LIBERTY MUTUAL INSURANCE COMPANY ET AL., APPELLANTS,
v.
OLGA SCAMMACA, INDIVIDUALLY AND F/U/B/O ALLSTATE INSURANCE COMPANY, APPELLEE
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The court held that while instructing the jury on common law conversion was error, it was harmless error because the evidence only supported unauthorized use, not conversion.
A rental car company sued its insurer after a judgment was entered against the company and its renter following an accident caused by a minor using th…
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PEARSON, Judge.
The defendant, A-l Auto Leasing, Inc., and its insurer appeal a final judgment based on a jury verdict. The final judgment was entered in favor of the plaintiff in an action for subrogation arising out of a personal injury case.
The rental car company had rented a car to one Martinez, who left the country, entrusting the car to a relative. Thereafter, during the rental period, a minor living in the same home as the relative used the car and had an accident. The plaintiff recovered a judgment against the defendant-driver and the rental company. This action was for the purpose of determining the liability of the rental company’s insurer. The defendant rental company and its insurer defended upon the basis that the use by the minor had been a conversion of the automobile. The jury found for the plaintiff and this appeal followed.
The only substantial issue presented goes to the correctness of certain instructions given by the trial court. The trial court did instruct the jury as requested by both parties upon the law applicable to common law conversion. In our view this was error, but harmless error. Under the holding of the Supreme Court of Florida in Roth v. Old Republic Insurance Company, Fla. 1972, 269 So. 2d 3, and Susco Car Rental System of Florida v. Leonard, Fla. 1959, 112 So. 2d 832, the plaintiff was entitled to a directed verdict upon the evidence presented, there being no substantial evidence to support a conversion but merely evidence of an unauthorized use.
Affirmed.
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Puritan Ins. Co. v. Commercial Credit Equip. Co., 441 So. 2d 680 (Fla. 3d DCA 1983)…PER CURIAM. Affirmed. Sandron Corp. v. Utica Mutual Insurance Co., 360 So. 2d 477 (Fla. 3d DCA 1978); Liberty Mutual Insurance Co. v. Scammaca, 303 So. 2d 46 (Fla. 3d DCA 1974); Americas Aviation & Marine Insurance Co. v. Beverly Bank, 229 So. 2d 314 (Fla. 3d DCA 1969); National Casualty Co. v. General Motors Acceptance Corp., 161 So. 2d 848 (Fla. 1st DCA 1964); § 627.428(1), Fla.Stat. (1981).…
Authorities Cited
- Miller v. Miller, 112 So. 2d 832 (Fla. 1959)
- Susco CAR Rental Sys. OF Fla. v. Leonard, 112 So. 2d 832 (Fla. 1959)
- Roth v. OLD Republic Ins. Co. & N. River Ins. Co., 269 So. 2d 3 (Fla. 1972)