BOWEN v. TAYLOR CHRISTENSEN

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Mary Jo BOWEN as Personal Representative, etc., Appellant, v. Mary Gregory TAYLOR–CHRISTENSEN, et al., Appellee.

No. 5D09–3888.

Decided: August 31, 2012

Stephen J. Pajcic, III, and Thomas F. Slaterof Pajcic & Pajcic, P .A., Jacksonville, S. Sammy Cacciatore, Jr., of Nance, Cacciatore, Hamilton, Berger, Nance & Cacciatore, Melbourne, and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant. Warren B. Kwavnick of Cooney, Trybus, Kwavnick, Peets, PLC, Fort Lauderdale, and Dennis R. O'Connor of Ogden, Sullivan & O'Connor, P.A., Orlando, for Appellee Robert L. Christensen. No Appearance for Appellee Mary Gregory Taylor–Christensen.

ON MOTION FOR REHEARING EN BANC

We grant the motion for rehearing en banc, recede from the panel opinion, and substitute this opinion in its place.1

The issue we address in this wrongful death lawsuit is whether Robert Christensen (“Appellee”) is vicariously liable for damages arising from an automobile collision caused by his now ex-wife, Mary Gregory Taylor–Christensen (“Ms.Taylor–Christensen”), who was operating a car while under the influence of alcohol when she struck and killed Appellant's husband. The car that Ms. Taylor–Christensen was driving was titled in both her and Appellee's names as co-owners. Because we conclude, as a matter of law, that Appellee had an identifiable property interest in the car at the time of the collision, we reverse the lower court's order that denied Appellant's motion for directed verdict, and remand the case with instructions to enter judgment against Appellee in accordance with the damage verdict—as might be modified after due consideration of Appellee's fifth affirmative defense.2

Appellee testified that he separated from Ms. Taylor–Christensen in April 1999, and Ms. Taylor–Christensen relocated to another county. In April 2003, after the conclusion of the court proceedings for the dissolution of their marriage, but before the final judgment was entered, Appellee attempted to reconcile with Ms. Taylor–Christensen and went to visit her. Ms. Taylor–Christensen told him that she needed a second car because the vehicle she had was unsuitable for transporting her grandchildren. After shopping together, Appellee purchased the car that Ms. Taylor–Christensen was operating at the time of the fatal collision.

Appellee and Ms. Taylor–Christensen signed numerous documents in connection with the purchase of the car identifying themselves as “purchaser[s]” or “co-owner[s]” or both. They signed a purchase agreement that identified each as “buyer” and “purchaser.” They signed a HSMV 82994 form (required to obtain title) as “Buyer[s].” Under penalty of perjury, they signed an application for title wherein they designated themselves at the top of the page as “co-owner [s],” and each of their signatures appeared over the typewritten designation “APPLICANT (CO–OWNER).” The application included a sworn attestation to the correctness of the information. Both Appellee and Ms. Taylor–Christensen produced their driver's licenses and provided their social security numbers and birth dates for recordation in the transaction paperwork. The purchase transaction took a considerable period of time to complete. Appellee described the process as “tak[ing] longer to buy a vehicle than anything else in [one's] life.” When asked about the documents, Appellee acknowledged that the title to the car was issued to Ms. Taylor–Christensen “or” Appellee, in accordance with the application, but he claimed that his intention in signing the paperwork was to make a “gift” of the car to his “wife.” According to Appellee,

the salesman filled out the paperwork, gave me the paperwork, and I signed it. My intention was to buy a gift for my wife so that she could drive a car and, of course, that was my interest, was to buy her a car for that purpose. And so I signed the documents there so that I could purchase that car for her.

(Emphasis added).

According to Appellee, he saw the car only twice after the purchase-the day after the purchase when he drove it to a car wash and one other time in the summer of 2003, during a second and last attempt at reconciliation. The fatal collision occurred on February 21, 2005.

After the court denied Appellant's motion for directed verdict on Appellee's liability, the jury returned a special verdict finding that Appellee was not the owner of the car at the time of the collision. Appellant challenges that ruling, arguing that, as a matter of law, Appellee was the owner of the vehicle. We agree and reverse.

The dangerous instrumentality doctrine was adopted in Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla.1920). Its evolution has been the product of state and federal legislation,3 as well as judicial construction. The Florida Legislature, in the Financial Responsibility Law, imposed limited statutory liability on “owners” who permit the use of their vehicles:

The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage.

§ 324.021(9)(b)3., Fla. Stat. (1999)4 (emphasis added). Section 324.021(9)(a), Florida Statutes (2005), defines “owner” as the “person who holds the legal title of a motor vehicle.” (Emphasis added). Two of the so-called exceptions to title holder liability addressed by the courts have also been addressed by statute in the Florida Uniform Traffic Control Law. See § 316.003(26), Fla. Stat. (2005) (conditional sales exception—“owner” defined as one who holds legal title or conditional sales vendee); § 319.22(2), Fla. Stat. (2005) (incomplete transfer—transferor not liable for incomplete transfer if certain formalities are honored).

If the answer to this case involved the application of the statutory scheme, without more, it would be easy. Because Appellee never transferred title of the vehicle in accordance with section 319.22(2), Florida Statutes (2005), and was not a conditional sale vendor as set forth in section 316.003(26), Florida Statutes (2005),5 he remained a co-owner of the car by virtue of holding legal title at the time of the collision. Thus, he was legally liable for the acts of his co-owner while she was operating the car, at least to the statutory limits set forth at section 324.021(9)(b)3. However, in Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955), the supreme court recognized an “extremely limited” exception that allows the title holder to “escape” liability if the title holder consummates a “common law sale,” even if the sale does not meet the formalities of the statutory scheme. See Aurbach v. Gallina, 753 So.2d 60, 63–64 (Fla.2000) (characterizing holding in Palmer as “extremely limited” exception under which titled owner may “escape” liability).6

In Palmer, the title holder, a used car dealer, sold a car to Mr. Hughes under a conditional sales contract. 81 So.2d at 635. The contract and other papers were signed, indicating that the buyer had purchased the car, a down payment had been paid, and the car had been delivered to the buyer. The buyer subsequently caused a collision while driving the car. Id. The used car dealer argued that it was not the beneficial owner of the vehicle because it had sold its interest to Mr. Hughes, even though it had not attended to statutory formalities for transfer and avoidance of transferor liability.7 Id. at 636. Our high court agreed. It concluded that, although a transfer of ownership using the formalities contained in section 319.22, would, as the statute states, terminate the transferor's liability, the statutory method of transfer was not intended to be exclusive. A transferor's liability could also terminate upon a completed “common law sale.” Id. Our high court concluded:

We think these facts supported the verdict rendered. Before Hughes drove the car out of the Evans lot, the definite intention existed on the part of Hughes and the Evans representative to make immediate transfer of the beneficial ownership of the vehicle to Hughes, and nothing appears to suggest a contrary intention.

Id. (emphasis added).

Appellee heavily relies on Palmer and its progeny, urging that this is a case where the issue of beneficial ownership was properly placed before the jury because it was a question of fact whether Appellee had divested himself of his ownership interest in the vehicle by “gift.” Assuming that the “extremely limited” exception in Palmer—a case involving a well-documented exchange between unrelated parties with no contradictory evidence—may be extended to this situation, to prevail on this argument, Appellee had the burden to present material evidence to support his theory that he gifted all of his interest in the vehicle to Ms. Taylor–Christensen, rather than a mere co-ownership interest. See Palmer, 81 So.2d at 636–37 (emphasizing lack of evidence “to suggest a contrary intention”).

To make a valid gift, three elements must be shown: donative intent, delivery of possession, and an intent by the donor to divest himself of all dominion and control. Reiner v. Reiner, 400 So.2d 1292, 1293 (Fla. 4th DCA 1981); Sihler v. Sihler, 376 So.2d 941, 942 (Fla. 2d DCA 1979); Eulette v. Lynch, 101 So.2d 603 (Fla. 3d DCA 1958). In determining the donor's intent, the evidentiary focus must be on the donor's words when making the purported gift. Canova v. Fla. Nat'l Bank of Jacksonville, 60 So.2d 627, 628 (Fla.1952); Winner v. Winner, 370 So.2d 845, 846–47 (Fla. 3d DCA 1979). Here, the only evidence of the words Appellee used to manifest an intent to make a gift was in the documents he signed when he acquired the car from the dealer. The complete void in Appellee's proof, however, is that the documents evince only an intent to gift a co-ownership in the vehicle, at most. Appellee expressly and purposefully retained an ownership interest for himself, defeating any contention that he intended to divest himself of all interest in the vehicle.

