What'cha gonna do brother when Hulkamania runs wild on you? A practitioner's guide to section 322.09 of the Florida statutes.
I. Introduction II. The Accident III. Section 322.09 of the Florida Statutes IV. Practitioner's Pointers A. Plaintiff's Perspective B. Defendant's Perspective V. Conclusion
In the 1980s and 1990s, our generation grew up watching Hulk Hogan in the ring. (2) We would watch in awe as he would rip his yellow and red shirt and scream catchy slogans. Fie told us to "[t]rain, say your prayers, and eat your vitamins." (3) We watched him star in movies, such as Rocky III and Mr. Nanny. (4) Later, our generation was hooked on Hogan Knows Best, a reality show featuring Hulk Hogan and his family, which aired on VHI. (5) However, on August 26, 2007, the Hogans (6) were forced into the spotlight for another reason. (7) Nick, Hulk Hogan's youngest child, was involved in a horrific automobile accident, severely injuring his passenger, John Graziano. (8) There were reports that he lost control of the vehicle while engaging in "light to light" drag racing. (9)
On March 24, 2008, the guardian of John Graziano, Peter Musante, filed suit on behalf of John, naming Terry Bollea, Linda Bollea, Nick Bollea, and Daniel Jacobs as defendants. (10) The suit contained several counts. (11) Count II of the complaint specifically alleged the negligence of Terry Bollea, pursuant to section 322.09 of the Florida Statutes. (12) This statute imputes negligence upon the person who signs for a minor's driver's license. (13)
Many practitioners are unaware of this statute. (14) It is often overlooked when drafting pleadings and rarely pied. It has the possibility for being a powerful tool for a skillful practitioner. This statute could either win or lose your client a greater award in damages. A prudent practitioner needs to know how to tackle section 322.09.
Part II of this article will examine Nick Hogan's accident and the events that led up to the filing of John Graziano's lawsuit against the Hogans. Part III will analyze section 322.09 of the Florida Statutes and corresponding case law. Part IV will guide practitioners as to how to allege negligence under and how to defend against this statute. It will educate practitioners as to the importance and power of section 322.09.
II. THE ACCIDENT
August 26, 2007, is going to be a day that the Hogans will never forget. Earlier in the day, Nick, Daniel Jacobs, John Graziano, and Barrett Lawrance were partying on Hulk Hogan's boat. (15) The group had been drinking and there were reports that Hulk Hogan had purchased alcohol for the band of friends. (16) One report said:
Less than six hours before the Aug. 26 wreck, [Hulk] Hogan was seen at an Albertsons liquor store with his son and his son's friends. Receipts show that Hogan purchased two cases of Miller Lite beer, two cases of Corona beer, one case of Miller Chill beer and five bags of ice. (17)
"Jacobs told authorities he had four beers on the boat and later drank a 32-ounce rum runner at a popular Clearwater bar...." (18) The group had tried to go to Shepard's Tiki bar, but decided to leave because it was very crowded. (19) However, the head of security at the establishment stated that he asked for identification because he knew Bollea was underage; the group could not produce identification and then returned to the boat. (20) The group then traveled to Three Rooker Island, and then returned to Shepard's. (21) "Lawrance reported that he saw Bollea drinking something, though he didn't know what...." (22) The band of friends later returned to the Hogan home. (23)
That night, Nick and his friends decided to go to Arigato Japanese Steak House for dinner. (24) They were supposed to be dining with Nick's father, the Hulkster. (25) Nick insisted on going ahead of his father, instead of waiting for him, because the entourage did not reserve a table at the restaurant. (26) The foursome drove two separate vehicles to the restaurant, both of which Hulk Hogan owned. (27) Nick and John Graziano were in a 1998 Toyota Supra and Daniel Jacobs and Barrett Lawrance were in a Dodge Viper. (28)
That evening, the skies were overcast and the roads were wet. (29) Witnesses reported that Nick was racing another car when he lost control of the vehicle and slammed into palm trees. (30) The other vehicle, the Dodge Viper, was operated by Nick's friend, Daniel Jacobs. (31) One witness stated that she saw "Bollea's Supra fishtailing as it went out of control, spun and jumped the median before smashing rear-end first into a palm tree." (32) The crash report stated that the vehicle spun one hundred and eighty degrees while crossing two lanes of traffic. (33) "Various witnesses say the Supra fishtailed out of the intersection before the car jumped the median farther down Court Street and hit a palm tree." (34) Both Nick and John had to be extracted from the vehicle. (35) When the car hit the palm tree, it was destroyed upon impact. (36) "An accident reconstruction by investigators determined the Supra was going 61 mph to 66 mph--a range that doesn't take into account the loss of vehicle energy when the car jumped the median curb and struck the palm tree...." (37) The posted speed limit is forty miles per hour. (38)
Hulk Hogan was only minutes behind his son. (39) "As Hogan was taking his normal route there, he noticed 'this yellow car all twisted.' The police were trying to stop him, apparently recognizing him in his car, and Hogan said that at first, 'I just blew right by 'em,' ...." (40) When he finally stopped his vehicle and realized what had happened, he started screaming for Nick. (41) Then he saw a "thumbs up" come out the car from Nick and knew he was okay. (42) A police officer allowed Hogan to stay at the scene because he was "concerned there might be a problem if he physically tried to stop Hogan from approaching the scene." (43) An officer then escorted him to the hospital so he would not speed to get there. (44)
Nick incurred minimal injuries--a fractured left arm. (45) However, John Graziano, Nick's passenger, was not so lucky. At the time of the accident, he was not wearing his seatbelt. (46) "At least one paramedic did not think Graziano, who had a finger-size hole in his forehead, was alive." (47) He now suffers from severe brain damage. (48) He has been deemed incapacitated. (49) "Graziano is not in a vegetative state . . . but in a semiconscious one. Part of his frontal lobe had to be removed, but he responds to heat and light and on occasion has breathed without a ventilator." (50) He will need constant care for the rest of his life. (51)
Criminal charges of reckless driving involving serious bodily injury (52) were filed against Nick Bollea. (53) At the sentencing hearing, John's father, Ed Graziano, told the judge that "what Al Queda couldn't do to his son, Nick did in minutes." (54) Nick apologized to both the Graziano and Hogan families. (55) He stated that a day won't go by without him thinking about the accident. (56)
The judge sentenced Bollea to eight months (57) in jail after he pied no contest to the charge. (58) The punishment was effective immediately. (59) The minor's sentence may have been influenced by the fact that Nick Bollea had been stopped numerous times for speeding. (60) "Although he [was] 17 years old, he was tried as an adult. Initially, he was placed alone in a cell, separate from adult inmates. Complaining about isolation, he subsequently was mixed in with other juvenile inmates." (61) He was placed in solitary confinement because the Pinellas County jail did not have the facility to house him due to his status as a high profile juvenile. (62) On Nick's eighteenth birthday, he was transferred to the adult section of the jail. (63) While in jail, Pinellas County Sheriff's Department released taped conversations of Nick Bollea and his family. (64) Attorneys, on behalf of Bollea, filed suit against Pinellas County Sheriff's Office alleging a violation of his privacy rights. (65) Hulk Hogan appeared on Larry King Live to explain the conversations, many of them placing blame on John Graziano. (66) Hogan claimed that the conversations were taken out of context and he was only trying to help his sons. (67) The Graziano family was outraged by these conversations. (68)
While Nick was still in jail, on March 24, 2008, in Pinellas County, Florida, the guardian of John Graziano, Peter Musante, filed suit against the Hogans. (69) The lawsuit specifically named Terry Bollea, Linda Bollea, Nick Bollea, and Daniel Jacobs as defendants. (70) The lawsuit contained several counts. (71) Count I alleged that Terry Bollea was negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, and for failing to take corrective action when he knew or should have known that they were unfit to drive a car. (72) Count II alleged that Terry Bollea was vicariously liable for signing Nick's driver's license. (73) Similar to count I, count III alleged that Terry Bollea was directly negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, for failing to take corrective action when he knew or should have known that they were unfit to drive a car, for allowing his minor son to consume alcohol, and for failing to exercise parental control when he knew or should have known of his son's dangerous propensities while driving a vehicle. (74) Like the allegations against her husband, count IV alleged that Linda Bollea was negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, and for failing to take corrective action when she knew or should have known that they were unfit to drive a car, for allowing her minor son to drive a motor vehicle while under the influence, and for failing to exercise parental control when she condoned her son's dangerous propensities to drive in a negligent manner. (75) Count V alleged that Nick Bollea was negligent for engaging in "light to light racing," for the negligent and/or willful and wanton acts of speeding, for failure to control the vehicle, for failing to avoid a collision, and for being under the influence and operating a vehicle as a minor. (76) Count VI alleged that Daniel Jacobs was negligent because he failed to exercise reasonable care in the operation of a vehicle. (77) The defendants have each filed an answer denying the allegations against them. (78) The case is currently in the discovery stages of litigation. (79)
Nick Bollea was released early from jail for good behavior on October 21, 2008. (80) Nick's driver's license has been suspended for three years and he must perform five hundred hours of community service. (81) Daniel Jacobs also pled no contest to reckless driving charges. (82) He "was sentenced to 90 days of probation and fined $500. His driver's license was suspended for 90 days and he was ordered to serve 25 hours of community service." (83)
Even though Nick has served out his criminal sentence, the nightmare is not over for the Hogan family. As of the time of writing this article, the civil suit filed against the Hogans has not concluded. (84) We are unsure of what will happen, but for now, we must wait and see.
