If that's the basis for your motion to dismiss, you won't prevail.
If you can't argue the merits of your case, you don't have a case.
What the heck does that mean?
It means its time to negotiate and settle before you get clobbered and gobsmacked.
That's not the basis of my motion. This is. But still need solution to my problem.
DEFENDANT RICHARD M. VIDAIR AMENDED MOTION TO DISMISS COMES NOW defendant Richard M. Vidair ("Richard") who moves this court to enter an order dismissing him as a defendant in this case based on the following grounds: Richard invokes the "naked legal title" exception, also known as the beneficial ownership exception, to the dangerous instrumentality doctrine, Christensen v. Bowen, 140 So.3d 498, at 501 (Fla. 2014): "A narrow exception to the dangerous instrumentality doctrine has been recognized in cases where the titleholder lacks the beneficial ownership of a vehicle. See Aurbach v. Gallina, 753 So.2d 60, 64 (Fla. 2000). (" In Metzel v. Robinson, 102 So.2d 385, 385-86 (Fla. 1958), the Court made it clear that, absent a conditional sales agreement, the circumstances where an entity or individual who possessed legal title would not be vicariously liable under the dangerous instrumentality doctrine were extremely limited."). Under this "beneficial ownership" or " 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. at 63-65. In such circumstances, this Court has held that the titleholder holds only "naked legal title" in the vehicle. See Palmer v. R. S. Evans, Jacksonville, Inc., 81 So.2d 635, 637 (Fla. 1955)." (Emphasis added) The vehicle in question was jointly bought on or about March 3, 2010, with both Richard's and Cheryl's names on the title. On or about July 1, 2011, Richard had separated from Cheryl and rented an apartment. On August 20, 2011, Cheryl was placed on her own insurance policy insuring the 2005 Camry (Exhibit 1). On April 27, 2012, the Final Judgment of Dissolution of Marriage was entered and on May 1, 2012, Richard remarried. The Final Judgment of Dissolution of Marriage gave Cheryl full custody, responsibility, and benefit of the vehicle in question (see Richard M. Vidair Defenses, Attachment A, page 4, Assets: Description of Items(s) Wife Shall Receive, under Automobiles, and page 7, Liabilities: Description of Debt(s) to be Paid by Wife, under Auto Loan, 2005 Toyota Camry, incorporated herein by reference). As per page 7 of the Final Judgment, at the top, Cheryl was to "pay as her own" the debt on the 2005 Camry and was "not at any time ask Husband to pay" that debt, which he did not. She was to make all the payments left on the loan, she was to maintain the vehicle, she was to have insurance on it, and she need not ask anyone for permission to use it as she saw fit. Thus, Richard conferred all beneficial rights to Cheryl and was not in a position "to exert any dominion and control" over the vehicle in question. Unlike Robert Christensen and Mary Gregory Taylor-Christensen whose names on the certificate of title were separated by the word "or", giving each of them the "absolute" right unilaterally "to encumber the car or sell it without the joinder of Ms. Taylor-Christensen", Christensen, at 499, 503, Richard M. Vidair and Cheryl Churan Vidair names were not separated by the word "or". Their names were separated by the word "and" (Exhibit 2). Thus, Richard did not have the absolute right to encumber or sell the vehicle without the joinder of Cheryl. The present case is distinguished from Marshall v. Gawel, 696 So.2d 937, 938-39 (Fla. 2d DCA 1997), where the mother put her name on the title as a coguarantor solely for the purpose of helping her daughter to obtain the necessary financing to purchase the vehicle. However, when the husband, whose name was not on the title, negligently drove the vehicle and injured someone, the Second District Court held the mother was vicariously liable because "(1) she did not divest herself of title, (2) she had insurance on the vehicle, and (3) she resided together with 2 her daughter", Aurbach v. Gallina, 753 So.2d 60, 65 (Fla. 2000). These three elements are not present here: (1) Richard totally divested himself of his entire interest in the vehicle per the Final Judgment of Dissolution of Marriage dated March 19, 2012, over two years before June 2, 2014, the date of the accident that precipitated this cause of action; Cheryl was to "pay as her own" the debt on the 2005 Camry and was "not at any time ask Husband to pay" that debt, (2) he removed himself from the insurance policy for the vehicle in question on August 20, 2011, almost three years before June 2, 2014, the date of the accident that precipitated this cause of action, and (3) he did not reside with Cheryl from July 1, 2011, almost three years before June 2, 2014, the date of the accident that precipitated this cause of action. In Plattenburg v. Dykes, 798 So.2d 915, 916 (Fla. 1st DCA 2001) the Court "appl[ied] beneficial ownership exception where defendant had presented sufficient evidence that he gifted his entire interest in the vehicle, and the donee simply had not yet completed the paperwork to transfer the title at the time of the accident)", Christensen, at 505. Richard's Final Judgment of Dissolution of Marriage should be sufficient evidence that he divested himself of the entire interest in the vehicle since March 19, 2012, although Cheryl simply had not completed paying off the loan at the time of the accident. It was only after their son paid off the loan for Cheryl on or about February 12, 2015, that Richard's name was finally removed from the title. WHEREFORE, based on the foregoing, Richard M. Vidair should not be held vicariously liable for the damages Cheryl Churan Vidair's negligent use of the vehicle inflicted upon plaintiff, and therefore, he moves this court to grant his motion to dismiss him as a defendant with prejudice, and to enter an order adjudicating the same. ____________________________ Richard M. Vidair
