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T. Patton Youngblood v. Estate of Reinaldo Villanueva
SC06-1205
WE'LL
MOVE TO OUR NEXT CASE THIS
MORNING, WHICH IS YOUNGBLOOD
VERSUS VILLANUEVA.,,
>> THANK YOU, YOUR HONOR.
MAY IT PLEASE THE COURT.
MY NAME IS SCOTT SAMIS.
HE REPRESENT PATTON
YOUNGBLOOD.
THE QUESTION IS WHETHER THE
CASTILLO QUESTION SHOULDN'T
APPLIED WHERE AN OWNER TURNS
HIS CAR OVER TO A
CONSIGNMENT LOT PER SE.
>> YOU COULD TELL ME WHERE
WE'RE IN CONFLICT IN THE
CASE?
>> WELL, YOUR HONOR.
>> WELL, IT APPEARS WHAT THE
APPELLANT ATE COURT, THE
TRIAL COURT GRANTED A SUM MY
JUDGMENT SAYING THAT THE
DANGEROUS UNSTREW MENTALITY
DOCTRINE WOULD APPLY OR IN
FAVOR OF YOUNGBLOOD WOULD
NOT APPLY, AND THE DISTRICT
COURT OF APPEAL UNDER THE
CASES NEVER DEAL WITH THIS,
SO THEY REVERSED THAT.
IS THAT NOT PROCEDURERAL
SITUATION HERE?
>> WELL, YOUR HONOR, I THINK
THAT THE CONFLICT EXISTS
BECAUSE YOU CAN NOT
RECONCILE THE DECISION IN
THIS CASE WITH SEVERAL
DECISIONS FROM BOTH THIS
COURT AND THE APPELLATE
COURT.
>> HAS THIS COURT OR ANY
OTHER APPELLATE COURT EVER
CONSIDERED THESE FACTS THIS
THE CONSIGNMENT AGREEMENT
THAT MAY HAVE MULTIPLE
FACTORS INVOLVED?
>>, NO NOT CONSIGNMENT
AGREEMENT BUT LEGALLY IN
DISTINGUISHABLE SITUATION.
>> THAT BECOME AS QUESTION
WHETHER THEY ARE LEGALLY
THAT IS WHAT YOU ARE SAYING
THEN?
>> YES.
>> THOSE ARE LEGALLY
INDISTINGUISH KBL TO THE
SAME FACT AND THAT A SERVICE
REPAIR BUSINESS IS THE SAME
THING AS CONSIGNMENT.
>> IS THAT YOUR POSITION?
>> YEAH, IT IS, YOUR HONOR.
>> LET ME ASK YOU.
I HAVE BEEN THROUGH THIS
RECORD.
I AM HAVING A HARD TIME
UNDERSTANDING WHAT THIS
QUOTE CONSIGNMENT WAS IN
THAT THERE APPARENTLY WAS NO
CONSIGNMENT AGREEMENT
WRITTEN AGREEMENT BETWEEN
APONTE AND MR. YOUNGBLOOD.
THE TIGHT TOLL THE VEHICLE
-- THE TIGHT TOLL THE
VEHICLE WAS NOT IN
MR. YOUNGBLOOD'S NAME AND
THE -- THERE ISN'T ANYTHING
ON THE RECORD WHICH REALLY
SETS OUT WHAT THE AGREEMENT
BETWEEN THE OWNER OF THE
VEHICLE OR IF YOU CONSIDER
HIM TO BENEFICIAL OWNER BY
REASON OF THE DIVORCE DECREE
AND HIS CAR DEALERSHIP SO I
AM HAVING A HARD TIME
UNDERSTANDING WHAT, WHAT THE
CONSIGNMENT WAS.
>> WELL, THINK, YOUR HONOR,
IT GREW OUT OF THE DIVORCE
SETTLEMENT, WHERE
ESSENTIALLY MR. YOUNGBLOOD
AGREED TO HANDLE THE SELLING
OF THE CAR WHICH HAD BEEN IN
HIS WIFE'S NAME.
I BELIEVE THAT WAS
MEMORIALIZED IN THE DIVORCE
DECREE, HE TOOK POSSESSION
OF THE CAR, WENT TO APONTE,
I THINK APONTE AND
MR. YOUNGBLOOD EXPLAINED
THAT THE DEAL WAS APONTE,
TURNED THE CAR OVER, AN
EXTREME AUTO WOULD SELL THE
CAR AND THEY WOULD GET
COMPENSATED FOR DOING THAT
SALE AND MR. YOUNGBLOOD SAID
THINK I WANT THE MONEY.
>> WELL, WOULD IT BE ANY
DIFFERENT THAN IF HE TOOK IT
OVER TO THE NEIGHBOR AND
SAID, I WANT TO THIEVE CAR
WITH YOU, IF YOU GET -- I
WANT TO LEAVE THIS CAR WITH
YOU, I HAVE TO HAVE $16,50
BECAUSE THAT IS THE LIEN ON
THE CAR, IF YOU GET
ANTICIPATE MORE, YOU GET, IT
IS ALL YOURS.
I MEAN, HOW WOULD THAT BE
DIFFERENT THAN WHAT HAPPENED
IN THE INSTANCE?
>> HI YOU THINK THE OF KEY
DIFFERENCE THERE, THE
DIFFERENCE BETWEEN A
PERSONAL RELATIONSHIP WHERE
A CAR LOT IS IN THE
COMMERCIAL BUSINESS OF
SELLING CARS.
THAT I REALLY GETS TO THE
ROOT OF THE REASON FOR THIS
EXCEPTION TO THE DANGEROUS
INSTRUMENTALITY DOCTRINE
WHEN THE CASTILLO COURT
LOOKED AT THE CASES FROM THE
'60s AN '70s THAT DEVELOPED
THIS LAW, THIS EXCEPTION, IT
LOOKED AT THE FACT, WHEN A
PERSON TAKES THE CAR AND
GIVES IT TO A FRIEND OR
GIVES IT TO A NEIGHBOR OR
SOMEBODY YOU KNOW, THAT
CREATES SUPERIOR MASTER
SERVANT RELATIONSHIP.
I AM GIVING THIS YOU HE CAR
TO DRIVE IT AROUND.
I AM RESPONDABLE FOR YOU
DOING IT.
IT IS DIFFERENT SITUATION
WHEN YOU ARE GOING TO A
SERVICE AGENCY, A BUSINESS,
IT DEALS WITH CARS, IT
DOESN'T DRIVE THEM AROUND,
BUT DOES SOMETHING ELSE WITH
THEM, SUCH AS LIENS THEM,
FIXES THEM, VALLET PARKS
THEM, UM.
>> WOULDN'T THAT EXCEPTION
INTENDED TO COVER A
SITUATION IN WHICH A PERSON
TAKES THEIR CAR TO A DEALER
AND IN THE BEGINNING, AND
THE CAR, AND THE CAR REPAIR
OPERATION HAS TO HAVE THE
CAR TO FIX IT AND THEN
TEST-DRIVE IT TO MAKE SURE
IT IS FIXED AND THEN THERE
IS AN ACCIDENT IN THE
TEST-DRIVE.
I MEAN, THAT IS THE TYPE OF
SITUATION HERE.
NOT A SITUATION IN WHICH YOU
JUST TURN YOUR VEHICLE OVER
TO SOMEBODY AND THEY TAKE IT
AND IN THE RECORD,
APPARENTLY, THIS GUY WAS
TAKING THESE CARS HOME ON A
REGULAR BASIS, USING THEM
PERSONALLY, THERE WAS NOT
ANY TYPE OF AGREEMENT THAT
WOULD KEEP HIM FROM DOING
THAT.
>> THAT IS CORRECT, YOUR
HONOR.
THAT HE IS PRECISELY WHY
THIS SITUATION FALLS DEAD
CENTER IN THE CASTILLO RULE,
BECAUSE WHEN YOU LOOK AT THE
TYPE OF SERVICE THIS
INVOLVED.
IT IS REALLY NO DIFFERENT
FROM ANY OTHER SERVICE.
WHEN A CONSIGNMENT LOT TAKE
AS CAR.
IT STORES IT.
IT ADVERTISES IT.
I DISPLAYS OUT IN THE LOT.
I MOVES IT AROUND.
MOST IMPORTANTLY, FOR YOUR
EXAMPLE, TEST-DRIVES IT.
