T. Patton Youngblood v. Estate of Reinaldo Villanueva SC06 … · estate of reinaldo villanueva sc06-1205 we'll move to our next case this morning, which is youngblood versus villanueva.,,

In re: Amendments to the Florida Small Claims Rules

file:///Volumes/www/gavel2gavel/transcript/06-1205.html[12/21/12 3:15:05 PM]

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. Thisservice is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legaldocuments, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

T. Patton Youngblood v. Estate of Reinaldo Villanueva

SC06-1205

WE'LLMOVE TO OUR NEXT CASE THISMORNING, WHICH IS YOUNGBLOODVERSUS VILLANUEVA.,,>> THANK YOU, YOUR HONOR.MAY IT PLEASE THE COURT.MY NAME IS SCOTT SAMIS.HE REPRESENT PATTONYOUNGBLOOD.THE QUESTION IS WHETHER THECASTILLO QUESTION SHOULDN'TAPPLIED WHERE AN OWNER TURNSHIS CAR OVER TO ACONSIGNMENT LOT PER SE.>> YOU COULD TELL ME WHEREWE'RE IN CONFLICT IN THECASE?>> WELL, YOUR HONOR.>> WELL, IT APPEARS WHAT THEAPPELLANT ATE COURT, THETRIAL COURT GRANTED A SUM MYJUDGMENT SAYING THAT THEDANGEROUS UNSTREW MENTALITYDOCTRINE WOULD APPLY OR INFAVOR OF YOUNGBLOOD WOULDNOT APPLY, AND THE DISTRICTCOURT OF APPEAL UNDER THECASES NEVER DEAL WITH THIS,SO THEY REVERSED THAT.IS THAT NOT PROCEDURERALSITUATION HERE?>> WELL, YOUR HONOR, I THINKTHAT THE CONFLICT EXISTSBECAUSE YOU CAN NOTRECONCILE THE DECISION INTHIS CASE WITH SEVERALDECISIONS FROM BOTH THISCOURT AND THE APPELLATECOURT.>> HAS THIS COURT OR ANYOTHER APPELLATE COURT EVERCONSIDERED THESE FACTS THISTHE CONSIGNMENT AGREEMENTTHAT MAY HAVE MULTIPLE



FACTORS INVOLVED?>>, NO NOT CONSIGNMENTAGREEMENT BUT LEGALLY INDISTINGUISHABLE SITUATION.>> THAT BECOME AS QUESTIONWHETHER THEY ARE LEGALLYTHAT IS WHAT YOU ARE SAYINGTHEN?>> YES.>> THOSE ARE LEGALLYINDISTINGUISH KBL TO THESAME FACT AND THAT A SERVICEREPAIR BUSINESS IS THE SAMETHING AS CONSIGNMENT.>> IS THAT YOUR POSITION?>> YEAH, IT IS, YOUR HONOR.>> LET ME ASK YOU.I HAVE BEEN THROUGH THISRECORD.I AM HAVING A HARD TIMEUNDERSTANDING WHAT THISQUOTE CONSIGNMENT WAS INTHAT THERE APPARENTLY WAS NOCONSIGNMENT AGREEMENTWRITTEN AGREEMENT BETWEENAPONTE AND MR. YOUNGBLOOD.THE TIGHT TOLL THE VEHICLE-- THE TIGHT TOLL THEVEHICLE WAS NOT INMR. YOUNGBLOOD'S NAME ANDTHE -- THERE ISN'T ANYTHINGON THE RECORD WHICH REALLYSETS OUT WHAT THE AGREEMENTBETWEEN THE OWNER OF THEVEHICLE OR IF YOU CONSIDERHIM TO BENEFICIAL OWNER BYREASON OF THE DIVORCE DECREEAND HIS CAR DEALERSHIP SO IAM HAVING A HARD TIMEUNDERSTANDING WHAT, WHAT THECONSIGNMENT WAS.>> WELL, THINK, YOUR HONOR,IT GREW OUT OF THE DIVORCESETTLEMENT, WHEREESSENTIALLY MR. YOUNGBLOODAGREED TO HANDLE THE SELLINGOF THE CAR WHICH HAD BEEN INHIS WIFE'S NAME.I BELIEVE THAT WASMEMORIALIZED IN THE DIVORCEDECREE, HE TOOK POSSESSIONOF THE CAR, WENT TO APONTE,I THINK APONTE ANDMR. YOUNGBLOOD EXPLAINED



THAT THE DEAL WAS APONTE,TURNED THE CAR OVER, ANEXTREME AUTO WOULD SELL THECAR AND THEY WOULD GETCOMPENSATED FOR DOING THATSALE AND MR. YOUNGBLOOD SAIDTHINK I WANT THE MONEY.>> WELL, WOULD IT BE ANYDIFFERENT THAN IF HE TOOK ITOVER TO THE NEIGHBOR ANDSAID, I WANT TO THIEVE CARWITH YOU, IF YOU GET -- IWANT TO LEAVE THIS CAR WITHYOU, I HAVE TO HAVE $16,50BECAUSE THAT IS THE LIEN ONTHE CAR, IF YOU GETANTICIPATE MORE, YOU GET, ITIS ALL YOURS.I MEAN, HOW WOULD THAT BEDIFFERENT THAN WHAT HAPPENEDIN THE INSTANCE?>> HI YOU THINK THE OF KEYDIFFERENCE THERE, THEDIFFERENCE BETWEEN APERSONAL RELATIONSHIP WHEREA CAR LOT IS IN THECOMMERCIAL BUSINESS OFSELLING CARS.THAT I REALLY GETS TO THEROOT OF THE REASON FOR THISEXCEPTION TO THE DANGEROUSINSTRUMENTALITY DOCTRINEWHEN THE CASTILLO COURTLOOKED AT THE CASES FROM THE'60s AN '70s THAT DEVELOPEDTHIS LAW, THIS EXCEPTION, ITLOOKED AT THE FACT, WHEN APERSON TAKES THE CAR ANDGIVES IT TO A FRIEND ORGIVES IT TO A NEIGHBOR ORSOMEBODY YOU KNOW, THATCREATES SUPERIOR MASTERSERVANT RELATIONSHIP.I AM GIVING THIS YOU HE CARTO DRIVE IT AROUND.I AM RESPONDABLE FOR YOUDOING IT.IT IS DIFFERENT SITUATIONWHEN YOU ARE GOING TO ASERVICE AGENCY, A BUSINESS,IT DEALS WITH CARS, ITDOESN'T DRIVE THEM AROUND,BUT DOES SOMETHING ELSE WITHTHEM, SUCH AS LIENS THEM,



FIXES THEM, VALLET PARKSTHEM, UM.>> WOULDN'T THAT EXCEPTIONINTENDED TO COVER ASITUATION IN WHICH A PERSONTAKES THEIR CAR TO A DEALERAND IN THE BEGINNING, ANDTHE CAR, AND THE CAR REPAIROPERATION HAS TO HAVE THECAR TO FIX IT AND THENTEST-DRIVE IT TO MAKE SUREIT IS FIXED AND THEN THEREIS AN ACCIDENT IN THETEST-DRIVE.I MEAN, THAT IS THE TYPE OFSITUATION HERE.NOT A SITUATION IN WHICH YOUJUST TURN YOUR VEHICLE OVERTO SOMEBODY AND THEY TAKE ITAND IN THE RECORD,APPARENTLY, THIS GUY WASTAKING THESE CARS HOME ON AREGULAR BASIS, USING THEMPERSONALLY, THERE WAS NOTANY TYPE OF AGREEMENT THATWOULD KEEP HIM FROM DOINGTHAT.>> THAT IS CORRECT, YOURHONOR.THAT HE IS PRECISELY WHYTHIS SITUATION FALLS DEADCENTER IN THE CASTILLO RULE,BECAUSE WHEN YOU LOOK AT THETYPE OF SERVICE THISINVOLVED.IT IS REALLY NO DIFFERENTFROM ANY OTHER SERVICE.WHEN A CONSIGNMENT LOT TAKEAS CAR.IT STORES IT.IT ADVERTISES IT.I DISPLAYS OUT IN THE LOT.I MOVES IT AROUND.MOST IMPORTANTLY, FOR YOUREXAMPLE, TEST-DRIVES IT.NOT ONLY ARE THEIRTEST-DRIVES WITH THE PEOPLE,THE MECHANICS, THE PERSONNELTHERE, THEY ARE SUPERVISINGTEST-DRIVES FROM PEOPLE INTHE PUBLIC, SO THAT IS ALLTHE MORE LACK OF CONTROL ANDTRUST THAT IS PUT IN THECOMMERCIAL BUSINESS THAT HAS