III. SECTION 322.09 OF THE FLORIDA STATUTES
Section 322.09 of the Florida Statutes reads in pertinent part:
(2) Any negligence or willful misconduct of a minor under the age of 18 years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct. (85)
This statute imputes the negligence or willful misconduct of a minor driver onto the person who signed the minor driver's application for a driver's license or permit in Florida. (86) The signer will be jointly and severally liable with the minor for any actual damages. (87) However, the signer will not be liable for any exemplary or punitive damages. (88)
By enacting this statute, the intent of the Florida legislature was to hold the signer vicariously responsible for the negligence or willful acts of the minor while driving an automobile. (89) "The concept of vicarious liability can be described as follows: 'A person whose liability is imputed based on the tortious acts of another is liable for the entire share of comparative responsibility assigned to the other.'" (90) "The legislature fixed responsibility for otherwise judgment-proof minors when it enacted section 322.09(2)." (91) "The Florida Statute has the obvious effect of providing an injured party with a greater chance of recovery since most minors have few assets against which a judgment may be executed." (92)
Courts have also noted that:
An additional purpose of such a statute would seemingly be to impose a supervisory responsibility upon the parent or guardian signing a minor's application for a driver's license. One would expect such a responsibility with its attendant civil liability to cause parents and guardians to endorse only those minors whom they felt to be mature enough to accept and appreciate the obligations of driving an automobile. (93)
The legislature reasoned that minors needed guidance from those persons. (94) These individuals are in the "best position to control" or restrain minor drivers. (95) The statute upholds "the legislature's desire to protect persons who are injured or sustain property damage by reason of the negligence or willful misconduct of persons under the age of eighteen years who are driving...." (96) The legislature also wanted to "promote public safety in the operation of motor vehicles and to fix a method of insuring the financial responsibility of minor drivers licenses to operate motor vehicles." (97)
"Florida has adopted a policy whereby it imposes upon the individual supporting a minor's effort to obtain a driver's license the liability for injury caused by that minor's 'negligent or willful misconduct . . . when driving a motor vehicle upon a highway.'" (98) Parents and guardians need to be mindful that the signer can be relieved of any responsibility under the statute. (99) For instance, the minor's driver's license can be cancelled by the Department of Motor Vehicles. (100) To do so, the parent or guardian must make a verified written request to revoke the minor's driving privileges. (101) If the Department of Motor Vehicles effectively cancels the license, the signer is relieved of all liability for acts occurring after the cancellation. (102) Also, if the minor marries, any disability of the minor is dissolved. (103) The minor may sue or be sued, contract, and perform all acts that a person of age could do. (104) This includes being able to obtain a driver's license without the signature of a parent or guardian. (105) Once the minor marries, the responsibility of the signer automatically terminates. (106) Further, once the minor reaches the age of majority, the financial responsibility under the statute terminates. (107)
Nevertheless, the mere parent-child relationship does not create liability under this statute. (108) "[F]amily dynamics and the parent-child relationship cannot be used as an independent basis for holding parents vicariously liable...." (109) To create any liability under this particular statute, the parent (110) must have signed the driver's license application of the child. (111)
In order to prove that a parent or guardian signed, a copy of a minor's driver's license application may be properly admitted into evidence. (112) It will constitute sufficient proof to impose liability under the statute. (113) Other courts have implied a signature where the application could not be found. (114) For instance, in Whitworth v. Jones, the court held that the signature of a parent could be implied. (115) The court noted that the "father was the head of the household, and the son was under his control. Necessarily, then, he would be the proper person to have indorsed the application for the operator's license." (116) "The trial judge was warranted in assuming that the father did indorse the son's application, and that the officers in charge of the motor vehicle department would not have issued the operator's license without such endorsement being supplied." (117)
Liability may also be imposed upon the parents where only a learner's permit or temporary license has been issued to the minor. (118) In Pontius v. McLain, the court held that a temporary license was sufficient to render the minor licensed. (119) Liability may also be imposed where the minor's license has been suspended. (120) However, there are conflicting views in regard to whether liability can be imposed where a minor's license is revoked, canceled, or expired. (121) In Florida, parents need to be aware that a parent may still be held liable where the minor's driver's license is expired, but could have been renewed. (122)
IV. PRACTITIONER'S POINTERS
A. PLAINTIFF'S PERSPECTIVE
Many practitioners are unaware of this statute. It has not been the subject of much litigation in the state of Florida. (123) A skillful plaintiff's practitioner could use this statute to their and their client's advantage. It may increase the likelihood of recovering damages, since a parent will likely have more money and assets than a child. (124)
To successfully allege a cause of action under this statute, the pleader must allege: 1) an automobile was being operated on Florida's roadways; 2) by a person under the age of eighteen; 3) who had procured a driver's license from the Department of Motor Vehicles based upon the application submitted; 4) that this application was signed by a person who sought to be held responsible for the negligence of the minor driver; 5) the minor driver operated the motor vehicle in a negligent or willful manner so as to cause injury to the plaintiff; and 6) injury was thereby caused to the plaintiff. (125) Some practitioners aver this as a separate count, while others only include this as an allegation. (126)
In Padgett v. Thompson, the Florida Supreme Court examined the allegations a pleader must allege in order to successfully plead a cause of action under section 322.09 of the Florida Statutes. (127) The Court held that allegations contained in the complaint fell short of meeting the above mentioned requirements and did not state a cause of action. (128) For instance, the complaint did not allege that a driver's license had ever been issued to the minor. (129) It only alleged that the minor's driver's license application had been signed by his mother. (130) Therefore, a plaintiff's practitioner needs to be aware of the pleading requirements of the statute and fully aver each element. If the practitioner fails to allege one of the requirements, it could be deadly for their client's case. (131)
The practitioner either must learn which parent or guardian signed the minor's driver's license application or plead an alternative cause of action against the other parent. (132) A written request to the Department of Motor Vehicles should be sufficient in order to obtain a copy of the driver's license application. (133) The counselor needs to be careful because only one parent or guardian needs to sign the application. (134) Therefore, if you allege that the wrong parent or guardian signed, it will create more work for yourself in the long run because you will have to amend the complaint.
Under the Florida Rules of Civil Procedure, a plaintiff may amend once as a matter of course before the answer is filed. (135) If the answer has been filed, the plaintiff will have to obtain leave of court or written consent of the defendant. (136) "Leave of court shall be given freely when justice so requires." (137) "A court should grant leave to amend the complaint 'unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action." (138)
Before filing suit, a plaintiff's practitioner may want to perform a cursory investigation of the parent's or guardian's assets. This will involve checking the official records for any real estate, liens, or foreclosures. Also, the attorney may want to perform an internet search using a search engine, such as Google or Yahoo. (139) This may produce information regarding the parent or guardian's business ventures. It may also produce helpful news articles, especially if the parent is an influential member of the community. (140) A court records search will also be useful. This may reveal other lawsuits that may be filed against the parent or child.
However, other types of financial information, such as net worth, will be unobtainable and likely undiscoverable. Generally, information regarding one's financial assets and net worth is only discoverable in aid of execution after judgment has been entered. (141) After an executed judgment has been returned as unsatisfied, the judgment creditor is allowed broad discovery into the debtor's finances. (142) Also, once a lawsuit has been commenced, financial information may be discoverable if it is relevant to the underlying proceeding. (143) A practitioner needs to be mindful that the financial information of a private person is entitled to protection under the Right of Privacy Provision in the Florida State Constitution. (144)
Moreover, the practitioner needs to be aware that several theories of liability may be pursued against a parent or guardian who has signed a minor's driver's license application. (145) For instance, in Brown v. Seebach, (146) the complaint alleged, along with liability under section 322.09 of the Florida Statutes, that the Seebachs "failed to control" and "negligently supervised" their minor son. (147) The Seebach's sixteen year old son attended a party at the Ocean Reef Club in Key Largo, Florida. (148) During the evening, he convinced two fourteen year old friends to go with him to a convenience store to purchase alcohol. (149) The Seebach minor purchased "three cases of beer, opened and drank the contents of one can, and proceeded to drive back to Ocean Reef." (150) On the return trip, the Seebach minor drove in speeds in excess of one hundred miles per hour and lost control of the vehicle. (151) One of the minors could not escape and "died in the crash and resulting fire." (152) A suit was brought on behalf of the deceased minor. (153) The court noted that, under the theory of negligent entrustment, the complaint must allege that the parents "entrusted their [child] with an instrumentality which, because of his lack of age, judgment, or experience, may become a source of danger to others." (154)
A practitioner also needs to be aware that Florida follows the Dangerous Instrumentality Doctrine. (155) Florida law holds that, in light of the particularly dangerous nature of automobiles, it is the obligation of the owner to ensure that the automobile is safely operated on Florida's roadways. (156) As such, the doctrine imposes strict liability upon "an owner who gives authority to another to operate the owner's vehicle, by either express or implied consent, has a non-delegable obligation to ensure that the vehicle is operated safely." (157) The doctrine is only subject to a few exceptions. (158) These exceptions are: 1) the "shop" exception; (159) 2) the theft or conversion exception; (160) 3) the "bare naked title" exception. (161) The Florida Supreme Court has been extremely hesitant to create more exceptions to this long standing doctrine. (162) The practitioner needs to be mindful that even if the parent purchased the car for the minor, the leg title is still in the parent's name, but for all purposes it is the child's vehicle, the "mere naked title" exception may not apply to exempt the parent from liability under the Dangerous Instrumentality Doctrine. (163) Thus, this may produce an alternative mode of recovery against a parent.
Some may be wondering why a practitioner even needs to allege a cause of action under the driver's license statute since the Dangerous Instrumentality Doctrine is followed in Florida. However, under the Dangerous Instrumentality Doctrine, damages for vicarious liability are capped. (164) Therefore, if actual damages are greater than the damages cap, section 322.09 allows an avenue that the plaintiff can utilize to recover those damages. (165) As noted above, under section 322.09, the signer is liable for all actual damages. (166)
Importantly, a plaintiff's practitioner needs to understand that this statute does not in any way create, extend, or affect the liability coverage available under an insurance policy. (167) Coverage is not coextensive with liability. (168) Coverage and liability are two separate and distinct issues. (169) "The scope and extent of insurance coverage is defined by the language and terms of the insurance policy, and where the language of a policy is plain and unambiguous, the contract must be enforced as written." (170) "Because, in the absence of a statutory requirement for the inclusion of such a clause, the courts have no power simply to create coverage out of the whole cloth when none exists on the face of an insurance contract." (171)
Lastly, a plaintiff's practitioner needs to keep in mind the Florida Fraudulent Transfers Act. (172) Throughout the lawsuit, it would be prudent to monitor the public records for any transfers of real estate. Some newspapers even list the real estate transactions. Also, observe to see if other large assets have been sold. A plaintiff may have a claim for fraudulent transfer if the transfer is made with the "actual intent to hinder, delay, or defraud any creditor of the debtor" or "without receiving a reasonably equivalent value in exchange for the transfer or obligation." (173) After the plaintiff has obtained a judgment, the financial information of the defendant is discoverable. (174) The practitioner will need to examine these records to determine whether their client has a claim for fraudulent transfer of assets. (175) This statute can be a powerful tool for a plaintiff's attorney if used correctly. It may make recovery more likely and open up a new avenue of assets to satisfy the judgment. However, the practitioner needs to make sure they meet the pleading requirements of this statute. A failure to properly plead the cause of action may be deadly for your client's claim.
B. DEFENDANT'S PERSPECTIVE
An insurance defense practitioner will first want to obtain a copy of the minor's driver's license application. (176) He or she may acquire this from their client or the Department of Motor Vehicles. If their client is not the parent or guardian who signed the application, he or she may not be held liable under the statute. (177) This will provide the defendant with a valid affirmative defense or may provide grounds for a motion to dismiss. (178) All practitioners need to be heedful to the fact that the other parent or guardian may have signed the application.