NOT ONLY ARE THEIR
TEST-DRIVES WITH THE PEOPLE,
THE MECHANICS, THE PERSONNEL
THERE, THEY ARE SUPERVISING
TEST-DRIVES FROM PEOPLE IN
THE PUBLIC, SO THAT IS ALL
THE MORE LACK OF CONTROL AND
TRUST THAT IS PUT IN THE
COMMERCIAL BUSINESS THAT HAS
SOLE CONTROL, ABILITY TO
CONTROL THAT CAR, MOREOVER
ON THE MICHALEK DIVISION, IN
THE CLEANING CASE, IT
DOESN'T MATTER, THE TYPE OF
SERVICE DOESN'T CHANGE THE
OWNER'S DILEMMA, THE OWN
IN'S DY LIMB MACE, YOU ARE
RAESING THIS CAR TO
COMMERCIAL ENTITY, YOU DON'T
KNOW THESE PEOPLE, THEY ARE
GOING TO CONTROL IT.
THEY ARE GOING TO MAKE ALL
DECISIONS.
>> HAVE WE EVER
DISTINGUISHED, WHEN YOU SAY
COMMERCIAL ENTITY, BASE KNOW
WHEN OF THE REASONS FOR THE
EXCEPTION IS STATED AS
INJURED PERSON CAN LOOK TO
THE BUSINESS WHICH IS
FREQUENTLY BETTER ABLE TO
USE CARE AND INSURE AGAINST
THE FINANCIAL RISK OF
INJURY, I WAS THINKING OF
THAT WITH REFERENCE TO THE
CLEANING SERVICE OR THE
CLEANING A CAR, I MEAN,
THERE ARE LOTS OF JUST
SINGLE INDIVIDUALS THAT DO
CLEANING OF CARS AND THEY
TAKE IT SOMEPLACE ELSE, SO
HAVE WE ACTUALLY REQUIRED
FOR THE EXCEPTION TO APPLY
WHETHER IT IS THE -- YOU ARE
HAVING YOUR MAYBEOR REPAIR A
VEHICLE, OR YOU ARE HAVING
YOUR NEIGHBOR, WHERE YOU
CONSIGN IT, THAT IT A
BUSINESS ENTITY, THAT I BE
INCORPORATED ENTITY TO HAVE
THAT PROTECTION OR THAT -- I
AM THINKING OF THIS FOR NOT
JUST THIS SITUATION, BUT
OTHER SITUATIONS.
HAVE WE MADE THAT
DISTINCTION IN ANY CASE?
>> NOT EXPLICITLY, YOUR
HONOR.
THE STATEMENT HAS BEEN MADE
BY THE MICHALEK CASE, THE
TYPE OF SERVICE IS NOT
RELEVANT.
THERE WAS NEVER A MENTION OF
SOMEONE IN THE BUSINESS AS
OPPOSED TO --
>> BUT YOU AGREE THAT IS ONE
MUCH OF THE FOUR STATED
REASONS FOR ALLOWING THIS
EXCEPTION PUBLIC POLICY
EXCEPTION THAT IDEA THAT YOU
ARE, AGAIN, YOU ARE GIVING
OVER YOUR VEHICLE TO
SOMEBODY THAT IS IN A
BUSINESS AND THEN THEY ARE
MAKING THESE DECISIONS,
WHEREAS, THERE COULD BE,
WHETHER IT IS CONSIGNMENT OR
THE PAIR OR CLEANING YOUR
CAR, THERE COULD BE ALL
SORTS OF SITUATIONS WHERE WE
ARE DEALING WITH A SINGLE
PERSON THAT IS DHAING.
WE DON'T SEE! SEEM TO MAKE
THAT DISTINCTION.
>> AND I THINK --
>> THAT IS CORRECT?
WE HAVE NOT?
>> THE COURT HAS NOT.
>> IT WOULDN'T MATTER TO YOU
THEN, WHEN YOU SAY THIS IS A
REAL BUSINESS THAT WE HAVE,
THAT THIS GENTLEMEN TURNED
HIS VEHICLE OVER, IF,
INSTEAD, IT DOESN'T MATTER
ORP THE PURPOSES OF OUR
CASE, WHETHER HE TURNED IT
OVER TO HIS NEIGHBOR, IS IT
TO DO THE SAME THING?
>> WELL, I THINK, THERE MAY
BE A DIFFERENCE BETWEEN A
COMMERCIAL SITUATION AND
SOMEBODY DOING A FAVOR?
IT IS A TRANSACTION.
BECAUSE I THINK ONE OF THE
ASPECTS, AND IT IS NOT
EXPLICIT IN THE CASE LAW,
BUT IT IS CHARACTERISTIC
THAT MAKES IT COHERENT, A
BRIGHTLINE RULE IS THAT THE
DIFFERENCE BETWEEN GIVING
YOUR CAR FOR A FRIEND TO
DRIVE AROUND, TAKING IT TO A
SERVICE AGENCY IS THAT
TYPICALLY, YOU DON'T HAVE
THE ABILITY TO EVALUATE THAT
PERSON'S RESPONSIBILITY AND
THINGS LIKE THAT, IF IT IS
ARMS LENGTH TRANSACTION, THE
PUBLIC POLICY, THE PRACT A
CALL ASPECTS OF THE CASE ARE
STRONGER IN THATCATION.
>> BUT AGAIN, MY POINT IS
THAT I COULD HAVE MY VEHICLE
CLEANED BY, YOU KNOW, THE
DEALERSHIP, THE JEEP
DEALERSHIP, OR I CAN GIVE MY
VEHICLE TO, YOU KNOW, SOME
INDIVIDUAL THAT MAY JUST
SAY, I AM DOING THIS, EITHER
WAY, UNDER OUR CASE LAW, IT
WOULD, THAT EXCEPTION WOULD
APPLY, CORRECT?
>> YES, BECAUSE IT IS THE
PURPOSE OF TURNING OVER THE
CAR THAT REALLY MATTERS.
IS IT FOR TO DRIVE IT AROUND
AND OPERATE IT?
IF WOULD YOU LOAN A CAR TO
TRANSPORTATION, OR IS IT
SOMETHING ELSE?
>> WHY SHOULDN'T WE, I MEAN,
WE ARE FOLLOWING UP ON WHAT
JUSTICE LEWIS SAID, THAT
THIS IS THE LITTLE, YOU
KNOW, THERE IS A DISTINCTION
HERE BETWEEN TAKING YOUR CAR
TO A REPAIR TO GET IT
REPAIRED SO THAT THEY CAN
FIX DO, THE FRONT-END
ALIGNMENT, THEN, THEY WILL
TAKE IT OUT AND TEST IT.
IN AN INSTANCE IN WHICH YOU
ARE GOING TO GIVE YOUR CAR
TO A DEALER AND THEY ARE
GOING TO TRY SELL IT FOR YOU
AND IN AN INSTANCE, IF THERE
IS GOING -- IF THE EXCEPTION
IS GOING TO EXTEND TO THAT
TYPE OF AN ARRANGEMENT, WHY
SHOULDN'T WE REQUIRE THAT IT
BE IN WRITING, SO THAT
EVERYONE UNDERSTAND WHAT THE
EXTENT OF TURNING THE
VEHICLE OVER TO THE
DEALERSHIP BE?
I MEAN, THERE WAS WRITING IN
THIS INSTANCE THAT JUST
WASN'T SIGNED BY YOUR
CLIENT, RIGHT?
>> WELL, YOUR HONOR, I THINK
THAT THE IMPORTANT
CHARACTERISTIC OF THE
TRANSACTION IS WHATEVER
EVERYONE KNOWS IS ENTAILED
IN SELLING A CAR AS OPPOSED
TO FIXING A CAR.
TYPICALLY, WITHIN YOU TAKE
YOUR CAR TO MA CAN ING,
THERE IS NO BUSINESS
CONTRACT THAT TALKS ABOUT
TEST-DRIVING AND THINGS LIKE
THAT.
I WOULD SAY THAT 99%.
>> WHEN THEY SELL YOUR CAR,
THERE GENERAL LIS?
>> THERE IS, BUT IT DOESN'T,
IT DOESN'T CHANGE THE
CHARACTER OF WHAT EXTREME
AUTO IS DOING.
TEST-DRIVING IS AN INTERGRAL
PART OF SELLING A CAR JUST
LIKE TEST-DRIVING IS AN
INTERGAL PART OF REPAIRING A
CAR.