What Appellee has really endeavored to do here is contradict the documents with after-the-fact evidence of a subjective intent to do what the unambiguous documents do not do. As he stated, “My intention was to buy a gift for my wife so that she could drive a car and, of course, that was my interest, was to buy her a car for that purpose. And so I signed the documents there so that I could purchase that car for her.” We long ago held that this type of evidence is “legally immaterial” to defeat vicarious liability by a title holder of a vehicle. In Johnson v. Deangelo, 448 So.2d 581, 582 (Fla. 5th DCA 1984), we succinctly stated the applicable law on this issue:

Mary S. Johnson's name, together with that of her husband, Willie D. Johnson, Jr., was on the title certificate of the motor vehicle operated by their son, Gary Evan Johnson, at the time of the accident that resulted in a wrongful death. Mrs. Johnson intentionally caused her name to be placed on the title certificate, it did not happen by accident or without her knowledge and consent, nor did she hold her formal ownership interest in the vehicle as a mere security device or because she had made a good faith but ineffectual attempt or effort to transfer her title interest. Her subjective intent or reason or motive in causing her name to be placed on the title certificate was legally immaterial and, accordingly, her testimony was insufficient as a matter of law to rebut the legal presumption arising from the motor vehicle title certificate itself and insufficient to avoid the legal consequences of that fact.

(Emphasis added). The reason for this rule of law is that vicarious liability of the type here flows from an “identifiable property interest” in a vehicle. Aurbach, 753 So.2d at 62. Property interests are established by contract, and contracts are formed by objective acts, not subjective beliefs. When a written document addresses the subject matter of the contract, it cannot be contradicted by evidence of subjective intent. Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). “[A] party who signs a document ․ is bound by its terms in the absence of coercion, duress, fraud in the inducement or some other independent ground justifying rescission.” Hale v. State, 838 So.2d 1185, 1187 (Fla. 5th DCA 2003). These legal tenets are equally applicable whether the purported property interest is based on an alleged sale or an alleged gift.

Here, Appellee executed document after document identifying himself as a co-purchaser and co-owner. By his own admission, the transaction took a significant period of time. The voluminous nature of the documents bear that out. He was required to furnish his driver's license and social security information. He signed his name five times on different documents, all of which identified him as purchaser, co-purchaser, or co-owner. He signed a sworn application for title and registration, attesting to his ownership interest, instructing the government to issue the title and registration documents in his name as co-owner and to send them to Ms. Taylor–Christensen's address.8 He never claimed that the salesman incorrectly filled out the documents or that he did not read and understand them. They were simple and unambiguous. In any other factual context—a title dispute between the parties, an attempt by a creditor to levy on Appellee's interest, probate, divorce, survivorship, etc.—we would hold Appellee to what he signed because to do otherwise renders the documents meaningless. Appellee has not advanced any compelling reason why we should make an exception here.

Giving effect to the documents makes our conclusion clear. Appellee and Ms. Taylor–Christensen, by affixing their signatures to these important legal documents, expressed their collective intent that they would share a property interest in this car. By statute, Appellee was a co-owner because he held legal title to the car. §§ 316.003(26), 322.01(30), 324.021(9)(a), Fla. Stat. (2005). Appellee retained the “absolute” legal right to encumber the car or sell it without the joinder of Ms. Taylor–Christensen. § 319.22(2)(a) 1., Fla. Stat. (2005). If Ms. Taylor–Christensen had predeceased him, he also retained the right of survivorship in the car. § 319.22(2)(a)1., Fla. Stat. (2005). Appellee consciously retained an interest in the car despite his “gift” of co-ownership, and he did nothing to divest himself of that interest at anytime thereafter.

Nor can Appellee avoid liability in this situation by evidence that he did not use the car or control its use after it was acquired from the dealer. Ownership and possession are distinct concepts. A property interest is based on the right to control, not the exercise of that right. On these facts, it makes no difference to the outcome whether the collision occurred two years or two seconds after the car was taken from the dealership because Appellee's theory is that the completed gift occurred at the time the car was purchased from the dealer. All of the evidence pertaining to his lack of use of the car after it was acquired is simply immaterial. Nor should his legal interest in the car turn on his on-again-off-again use or non-use of it. This is especially true where, as here, Ms. Taylor–Christensen's use of the car was not inconsistent with Appellee's ownership interest in it because she shared co-ownership with him. Stated differently, his acquiescence to her use of the car, even her exclusive use, was not repugnant to his legal status as co-owner.

We think our conclusion on both of these points-Appellee's subjective intent and his non-use-is amply grounded in our high court's decision in Metzel v. Robinson, 102 So.2d 385 (Fla.1958). Metzel stands for three legal propositions all of which have direct bearing here: (1) as a matter of law, if a person causes or permits his name to be on the title when the vehicle is acquired, he cannot contradict the title by claiming that he did not intend to be an owner at the outset; (2) as a matter of law, once that person has caused his name to be affixed to the title, he must take some affirmative action to divest himself of that interest to avoid liability; and (3) as a matter of law, relinquishing possession of and having nothing to do with the vehicle after its acquisition is not sufficient to divest that person of his legal interest.

The facts in Metzel were that the appellant signed loan documents and took title to a car only to accommodate her eighteen-year-old nephew, who desired to purchase the car but could not obtain financing. After the purchase, the nephew “kept up the payments, and [the] appellant had nothing further to do with the car.” Id. at 385 (emphasis added). While driving the car, the nephew caused an accident, resulting in a claim for damages against the appellant as the titled owner of the car. The lower court directed a verdict for the plaintiff on the issue of the appellant's vicarious liability. It concluded that the appellant was the legal owner of the car, notwithstanding her subjective purpose in permitting the title to be placed in her name and regardless of the fact that she had “nothing to do with the car” after its purchase. Id. Our supreme court affirmed. It concluded that both the appellant and her nephew were liable, as a matter of law, because both had a “species of ownership” in the vehicle. Id. at 386 (emphasis added).

Here, like in Metzel, Appellee denied that he ever intended to own the car, but he had titled it in his name as a part of the purchase/gift transaction. He claimed to have nothing to do with the car after its acquisition, except for a brief trip to the car wash in it the next day. However, after he caused title to be placed in his name as co-owner, he failed to do or even say anything to “divest [himself] of [his] title to the car.” Metzel, 102 So.2d at 386 (emphasis added). By virtue of his titled ownership, Appellee retained the right to exercise control over the car at any time, just as the appellant in Metzel had done. Therefore, as a matter of law, Appellee remained legally responsible for its negligent operation because he retained some “species” of ownership.

Appellee dismisses Metzel as a case that turned on the fact that the nephew resided with the aunt. He argues that this fact was what caused the court to conclude that the titled owner still had the ability to exert some control over the car. The problem with this proffered basis for distinction is that it is factually unsupported and legally untenable, especially in light of the supreme court's later pronouncement in Aurbach. As for the factual part, the Metzel opinion notes only that the nephew “lived” with his aunt in Washington, D.C., at the time the car was purchased. Nothing in the opinion gives credence to the assertion that he still lived with her in Washington at the time of the crash in Miami, Florida. And nothing in the opinion suggests that this alleged fact had any legal significance to the holding.

An even more compelling contradiction to Appellee's position, however, is that Aurbach put to rest the notion that common residence has any legal significance on vicarious liability. In Aurbach, the court held that, as a matter of law, a father could not be liable for the negligence of his minor daughter, even though the jury had determined, as an ostensible finding of fact, that he had the “right to control” the car by virtue of the fact that she was a minor who lived in the same household. 753 So.2d at 64. Instead, in reliance on Metzel, our high court determined that liability could not be attributable to the father because his name was not on the title. Id. When stating the holding in Metzel, the Aurbach court said that “because the aunt took no action to divest herself of the title to the car, the Court determined that she was the ‘owner’ of the automobile as a matter of law.” Id. Significantly, both Metzel and Aurbach were determined as a matter of law. Had the issue of control, based on cohabitation or otherwise, been a relevant factor in either case, neither case could have been decided without a jury determination of who had “control” of the vehicle.9

The clear holding of Aurbach is that the “right” of control follows ownership, not use or exercise of control. The Aurbach court categorized Palmer and its progeny as establishing an “extremely limited” exception for the legal title owner to “escape” vicarious liability. Aurbach, 753 So.2d at 63–64. Here, Appellee, the titled owner, seeks to avoid liability by arguing that he did not exercise control even though he might have had the legal right. Appellee's attorney successfully argued to the jury that Appellee's failure to exercise actual control was tantamount to not having any “right” to control. That argument was a distortion of the law; it is the precise argument that was rejected in Aurbach. We are circumspect to extend the “extremely limited” exception in Palmer to this case, especially against an evolving statutory backdrop that evinces a legislative intent to impose liability on the title holder absent clearly defined circumstances.