SOLE CONTROL, ABILITY TOCONTROL THAT CAR, MOREOVERON THE MICHALEK DIVISION, INTHE CLEANING CASE, ITDOESN'T MATTER, THE TYPE OFSERVICE DOESN'T CHANGE THEOWNER'S DILEMMA, THE OWNIN'S DY LIMB MACE, YOU ARERAESING THIS CAR TOCOMMERCIAL ENTITY, YOU DON'TKNOW THESE PEOPLE, THEY AREGOING TO CONTROL IT.THEY ARE GOING TO MAKE ALLDECISIONS.>> HAVE WE EVERDISTINGUISHED, WHEN YOU SAYCOMMERCIAL ENTITY, BASE KNOWWHEN OF THE REASONS FOR THEEXCEPTION IS STATED ASINJURED PERSON CAN LOOK TOTHE BUSINESS WHICH ISFREQUENTLY BETTER ABLE TOUSE CARE AND INSURE AGAINSTTHE FINANCIAL RISK OFINJURY, I WAS THINKING OFTHAT WITH REFERENCE TO THECLEANING SERVICE OR THECLEANING A CAR, I MEAN,THERE ARE LOTS OF JUSTSINGLE INDIVIDUALS THAT DOCLEANING OF CARS AND THEYTAKE IT SOMEPLACE ELSE, SOHAVE WE ACTUALLY REQUIREDFOR THE EXCEPTION TO APPLYWHETHER IT IS THE -- YOU AREHAVING YOUR MAYBEOR REPAIR AVEHICLE, OR YOU ARE HAVINGYOUR NEIGHBOR, WHERE YOUCONSIGN IT, THAT IT ABUSINESS ENTITY, THAT I BEINCORPORATED ENTITY TO HAVETHAT PROTECTION OR THAT -- IAM THINKING OF THIS FOR NOTJUST THIS SITUATION, BUTOTHER SITUATIONS.HAVE WE MADE THATDISTINCTION IN ANY CASE?>> NOT EXPLICITLY, YOURHONOR.THE STATEMENT HAS BEEN MADEBY THE MICHALEK CASE, THETYPE OF SERVICE IS NOTRELEVANT.THERE WAS NEVER A MENTION OF



SOMEONE IN THE BUSINESS ASOPPOSED TO -->> BUT YOU AGREE THAT IS ONEMUCH OF THE FOUR STATEDREASONS FOR ALLOWING THISEXCEPTION PUBLIC POLICYEXCEPTION THAT IDEA THAT YOUARE, AGAIN, YOU ARE GIVINGOVER YOUR VEHICLE TOSOMEBODY THAT IS IN ABUSINESS AND THEN THEY AREMAKING THESE DECISIONS,WHEREAS, THERE COULD BE,WHETHER IT IS CONSIGNMENT ORTHE PAIR OR CLEANING YOURCAR, THERE COULD BE ALLSORTS OF SITUATIONS WHERE WEARE DEALING WITH A SINGLEPERSON THAT IS DHAING.WE DON'T SEE! SEEM TO MAKETHAT DISTINCTION.>> AND I THINK -->> THAT IS CORRECT?WE HAVE NOT?>> THE COURT HAS NOT.>> IT WOULDN'T MATTER TO YOUTHEN, WHEN YOU SAY THIS IS AREAL BUSINESS THAT WE HAVE,THAT THIS GENTLEMEN TURNEDHIS VEHICLE OVER, IF,INSTEAD, IT DOESN'T MATTERORP THE PURPOSES OF OURCASE, WHETHER HE TURNED ITOVER TO HIS NEIGHBOR, IS ITTO DO THE SAME THING?>> WELL, I THINK, THERE MAYBE A DIFFERENCE BETWEEN ACOMMERCIAL SITUATION ANDSOMEBODY DOING A FAVOR?IT IS A TRANSACTION.BECAUSE I THINK ONE OF THEASPECTS, AND IT IS NOTEXPLICIT IN THE CASE LAW,BUT IT IS CHARACTERISTICTHAT MAKES IT COHERENT, ABRIGHTLINE RULE IS THAT THEDIFFERENCE BETWEEN GIVINGYOUR CAR FOR A FRIEND TODRIVE AROUND, TAKING IT TO ASERVICE AGENCY IS THATTYPICALLY, YOU DON'T HAVETHE ABILITY TO EVALUATE THATPERSON'S RESPONSIBILITY ANDTHINGS LIKE THAT, IF IT IS



ARMS LENGTH TRANSACTION, THEPUBLIC POLICY, THE PRACT ACALL ASPECTS OF THE CASE ARESTRONGER IN THATCATION.>> BUT AGAIN, MY POINT ISTHAT I COULD HAVE MY VEHICLECLEANED BY, YOU KNOW, THEDEALERSHIP, THE JEEPDEALERSHIP, OR I CAN GIVE MYVEHICLE TO, YOU KNOW, SOMEINDIVIDUAL THAT MAY JUSTSAY, I AM DOING THIS, EITHERWAY, UNDER OUR CASE LAW, ITWOULD, THAT EXCEPTION WOULDAPPLY, CORRECT?>> YES, BECAUSE IT IS THEPURPOSE OF TURNING OVER THECAR THAT REALLY MATTERS.IS IT FOR TO DRIVE IT AROUNDAND OPERATE IT?IF WOULD YOU LOAN A CAR TOTRANSPORTATION, OR IS ITSOMETHING ELSE?>> WHY SHOULDN'T WE, I MEAN,WE ARE FOLLOWING UP ON WHATJUSTICE LEWIS SAID, THATTHIS IS THE LITTLE, YOUKNOW, THERE IS A DISTINCTIONHERE BETWEEN TAKING YOUR CARTO A REPAIR TO GET ITREPAIRED SO THAT THEY CANFIX DO, THE FRONT-ENDALIGNMENT, THEN, THEY WILLTAKE IT OUT AND TEST IT.IN AN INSTANCE IN WHICH YOUARE GOING TO GIVE YOUR CARTO A DEALER AND THEY AREGOING TO TRY SELL IT FOR YOUAND IN AN INSTANCE, IF THEREIS GOING -- IF THE EXCEPTIONIS GOING TO EXTEND TO THATTYPE OF AN ARRANGEMENT, WHYSHOULDN'T WE REQUIRE THAT ITBE IN WRITING, SO THATEVERYONE UNDERSTAND WHAT THEEXTENT OF TURNING THEVEHICLE OVER TO THEDEALERSHIP BE?I MEAN, THERE WAS WRITING INTHIS INSTANCE THAT JUSTWASN'T SIGNED BY YOURCLIENT, RIGHT?>> WELL, YOUR HONOR, I THINKTHAT THE IMPORTANT