A defense attorney needs to be mindful that there may not be insurance coverage available for this type of imputed negligence. (179) The litigation practitioner may want to consult with a coverage attorney in his or her firm. Generally, if the minor is operating an automobile owned and insured by the guardian who signed the minor's application, liability coverage will most likely extend to both the parent and the minor. (180) However, if the minor does not reside with the named insured, the minor may not qualify as an insured, and coverage may not be provided under the policy. (181) Under the terms of the policy, he or she will not be considered a "resident relative." (182)
Residency "is a question of law and fact to be settled or determined from the facts of each particular case." (183) Where the facts are undisputed, an appellate court may determine whether the facts fit within the policy definition of a resident. (184) "A resident is one who lives at a place with no present intention of removing therefrom." (185) A coverage attorney often has to examine the living situation to determine whether the minor qualifies for coverage. He or she will analyze whether: 1) there are "close ties of kinship;" 2) it is a "fixed dwelling unit;" and 3) the person has "enjoyment of all the living facilities." (186) If the minor does not meet the residency criteria, coverage will be denied. (187) For instance, coverage was not provided due to non-residency where a minor child had been living in the separate home of the divorced spouse of the named insured, (188) where a college student no longer resided in the same state as the insured parent, (189) and where one is living with a family member as a temporary living arrangement. (190)
Under most policies of insurance, to trigger the insuring agreement, both an insured person and an insured automobile must be involved in the accident. (191) However, if both of these conditions are not met, coverage will not be available under the policy. (192) These conditions will apply regardless of whether the insured may be vicariously liable. (193) For instance, in Lamos v. Consolidated Mutual Insurance Company, the plaintiff tried to recover against a homeowner under his homeowner's insurance policy for the negligence of his son for an automobile accident. (194) The homeowner owned the vehicle in which his son was driving. (195) The trial court granted Consolidated Mutual Insurance Company's summary judgment due to an exclusion, which stated that the policy in question would not provide coverage for an automobile accident that happened off the premises. (196) The Court affirmed and held that even though the homeowner was liable under section 322.09 of the Florida Statutes, the insurer was not. (197) The son met the condition of an insured driver, but the vehicle was not considered an insured auto. (198) This demonstrates that coverage is not coextensive with liability. (199)
Also, in Boudreau v. General Accident Fire and Life Insurance Corporation, Ltd., the Fifth District Court of Appeal held that an insurer is not liable where the policy excludes the action in question. (200) The Court noted:
Although the negligent act of her son is imputed to her for purposes of recompense for the victim the 'act' she performed (under appellant's theory) had no causal relationship at all to either the negligent conduct or the injury. Appellant is not being sued on account of an act of negligence, she is being sued for her promise to pay. The insurance policy neither expressly nor impliedly covers her, or her husband, the policy holder, for that matter, for her imputed negligence. (201)
Justice Sharp, in his concurring opinion, specifically noted that many parents are not aware "that the standard language of their automobile liability insurance policies excludes insurance coverage for such potential liability...." (202)
Similarly, coverage was not provided in a suit against a father for signing his son's application for a driver's license. (203) The son did not qualify as an insured under the insurance policy because he did not live in the home with his father. (204) The policy did not provide coverage because it conditioned coverage of a non-owned auto upon the use by an "insured." (205) Consequently, the father was liable under section 322.09 of the Florida Statutes, but there was no coverage available for that liability. (206)
If, on the other hand, the policy does not condition coverage upon the use of an insured or covered auto, then a court may find that coverage exists under the policy. (207) In Brown v. Champeau, the Court held that coverage was provided under the policy because it did not condition coverage upon the use of a particular vehicle. (208) "The policy does not condition coverage on the use of a particular car or the involvement of a particular driver. [The policy] does not limit coverage to a family member for that person's use of any auto, but refers merely to the use of any auto." (209) The Court will enforce the language contained in the policy. (210)
Furthermore, there is no requirement under Florida law that automobile liability policies contain a specific exclusion or limitation for vicarious liability. (211) There are no statutes or cases holding that this type of exclusion is required by law. (212) "Absent such a legislative requirement the parties are free to contract as they please." (213)
Because insurance policies may not provide coverage for this type of liability, defense practitioners need to be especially careful in defending their clients in regard to this statute. Their clients may not have assets to satisfy a large judgment. Depending on their financial situation, a large judgment may rain their credit ratings and financial future. Luckily, under Florida law, a person's homestead is protected from judgment creditors. (214) "Florida case law dictates that the homestead exemption laws be liberally applied to the end that the family shall have shelter and shall not be reduced to absolute destitution." (215) "As a matter of public policy, the purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heir may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law." (216) As such, the defense practitioner needs to be especially careful in defending his client.
As demonstrated by the Bollea lawsuit, section 322.09 of the Florida Statutes can subject a parent or guardian to liability for the negligent or willful acts of a minor while operating a motor vehicle. (217) A parent or guardian will most likely have more assets than their minor child. This statute can be a powerful tool that can be used to reach these assets and satisfy the plaintiff's judgment. Both plaintiff and defense practitioners need to mindful of the scope of this statute.
Nick Hogan's family has stated that this accident was a "wake up call"
to Nick. (218) Hopefully, the accident and lawsuit will be a wake-up call for parents and attorneys alike. Parents need to be aware that this statute can subject them to liability if they sign their minor's driver's license application. Practitioners need to be more conscious and knowledgeable of this statute in order to effectively protect their clients. In all cases involving the automobile accidents of minors, practitioners should keep this statute in mind when drafting pleadings.
Hulk Hogan has been described as the "Elvis of pro wrestling." (219) "Hulk Hogan is to wrestling what Babe Ruth was to baseball." (220) However, this statute is bigger, stronger and more powerful than Hulk Hogan himself. This statute may have been the finishing move that brought Hulk Hogan down for the count and took him out of the match. (221)
KANSAS R. GOODEN (1)
(1.) Associate, Boyd & Jenerette. P.A., Jacksonville, FL; J.D., 2008, magnu cum laude, St. Thomas University School of Law; B.B.A., Finance. 2004, James Madison University. I would like to thank Nick Seamster, my best friend and fellow STU Law Alumni, for his plethora of wrestling knowledge. I would also like to thank my supervising partner and mentor, Jane Anderson, for educating me about the importance of this statute.
(2.) Hulk Hogan--Wrestler Profiles, http://www.obsessedwithwrestling.com/profiles/h/hulkhogan.php (last visited Nov. 9, 2008).
(3.) Hulk Hogan.co.uk, Extra Info on Hulk, http://www.hulkhogan.co.uk/extra.htm (last visited Nov. 23, 2008).
(4.) Hulk Hogan--Filmography, http://www.imdb.com/name/nm0001356/(last visited Nov. 9, 2008). Many remember his role in Rocky Ill as "Thunderlips" and his famous line, "No one can believe the superhuman strength of Thunderlips!" IMBD.com, Thunderlips, http://www.imdb.com/title/tt0084602/quotes (last visited Dec. 6, 2008). His role as "Thunderlips" helped advance his wrestling career and brought Hulk Hogan into the mainstream of America pop-culture. See E! True Hollywood Story: Hulk Hogan and Family (E! Network broadcast Feb. 2, 2009) (transcript available at http://voogle.mreplay.com/transcript/The_E%2l_True_Hollywood_Story_%22%22 _Hulk_Hogan_%26_Family/6528/EP/Monday_February _2_2009/02_02_09/0/) [hereinafter E! True Hollywood Story].
(5.) VHI, Hogan Knows Best, http://www.vhl.com/shows/dyn/hogan_knows_best/series_about.jhtml (last visited Nov. 9, 2008). The reality show "allowed people to look behind the curtain." BTLS.com, E! True Hollywood Story Tackles Hulk Hogan Saga, http://btls.com/joomla/content/view/649/2 [hereinafter BTLS]; see E! True Hollywood Story, supra note 4. Ultimately, the reality show may have been what broke up the family. See BTLS, supra note 5.
(6.) Hulk Hogan's real name is Terry Bollea. See VHl.com, Hulk Hogan Biography, http://www.vhl.com/movies/person/182439/bio.jhtml (last visited Nov. 9, 2008). His family also goes by the stage name of Hogan. See John W. Allman, Morn of Marine Hurt in Crash Defends Hogan Family, TAMPA TRIB., Sept. 4, 2007, at 1. "Hogan's real name is Terry Bollea, but his family also uses the last name Hogan in the reality show, 'Hogan Knows Best,' which airs on VH1." Id. See also Brooke Hogan, http://www.vhl.com/movies/person/979433/personmain.jhtml?personid=979433 (last visited Nov. 9, 2008). The names Hogan and Bollea are used interchangeably throughout this article.
(7.) See generally Chris Echegaray, Wrestler's Son Hurt in Crash, TAMPA TRIB., Aug. 27, 2007, at 1. "The teenage son of Tampa Bay's most popular wrestler, Hulk Hogan, was injured after his yellow sports ear careened out of control and struck a palm tree in the median of the four-lane highway on Court Street, police said." Id.
(8.) See id. (noting that both Nick and John were taken by helicopter to Bayfront Medical Center in St. Petersburg). John Graziano is a Marine reservist. See Keith Morelli & Chris Echegaray, Vigil Attendees Pray for Bollea's Passenger, TAMPA TRIB., Aug. 30, 2007, at 1. "John Graziano, a Marine reservist, survived eight or nine improvised explosive devices while in Iraq...." Id. John served two tours of duty in Iraq. Steven Cole Smith, Car of the Year Contenders are Whittled Down, ORLANDO SENT., Sept. 22, 2007, at 1.
(9.) See Showbiz Tonight: Graziano Family's Outrage (CNN cable broadcast June 2, 2008) (transcript on file with 2008 WLNR 10404664).
(10.) Complaint and Demand for Jury Trial, Musante v. Bollea, No. 08-4244-CI-015, 2008 WL 1840591, at 1 (Fla. Cir. Ct. Mar. 24, 2008). The suit was filed in Pinellas County, Florida. Id. See also Stephen Thompson, Crash Victim "s Guardian Files Lawsuit Against Bolleas, TAMPA TRIB., Mar. 24, 2008 (noting that the Guardian of John Graziano filed suit against the Hogans for the accident that left John is a semiconscious state).
(11.) See Complaint and Demand for Jury Trial, Musante, 2008 WL 1840591 passim. Count I alleges that Terry Bollea was negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, and for failing to take corrective action when he knew or should have known that they were unfit to operate a car. Id. at [paragraph] 82. Count II alleges that Terry Bollea was negligent under section 322.09 of the Florida Statutes for signing Nick's driver's license. Id. at [paragraph] 85. Count II is the subject of this article. Count III alleges that Terry Bollea is directly negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, and for failing to take corrective action when he knew or should have known that they were unfit to operate a car, for allowing his minor son to consume alcohol, for failing to exercise parental control when he knew or should have known of his son's dangerous propensities in a vehicle. Id. at [paragraph] 95. Count IV alleges that Linda Bollea was directly negligent for entrusting vehicles to Nick and Daniel, for failing to properly supervise them, and for failing to take corrective action when he knew or should have known that they were unfit to operate a car, for condoning to her minor son driving a motor vehicle on the public highway while under the influence, for failing to exercise parental control when she condoned her son's dangerous propensity to drive in a negligent manner. Id. at [paragraph] 102. Count V alleges that Nick Bollea was negligent for engaging in "light to light racing," speeding, failing to control the vehicle, failing to avoid a collision, for being under the influence and operating a vehicle as a minor. Id. at [paragraph] 106. Count VI alleges that Daniel Jacobs is negligent for failing to exercise reasonable care in the operating of a vehicle. Id. at [paragraph] 110.
(13.) See FLA. STAT. [section] 322.09 (2008). Many states have similar statutes. See, e.g., CAL. VEH. CODE [section] 17707 (2008) (imposing liability for any civil liability of a minor that arises from the operation of a motor vehicle upon the signer of the minor's driver's license); DEL. CODE tit. 21, [section] 6104 (2008) (imposing joint and several liability upon any person who signs the driver's license application of a minor); MISS. CODE [section] 63-1-25 (2008) (imputing negligence upon the person who signs for a minor's driver's license): OHIO REV. CODE [section] 4507.07 (2008) (imposing liability upon the signer).
(14.) If parents were aware of this statute, many of them would think twice about signing their child's driver's license application. It is presumed that the parent knowingly signed the application and undertook this additional liability. Stevens v. Shields, 499 N.Y.S.2d 351, 353 (N.Y. App. Div. 1986).
(15.) Thomas W. Krause & Stephen Thompson, Hogan Defense Faults Seat Belt, TAMPA TRIB., Nov. 8, 2007, at 1. Daniel Jacobs and Barrett Lawrance were on Nick's drift racing crew. Chris Echegaray, Bollea's Standing as Drift Racer Uncertain, TAMPA TRIB., Nov. 8, 2007, at 4. "Drifting refers to a driving technique and to a motor sport where the driver intentionally oversteers ... the rear wheels through turns, while preserving vehicle control and a high exit speed." Drifting--Motorsport, http://en.wikipedia.org/wiki/Drifting_(motorsport) (last visited Feb. 16, 2009). See also Julia Layton, How Drifting Works, HOW STUFF WORKS, http://entertainment.howstuffworks.com/drifting.htm (last visited Nov. 9, 2008) (noting that drift racing was invented in Japan in the 1990s); David Swig, Racing Fast 'n' Cheap: Drifting, MOTORTREND, http://www.motortrend.com/features/112_0407_race_drifting/index.html (last visited Nov. 9, 2008).