If Appellee is correct, then it logically follows that Appellee could have avoided liability even if his name was the sole name on the title. This hypothetical variant illustrates the fallacy in Appellee's contention that the resolution of this case is as simple as a jury instruction informing the jury that it must find that the defendant is both the title holder and has a right of control before it can hold him vicariously liable. Such an instruction might make sense in the context of the facts of Aurbach, where the jury had determined that the father had the “right of control” but not legal title. When the converse is the case, assuming that a jury question is presented, the instruction should focus on the legal doctrine that pertains to the theory advanced as an “exception.” For example, a jury instruction might read:

The holder of legal title is presumed liable for the negligence of the permissive user, unless, prior to the collision, the holder of legal title had made a bona fide transfer of all of his interest in the vehicle by sale [or gift], so that the title holder retained no beneficial interest in the vehicle after the sale [or gift].

In those rare circumstances where a disputed, material issue of fact exists, an instruction such as this will permit the jury to resolve the fact dispute and apply the law to reach a conclusion. In most circumstances, as the decisional law bears out, the court determines who owned the car at the time of the collision.

In her dissent, Judge Griffin speculates that the gift might have occurred at some unspecified point in time after the purchase transaction. She makes note of the limited record—suggesting perhaps that the record is incomplete. Her dissent also cites to an affidavit of Appellee not admitted at trial.10 Finally, it urges that Appellee's admission regarding his intent in “sign[ing] the [purchase] documents” is ambiguous and could have been clarified by Appellee. All of this discussion ignores that it was Appellee's burden to overcome the legal presumption that the title document accurately reflects the identity of the owner(s). Johnson v. Sentry Ins., 510 So.2d 1219 (Fla. 5th DCA 1987).

We attribute no significance to the limited record. The issue on appeal is a narrow one. The rules contemplate that lawyers will send only those portions of the record that are necessary for review of the issues on appeal. See Fla. R.App. P. 9.200(b)(1). Appellee had the right to designate portions of the record and transcript for our consideration. Nor do we attribute significance to Appellee's affidavit because it was not admitted at trial. Even if this evidence is considered, however, it is entirely consistent with Appellee's trial testimony that he made the gift at the time he purchased the car, and it completely undermines the dissent's criticism of our interpretation of the trial testimony. If, as Appellee said in his affidavit, he was unaware that his name was on the title, then, in his mind, the gift was complete at the time the car was purchased. The obvious trouble with this position for Appellee is that he may not contradict the documents by claiming that he did not read or understand what they plainly said. That is the point of Deangelo and Metzel. Contrary to the dissent's argument, the dissent-labeled “HAC” theory is not a new theory. Appellant's theory has always been that the title document controls. The document reflects that Appellee and Ms. Taylor–Christensen are co-owners. Without dispute, Appellee paid the entire purchase price for the car. Ignoring as irrelevant Appellee's subjective purpose for signing the documents, the only conclusion that may be drawn from the evidence is that Appellee gifted an undivided interest to Ms. Taylor–Christensen at the time the car was acquired. There is simply no evidence that he gifted anything else to her at any later time.

The purchase and ownership of a vehicle is not like the purchase and ownership of a television. A vehicle is a dangerous instrument, the mere ownership of which gives rise to serious responsibility and potential liability. Its acquisition and ownership are highly regulated by statutes and rules, which should not be circumvented by something as elusive as one's after-the-fact characterization of his or her subjective belief. The form application for title is mandated by law and given under penalty of perjury. One must swear that he or she is the owner of a car to obtain title. § 319.23, Fla. Stat. (2012). Had Appellee desired to make a gift of something more than a co-ownership interest in the car, so as to avoid future responsibility, all he needed to do was direct the salesman to make his wife the sole owner. Instead, inexplicably, he intentionally retained a legal interest in the car as co-owner. In doing so, he retained the power to use, transfer, and encumber it. He also retained survivorship interests in the car. These “species” of ownership include the concomitant liability of an owner.

We certify the following question to the Florida Supreme Court as one involving great public importance:

May a person who intentionally directs that title be issued in his name as co-owner, by completing a sworn application for title in conjunction with the purchase of a vehicle, avoid liability under the dangerous instrumentality doctrine by claiming that he never intended to be the owner of the vehicle and further claiming that he relinquished control to a co-owner of the vehicle?

REVERSED AND REMANDED; QUESTION CERTIFIED.

When I first learned that the original dissent had garnered enough votes to become the majority opinion in this case, I was concerned that the decision might do real damage to the law of beneficial ownership under Florida's dangerous instrumentality doctrine. After some thirty-seven years of using the principles announced in 1955 by the Florida Supreme Court in Palmer v. R.S. Evans, Jacksonville, Inc., 81 So.2d 635 (Fla.1955), and applying those principles as an appellate judge, the law had seemed relatively straightforward and clear. The issue is beneficial ownership. If there is a dispute about whether the person whose name was on the title was also the beneficial owner, evidence would have to be taken to determine all the facts. The standard jury instruction has seemed to work well and without controversy. Fortunately, the majority opinion is so narrow, and the fact pattern on which it is based so unlikely ever again to be repeated in nature, that I don't think the en banc opinion does any real harm to the law in this area. What it does to Mr. Christensen [Robert] is another matter. He is now on the hook for a multi-million dollar damage award arising out of an accident involving a vehicle that, as the jury found, he did not own, and, accordingly, had lacked the imagination to insure. He did not own the car because two years earlier he had made a gift of the car to his wife. All the requisites for a gift had been met: he intended to give her the car, he delivered possession, dominion and control to her, and he never attempted to exercise any dominion or control over the vehicle ever again.

There is nothing in the record to suggest that Mary Taylor–Christensen's [“Mary”] beneficial ownership of the car was ever even contested below. The only fact ever proposed by Mary Jo Bowen [“Bowen”] during the trial to suggest that Robert had more than “naked legal title” was the fact that he took the car to the car wash the day after the purchase. Robert's trial testimony was accordingly very short.11 He briefly described his intent to make a gift of the car to Mary, Mary's taking possession of the car and his lack of access or control thereafter. According to the record, Robert had testified in an affidavit and during his deposition that he had not removed his name from the title because he had not realized he was on the title but, at trial, the subject did not come up. At trial, the legal position of the appellants was that Mary's beneficial ownership did not matter, and because this case did not involve a conditional sale, Robert's naked legal title alone was enough for liability under the dangerous instrumentality doctrine. The argument made below was that, as a matter of law, Robert had the right to exercise dominion and control over the vehicle at the time of the accident simply because he was on the title. This argument fails in many ways, but the most basic is that Robert no longer had the right of control because, as the jury found, he did not own the car. Title or no title, once Robert gave the car to Mary, he was no longer a joint owner, and he no longer had any legal right to the car. He couldn't wash it, drive it, sell it or do anything else to it without Mary's consent because he had given up beneficial ownership. If he had tried to exercise any dominion or control, Mary would have had the right to enforce the gift and to vindicate her ownership by removing his name from the title through judicial means, if necessary.

As I understand it, the principle of law established in the majority opinion is as follows: Where A and B appear at an automobile dealership for the purpose of selecting a car for A to purchase as a gift for B, AND where A and B execute the purchase documents, including an application for joint title, THEN, as a matter of law, A's gift to B can only be a co-ownership interest in the car, not the entire car. [For convenience, I will refer to this as the “half-a-car” or “HAC theory”].

The first problem with the HAC theory is that it was never raised below or by the parties on appeal. The issue that was tried to the jury was whether Robert was an owner of the car at the time of the accident. The jury had all the purchase documents and the testimony and it found Robert was not an owner of the car at the time of the crash. The theory under which the Plaintiffs proceeded in the case below was that it did not matter whether Mary was the beneficial owner of the car or that Robert had relinquished any power of dominion or control over the car. As Bowen's counsel argued to the court on the motion for directed verdict:

[O]wnership and vicarious liability go with record title ownership, and it doesn't matter about all these other things as the cases I've pointed out to the court, all other indicias of ownership because the title gives them the right to do with the vehicle what they will. Now, the exception only being when the title is a conditional sales situation.[12]

(Emphasis added.) The majority says that the “only evidence of words used by [Robert] manifesting an intent to make a gift was in the documents he signed when he acquired the vehicle from the dealer” and the documents evince only an intent to gift a co-ownership in the vehicle. But that manifestly is not true. The paperwork for the purchase of the car had nothing to do with the gift. The purpose of the documents was to effect a sale of the car. A signature on an application for title as joint owner does not say gift, or gift of half or anything at all about what Robert intended to do with the car. From the documents, it is impossible to know what the deal was between Mary and Robert. If Robert had applied for title solely in his own name, he could have intended to give the whole car to Mary, and, if he only applied for a joint title, he still could have given the whole car to her. That he signed an application for joint title is one fact among many to consider in deciding if he gave her the whole car, and that is all it is. With respect, this notion that the law will not allow him to apply for title in his own name while intending to give the entire car to his wife is nonsense. As Judge Torpy himself wrote: “[Robert] could not gift the car to his wife before he owned it.”

