BRIAN WALKER, as Personal Representative of the ESTATE OF SOPHIE C. WALKER, etc. v. GEICO INDEMNITY INSURANCE COMPANY and CARLOS ENRIQUE GILL RAMIREZ a/k/a CARLOS GILL

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BRIAN WALKER, as Personal Representative of the ESTATE OF SOPHIE
C. WALKER, and as assignee of the ESTATE OF ANDRES IGNACIO
RODRIGUEZ GOMEZ,
Appellant,

v.

GEICO INDEMNITY COMPANY and CARLOS ENRIQUE GILL RAMIREZ
a/k/a CARLOS GILL,
Appellee.

No. 4D18-3706

[June 3, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James Nutt, Judge; L.T. Case No. 502016CA004453.

Stephen A. Marino, Jr., and Michael Meiler of Ver Ploeg & Marino, P.A.,
Miami, and Jeff M. Brown and Kenneth J. Ronan of Lavalle, Brown &
Ronan, P.A., Boca Raton, for appellant.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Kevin D. Franz
of Boyd & Jenerette, P.A., Boca Raton, for appellee.

On Motion For Clarification

MAY, J.

We grant the motion for clarification, withdraw our prior opinion, and
substitute this opinion in its place.

The plaintiff in a personal injury action appeals a summary judgment
in which the trial court determined that the owner of the vehicle involved
in the accident was limited to $100,000 in liability. He argues the court
erred in determining the coverage available under section 324.021(9)(b)(3),
Florida Statutes, and limiting the vehicle owner’s liability. We disagree
and affirm.

A fatal accident occurred while the defendant driver was driving his
stepfather’s vehicle. The vehicle’s owner stored the vehicle at his stepson’s
home. The driver was a permissive user of the stepfather’s vehicle.

The following insurance policies were in effect at the time of the
accident.

Driver Allstate 250/500 Bodily Injury 100 Property Damage
Stand. Fire 100/300 Bodily Injury 100 Property Damage
Geico 100/300 Bodily Injury 50 Property Damage

Owner Allstate 250/500 Bodily Injury 100 Property Damage

Allstate paid the plaintiffs $250,000 per the applicable insurance
policy. Geico denied coverage for the claim. The plaintiffs filed a complaint
against the driver’s estate and the vehicle owner for wrongful death. The
plaintiffs arbitrated their claims against the driver’s estate. The driver’s
estate then assigned its rights under the Geico policy to the plaintiffs’
estate.

The plaintiffs and the driver’s estate entered into a settlement
agreement that provided the $250,000 paid by Allstate “was agreed not to
release [the driver], but only to act as a set-off for any judgment [the driver]
might eventually owe to [the plaintiff’s] estate.” The settlement agreement
further stated it “shall not affect the claims that the [plaintiff’s estate] has
against [the vehicle owner].” The plaintiffs thereafter dismissed the driver’s
estate with prejudice.

The plaintiffs moved for leave to amend their complaint against the
vehicle owner and add Geico as a party. Count one of the first amended
complaint alleged negligence against the vehicle owner. Counts two and
three alleged breach of duty to defend and breach of duty to indemnify
against Geico. Count four sought a judgment requesting a declaration
that:

a. the [vehicle] involved in the accident was not gifted from
[the vehicle owner] to [the driver];

b. the [vehicle] involved in the accident was owned by [the
vehicle owner] at the time of the accident; and

c. [the vehicle owner] did not furnish or make the [vehicle]
involved in the accident available for regular use for [the
driver].

Geico filed its answer and affirmative defenses to the amended

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complaint. It admitted that it denied coverage for the claim. It claimed
the vehicle was not an owned, non-owned, or temporary substitute vehicle
under the policy. It further alleged the vehicle was gifted from the vehicle
owner to the driver, which caused it to fall outside the policy’s coverage.

The vehicle owner filed his answer and affirmative defenses denying the
allegations and raising affirmative defenses. He asserted that any recovery
should be reduced or barred by any settlement, judgment, or payment of
any kind by any individual or entity in connection with the subject matter
of the incident described in the complaint. He also asserted that he was
entitled to all benefits, restrictions, safeguards, protections, and
limitations contained within section 324.021, Florida Statutes.

The vehicle owner moved for summary judgment on count one, which
the trial court granted. The court found:

[The vehicle owner’s] insurance company paid $250,000
toward plaintiffs[’] claim. Whether $150,000 of that amount
is added to the permissive users limits to meet the $500,000
insurance availability requirement or it is treated as payment
toward the owner’s additional liability above the $350,000
actually paid by other policies, the total amount of $250,000
paid by the owner’s policy meets his maximum liability under
Section 324.021(9)(b)(3), Fla. Stat., under the undisputed
circumstances of this case. With [the vehicle owner] having
no further liability, as a matter of law, summary judgment is
appropriate.

The plaintiffs moved for reconsideration and both parties moved for
summary judgment on count four, the declaratory judgment claim. The
trial court denied the plaintiffs’ motion for reconsideration, but granted
the vehicle owner’s motion for entry of final judgment. In the judgment,
the court stated:

Final Judgment shall be entered in favor of [d]efendant, [the
vehicle owner], pursuant to this Court’s Order dated
September 11, 2018, granting [the vehicle owner’s] [m]otion
for [s]ummary [j]udgment as to Count I of the [p]laintiff’s [f]irst
[a]mended [c]omplaint. There is no other additional relief
being sought against [the vehicle owner] in any of the
remaining counts set forth in the [p]laintiff’s [f]irst [a]mended
[c]omplaint, and more specifically, Count IV of the [p]laintiff’s
[f]irst [a]mended [c]omplaint for [d]eclaratory [r]elief is not filed
against [the vehicle owner], nor is there any affirmative relief

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 being sought against [the vehicle owner], as the prayer for
relief in Count IV of the [p]laintiff’s [a]mended [c]omplaint only
seeks affirmative relief against [d]efendant, GEICO
INDEMNITY COMPANY. Accordingly, Final Judgment shall be
entered in favor of [the vehicle owner] only.