CHARACTERISTIC OF THETRANSACTION IS WHATEVEREVERYONE KNOWS IS ENTAILEDIN SELLING A CAR AS OPPOSEDTO FIXING A CAR.TYPICALLY, WITHIN YOU TAKEYOUR CAR TO MA CAN ING,THERE IS NO BUSINESSCONTRACT THAT TALKS ABOUTTEST-DRIVING AND THINGS LIKETHAT.I WOULD SAY THAT 99%.>> WHEN THEY SELL YOUR CAR,THERE GENERAL LIS?>> THERE IS, BUT IT DOESN'T,IT DOESN'T CHANGE THECHARACTER OF WHAT EXTREMEAUTO IS DOING.TEST-DRIVING IS AN INTERGRALPART OF SELLING A CAR JUSTLIKE TEST-DRIVING IS ANINTERGAL PART OF REPAIRING ACAR.IF YOU LOOK AT THE WAY THISRULE IS DEVELOPED, THERE ISREALLY NO REASON TODISTINGUISH A CAR LOT FROM AREPAIR SHOP.>> WELL, SURE IS THERE.THEY DO TWO DIFFERENTTHINGS.IT IS NOT AT ALL THE SAMETHING.ONE IS REPAIRS.YOU ARE GOING TO KEEP THEVEHICLE.VUL THE CONTROL OVER IT.THE OTHER ONE IS, YOU HAVEGIVEN UP CONTROL?IF YOU HAVEN'T ESTABLISHEDTHAT, IT SEEMS TO ME, YOURBETTER ARGUMENT THAT IS THEREAL AND TRUE BENTIONOWNERSHIP HAS PASSED, HE NOLONGER MAINTAINS OWNERSHIP,THAT IT IS PASSED, IT ISENTITLE ONLY, BUT THAT TOTRY TO MAKE THIS DISTINGUISHTHAT THE SALE OF THE VEHICLEIS THE SAME AS SERVICING, IDON'T SEE WHERE THAT COMESFROM.WELL, AS A MATTER OF FACT,IN THIS RECORD, THERE IS NO



DISPUTE THAT MR. YOUNGBLOODTURNED THE CAR OVER ONDECEMBER 4th AND IT HADNOTHING TO DO -->> HAS NO LEGAL RECOURSE TOHAVE THAT RETURNED?IT WAS NEVER SOLD?HE NEVER GETS IT BACK?>> NO, HE COULD GET IT BACK.>> THAT IS ISTINCTION, THATIS THE PROBLEM HERE.IF HE HAD ASSIGNED IT TOTHEM, HE WOULD NO LONGERHAVE THE BENEFICIALOWNERSHIP.THEY DIDN'T DO THAT IN THECASE AS IT SEEMS TO ME, DIDTHEY DO THAT?>> BUT YOU ALSO HAVE THERIGHT TO GET YOUR CAR BACKWHEN IT IS DONE BEING FIXEDAS WELL.TURN OVER CONTROL OF THATCAR FOR THE PURPOSE OF THESERVICE BEING PERFORMEDWHICH IS DISPLAYING,ADVERTIZING, SELLING,TEST-DRIVING IT.IF, FOR EXAMPLE, AFTERPERIOD OF TIME, YOU WENTBACK, CALLED UP AND SAID,YOU KNOW WHAT?IT IS TAKING TOO LONG, IWANT THE CAR BACK, THEN, ITHINK, HIS VICARIOUSLIABILITY REAWAKENS THATPOINT, BUT WHILE IN THERECORD IS ABSOLUTELY CLEAR,HE HAS RELINQUISHED ALLCONTROL, LEFT THE CONSIDERON THE LOT, THAT IS NODIFFERENT THAN LEAVING IT TOBE FIXED, THEN GETTING ITBACK LATER.>> HAVE WE HAD THIS REAWAKENINGCONCEPT APPLIED?>> ACTUALLY, YOUR HONOR,THERE HAS BEEN.>> WHICH ONE WAS THAT?>> I BELIEVE, IN THE LIBOCASE, THEY TALK ABOUT THEGOING AND COMING RULE, SOTHE RULE THAT ESTABLISHEDWHEN THE CAR IS EVENTUALLY



TAKEN TO THE BUSINESS ANDLEFT WITH THE BUSINESS, THATIS VICARIOUS LIABILITY STOPON THE WAY TO THE BUSINESS,AS IN THE MICHALEK CASE, ONTHE LOPEZ CASE, THAT IS PARTOF THE GOING AND COMING, YOUARE RESPONSIBLE IN THE OTHERCASE, YOU ARE DONE, THE CARWAS BEING RETURNED TO THEOWNER AND THERE WAS ANACCIDENT AND THERE WASLIABILITY THERE.SO THERE IS EVENTUALLY BEENTHIS GOING AND COMING RULE,BUT WHEN ARE IN THAT COCOONOF NO CONTROL, NO NEGLIGENCE,COMPLETE CONTROL BY THEENTITY, BY THE SERVICEENTITY, THAT IS WHEN THISEXCEPTION KICKS CAN IN.>> IS IT PART OF THEUNDERLYING POLICY BEHIND THESHOP EXCEPTION, I THINK,THERE WERE SEVERAL REASONSFOR THE EXCEPTION, IS THEIRONE OF THE REASONS THAT THEPERSON TO WHOM THE CAR ISENTRUSTED AS HAS FINANCIALRESPONSIBILITY OF ITS OWN,SO THERE IS SOME KIND OFINSURANCE THAT WILL BE, THATWILL APPLY, SO WHOEVER ISINJURED BY THIS CAR IS GOINGTO BE ABLE TO RECOVERDAMAGES FROM SOMEBODY, ITMAY NOT BE THE OWNER OF THECAR, BUT PIT IS SOMEBODY TOWHOM THE CAR WAS ENTRUSTED,THAT IS PART OF IT?>> YOU ARE RIGHT, DOWNHOR,IN THE CASE, THERE WEREDEFENDANT, THE APONTEPERSONALLY AND THE CARDEALERSHIP WERE BOTHDEFENDANT, AND THEY SETTLEDOUT.>> SO THAT IS PART OF THE,SHOULD IT BE PART OFREQUIREMENT THEN, IF THEREIS GOING TO BE AN ABC LOSINGOF THE OWNER OF THE CAR WHENTHE OWNER ENTRUSTS THAT ITHE OWNER ASCERTAINED THAT



THE ENTITY AND TRUSTED WILTDOES HAVE INSURANCE THATWOULD RECOVER COVER ON THEEVENTUALITY OF AN ACCIDENT?I HAVE NOT SEEN THAT, THATPOLICY ANNUNCIATED IN ANY OFTHE CASE LAW.>> THE REQUIREMENT SEEMS TOBE CON YOU CYST TENT WITHTHE POLICY BEHIND THEEXCEPTION.>> I THINK THE PRESUMPTIONIN THESE CASES, THEY DON'TTALK ABOUT THEM HAVINGCOVERAGE.THEY SAY THEY HAVE FINANCIALRESPONSIBILITY FOR IT.I THINK THERE IS PRESUMPTIONTHAT COMMERCIAL ENTERPRISEWILL HIM V.>> THAT IS WHY I ASKED YOU.RRL, JUSTICE CANTERO, THATIS THE EXPLICITUNDERSTANDING BECAUSE WESAID IN MICHALEK, CARCLEANING SERVICE, I AM NOTSAYING ANYTHING ABOUT NASCARCLEANING SERVICE, BUT NOTBELIEVING THAT IS, YOU THE,A MAJOR COMMERCIAL ENTITY,YOU KNOW, THROUGHOUT THECOUNTRY.IT SEEMS THAT THAT WOULD BEA GOOD SOMETHING TO WRITE INFOR ALL OF THESE, IF WE'REGOING TO DO ANY EXCEPTIONS,THAT THERE BE SOMEUNDERSTANDING, THAT THIS ISRESPONSIBLE COMMERCIALENTITY.>> YEAH THAT I THINK IS ARANABLE CONDITION TO PUT ONUSE.>> LET'S GO INTO THAT THEN.GARAGE OPERATION COVERAGESDON'T COVER CARS LEFT TO BESOLD, DO THEY THEY COVERCARS THAT ARE OWNED BYDEALERSHIPS.I HAVE NEVER SEEN ONE THATKOOFERS SOMEBODY ELSE'SVEHICLE.>> BUT THERE SPECIFICCOVERAGE FOR CONSIGNMENT