The majority manages to conclude that the only evidence of words used by Robert manifesting an intent to make a gift is the application for title by sua sponte declaring Robert's actual words to be inadmissible evidence. To make this true, they have to eliminate Robert's testimony that he intended to make a gift of the car to Mary. This is done by relying on Johnson v. Deangelo, 448 So.2d 581, 582 (Fla. 5th DCA 1984), where we said that the reason why a purchaser caused his name to be on the title of a car is “legally immaterial.” Fatal to this argument is the fact that this testimony came into evidence at trial without any objection or limitation and no suggestion in the record that the jury could not or even should not consider his testimony of intent to give the car to Mary. In any event, under Deangelo, his statements are only inadmissible to show why Robert took title. They are still admissible to show what disposition he intended to make of the car, i.e., that he intended to give the car to Mary.

The second problem with the HAC theory is that it assumes the only way to “give effect” to the purchase documents, including the application for title, is to conclude that the law will not allow Robert to both sign an application for title and intend to make a gift of anything more than half of the car to Mary. This notion might hold some water if the documents had any gift-memorializing purpose, but they did not. The purpose of the documents was to effect a sale of the car by the dealer and that was done.

Narrow though the majority's HAC theory is, it is also dubious. First of all, let us be clear that nowhere in the record does Robert ever say he only intended to give Mary a co-ownership interest in the car, only that he intended to give her “the car.” Moreover, the majority's decision that the law will not hear him to say he gave her the whole car depends on the assumption that Robert's gift was made simultaneously with the execution of the purchase documents. This is really the oddest part of the majority opinion. Obviously, Robert could have gone in, paid for the car, applied for any kind of title he wanted, and then one hour, two hours-even fifteen minutes-later, he could form the intent to give Mary the car, then do exactly as he did (turn over possession and relinquish control), and there would be no problem. Even the majority would have no argument that the title application was conclusive proof he only intended to gift his half interest. It is only because he executed the title application in the same moment he had the intent to give the car to Mary that any such intent is deemed obliterated by the signature on the application. The majority simply will not allow Robert to intend a gift of the whole car and sign that title application at the same time. Leaving aside the question, “why not?,” this appeal begs the question, “where does this simultaneousness come from?” Not surprisingly, the majority blames it on Robert. If you refer back to that “inadmissible” testimony of Robert:

[The] salesman filled out the paperwork, gave me the paperwork, and I signed it. My intention was to buy a gift for my wife so that she could drive a car and, of course, that was my interest, was to buy her a car for that purpose. And so I signed the documents there so that I could purchase that car for her.

(Emphasis added). The majority has decided that this testimony ineluctably means that Robert intended to give her the car at the moment that he signed the title application, and the gift was complete the moment he signed the title.

Why would this language have only one meaning as a matter of law? If I say I raised my garage door so that I could get my car out of the garage, I do not necessarily mean that I drove my car out the minute I raised the door. I may do it later; I may even change my mind about taking the car out. The statement simply describes a predicate act. “I signed the documents there so that I could purchase that car for her” certainly can mean that Robert had an ongoing donative intent that survived the moment he signed the application. Perhaps if this theory had ever been mentioned below—say, in the trial—Robert could have cleared up the majority's confusion about the duration of his intent.

Apart from the problem with the language, it is highly unlikely that the gift was simultaneous with the execution of the purchase documents. A gift has three components to satisfy: intent to give, possession and relinquishment of dominion and control. Mary only got the gift when Robert gave her possession of the car and relinquished all control. Merely signing the application for title could not accomplish the gift. Robert could have stood up, refused to write the check or take possession of the car and left, leaving Mary with no interest in any car.

Because of the limited record, we do not know exactly when the gift was complete; it may have been when they drove away from the dealership, it may have been after he washed it for her the next day. The moment of the gift's completion is not and never was an issue in this case. One thing is for sure—Robert's filling out the dealership's purchase documents, including the title application, did not complete the gift because, even if his intent was fixed, the remaining elements had not been met. All that matters for purposes of the jury's verdict is that the gift was complete before the accident.

It is telling that in order to construct a reversal, the majority has to eliminate Robert's oral testimony concerning his intent to give the car to Mary and infuse the title application with the characteristics of a gift-giving instrument that makes a gift to Mary of only half of the car. However, because no particular words—or, indeed, any words at all are essential to the giving of a gift, and because the jury could still find that Robert gave Mary the whole car (or his other half of the car—whatever) at any point after they executed the documents, this case should be affirmed. However, in the event the Florida Supreme Court takes jurisdiction of this case and hopefully moves beyond the HAC theory, it is necessary to address the Appellant's arguments.

According to Bowen's analysis of selected cases, the only persons who can overcome the presumption of liability under the dangerous instrumentality doctrine are title owners who establish that they possess “mere naked title” by showing that: (1) the title is held for security purposes, as in a conditional sale; or, (2) the title is only intended to be held temporarily, as where a transfer of title is in process but not completed. Bowen reasons that, because there was no evidence indicating that there had been a conditional sale between Robert and Mary, or an incomplete transfer of title, as a matter of law, Robert could not avoid liability.

In support of this argument, Bowen draws a negative inference from cases where Florida courts have recognized exceptions to the dangerous instrumentality doctrine based on incomplete transfers of title or conditional sales. For example, in Palm Beach Auto Brokers v. DeCarlo, 620 So.2d 250 (Fla. 4th DCA 1993), a used car dealer at the time of the accident had sold the car, but held title to the vehicle as security for payment of the purchase price. The court determined, however, that there was no evidence from which the court reasonably could infer that the dealer exercised dominion and control over the automobile after its sale so as to be liable as owner for damages arising from negligent operation of the automobile by the purchaser that resulted in injuries to the third party. In Palmer, the court held that where legal title to an automobile remained in the seller under a conditional sales contract, but beneficial ownership had been transferred to the buyer prior to the accident, liability for negligent operation of the automobile was not imposed on the seller under Florida's dangerous instrumentality doctrine since the seller held “mere naked title.” The Palmer court observed that the evidence was sufficient to show the intention on the part of both the buyer and the seller to make immediate transfer of the beneficial ownership of the automobile to the buyer when the buyer took possession of the automobile. The test is beneficial ownership, not conditional sale.

For its conclusion that “temporary” title is another exception, Bowen cites to Carrasquero v. Ethan's Auto Express, Inc., 949 So.2d 223 (Fla. 3d DCA 2006), where the auto dealership that employed the buyer of the vehicle from a third party agreed to hold title as a device to allow the employee to postpone paying sales tax for thirty days. The court undertook a classic “beneficial ownership” analysis, finding that the dealership did not possess, maintain or control the vehicle and, thus, could not be liable as the owner. The court never suggested that the temporary nature of its title was dispositive.

No court has pegged conditional sales as the key fact; the key is just what the cases identify: lack of beneficial ownership. After all, there are other ways to secure a sale other than by retaining title. There is no reason why a seller who holds title for his own protection should be protected—or the seller in Carrasquero, who retained title as a ploy to defer the buyer's sales tax liability, should be insulated—in preference to anyone else who transfers beneficial ownership. The reason for not relinquishing title is beside the point; the issue is whether there was beneficial ownership left in the seller, or not.

Bowen and the majority want to sidestep the rule of beneficial ownership by relying on a line of cases involving the purchase of an automobile for a minor to drive that imposes vicarious liability even though the record title holder professed no beneficial ownership. They principally rely on Metzel v. Robinson, 102 So.2d 385 (Fla.1958). In that case, Metzel's minor nephew, Bryant, who lived with her, was involved in an accident while operating an automobile that was titled in Metzel's name. At trial, Metzel contended that she was not the beneficial owner of the car, and she could not, therefore, be held liable under Florida's dangerous instrumentality doctrine for the damages caused by Bryant's accident. To support her position, Metzel presented evidence that Metzel signed the finance papers and took title to the automobile in her name only because Bryant could not finance the purchase of the automobile due to his age. Bryant kept up the payments and Metzel had nothing to do with the car, except that she insured the car in her name. The trial court ruled, as a matter of law, that Metzel was the owner of the automobile for purposes of applying Florida's dangerous instrumentality doctrine. On appeal, the supreme court affirmed, observing:

[Metzel] was still in a position to exert some dominion and control over the vehicle. Certainly both appellant and her nephew had a species of ownership and either or both of them could have been held liable for the accident.

