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Miami Stage Lighting Inc. v. Budget Rent-A-Car Systems Inc.6/10/1998
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
LOWER TRIBUNAL NO. 96-15391
An Appeal from the Circuit Court for Dade County, Phillip Bloom, Judge.
Miami Stage Lighting, Inc. ["Miami Stage"], and Gustavo Laureano appeal a final judgment in favor of Budget Rent-A-Car Systems, Inc. ["Budget"]. We reverse.
In October 1994, Miami Stage leased a vehicle from Budget. A few days thereafter, Laureano, a Miami Stage employee, was driving the vehicle and collided with Jorge Diaz's vehicle. Diaz sued Miami Stage and Laureano. Miami Stage and Laureano filed a third-party complaint against Budget seeking a declaration that Budget's liability insurer was the primary insurer of the vehicle. Defendants argued that the risk-shifting clause in Budget's rental agreement did not comply with the section 627.7263(2), Florida Statute (1993), requirements sufficiently to shift the burden of primary insurance coverage to Miami Stage. Both parties moved for summary judgment on this issue. The trial court granted Budget's motion, finding that the rental agreement between Budget and Miami Stage complied with the statute.
The trial court erred in granting Budget's motion. The risk-shifting clause did not satisfy the requirements of section 627.7263(2), necessary to shift the burden of primary insurance coverage to Miami Stage. Section 627.7263(2), Florida Statute (1993), provides:
(1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss . 324.021(7) and 627.736.
(2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the name of the lessee's insurance company if the lessor's insurance is not to be primary.
(Emphasis added). Budget's rental agreement contains the following risk-shifting clause in capital letters:
PERSONAL INJURY AND PROPERTY DAMAGE TO OTHERS: ALL VALID AND COLLECTIBLE LIABILITY INSURANCE, PERSONAL INJURY PROTECTION INSURANCE AND/OR OTHER PROTECTION AVAILABLE TO THE RENTER AND ANY AUTHORIZED DRIVER IS PRIMARY. BUDGET PROVIDES PROTECTION (AS DESCRIBED IN PARAGRAPHS 5 AND 6) ONLY TO THE EXTENT IT IS NEEDED TO MEET THE MINIMUM FINANCIAL RESPONSIBILITY LIMITS REQUIRED BY APPLICABLE LAW AFTER PAYMENT OF ALL INSURANCE AND PROTECTION AVAILABLE TO THE AUTHORIZED DRIVER.
We are not persuaded by Budget's argument that this clause is sufficient to alert the lessee that its insurance is primary.
Section 627.7263, permits lessors to shift the burden of providing primary insurance coverage for leased vehicles to lessees. However, to shift the burden, pursuant to section 627.7263(2), the rental agreements must inform the "lessee of the provisions of subsection (1) . . . ." ยง 627.7263(2). Nowhere in Budget's clause is the lessee alerted to the existence of the statute. All clauses that have been held sufficient to shift this burden, at a minimum, inform the lessee that the lessee bears the burden pursuant to section 627.7263. Glover v. Scamp Auto Rental I, Inc., 682 So. 2d 562 (Fla. 2d DCA 1996); McCue v. Diversified Servs., Inc., 622 So. 2d 1372 (Fla. 4th DCA 993); Government Employees Ins. Co. v. Ford Motor Credit Co., 616 So. 2d 1186 (Fla. 4th DCA), review dismissed, 6
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