(16.) See Stephen Thompson, Racing Evidence Mounts in Crash, TAMPA TRIB., Nov. 28, 2007, at 1.
(17.) Id. However, on Larry King Live, Hulk Hogan denied purchasing alcohol for his son. See Showbiz Tonight, Hulk Hogan Breaks' His Silence (CNN cable broadcast June 11, 2008) (transcript available at http://edition.cnn.com/TRANSCRIPTS/0806/11/sbt.01.html) (last visited Nov. 22, 2008).
(18.) Krause & Thompson, supra note 15.
(20.) Thompson, supra note 16. "All of them, except Bollea, were holding a beer, and Bollea was holding a plastic cup containing an undetermined beverage." Id.
(21.) Krause & Thompson, supra note 15.
(23.) Id. Blood samples were taken from Bollea and established that his ethanol serum level was .055 and the legal limit for minors is .02. See Stephen Thompson, Official Dismisses Bollea Sample, TAMPA TRIB., Mar. 1, 2008, at 3. "After Nick Bollea's defense attorney accused Clearwater police of sloppy and ethically questionable work, a state hearing officer agreed police did not have enough evidence to take a sample of the teenager's blood after a wreck Aug. 26." Id.; cf. FLA. STAT. [section] 316.1932(c) (2008) (the statute reads:
Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.)
Another statute reads as follows:
If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person's blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893.
FLA. STAT. [section] 316.1933(1) (2008). See Jackson v. State, 456 So. 2d 916, 918 (Fla. Dist. Ct. App. 1984):
Probable cause exists under section 316.1933(1) to order a blood test if the officer, based upon reasonably trustworthy information, has knowledge of facts and circumstances sufficient to cause a person of reasonable caution to believe that the suspect driver was under the influence of alcoholic beverages at the time of the accident and caused the death or serious bodily injury of a human being.
A practitioner also needs to be aware if alcohol is involved, punitive damages are available. See FLA. STAY. [section] 768.736 (2008) (setting forth the punitive damages exception for intoxication); Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976) (holding that juries may assess punitive damages where intoxication is involved in an automobile accident).
(24.) Krause & Thompson, supra note 15.
(25.) Stephen Thompson, Bollea's 100 MPH Speeding Got Warning, Not Ticket, TAMPA TRIB., Sept. 6, 2007, at 1.
(27.) Krause & Thompson, supra note 15. Florida follows the Dangerous Instrumentality Doctrine. See infra notes 155-163 and accompanying text.
(28.) Krause & Thompson, supra note 15.
(29.) Stephen Thompson, Report Cites Speed. Road. Not Much More, TAMPA TRIB., Oct. 17, 2007, at 2. The accident occurred at approximately 7:31 p.m. Id.
(30.) Smith, supra note 8. See also Krause & Thompson, supra note 15. The 911 call center was inundated with calls regarding the accident, many of which were reporting that the two cars were racing. See also E! True Hollywood Story, supra note 4.
(31.) Thompson, supra note 16. "Danny Jacobs told police he wasn't racing, but later he was overheard confiding to a pastor that he was driving 113 mph or 130 mph before the car he was competing against crashed." Id. This communication did not qualify for clergy-penitent privilege. See FLA. STAT. [section] 90.505(b) (2008) (the statute reads as follows:
A communication between a member of the clergy and a person is 'confidential' if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.)
Woodard v. Jupiter Christian School, Inc., 913 So. 2d 1188, 1191 (Fla. Dist. Ct. App. 2005) (outlining a statutory four part test to establish the existence of the clergy privilege). The four part test that establishes the existence of a privilege is as follows:
First, the communication must be made to a 'member of the clergy.' Second, the statement must be made for the purpose of seeking spiritual counseling or advice. Third, the information must be received in the usual course of the clergyman's practice or discipline. And fourth, the communication must be made privately and not intended for further disclosure.
Id. "In order for the privilege to apply, the communication to the clergy member must be made 'privately.' Thus, the presence of a third person or person not present in furtherance of the communication when the communication is made renders the privilege inapplicable." Nussbaumer v. State, 882 So. 2d 1067, 1078-79 (Fla. Dist. Ct. App. 2004). See also Fernandez v. State, 730 So. 2d 277, 282 (Fla. 1999) (holding that the privilege did not apply because claimant's wife and children, plus the appellant's girlfriend and children, were present in the room for the conversation). See generally Shane D. Cooper, Chaplains Caught in the Middle: The Military's' "Absolute" Penitent-Clergy Privilege Meets State "'Mandatory" Child Abuse Reporting Laws, 49 NAV. L. REV. 128, 145 (2002) (outlining the history of the privilege and how it is used in the military); Donald I. Pollock, To Tell or Not to Tell: What a Lawyer Should Know About Florida's Clergy Privilege, 62 FLA. B.J. 19, 21 (Apr. 1988).
(32.) Krause & Thompson, supra note 15 ("A half dozen witnesses told police that Bollea was street racing against a Dodge Viper, later found to be owned by Hulk Hogan, before he lost control of the Supra. One witness said the cars were going faster than 60 mph....
"). Other witnesses stated:
Nick Bollea was racing against a silver Dodge Viper on a main street in Clearwater when Bollea lost control and crashed into palm trees in the median, destroying his car and seriously injuring his passenger, 22-year-old John J. Graziano, a veteran of two tours of duty in the Middle East with the U.S. Marines.
Smith, supra note 8. See generally Tulsa World, Races Are More Brazen Now: Enthusiasts Employ Elaborate Measures for Their Illegal Pastime, Sept. 17, 2007, available at http://www.tulsaworld.com/news/article.aspx?articleID=070917_1_A8_hEnth21583 ("Movies such as 'Rebel without a Cause,' 'American Graffiti' and 'Grease' featured illegal street racing, but the 2001 hit 'The Fast and the Furious' probably did the most to boost racing's popularity, according to a 2004 U.S. Department of Justice Office of Community Policing Report.").
(33.) Thompson, supra note 29.
(34.) Thompson, supra note 16.
(35.) Keith Morelli & Stephen Thompson, Fast Lane Leads Bollea to Tragedy, TAMPA TRIB., Aug. 28, 2007, at 1.
(36.) See id. See also Echegaray, supra note 7.
(37.) Thompson, supra note 16.
(38.) Krause & Thompson, supra note 15.
(39.) Thompson, supra note 25.
(41.) E! True Hollywood Story, supra note 4.
(43.) Thompson, supra note 16.
(44.) Id. By the time Hogan arrived at the hospital, his attorney was already there. Id.
(45.) E! True Hollywood Story, supra note 4.
(46.) Stephen Thompson, Crash Victim's Guardian Sues Bolleas, TAMPA TRIB., Mar. 25, 2008, at 1. "A major issue in this case will be John's failure to have a seat belt on.... He wouldn't have been seriously injured if he had been wearing it." Id.; see Krause & Thompson, supra note 15 (noting that immediately after Nick was charged, Hogan's attorney called into question John's decision not to wear his seatbelt).
(47.) Thompson, supra note 16.
(48.) Id. See also E! True Hollywood Story, supra note 4.
(49.) Thompson, supra note 29.
(50.) Thompson, supra note 10. The Grazianos later released a video undergoing rehabilitation. Stephen Thompson, Graziano Family Releases Rehabilitation Video, TAMPA TRIB., June 18, 2008, available at http://www2.tbo.com/content/2008/jun/18/graziano- family-releases-rehabilitation-video/c_l/. The video also depicted "nurses lifting [John's] head, before he is moved in a giant sling to a mechanical board, apparently designed to make him slightly bend his legs in a rehabilitative exercise. In another part of the video, his mother Debbie wipes his eyes. John Graziano is expressionless throughout the video." Id.
(51.) E! True Hollywood Story, supra note 4.
(52.) FLA. STAT. [section] 316.192(3)(c) (2008). "Reckless driving is defined as driving with a willful or wanton disregard for safety." D.E. v. State, 904 So. 2d 558, 561 (Fla. Dist. Ct. App. 2005). See also FLA. STAT. [section] 316.192(1); Lewek v. State, 702 So. 2d 527, 530 (Fla. Dist. Ct. App. 1997). "In turn, 'willful,' means 'intentional, knowing, and purposeful,' and 'wanton' means with a 'conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.'" W.E.B. v. State, 553 So. 2d 323, 326 (Fla. Dist. Ct. App. 1989). "The term 'serious bodily injury' means an injury to another person, which consists of a physical conditions that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ." FLA. STAT. [section] 316.192(3)(c)(2).
(53.) Krause & Thompson, supra note 15 ("On Wednesday, authorities charged the famed wrestler's 17-year-old son, Nick Bollea, with reckless driving involving serious bodily injury. Almost immediately, Hogan family attorneys called into question Graziano's own inaction that contributed to his injuries."). The family released a statement that they "were saddened that criminal charges have been filed in regards to the tragic single car accident on August 26, 2007." Hulk's Son Nick Hogan in Jail!, NATIONAL ENQUIRER, Nov. 7, 2007, available at http://www.nationalenquirer.com/celebrity/64341. See Velazquez v. State, 561 So. 2d 347, 350 (Fla. Dist. Ct. App. 1990) (finding that the defendant operated his vehicle in a reckless manner where he participated in a highly dangerous drag race).
(54.) E! True Hollywood Story, supra note 4.
(57.) See FLA. STAT. [section] 775.082(3) (2008). Hogan could have been sentenced up to a maximum of five years. Id. (noting that a third degree felony can carry up to a sentence of five years); FLA. STAT. [section] 316.192(3)(2) (stating that reckless driving involving serious bodily injury is a felony in the third degree).
(58.) Editorial: More Must Be Done To Prevent Teen Deaths Behind the Wheel, TAMPA TRIB., May 15, 2008, at 8. Nick Bollea was sentenced as an adult. Lawsuit Contends Pinellas County Sheriff's Office Violated Minor Nick Bollea's Privacy Rights as a Florida Juvenile, Bus. WIRE, June 3, 2008, available at http://www.thefreelibrary.com/ Lawsuit+Contends+Pinellas+County+Sheriff's+Office+Violated+ Minor+Nick ... -a0179657887; see also Tampabay.com, The Feed-Blog, E! True Hollywood Story Tackles Hulk Hogan saga, http://blogs.tampabay.com/media/2008/10/e-true-hollywoo.html (last visited Feb. 15, 2009) (Hulk Hogan said this on Nick's sentencing: "When the judge said you're gonna get 8 months in jail, Nick didn't even turn around and look at me for advice, guidance or anything. He just took it like a man. I never got to say goodbye to him, you know.").
(59.) E! True Hollywood Story, supra note 4.
(60.) See Thompson, supra note 25 (noting that Nick Bollea boasted about his speeding to Rides Magazine). "Bollea . . . said in the interview that he was on his way from Miami to Clearwater when he was pulled over for driving 107 mph and let go because the law enforcement agent recognized him." Id. "Minutes later ... he was doing 123 mph in a 50 mph zone and was stopped again." Id. "The two stops were 19 miles apart." Id.
Since then, Bollea has been stopped for speeding at least three times. In February, he was cited for driving 57 mph in a 30 mph zone in Dade County, but adjudication was withheld. In April, he was clocked driving 106 mph in a 70 mph zone in Osceola County. He was convicted and four points was added to his driving record. And on Aug. 10, 16 days before the Clearwater wreck, Bollea was ticketed for traveling 82 mph on a stretch of U.S. 19 that was under construction. The speed limit was 45 mph.... Bollea also wasn't wearing a seat belt....
