DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KENNETH MCALLISTER,
Appellant,
v.
HOLMAN AUTOMOTIVE, INC., d/b/a
LAUDERDALE BMW OF FORT LAUDERDALE,
Appellee.
No. 4D2025-1111
[August 19, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
062022CA010790AXXXCE.
David L. Luck of Morgan & Morgan, Miami, Jennifer Rosinski of Morgan & Morgan, Plantation, and Marisa Glassman of Morgan & Morgan, Tampa, for appellant.
Sharon C. Degnan of Kubicki Draper, Orlando, for appellee.
FORST, J.
Appellant Kenneth McAllister appeals from the trial court’s final summary judgment for Appellee Holman Automotive, Inc. (“Lauderdale BMW”), arguing that the trial court misinterpreted a federal statute and a state statute. For the reasons that follow, we affirm the judgment below.
Background
On March 23, 2022, Alexander Marquina allegedly crashed a car owned by Lauderdale BMW into McAllister, who was riding an electric scooter. McAllister filed a negligence complaint against both Marquina and Lauderdale BMW, requesting damages against Lauderdale BMW on a vicarious liability theory based on its ownership of the car. The undisputed evidence showed that Lauderdale BMW had temporarily provided the car to Marquina for a few days while it was servicing the car which he leases from the dealership.
Lauderdale BMW’s answer and affirmative defenses to McAllister’s amended complaint asserted that McAllister’s claim was barred by the federal Graves Amendment and section 324.021, Florida Statutes (2021).
Marquina’s deposition revealed the following relevant information. He leases a car from Lauderdale BMW and had brought it in for an oil change and tire replacement two or three days before the crash. Complimentary maintenance (including oil changes) is included in the lease, but he had to pay for the tires and their installation, as those parts and service are not included. He testified that the dealership knew in advance he would need a loaner car, and the price of the loaner is included in the lease cost, like the maintenance. He said his service advisor “makes me sign a paper and then I take the car.” He always either emails the service advisor a copy of his car insurance policy or texts him a screenshot of it, and the service advisor enters that information into the dealership’s computer. Marquina said, “I think I already shared my license with him before, so he has my full license, or a copy; I don’t know, I can’t remember, but they did at some point.” Marquina noted his lease included his “driver’s license number, my date of birth, pretty much my information with the old home address” but had not been updated to reflect his new address.
The contract which Marquina had signed before receiving the loaner car listed his insurer, policy number, and expiration date, as well as his driver license number and expiration date. The contract also said:
This Agreement is a contract for rental of the Vehicle offered
to you. This rental is solely a bailment for mutual
consideration. By signing the Face Page, you agree to all
terms and conditions of this Agreement and acknowledge that
binding consideration exists, as follows: our opportunity to
service or repair a vehicle you left with us; financial benefits
we receive from others for the service/repair work; financial
benefits we receive from others to obtain and use this Vehicle
as a Service Replacement Vehicle; a fee you pay us; and/or
the rights and obligations of this Agreement.
Lauderdale BMW’s manager testified that he and Lauderdale BMW’s service advisor did not have any physical copies of Marquina’s driver license. The manager explained that on the day when Marquina had signed the loaner agreement and took the loaner car, his driver license and insurance information would have been collected by the service department and the “pertinent information needed to complete the [loaner rental] document” entered into the dealership’s computer system, and then the license and insurance card returned to the client. The manager
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explained that “you must have those documents in hand to be able to complete” the software prompts and generate the agreement. He said that while some information could autofill, “it’s required to enter every single time the agreement is opened that pertains to driver’s license and insurance information,” and he specifically testified that the service advisor did that on the day when Marquina had received the loaner car. The manager further testified that the client is required to physically provide his driver’s license and insurance card to a service department employee for the loan agreement to be completed, and then the documents are returned to the client.
The service advisor testified, “when you go into a loaner vehicle, I have to have driver’s license and insurance card that are both current. To start the loaner process you have to have that. There’s no way to start it because it would not generate the document without that.” The service advisor recalled that Marquina had physically handed his driver license and insurance card to him, and he manually input the information— including driver license number, date of birth, expiration, and insurance number—into the dealership’s computer system. The service advisor did not keep a physical copy of either card.
Lauderdale BMW moved for summary judgment, again arguing that the Graves Amendment and section 324.021(9)(c)3., Florida Statutes (2021), barred vicarious liability under the facts of this case. McAllister filed a written response making the arguments which he reiterates on appeal.
The trial court granted summary judgment for Lauderdale BMW, ruling that the Graves Amendment barred McAllister’s vicarious liability claim. The trial court also found this case was distinguishable from Romero v. Fields Motorcars of Florida, Inc., 333 So. 3d 746 (Fla. 5th DCA 2022), because in that case, “the loaner agreement included specific language defining the agreement as a gratuitous bailment, no money was exchanged unlike Marquina wherein he knew he was entering into a vehicle use agreement and provided proof of driver license and insurance.”
This appeal follows.
Analysis
Orders granting summary judgment and interpretations of statutes are both reviewed de novo. Collins v. Auto Partners V. LLC, 276 So. 3d 817, 820 (Fla. 4th DCA 2019).