Id. at 386.

In Hertz Corp. v. Dixon, 193 So.2d 176 (Fla. 1st DCA 1966), the operator, Dixon, was a minor, and in order to enable him to purchase an automobile his brother-in-law, Gibbs, signed a conditional sales contract and took possession of the vehicle titled in the names of both Dixon and Gibbs. Dixon had possession of the car at all times and was later involved in a collision with an automobile owned by Hertz. Hertz sought to hold both Gibbs and Dixon liable. The trial court refused to enter judgment against Gibbs, holding that mere co-ownership did not impose tort liability. However, upon review, the First District Court reversed:

Here, not only was Gibbs one of the record title holders, but in fact had put in motion and made possible the operation of the automobile by Dixon, who, as a minor, could not have bought the automobile. Not only did Dixon operate the car as a co-owner, but with the knowledge, consent and direct participation by Gibbs in the acquisition of title.

Suffice it to say, that under the facts of this case the activities of Gibbs, his execution of the conditional sales contract, and his position as a record holder of the title, made him liable for any damages resulting from Dixon's operation of the automobile.

Id. at 177. Again, the court considered both the fact that Gibbs's name was on the title to the vehicle and his involvement with the vehicle to decide whether he was the beneficial owner of his brother-in-law's vehicle or whether he held mere naked title. The court focused upon the fact that Gibbs had enabled Dixon to gain possession of a vehicle by executing the sales contract, yet the court also noted that Gibbs's “activities,” along with his position as record holder of the title, required that he be held liable under Florida's dangerous instrumentality doctrine.

Lastly, in Pennsylvania National Mutual Casualty Insurance Co. v. Ritz, 284 So.2d 474 (Fla. 3d DCA 1973), the plaintiff was involved in an automobile accident with Dennis Ritz, a minor. Dennis was operating a vehicle registered in the name of his father, John Ritz. At trial, John Ritz was held vicariously liable for the negligence of his son based on the following evidence:

The evidence before the trial court showed that at the time of the accident Dennis Ritz did not live with his father. Moreover, Dennis operated and retained exclusive control over the Plymouth, made monthly payments on the vehicle, and paid the premiums to Glen Falls, which has admitted coverage, for the insurance on the car. The son was unable to purchase the automobile in his own name, since he was a minor; therefore John Ritz signed the conditional sales agreement and papers for him.

In rejecting the argument that the father possessed “mere naked title,” the Third District Court summarily cited to Hertz and Metzel, relying on the reference to the adult purchasing the car for the minor who could not otherwise have purchased the vehicle. Far from representing a firm rule of vicarious liability, tempered only by the two exceptions of conditional sale and incomplete transfer of title, cases like Metzel, Dixon and Ritz are, themselves, using the vernacular of Appellants, an “exception” to the rule of beneficial ownership. In truth, these cases appear to represent a unique category of cases where the actions of an adult in making a purchase, taking title, insuring a vehicle or taking a similar action that makes it possible for a minor to operate the vehicle will prevent the adult from avoiding legal responsibility based on a claim of “bare naked title.” In part, this outcome appears to be based on the notion that the purchase-price-supplying, financing, title-owning, vehicle-insuring adult has a measure of control over the minor driver or the vehicle and may properly be liable for the injuries caused by the dangerous instrumentality. Or, it may simply be a species of estoppel whereby the adult who, by taking title, has made it possible for the minor to operate the vehicle will not be heard to deny financial responsibility.

Bowen's dual-exception theory also simply cannot be squared with other Florida case law. The rule is well described in 4A Florida Jurisprudence 2d, Automobiles and Other Vehicles, section 743 (2010):

As a general rule, the possession of naked legal title to a motor vehicle is not determinative of its ownership when considering the question of tort liability․ Rather, only a beneficial ownership of or interest in a motor vehicle, with the right of control and authority over the use of the vehicle, is determinative of the question as to which party is to be held liable as owner for a tort committed by another person's operation and use of the vehicle.

Contrary to the view of the majority that the case before us is indistinguishable from Metzel, it is very unlike Metzel. This case is more like Plattenburg v. Dykes, 798 So.2d 915 (Fla. 1st DCA 2001), a decision that applies the relevant analysis of “beneficial ownership” in a clear-eyed way and reaches the same result that the trial court reached in this case. There, the owner, Evans, told Dykes that he would give him the vehicle if Dykes would remove it from the driveway. Evidence of intent to make this gift included leaving the keys, the owner's manual and documents in the car and cancelling his insurance. He never signed over the title to Dykes before Dykes was involved in an accident “several days later,” however. The Plattenburg Court said that Evans's gift was complete, that beneficial ownership had passed to Dykes, and that Evans's failure to complete the title transfer could not, standing alone, support a finding of vicarious liability. Id. at 916–17. Evans had transferred his beneficial interest, and that was enough to avoid liability.

Bowen attempts to square Plattenburg with its “only two exceptions” theory of liability by suggesting that Plattenburg is an example of its “incomplete transfer” exception. But transfer was “incomplete” only in the sense that it had not been done. The title transfer in this case is no more (or less) incomplete than the one in Plattenburg. In neither case was it commenced, and in neither case does that fact create dangerous instrumentality liability for the negligent acts of the person having beneficial ownership. The outcome in Plattenburg would not have been different if the accident involving the new owner, Dykes, had happened twenty-two months after Dykes had taken possession of the car and had exercised exclusive beneficial ownership of the vehicle. In Plattenburg, as in this case, the failure to execute the title transfer would be a relevant fact on the issue of beneficial ownership, but not dispositive as a matter of law.

Similarly, in Wummer v. Lowary by Lowary, 441 So.2d 1151 (Fla. 4th DCA 1983), the facts established that Wummer refinanced the repossessed Camaro of one of her employees. She then deducted the monthly payments from the employee's paycheck, and the employee maintained control over the car. Lowary was injured while a passenger in the Camaro and sued Wummer as the owner of the vehicle. The trial court entered summary judgment in Lowary's favor and Wummer appealed. Upon review, the Fourth District Court reversed:

Beneficial ownership carries with it liability for damages which arise from an automobile's negligent operation. Wummer's employee had sole possession of the auto. Wummer saw it for the first time after the accident occurred. She was not the beneficial owner of the Camaro. Accordingly, we reverse the order granting Lowary's and denying Wummer's motion for summary judgment.

Id. at 1151–52 (citations omitted).

The trial court properly concluded that beneficial ownership of a vehicle is key to vicarious liability, and that the determination whether a title holder possesses mere naked title or is the beneficial owner of the vehicle hinges on the evidence concerning whether the title holder had control and authority over the use of the vehicle. If the evidence establishes without dispute that the title holder has beneficial use of the vehicle, then the trial court is authorized to rule, as a matter of law, that the title holder is liable under the dangerous instrumentality doctrine. See Cox Motor Co. v. Faber, 113 So.2d 771 (Fla. 1st DCA 1959). Otherwise, the question of beneficial ownership must be submitted to the jury, as was done here.

The real problem in this case is that the majority (and Bowen) want title alone to be dispositive. That argument was considered and correctly rejected by the Florida Supreme Court in Palmer:

It is evident from a reading of Section 319.22 in its entirety that the primary emphasis intended by this section is upon the marketability of title to a vehicle. Appellant contends, however, that one who has not complied with the provisions of this section has not succeeded in divesting himself of ownership of the vehicle, with the result that tort liability growing out of such interest may successfully be asserted against him. The source of this contention is to be found in F.S.A. § 319.22(2) which provides that an owner who has sold and delivered a vehicle to a purchaser ‘shall not by reason of any of the provisions of this law, be deemed the owner of such vehicle so as to be subject to civil liability for the operation of such vehicle thereafter by another’ when the owner has fulfilled either of two specified requirements pertaining to endorsement and delivery of the title certificate, which appellant contends R.S. Evans has not complied with.