Id. Also, it was reported that while driving a 2001 Lamborghini Diablo, the vehicle burst into flames. Morelli & Thompson, supra note 35. Nick escaped the ear only seconds before the explosion. Id. Nick only has had his driver's license since July 2005. Stephen Thompson, Hogan Family Hires Specialist in DUI Cases, TAMPA TRIB., Aug. 29, 2007, at 2. His license plate was "COEHSP," which means "Capable of eluding high-speed pursuit." Morelli & Thompson, supra note 35 (noting Bollea's love for fast cars and speed). "The love of fast cars and racing was a family affair." E! True Hollywood Story, supra note 4. Linda Bollea was featured on a racing documentary called "Vehicular Lunatics." Id. The documentary showed Linda street racing another vehicle while Brooke was in the car. Id. Brooke was taping the race on a hand held video recorder. Id.
(61.) See also Ray Reyes, Hogan Says Jail Call Lacks Context, TAMPA TRIB., June 11, 2008, at 2. "Since early June, Bollea has been housed in a six-bed cell with other juveniles that opens into a common area where he has interacted with additional juveniles." Stephen Thompson, Birthday Candles Unlikely for Bollea, TAMPA TRIB., July 24, 2008, at 2.
(62.) E! True Hollywood Story, supra note 4.
(63.) Thompson, supra note 61. Nicholas Allen Bollea was born on July 27, 1990. E! True Hollywood Story, supra note 4.
(64.) Lawsuit Contends Pinellas County Sheriff's Office Violated Minor Nick Bollea's Privacy Rights as" a Florida Juvenile, supra note 58. More than twenty (20) hours of video-tape were released. Stephen Thompson, Shortcut in Bollea Tape Case Rejected, TAMPA TRIB., Sept. 6, 2008, at 2 (noting that the Sheriff released the taped conversation after a televisions station requested them). Apparently, this is common in Florida. Jail-house conversations were also released in another high profile Florida case involving Casey Anthony, who is accused of killing her toddler. See WFLX Fox 29, Jailhouse Conversations-Casey Talks about Caylee, http://www.wflxfox29.com/Global/story.asp?S-9464052&nav=2JWi (last visited Dec. 6, 2008); Fox News, Sheriff Releases Video of Casey Anthony Jail Visits, http://www.foxnews.com/story/0,2933,462144,00.html (last visited Dec. 6, 2008).
(65.) Lawsuit Contends Pinellas County Sheriff's Office Violated Minor Nick Bollea's Privacy Rights as a Florida Juvenile, supra note 58. The lawsuit is alleging that the Sheriff's Department released "tapes of private, highly personal phone conversation between Nick and his family, and for allowing TV cameras into jail to film him expressly against his wishes." Id.
The lawsuit seeks to prevent the Sheriff's Office from further infringing on Nick's privacy as a juvenile inmate by enjoining the Sheriff's Office from releasing tapes of private conversations between Nick and his parents, surveillance videos taken for security purposes and allowing TV cameras to film him unless he expressly grants permission.
Id. The released tapes implied that the Hogans blamed John Graziano for his own injuries. For instance, Hulk Hogan stated: "Well, I don't know what type of person John was or what he did to get himself in this situation. I know he was pretty aggressive and used to yell at people and used to do stuff and--but for some reason, man, god laid some heavy shit on that kid, man. I don't know what he was into." CNN, Transcripts, http://transcripts.cnn.com/TRANSCRIPTS/0806/09/sbt.01.html (last visited Nov. 22, 2008). See also Reyes, supra note 61, at 2 ("In one, Hogan wonders what Graziano did to put himself in a bad situation, and Nick Bollea calls Graziano 'a negative person.'").
(66.) CNN, Transcripts, supra note 65.
(67.) Id.; see also Reyes, supra note 61 ("'I just wish someone would play the hour before or the two hours after,' Hogan said of the tapes. 'I was trying to help my son through this. I was trying to give my son hope.'").
(68.) E! True Hollywood Story, supra note 4.
(69.) See supra notes 10-13 and accompanying text.
(70.) Complaint and Demand for Jury Trial, Musante v. Bollea, No. 08-4244-C1-015, 2008 WL 1840591 (Fla. Cir. Ct. Mar. 24, 2008).
(76.) Complaint and Demand for Jury Trial, Musante, No. 08-4244-C1-015, 2008 WL 1840591 (Fla. Cir. Ct. Mar. 24, 2008).
(78.) E! True Hollywood Story, supra note 4.
(79.) See Pinellas County Small Claims/Civil, Docket Viewing, http://pubtitlet.co.pinellas.fl.us/servlet/ civil.docketKEAD?CS_CASE=08004244CI&CS_RES ULTS_KNT=10 (last visited Dee. 6, 2008).
(80.) Tampabay.com, This Just In-Breaking News from Around Tampa Bay, Nick Bollea Released from Jail, http://blogs.tampabay.com/breakingnews/2008/10/nick-bollea-rel.html (last visited Nov. 23, 2008); see also E! True Hollywood Story,, supra note 4.
(81.) NZCity, Nick Bollea Released, http://home.nzcity.co.nz/news/article.aspx?id=91799&fm-newsmain,nrhl (last visited Nov. 23, 2008).
(82.) Stephen Thompson, Other Driving in Bollea Case Pleads" To Reckless Driving, TAMPA TRIB., Feb. 28, 2008, available at http://www2.tbo.com/content/2008/feb/28/281631/other-driverbollea-ease-pleads- reckless-driving/(last visited Feb. 10, 2009).
(84.) See Pinellas County Small Claims/Civil, Docket Viewing, http://pubtitlet.co.pinellas.fl.us/servlet/ civil.docket.KEAD?CS_CASE=08004244CI&CS_RES ULTS_KNT=10 (last visited Dec. 6, 2008).
(85.) FLA. SWAT. [section] 322.09 (2008). This section requires the signature by the father, mother, guardian, secondary guardian or other adult who is willing to assume the obligation. Id. This section must be read in connection with all other statutes relating to the issuance of driver's licenses. See, e.g.; FLA. SWAT. [section] 322.03(1) (2008) (stating a person may not drive without a driver's license); FLA. SWAT. [section] 322.05 (2008) (setting out the requirements for issuing learner's permits and driver's licenses to minors). There are various areas of Florida law that require parental consent and involvement. See, e.g., FLA. SWAT. [section] 381.0075(7) (2008) (body piercing); FLA. SWAT. [section] 381.89(7) (2008) (use of a tanning bed at a tanning salon); FLA. SWAT. [section] 550.0425(1) (2008) (attendance at a pari-mutuel event); FLA. STAT. [section] 790.22(1) (2008) (possession and use of firearms); FLA. SWAT. [section] 877.04(3) (2008) (tattoos).
(86.) Hartford Acc.& Indem. Co. v. Ocha, 472 So. 2d 1338, 1342 (Fla. Dist. Ct. App. 1985) (holding that this statute should be strictly construed in favor of the parent). Compare Ocha, 472 So. 2d at 1338, with Gissen v. Goodwill, 80 So. 2d 701, 703 (Fla. 1955) ("[A] parent is not liable for the tort of his minor child because of the mere fact of his paternity"). This statute also applies to accidents that occur outside of the State of Florida. See Stevens v. Shields, 499 N.Y.S.2d 351, 353 (N.Y. App. Div. 1986) (holding that Florida Statute imputing liability for minor driver's negligence or willful misconduct to signer of minor's driver's license application applied to accident occurring in New York involving minor driver who was a Florida resident). However, it is inapplicable when the automobile accident occurs in Florida but is the fault of a nonresident driver. See Brown v. Seebach, 763 F.Supp. 574, 580-81 (S.D. Fla. 1991) (holding that the estate could not recover under the statute against the Connecticut driver). Also, a prudent practitioner must carefully note that when a foster parent or social caseworker signs the driver's license application, the signing foster parent or caseworker does not become liable under the statute. See FLA. STAT. [section] 322.09(4) (2008).
(87.) FLA. STAY. [section] 322.09(2) (2008); cf. FLA. STAY. [section] 741.24(1) (2008) (providing for parental statutory liability for willful destruction or theft by a minor); FLA. STAY. 790.22 (2008) (providing for parental liability for a minor's possession and use of a firearm).
(88.) Ocha, 472 So. 2d at 1342 ("We believe this statute was intended to make a parent liable for actual damages caused by the minor, but not for exemplary damages that are assessed as punishment").
(89.) Farrier v. Thompson, 234 So. 2d 11, 12 (Fla. Dist. Ct. App. 1970) (holding that the obligation of the signer did not expire with the expiration of the minor's driver's license).
(90.) Am. Home Assur. Co. v. Nat'l R.R. Passenger Corp., 908 So. 2d 459, 467-68 (Fla. 2005) ("In sum, the doctrine of vicarious liability takes a party that is free of legal fault and visits upon that party the negligence of another.").
(91.) Ruiz v. Ruiz, 427 So. 2d 298, 299 (Fla. Dist. Ct. App. 1983).
(92.) Stevens v. Shields, 499 N.Y.S.2d 351,353 (N.Y. App. Div. 1986).
(94.) Farrier, 234 So. 2d at 11-13.
(95.) Id. at 13; see also Stevens, 499 N.Y.S.2d at 353 (noting the statute imposes a "supervisory responsibility" and causes signers to allow only minor drivers who they feel are mature enough to accept the obligations and responsibilities of driving).
(96.) Farrier, 234 So. 2d at 13. See also Dombeck v. Chicago, M., St. P. & P. R. Co., 129 N.W.2d 185, 194 (Wis. 1964) (examining the legislative intent of the Wisconsin statute).
(97.) Gracie v. Deming, 213 So. 2d 294, 295 (Fla. Dist. Ct. App. 1968).
(98.) Stevens, 499 N.Y.S. 2d at 353.
(99.) FLA. STAY. [section] 322.10 (2008). Parents also need to be mindful that a signature is required for a minor to obtain a license. FLA. STAY. [section] 322.09. See generally THE FLORIDA BAR, ADOPTION, PATERNITY, AND OTHER FLORIDA FAMILY PRACTICE [section] 7.32 (2007) (outlining the different restrictions imposed upon a minor in obtaining a driver's license); cf. Beerbohm v. State Farm Mut. Auto. Ins. Co., 612 N.W.2d 338, 345 (Wis. Ct. App. 2000) (finding that even though the father had revoked sponsorship under the statute, he remained liable for any negligence or willful misconduct by his son while operating an automobile vehicle).
(100.) FLA. STAY. [section] 322.10.
(101.) Id. The Department of Motor Vehicles must cancel the license where there is satisfactory evidence as to the death of the signer. FLA. STAY. [section] 322.11 (2008). "[I]t is noteworthy that upon the death of the person signing a minor's application, the minor's license is cancelled, and cannot be reissued until a new application, containing the signature of another responsible person, is filed. It seems, therefore, that financial responsibility lies at the heart of the statute." Gracie, 213 So. 2d at 295.
(102.) FLA. STAY. [section] 322.10.
(103.) FLA. STAY. [section] 743.01 (2008).
(105.) See generally Ison v. Fla. Sanitarium & Benevolent Ass'n, 302 So. 2d 200, 201-02 (Fla. Dist. Ct. App. 1974) (noting that when a parent is no longer able to command obedience of the child because of emancipation, the parent is no longer liable for the acts of the minor); cf. Buckeye Union Ins. Co. v. Stiffler, 610 N.E.2d 1038, 1041 (Ohio Ct. App. 1992) (finding that the marriage did not affect liability under the statute); Gracie, 213 So. 2d at 294, 296 (Fla. Dist. Ct. App. 1968) (finding that marriage of the minor daughter did not relieve the parent of liability); Easterly v. Cook, 35 P.2d 164, 166, 167-68 (3d Cal. Ct. App. 1934) (finding that the parent was not relieved of responsibility under the statute merely because the minor subsequently married).