IF YOU LOOK AT THE WAY THIS
RULE IS DEVELOPED, THERE IS
REALLY NO REASON TO
DISTINGUISH A CAR LOT FROM A
REPAIR SHOP.
>> WELL, SURE IS THERE.
THEY DO TWO DIFFERENT
THINGS.
IT IS NOT AT ALL THE SAME
THING.
ONE IS REPAIRS.
YOU ARE GOING TO KEEP THE
VEHICLE.
VUL THE CONTROL OVER IT.
THE OTHER ONE IS, YOU HAVE
GIVEN UP CONTROL?
IF YOU HAVEN'T ESTABLISHED
THAT, IT SEEMS TO ME, YOUR
BETTER ARGUMENT THAT IS THE
REAL AND TRUE BENTION
OWNERSHIP HAS PASSED, HE NO
LONGER MAINTAINS OWNERSHIP,
THAT IT IS PASSED, IT IS
ENTITLE ONLY, BUT THAT TO
TRY TO MAKE THIS DISTINGUISH
THAT THE SALE OF THE VEHICLE
IS THE SAME AS SERVICING, I
DON'T SEE WHERE THAT COMES
FROM.
WELL, AS A MATTER OF FACT,
IN THIS RECORD, THERE IS NO
DISPUTE THAT MR. YOUNGBLOOD
TURNED THE CAR OVER ON
DECEMBER 4th AND IT HAD
NOTHING TO DO --
>> HAS NO LEGAL RECOURSE TO
HAVE THAT RETURNED?
IT WAS NEVER SOLD?
HE NEVER GETS IT BACK?
>> NO, HE COULD GET IT BACK.
>> THAT IS ISTINCTION, THAT
IS THE PROBLEM HERE.
IF HE HAD ASSIGNED IT TO
THEM, HE WOULD NO LONGER
HAVE THE BENEFICIAL
OWNERSHIP.
THEY DIDN'T DO THAT IN THE
CASE AS IT SEEMS TO ME, DID
THEY DO THAT?
>> BUT YOU ALSO HAVE THE
RIGHT TO GET YOUR CAR BACK
WHEN IT IS DONE BEING FIXED
AS WELL.
TURN OVER CONTROL OF THAT
CAR FOR THE PURPOSE OF THE
SERVICE BEING PERFORMED
WHICH IS DISPLAYING,
ADVERTIZING, SELLING,
TEST-DRIVING IT.
IF, FOR EXAMPLE, AFTER
PERIOD OF TIME, YOU WENT
BACK, CALLED UP AND SAID,
YOU KNOW WHAT?
IT IS TAKING TOO LONG, I
WANT THE CAR BACK, THEN, I
THINK, HIS VICARIOUS
LIABILITY REAWAKENS THAT
POINT, BUT WHILE IN THE
RECORD IS ABSOLUTELY CLEAR,
HE HAS RELINQUISHED ALL
CONTROL, LEFT THE CONSIDER
ON THE LOT, THAT IS NO
DIFFERENT THAN LEAVING IT TO
BE FIXED, THEN GETTING IT
BACK LATER.
>> HAVE WE HAD THIS REAWAKENING
CONCEPT APPLIED?
>> ACTUALLY, YOUR HONOR,
THERE HAS BEEN.
>> WHICH ONE WAS THAT?
>> I BELIEVE, IN THE LIBO
CASE, THEY TALK ABOUT THE
GOING AND COMING RULE, SO
THE RULE THAT ESTABLISHED
WHEN THE CAR IS EVENTUALLY
TAKEN TO THE BUSINESS AND
LEFT WITH THE BUSINESS, THAT
IS VICARIOUS LIABILITY STOP
ON THE WAY TO THE BUSINESS,
AS IN THE MICHALEK CASE, ON
THE LOPEZ CASE, THAT IS PART
OF THE GOING AND COMING, YOU
ARE RESPONSIBLE IN THE OTHER
CASE, YOU ARE DONE, THE CAR
WAS BEING RETURNED TO THE
OWNER AND THERE WAS AN
ACCIDENT AND THERE WAS
LIABILITY THERE.
SO THERE IS EVENTUALLY BEEN
THIS GOING AND COMING RULE,
BUT WHEN ARE IN THAT COCOON
OF NO CONTROL, NO NEGLIGENCE,
COMPLETE CONTROL BY THE
ENTITY, BY THE SERVICE
ENTITY, THAT IS WHEN THIS
EXCEPTION KICKS CAN IN.
>> IS IT PART OF THE
UNDERLYING POLICY BEHIND THE
SHOP EXCEPTION, I THINK,
THERE WERE SEVERAL REASONS
FOR THE EXCEPTION, IS THEIR
ONE OF THE REASONS THAT THE
PERSON TO WHOM THE CAR IS
ENTRUSTED AS HAS FINANCIAL
RESPONSIBILITY OF ITS OWN,
SO THERE IS SOME KIND OF
INSURANCE THAT WILL BE, THAT
WILL APPLY, SO WHOEVER IS
INJURED BY THIS CAR IS GOING
TO BE ABLE TO RECOVER
DAMAGES FROM SOMEBODY, IT
MAY NOT BE THE OWNER OF THE
CAR, BUT PIT IS SOMEBODY TO
WHOM THE CAR WAS ENTRUSTED,
THAT IS PART OF IT?
>> YOU ARE RIGHT, DOWNHOR,
IN THE CASE, THERE WERE
DEFENDANT, THE APONTE
PERSONALLY AND THE CAR
DEALERSHIP WERE BOTH
DEFENDANT, AND THEY SETTLED
OUT.
>> SO THAT IS PART OF THE,
SHOULD IT BE PART OF
REQUIREMENT THEN, IF THERE
IS GOING TO BE AN ABC LOSING
OF THE OWNER OF THE CAR WHEN
THE OWNER ENTRUSTS THAT I
THE OWNER ASCERTAINED THAT
THE ENTITY AND TRUSTED WILT
DOES HAVE INSURANCE THAT
WOULD RECOVER COVER ON THE
EVENTUALITY OF AN ACCIDENT?
I HAVE NOT SEEN THAT, THAT
POLICY ANNUNCIATED IN ANY OF
THE CASE LAW.
>> THE REQUIREMENT SEEMS TO
BE CON YOU CYST TENT WITH
THE POLICY BEHIND THE
EXCEPTION.
>> I THINK THE PRESUMPTION
IN THESE CASES, THEY DON'T
TALK ABOUT THEM HAVING
COVERAGE.
THEY SAY THEY HAVE FINANCIAL
RESPONSIBILITY FOR IT.
I THINK THERE IS PRESUMPTION
THAT COMMERCIAL ENTERPRISE
WILL HIM V.
>> THAT IS WHY I ASKED YOU.
RRL, JUSTICE CANTERO, THAT
IS THE EXPLICIT
UNDERSTANDING BECAUSE WE
SAID IN MICHALEK, CAR
CLEANING SERVICE, I AM NOT
SAYING ANYTHING ABOUT NASCAR
CLEANING SERVICE, BUT NOT
BELIEVING THAT IS, YOU THE,
A MAJOR COMMERCIAL ENTITY,
YOU KNOW, THROUGHOUT THE
COUNTRY.
IT SEEMS THAT THAT WOULD BE
A GOOD SOMETHING TO WRITE IN
FOR ALL OF THESE, IF WE'RE
GOING TO DO ANY EXCEPTIONS,
THAT THERE BE SOME
UNDERSTANDING, THAT THIS IS
RESPONSIBLE COMMERCIAL
ENTITY.
>> YEAH THAT I THINK IS A
RANABLE CONDITION TO PUT ON
USE.
>> LET'S GO INTO THAT THEN.
GARAGE OPERATION COVERAGES
DON'T COVER CARS LEFT TO BE
SOLD, DO THEY THEY COVER
CARS THAT ARE OWNED BY
DEALERSHIPS.
I HAVE NEVER SEEN ONE THAT
KOOFERS SOMEBODY ELSE'S
VEHICLE.
>> BUT THERE SPECIFIC
COVERAGE FOR CONSIGNMENT
LOTS AS WELL, YOUR HONOR.
IT IS DIFFERENT.
>> IN THIS INSTANCE, WHAT
THIS CAR DEALER DID WAS THAT
HE HAD A CONSIGNMENT
AGREEMENT IN WHICH HE SAID
THAT THE DEALER WILL NOT BE
LIABILITY FOR SUCH VEHICLE
WHILE EXTREME AUTO SALES AN
OWNER MUST KEEP FULL
INSURANCE COVERAGE ON THE
VEHICLE.
