       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

    GUSTAVO RAMIREZ-LUCAS, deceased, by and through CINDY
  KRAMER and NORMA RAMIREZ, co-personal representatives of the
           ESTATE OF GUSTAVO RAMIREZ-LUCAS,
                       Appellants,

                                     v.

           JOHN HUTCHINSON and ANDREW HUTCHINSON,
                          Appellees.

                              No. 4D18-2109

                             [August 14, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Judge; L.T. Case No. 2015CA007967.

   Blair M. Dickert and Lee Gill Cohen of Kanner & Pintaluga, P.A., Boca
Raton, for appellants.

   Hinda Klein of Conroy Simberg, Hollywood, for appellees.

DAMOORGIAN, J.

    Plaintiffs, Cindy Kramer and Norma Ramirez, as Co-Personal
Representatives of the Estate of Gustavo Ramirez-Lucas, appeal the final
judgment entered in favor of John Hutchison on the issue of vicarious
liability. For the reasons discussed below, we affirm.

Background

    On May 19, 2015, a vehicle driven by Andrew Hutchinson (“the Son”)
collided with a bicycle operated by Gustavo Ramirez-Lucas
(“the Decedent”). As a result of the collision, the Decedent suffered serious
injuries which ultimately resulted in his death. Plaintiffs thereafter sued
the Son for negligence along with his father, John Hutchinson
(“the Father”) (collectively “Defendants”), for the Son’s negligence under
the dangerous instrumentality doctrine. Specifically, the complaint
alleged that the Father owned the vehicle driven by the Son that was
involved in the accident. Defendants answered the complaint and denied
the material allegations, including the Father’s ownership of the vehicle.
    The issue of whether the Father transferred his ownership interest in
the vehicle prior to the accident proceeded to a bench trial where the
following was established by testimonial and documentary evidence.

    In December 2014, approximately five months prior to the accident, the
Father delivered physical possession of the vehicle to the adult Son along
with both keys, the manual, and the registration. That same day, the
Father also provided the Son with the signed certificate of title. From
December 2014 until the time of the accident, the vehicle remained at the
Son’s residence and the Son maintained sole possession, control, and use
of the vehicle. The Son also paid all associated costs of the vehicle. The
Father, who did not reside with the Son, did not operate or exercise
dominion over the vehicle at any point after physical possession of the
vehicle was transferred to the Son.

    Defendants initially agreed that the Son would pay $2,500 for the
vehicle, however, payment was delayed until end of January 2015.
Defendants later decided to formally document the sale by belatedly
executing a bill of sale agreement on April 1, 2015. The bill of sale
agreement, which was admitted into evidence, listed the Father as the
seller, the Son as the buyer, and the purchase price as $2,500.

   Around the same time that he received payment from the Son, the
Father sent a letter to his insurance carrier requesting that the vehicle be
removed from his policy because he “no longer own[ed] the vehicle.” The
Father’s insurance carrier later confirmed in writing that, as of February
2, 2015, the vehicle was removed from the Father’s policy. That same
month, the Son added the vehicle to his own insurance policy.

   At no time prior to the accident did the Father notify the DMV of the
sale or transfer of the vehicle as required under section 319.22, Florida
Statutes. Nor did the Son deliver the certificate of title to the DMV to
complete the transfer of title prior to the accident.

    Based on the above evidence, the trial court found that the Father
transferred his ownership interest in the vehicle prior to the accident and
was therefore not subject to vicarious liability for the Son’s alleged
negligent driving. Specifically, the court found that the Father’s act of
delivering physical possession of the vehicle, along with the keys, the
owner’s manual, and the endorsed certificate of title, constituted a bona
fide transfer of ownership notwithstanding the Son’s failure to complete
the necessary paperwork prior to the accident.



                                     2
Analysis

    On appeal, Plaintiffs challenge the trial court’s finding of no vicarious
liability by the Father. Plaintiffs reason that the Father remained the legal
owner of the vehicle at the time of the accident because he failed to timely
notify the DMV of the purported sale and transfer of the vehicle as required
by section 319.22, Florida Statutes. According to Plaintiffs, compliance
with the statute is the only way to avoid civil liability. Alternatively,
Plaintiffs argue that the trial court applied the wrong “subjective intent”
standard in determining the issue of liability.

    The Father counters that Plaintiffs’ reliance on section 319.22 is
misplaced because compliance with the statute is not the sole litmus test
for determining ownership and, in turn, the existence of vicarious liability.
Rather, vicarious liability may be avoided where, as in the instant case,
there is objective evidence demonstrating that the titleholder transferred
his or her entire interest in the vehicle and only held “naked legal title”
under a faulty incomplete transfer. Under such a scenario, beneficial
ownership of the vehicle is transferred to the buyer and the titleholder is
relieved of liability. We agree with the Father.

      1. Compliance with Section 319.22, Florida Statutes

   Section 319.22, Florida Statutes, provides that an owner who has made
a bona fide sale or transfer of a motor vehicle and delivered possession
thereof to a purchaser shall not be deemed the owner of the vehicle so as
to be subject to civil liability if either of the following requirements are met:

      1. When such owner or coowner has made proper
      endorsement and delivery of the certificate of title as provided
      by this chapter.