LOTS AS WELL, YOUR HONOR.IT IS DIFFERENT.>> IN THIS INSTANCE, WHATTHIS CAR DEALER DID WAS THATHE HAD A CONSIGNMENTAGREEMENT IN WHICH HE SAIDTHAT THE DEALER WILL NOT BELIABILITY FOR SUCH VEHICLEWHILE EXTREME AUTO SALES ANOWNER MUST KEEP FULLINSURANCE COVERAGE ON THEVEHICLE.I MEAN, THAT WAS THEIRSCHEME, RIGHT?>> YES, THAT IS CONTRACTUALOBLIGATION BETWEEN THE TWO.>> OKAY.>> IT DOESN'T EFFECT THECOMMON LAW RESPONSIBILITY.>> THAT GOES AGAINST WHATYOU ARE SAYING.THAT IS WHAT WE WERE TALKINGABOUT.THAT IS THE FACT OF LIFE INTHESE KINDS OF SITUATIONS,YOU ARE DEALING INFANCY LANDTO SAY ALL OF THESE GARAGECOMPANY, THE USED CAR LOTSHAVE LIABILITY COVERAGE INALL OF THE VEHICLES.THAT IS PART OF THIS RECORD?>> OH, NO, NO, I DON'T THATIS TRUE AT ALL, YOUR HONOR.>> THIS WHOLE THING IS TODETERMINE IF THERE ISFINANCIAL RESPONSEK, THATRESTS WITH THE OWNER OF THEVEHICLE.BUT NONE OF THE CASE LAW FORTHIS POINT HAS CONDITIONEDTHE APPLICATION OF THISEXCEPTION ON THE ASSISTANCEOF COVERAGE.>> WELL, YOU ARE ARGUING,THAT IS THE FINANCIALRESPONSIBILITY, DID IMISUNDERSTAND YOU?EYE THOUGHT WERE YOUANSWERING THE QUESTIONS BYSAYING YES THE FINANCIALRESPONSIBILITY IS THE PARTOF THE EXCEPTION.NOW YOU ARE SAYING IT ISNOT?



>> NO.DLAFS RENS BETWEEN HAVINGINSURANCE ON TOP OF IT.>> FLORIDA ALWAYS LOOKED TOFINANCIAL RESPONSIBILITY INTHE TERMS FOR AUTOMOBILEDAMAGE, ON ROADWAYS ASHAVING INSURANCE.I MEAN THAT IS THE WHOLEIDEA, THE FINANCIALRESPONSIBILITY LAWS ALLCENTERED ON INSURANCE ORPOSTING A BOND.>> I UNDERSTAND THAT, BUTLOOK AT IT THIS WAY --DINNER EVERY AP MR. CATIONOF THIS, OF THIS EPTIONEXCEPTION, YOU HAVE OWNERWHO RELEAVE AS CAR ON THEREPAIR LOT.YOU DON'T COME AFTER THEINSURANCE, YOU DON'T COMEAFTER THE OWNER BECAUSETHERE IS INSURANCE THERE.THE TARGET OF LIABILITY ANDFAULT IS NOT DETERMINED BYTHE EXISTENCE OF INSURANCEIN THE CONTEXT OF THIS CASELAW.>> WE ARE USING UP YOUR TIMEVERY RAPIDLY WITH QUESTIONS,WE'LL LEAVE IT TO YOU.I UNDERSTAND THAT, I WANTEDTO MAKE ONE POINT ABOUT WHYTHE CONSIGNMENT SHOP FALLSIN THE SAME CAT GR RIFFREPAIR.JUDGE PARTICIPATED IN AVALLET CASE, IN FACT, WHENTHEY TALKED ABOUT EXAMPLE OFTURNING CARS OVER TOBUSINESSES WHERE THERE WOULDNOT BE LIABILITY, ONE OF THETHINGS IS A CAR DEALERSHIPWAS ACTUALLY MENTIONED.THIS CASE WAS CITED IN THECASTILLO DECISION, THEN THEBEST EXAMPLE WAS THE FRAUGHTCASE WHERE THE CAR WASBROUGHT, THE AUCTION, SIGNEDOVER, THE AUCTION NEAR TAKESIT, HITS SOMEBODY, THAT IS ASALE, IT ISINDISTINGUISHABLE TO THIS



CASE.THAT IS WHERE THE CONFLICTIS.>> YOU RELIED ALOUT ON THEMY MICHALEK CASE FOR THEPROPOSITION THAT ANY KIND OFSERVICE WOULD BE INCLUDE ONTHE EXCEPTION, CORRECT?BUT IN THAT CASE, THEY ALSOTALKED IN TERMS OF THAT THISSERVICE EXCEPTION ONLYAPPLIES IF THE VEHICLE, THENEGLIGENT USE OF THE VEHICLEIS DOING THE SERVICE OR THESERVICE-RELATED ACTIVITY.>> AND SO, WHY UNDER THECIRCUMSTANCES OF THIS CASEIS IT NOT APPLY BECAUSE AS IUNDERSTAND, YOUR CLIENT WASNOT, NOT YOUR CLIENT, BUTTHE DRIVER OF THE VEHICLEWAS NOT USING THE CAR FORSERVICE OR SERVICE-RELATEDACTIVITIES AND HE HAD TAKENTHE CAR OFF ON THE LOT.SO SINCE IT WAS NOT BEG USEDFOR THAT SERVICE, YOU SAY ITWAS BEING, THAT IT WASTHERE, WITH WHY DOES THISEXCEPTION NOT APPLY?>> YOUR HONOR, THINK THINKHE RECORD IS CLEAR, EVENOPPOSING COUNSEL WOULDAGREE, THE REASON HE HAD THECAR IN THE FIRST PLACE, HESAID HE REMOVED CAR, PART OFTHE DUTY OF TAKING THIS CARTO SELL IT IS TO SECURE IT.HE HAD VANDALISM ON THE LOT.HE REGULARLY WOULD TAKE THEHIGHER-END CARS OFF THE LOTAT NIGHT, SO THE REASON HEHAD THE CAR IN THE FIRSTPLACE IS THAT HE REMOVED ITFROM THE LOT.>> SO YOU THAT I FALLS INTOTHE CATEGORY OF SERVICE ORSERVICE-RELATED ACTIVITY?>> YES, IN FACT, YOU KNOW,THAT HAPPENED IN THE ROBERTSCASE.THE ROBERTS CASE WAS THE ONEWHERE THE REPAIRMAN TOOK THEJEEP, WENT TO THE BEACH IN



IT.HE HAD, THERE WAS ACTUALLY AQUESTION AS TO WHETHER ORNOT HE WAS TEST-DRIVING ITAT THE TIME BUT THAT FELLWITHIN THE EXCEPTION OFWELL.YOU LOOK WITHIN THE PUBLICPOLICY REASON, THE FACT THATMR. APONTE WAS USING IT FORSOMETHING THAT WAS TEN USE,MAYBE HE HAD IT OFF THE LOTFOR SECURITY PURPOSES, BUTIT WAS ALSO USING FORSOMETHING THAT COULD HAVENEVER BEEN ANTICIPATED BYMR. YOUNGBLOOD.THAT IS LESS REASON TO PINMR. YOUNG BOOD.>> THE REASON FOR VIEVICARIOUS LIABILITY.YOU HAVE CREATED A RISK BYPLACING THE VEHICLE THERE SOIT CAN BE USED IN THAT WAY,IF HE NEVER TAKEN THAT IWAY, IT WITH NOT HAVE BEENUSED THAT WAY.>> BUT FOT FOR THAT PURPOSE.>> THANK YOU, YOURON HONOR.THANK YOU YOU.>> OKAY.>> GOOD MORNING.MY NAME IS KEN DANDAR, THISIS MY THIRD TIME BEFORE THECOURT HERE IN 28 YEARS OFPRACTICE.>> THAT MEANS YOU ARE FAIRGAME.>> I AM FAIR GAME.>> DID YOU HAVE FUN THEOTHER?>> VERY GOOD RESULTS.IT WAS MEDICAL MALPRACTICECASE.>> HOW LONG RECORDS AREOBTAINED?>> I AM SURPRISED.I AM SURPRISED.I AM SURPRISED MICROFISH ISTHE BEST WAY BECAUSE CD CANBE OVER AGE, THEY WILLDESTROY THEMSELVES.>> THAT IS WHAT WE'RE TOLD.>> ANYWAY, LET ME ASK YOU A