I MEAN, THAT WAS THEIR
SCHEME, RIGHT?
>> YES, THAT IS CONTRACTUAL
OBLIGATION BETWEEN THE TWO.
>> OKAY.
>> IT DOESN'T EFFECT THE
COMMON LAW RESPONSIBILITY.
>> THAT GOES AGAINST WHAT
YOU ARE SAYING.
THAT IS WHAT WE WERE TALKING
ABOUT.
THAT IS THE FACT OF LIFE IN
THESE KINDS OF SITUATIONS,
YOU ARE DEALING INFANCY LAND
TO SAY ALL OF THESE GARAGE
COMPANY, THE USED CAR LOTS
HAVE LIABILITY COVERAGE IN
ALL OF THE VEHICLES.
THAT IS PART OF THIS RECORD?
>> OH, NO, NO, I DON'T THAT
IS TRUE AT ALL, YOUR HONOR.
>> THIS WHOLE THING IS TO
DETERMINE IF THERE IS
FINANCIAL RESPONSEK, THAT
RESTS WITH THE OWNER OF THE
VEHICLE.
BUT NONE OF THE CASE LAW FOR
THIS POINT HAS CONDITIONED
THE APPLICATION OF THIS
EXCEPTION ON THE ASSISTANCE
OF COVERAGE.
>> WELL, YOU ARE ARGUING,
THAT IS THE FINANCIAL
RESPONSIBILITY, DID I
MISUNDERSTAND YOU?
EYE THOUGHT WERE YOU
ANSWERING THE QUESTIONS BY
SAYING YES THE FINANCIAL
RESPONSIBILITY IS THE PART
OF THE EXCEPTION.
NOW YOU ARE SAYING IT IS
NOT?
>> NO.
DLAFS RENS BETWEEN HAVING
INSURANCE ON TOP OF IT.
>> FLORIDA ALWAYS LOOKED TO
FINANCIAL RESPONSIBILITY IN
THE TERMS FOR AUTOMOBILE
DAMAGE, ON ROADWAYS AS
HAVING INSURANCE.
I MEAN THAT IS THE WHOLE
IDEA, THE FINANCIAL
RESPONSIBILITY LAWS ALL
CENTERED ON INSURANCE OR
POSTING A BOND.
>> I UNDERSTAND THAT, BUT
LOOK AT IT THIS WAY --
DINNER EVERY AP MR. CATION
OF THIS, OF THIS EPTION
EXCEPTION, YOU HAVE OWNER
WHO RELEAVE AS CAR ON THE
REPAIR LOT.
YOU DON'T COME AFTER THE
INSURANCE, YOU DON'T COME
AFTER THE OWNER BECAUSE
THERE IS INSURANCE THERE.
THE TARGET OF LIABILITY AND
FAULT IS NOT DETERMINED BY
THE EXISTENCE OF INSURANCE
IN THE CONTEXT OF THIS CASE
LAW.
>> WE ARE USING UP YOUR TIME
VERY RAPIDLY WITH QUESTIONS,
WE'LL LEAVE IT TO YOU.
I UNDERSTAND THAT, I WANTED
TO MAKE ONE POINT ABOUT WHY
THE CONSIGNMENT SHOP FALLS
IN THE SAME CAT GR RIFF
REPAIR.
JUDGE PARTICIPATED IN A
VALLET CASE, IN FACT, WHEN
THEY TALKED ABOUT EXAMPLE OF
TURNING CARS OVER TO
BUSINESSES WHERE THERE WOULD
NOT BE LIABILITY, ONE OF THE
THINGS IS A CAR DEALERSHIP
WAS ACTUALLY MENTIONED.
THIS CASE WAS CITED IN THE
CASTILLO DECISION, THEN THE
BEST EXAMPLE WAS THE FRAUGHT
CASE WHERE THE CAR WAS
BROUGHT, THE AUCTION, SIGNED
OVER, THE AUCTION NEAR TAKES
IT, HITS SOMEBODY, THAT IS A
SALE, IT IS
INDISTINGUISHABLE TO THIS
CASE.
THAT IS WHERE THE CONFLICT
IS.
>> YOU RELIED ALOUT ON THE
MY MICHALEK CASE FOR THE
PROPOSITION THAT ANY KIND OF
SERVICE WOULD BE INCLUDE ON
THE EXCEPTION, CORRECT?
BUT IN THAT CASE, THEY ALSO
TALKED IN TERMS OF THAT THIS
SERVICE EXCEPTION ONLY
APPLIES IF THE VEHICLE, THE
NEGLIGENT USE OF THE VEHICLE
IS DOING THE SERVICE OR THE
SERVICE-RELATED ACTIVITY.
>> AND SO, WHY UNDER THE
CIRCUMSTANCES OF THIS CASE
IS IT NOT APPLY BECAUSE AS I
UNDERSTAND, YOUR CLIENT WAS
NOT, NOT YOUR CLIENT, BUT
THE DRIVER OF THE VEHICLE
WAS NOT USING THE CAR FOR
SERVICE OR SERVICE-RELATED
ACTIVITIES AND HE HAD TAKEN
THE CAR OFF ON THE LOT.
SO SINCE IT WAS NOT BEG USED
FOR THAT SERVICE, YOU SAY IT
WAS BEING, THAT IT WAS
THERE, WITH WHY DOES THIS
EXCEPTION NOT APPLY?
>> YOUR HONOR, THINK THINK
HE RECORD IS CLEAR, EVEN
OPPOSING COUNSEL WOULD
AGREE, THE REASON HE HAD THE
CAR IN THE FIRST PLACE, HE
SAID HE REMOVED CAR, PART OF
THE DUTY OF TAKING THIS CAR
TO SELL IT IS TO SECURE IT.
HE HAD VANDALISM ON THE LOT.
HE REGULARLY WOULD TAKE THE
HIGHER-END CARS OFF THE LOT
AT NIGHT, SO THE REASON HE
HAD THE CAR IN THE FIRST
PLACE IS THAT HE REMOVED IT
FROM THE LOT.
>> SO YOU THAT I FALLS INTO
THE CATEGORY OF SERVICE OR
SERVICE-RELATED ACTIVITY?
>> YES, IN FACT, YOU KNOW,
THAT HAPPENED IN THE ROBERTS
CASE.
THE ROBERTS CASE WAS THE ONE
WHERE THE REPAIRMAN TOOK THE
JEEP, WENT TO THE BEACH IN
IT.
HE HAD, THERE WAS ACTUALLY A
QUESTION AS TO WHETHER OR
NOT HE WAS TEST-DRIVING IT
AT THE TIME BUT THAT FELL
WITHIN THE EXCEPTION OF
WELL.
YOU LOOK WITHIN THE PUBLIC
POLICY REASON, THE FACT THAT
MR. APONTE WAS USING IT FOR
SOMETHING THAT WAS TEN USE,
MAYBE HE HAD IT OFF THE LOT
FOR SECURITY PURPOSES, BUT
IT WAS ALSO USING FOR
SOMETHING THAT COULD HAVE
NEVER BEEN ANTICIPATED BY
MR. YOUNGBLOOD.
THAT IS LESS REASON TO PIN
MR. YOUNG BOOD.
>> THE REASON FOR VIE
VICARIOUS LIABILITY.
YOU HAVE CREATED A RISK BY
PLACING THE VEHICLE THERE SO
IT CAN BE USED IN THAT WAY,
IF HE NEVER TAKEN THAT I
WAY, IT WITH NOT HAVE BEEN
USED THAT WAY.
>> BUT FOT FOR THAT PURPOSE.
>> THANK YOU, YOURON HONOR.
THANK YOU YOU.
>> OKAY.
>> GOOD MORNING.
MY NAME IS KEN DANDAR, THIS
IS MY THIRD TIME BEFORE THE
COURT HERE IN 28 YEARS OF
PRACTICE.
>> THAT MEANS YOU ARE FAIR
GAME.
>> I AM FAIR GAME.
>> DID YOU HAVE FUN THE
OTHER?
>> VERY GOOD RESULTS.
IT WAS MEDICAL MALPRACTICE
CASE.
>> HOW LONG RECORDS ARE
OBTAINED?
>> I AM SURPRISED.
I AM SURPRISED.
