IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. Case No. 5D CORRECTED

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1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001 SUSAN McDOWELL, et al., Appellants, v. Case No. 5D CORRECTED MARTHA RODRIGUEZ, etc., et al., Appellees. Opinion Filed August 17, 2001 Appeal from the Circuit Court for Brevard County, Vincent G. Torpy, Judge. David C. Knapp and Daniel F. Dill, of Rogers, Dowling, Fleming & Coleman, P.A., Orlando, for Appellant, Susan McDowell. Tracy Raffles Gunn, Charles Tyler Cone and Charles W. Hall, of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa and St. Petersburg, and Elizabeth C. Wheeler of Wheeler & Wilkinson, LLP, Orlando, for Appellant, Infinity Insurance Company. Norman Waara and R. Matthews Miles, Jr., of R. Matthews Miles & Associates, Daytona Beach, for Appellees, Boniface Hiers Buick, Inc., and Universal Insurance Company. PLEUS, J. This case involves the issue of whether common law indemnity is available to a car dealer who loans a vehicle to a potential customer. /

2 On July 13, 1993, Susan McDowell went to Boniface Hiers Buick, Inc., ( Boniface ) to trade her 1988 Cadillac for a 1993 Buick. She signed an application for a long-term lease. Because financing documents had to be approved by Barnett Bank, Boniface spotted 1 the Buick to Ms. McDowell and allowed her to drive the vehicle off the lot. The following day, July 14, 1993, Barnett Bank denied the financing on the proposed lease. Instead of contacting McDowell on that date, and asking her to return the Buick to the dealership, Boniface forged McDowell s signature on a purchase agreement and submitted the purchase agreement to the bank. Financing of the forged purchase agreement submitted by Boniface to the bank was also denied. No lease or purchase transaction was ever consummated between McDowell and Boniface. On July 17, 1993, an automobile accident occurred involving the 1993 Buick owned by Boniface and spotted to McDowell. At the time of the accident, the Buick was being driven by McDowell s son s girlfriend, Carolyn Parent. The other vehicle involved in the accident was a van owned by Scamp Rental. Passengers in the van filed a complaint against Carolyn Parent, Scamp Rental and Boniface. Boniface filed a third-party complaint against Susan McDowell and Infinity Insurance Company. The count in the third-party complaint against McDowell alleged that Boniface was entitled to common law indemnity from McDowell because she was a permissive user of the Boniface Buick and allowed Carolyn Parent to use the vehicle. The third-party complaint against Infinity alleged that Boniface was entitled to 1 Spotting is a term used by car dealers who allow potential customers to use a car until the sale is finalized. 2

3 indemnity from Infinity on the grounds that Infinity insured McDowell at the time of the accident. 2 The insurance carrier for Boniface, Universal Underwriters Insurance Company ( Universal ), began providing a courtesy defense to Carolyn Parent in the first-party action. Universal ultimately settled with the passengers in the van and obtained releases which released Carolyn Parent and Boniface. Boniface and Universal filed several initial motions for summary judgment against McDowell which were all denied because of disputed issues of material fact. Thereafter, the case was transferred from Dade County to Brevard County, and a hearing was held on cross-motions for summary judgment. The Brevard County hearing resulted in a final summary judgment on the common law indemnity count against McDowell. She now appeals that final judgment for $1,279,480 which represents the $838,000 paid to the van passengers and prejudgment interest. In Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979), the Florida Supreme Court held that common law indemnity is only allowable where the whole fault is in the one against whom indemnity is sought. In order for a party to prevail on a claim for common law indemnity, it must satisfy a two-prong test: first, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. Second, indemnification can only come from a party who is at fault. In this case, Boniface and Universal cannot satisfy the first prong of the indemnity test 2 Infinity answered the Boniface third-party complaint and asserted an affirmative defense that Infinity did not insure McDowell on the date of the accident due to a material misrepresentation. Infinity was ultimately released from the lawsuit through summary final judgment in its favor. 3

4 because Universal s insured, Boniface, is not without fault. Boniface wrongfully affixed McDowell s signature to a purchase agreement without her permission, and failed to timely contact her and ask for the return of the Buick. Boniface knew as of July 14, 1993 that McDowell did not qualify for lease financing. Instead of contacting her and asking her to return the Buick to the dealership, Boniface wrongfully affixed her signature to purchase documents and resubmitted the documents to Barnett Bank. If Boniface had contacted McDowell on July 14, 1993, and told her to return the 1993 Buick because the lease financing had been denied, the July 17 accident could have been avoided. Instead, Boniface failed to contact McDowell before the July 17th accident. 3 Additionally, appellees are not entitled to indemnity because they cannot satisfy the second prong of the indemnity test in that McDowell was not a party who was at fault. In the instant case, McDowell was not at fault to the extent that she was not the driver or active tortfeasor when the subject collision occurred. Therefore, Boniface and Universal are not entitled to common law indemnity against McDowell and the summary final judgment entered against them must be reversed. In the appellate process, an answer brief was filed by Norman Waara and R. Matthew Miles, Jr., on behalf of Universal. The attorneys for Susan McDowell filed a reply brief which was served on January 12, On June 7, 2001, two weeks before scheduled oral argument, Waara and Miles filed 3 Boniface claims it tried to contact Ms. McDowell, but was unsuccessful. 4

5 a Notice of Supplemental Authority which they assert was filed pursuant to Florida Rule of Appellate Procedure The eight page Notice cites 16 new citations one of which dates back to 1955 and several from outside Florida. In all, there are 83 pages of case law plus the California Vehicle Code. With each cite there is argument as to why the case supports Boniface s and Universal s position. McDowell moved to strike the Notice and this court granted the motion. Then to compound the problem, the attorneys for Boniface and Universal filed an Amended Notice on the date of oral argument. In the Amended Notice, they claim to have removed all comments on the authorities while retaining references to issues in the appellate record. In fact, such is not the case. The Amended Notice was filed the day of oral argument but was not received by McDowell s attorneys until two days after oral argument was completed. Counsel for Universal even went so far as attempting to argue case law from the supplemental authorities during oral argument. Florida Rule of Appellate Procedure states: Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice may identify briefly the points argued on appeal to which the supplemental authorities are pertinent, but shall not contain argument. Copies of the supplemental authorities shall be attached to the notice. In Ogden Allied Services v. Panesso, 619 So. 2d 1023 (Fla. 1st DCA 1993), the appellee filed and served a notice of supplemental authority on the afternoon preceding the 5

6 day set for oral argument. The First DCA struck the appellee s notice of supplemental authority, and indicated that it was a misuse of the Florida Rules of Appellate Procedure. Id. at Further, the court stated: Id. (emphasis added). Those rules are intended to permit a litigant to bring to the court s attention cases of real significance to the issues raised which were not cited in the brief, either because they were not decided until after the briefs had been filed; or because, through inadvertence, they were not discovered earlier. They are not intended to permit a litigant to submit what amounts to an additional brief, under the guise of supplemental authorities ; [sic] or to ambush an opponent by deliberately withholding significant case citations until before oral argument. We view the actions of the attorneys for Universal as a misuse of the rules and a blatant attempt to ambush an opponent by deliberately withholding significant case citations until shortly before oral argument. Such conduct should be avoided in the future. REVERSED. THOMPSON, C.J., and SHARP, W., J., concur. 6