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“Adopted in 1920, Florida’s dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Id. at 820–21 (quoting Aurbach v. Gallina, 753 So. 2d 60, 62 (Fla. 2000)). The doctrine has been preempted in part by the Graves Amendment, which provides in relevant part:
(a) In general.--An owner of a motor vehicle that rents or
leases the vehicle to a person (or an affiliate of the owner) shall
not be liable under the law of any State or political subdivision
thereof, by reason of being the owner of the vehicle (or an
affiliate of the owner), for harm to persons or property that
results or arises out of the use, operation, or possession of the
vehicle during the period of the rental or lease, if--(1) the owner (or an affiliate of the owner) is engaged in the
trade or business of renting or leasing motor vehicles; and
(2) there is no negligence or criminal wrongdoing on the part
of the owner (or an affiliate of the owner).
Id. at 821 (quoting 49 U.S.C. § 30106(a)).
The Graves Amendment’s text plainly states that a dealership cannot be held vicariously liable for a lessee’s negligent operation of a leased or rented car during the lease period.
However, courts have recently reached different conclusions about the more complicated question which McAllister raises here: whether the Graves Amendment preempts state-law vicarious liability for negligent operation of a “temporary loaner” which a dealership provides for a short period while a car, sold or leased from the dealership, is being serviced.
Romero involved an accident involving a dealership customer who was driving a “loaner car,” complimentarily provided by the dealership while the customer’s vehicle (that he had purchased from the dealership) was receiving warranty work by the dealership’s service department. Romero, 333 So. 3d at 748. The Fifth District Court of Appeal analyzed dictionary definitions of “rent” and “lease” and answered this question in the negative, holding that “a transaction involving the provision of a complimentary loaner vehicle is not a rental or lease transaction where no money or other consideration is identified by the parties at the time of the transaction; where the purported lessee was not made aware he was entering into a lease; and where there is no indicia of a lease agreement, oral or written.”
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Id. at 748–50. A crucial footnote to that opinion stated: “[The dealership] also asserts for the first time on appeal that consideration exists because [the lessee] brought his car in for servicing and in return received a loaner vehicle to use. Because this argument was not preserved for appeal, we decline to consider it.” Id. at 748 n.2.
Shortly thereafter, the United States Court of Appeals for the Eleventh Circuit analyzed the Graves Amendment and reached the opposite conclusion, holding that the statute does preempt vicarious liability in a similar temporary-loaner case:
[T]he important language from the Graves Amendment for
us to interpret is “[a]n owner of a motor vehicle that rents or
leases the vehicle.” 49 U.S.C. § 30106. We, then, must
determine what it means to rent or lease a vehicle.
Black’s Law Dictionary defines “rent” as “[c]onsideration
paid, usu. periodically, for the use or occupancy of property
(esp. real property).” Rent, Black’s Law Dictionary (8th ed.
2004). It also defines “lease” as “[t]o grant possession and use
of (land, buildings, rooms, movable property, etc.) to another
in return for rent or other consideration.” Lease, Black’s Law
Dictionary (8th ed. 2004). From these definitions, it is clear
that to rent or lease a vehicle requires an exchange of
consideration for the use of the vehicle. And Black’s Law
Dictionary defines “consideration” as “[s]omething (such as an
act, a forbearance, or a return promise) bargained for and
received by a promisor from a promisee; that which motivates
a person to do something, esp. to engage in a legal act.”
Consideration, Black’s Law Dictionary (8th ed. 2004).
The Popes provided consideration to Randy Marion for the
use of the vehicle here. The Popes only received the vehicle
because they brought their own car in for service. Randy
Marion, then, received the opportunity to service the Popes’
car and received payment from the Popes for performing that
service. Randy Marion provided evidence that it only provides
vehicles if a customer leaves their own vehicle for service.
Thus, Randy Marion rented or leased the vehicle to the Popes
and enjoys the protection of the Graves Amendment.
Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC, 30 F.4th 1290, 1293–94 (11th Cir. 2022).
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Romero and Thayer can be reconciled. In Romero, the driver/lessee did not directly pay any money for the service (the opinion stated it was the driver’s vehicle, purchased from the dealership, that was “hav[ing] warranty work performed on it,” 333 So. 3d at 748), and the court expressly declined, for preservation reasons, to consider the argument that the driver/lessee bringing his car in for servicing constituted consideration for the loaner. Id. at 748 n.2, 750. Thayer relied on the fact that the dealership “received the opportunity to service the Popes’ car and received payment from the Popes for performing that service.” 30 F.4th at 1294 (emphasis added).
Here, the facts align with Thayer, not Romero. Lauderdale BMW argues that it received consideration for the loaner in the form of the opportunity to service Marquina’s car, financial benefits which it had received from Marquina as payment for the tires and their installation, as well as financial benefits which Lauderdale BMW potentially receives from others for the service work, and Marquina’s compliance with the terms of the written agreement which he had signed before receiving the loaner. Lauderdale BMW observes that unlike the driver in Romero, Marquina signed a written agreement that called itself “a contract for rental of the Vehicle offered to you” and identified each of these forms of consideration, so the parties had a meeting of the minds that they were entering into a short-term rental contract. Like Thayer, we hold that these forms of consideration rendered the contract for the loaner car a “rental or lease” and, therefore, brought Lauderdale BMW within the Graves Amendment’s ambit.
