the vehicle owner’s insurance policy. Accordingly, we requested a copy of the owner’s policy for review.

Unfortunately, the Progressive insurance policy stated in clear and unambiguous terms that the exclusion “includes any claim or suit for damages made against you, a relative, a rated resident, or any other person or organization that is vicariously liable for an accident arising out of the operation of a motor vehicle by the excluded driver.”

To make matters worse, neither the driver nor the vehicle’s owner has sufficient personal assets to cover our client’s losses. We confirmed this after conducting an asset search.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

Another landmine to avoid is a general release of insurance carriers. It is not unusual for the same carrier to insure more than one defendant either on a different policy or on the same policy, or even the plaintiff’s personal UM or PIP policy with coverage responsibility in the case. Giving a general release without clarifying that the release is only in the carrier’s capacity as the liability insurer for the active tortfeasor, might result in the loss of important funding sources.

Also, be careful of indemnification and hold harmless provisions in releases. Passive defendants have the right to recover from active tortfeasors for payments they have made as a result of their vicarious liability. An agreement to indemnify the settling tortfeasor for such a claim would effectively mean that the plaintiff must give the active defendant the money it got from the vicarious defendant. Here’s how that would work: Plaintiff receives X dollars from vicarious Defendant A. Vicarious Defendant A then pursues an indemnity claim against active Defendant B. Active Defendant B then demands from Plaintiff, under the indemnity provision of the release, the money it paid to Defendant A.

Needless to say, this scenario can be problematic, even a deal breaker.

Indemnification and hold harmless provisions can also involve liens held by entities such as Medicare, Medicaid, and health insurance carriers. Typically, such entities are entitled by law or contract to recover from third-party settlements some or all of the benefits they have paid on behalf of the plaintiff. In some instances, they can even go after defendants who have failed to protect their lien rights.

For the most part, since repayment amounts on these liens can be determined or resolved before or in connection with settlement or verdict, these provisions are not problematic.

Finally, avoid the pitfall experienced in Connecticut General Life Ins. Co. v Dyess, 569 So. 2d 1293 (Fla. 5th DCA 1999). A settling plaintiff lost out on first party insurance benefits by failing to include language in the release that the settlement did not cover all of his damages.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

In some instances, the employer’s own negligence is part of the causal chain resulting in the harm. For example, a few years ago our client was severely beaten in his home by a furniture deliveryman who became annoyed by the strong smell of fish being cooked in the home. We learned that the deliveryman had a criminal record of violent activity before he was hired and a history of physical misconduct while employed. He should not have been hired or retained for a job putting him in one-on-one unsupervised contact with customers.

Negligent hiring and employment have long been found to be legitimate bases of recovery in Florida. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Similarly, certain employees should not be entrusted with operating motor vehicles. The reasons range from being a known reckless driver to mental impairment from a medical condition or alcohol or drug use. The theory of negligent entrustment has long been utilized in an automobile situation as the basis of recovery. See, e.g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975).

Cases are supposed to be decided on relevant evidence. Relevant evidence is defined in section 90.401, Florida Statutes as “evidence tending to prove or disprove a material fact.” Counterbalancing this rule is 90.403, which sometimes operates to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

90.403 played a role in Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2nd DCA 1977). Clooney sustained crippling injuries in a motor vehicle accident caused, in part, by an employee of Anderson Manufacturing Co. He sued Anderson for negligence in hiring and continuing to employ that driver in light of his incompetence and past driving record and for negligently entrusting its truck to him. The trial court struck these Counts of the complaint. The Second District Court affirmed based on the following reasoning:

Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla.3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”

Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303 (1954).

Clooney dealt with the admissibility of a defendant’s past driving record. However, the principle can apply to other respondeat superior situations involving different types of background evidence. In our physical assault case, our investigation uncovered prior criminal convictions and similar complaints by other customers. Relying on Clooney, the employer defendant opposed our counts alleging negligent hiring and retention. The case settled before the matter came to a head with formal pleadings.