QUESTION ON THIS.DO YOU AGREE WITH THE LOWERCOURT HERE THAT THE POLICYREASONS BEE HOND THE SHOPEXCEPTION LIE?>> NO.NOT AT ALL.IN FACT, I WILL BE SO BOLDAND JUSTICE PARIENTE MAYBEEVEN BOLD WE'RE HER COMMENT,I THOUGHT ABOUT THIS LASTNIGHT AS I WAS READING ANDGETTING PREPARED.THIS IS THE CASE WHERE THECOURT CAN LOOK AT THEDANGEROUS INSTRUMENTALITYLAW AND ABOLISH THEEXCEPTIONS OF SHOP RULE.IT MAKES NO SENSE.YOU KNOW, IN 1920 IN THESOUTHERN COMFORT CASE.YOU DON'T NEED TO ABOLISH TOWIN, DO YOU WANT TO GO THATFAR?>> WELL, I AM JUST SAYING, IAGREE WHOLEHEARTEDLY WITHTHE 2nd DISTRICT IN, THEYWERE ON POINT, BUT WHEN LOOKAT THE CASES -- DID>> IF I TAKE MY CAR DOWN TOPONTIAC, GIVE IT TO THESE,ASK THEM TO ALUNE THE TIRESON IT, AND TO CHECK IT OUT,MAKE SURE THAT IT IS NOT,THAT THE ALIGNMENT ISCORRECT, AND THEY DRIVE ITON THEIR LOT DOWN THERE ANDTHEY HIT SOMEBODY THAT THEYARE SHOWING A VEHICLE TOTHAT I AM STILL PRIMARYRESPONSIBLE FOR THAT?IS THAT THE RULE YOU WANT TOCOME OUT?>> I WANT THE RULE I WANTTHE COURT TO ADOPT.>> OKAY.>> HERE IS WHY.>> I UNDERSTAND YOURPOSITION.>> HERE IS WHY.IN THE CASE, MR. YOUNGBLOOD,TRIAL LAWYER FROM TAMPA,PRACTITION AS LONG AS IHAVE, HE TAKES HIS LEXUS, HE



IS NOW THE BENEFICIAL OWNEROF, WHICH I WANT THE COURTTO SAY, -->> PAID $175,000?ARE THEY PAID -- HAD HE PAIDTHE $175,000 THAT THEDIVORCE DECREE RIREDREQUIRED SAID THAT THIS WASTHE WIFE WAS TO TRANSFER THEOWNERSHIP IN 30 DAYSFOLLOWING THE PAYMENT OF$175,000, WAS THEIR RECORDESTABLISHED THAT THE WASPAID?I HAVE NO IDEA.SHE GOT ANOTHER CAR ON THESAME INSURANCE POLICY.HE KNEW THIS.THE CAR SAT AT HIS HOUSE.HE TOOK OVER.>> DID HE TRANSFER THETITLE?>> NO, THEY NEVER DID THAT.WHY, I DON'T KNOW.>> RIGHT.>> HE WAS THE BENEFICIALOWNER BECAUSE HE WAS LIABLESOLELY ON THE NOTE, HE TOOKIT TO THE UNDER CITIES OFTAMPA TO A USED CAR LOT,FISHER AUTOS FIRST, NEXTDOOR WAS THIS EXTREME AUTO,HIS DEPOSITION ON THE RECORDSAYS THE FISHER AUTO HAD NOSPACE FOR IT.>> AS I UNDERSTAND IT, THETRIAL COURT FOUND THERE WEREGENUINE ISSUES OF FACT OFOWNERSHIP.WE HERE ARE ASSUMING OWNERSHIP, BUT THAT IS STILL -->> THE 2nd DISTRICT SAID THESAME THING.>> ALL RIGHT.I UNDERSTAND YOU AREANSWERING THOSE QUESTIONS.WE GOT TO ASSUME FOR THEPURPOSES HE IS THE OWNER.MY QUESTION TO YOU AS IF ASWHY, AGAIN, ON ONE HAND, IWAS LOOKING AT THAT LAST OFTHE POLICY REASON, BUT IFYOU LOOK AT THE OTHER POLICYREASONS, WHETHER IT IS, YOU



ARE SENDING SOMETHING TOHAVE YOUR CAR CLEANED, OKAY,WE HAVE APPLIED IT OR SAIDWE'RE APPLYING IT THERE, ICAN'T IMAGINE HOW IN A CARCLEANING, WE WOULD THINKTHAT PART OF IT, THEY AREGOING TO TEST-DRIVE OURVEHICLE.WE DON'T CARE, SEEM TO CAREFOR THE EXCEPTION AS TOWHETHER THEY GOT FINANCIALRESPONSIBILITY OR NOT.AND I AM HAVING A HARD TIMEDISTINGUISHING AND SAYINGWHY THE SAME POLICY REASONTHAT APPLY BEYOND BECAUSE ITHINK THAT THIS SENDING ITTO AUTOMOBILE SERVICE PLACETO ALAIN YOUR FRONT END ISDISCREET SERVICE THAT ISUNIQUE.WE HAVE APPLIED IT.IT HAS BEEN APPLIED BEYONDTO A WHOLE HOST OF THINGSLIKE CAR CLEANING AS ANEXAMPLE.WHY ISN'T THE FACT THAT WHENYOU HAVE, YOU KNOW, AFTERYOU HAVE GIVEN OVEROWNERSHIP, I MEAN, CONTROL,AND UNDERSTOOD WITHIN THATIS THAT DRIVING OF THEVEHICLE MAY BE INCLUDED.THAT YOU HAVE NO MORECONTROL OVER OR AUTHORITYJUST LIKE, YOU KNOW, WHYISN'T THE SAME POLICYREASONS APPLICABLE HEREBECAUSE WE NEVER SAID THATPART TO IT THAT THERE HASGOT TO BE A REQUIREMENT THATTHEY NEED TO TEST-DRIVE ITIN ORDER TO DO THE SERVICE,WE SEEM TO PUT IT ALTOGETHER.>> BUT JUST LOOK ATCASTILLO, THAT IS WHEN YOUFIRST ANNOUNCED IN 1970,THAT THE, THAT THE REPAIRPERSON IS GOING TO BEEXCEPTION TO THE RULE.THE 1920 CASE SAID THE OWNERHAS -- I WILL THROW OUT ALLCASES BY THE COURT, THE



OWNER IN THE BEST POSITIONTO INSURE FINANCIALRESPONSEK, THE OWNER HAS ADUTY, THE OWNER IS STRICTLYLIABLE FOR THE OPERATION OFTHE VEHICLE TO WHOM HEENTRUSTS IT TO EXCEPT WHENYOU GET TO REPAIR SHOP, SOIF YOU TAKE IT TO JOE BLOW'SBRAKE SERVICE WHO WORKS OUTOF A STORAGE PLACE, HE IS ONTHE BUSINESS OF FIXING YOURBRAKES, YOU, THERE IS NOINSUREABILITY THERE, YOUWALK AWAY FROM IT, HE ISJUST WEEKEND MECHANIC, HETRIES TO FIX YOUR BRAKE.I DOUBT THIS COURT IN THECASE IS GOING ELIMINATE SHOPEXCEPTION.I THINK WHAT I AM ASKINGYOU, ASSUMING IT EXIST,ASSUMING YOU ITS PERIMETER,WHY AREN'T THE SAME EXACTPOLICY REASONS APPLICABLE?>> OKAY.SORRY.THIS IS A CONSIGNMENT OF ACAR.EVERYBODY IS GOING TO MAKEMONEY.THIS IS NOT A REPAIR ANDSERVICE.THIS COURT HAS ALWAYS SAIDIT IS REPAIR AND SERVICE.>> I GUESS ONE OF THEREASONS FOR THE SHOPEXCEPTION IS THAT ONCE THATOWNER TURNS OVER THE CAR,THAT OWNER HAS NO CONTROLOVER WHO DRIVES THE CAR.THEY CAN ASSIGN IT TO LITTLETEDDY WHO IS 16-YEAR-OLD, GOTEST-DRIVE THIS CAR FOR US,AND LITTLE TEDDY GETS IN ANACCIDENT, HE DOESN'T EVENHAVE A LICENSE.AND THE OWNERS INTO CONTROL,AS SOON AS HE GIVES THATYOU, HE DOESN'T KNOW WHO ISGOING TO BE DRIVING, WHO ISGOING TO BE FIXING IT.WHY ISN'T THAT THE SAME CASEWITH REGARD TO CONSIGNING IT