      ....

      2. When such owner or coowner has delivered to the
      department, or placed in the United States mail, addressed to
      the department, either the certificate of title properly endorsed
      or a notice in the form prescribed by the department.

§ 319.22(2)(a), Fla. Stat. (2015).

  In 2009, the statute was amended and the following relevant provision
was added:


                                       3
      An owner or coowner who has made a bona fide sale or
      transfer of a motor vehicle and has delivered possession
      thereof to a purchaser shall notify the department within 30
      days after the sale or transfer in the form prescribed by the
      department. Notice by such owner or coowner under this
      paragraph shall satisfy the notice requirement under
      subparagraph (a)2. for limitation of liability under paragraph
      (a).

§ 319.22(2)(b), Fla. Stat.

   Although section 319.22 makes clear that no civil liability can accrue
to a seller of a motor vehicle who complies with the requirements of the
statute, Florida courts analyzing the statute have consistently held that “it
does not necessarily follow that a seller who does not comply with these
requirements is ipso facto liable.” Palmer v. R.S. Evans, Jacksonville, Inc.,
81 So. 2d 635, 636 (Fla. 1955); accord McAfee v. Killingsworth, 98 So. 2d
738, 740 (Fla. 1957). The reason being that “the common law of sales is
available to test the liability of a non-complying seller.” Palmer, 81 So. 2d
at 636.

    Under the common law, liability may be imposed on an owner who gives
authority to another to operate the owner’s vehicle under the dangerous
instrumentality doctrine. Christensen v. Bowen, 140 So. 3d 498, 501 (Fla.
2014). “The underlying rationale of the doctrine is that if a vehicle owner,
who has control over the use of the vehicle, exercises his or her control by
granting custody of the vehicle to another, the owner commits himself or
herself to the judgment of that driver and accepts the potential liability for
his or her torts.” Id. The dangerous instrumentality doctrine, however,
has a narrow exception: the beneficial ownership exception. Id. Under the
beneficial ownership exception, also known as the “bare legal title”
exception, “a titleholder may avoid vicarious liability if the titleholder
demonstrates that he or she does not have the authority to exert any
dominion or control over the vehicle and therefore is not a beneficial owner
of the vehicle.” Id.

    The holding in Plattenburg v. Dykes, 798 So. 2d 915 (Fla. 1st DCA 2001)
is instructive. In that case, the titleholder told an individual that he could
have the vehicle if he removed it from the titleholder’s driveway. Id. at 916.
In preparation for the transfer of possession, the titleholder left the keys,
the owner’s manual, the certificate of title, and the registration in the
vehicle. Id. Immediately after the individual took possession of the vehicle
and removed it from the driveway, the titleholder cancelled the insurance
on the vehicle. Id. A few days later, the individual was involved in an

                                      4
accident while driving the subject vehicle. Id. At the time of the accident,
the titleholder had not signed the vehicle title over to the individual. Id.
In holding that the trial court properly entered summary judgment in favor
of the titleholder, the appellate court explained:

      Here, the undisputed facts of record show a gift from [the
      titleholder] to [the individual]. [The titleholder’s] act of
      cancelling the automobile insurance is completely consistent
      with such a conclusion. The record bears out that [the
      individual] simply had not yet followed through with
      completing the paperwork for the transfer of title.
      Accordingly, the trial court correctly ruled that the gift was
      complete, and that [the titleholder’s] failure to complete the
      transfer of title could not, standing alone, support a finding of
      vicarious liability.

Id. at 916–17; see also McAfee, 98 So. 2d at 739–40 (holding similarly).

   Plaintiffs nonetheless maintain that the above cases are no longer
applicable because they either did not analyze the statute or analyzed older
versions of the statute—pre-2009 amendment versions which did not
include the requirement that an owner notify the DMV within 30 days after
the sale or transfer of a motor vehicle. Essentially, Plaintiffs are arguing
that the 2009 amendment abrogated the common law and did away with
the beneficial ownership exception to the dangerous instrumentality
doctrine. We disagree for several reasons.

    First, section 319.22 “has been construed by this court as affecting the
marketability of title, not the mere transfer or passage of title.” Bunting v.
Daly’s, Inc., 528 So. 2d 106, 107 (Fla. 4th DCA 1988). This remains true
with the version of the statute applicable in this case. See § 319.22(1),
Fla. Stat. (2015) (providing that a person “shall not acquire marketable
title” without complying with the statute (emphasis added)).

    Second, there is no express language in the post-2009 version of the
statute indicating that the legislature intended to abrogate the common
law of sales. See Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla.
1997) (“Under our rules of statutory construction, a statute will not
displace the common law unless the legislature expressly indicates an
intention to do so.”). Rather, the 2009 amendment merely added an
additional requirement for compliance with the statute. Importantly, the
amendment left intact the relevant portion of the statute discussing civil
liability—the very language that the pre-2009 amendment cases analyzed.


