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Ashe v. Enterprise Rent-A-Car12/17/2003
e Passenger Exception
The general rule in Maine and elsewhere is that an owner of a vehicle is not liable for the torts of vehicle operators who are not employees or agents. See Mahar v. Stonewood Transport, 2003 ME 63, 15-24, 823 A.2d 540, 545-46, (owner/employer not liable for torts committed by operator outside of scope of employment); Fuller v. Metcalf, 125 Me. 77, 81, 130 A. 875, 876 (1925) (acknowledging "the general principle of non-liability for torts committed by others"); see also Francis M. Dougherty, Construction and Application of Statute Imposing Liability Expressly Upon Motor Vehicle Lessor for Damage Caused by Operation of Vehicle, 41 A.L.R. 4th 993 (1985 & Supp. 2003).
In 1929, the Maine Legislature altered the common law rule by making the owner of a rental vehicle jointly and severally liable with the renter for damages caused by the renter's negligence. P.L. 1929, ch. 327, § 26. The statute limited the exception to the common law rule by providing that it "shall not confer any right of action upon any passenger in any such rented vehicle as against the owner." Id. The version of this statute in effect at the time of the accident, 29 M.R.S.A. § 1862 (1978), provided:
The owner of a motor vehicle engaged in the business of renting motor vehicles, with or without drivers, who rents any such vehicle, with or without a driver, to another, otherwise than as part of a bona fide transaction involving the sale of such motor vehicle, permitting the renter to operate the vehicle upon the public ways, shall be jointly and severally liable with the renter for any damages caused by the negligence of the latter in operating the vehicle and for any damages caused by the negligence of any person operating the vehicle by or with the permission of the person so renting the vehicle from the owner, except that the foregoing provisions shall not confer any right of action upon any passenger in any such rented vehicle as against the owner. Nothing herein contained shall be construed to prevent the introduction as a defense of contributory negligence to the extent to which such a defense is allowed in other cases.
29 M.R.S.A. § 1862 (emphasis added). The comparable portion of the current version reads: "This section does not give to a passenger in a rented vehicle a right of action against the owner." 29-A M.R.S.A. § 1652(3) (1996).
Ashe contends that the common law rule and the statutory passenger exception were modified when the Legislature enacted mandatory coverage for rental vehicles. The Legislature first required owners of "vehicles for hire" to acquire insurance or a bond in 1935. P.L. 1935, ch. 131, § 54-A. The statute was amended in 1963 specifically to require coverage for "U-Drive Motor Vehicles." P.L. 1963, ch. 82. The version of that statute in effect on the date of the accident, 29 M.R.S.A. § 2708-A, required the owner of any motor vehicle for rent to "procure insurance or a bond covering the operation of that vehicle," and present proof thereof to the Secretary of State. The statute provided:
1. Insurance, bond, or self-insurance required. The Secretary of State may not register any motor vehicle for rent, lease, hire or livery and a person may not operate or cause to be operated on any public highway in the State such a motor vehicle until the owner or owners of that vehicle procure insurance or a bond covering the operation of that vehicle by:
A. Presenting a valid and sufficient insurance policy . . . ;
B. Presenting a good and sufficient indemnity bond, approved by the Secretary of State, bonding the applicant in an amount the Secretary of State prescribes and having as surety . . . a
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