TO SELL THE VEHICLE?>> BECAUSE THIS COURT HASSAID THAT ENDOWMENTSITUATIONS, IN THE CASEWHICH I CITE FROM THIS COURT2000 SAYS IF IT IS BELLMENTSITUATION, THE OWNER REMAINSLIABILITY, NO MATTER WHO ISDRIVING THE CAR.AND TO BE CONSISTENT, THISIS A SITUATION, THE OWNERMUST REMAIN LIABILITY.I AM PERSONALLY DISAGREEINGWITH YOUR SHOP RULEEXCEPTION.I DON'T THINK IT MAKES ANYSENSE BECAUSE -->> WHAT IS THE MAJORITY RULEON THAT?>> PARDON ME.>> WE ADOPTED BASICALLY THERATIONAL CASTILLO AND HEARDFROM THE CASE FROM THE FIRSTDCA, THEY RELIED ON THEMAJORITY RULE.WHAT IS THE MAJORITY RULE INTHE JURISDICTION OUTSIDE OFTHE STATE OF FLORIDA, USWHAT THE MAJORITY RULE?>> RIGHT.OUTSIDE OF THE STATE OFFLORIDA, THIS DOESN'T EXIST.THE OWNER, THE OWNER ISLIABILITY FOR THE OPERATIONOF THE CAR UNTIL HE LETSSOMEONE ELSE DRIVE IT.A WE ARE UNIQUE IN FLORIDAIN HAVING THE DANGEROUSINSTRUMENTALITY DOCTRINE ATALL.>> IT IS A GREAT DOCTRINE.IT MAKES SENSE.IT IS A KILLING MACHINE.NO, YOU ARE PUTTING AKILLING MACHINE OUT THERETHAT CAN KILL ANYBODY.>> FOR A LONG TIME HAD THISSHOP DOWN THUN THE 4thDISTRICT, THERE IS THE CASEON THE VALLET PARKING ANDVALLET PARKING AND IT SEEMSTO ME, THAT MAKES SOME SENSETHAT YOU TAKE YOUR CAR IN TOA RESTAURANT AND TURN IT



OVER TO THE VALLEY PARKERAND THEY HIT SOMEBODY, ASTHEY ARE PARKING YOUR CARTHAT THIS CONTRACTOR OUGHTTO HAVE PRIMARYRESPONSIBILITY.>> ANOTHER CASE UNDER THE5th ON THE AUCTION.>> THAT IS RIGHT.>> WE HAVE WELL-ESTABLISHEDLAW.IF YOU ARE ASKING THIS COURTTO THROW THAT OUT THEWINDOW.>>>> I AM ASKING THE COURT TOLOOK AT THE RATIONALORIGINALLY ON THE DANGEROUSINSTRUMENTALITY DOCTRINE ANDWHEN YOU START MAKINGEXCEPTIONS TO IT, IT MAKESNO SENSE IN MY HUMBLEOPINION.>> SO YOU ARE ARGUINGCONSENT IN CASTILLO.>> EXACTLY.>> IT MAKES NO SENSE.THE VALET PARKER COULD BE18-YEAR-OLD KID WHO DECIDESTO OPEN UP YOUR OWN BUS NYEAH, GO PARK MICAH, HE KIMIS.YOU ARE SAYING, GEE, I AMSORRY, THE RESTAURANT SAIDHE IS PENT CONTRACTOR.WE NEVER SAID, THOUGH, IF WEARE GOING WITH PRECEDENT,VALLEY PARKING AUCTION, THATIS WHY YOU ARE TRYING TOTELL US TO DUMP THIS WHOLETHING BECAUSE YOU CAN'TDISTINGUISH IN GOOD FAITHTHOSE SITUATIONS FROM THISCONSIGNMENT WHICH IS WHETHERIT IS WRITTEN OR NOT IS MUCHMORE, TO ME, CLOSER TO THEAUTOMOBILE SERVICE THANVALET OR VALET PARKINGSITUATION IT.>> WELL, RIGHT, THE PARKINGIS NOT A SERVICE TO THE CARWHICH THIS COURT SAYS ISEXCESS.IT IS SERVICE TO THE OWNER.



>> RIGHT.WE HAVE OR HAVE NOT HELD THEOWNER LIABLE IN THE PARKINGSITUATION?>> YOU HAVE MOT.THE APPELLATE COURT HAS.>> THATS THERE WAN ANEXCEPTION.>> YES.>> THE ONLY CASE THAT HOLDSTHAT.>> THAT IS SUPPOSEDLY IN THESHOP SERVICE, THERE IS NO,THERE IS CERTAINLY NOT ASERVICE, I MEAN, IN OTHERWORDS, THAT WOULD BE A CASETHAT IF WE FOLLOW YOUR, ATLEAST, DISTIPTION TO KEEP ITVERY NARROW, FOR EXAMPLE, TOTHE USUAL SERVICE, YOUWOULDN'T HAVE CLEANING, YOUKNOW, CAR CLEANING SERVICES,YOU WOULD NT HAVE ALETSWITHIN THIS EXCEPTION ATLEAST.>> BECAUSE I THINK THEPARAMOUNT PUBLIC POLICYANNOUNCED BY THE COURT IS,THE OWNER MUST BE FINANCIALLYRESPONSIBLE TO PROTK THEVICTIM, THE OWNER CAN THENTURN AROUND AND SUE THECLEANING SERVICE, THE CARDEALERSHIP FOR THE NEGLIGENTOPERATION, BUT IT IS ONLYTHE OWNER THAT REALLY CARESABOUT AND IS CHARGED WITHTHE RESPONSIBILITY TO MAKESURE HIS CAR IS ENSUREDFINANCIAL RESPONSIBLE FORTHE DAMAGE OF THE VICTIM, ITHINK THE COURT NEEDS TOLOOK AT THE VICTIM'S POINTOF VIEW, THAT THE OWNER,THEY CAN FIGHT AMONGST EACHOTHER, WHO IS PRIMARILY ANDSECOND ARY, THAT KILLINGMACHINE, SOMEBODY NEEDS TOBE FINANCIALLY SEE, COULDYOU RESPONSEK, ONLY THEOWNER US THE ONE THAT CARESABOUT THAT.>> DO YOU CONCEDE IN THEINSTANCE THAT THERE WAS A