                                      5
    Third, in 2014, our supreme court recognized the continuing
applicability of the beneficial ownership exception in Christensen. In that
case, the facts of which will be discussed more thoroughly below, the
co-owner of a vehicle sought to avoid vicarious liability under the beneficial
owner exception to the dangerous instrumentality doctrine by asserting
that he never intended to be the owner of the vehicle and further claiming
that he relinquished control of the vehicle to the other co-owner with whom
he did not reside. 140 So. 3d at 500. It is undisputed that the co-owner
took no steps to transfer his ownership in the vehicle pursuant to section
319.22 prior to the accident. Id. at 506. Rather than simply hold that the
co-owner was subject to vicarious liability for failure to comply with the
statute, which the court would have been required to do if compliance with
the statute was the only way to defeat vicarious liability, the court
proceeded to analyze the issue under the beneficial ownership exception.
Id. at 501–06.

      2. Applicability of the Beneficial Ownership Exception

   Alternatively, Plaintiffs argue that the beneficial ownership exception to
the dangerous instrumentality doctrine does not apply in this case
because the record evidence merely shows that the Father subjectively
intended to transfer ownership of the vehicle to the Son. Such a subjective
intent is insufficient to defeat vicarious liability pursuant to Christensen.

    The relevant facts in Christensen are as follows. In 2003, husband
purchased a vehicle and the certificate of title was placed in both his and
his then wife’s name as co-owners. 140 So. 3d at 500. The parties
eventually divorced, and wife kept physical possession of the vehicle at her
new residence. Id. Husband did not have a key to the vehicle or use of
the vehicle and did not have access to wife’s garage where the vehicle was
kept. Id. While driving the subject vehicle, wife negligently struck and
killed an individual. Id. At the time of the accident, title to the vehicle
remained in both husband and wife’s name. Id. The executor of the
decedent’s estate accordingly filed a wrongful death action against both
husband and wife, alleging that husband, as an owner of the subject
vehicle, was vicariously liable for wife’s negligence under the dangerous
instrumentality doctrine. Id. Husband contended that he was not
vicariously liable under the beneficial ownership exception, testifying at
trial that “his intent was to purchase the vehicle as a gift for his wife and
that he had no involvement with the vehicle after it was purchased.” Id.
The jury ultimately found that husband was not the owner of the vehicle
and the district court reversed, holding that husband’s subjective intent
was insufficient to defeat vicarious liability. Id. at 500–01.


                                      6
   In affirming the district court’s decision, our supreme court held that:

      [B]eneficial ownership is unrelated to physical access to a
      vehicle, past use of a vehicle, or intent to use or not use a
      vehicle. Rather, beneficial ownership arises from legal rights
      that allow an individual to exert some dominion and control
      over the use of the vehicle. Thus, because a titleholder has
      legal rights in the vehicle and is in a position to exert some
      dominion and control over the vehicle, he or she is a beneficial
      owner. The injection of theories of subjective intent would
      destabilize the law with regard to motor vehicles in Florida.

Id. at 504. As husband presented no evidence showing that he took
objective steps to transfer his co-ownership interest in the vehicle,
husband remained a beneficial owner regardless of his subjective intent to
gift the vehicle to wife or his non-use of the vehicle. Id. at 506.

    Importantly, the court also expressly approved of the holdings in the
pre-2009 amendment cases, including Palmer, McAfee, and Plattenburg,
and reaffirmed that a titleholder who holds “naked legal title” under a
faulty incomplete transfer will not be subject to vicarious liability. Id. at
502–05. The court explained that “[i]n such cases, the underlying
rationale of the dangerous instrumentality doctrine—that the titleholder
has committed himself or herself to the driver’s judgment—does not
apply.” Id. at 503. In other words, although physical access to a vehicle
or intent to use or not use a vehicle is insufficient, standing alone, to defeat
vicarious liability, the presence of clear and unequivocal evidence showing
that the titleholder took objective steps to transfer his or her interest in
the vehicle and held mere “naked legal title” under a faulty incomplete
transfer is sufficient to defeat vicarious liability. See id. at 504–05.

   In the present case, the clear and unequivocal evidence established that
the Father transferred his beneficial ownership interest in the vehicle prior
to the accident and merely held “naked legal title” under a faulty
incomplete transfer. Specifically, the evidence established that the Father
took the following objective steps to transfer his ownership interest in the
vehicle prior to the accident: (1) sold the vehicle to the Son for $2,500 as
evidenced by the bill of sale; (2) delivered physical possession of the vehicle
to the Son, along with the keys, the owner’s manual, and the endorsed
certificate of title; and (3) cancelled the insurance on the vehicle as
evidenced by the confirmation letter from the Father’s insurance carrier.
Pursuant to Christensen and the precedent cited therein, this objective
evidence was more than sufficient to defeat vicarious liability despite the
Father’s failure to comply with section 319.22, Florida Statutes.

                                       7
   Affirmed.

FORST, J., and CROOM, JANET C., Associate Judge, concur.

                          *        *        *

   Not final until disposition of timely filed motion for rehearing.




                                   8