It entered the final judgment in favor of the vehicle owner. The plaintiffs
now appeal.

The plaintiffs argue the trial court incorrectly interpreted section
324.021(9)(b)(3) to allow the vehicle owner’s Allstate policy to apply to both
him and the driver, thereby limiting the vehicle owner’s liability. The
vehicle owner responds that he satisfied his potential maximum liability of
$100,000 when his Allstate policy paid the plaintiff’s estate $250,000 for
the accident.

“Summary judgment orders are reviewed de novo.” Collins v. Auto
Partners V. LLC, 276 So. 3d 817, 820 (Fla. 4th DCA 2019), review
dismissed, SC19-1676, 2019 WL 6320163 (Fla. Nov. 26, 2019). “‘The
interpretation of a statute is a purely legal matter’ and also subject to de
novo review.” Id. (quoting Parker v. Parker, 185 So. 3d 616, 618 (Fla. 4th
DCA 2016)).

“Florida’s dangerous instrumentality doctrine imposes ‘vicarious
liability upon the owner of a motor vehicle who voluntarily entrusts that
motor vehicle to an individual whose negligent operation causes damage
to another.’” Rippy v. Shepard, 80 So. 3d 305, 306 (Fla. 2012) (quoting
Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)). However, an owner’s
vicarious liability is limited by section 324.021(9)(b)(3). Richbell v.
Toussaint, 221 So. 3d 764, 768 (Fla. 4th DCA 2017).

Section 324.021(9)(b)3, Florida Statutes, provides:

The owner who is a natural person and loans a motor vehicle
to any permissive user shall be liable for the operation of the
vehicle or the acts of the operator in connection therewith
only up to $100,000 per person and up to $300,000 per
incident for bodily injury and up to $50,000 for property
damage. If the permissive user of the motor vehicle is
uninsured or has any insurance with limits less than
$500,000 combined property damage and bodily injury
liability, the owner shall be liable for up to an additional
$500,000 in economic damages only arising out of the use of
the motor vehicle. The additional specified liability of the

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 owner for economic damages shall be reduced by amounts
actually recovered from the permissive user and from any
insurance or self-insurance covering the permissive user.
Nothing in this subparagraph shall be construed to affect the
liability of the owner for his or her own negligence.

Id. (emphasis added).

By its plain language, the statute caps a motor vehicle owner’s vicarious
liability at $100,000 per person and $300,000 per incident for bodily
injury, with additional limits for economic damages depending on the
permissive user’s insurance coverage.

The plaintiffs argue the vehicle owner’s Allstate coverage of $250,000
cannot be used to both satisfy the vehicle owner’s maximum liability and
count towards the driver’s combined policy limits. The vehicle owner
responds the statute is straight forward and limits the vehicle owner’s
liability. We agree with the trial court and the vehicle owner.

If the permissive user’s combined limits are $500,000 or more, then the
vehicle owner’s liability is capped at $100,000 per person. If the
permissive user’s combined limits are less than $500,000, then the owner
shall be additionally liable. Nothing within the statute indicates that the
vehicle owner’s $100,000 liability cap and the $500,000 combined limits
for the permissive user are mutually exclusive.

There is no language excluding insurance policy payments under a
vehicle owner’s policy from the calculation of a permissive user’s combined
policy limits. The plaintiffs’ argument that the vehicle owner’s Allstate
policy cannot be used to both satisfy the vehicle owner’s maximum liability
and count towards the driver’s combined policy limits is unsupported by
the statute’s unambiguous language.

The issue is whether the driver had insurance with a combined limit of
$500,000. The answer is yes, as is evidenced by the following:

• Allstate insurance policy number 971 412 483, provided
bodily injury liability limits of $250,000 per person, $500,000
per incident, and property damage liability limits of $100,000
per incident. The driver was insured under this policy as a
permissive user.

• Allstate insurance policy number 971 710 020, provided
bodily injury liability limits of $250,000 per person and

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 $500,000 per incident and property liability limits of $100,000
per incident. The driver was a named insured under this
policy.

• Standard Fire Insurance Company provided bodily injury
liability limits $100,000 per person and $300,000 per incident
and property damage liability limits of $100,000 per incident.
The driver was a named insured under this policy.

• Geico provided bodily injury liability limits $100,000 per
person and $300,000 per incident and property damage
liability limits of $50,000 per incident. The driver was a
named insured under this policy.

In short, the driver was insured under four policies. Excluding the
Allstate policy, under which he was a permissive user, he had three
policies which provided a total of $700,000 per person in bodily injury and
property damage coverage, and $1,350,000 per accident in bodily injury
and property damage coverage. Adding the vehicle owner’s Allstate policy
under which the driver was a permissive user, he had an additional
$350,000 per person in bodily injury and property damage coverage and
$600,000 per accident and property damage coverage. This brings the
driver’s total bodily injury and property damage coverage to $1,050,000
per person and $1,950,000 per accident—well over the $500,000
threshold required by the statute to limit the vehicle owner’s liability.

The trial court correctly granted the vehicle owner’s motion for
summary judgment. The vehicle owner’s liability was limited to $100,000
under section 324.021 based upon the available coverage in excess of
$500,000. We affirm.

Affirmed.

CIKLIN and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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