I AM SURPRISED MICROFISH IS
THE BEST WAY BECAUSE CD CAN
BE OVER AGE, THEY WILL
DESTROY THEMSELVES.
>> THAT IS WHAT WE'RE TOLD.
>> ANYWAY, LET ME ASK YOU A
QUESTION ON THIS.
DO YOU AGREE WITH THE LOWER
COURT HERE THAT THE POLICY
REASONS BEE HOND THE SHOP
EXCEPTION LIE?
>> NO.
NOT AT ALL.
IN FACT, I WILL BE SO BOLD
AND JUSTICE PARIENTE MAYBE
EVEN BOLD WE'RE HER COMMENT,
I THOUGHT ABOUT THIS LAST
NIGHT AS I WAS READING AND
GETTING PREPARED.
THIS IS THE CASE WHERE THE
COURT CAN LOOK AT THE
DANGEROUS INSTRUMENTALITY
LAW AND ABOLISH THE
EXCEPTIONS OF SHOP RULE.
IT MAKES NO SENSE.
YOU KNOW, IN 1920 IN THE
SOUTHERN COMFORT CASE.
YOU DON'T NEED TO ABOLISH TO
WIN, DO YOU WANT TO GO THAT
FAR?
>> WELL, I AM JUST SAYING, I
AGREE WHOLEHEARTEDLY WITH
THE 2nd DISTRICT IN, THEY
WERE ON POINT, BUT WHEN LOOK
AT THE CASES -- DID
>> IF I TAKE MY CAR DOWN TO
PONTIAC, GIVE IT TO THESE,
ASK THEM TO ALUNE THE TIRES
ON IT, AND TO CHECK IT OUT,
MAKE SURE THAT IT IS NOT,
THAT THE ALIGNMENT IS
CORRECT, AND THEY DRIVE IT
ON THEIR LOT DOWN THERE AND
THEY HIT SOMEBODY THAT THEY
ARE SHOWING A VEHICLE TO
THAT I AM STILL PRIMARY
RESPONSIBLE FOR THAT?
IS THAT THE RULE YOU WANT TO
COME OUT?
>> I WANT THE RULE I WANT
THE COURT TO ADOPT.
>> OKAY.
>> HERE IS WHY.
>> I UNDERSTAND YOUR
POSITION.
>> HERE IS WHY.
IN THE CASE, MR. YOUNGBLOOD,
TRIAL LAWYER FROM TAMPA,
PRACTITION AS LONG AS I
HAVE, HE TAKES HIS LEXUS, HE
IS NOW THE BENEFICIAL OWNER
OF, WHICH I WANT THE COURT
TO SAY, --
>> PAID $175,000?
ARE THEY PAID -- HAD HE PAID
THE $175,000 THAT THE
DIVORCE DECREE RIRED
REQUIRED SAID THAT THIS WAS
THE WIFE WAS TO TRANSFER THE
OWNERSHIP IN 30 DAYS
FOLLOWING THE PAYMENT OF
$175,000, WAS THEIR RECORD
ESTABLISHED THAT THE WAS
PAID?
I HAVE NO IDEA.
SHE GOT ANOTHER CAR ON THE
SAME INSURANCE POLICY.
HE KNEW THIS.
THE CAR SAT AT HIS HOUSE.
HE TOOK OVER.
>> DID HE TRANSFER THE
TITLE?
>> NO, THEY NEVER DID THAT.
WHY, I DON'T KNOW.
>> RIGHT.
>> HE WAS THE BENEFICIAL
OWNER BECAUSE HE WAS LIABLE
SOLELY ON THE NOTE, HE TOOK
IT TO THE UNDER CITIES OF
TAMPA TO A USED CAR LOT,
FISHER AUTOS FIRST, NEXT
DOOR WAS THIS EXTREME AUTO,
HIS DEPOSITION ON THE RECORD
SAYS THE FISHER AUTO HAD NO
SPACE FOR IT.
>> AS I UNDERSTAND IT, THE
TRIAL COURT FOUND THERE WERE
GENUINE ISSUES OF FACT OF
OWNERSHIP.
WE HERE ARE ASSUMING OWNER
SHIP, BUT THAT IS STILL --
>> THE 2nd DISTRICT SAID THE
SAME THING.
>> ALL RIGHT.
I UNDERSTAND YOU ARE
ANSWERING THOSE QUESTIONS.
WE GOT TO ASSUME FOR THE
PURPOSES HE IS THE OWNER.
MY QUESTION TO YOU AS IF AS
WHY, AGAIN, ON ONE HAND, I
WAS LOOKING AT THAT LAST OF
THE POLICY REASON, BUT IF
YOU LOOK AT THE OTHER POLICY
REASONS, WHETHER IT IS, YOU
ARE SENDING SOMETHING TO
HAVE YOUR CAR CLEANED, OKAY,
WE HAVE APPLIED IT OR SAID
WE'RE APPLYING IT THERE, I
CAN'T IMAGINE HOW IN A CAR
CLEANING, WE WOULD THINK
THAT PART OF IT, THEY ARE
GOING TO TEST-DRIVE OUR
VEHICLE.
WE DON'T CARE, SEEM TO CARE
FOR THE EXCEPTION AS TO
WHETHER THEY GOT FINANCIAL
RESPONSIBILITY OR NOT.
AND I AM HAVING A HARD TIME
DISTINGUISHING AND SAYING
WHY THE SAME POLICY REASON
THAT APPLY BEYOND BECAUSE I
THINK THAT THIS SENDING IT
TO AUTOMOBILE SERVICE PLACE
TO ALAIN YOUR FRONT END IS
DISCREET SERVICE THAT IS
UNIQUE.
WE HAVE APPLIED IT.
IT HAS BEEN APPLIED BEYOND
TO A WHOLE HOST OF THINGS
LIKE CAR CLEANING AS AN
EXAMPLE.
WHY ISN'T THE FACT THAT WHEN
YOU HAVE, YOU KNOW, AFTER
YOU HAVE GIVEN OVER
OWNERSHIP, I MEAN, CONTROL,
AND UNDERSTOOD WITHIN THAT
IS THAT DRIVING OF THE
VEHICLE MAY BE INCLUDED.
THAT YOU HAVE NO MORE
CONTROL OVER OR AUTHORITY
JUST LIKE, YOU KNOW, WHY
ISN'T THE SAME POLICY
REASONS APPLICABLE HERE
BECAUSE WE NEVER SAID THAT
PART TO IT THAT THERE HAS
GOT TO BE A REQUIREMENT THAT
THEY NEED TO TEST-DRIVE IT
IN ORDER TO DO THE SERVICE,
WE SEEM TO PUT IT ALTOGETHER.
>> BUT JUST LOOK AT
CASTILLO, THAT IS WHEN YOU
FIRST ANNOUNCED IN 1970,
THAT THE, THAT THE REPAIR
PERSON IS GOING TO BE
EXCEPTION TO THE RULE.
THE 1920 CASE SAID THE OWNER
HAS -- I WILL THROW OUT ALL
CASES BY THE COURT, THE
OWNER IN THE BEST POSITION
TO INSURE FINANCIAL
RESPONSEK, THE OWNER HAS A
DUTY, THE OWNER IS STRICTLY
LIABLE FOR THE OPERATION OF
THE VEHICLE TO WHOM HE
ENTRUSTS IT TO EXCEPT WHEN
YOU GET TO REPAIR SHOP, SO
IF YOU TAKE IT TO JOE BLOW'S
BRAKE SERVICE WHO WORKS OUT
OF A STORAGE PLACE, HE IS ON
THE BUSINESS OF FIXING YOUR
BRAKES, YOU, THERE IS NO
INSUREABILITY THERE, YOU
WALK AWAY FROM IT, HE IS
JUST WEEKEND MECHANIC, HE
TRIES TO FIX YOUR BRAKE.
I DOUBT THIS COURT IN THE
CASE IS GOING ELIMINATE SHOP
EXCEPTION.
I THINK WHAT I AM ASKING
YOU, ASSUMING IT EXIST,
ASSUMING YOU ITS PERIMETER,
WHY AREN'T THE SAME EXACT
POLICY REASONS APPLICABLE?
>> OKAY.
SORRY.
THIS IS A CONSIGNMENT OF A
CAR.
EVERYBODY IS GOING TO MAKE
MONEY.
THIS IS NOT A REPAIR AND
SERVICE.
THIS COURT HAS ALWAYS SAID
IT IS REPAIR AND SERVICE.