(106.) Lay v. Suggs, 559 So. 2d 740, 741 (Fla. Dist. Ct. App. 1990) (holding that the marriage of the minor automatically terminates the vicarious liability of the person who signed the minor's driver's license application for acts of the minor subsequent to the minor's marriage).
(107.) Aurbach v. Gallina, 753 So. 2d 60, 65 (Fla. 2000). See also Carter v. Graves, 93 So. 2d 177, 180 (Miss. 1957) (holding that the parents of a minor were not liable where the accident occurred after the age specified in the statute); Garrett v. Lyden, 119 N.E.2d 289, 291 (Ohio 1954) (holding that the parents were not liable where the accident occurred after the minor reached the age of majority).
(108.) See Gissen v. Goodwill, 80 So. 2d 701. 703 (Fla. 1955) ("It is basic and established law that a parent is not liable for the tort of his minor child because of the mere fact of his paternity."). The Gissen court set out four exceptions to this general rule. Id. The four exceptions are as follows:
1. Where he intrusts his child with an instrumentality which, because of the lack of age, judgment, or experience of the child, may become a source of danger to others. 2. Where a child, in the commission of a tortious act, is occupying the relationship of a servant or agent of its parents. 3. Where the parent knows of his child's wrongdoing and consents to it, directs or sanctions it. 4. Where he fails to exercise parental control over his minor child, although he knows or in the exercise of due care should have known that injury to another is a probable consequence.
Id. The court failed to cite the Florida Statute, which imputes liability to a parent who signs his or her child's driver's license application. See id. See also Ficklen v. Heichelheim, 176 S.E. 540, 541 (Ga. Ct. App. 1934) (holding a mother liable where she knew her child was a reckless driver and she knowingly allowed him to operate a vehicle): Layes v. Hams, 63 S.W.2d 971, 971 (Ark. 1933) (holding that in order for the father to be liable for the negligence of the child, the father must have permitted his son to operate the vehicle knowing that he was a careless and reckless driver); White v. Seitz, 174 N.E. 371, 373 (Ill. 1930) (holding that a parent is not liable merely because of the relationship); Field v. Evans, 159 N.E. 751, 751 (Mass. 1928) ("The relation of parent and child standing alone does not establish agency."); Tyree v. Tudor, 106 S.E. 675, 676 (N.C. 1921) ("[T]he mere fact that the defendant, the owner of the car, was the father of [the driver] does not make him liable in damages for his acts.").
(109.) Aurbach, 753 So. 2d at 66. See infra notes 155-164 and accompanying text regarding Dangerous Instrumentality Doctrine.
(110.) FLA. STAT. [section] 322.09. Under Florida's statute, a guardian may also be held liable. See id
(111.) See Ruiz v. Ruiz, 427 So. 2d 298, 299 (Fla. Dist. Ct. App. 1983) (finding that a mother was not allowed to recover from her former spouse where the daughter's driver's license application was signed by the mother, not the former spouse); cf. Jackson v. Houchin, 144 S.W.3d 764, 766 (Ark. Ct. App. 2004) (finding that the unauthorized signer, who was a cousin of the minor, was now within the scope of the statute and jointly and severally liable for the negligence of the minor). Several courts have construed automobile guest statutes together with the statute imposing liability upon the signer of the minor's driver's license, thus requiring a higher degree of culpability for an automobile guest to recover against the minor driver of the car in which the guest was traveling. See, e.g., Kyser v. Porter, 548 S.W.2d 128, 13l (Ark. 1977) (finding that the trial court correctly directed a verdict for a minor and his parents where there was no substantial evidence of willful and wanton misconduct as required under the guest statute, even though the driver's license statute held a parent liable for negligence or willful misconduct of the minor); Rodgers v. Freborg, 240 N.W.2d 63, 67 (N.D. 1976) (finding that the automobile guest statute barred recovery by an injured passenger against the father based upon his signing the minor's driver's license application); McHugh v. Brown, 125 A.2d 583,587 (Del. 1956) (holding that a guest statute was a valid defense for a father who signed the driver's license application of a minor involved in an accident). Also, some actions may fall outside the ambit of the statute. See, e.g., Reyes v. Greatway Ins. Co., 582 N.W.2d 480, 482 (Wis. Ct. App. 1998) (holding that a minor's conduct of intentionally shooting a gun into a group of people, even though it occurred while driving a car, fell outside the statute); Employers Mut. Fire Ins. Co. v. Haucke, 64 N.W.2d 426, 427 (Wis. 1954) (holding that a father was not relieved of liability although a minor stole an automobile and wrecked it attempting to allude the police). Several courts have also relieved liability under the statute where there was evidence of compliance with financial responsibility laws. See, e.g., Beardon v. Derry, 645 S.W.2d 356, 357 (Ky. Ct. App. 1983) (finding that where there was adequate insurance coverage provided by the mother of the minor, the father who signed the driver's license application was relieved of liability under the financial responsibility exception); Relf v. Woolwine, 469 N.E.2d 896, 898 (Ohio Ct. App. 1983) (holding that proof of financial responsibility on behalf of the minor was sufficient to relieve a father from liability); Bryan v. Bear, 560 S.W.2d 827, 829 (Ky. Ct. App. 1977) (finding that compliance with the financial responsibility laws relieved the signer of liability under the statute); Evans v. Graham, 594 N.E.2d 71, 75-76 (Ohio Ct. App. 1991) (holding parents liable for the negligence of a minor where the parents failed to show financial responsibility as required by the liability statutes).
(112.) See Pontius v. McLain, 298 P. 541,545 (Cal. Ct. App. 1931) ("A witness for the motor vehicle department testified that she had charge of such papers, that she herself made this copy from the original on file in their office, and that this was an exact copy."). This statute has been rarely litigated in the Florida court system. See, e.g., Brown v. Seebach, 763 F. Supp. 574, 583 (S.D. Fla. 1991) (holding that the estate could not recover under the statute against a Connecticut driver); Hartford Accident & Indem. Co. v. Ocha, 472 So. 2d 1338, 1342 (Fla. Dist. Ct. App. 1985) (holding that this statute should be strictly construed in favor of the parent); Stevens v. Shields, 499 N.Y.S.2d 351, 353 (N.Y. App. Div. 1986) (holding that Florida Statute imputing liability for minor driver's negligence or willful misconduct to signer of minor's driver's license application applied to accident occurring in New York involving minor driver who was a Florida resident). Most of the cases in Florida concern insurance coverage for this type of vicarious liability. See infra Part IV.B. However, other states have fully explored the aspects of vicarious liability statutes, such as section 322.09 of the Florida Statutes. See infra note 123. Therefore, we must look to other courts for guidance.
(113.) Pontius, 298 P. at 546.
(114.) See, e.g., Whitworth v. Jones, 209 P. 60, 63 (Cal. Ct. App. 1922).
(115.) Id. at 63.
(118.) See generally Pontius, 298 P. at 541.
(119.) Id. at 545; cf. Rocha v. Garcia, 263 P. 238, 240 (Cal. 1928) (holding that where the driver's license had not been issued yet, but the application had been signed, the minor was not licensed and therefore the parents could not be held liable under the statute).
(120.) See Sleeper v. Woodmansee, 54 P.2d 519, 522-23 (Cal. Ct. App. 1936) (holding that where the minor's license was suspended, not revoked, the parents were held liable their minor child's negligent operation of a vehicle).
(121.) Compare Farrier v. Thompson, 234 So. 2d 11, 13 (Fla. Dist. Ct. App. 1970) (holding that the mother was still liable where her minor child's driver's license had expired at the time of the accident but could have been renewed), with Hamilton v. Dick, 61 Cal. Rptr. 894, 896 (Cal. Ct. App. 1967) (holding that the mother had no statutory liability where the minor's license had been revoked); Sommers v. Van Der Linden, 75 P.2d 83, 85 86 (Cal. Ct. App. 1938) (holding that the legal liability of the parents did not extend beyond the date which the minor's driver's license expired); Easterly v. Cook, 35 P.2d 164, 167 (Cal. Ct. App. 1934) (recognizing that a parent is no longer liable where the minor's driver's license is canceled); and Keating v. Hollstein, 557 N.E.2d 1253, 1255 (Ohio Misc. 2d 1990) (holding that revocation of the minor's driver's license relieved the mother of responsibility under the statute).
(122.) Farrier, 234 So. 2d at 13.
(123.) See, e.g., Brown v. Seebach, 763 F. Supp. 574 (S.D. Fla. 1991); Hartford Acc. & Indem. Co. v. Ocha, 472 So. 2d 1338 (Fla. Dist. Ct. App. 1985); Ruiz v. Ruiz, 427 So. 2d 298 (Fla. Dist. Ct. App. 1983). See generally 1977 Fla. Op. Att'y Gen. 222 (1977) (examining whether an officer of a non-profit child organization can sign the driver's license application for a minor under the statute). However, this type of statute has been the center of litigation in other state courts. See, e.g., Buckeye Union Cas. Co. v. Bell, 249 F.2d 211,215 (7th Cir. 1957) (holding that the insurance policy did not cover the alleged vicarious liability imposed by the Indiana statute of a person who signed a minor's driver's license); Jackson v. Houchin, 144 S.W.3d 764, 766 (Ark. 2004) (holding that cousin was brought within the statute's reach where cousin signed a minor's driver's license, thus making cousin jointly and severally liable for the minor's negligence); Rogers v. Watkins, 525 S.W.2d 665, 667 (Ark. 1975) (finding that defenses of minor daughter were available to the parent contesting his statutory liability under the statute); Sommers v. Van Der Linden, 75 P.2d 83, 85-86 (Cal. 1938) (holding that the liability of the parents who had signed her their child's driver's license application was extinguished when the driver's license expired); Easterly v. Cook, 35 P.2d 164, 167-68 (Cal. 1934) (finding that father was not relieved of responsibility under statute where minor daughter was subsequently married); Sgheiza v. Jakober, 22 P.2d 19, 21 (Cal. 1933) (holding that where both parents signed application, the parents divorced, custody of the daughter being given to the father, did not release the mother of liability under the statute); Buelke v. Levenstadt, 214 P. 42, 43 (Cal. 1923) (finding uncle vicariously liable where he signed his nephew's driver's license); Fazzino v. Ins. Co. of N, Am., 313 P.2d 178, 180-81 (Cal. Ct. App. 1957) (holding that a parent's policy covered the parent's vicarious liability arising from signing their son's driver's license); McGeehan v. Schiavello, 265 A.2d 24, 26 (Del. 1970) (holding that the father was not liable, where the application was signed by the mother); Progressive Specialty Ins. Co. v. Widness, 635 N.W.2d 516, 519 (Minn. 2001 ) (holding where daughter was driving non-owned vehicle and the policy conditioned use of a non-owned auto on the use by a named insured, coverage was not provided under the policy, despite the fact the mother was legally liable for her daughter's actions); Prewitt v. Walker, 97 So. 2d 514, 516-17 (Miss. 1957) (holding that parents who did not sign their child's driver's license application could not be held liable under the Mississippi statute); Keating v. Hollstein, 557 N.E.2d 1253, 1256 (Ohio 1990) (holding that mother was entitled to summary judgment where revocation of minor's license by the juvenile court relieved the mother of vicarious liability); Bandy v. Duncan, 665 S.W.2d 387, 392 (Tenn. Ct. App. 1983) (finding that a motorcycle was a motor vehicle so as to hold liable by statute the father who signed the minor's driver's license); Rogers v. Wagstaff, 232 P.2d 766, 769 (Utah 1951) (finding that a signing parent was not relieved from liability either by loss of custody or subsequent marriage of the minor); Swanigan v. State Farm Ins. Co., 299 N.W.2d 234, 24445 (Wis. 1980) (holding that document releasing minor did not release mother who signed the minor's driver's license application as a matter of law); Reyes v. Greatway Ins. Co., 582 N.W.2d 480, 484-85 (Wis. Ct. App. 1998) (holding that where minor intentionally shot a gun into a group of people from a moving car, these actions fell outside ambit of vicarious liability statute).