Interestingly, had the case not settled we may have used other parts of the Clooney decision to support our position. Clooney alleged in Count V of his Complaint that Anderson Mfg. Co’s behavior showed a wilful and wanton disregard for the rights of Clooney. He did this in an effort to recover punitive damages. The trial court dismissed this Count, feeling that the facts did not rise to the level of wilful and wanton disregard. The appellate court affirmed. However, the Second DCA did say this:

We recognize that factual situations could arise where one of the referred-to theories would impose additional liability. If the allegations in this case had been sufficient to allow the claim for punitive damages to go before the jury, this would be such a case. Another example might be where an owner or authorized custodian of a motor vehicle who knows that the vehicle has defective brakes allows one who is not aware of this dangerous condition to use it, and because of the bad brakes an accident occurs. If the driver were found not to be negligent, the owner could not be held vicariously liable. So the means of imposing liability on the owner would be through his own negligence of lending the car with bad brakes, i.e., negligent entrustment. See generally Wright Fruit Co. v. Morrison,309 So.2d 54 (Fla.2d DCA 1975).

Upon remand of this case for a new trial we realize that Clooney may be able to amend his complaint to allege sufficient ultimate facts to form the basis of a claim for punitive damages. If this occurs, additional theories of recovery may be pleaded; however, we repeat our cautionary note. No theory which permits the past driving record of Geeting should be presented to the jury unless there is a proper claim for punitive damages.

Jones v. Vasilias, District Court of Appeal of Florida, Fourth DCA (2023), adds an interesting twist to Clooney. The underlying action arose from a crash suffered by appellant Jones while riding his bicycle along the busy street in front of an automobile dealership as an employee was leaving in a dealership van for a delivery.

In addition to a claim of negligent driving against the driver and the dealership, the operative complaint asserted causes of action against the supervisors for negligent training, retention, supervision, and entrustment. As to the service manager, the complaint also alleged negligent hiring. As to North American, the complaint asserted vicarious liability for the acts of its employee, the general manager.

Citing Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), the supervisors and North American each moved to dismiss the respective claims against them for failure to state a cause of action. The trial court granted the motion to dismiss.

In reversing and remanding for further proceedings, the Second DCA declared that the trial court’s reliance on Clooney was misplaced. It noted that the negligent employment claims in Clooney were brought against the employer, and not individually against a supervisor. It provided the following analysis:

“It is well-settled . . . that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers.” First Fin. USA, Inc. v. Steinger, 760 So. 2d 996, 997-98 (Fla. 4th DCA 2000) (emphasis added); see also Greenberg v. Post, 19 So. 2d 714, 717 (Fla. 1944) (“It is well settled that an employee may be held personally liable at the suit of a third person for positive negligent acts committed by him even though his employer may likewise be liable for the servant’s negligent conduct when exercised within the scope of the employment.”). Additionally, Florida courts have emphasized that the officer cannot be personally liable “for [his] torts merely by reason of his official character[,]” but he is liable for torts where he “commits or participates in the commission of a tort.” Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981) (citation omitted); see also Costa Invs., LLC v. Liberty Grande, LLC, 353 So. 3d 627, 633-34 (Fla. 4th DCA 2022); McElveen v. Peeler, 544 So. 2d 270, 271 (Fla. 1st DCA 1989). “A contrary rule would enable a director or officer of a corporation to perpetrate flagrant injuries and escape liability behind the shield of his representative character.” Orlovsky, 405 So. 2d at 1364 (citation omitted). “A corporate officer or agent must be alleged to have acted tortiously in his individual capacity in order to be individually liable.” White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986).

As a proviso, the DCA concluded with these words:

We again emphasize that our opinion is based on the pleading-stage procedural posture of this case. We also point out that our conclusions as to the sufficiency of the pleadings do not determine how the elements of the cause of action will play out as discovery reveals more details of the facts of this case.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.