>> I GUESS ONE OF THE
REASONS FOR THE SHOP
EXCEPTION IS THAT ONCE THAT
OWNER TURNS OVER THE CAR,
THAT OWNER HAS NO CONTROL
OVER WHO DRIVES THE CAR.
THEY CAN ASSIGN IT TO LITTLE
TEDDY WHO IS 16-YEAR-OLD, GO
TEST-DRIVE THIS CAR FOR US,
AND LITTLE TEDDY GETS IN AN
ACCIDENT, HE DOESN'T EVEN
HAVE A LICENSE.
AND THE OWNERS INTO CONTROL,
AS SOON AS HE GIVES THAT
YOU, HE DOESN'T KNOW WHO IS
GOING TO BE DRIVING, WHO IS
GOING TO BE FIXING IT.
WHY ISN'T THAT THE SAME CASE
WITH REGARD TO CONSIGNING IT
TO SELL THE VEHICLE?
>> BECAUSE THIS COURT HAS
SAID THAT ENDOWMENT
SITUATIONS, IN THE CASE
WHICH I CITE FROM THIS COURT
2000 SAYS IF IT IS BELLMENT
SITUATION, THE OWNER REMAINS
LIABILITY, NO MATTER WHO IS
DRIVING THE CAR.
AND TO BE CONSISTENT, THIS
IS A SITUATION, THE OWNER
MUST REMAIN LIABILITY.
I AM PERSONALLY DISAGREEING
WITH YOUR SHOP RULE
EXCEPTION.
I DON'T THINK IT MAKES ANY
SENSE BECAUSE --
>> WHAT IS THE MAJORITY RULE
ON THAT?
>> PARDON ME.
>> WE ADOPTED BASICALLY THE
RATIONAL CASTILLO AND HEARD
FROM THE CASE FROM THE FIRST
DCA, THEY RELIED ON THE
MAJORITY RULE.
WHAT IS THE MAJORITY RULE IN
THE JURISDICTION OUTSIDE OF
THE STATE OF FLORIDA, US
WHAT THE MAJORITY RULE?
>> RIGHT.
OUTSIDE OF THE STATE OF
FLORIDA, THIS DOESN'T EXIST.
THE OWNER, THE OWNER IS
LIABILITY FOR THE OPERATION
OF THE CAR UNTIL HE LETS
SOMEONE ELSE DRIVE IT.
A WE ARE UNIQUE IN FLORIDA
IN HAVING THE DANGEROUS
INSTRUMENTALITY DOCTRINE AT
ALL.
>> IT IS A GREAT DOCTRINE.
IT MAKES SENSE.
IT IS A KILLING MACHINE.
NO, YOU ARE PUTTING A
KILLING MACHINE OUT THERE
THAT CAN KILL ANYBODY.
>> FOR A LONG TIME HAD THIS
SHOP DOWN THUN THE 4th
DISTRICT, THERE IS THE CASE
ON THE VALLET PARKING AND
VALLET PARKING AND IT SEEMS
TO ME, THAT MAKES SOME SENSE
THAT YOU TAKE YOUR CAR IN TO
A RESTAURANT AND TURN IT
OVER TO THE VALLEY PARKER
AND THEY HIT SOMEBODY, AS
THEY ARE PARKING YOUR CAR
THAT THIS CONTRACTOR OUGHT
TO HAVE PRIMARY
RESPONSIBILITY.
>> ANOTHER CASE UNDER THE
5th ON THE AUCTION.
>> THAT IS RIGHT.
>> WE HAVE WELL-ESTABLISHED
LAW.
IF YOU ARE ASKING THIS COURT
TO THROW THAT OUT THE
WINDOW.
>>
>> I AM ASKING THE COURT TO
LOOK AT THE RATIONAL
ORIGINALLY ON THE DANGEROUS
INSTRUMENTALITY DOCTRINE AND
WHEN YOU START MAKING
EXCEPTIONS TO IT, IT MAKES
NO SENSE IN MY HUMBLE
OPINION.
>> SO YOU ARE ARGUING
CONSENT IN CASTILLO.
>> EXACTLY.
>> IT MAKES NO SENSE.
THE VALET PARKER COULD BE
18-YEAR-OLD KID WHO DECIDES
TO OPEN UP YOUR OWN BUS N
YEAH, GO PARK MICAH, HE KIM
IS.
YOU ARE SAYING, GEE, I AM
SORRY, THE RESTAURANT SAID
HE IS PENT CONTRACTOR.
WE NEVER SAID, THOUGH, IF WE
ARE GOING WITH PRECEDENT,
VALLEY PARKING AUCTION, THAT
IS WHY YOU ARE TRYING TO
TELL US TO DUMP THIS WHOLE
THING BECAUSE YOU CAN'T
DISTINGUISH IN GOOD FAITH
THOSE SITUATIONS FROM THIS
CONSIGNMENT WHICH IS WHETHER
IT IS WRITTEN OR NOT IS MUCH
MORE, TO ME, CLOSER TO THE
AUTOMOBILE SERVICE THAN
VALET OR VALET PARKING
SITUATION IT.
>> WELL, RIGHT, THE PARKING
IS NOT A SERVICE TO THE CAR
WHICH THIS COURT SAYS IS
EXCESS.
IT IS SERVICE TO THE OWNER.
>> RIGHT.
WE HAVE OR HAVE NOT HELD THE
OWNER LIABLE IN THE PARKING
SITUATION?
>> YOU HAVE MOT.
THE APPELLATE COURT HAS.
>> THATS THERE WAN AN
EXCEPTION.
>> YES.
>> THE ONLY CASE THAT HOLDS
THAT.
>> THAT IS SUPPOSEDLY IN THE
SHOP SERVICE, THERE IS NO,
THERE IS CERTAINLY NOT A
SERVICE, I MEAN, IN OTHER
WORDS, THAT WOULD BE A CASE
THAT IF WE FOLLOW YOUR, AT
LEAST, DISTIPTION TO KEEP IT
VERY NARROW, FOR EXAMPLE, TO
THE USUAL SERVICE, YOU
WOULDN'T HAVE CLEANING, YOU
KNOW, CAR CLEANING SERVICES,
YOU WOULD NT HAVE ALETS
WITHIN THIS EXCEPTION AT
LEAST.
>> BECAUSE I THINK THE
PARAMOUNT PUBLIC POLICY
ANNOUNCED BY THE COURT IS,
THE OWNER MUST BE FINANCIALLY
RESPONSIBLE TO PROTK THE
VICTIM, THE OWNER CAN THEN
TURN AROUND AND SUE THE
CLEANING SERVICE, THE CAR
DEALERSHIP FOR THE NEGLIGENT
OPERATION, BUT IT IS ONLY
THE OWNER THAT REALLY CARES
ABOUT AND IS CHARGED WITH
THE RESPONSIBILITY TO MAKE
SURE HIS CAR IS ENSURED
FINANCIAL RESPONSIBLE FOR
THE DAMAGE OF THE VICTIM, I
THINK THE COURT NEEDS TO
LOOK AT THE VICTIM'S POINT
OF VIEW, THAT THE OWNER,
THEY CAN FIGHT AMONGST EACH
OTHER, WHO IS PRIMARILY AND
SECOND ARY, THAT KILLING
MACHINE, SOMEBODY NEEDS TO
BE FINANCIALLY SEE, COULD
YOU RESPONSEK, ONLY THE
OWNER US THE ONE THAT CARES
ABOUT THAT.
>> DO YOU CONCEDE IN THE
INSTANCE THAT THERE WAS A
CONSIGNMENT AGREEMENT?
>> THERE WAS AN ORAL
CONSIGNMENT AGREEMENT.
>> THAT WAS NEVER SIGNED BLY
YOUNGBLOOD WITH EXTREME.
>> WHAT IS -- TAKING IT
THEIR PERSPECTIVE, WHAT DO
YOU -- WHAT WERE THE TERMS
OF THEIR CONSIGNMENT
AGREEMENT?
>> THE CONSIGNMENT AGREEMENT
WAS MR. YOUNGBLOOD ONLY
WANTED HIS INTERESTED AS
GETTING OFF THE NOTE ON THE
CAR HE WAS SOLELY
RESPONSIBLE.
>> 165?
>> CORE REB.
WHICH HE ACTUALLY GOT OFF OF
IT BECAUSE THE CREDIT UNION
HAD ITS OWN INSURANCE, PAID
OFF THE LOAN.
