Enterprise Leasing Co. v. Alley

728 So. 2d 272, 1999 WL 43516
CourtDistrict Court of Appeal of Florida
DecidedFebruary 3, 1999
Docket97-04750
StatusPublished
Cited by6 cases

This text of 728 So. 2d 272 (Enterprise Leasing Co. v. Alley) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Enterprise Leasing Co. v. Alley, 728 So. 2d 272, 1999 WL 43516 (Fla. Ct. App. 1999).

Opinion

728 So.2d 272 (1999)

ENTERPRISE LEASING COMPANY, a Florida corporation, Appellant,
v.
C. Todd ALLEY, as Personal Representative of the Estate of Lenna Peoski, deceased, Appellee.

No. 97-04750.

District Court of Appeal of Florida, Second District.

February 3, 1999.
Rehearing Denied February 26, 1999.

Michael A. Tonelli of Barr, Murman, Tonelli, Herzfeld & Rubin, Tampa, for Appellant.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, and Wagner, Vaughan & McLaughlin, P.A., Tampa, for Appellee.

CAMPBELL, Judge.

This is an action arising out of a single-vehicle automobile accident that killed Lenna Peoski, the mother of two minor children. In this appeal, the lessor of the automobile, appellant, Enterprise Leasing Company, challenges the final judgment allowing the two minor children to recover from Enterprise under the Wrongful Death Act. We conclude that although the deceased mother would have had no right of action against appellant had she survived, since the underlying cause of action remained viable, her survivors' wrongful death action also survives. Accordingly, we affirm.

On December 22, 1995, Lenna and James Peoski, husband and wife, rented an automobile in Tampa, Florida, from appellant. Mr. Peoski signed the lease agreement, and Mrs. Peoski was listed as an authorized additional driver. It is not disputed that Mr. and Mrs. Peoski were co-bailees of this rented automobile. Mr. and Mrs. Peoski and their two minor children, Joseph and Karolyn Peoski, traveled in appellant's leased automobile to Lexington, Kentucky. On the December 29, 1995, return trip, Mr. Peoski was driving the automobile south on 1-75 near Dalton, Georgia, when he fell asleep at the wheel, causing the automobile to veer off the highway and crash into a guardrail. Mrs. Peoski died as a result of injuries she sustained in the accident. *273 Mr. Peoski and the two children survived. Appellee, C. Todd Alley, as Personal Representative of the Estate of Lenna Peoski, deceased, filed a wrongful death action against appellant as owner of the vehicle, alleging that Mr. Peoski's negligent operation of the vehicle caused the accident and Mrs. Peoski's resulting death. Judgment was eventually recovered under the Wrongful Death Act on behalf of Mrs. Peoski's estate and each of her two minor children. Mr. Peoski was not named as a party defendant by appellee, nor was he a beneficiary of the judgment.

Appellant presents several established principles that, appellant argues, prevent recovery by Mrs. Peoski's children under the Wrongful Death Act. We will discuss those principles and explain why we conclude they do not defeat the judgment obtained in this case.

The issue before us depends upon the construction of the language of the Wrongful Death Act, which conditions a decedent's survivors' cause of action upon the right of the decedent, if the decedent had lived, to have maintained an action and recovered damages arising out of the event. The Wrongful Death Act, section 768.19, Florida Statutes (1995), provides in part:

[W]hen 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.

(Emphasis supplied.)

Appellant contends that the Dangerous Instrumentality Doctrine would have prevented the decedent from maintaining an action, thus preventing her survivors from recovering. Specifically, it is appellant's position that, under the Dangerous Instrumentality Doctrine, while an owner/lessor is liable to third persons who are injured as a result of the negligence of a lessee/operator of a leased vehicle, Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973), an owner/lessor is not liable for the injuries of a co-bailee that result from the bailee's negligent operation of the leased vehicle. See Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965). As a cobailee, the decedent could not recover from appellant, thus precluding her children from recovering. The Raydel court held:

[W]e do not believe the dangerous instrumentality doctrine applies where an automobile is entrusted to a husband and wife jointly and while it is in their personal use and under their dominion and control it is negligently operated by one of them, injuring one or both of them. Under such circumstances recovery for such injuries cannot be had by either or both of them from the owner of the automobile.

178 So.2d at 572 (emphasis supplied). The rationale of the Raydel rule is explained further in State Farm Mutual Automobile Insurance Co. v. Clauson, 511 So.2d 1085 (Fla. 3d DCA 1987), where the court stated:

To the same extent as the owner, a bailee (or sub-bailee) of a motor vehicle is liable to third persons under the dangerous instrumentality doctrine for the negligence of one to whom he has entrusted it. Thus, if Mr. Clauson had injured a pedestrian or another driver, not only We Try Harder but Mrs. Clauson (and her employer as well) would be vicariously responsible for his negligence. In the present instance, however, in which the bailee, Mrs. Clauson, has, in effect, sued We Try Harder for Mr. Clauson's negligence, she is barred by the fact that his negligence is imputed directly to her and is, as it were, stopped on its attempted way up the chain of responsibility before it reaches the owner ...

511 So.2d at 1086 (emphasis supplied; footnote and citations omitted).

Relying on the authority of such cases as Variety Children's Hospital v. Perkins, 445 So.2d 1010 (Fla.1983), McCoy v. Hollywood Quarries, Inc., 544 So.2d 274 (Fla. 4th DCA 1989), Kirchner v. Aviall, Inc., 513 So.2d 1273 (Fla. 1st DCA 1987), Hudson v. Keene *274 Corp., 445 So.2d 1151 (Fla. 1st DCA 1984), appellant argues that the very language of the Wrongful Death Act prevents recovery under the Act by Mrs. Peoski's children where Mrs. Peoski herself, had she survived, would have been unable to recover.

Appellant also argues that the doctrine of parental immunity should prevent appellee from recovering against appellant. There is no evidence in this case of any insurance coverage available to Mr. Peoski. In Ard v. Ard, 414 So.2d 1066 (Fla.1982), our supreme court held:

[I]n a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent's available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent.

414 So.2d at 1066-67.

Appellant argues that Ard would prevent the Peoski children from suing Mr. Peoski directly, but, because appellant has indemnification claims against Mr. Peoski, the children are doing indirectly what they could not do directly.

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Cite This Page — Counsel Stack

Bluebook (online)
728 So. 2d 272, 1999 WL 43516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enterprise-leasing-co-v-alley-fladistctapp-1999.