(124.) Stevens v. Shields, 499 N.Y.S.2d 351,353 (N.Y. App. Div. 1986).
(125.) Padgett v. Thompson, 27 So. 2d 909, 910 (Fla. 1946); cf. Benson v. Lynch, 404 F. Supp. 8, 9-10 (D. Del. 1975) (finding that the complaint was improper but could be amended to properly plead a cause of action for vicarious liability under the statute); Townsend v. Harmon, 171 A. 178, 179-80 (Del. 1933) (finding that the complaint was insufficient because it alleged that the minor driver was "about" eighteen years of old and the statute required that the pleader allege that the minor is "under" eighteen years of age).
(126.) See generally supra note 11.
(127.) See generally Padgett, 27 So. 2d at 910-11.
(128.) Id. at 910. See also Naranjo v. Gwinn, 522 So. 2d 97, 97 (Fla. Dist. Ct. App. 1988) (noting that appellant failed to present evidence to support his allegations pursuant to section 322.09).
(129.) Padgett, 27 So. 2d at 910.
(130.) Id. In addition:
If the application had never been delivered to the Motor Vehicle Commission and a permit issued thereon, it never became of any force and effect to bind Mrs. Thompson. There appears to be some contention that the declaration should be construed to state that the driver's license was in possession of Frederick Allen Thompson but no such construction can reasonably be placed on the language used and as the rule is well settled that the language used in a pleading must be taken more strongly against the pleader there is no other conclusion to be reached than that the declaration totally failed to state a cause of action against Elda R. Thompson.
Id. at 910-11.
(131.) See generally id.
(132.) See generally FLA. STAY. [section] 322.09(2) (2008).
(133.) See FLA. DEP'T OF HIGHWAY SAFETY & MOTOR VEHICLES, REQUEST FOR EXEMPT PERSONAL INFORMATION IN A MOTOR VEHICLE/DRIVER LICENSE RECORD, available at http://www.flhsmv.gov/html/Form96015.pdf (last visited Feb. 3, 2009).
(134.) FLA. STAT. [section] 322.09 (2008).
(135.) FLA. R. CIV. P. 1.190(2008).
(138.) Moore v. Liberty Mut. Ins. Co., 988 So. 2d 1285, 1286 (Fla. Dist. Ct. App. 2008) (quoting Trotter v. Ford Motor Credit Corp., 868 So. 2d 593, 595 (Fla. Dist. Ct. App. 2004)). See also Gilbert v. Fla. Power & Light Co., 981 So. 2d 609, 612 (Fla. Dist. Ct. App. 2008) ("Refusal to allow an amendment to the pleadings is an abuse of the trial court's discretion 'unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.'" (quoting State Farm Fire & Cas. Co. v. Fleet Fin. Corp., 724 So. 2d 1218, 1219 (Fla. Dist. Ct. App. 1998))).
(139.) See Google.com; Yahoo.com.
(140.) See, e.g., US Magazine Online, Hulk Hogan, Ex-Wife Dispute His Net Worth, http://www.usmagazine.com/news/hulk-hogan-ex-wife-dispute-his-net-worth (last visited Nov. 27, 2008).
(141.) See Gruman v. Bankers Trust Co., 379 So. 2d 658, 659 (Fla. Dist. Ct. App. 1980); Cooper v. Fulton, 117 So. 2d 33, 35-36 (Fla. Dist. Ct. App. 1960).
(142.) Jim Appley's Tru-Arc, Inc. v. Liquid Extraction Sys. LP, 526 So. 2d 177, 179 (Fla. Dist. Ct. App. 1988).
(143.) Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 194 (Fla. 2003) (finding that the general rule in Florida is that personal financial information is only discoverable in aid of execution after judgment has been entered and where the information is relevant to the underlying proceeding).
(144.) FLA. CONST. art. 1, [section] 23. See also Woodward v. Berkery, 714 So. 2d 1027, 1035 (Fla. Dist. Ct. App. 1998) (noting that Florida's right to privacy encompasses personal finances). The Florida right to privacy has been implicated in various situations. N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 619 (Fla. 2003). "[The Florida privacy] amendment embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution." Id.
(145.) See supra note 11. For instance, the Bollea complaint alleged negligent entrustment and negligent supervision. Complaint and Demand for Jury Trial, Musante v. Bollea, No. 08-4244-C1-015, 2008 WL 1840591 (Fla. Cir. Ct. Mar. 24, 2008).
(146.) See generally Brown v. Seebach, 763 F. Supp. 574, 581-82 (S.D. Fla. 1991) (holding that the complaint stated a claim against parents for both negligent entrustment and negligent supervision).
(147.) Id. at 579.
(148.) Id. at 576.
(152.) Brown, 763 F. Supp. 574, 576 (S.D. Fla. 1991).
(154.) Id. at 582. If the parent gave alcohol to the minor, the plaintiff practitioner may also allege negligence for allowing access to or furnishing the minor with alcohol. See FLA. STAT. 856.015 (2008) (making it a crime to serve alcohol to a minor at an open house party); Trainor v. Estate of Hansen, 740 So. 2d 1201, 1202 (Fla. Dist. Ct. App. 1999) (stating that section 856.015 imposes a duty upon social host not to serve alcohol to minors at a open house party); cf. Kirkland v. Johnson, 499 So. 2d 899, 900 (Fla. Dist. Ct. App. 1987) (holding that no cause of action accrued against social host for third-party injuries resulting from intoxication of minor to whim alcohol was furnished at a private function).
(155.) See generally Southern Cotton Oil Co. v. Anderson, 86 So. 629, 636 (Fla. 1920) (adopting the Dangerous Instrumentality Doctrine). Florida is the only state which follows this doctrine. See Fischer v. Alessandrini, 907 So. 2d 569, 570 (Fla. Dist. Ct. App. 2005).
(156.) See generally Southern Cotton Oil Co., 86 So. at 629, 636 (adopting the Dangerous Instrumentality Doctrine).
(157.) Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000). See also Lamb v. Matetzschk, 906 So. 2d 1037, 1041 (Fla. 2005) (recognizing that Florida's dangerous instrumentality doctrine imposes strict vicarious liability upon the owner who entrusts their motor vehicle to an individual whose negligent operation causes damage to another); Estate of Villanueva v. Youngblood, 927 So. 2d 955,958 (Fla. Dist. Ct. App. 2006) (indicating that an owner who authorizes someone to operate the owner's vehicle has a duty to ensure that the vehicle is operated safely).
(158.) Aurbach, 753 So. 2d at 63. Under the "bare naked title" exception, if the title holder can establish that another person was the beneficial owner of the vehicle, he or she may be exempt from vicarious liability. Morales v. Coca-Cola Co., 813 So. 2d 162, 165 (Fla. Dist. Ct. App. 2002).
(159.) See Castillo v. Bickley, 363 So. 2d 792, 792 (Fla. 1978). The case states the following:
[T]he owner of a vehicle who places his automobile in the custody of a repair shop for repairs, and has no knowledge of or control over the operation of the vehicle during that time, is not liable to a third person for injuries caused by the negligent operation of said vehicle by the repairman, absent negligence on the part of the owner, notwithstanding the fact that the negligent act occurred on the public highway.
Id. (quoting Bickley v. Castillo, 346 So. 2d 625, 626 (Fla. Dist. Ct. App. 1977).
(160.) See Hertz Corp. v. Jackson, 6(17 So. 2d 1051, 1053 (Fla. 1993) (holding that where the vehicle is a product of theft or conversion the owner is not responsible for the actions of the person who took the vehicle while driving).
(161.) Aurbaeh, 753 So. 2d at 62.
(162.) See Ady v. Am. Honda Fin. Corp., 675 So. 2d 577, 580 (Fla. 1996) (reiterating the "long
standing rejection of any judicial exception to the dangerous instrumentality doctrine in Florida"); Kraemer v. Gen. Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990).
(163.) See Marshall v. Gawel, 696 So. 2d 937, 939 (Fla. Dist. Ct. App. 1997) (holding that a mother, who purchased a vehicle for her daughter, who also was the legal title holder of a vehicle was liable under the Dangerous Instrumentality Doctrine as the owner because she had not taken any steps to divest herself of the title, she had insurance on the vehicle, and she resided together with her daughter, which indicated that she had the ability to exert some dominion or control over the vehicle).
(164.) See FLA. STAY. 324.021(9)(b) (2008); Fischer v. Alessandrini, 907 So. 2d 569, 572 (Fla. Dist. Ct. App. 2005) (holding that father who loaned his vehicle to son, who in turn loaned the vehicle to a third person, was entitled to limit his damages for vicarious liability under section 324.02 l(9)(b)).
(165.) Fischer, 907 So. 2d at 572.
(166.) See FLA. STAY. [section] 322.09(2). See also supra notes 85-87 and accompanying text.
(167.) See generally State Farm Mut. Auto. Ins. Co. v. Swetokos, 566 So. 2d 901, 902 (Fla. Dist. Ct. App. 1990) (holding that even though the father is liable under the statute, no coverage is provided under the policy for this liability). Coverage defense practitioners see this argument time and time again from plaintiff's attorneys. See generally id.
(168.) SeeCanal Ins. Co. v. Reed, 666 So. 2d 888, 892 (Fla. 1996).
(169.) See id.
(170.) Fabricant v. Kemper Independence Ins. Co., 474 F.Supp.2d 1328, 1330 (S.D. Fla. 2007) (noting contract principles control the interpretation of insurance contracts).
(171.) Pastori v. Commercial Union Ins. Co., 473 So. 2d 40, 41 (Fla. Dist. Ct. App. 1985). See also The Doctors Co. v. Health Mgmt. Assoc., Inc., 943 So. 2d 807, 810 (Fla. Dist. Ct. App. 2006) ("[A]bsent anthiguity, waiver, estoppel or contradiction of public policy, courts are not authorized to extend coverage beyond the plain language of the policy."); Nationwide Mut. Fire Ins. Co. v. Mazzarino, 766 So. 2d 446, 448 (Fla. Dist. Ct. App. 2000) ("Coverage and benefits depend upon the insured's substantive rights under the contract, not upon who is enforcing them"); Universal Underwriters Ins. Co. v. Fallaro, 597 So. 2d 818, 819 (Fla. Dist. Ct. App. 1992) ("Courts have no power to create insurance coverage where none exists on the face of the insurance contract."); U.S. Fire Ins. Co. v. Morejon, 338 So. 2d 223, 225 (Fla. Dist. Ct. App. 1976) ("Florida courts adhere to the principle that a court should not rewrite a contract of insurance extending the coverage afforded beyond that plainly set forth in the insurance contract.").
(172.) See FLA. STAY. [section][section] 726.101-.201 (2008).
(173.) See FLA. STAT.[section] 726.105.
(174.) See supra notes 141-144 and accompanying text.