>> YEAH.
>> SO HE IS NOT A VICTIM.
THE APONTE WAS GOING GET
COMMISSION NO MATTER WHAT
THE CAR SOLD FOR BUT NEVER A
STANDING IN HOW MUCH THE
COMMISSION WOULD BE.
FURBER AUTO SALES GOING TO
GET A PIECE OF THE COME MIX,
BECAUSE IT REFERRED THE CAR
OVER TO APONTE.
>> ANYTHING ON THE RECORD
ABOUT THAT?
> IT IS ON THE RECORD IN
APONTE'S DEPOSITION.
RIGHT, AS TO THE CONDITIONS
OF THEIR HAVING THE CAR IN
THEIR POSSESSION, WHEN IT
COULD BE USED.
>> OH, NO.
>> GOING TO BE PICKED BACK
UP.
>> NO.
>> HOW LONG THE CONSIGNMENT
AGREEMENT?
>> NOTHING.
THERE WAS ENDOWMENT TO PICK
UP THE CAR ANY TIME HE
WANTED TO TO TAKE IT BACK
OHM.
>> NO DIFFERENT THAN IF I
GOT A 17-YEAR-OLD NEIGHBOR
IS AT THE HIGH SCHOOL, I GOT
A VEHICLE THAT MAY BE HOT
FOR HIGH SCHOOL KID, I TELL
HIM TO PUT A FOR SALE SIGN
IN, THIS YOU TAKE IT AND
DRIVE IT TO SCHOOL BACK AND
FORTH, WILL CONSIGN IT TO
YOU, WE'LL SEE IF WE CAN'T
GET THAT THING SOLD?
>> IT IS NO DIFFERENT?
>> NO, THIS COURT HAS HELD
MORE THAN ONCE THAT HE OWNER
OF THE CAR IS LIABLE.
>> YOU KNOW, YOU WANT US TO
OVERRULE THIS WHOLE
EXCEPTION.
UR DON'T HAVE TO DO THAT IN
THE CASE.
I UNDERSTAND.
BUT YOU MUST THINK WE HAVE
JURISDICTION IN THE CASE,
THERE A CONFLICT?
>> THERE IS A CONFLICT WITH
THE VALLET PARKING CASE
BECAUSE THAT IS NOT SERVICE
AND REPAIR.
YOU SEE THE SECOND DISTRICT
STATED, YOU ARE PROVIDING
SERVICE TO THE OWN MER.
>> THE CASE BELOW DECIDED
NOT TO EXTEND THE SHOP
KEEPER'S EXCEPTION TO THIS
CASE AND DETERMINE THAT THE
OWNER WAS LIABLE.
>> YES.
>> RIGHT?
>> I AGRI WITH THAT.
UNDER THE EXCEPTION THAT
CONFLICT WTION THE VALLET
CASE?
>> I AM SAYING THAT THE
DECISION DISAGREES AND
CONFLICTS WITH THE VALLET
CASE, IT MAY DISAGREE,
CONFLICT WITH THE FOUGHT
CASE WHICH IS EMPLOYEE
STRIKING ANOTHER EMPLOYEE ON
THE AUCTION YARD WHERE THE
OWNER, A DEALER, HAD THE
OPTION TO DRIVE THE CAR
HIMSELF, BUT CHOSE TO LET
EMPLOYEE OF THE AUCTION YARD
DRIVE THE CAR AND HE HIT
ANOTHER EMPLOYEE.
I THINK THAT IS -- DOESN'T
FIT THE PUBLIC POLICY UNDER
CASTILLO AND SOUTHERN
COMFORT BECAUSE THAT IS TWO
MOMENTEES HURTING EACH
OTHER, BUT IT IS --
>> THROWS DIFFERENT FACTS,
HOW DOES THAT CONFLICT WITH
THIS CASE?
>> WELL, IT CONFLICT AS
LITTLE BIT BECAUSE THERE IS
NO SERVICE AND REPAIR TO THE
CAR.
>> IT MAY SEEM LIKE SOUTHERN
COMFORT.
IT IS ACTUALLY SOUTHERN CAR
--
>> I WAS WONDERING WHAT CASE
THAT WAS.
MAYBE SOMEBODY IN THIS CASE
WAS DRINKING SOUTHERN
COMFORT WHEN THE ACCIDENT
ECURED.
>> I MADE THAT MISTAKE.
>> ONE OF THE THINGS WE DO
LOOK TO IS TRY TO UNDERSTAND
HOW SOMETHING IMPACTS IN THE
REAL WORLD OF INSURANCE,
JUSTICE LEWIS WAS GIVING
REAL LIFE EXAMPLES.
THE QUESTION HERE, AND IF IT
IS NOT IN THE RECORD, DID K
MR. YOUNGBLOOD HAVE
INSURANCE?
IN OTHER WORDS, THE WAY
INSURANCE WORK, HE DOESN'T?
>> KNOWINGLY LET IT LAPSE.
>> IF HE -- IF HE HAD
INSURANCE, WOULD A POLICY,
DO YOU KNOW, WOULD THE
POLICY COVER IT, DOES THE
POLICY COVER, FOR EXAMPLE,
WHEN SOMEBODY BRIDGES A
VEHICLE TO THEIR REPAIR SHOP
--
>> ABSOLUTELY.
>> THE IDEA THAT WE WITH
ACTUALLY IN TERMS OF THAT,
IF WE ELIMINATED THE SHOP
EXCEPTION, THERE IS NOTHING
IN STANDARD OR THEIR
POLICIES THAT WOULD PREVENT
THE OWNER'S COVERAGE FROM
BEING PRIMARY IN THESE
CASES?
>> CORRECT.
>> THE CONE -- THE INSURANCE
COMPANY SAYS WE PROVIDE
LIABILITY COVERAGE TO YOU IN
THE EVENT OF BODILY INJURED
CAUSED BY YOUR INSURED
VEHICLE.
OF COURSE, THERE IS
EXCEPTION FOR THEFT, UNLESS
THE OWNER PROVIDES THE
OPPORTUNITY LIKE WE, LEFT
YOUR KEYS IN IGNITION, EVEN
THEN, THERE IS LIABILITY AS
LONG AS IT IS A REAL THEFT,
BUT THE OWNER'S NEGLIGENT
FOR DOING THAT, BUT
BASICALLY, NUMBER ONE IS, I
WANT THE COURT TO AGREE WITH
THE 2 RND DISTRICT.
THE 2nd DISTRICT WAS RIGHT.
THE WORDS OF THE DECISIONS
OF THIS COURT EXCEPT FOR THE
DISTRICT COURT OF APPEALS IN
THE VALLET PARKING, WHAT IF
YOU WENT AND HAD A CHURCH
CAR WASH, ONE OF THE KIDS
GETS IN YOUR CAR WHILE YOU
ARE TALKING TO PARENT,
DRIVES THE CAR AND YOU KILLS
ANOTHER KID.
OH, I AM A CAR WASH, THIS IS
A CHURCH CAR WASH, I AM AT
AT CAR WASH, I AM NOT
LIABILITY ANYMORE?
THAT IS HOW THIS CAN GET
EXTENDED?
THAT IS WHY I THINK THERE IS
ALL THESE CASES, I AM TRYING
TO CUT BACK THE WORK A
LITTLE BIT, THAT IS WHY ALL
OF THE CASES GOING AND
COMING RULE, WHAT, MICHALEK,
THIS COURT HELD THE REPAIR
SHOP IS BRINGING THE CAR
BACK TO THE OWNER AT HIS
RESIDENCE, THE OWNER IS
LIABILITY FOR THE ACCIDENT.
WHY?
I DIDN'T CHOOSE THE PERSON
FROM THE REPAIR SHOP TO
DRIVE THE CAR.
I AM SORRY, BUT --
>> THAT IS WHAT I WAS TRYING
TO FIGURE OUT.
ONCE YOU BRING IT THERE.
I DON'T UNDERSTAND WHAT KIND
OF USE WOULD OCCUR WHITE
THERE IS IF THEY ARE
SUPPOSED TO BE CLEANING YOUR
CAR.