CONSIGNMENT AGREEMENT?>> THERE WAS AN ORALCONSIGNMENT AGREEMENT.>> THAT WAS NEVER SIGNED BLYYOUNGBLOOD WITH EXTREME.>> WHAT IS -- TAKING ITTHEIR PERSPECTIVE, WHAT DOYOU -- WHAT WERE THE TERMSOF THEIR CONSIGNMENTAGREEMENT?>> THE CONSIGNMENT AGREEMENTWAS MR. YOUNGBLOOD ONLYWANTED HIS INTERESTED ASGETTING OFF THE NOTE ON THECAR HE WAS SOLELYRESPONSIBLE.>> 165?>> CORE REB.WHICH HE ACTUALLY GOT OFF OFIT BECAUSE THE CREDIT UNIONHAD ITS OWN INSURANCE, PAIDOFF THE LOAN.>> YEAH.>> SO HE IS NOT A VICTIM.THE APONTE WAS GOING GETCOMMISSION NO MATTER WHATTHE CAR SOLD FOR BUT NEVER ASTANDING IN HOW MUCH THECOMMISSION WOULD BE.FURBER AUTO SALES GOING TOGET A PIECE OF THE COME MIX,BECAUSE IT REFERRED THE CAROVER TO APONTE.>> ANYTHING ON THE RECORDABOUT THAT?> IT IS ON THE RECORD INAPONTE'S DEPOSITION.RIGHT, AS TO THE CONDITIONSOF THEIR HAVING THE CAR INTHEIR POSSESSION, WHEN ITCOULD BE USED.>> OH, NO.>> GOING TO BE PICKED BACKUP.>> NO.>> HOW LONG THE CONSIGNMENTAGREEMENT?>> NOTHING.THERE WAS ENDOWMENT TO PICKUP THE CAR ANY TIME HEWANTED TO TO TAKE IT BACKOHM.>> NO DIFFERENT THAN IF IGOT A 17-YEAR-OLD NEIGHBOR



IS AT THE HIGH SCHOOL, I GOTA VEHICLE THAT MAY BE HOTFOR HIGH SCHOOL KID, I TELLHIM TO PUT A FOR SALE SIGNIN, THIS YOU TAKE IT ANDDRIVE IT TO SCHOOL BACK ANDFORTH, WILL CONSIGN IT TOYOU, WE'LL SEE IF WE CAN'TGET THAT THING SOLD?>> IT IS NO DIFFERENT?>> NO, THIS COURT HAS HELDMORE THAN ONCE THAT HE OWNEROF THE CAR IS LIABLE.>> YOU KNOW, YOU WANT US TOOVERRULE THIS WHOLEEXCEPTION.UR DON'T HAVE TO DO THAT INTHE CASE.I UNDERSTAND.BUT YOU MUST THINK WE HAVEJURISDICTION IN THE CASE,THERE A CONFLICT?>> THERE IS A CONFLICT WITHTHE VALLET PARKING CASEBECAUSE THAT IS NOT SERVICEAND REPAIR.YOU SEE THE SECOND DISTRICTSTATED, YOU ARE PROVIDINGSERVICE TO THE OWN MER.>> THE CASE BELOW DECIDEDNOT TO EXTEND THE SHOPKEEPER'S EXCEPTION TO THISCASE AND DETERMINE THAT THEOWNER WAS LIABLE.>> YES.>> RIGHT?>> I AGRI WITH THAT.UNDER THE EXCEPTION THATCONFLICT WTION THE VALLETCASE?>> I AM SAYING THAT THEDECISION DISAGREES ANDCONFLICTS WITH THE VALLETCASE, IT MAY DISAGREE,CONFLICT WITH THE FOUGHTCASE WHICH IS EMPLOYEESTRIKING ANOTHER EMPLOYEE ONTHE AUCTION YARD WHERE THEOWNER, A DEALER, HAD THEOPTION TO DRIVE THE CARHIMSELF, BUT CHOSE TO LETEMPLOYEE OF THE AUCTION YARDDRIVE THE CAR AND HE HITANOTHER EMPLOYEE.



I THINK THAT IS -- DOESN'TFIT THE PUBLIC POLICY UNDERCASTILLO AND SOUTHERNCOMFORT BECAUSE THAT IS TWOMOMENTEES HURTING EACHOTHER, BUT IT IS -->> THROWS DIFFERENT FACTS,HOW DOES THAT CONFLICT WITHTHIS CASE?>> WELL, IT CONFLICT ASLITTLE BIT BECAUSE THERE ISNO SERVICE AND REPAIR TO THECAR.>> IT MAY SEEM LIKE SOUTHERNCOMFORT.IT IS ACTUALLY SOUTHERN CAR-->> I WAS WONDERING WHAT CASETHAT WAS.MAYBE SOMEBODY IN THIS CASEWAS DRINKING SOUTHERNCOMFORT WHEN THE ACCIDENTECURED.>> I MADE THAT MISTAKE.>> ONE OF THE THINGS WE DOLOOK TO IS TRY TO UNDERSTANDHOW SOMETHING IMPACTS IN THEREAL WORLD OF INSURANCE,JUSTICE LEWIS WAS GIVINGREAL LIFE EXAMPLES.THE QUESTION HERE, AND IF ITIS NOT IN THE RECORD, DID KMR. YOUNGBLOOD HAVEINSURANCE?IN OTHER WORDS, THE WAYINSURANCE WORK, HE DOESN'T?>> KNOWINGLY LET IT LAPSE.>> IF HE -- IF HE HADINSURANCE, WOULD A POLICY,DO YOU KNOW, WOULD THEPOLICY COVER IT, DOES THEPOLICY COVER, FOR EXAMPLE,WHEN SOMEBODY BRIDGES AVEHICLE TO THEIR REPAIR SHOP-->> ABSOLUTELY.>> THE IDEA THAT WE WITHACTUALLY IN TERMS OF THAT,IF WE ELIMINATED THE SHOPEXCEPTION, THERE IS NOTHINGIN STANDARD OR THEIRPOLICIES THAT WOULD PREVENTTHE OWNER'S COVERAGE FROMBEING PRIMARY IN THESE



CASES?>> CORRECT.>> THE CONE -- THE INSURANCECOMPANY SAYS WE PROVIDELIABILITY COVERAGE TO YOU INTHE EVENT OF BODILY INJUREDCAUSED BY YOUR INSUREDVEHICLE.OF COURSE, THERE ISEXCEPTION FOR THEFT, UNLESSTHE OWNER PROVIDES THEOPPORTUNITY LIKE WE, LEFTYOUR KEYS IN IGNITION, EVENTHEN, THERE IS LIABILITY ASLONG AS IT IS A REAL THEFT,BUT THE OWNER'S NEGLIGENTFOR DOING THAT, BUTBASICALLY, NUMBER ONE IS, IWANT THE COURT TO AGREE WITHTHE 2 RND DISTRICT.THE 2nd DISTRICT WAS RIGHT.THE WORDS OF THE DECISIONSOF THIS COURT EXCEPT FOR THEDISTRICT COURT OF APPEALS INTHE VALLET PARKING, WHAT IFYOU WENT AND HAD A CHURCHCAR WASH, ONE OF THE KIDSGETS IN YOUR CAR WHILE YOUARE TALKING TO PARENT,DRIVES THE CAR AND YOU KILLSANOTHER KID.OH, I AM A CAR WASH, THIS ISA CHURCH CAR WASH, I AM ATAT CAR WASH, I AM NOTLIABILITY ANYMORE?THAT IS HOW THIS CAN GETEXTENDED?THAT IS WHY I THINK THERE ISALL THESE CASES, I AM TRYINGTO CUT BACK THE WORK ALITTLE BIT, THAT IS WHY ALLOF THE CASES GOING ANDCOMING RULE, WHAT, MICHALEK,THIS COURT HELD THE REPAIRSHOP IS BRINGING THE CARBACK TO THE OWNER AT HISRESIDENCE, THE OWNER ISLIABILITY FOR THE ACCIDENT.WHY?I DIDN'T CHOOSE THE PERSONFROM THE REPAIR SHOP TODRIVE 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 KINDOF USE WOULD OCCUR WHITETHERE IS IF THEY ARESUPPOSED TO BE CLEANING YOURCAR.IT DOES SEEM THAT THERE IS,SOME INCONSISTENCY, SO ASYOU SAY, WEAN THE SHOPSERVICE EXCEPTION, WE DON'TREQUIRE THAT IF YOU BRINGYOUR CAR INSTEAD OF BRINGINGIT TO THE REPUTABLE SERVICEAGENT, IF YOU BRING IT TOSOMEONE ELSE WHO IS A SINGLEPERSON TO HAVE THE VEHICLESERVICED, THAT THIS, THEREIS NOT A DIFFERENCE WHETHERTHE DANGEROUSINSTRUMENTALITY IS GOING TOBE HERE APPLIED OR NOT.>> THERE IS NO DIFFERENCE.IT JUST DESTROYS ALL THEDECISION, THE BASS BASIS OFTHE DECISION, STRICTLIABILITY, YOU ALL KNOW, YOUARE THE ONE THAT HAS THEBEST POSITION TO PROVIDEFINANCIAL RESPONSEK.IT DESTROYS IT.>> THAT WAS ORIGINALLY FOUNDON RESPONDEAT SUPERIOR, THATDOESN'T EXIST IN THE CASE?>> IN THE CASE?YOU KEEP GOING BACK TOORIGINAL DOCUMENT, WE NEEDTO GO BACK TO THE ORIGINALDOCTRINE, THAT ORIGINALDOCTRINE WAS IN THO THOSETHINGS YOU WERE JUSTMENTIONING BECAUSE THERESPONDEAT SUPERIORRELATIONSHIP.>> CORRECT.CORRECT.THEN THE COURT SAID IT ISNON-DELLABLE DUTY, STRICTLIABILITY.>> BASED ON THERELATIONSHIP?>> CORRECT.CORRECT.CORRECT.