The provisions of this section have been construed in Ragg v. Hurd, Fla., 60 So.2d 673, Rutherford v. Allen Parker Co., Fla., 67 So.2d 763, and Platt v. Dreka, Fla., 79 So.2d 670, opinion filed April 6, 1955. In the Ragg and Platt cases, supra, this court was careful to point out that Chapter 319, Florida Statutes, did not provide an exclusive method of transferring title nor abrogate the common law of sales. By putting these decisions together, the true import of Section 319.22(2) as it affects the possible tort liability of the seller of an automobile is brought into focus. While it is clear that under this section no civil liability can accrue to a seller who has complied with the title certificate requirements, it does not necessarily follow that a seller who does not comply with these requirements is ipso facto liable. This is true because the common law of sales is available to test the liability of a non-complying seller. We therefore turn to examine the evidence which was submitted upon the issue of ownership, to determine whether under the common law the jury was authorized to return a verdict exonerating R.S. Evans.

81 So.2d at 636. This is a sensible application of the statute that has avoided much unfairness. To paraphrase what the high court said in Palmer, here, the relevant inquiry is whether “the definite intention existed on the part of [Robert] to make immediate transfer of the beneficial ownership of the vehicle to [Mary].” Id.

Robert's failure to take action to remove his name from the title is a fact that the jury may consider in deciding whether he did not intend to divest himself of a beneficial ownership and, therefore, that he was, in fact, an owner, but it does not mean “as a matter of law” that he had beneficial interest. At the end of the day, he only had title, and mere title is not enough to make him liable.13

I concur in the well-reasoned dissent by Judge Griffin. I write to more fully explain my views regarding the issues raised by the parties in this appeal and the majority en banc opinion.

The jury returned a verdict specifically finding that Robert L. Christensen was not an owner of the PT Cruiser driven by his ex-wife that was involved in the accident that caused the death of the decedent. In order to overcome that finding in the verdict and establish liability against Robert under the dangerous instrumentality doctrine, Appellant contends that the trial court erred in failing to grant her motion for directed verdict on the issue of Robert's ownership of the vehicle. Appellant argues that the motion should have been granted as a matter of law because Robert's name was on the certificate of title and he did not have his name removed from it prior to the accident.14

In Aurbach v. Gallina, 753 So.2d 60 (Fla.2000), the court held that “[l]egal title remains the most common basis for imposing vicarious liability under the dangerous instrumentality doctrine. However, a narrow exception for the legal title owner to escape vicarious liability has been recognized where the holder of ‘mere naked title’ is able to demonstrate the absence of beneficial ownership of the vehicle.” Id. at 63. The court noted that the standard jury instructions regarding the dangerous instrumentality doctrine should be revised to reflect existing law. Specifically, the court stated, “To the extent that Standard Jury Instruction 3.3(a) instructs the jury that either ownership or right to control could give rise to dangerous instrumentality liability, we request that the Civil Standard Jury Instruction Committee consider whether, consistent with existing law, a revision to the jury instruction is necessary.” Id. at 66 n. 5 (emphasis added). The Florida Supreme Court subsequently adopted a revised standard jury instruction to make it clear that an owner is an individual who has both legal title and beneficial ownership of the vehicle. Specifically, in In re Standard Jury Instructions—Civil Cases (No. 02–1), 828 So.2d 377, 382–83 (Fla.2002), the court revised Florida Standard Jury Instruction (Civil) 3.3(a) to provide, “An owner of a vehicle is one who has legal title to the vehicle and who has the right of control and authority over its use.” Id. at 382 (emphasis added).15

The majority latches on to the word “narrow” used by the court in Aurbach to argue that the exception is confined only to cases where there is an incomplete transfer of title to the vehicle or where a conditional sale occurs. I do not believe that the court meant the exception to be that narrow or constricted. Judge Griffin's dissent fully explains why gift of the vehicle is another valid exception, and I will not repeat that analysis here. I do find it interesting that the Note on the use of the revised instruction indicates that a number of exceptions exist and explains that “[o]ther exceptions may exist for which special instructions may be required. See generally 4A Fla. Jur.2d, Automobiles and Other Vehicles, §§ 667–91. The instruction may also have to be tailored to fit the particular factual circumstances of the case.” Id. at 383. Other exceptions may certainly exist and a gift of the vehicle is one of them. See Plattenburg v. Dykes, 798 So.2d 915, 916 (Fla. 1st DCA 2001) (“Here, the undisputed facts of record show a gift from Evans to Dykes.”).

The jury instruction given in the instant case states, “An owner of a vehicle is one who has legal title to the vehicle and who has a beneficial ownership with the right of control and authority over its use.” This instruction is closely patterned after the standard instruction, and Appellant raises no challenge to this instruction on appeal. Appellant's primary argument centers on Robert's testimony that he gifted the car to his estranged (soon to be ex) wife and therefore he had no beneficial ownership of it at the time of the accident. Specifically, Appellant argues that the testimony is immaterial and insufficient. Based upon that argument, Appellant contends that the motion for directed verdict should have been granted because there was no reasonable evidence upon which a jury could predicate a verdict that Robert was not the owner of the vehicle. Despite the fact that there was no objection raised to Robert's testimony in the trial proceedings, the majority has fully embraced that argument, which is based on the following language in Johnson v. Deangelo, 448 So.2d 581 (Fla. 5th DCA 1984):

Her subjective intent or reason or motive in causing her name to be placed on the title certificate was legally immaterial and, accordingly, her testimony was insufficient as a matter of law to rebut the legal presumption arising from the motor vehicle title certificate itself and insufficient to avoid the legal consequences of that fact.

Id. at 582.

The court in Deangelo simply held that the mother's subjective intent in placing her name on the certificate of title was immaterial and therefore insufficient to overcome the presumption of legal ownership that flows from her name being on the title. Evidence is immaterial when it is offered to prove a fact that is not a matter in issue in the case.16 The opinion does not mention that the mother made any argument that she did not have beneficial ownership of the vehicle and that is apparently why the court believed the testimony was immaterial. Whether a matter is an issue is generally determined by the pleadings. Charles W. Ehrhardt, Florida Evidence § 401.1 at 133–34 (2007 ed.). Here, Robert's lack of beneficial ownership was specifically pled in the answer and was argued to the trial court, the jury, and to this court on appeal. Moreover, rather than testify why he put his name on the certificate of title, Robert testified what he intended to do with the car, which was to make a gift of it to his estranged wife in the hopes of reconciling with her. In Ferran Engineering Group, Inc. v. Reid, 600 So.2d 1307 (Fla. 5th DCA 1992), this court affirmed a jury instruction given by the trial court telling the jury that intent is a relevant factor for it to consider in determining the issue of beneficial ownership. Specifically, this court stated that it was proper to instruct the jury that “[t]he name shown on the certificate of title is not conclusive proof of beneficial ownership, but is one factor you should consider.” Id. at 1308. In addition to the intent of the parties, other factors the court held were proper for the jury to consider when determining beneficial ownership include which party had possession of the vehicle and which party had control and authority over the use of the vehicle. Intent is as relevant a factor for the jury to consider in cases involving a gift as it is in cases involving an incomplete transfer of title or a conditional sales agreement. I therefore reject the argument that Robert's testimony regarding the issue of beneficial ownership is immaterial under the holding of Deangelo.

Moreover, the court in Deangelo held that the testimony was insufficient to overcome the presumption of ownership established by the certificate of title. The presumption of ownership created by the certificate of title is a rebuttable presumption as Deangelo and other cases have held, which means that the presumption disappears when evidence is presented to rebut it. See Sterling v. Gov't Emps. Ins. Co., 600 So.2d 14 (Fla. 5th DCA), review denied, 613 So.2d 4 (Fla.1992). As to whether the evidence was sufficient to overcome that presumption, in addition to Robert's testimony that he gifted the car to Mary, unlike Deangelo, there was other evidence presented regarding the beneficial ownership issue that was not based on Robert's subjective intent. That uncontradicted evidence includes the following:

1. From the date of purchase until the accident some two years later, Mary Taylor–Christensen had sole and exclusive possession, custody, and control over the vehicle;

2. From the time of purchase until the accident some two years later, Robert never possessed the vehicle or had control of it;

3. Robert lived several hundred miles away from Mary's residence where the car was kept and he did not have access to the vehicle, drive it, or in any way possess the vehicle for the two-year period;

4. Robert did not have keys to the vehicle and even if he did, he could not have taken possession or control over it because it was securely kept in a gated condominium garage where Mary lived;

5. The vehicle was purchased at a time when Robert and Mary were divorcing (they were awaiting the entry of the final judgment) and any attempts at reconciliation and reunion had failed;

6. Robert never purchased insurance for the vehicle;

7. Robert never registered the vehicle;

8. The address placed on all of the purchase documents, including the application for certificate of title, was Mary's address; and

9. The certificate of title was mailed to Mary at her address.

The evidence that Robert gifted the car to his estranged wife is admissible evidence and was properly introduced to rebut the presumption of ownership and establish that he was not the beneficial owner of the car. The question then becomes whether, in light of this evidence, the trial court properly denied the motion for directed verdict and whether it is sufficient evidence upon which a jury could legally predicate a verdict in Robert's favor. This court and others have repeatedly indicated that a party moving for a directed verdict has a difficult burden to overcome. As this court has explained:

A motion for directed verdict should only be granted if no view of the evidence could support a verdict for the non-moving party. The trial court must evaluate the evidence in a light most favorable to the non-moving party, and indulge every reasonable inference possible in that party's favor. If there are conflicts in the evidence or different reasonable inferences can be drawn from the evidence, the issues should be submitted to the jury and not decided by the trial court as a matter of law.