Even if this were not so, we would affirm on an alternative basis: section 324.021(9)(c)3., Florida Statutes (2021), covers this exact situation and bars liability. Section 324.021(9)(c)3. pertinently provides:
a. A motor vehicle dealer, or a motor vehicle dealer’s leasing
or rental affiliate, that provides a temporary replacement
vehicle at no charge or at a reasonable daily charge to a service
customer whose vehicle is being held for repair, service, or
adjustment by the motor vehicle dealer is immune from any
cause of action and is not liable, vicariously or directly, under
general law solely by reason of being the owner of the
temporary replacement vehicle for harm to persons or
property that arises out of the use, or operation, of the
temporary replacement vehicle by any person during the
period the temporary replacement vehicle has been entrusted
to the motor vehicle dealer’s service customer if there is no
negligence or criminal wrongdoing on the part of the motor
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vehicle owner, or its leasing or rental affiliate.
b. For purposes of this section, and notwithstanding any
other provision of general law, a motor vehicle dealer, or a
motor vehicle dealer’s leasing or rental affiliate, that gives
possession, control, or use of a temporary replacement vehicle
to a motor vehicle dealer’s service customer may not be
adjudged liable in a civil proceeding absent negligence or
criminal wrongdoing on the part of the motor vehicle dealer,
or the motor vehicle dealer’s leasing or rental affiliate, if the
motor vehicle dealer or the motor vehicle dealer’s leasing or
rental affiliate executes a written rental or use agreement and
obtains from the person receiving the temporary replacement
vehicle a copy of the person’s driver license and insurance
information reflecting at least the minimum motor vehicle
insurance coverage required in the state. Any subsequent
determination that the driver license or insurance information
provided to the motor vehicle dealer, or the motor vehicle
dealer’s leasing or rental affiliate, was in any way false,
fraudulent, misleading, nonexistent, canceled, not in effect, or
invalid does not alter or diminish the protections provided by
this section, unless the motor vehicle dealer, or the motor
vehicle dealer’s leasing or rental affiliate, had actual
knowledge thereof at the time possession of the temporary
replacement vehicle was provided.
§ 324.021(9)(c)3., Fla. Stat. (2021).
As Lauderdale BMW correctly argued below, section 324.021(9)(c)3. bars vicarious liability based on Lauderdale BMW having provided a temporary loaner car to Marquina, even though the loaner car was provided at no direct charge. The only reason why section 324.021(9)(c)3. did not protect the dealership in Romero from liability is because that subsection was adopted after the car crash which had formed the basis for that case. See Romero, 333 So. 3d at 750 n.5 (“Florida, however, has [extended protection to gratuitous bailments] with the amendment to section 324.021(9)(c)3., Florida Statutes (2020) (eff. July 1, 2020). . . . The adoption of this new statutory protection for dealerships that otherwise could be held liable for the negligent operation of their loaner vehicles does not apply in this case, having been adopted after the date of the accident and not being remedial in nature.”).
For strategic reasons, McAllister has argued throughout this litigation that section 324.021(9)(c)3. is not preempted by the Graves Amendment.
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To the extent that section 324.021(9)(c)3., as amended in 2020, does not impose liability in situations where the Graves Amendment would bar liability, we agree. Cf. Vargas v. Enter. Leasing Co., 60 So. 3d 1037, 1040– 43 (Fla. 2011).
Because Lauderdale BMW “provide[d] a temporary replacement vehicle at no charge or at a reasonable daily charge to a service customer whose vehicle [wa]s being held for repair, service, or adjustment by the motor vehicle dealer,” Lauderdale BMW is immune from vicarious liability for Marquina’s alleged negligence while driving that car. § 324.021(9)(c)3., Fla. Stat. (2021). 1
Conclusion
We hold that both the federal Graves Amendment and section
324.021(9)(c)3., Florida Statutes (2021), immunize Lauderdale BMW from vicarious liability for Marquina’s alleged negligence based on having provided him with a temporary loaner car while his leased car was being serviced. Accordingly, we affirm the summary judgment for Lauderdale BMW.
Affirmed.
GERBER, C.J., and SHAW, J., concur.
* * *
Not final until disposition of timely-filed motion for rehearing.
1 McAllister argues that section 324.021(9)(c)3.b., Florida Statutes (2021), was
not satisfied, because Lauderdale BMW did not retain photocopies of Marquina’s physical driver license and insurance card. We disagree. The undisputed evidence shows that Lauderdale BMW had viewed Marquina’s physical driver license and insurance card, obtained the information from those documents, and entered that information into its computer system before generating the rental agreement for the loaner, and that it would not have been possible to generate the agreement without having entered that information. This satisfies the statutory requirement that the dealership “obtain[] from the person receiving the temporary replacement vehicle a copy of the person’s driver license and insurance information.” § 324.021(9)(c)3.b., Fla. Stat. (2021) (emphasis added).
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