(175.) On another note, the practitioner needs to be mindful whether the parents filed for divorce during this time. See, e.g., MSNBC.com, Hulk Hogan Opens up About Divorce, http://www.msnbc.msn.com/id/25978446/(last visited Dec. 13, 2008); Et. True Hollywood Story, supra note 4. They may be filing for divorce to separate and protect assets. See Celebitchy, Is the Hulk Hogan Divorce a Scam to Protect Assets Against a Civil Suit, http://www.celebitchy.com/7749/is the hulk hogan_divorce_a_scam_to_protect_assets_against_a_civil_lawsuit/ (last visited Dec. 13, 2008).
(176.) See Herbert Dicker & Milagros Matos, Investigation Prior to Deposition and Prior to Trial, 393 PRAC. LAW INST. 7, 16 (1990) (stating the value of the information that a driver's license application may be to the defendant since it may be used to discredit claims of injured persons).
(177.) See generally FLA. STAT. [section] 322.09.
(178.) See. e.g., Gustafson v. Rajkovich, 263 P.2d 540, 541 (Ariz. 1953) (holding that the mother could not be held liable under the statute where her child did not have a driver's license); Idemoto v. Scheidecker, 226 P. 922, 924 (Cal. 1924) (holding that mother was not liable where father signed driver's license); Ormston v. Lane, 266 P. 304, 307 (Cal. Ct. App. 1928) (holding that father was not liable where the driver's license application was signed by the mother); McGeehan v. Schiavello, 265 A.2d 24, 25-26 (Del. 1970) (holding father not liable where application was signed by the mother); Larson v. Johnson, 293 A.2d 466, 469 (Md. Ct. Spec. App. 1972) (holding that father not liable where application was signed by the mother); Prewitt v. Walker, 97 So. 2d 514 (Miss. 1957) (holding both parents were not liable under statute where the license was not signed by either parent).
(179.) See generally Wisdom v. Eagle Star Ins. Co., 27 Cal. Rptr. 599, 600 (Cal. Dist. Ct. App. 1963) (holding that the automobile garage liability policy did not provide coverage for the parent's statutory liability); Osborne v. Sec. Ins. Co., 318 P.2d 94, I00-01 (Cal. Dist. Ct. App. 1957) (holding coverage was precluded where the automobile involved was owned by a third party); Quinn v. Gorman, 354 So. 2d 429, 429 (Fla. Dist. Ct. App. 1978) (finding no coverage was provided under the policy for the mother's liability); Witzko v. Koenig, 272 N.W. 864, 866 (Wis. 1937) (stating that coverage for parental vicarious liability was neither included in the coverage nor mandated by the statute).
(180.) See State Farm Mut. Auto. Ins. Co. v. Swetokos, 566 So. 2d 901,903 (Fla. Dist. Ct. App. 1990). See also Lackey v. Olds & Stoller Inter-Exchange, 252 P. 672, 688 (Cal. Ct. App. 1927) (holding that coverage was provided under insurance policy where the vehicle was described in the policy declarations); Leach v. Farmer's Auto Interinsurance Exchange, 213 P.2d 920 (Idaho 1950) (holding that coverage was provided where an insurance policy listed the vehicle in the policy declarations). Cf. Fazzino v. Ins. Co. of N. America, 313 P.2d (178, 180-81 (Cal. Dist. Ct. App. 1957) (holding that the police covered the parents for statutory liability even though their child was driving a vehicle not described in the policy); United Servs. Auto. Assoc. v. Crandall, 594 P.2d 704, 706 (Nev. 1979) (finding that the insurance policy covered the parent's statutory liability where the daughter drove an automobile owned by a third party without their express permission and caused an accident which killed three boys).
(181.) See generally Los Angeles Ins. Co. v. Fireman's Ins. Co., 106 Cal. Rptr. 540, 542 (Cal. Dist. Ct. App. 1973) (holding that no coverage was provided under the parent's homeowner's policy); Allstate Ins. Co. v. Caronia, 395 So. 2d 1221, 1223 (Fla. Dist. Ct. App. 1981) (ruling that the homeowner's policy did not cover the father's statutory liability); Gen. Guar. Ins. Co. v. Broxsie, 239 So. 2d 595, 598 (Fla. Dist. Ct. App. 1970) (holding that the niece of the named insured was a resident of her aunt's home and therefore qualified as an insured under the policy); Oser v. Comm. Union Ins. Co., 409 N.E. (2d 706, 708 (Ind. Ct. App. 1980) (finding that the terms of the insurance policy issued to the father did not provide coverage where the son was not a member of the father's household).
(182.) See Dwelle v. State Farm Mut. Auto. Ins. Co., 839 So. 2d 897, 898 (Fla. Dist. Ct. App. 2003) (holding that the son was a "resident relative" under the policy so as to be considered an "insured"); Dadeland Dodge Inc. v. American Vehicle Ins. Co., 698 So. 2d 929, 931 (Fla. Dist. Ct. App. 1997) (holding that "resident relative" was entitled to PIP benefits); Allstate Ins. Co. v. Pierce, 597 So. 2d 388, 389 (Fla. Dist. Ct. App. 1992) (noting that the term "resident relative" means any "person who physically resides in your household with the intention of continuing residence there").
(183.) Broxsie, 239 So. 2d at 597. See also Martinez v. Allstate Ins. Co., 68 Cal. Rptr. 278, 280 (Cal. Ct. App. 1968) (holding that coverage was precluded because the use of "other automobiles" was limited to user by the named insured and his spouse); Crawley v. State Farm Mut. Auto. Ins. Co., 979 P. (2d 74, 83 (Haw. Ct. App. 1999) (holding that non-resident minor daughter was not insured under mother's policy and this could not be insured for purposes of non- owned automobile endorsement).
(184.) Trezza v. State Farm. Mut. Auto. Ins. Co., 519 So. 2d 649, 650 (Fla. Dist. Ct. App. 1988).
(185.) Kiplinger v. Kiplinger, 2 So. 2d 870, 873 (Fla. 1941). Accord State Farm Mut. Auto. Ins. Co. v. Colon, 880 So. 2d 782, 783 (Fla. Dist. Ct. App. 2004) (citing Kiplinger, 2 So. 2d at 873).
(186.) Dwelle, 839 So. 2d at 899; Row v. United Servs. Auto. Ass'n, 474 So. 2d 348, 349 (Fla. Dist. Ct. App. 1985); Broxsie, 239 So. 2d at 597.
(187.) See, e.g., Cavalier Ins. Corp. v. Bailey, 292 So. 2d 67, 68-69 (Fla. Dist. Ct. App. 1974).
(188.) See id. at 68.
(189.) See Sheehan v. Lumbermens Mut. Cas. Co., 504 So. 2d 776, 779 (Fla. Dist. Ct. App. 1987).
(190.) See Whitten v. Allstate Ins. Co.. 476 So. 2d 794, 795-96 (Fla. Dist. Ct. App. 1985).
(191.) See Caldwell v. Allstate Ins. Co., 417 So. 2d 1040, 1040 (Fla. Dist. Ct. App. 1982) (noting that the insuring agreement protects an insured person "from claims for accidents arising out of the ... use ... of the auto we insure").
(192.) See id at 1040. Florida law is clear that automobile liability policies may condition coverage upon the use of an insured auto. See, e.g., Progressive American Ins. Co. v. Hunter, 603 So. 2d 1301, 1302 (Fla. Dist. Ct. App. 1992). Where a policy contains such a condition, if the vehicle does not meet the policy definitions of an "owned auto" or "non-owned auto," the coverage of the policy is not applicable. Id.
(193.) See generally Quinn v. Gorman, 354 So. 2d 429, 429-30 (Fla. Dist. Ct. App. 1978) (noting that coverage was not provided where daughter was not a resident of her mother's household, and therefore not an insured under the policy).
(194.) Lamos v. Consol. Mut. Ins. Co., 274 So. 2d 552, 552-53 (Fla. Dist. Ct. App. 1973).
(196.) Id. at 553.
(197.) Id. The Court held that the exclusion was valid and no coverage was available for the imputed liability. Id.
(198.) See generally id.
(199.) See Canal Ins. Co. v. Reed, 666 So. 2d 888, 892 (Fla. 1996). Coverage and liability are two separate and distinct issues. Id. "The scope and extent of insurance coverage is defined by the language and terms of the insurance policy...." Fabricant, 474 F. Supp. 2d at 1330. When the terms of the policy are unambiguous, the insurance contract will be enforced as written. Id. See also Henigson v. Davis, 305 So. 2d 86, 89 (Fla. Dist. Ct. App. 1974) (finding coverage for insured's vicarious liability did not extend beyond that contemplated under the policy). The Henigson court noted: "We are aware of the general trend to expand insurance coverage so that it is co-extensive with liability. However, we are unwilling, in effect, to rewrite the contract by adopting a definition of 'use' which goes beyond the plain meaning of the term." Id. (citation omitted).
(200.) Boudreau v. Gen. Accident Fire & Life Ins. Corp., Ltd., 466 So. 2d 338, 340 (Fla. Dist. Ct. App. 1985). "The signing of the undertaking to be jointly liable for another's negligence is not an act or omission under the policy any more than it is a participation in the negligent conduct causing the damages." Id. at 339.
(201.) Id. at 340.
(203.) State Farm Mut. Auto. Ins. Co. v. Swetokos, 566 So. 2d 901,902-03 (Fla. Dist. Ct. App. 1990). The father was the only named insured under the policy, Id. at 902.
(204.) Id. at 902. The policy defined relative as "a person related to you or your spouse by blood, marriage or adoption (including a ward or foster child) who lives with you." Id. Therefore, since the son did not meet this definition, he was not considered an "insured." Id.
(206.) Id. at 902. "Since John Jr. failed to qualify as an insured, the policy in no way contemplated coverage to extend to his acts." Id. at 903.
(207.) See generally Brown v. Champeau, 537 So. 2d 1120 (Fla. Dist. Ct. App. 1989).
(208.) Id. at 1122. The policy stated that the insurance company "will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident...." Id. at 1121. The daughter was considered a covered person and therefore, her use of any vehicle was covered, Id. at 1122.
(209.) Id. at 1122. The "[i]nsuring agreements such as that quoted above customarily have been construed as providing coverage for named insureds (and family members) even where they are vicariously liable for the use of a vehicle by another person." Id.
(211.) See Quinn v. Gorman, 354 So. 2d 429, 430 (Fla. Dist. Ct. App. 1978). "However, we can find no legislative enactments which require that the insurance contract include this coverage." Id. Therefore, Florida public policy does not require that coverage for such vicarious liability be written into all insurance contract issued to residents. See id.
(212.) See generally id.
(213.) Id. at 430.
(214.) See FLA. CONST. art. 10, [section] 4(a)(l) (2008); FLA. STAT. [section] 222.01(1) (2005) (expanding the definition of a "dwelling house" to also exempt mobile and modular homes where the debtor leases the land). "A homestead owner's right to have the homestead exempt from liability in any form is deemed superior to a creditor's claim to have the property applied to the payment of a debt." 28A FLA. JUR. 2d Homesteads [section] 57 (2008).
(215.) In re Englander, 95 F.3d 1028, 1031 (11th Cir. 1996) (citing Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201, 203 (Fla. 1962)).
(216.) Pub. Health Trust of Dade County v. Lopez, 531 So. 2d 946, 948 (Fla.1988).
(217.) FLA. STAT. [section] 322.09(1)(a)-(2) (2007).
(218.) E! True Hollywood Story, supra note 4.
(221.) Hogan's finishing move was the "Atomic Leg Drop." See Wikipedia, Hulk Hogan, http://en.wikipedia.org/wiki/Hulk_Hogan (last visited Dec. 6, 2008).
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|Author:||Gooden, Kansas R.|
|Publication:||St. Thomas Law Review|
|Date:||Mar 22, 2009|
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