Goss v. Permenter, 827 So.2d 285, 287–88 (Fla. 5th DCA 2002) (footnote omitted), review denied, 845 So.2d 889 (Fla.2003); see also Harris v. Gandy, 18 So.3d 569 (Fla. 1st DCA 2009); Scott v. TPI Rests., Inc., 798 So.2d 907, 909 (Fla. 5th DCA 2001) (“When considering a motion for directed verdict, the trial court is required to evaluate the evidence in the light most favorable to the plaintiff and every reasonable inference therefrom must be indulged in the plaintiff's favor. If there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law.” (citations omitted)). This standard applies to the trial court's consideration of a motion for directed verdict and to our review of the trial court decision. Scott.

The reasonable inferences that can be drawn from the evidence evaluated in the light most favorable to Robert, the non-moving party, are: Robert made a gift of the car to Mary; Robert had no right of control over the vehicle; he had no beneficial ownership interest in the vehicle; the only person with the right of control over the vehicle was Mary, from whom Robert was divorced; and the only beneficial owner was Mary. Appellant contends that Robert did not take his name off the certificate of title and, therefore, he may have had the right to purchase insurance for it or to sell it. If that is conflicting evidence, or if it could produce different reasonable inferences, the trial court was required to submit the case to the jury and not decide the issue as a matter of law. Scott; Reid. Accordingly, the trial court properly denied the motion for directed verdict and submitted the case to the jury. The evidence is sufficient for the jury to predicate a verdict in favor of Robert and that is exactly what the jury did. In order to reverse that verdict, the majority bases its decision on their narrow exception theory previously discussed, their contract theory, and their HAC theory (appropriately labeled by Judge Griffin). But these are not viable legal theories for this case.

The majority makes much of the documents that Robert signed at the dealership, contending that based on contract principles, Robert should not be allowed to testify contrary to their provisions. Those documents are: a purchase agreement with the dealership, which he signed as “purchaser”; a Gator Chrysler Suzuki Privacy Notice, which he signed as “co-customer”; a Daimler–Chrysler Motors Company LLC warranty disclosure form, which he signed as “co-customer”; a State of Florida Motor Vehicle Dealer Reassignment Supplement, which he signed as “buyer”; and a State of Florida Motor Application for Certificate of Title with/without Registration, which he signed as “co-owner.” It is clear that Robert was a customer of the dealership and that he was a purchaser and buyer of the automobile he gifted to his estranged wife, and he never testified otherwise. However, being a buyer, purchaser, or customer does not make the person an owner for purposes of the dangerous instrumentality doctrine. The jury considered those documents and it concluded that they did not prove that Robert was the owner under that common law doctrine. Regarding the application for title, that document was signed by Robert as “co-owner” and that led to his name being on the certificate of title that was subsequently issued, but that does not conclusively establish ownership as a matter of law because the title only creates a rebuttable presumption of ownership. Farley; Sterling; Deangelo. The question here is whether Robert rebutted the presumption of ownership created by the certificate of title and, based on the uncontradicted facts of this case, he clearly did.

The majority cites two cases to support its contract theory and neither is applicable to the instant case. In Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957), the court was concerned with a dispute between two parties to an unambiguous written contract regarding business dealing between them. The court held that “when competent parties reduce their engagements to writing in terms that create a legal obligation without any uncertainty as to the object or extent of the engagement as between them, it is conclusively presumed that the whole engagement and the extent and manner of their undertaking is contained in the writing.” Id. at 608. The other case is Hale v. State, 838 So.2d 1185 (Fla. 5th DCA), review denied, 848 So.2d 1154 (Fla.2003), and the pertinent language picked out of that opinion by the majority is not even the holding of the court. Hale is a criminal case wherein this court stated in dicta that were this a civil transaction, the principle would apply that a party who signs a contract and does not read it is bound by that agreement. I agree that, as between parties involved in litigation over an unambiguous contract, the contract is the best expression of their intent. Gendzier and Hale are inapplicable because the contract to purchase the vehicle was made between Robert and the dealership that sold him the car and his testimony does not contradict that agreement. He does not even dispute that he read it. However, the dealership is not a party to these proceedings and that agreement is not at issue. This case involves a gift that Robert made to his estranged wife of the vehicle and that is a matter between the two of them, not the dealership. Moreover, the purchase agreement nowhere states that Robert could not purchase the car as a gift for his wife or that he became the owner for purposes of the dangerous instrumentality doctrine. That document was executed solely for the purpose of Robert's purchase of the vehicle from the dealership and he does not dispute that fact, but that fact and that agreement in no way constitute as a matter of law any agreement or statement as to why he was purchasing the vehicle and for whom. While that document was properly admitted in evidence, the jury apparently did not think much of it and clearly did not think that it established ownership in Robert or that it contradicted his testimony concerning the gift.

As to the majority's HAC theory, there is little I can add to Judge Griffin's analysis other than to respectfully make a couple of comments. To hold as the majority does that a man would attempt to beguile and charm his estranged wife back into a marriage on the verge of dissolution by giving her half a car defies logic and common sense. Moreover, this theory makes its first appearance in the majority opinion because it was never argued by the parties in the trial proceedings or in this appeal. In Aills v. Boemi, 29 So.3d 1105 (Fla.2010), the court reviewed an opinion rendered by the Second District Court that reversed a judgment based on legal arguments that were not made in the trial court. In framing the issue, the Florida Supreme Court stated that “[t]he question before us is whether the district court erred in reversing the trial court's judgment on a ground that we find from the record was not presented to the trial court and thus not preserved for appellate review.” Id. at 1108. In reversing the Second District Court, the high court held, “[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ “ Id. at 1109 (quoting Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004)); see also Keech v. Yousef, 815 So.2d 718, 719–20 (Fla. 5th DCA 2002) (“A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at an appropriate stage of the proceedings. The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.” (citation omitted)).

The majority cites to and quotes from several statutes that provide a definition of “owner.” The majority's discussion of those definitions displays a profound misunderstanding of the principle of materiality, which seems to be a recurrent theme of the majority opinion. The only definition of owner that applies in this case is the definition provided by the courts and the issue in this case is beneficial ownership. Those statutes have nothing to do with that issue and are clearly immaterial, but in the same breath the majority declares Robert's testimony regarding his gift to be immaterial when it clearly is not. Specifically, section 324.021(9)(b)3., Florida Statutes, provides that an owner who loans a motor vehicle to another shall be liable up to specified limits of damages. That statute was enacted as a subpart of a more encompassing statute intended to reduce the exposure of lessors from unlimited damages when they enter into a rental agreement to lease their vehicle to another and to reduce the exposure of individuals to unlimited damages who loan their vehicle to another. The issue in this appeal does not involve loans or leases of any sort and it does not involve a damage award. Moreover, section 324.021 specifically provides that the definitions, which include owner, are “for the purpose of this chapter,” which is financial responsibility. The majority also cites to the definition of owner found in section 316.003(26), Florida Statutes, which simply provides that an owner is one who has legal title to the vehicle. What the majority fails to mention is that the statute specifically states that that definition is “for purposes of this chapter” and the purpose of chapter 316 is to “make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities.” § 316.002, Fla. Stat. (2010). The issue in this case has nothing to do with traffic laws or ordinances and the definition of owner contained in that chapter has nothing to do with the dangerous instrumentality doctrine or this case. Hence, the majority's contention that the definition of “owner” has been codified in various statutes is immaterial to the issue in this case because the courts provide the definition of owner for purposes of the dangerous instrumentality doctrine. That definition has been codified in the standard jury instructions and that is the definition the trial court gave to the jury in the instant case.