IT DOES SEEM THAT THERE IS,
SOME INCONSISTENCY, SO AS
YOU SAY, WEAN THE SHOP
SERVICE EXCEPTION, WE DON'T
REQUIRE THAT IF YOU BRING
YOUR CAR INSTEAD OF BRINGING
IT TO THE REPUTABLE SERVICE
AGENT, IF YOU BRING IT TO
SOMEONE ELSE WHO IS A SINGLE
PERSON TO HAVE THE VEHICLE
SERVICED, THAT THIS, THERE
IS NOT A DIFFERENCE WHETHER
THE DANGEROUS
INSTRUMENTALITY IS GOING TO
BE HERE APPLIED OR NOT.
>> THERE IS NO DIFFERENCE.
IT JUST DESTROYS ALL THE
DECISION, THE BASS BASIS OF
THE DECISION, STRICT
LIABILITY, YOU ALL KNOW, YOU
ARE THE ONE THAT HAS THE
BEST POSITION TO PROVIDE
FINANCIAL RESPONSEK.
IT DESTROYS IT.
>> THAT WAS ORIGINALLY FOUND
ON RESPONDEAT SUPERIOR, THAT
DOESN'T EXIST IN THE CASE?
>> IN THE CASE?
YOU KEEP GOING BACK TO
ORIGINAL DOCUMENT, WE NEED
TO GO BACK TO THE ORIGINAL
DOCTRINE, THAT ORIGINAL
DOCTRINE WAS IN THO THOSE
THINGS YOU WERE JUST
MENTIONING BECAUSE THE
RESPONDEAT SUPERIOR
RELATIONSHIP.
>> CORRECT.
CORRECT.
THEN THE COURT SAID IT IS
NON-DELLABLE DUTY, STRICT
LIABILITY.
>> BASED ON THE
RELATIONSHIP?
>> CORRECT.
CORRECT.
CORRECT.
BUT IN OUR BOX IN 2000, THIS
COURT SAID IT WAS APPEARANCE,
IF IT IS ABELMONT, THE EN
NER IS LIABILITY.
THIS IS DEFINITELY ONE, THE
2nd DISTRICT AGREED WITH,
THAT HELD THAT WAY, I DON'T
SEE HOW YOU MAKE AN
EXCEPTION NOW WHEN ALL YOUR
PRIOR DECISIONS SAID THE
OWNER IS LIABLE FOR THE CAR,
THE NEGLIGENT OPERATION OF
THE CAR.
>> THERE IS WITH SERVICE AND
REPAIR, TOO.
RIGHT?
>> WHICH CAUSES MY
CONFUSION.
I MEAN, IT IS -- IT IS LIKE
EVERY CASE IS DIFFERENT
ANALYSIS AND YOU CAN REALLY,
YOU CAN'T PUT THEM ALL
TOGETHER AND SAY THIS IS
COHERENT.
THAT ISY WAS SO BOLD TOLL
SAY, YOU KNOW, LOOK AT THE
EXCEPTION.
I MAKES NO SENSE, REALLY, IN
MY HUMBLE OPINION, IT MAKES
NO SENSE BECAUSE YOU CAN
TAKE IT TO THE GARAGE
MECHANIC, VERSUS THE BIG
DEALERSHIP, THIS COURT SAID,
IT MAKES NO DIFFERENCE WHAT
KIND OF SERVICE, BUT THE 2nd
DISTRICT IS ABSOLUTELY
CORRECT.
THIS IS NOT SERVICE AND
REPAIR.
I AM PROVIDING A SERVICE OF
SELLING YOUR CAR.
I AM GOING TO MAKE MONEY ON
THAT.
YOU ARE GOING TO MAKE MONEY
ON THAT.
THAT IS A BUSINESS VENTURE.
THAT IS WITH THE BEST
EXAMPLE, THERE IS NO
RECEPTION RESTRICTION ON
PICK UP THE CAR.
YOU CAN COME BACK ANY TIME.
THERE IS NOTHING WRITTEN.
>> WE HAVE USED UP ALL OF
YOUR TIME.
WE THANK YOU.
>> THANK YOU VERY MUCH.
>> OKAY.
>> WE'LL GIVE HOW MUCH TIME
DO WE HAVE LEFT?
>> I DON'T THINK I HAD ANY,
YOUR HONOR.
>> WELL, WE'LL GAUF LITTLE
TOOIL.
>> WELL, I WANTED TO FOLLOW
UP ON WHAT JUSTICE BELL WAS
SAYING, THAT IS THIS THING.
WHENEVER THE DANGEROUS
INSTRUMENTALITY DOCTRINE IS
INVOKED EVERYBODY FORGETS
WHAT THE BASIS WAS FOR.
IT WAS RESPONDEAT SUPERIOR,
THE REASON WHY THAT IS
CENTRAL TO THE ANALYSIS IN
THIS CASE BECAUSE IT IS ALL
ABOUT TURNING OVER CONTROL
OF THE VEHICLE.
THERE IS NO DOUBT IN THIS
CASE, JUST LIKE IN A REPAIR
SHOP, JUST LIKE IN A VALLET
SERVICE, JUST LIKE IN THE
CASE.
>> YOU WOULD NEVER HAVE IT
FOR ANY, EVER?
>> NO, THE BAIL AM, IN FACT,
THE JURY INSTRUCTION SAYS
THERE IS VICARIOUS
RESPONSIBILITY FOR BAILMENT
EXCEPT, THERE IS A
COMEMENTS, IT SAYS, EX SET
IN THE CASTILLO-MICHALEK
SITUATION, BECAUSE CONTROL
HAS BEEN TURNED OVER TO THIS
ENTITY FOR SOME PURPOSE
OTHER THAN DRIVING THE CAR
AROUND TOWN AND THAT IS WHEN
IT IS NO LONGER A RESPONDEAT
SUPERIOR SITUATION.
IT IS INDEPENDENT CONTRACTOR
SITUATION.
THAT IS HOW THE RULE GRURX
IT CAME WERE THE '6Os IN
CASES LIKE FRYE-PETTITTE
SAID, LOOK, THIS IS
DIFFERENT FROM WHAT CREATED
THE DANGEROUS
INSTRUMENTALITY DOCTRINE.
THAT WAS ADOPTED BY HARFRED,
IT WAS ADOPTED BY THIS
COURT, IT WAS DEFINED BY MY
CHAL LEG, FURTHER DEFINED BY
THE VALLET CASE AN ON THE
CASE AND FORM AS COHERENT
RULE THAT IS BASED ON THAT
CONTROL AND THIS CASE LIES
ON THE DEAD CENTER OF IT.
IT IS NOT DIFFERENT.
THEREFORE, IT IS IN CONFLICT.
>> THE SAME THING WOULD
APPLY, THE EXAMPLE THAT I
ASKED.
I HAVE A 17-YEAR-OLD
NEIGHBOR, I WANT HIM TO
ADVERTISE IT FOR HIM.
I WANT TO COON SIGN IT FOR
ME HE CAN TAKE TO IT HIGH
SCHOOL.
I WANT YOU TO RUN AROUND
WITH THE FOLKS, WITH THE FOR
SALE SIGN, THAT WOULD THEN
BE PROTECTED UNDER THIS
SCENARIO?
>> I DON'T THINK SO BECAUSE
I THINK THE LANGUAGE OF THE
RULE, IT IS AUTO SERVICE
AGENCY.
I THINK THAT IMPLIES WITH
THE COMMERCIAL.
I THINK THAT IS FAIR.
>> NOW AGAIN, THAT ISY SAY
WE HAVE NEVER DONE THAT FOR
SERVICE REPAIR YOU CAN BRING
YOUR VEHICLE, THE JIMMY, YOU
KNOW, DOWN THE BLOCK, AND WE
ARE STILL APPLYING IT, SO I
GO BACK TO THAT IF WE ARE
GOING TO LOOK AT THIS IN
THIS CASE, IT WOULD SEEM
THAT WE NEED TO STRENGTH IN
THE ISSUE OF THE NATURE OF
THE ENTITY THAT IT IS BEING,
IT YOU DOING WHATEVER IT IS
BEING DONE TO YOUR VEHICLE.
IN ORDER TO SHIFT THAT
RESPONSIBILITY.
>> MY CLIENT WITH WOO HAVE
NO PROBLEM, YOUR HONOR, THIS
IS CLEARLY AN ARM'S LINK
TRANS ACTION WITH A CAR LOT.
>> WITH OUR ASSISTANCE, YOU
ARE ABOUT FIVE MINUTES OVER.
WE APPRECIATE THE ARGUMENT,
WELLS'S TALK THE KANSDER
ADVISEMENT.
THE COURT WILL TAKE THE
MORNING RECESS.
>> ALL RISE.