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Florida Fourth DCA affirms verdict for rental care company and vehicle lessee where at-fault driver determined to have operated vehicle without express or implied consent of lessee

On June 7, 2017, in Stokes v. Wynn, No. 4D15-0873, the Florida Fourth DCA affirmed a trial verdict and final judgment finding no liability on the part of the defendants, a rental car company and its lessee, in a case involving an accident caused by a third party who was determined to have taken the vehicle without the express or implied permission of the lessee. On appeal, the plaintiff-appellant objected to the trial court’s modification of the standard instruction on express and implied consent, which added a sentence clarifying that the defense was not only raising the general issue of lack of consent, but was additionally contending that the at-fault driver’s use of the vehicle exceeded the scope of any alleged implied consent and amounted to a species of theft or conversion. This language had been requested by the defense because there was some evidence in the case that could have supported a jury conclusion that the at-fault driver reasonably believed that the vehicle lessee had impliedly consented to the at-fault driver’s moving the vehicle from a driveway so that other vehicles could exit, but had not consented to any other use of the vehicle. The Fourth DCA noted that the requested language was consistent with previous decisions by the Florida Supreme Court indicating that only “conversion or theft” will vitiate an owner’s previous express or implied consent to the use of a vehicle and absolve the owner of liability. See Hertz Corp. v. Jackson, 617 So. 2d 1051, 1053 (Fla. 1993); Susco Car Rental System of Florida v. Leonard, 112 So. 2d 832 (Fla. 1959); see also Ryder TRS, Inc. v. Hirsch, 900 So. 2d 608 (Fla. 4th DCA 2005). It does not appear that the trial court ever instructed the jury about the definitions of conversion or theft, a fact which is not discussed in the Fourth DCA’s decision.