BUT IN OUR BOX IN 2000, THISCOURT SAID IT WAS APPEARANCE,IF IT IS ABELMONT, THE ENNER IS LIABILITY.THIS IS DEFINITELY ONE, THE2nd DISTRICT AGREED WITH,THAT HELD THAT WAY, I DON'TSEE HOW YOU MAKE ANEXCEPTION NOW WHEN ALL YOURPRIOR DECISIONS SAID THEOWNER IS LIABLE FOR THE CAR,THE NEGLIGENT OPERATION OFTHE CAR.>> THERE IS WITH SERVICE ANDREPAIR, TOO.RIGHT?>> WHICH CAUSES MYCONFUSION.I MEAN, IT IS -- IT IS LIKEEVERY CASE IS DIFFERENTANALYSIS AND YOU CAN REALLY,YOU CAN'T PUT THEM ALLTOGETHER AND SAY THIS ISCOHERENT.THAT ISY WAS SO BOLD TOLLSAY, YOU KNOW, LOOK AT THEEXCEPTION.I MAKES NO SENSE, REALLY, INMY HUMBLE OPINION, IT MAKESNO SENSE BECAUSE YOU CANTAKE IT TO THE GARAGEMECHANIC, VERSUS THE BIGDEALERSHIP, THIS COURT SAID,IT MAKES NO DIFFERENCE WHATKIND OF SERVICE, BUT THE 2ndDISTRICT IS ABSOLUTELYCORRECT.THIS IS NOT SERVICE ANDREPAIR.I AM PROVIDING A SERVICE OFSELLING YOUR CAR.I AM GOING TO MAKE MONEY ONTHAT.YOU ARE GOING TO MAKE MONEYON THAT.THAT IS A BUSINESS VENTURE.THAT IS WITH THE BESTEXAMPLE, THERE IS NORECEPTION RESTRICTION ONPICK UP THE CAR.YOU CAN COME BACK ANY TIME.THERE IS NOTHING WRITTEN.>> WE HAVE USED UP ALL OFYOUR TIME.



WE THANK YOU.>> THANK YOU VERY MUCH.>> OKAY.>> WE'LL GIVE HOW MUCH TIMEDO WE HAVE LEFT?>> I DON'T THINK I HAD ANY,YOUR HONOR.>> WELL, WE'LL GAUF LITTLETOOIL.>> WELL, I WANTED TO FOLLOWUP ON WHAT JUSTICE BELL WASSAYING, THAT IS THIS THING.WHENEVER THE DANGEROUSINSTRUMENTALITY DOCTRINE ISINVOKED EVERYBODY FORGETSWHAT THE BASIS WAS FOR.IT WAS RESPONDEAT SUPERIOR,THE REASON WHY THAT ISCENTRAL TO THE ANALYSIS INTHIS CASE BECAUSE IT IS ALLABOUT TURNING OVER CONTROLOF THE VEHICLE.THERE IS NO DOUBT IN THISCASE, JUST LIKE IN A REPAIRSHOP, JUST LIKE IN A VALLETSERVICE, JUST LIKE IN THECASE.>> YOU WOULD NEVER HAVE ITFOR ANY, EVER?>> NO, THE BAIL AM, IN FACT,THE JURY INSTRUCTION SAYSTHERE IS VICARIOUSRESPONSIBILITY FOR BAILMENTEXCEPT, THERE IS ACOMEMENTS, IT SAYS, EX SETIN THE CASTILLO-MICHALEKSITUATION, BECAUSE CONTROLHAS BEEN TURNED OVER TO THISENTITY FOR SOME PURPOSEOTHER THAN DRIVING THE CARAROUND TOWN AND THAT IS WHENIT IS NO LONGER A RESPONDEATSUPERIOR SITUATION.IT IS INDEPENDENT CONTRACTORSITUATION.THAT IS HOW THE RULE GRURXIT CAME WERE THE '6Os INCASES LIKE FRYE-PETTITTESAID, LOOK, THIS ISDIFFERENT FROM WHAT CREATEDTHE DANGEROUSINSTRUMENTALITY DOCTRINE.THAT WAS ADOPTED BY HARFRED,IT WAS ADOPTED BY THIS



COURT, IT WAS DEFINED BY MYCHAL LEG, FURTHER DEFINED BYTHE VALLET CASE AN ON THECASE AND FORM AS COHERENTRULE THAT IS BASED ON THATCONTROL AND THIS CASE LIESON THE DEAD CENTER OF IT.IT IS NOT DIFFERENT.THEREFORE, IT IS IN CONFLICT.>> THE SAME THING WOULDAPPLY, THE EXAMPLE THAT IASKED.I HAVE A 17-YEAR-OLDNEIGHBOR, I WANT HIM TOADVERTISE IT FOR HIM.I WANT TO COON SIGN IT FORME HE CAN TAKE TO IT HIGHSCHOOL.I WANT YOU TO RUN AROUNDWITH THE FOLKS, WITH THE FORSALE SIGN, THAT WOULD THENBE PROTECTED UNDER THISSCENARIO?>> I DON'T THINK SO BECAUSEI THINK THE LANGUAGE OF THERULE, IT IS AUTO SERVICEAGENCY.I THINK THAT IMPLIES WITHTHE COMMERCIAL.I THINK THAT IS FAIR.>> NOW AGAIN, THAT ISY SAYWE HAVE NEVER DONE THAT FORSERVICE REPAIR YOU CAN BRINGYOUR VEHICLE, THE JIMMY, YOUKNOW, DOWN THE BLOCK, AND WEARE STILL APPLYING IT, SO IGO BACK TO THAT IF WE AREGOING TO LOOK AT THIS INTHIS CASE, IT WOULD SEEMTHAT WE NEED TO STRENGTH INTHE ISSUE OF THE NATURE OFTHE ENTITY THAT IT IS BEING,IT YOU DOING WHATEVER IT ISBEING DONE TO YOUR VEHICLE.IN ORDER TO SHIFT THATRESPONSIBILITY.>> MY CLIENT WITH WOO HAVENO PROBLEM, YOUR HONOR, THISIS CLEARLY AN ARM'S LINKTRANS ACTION WITH A CAR LOT.>> WITH OUR ASSISTANCE, YOUARE ABOUT FIVE MINUTES OVER.WE APPRECIATE THE ARGUMENT,WELLS'S TALK THE KANSDER



ADVISEMENT.THE COURT WILL TAKE THEMORNING RECESS.>> ALL RISE.

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T. Patton Youngblood v. Estate of Reinaldo Villanueva SC06 … · estate of reinaldo villanueva sc06-1205 we'll move to our next case this morning, which is youngblood versus villanueva.,,