The majority goes so far as to contend that the provisions of chapter 319, Florida Statutes, specifically section 319.22, require compliance with the formalities of sales and transfers in order to avoid liability. That is simply wrong. In Reid, this court held that those statutory provisions are a shield, not a sword, meaning that if a person does comply and his or her name is deleted from the title, a shield is raised and liability will generally not attach, but the failure to comply is not a sword to be used to impose liability. Reid, 600 So.2d at 1308.

Finally, I disagree with the contention in the majority opinion that the ultimate issue is whether Robert had an “identifiable property interest” in the vehicle. That language derives from the statement in Aurbach that “[i]n determining who is vicariously liabl[e] under the dangerous instrumentality doctrine, this Court repeatedly has required that the person held vicariously liable have an identifiable property interest in the vehicle, such as ownership, bailment, rental, or lease of a vehicle.” Aurbach, 753 So.2d at 62. Those categories of identifiable property interest are contained in Standard Jury Instruction (Civil) 3.3(a). Ownership is the only category involved in the instant case, and an owner is one who has legal title and beneficial ownership of the vehicle. An identifiable property interest therefore does not derive solely from legal title, as Appellant and the majority seem to infer, but from beneficial ownership and that is the ultimate issue in this case.

The trial court properly denied the motion for directed verdict. The jury, after proper instruction from the trial court, considered all of the evidence and determined that Robert was not an owner. He was not an owner because, when he gifted the car to Mary, he delivered possession of it to her and relinquished all right of authority and control over it. That is the essence of a gift. Hence, he was not the owner because he was not a beneficial owner of the vehicle. That is the issue in this case, it has been resolved by the jury, and that should conclude the matter. I, therefore, respectfully dissent.

FOOTNOTES

1.  We grant en banc review to maintain uniformity in this Court's decisions.

2.  The fifth affirmative defense is apparently based on the limitation of liability set forth in section 324.021(9)(b)3., Florida Statutes (2005). We express no opinion on the applicability of this statute because it has not yet been addressed below.

3.  See 49 U.S.C. § 30106.

4.  The same language was in effect at the time of this 2005 accident.

5.  Appellant's claim is based on the common law dangerous instrumentality doctrine. She did not assert liability based on section 324.021(9)(b)3., Florida Statutes, which imposes liability on an owner who permits another to use his or her vehicle. Had that theory of liability been asserted, arguably, the statutory definition of “owner” would control.

6.  To date, the Florida Legislature has not expressly manifested an intent to preempt the entire subject area of when the holder of “legal title” may avoid liability. Whether an express manifestation of intent to preempt is necessary is not entirely clear. See Broward v. Broward, 117 So. 691 (Fla.1928) (comprehensive statute designed to regulate entire subject supersedes common law; statute may expressly or by implication supersede common law). If the common law can be superseded by implication, it seems that we are at or near that point, at least to the extent that we are addressing the liability of a title holder who is a “natural person.” See § 319.22(1), Fla. Stat. (2012) (expressly prohibiting court from recognizing any ownership interest in any vehicle unless the interest is documented in certificate of title).

7.  When Palmer was decided, there was no statutory protection from liability for a conditional sale vendor who retains title as security for payment. This exception is now embodied in the statutory definition of “owner,” which makes clear that, in the case of a conditional sales agreement, the contract “vendee,” not the “vendor,” is deemed the “owner.” § 316.003(26), Fla. Stat. (2011).

8.  Appellee argues that it is significant that he never received the title after it was issued, as if he had no notice that title was in his name. The fact is that he signed the paperwork that listed Ms. Taylor–Christensen's address as his own address.

9.  Appellee would also have us distinguish Metzel because, there, the aunt bought the insurance for the car as required by law because she was the sole titled owner. Here, by contrast, Ms. Taylor–Christensen purchased the insurance for the car. Nothing in Metzel suggests that this fact had any bearing on the holding. Only a titled owner may procure insurance for a vehicle. Here, both Ms. Taylor–Christensen and Appellee were on the title and either could procure insurance. When the Aurbach court discussed Metzel and restated its holding, it did not mention this fact. Indeed, in Aurbach, the plaintiff attempted to hold the father responsible because all of the expenses for the car were purchased using funds from his joint account. This argument was squarely rejected. Once again, had the insurance issue been a relevant factor, neither case could have been determined as a matter of law.

10.  The affidavit is not in the record on appeal. The motion for summary judgment filed by Appellee references the substance of the affidavit.

11.  Appellants have provided a very abbreviated record on appeal. It consists of counsels' pre-trial discussions regarding the admission of certain evidence, opening statement and closing argument of Robert only, the testimony of a homicide detective, portions of the testimony of Mary, Robert and a physician's deposition. It appears the only evidence in the record on appeal concerning the issue of Robert's liability is an excerpt of Robert's trial testimony. Robert testified that he formerly had been married to Mary, but the couple separated in April 1999, and Mary had relocated to Brevard County. In April 2003, after the conclusion of the court proceedings for the dissolution of their marriage, he wanted to reconcile with Mary, and he travelled some 500 miles from his home in the Florida Panhandle to visit her. Mary told him that she needed a second car. After shopping around, “he bought her a car”—the PT Cruiser that Mary was operating at the time of the fatal accident. Robert testified that his intention was to buy the car as a gift for Mary, and they both signed all the paperwork at the dealership when the purchase took place. He “signed the documents there so that [he] could purchase that car for her.” The following morning, he went to Mary's residence, and she took him to the basement where the car was parked. He took the PT Cruiser to a car wash, got it cleaned up for her and took it back to her. In the ensuing two years, he was never behind the wheel again, and he had only laid eyes on it one other time, in the summer of 2003 when he saw it in her garage. He testified that he never had access to the car, never had any authority over the car, had no access to the garage where it was kept, never had a key to the car, never insured it, and it was never registered in his name. All of this testimony was admitted without objection.

12.  In Bowen's motion for entry of judgment in accordance with the motion for directed verdict, she asserted that Robert was liable as a matter of law (1) because he had not taken steps to remove his name from the title (2) because of lack of control over the vehicle was legally irrelevant, (3) because Florida only allows the absence of beneficial ownership in cases involving incomplete or temporary transfers of title or conditional sales, and, finally, (4) because his name was on the title, he necessarily had the right to control the vehicle.

13.  I suggest that the correct question to certify to the Florida Supreme Court is not the one posed by the majority; rather, it should be:May a person who intentionally directs that title be issued in his name as co-owner, by completing a sworn application for title in conjunction with the purchase of the automobile, avoid liability under the dangerous instrumentality doctrine by giving the car away?

14.  Appellant raises a fall-back issue that the verdict is against the manifest weight of the evidence and, therefore, the trial court erred in denying her motion for new trial. This court has consistently held that “[t]he question for an appellate court is not whether or not the evidence was contrary to the manifest weight of the evidence presented below. Indeed that is the question addressed to the trial court on motion for a new trial. Rather, the appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial.” Dewitt v. Maruhachi Ceramics of Am., Inc., 770 So.2d 709, 711 (Fla. 5th DCA 2000); see also Pena v. Vectour of Fla., Inc., 30 So.3d 691 (Fla. 1st DCA 2010); Rosario–Paredes v. J.C. Wrecker Serv., 975 So.2d 1205, 1207 (Fla. 5th DCA), review denied, 990 So.2d 1059 (Fla.2008). I will not address this issue any further other than to say, based on this record, we cannot conclude that the trial court abused its discretion in denying Appellant's motion for new trial.

15.  This jury instruction has been renumbered 401.14(a) without change. See In re Standard Jury Instructions in Civil Cases, 35 So.3d 666 (Fla.2010).

16.  See Charles W. Ehrhardt, Florida Evidence § 401.1 at 133 (2007 ed.) (“Included within the section 90.401 definition of relevancy is the concept of materiality; the evidence must tend to prove or disprove a material fact. When evidence is offered to prove a fact which is not a matter in issue, it is said to be immaterial.” (footnote omitted)); Jordan ex rel. Shealey v. Masters, 821 So.2d 342, 349 (Fla. 4th DCA 2002) (quoting Ehrhardt); see also Sims v. Brown, 574 So.2d 131, 134 (Fla.1991) (stating that the test of materiality is the “bearing on a fact to be proved”).

TORPY, J.

ORFINGER, C.J., LAWSON, EVANDER and COHEN, JJ., concur. GRIFFIN, J., dissents, with opinion in which SAWAYA and PALMER, JJ., concur. SAWAYA, J., dissents, with opinion in which PALMER, J., concurs. JACOBUS, J., recuses.