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«RAFAEL VARGAS, Petitioner, v. ENTERPRISE LEASING COMPANY, ELIZABETH PRICE and JIMMY MIDDLETON, Respondents. Appeal from the Fourth District Court of ...»

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In The

Supreme Court of Florida

Case No. SC08-2269







Appeal from the Fourth District Court of Appeal




Richard P. Schweitzer


1776 K Street, N.W., Suite 800 Washington, D.C. 20006 (202) 223-3040 September 3, 2009 COUNSEL PRESS, LLC (202) 783-7288 * (888) 277-3259 224984













1. The Plain Language of the Graves Amendment Shows its Application to Commercial Activity.

2. The Garcia Decision Persuasively Demonstrates the Graves Amendment’s Constitutionality.





–  –  –

Abdala v. World Omni Leasing, Inc., 583 So. 2d 330 (Fla. 1991)

Enterprise Leasing Co. South Central, Inc. v. Hughes, 833 So. 2d 832 (Fla. 1st DCA 2002)

Garcia v. Vanguard Car Rental USA, Inc., 540 F. 3d 1242 (11th Cir. 2007)

Gonzalez v. Raich, 545 U.S. 1 (2004)

Kraemer v. General Motors Acceptance Corp., 572 So. 2d 1363 (Fla. 1990)

Landgraf v. USI Film Prod., 511 U.S. 244 (1994)

Marx v. Truck Renting and Leasing Ass’n, Inc., 520 So.2d 1333 (Miss. 1987)

Pharmaceutical Research and Manufacturers of America v. Meadows, 304 F.3d 1197 (11th Cir. 2002)

Sontay v. Avis Rent-A-Car Systems, Inc., 872 So. 2d 316 (Fla. 4th DCA 2004)

State v Harden, 873 So. 2d 352 (Fla. 3d Dist. Ct. App. 2004)

Truck Renting and Leasing Ass’n, Inc. v. Comm’r of Revenue, 433 Mass. 733; 746 N.E.2d 143 (2001)

United States v. Lopez, 514 U.S. 549 (1995)

–  –  –

Vanguard Car Rental, U.S.A. v. Drouin, 521 F. Supp. 2d 1343 (S.D. Fla. 2007)

Vanguard Car Rental, U.S.A. v. Huchon, 532 F. Supp. 2d 1371 (S.D. Fla. 2007)

Statutes and Rules Commerce Clause, U.S. Const. art. 1, § 8, cl. 3

§ 324.021(9)(b), Fla. Stat. (2007)

§ 324.021(9)(b)(2), Fla. Stat. (2007)

49 U.S.C. § 30106 (a)

49 U.S.C. § 30106

49 U.S.C. § 30106 (a)

49 U.S.C. § 30106 (a)(1)

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, § 10208 (Aug. 10, 2005)

49 C.F.R. Part 390

Other Authorities 151 Cong. Rec. H1200 (daily ed. March 9, 2005)

H.R. Rep. 106-774, pt. 1 (July 20, 2000)

–  –  –

Prepared Statement of Mr. Richard H. Middleton, Jr., 1999 WL 9591131 (Oct. 20, 1999)

Prepared Statement of Rep. Oxley, The Rental Fairness Act, 1999 WL 959128 (Oct. 20, 1999)

Rental Fairness Act of 1999 (“RFA”) H.R. 1954, 106th Cong. (2002)

Thomas M. Corsi, The Truckload Carrier Industry Segment, Trucking in the Age of Information, Ashgate Publishing (2004)

Tom Incantalupo, Auto Leasing May Return to NY, Companies Would Resume Leasing If Bush Signs Bill Freeing Them from 1924 State Law on Accident Liability, Newsday, Aug. 2, 2005

Walter Olson, Silver’s Wreck, N.Y. Post, June 9, 2003

William Tucker, The Great Car-Rental Wipeout, N.Y. Sun, April 1, 2004

–  –  –

The amicus curiae Truck Renting and Leasing Association, Inc. (“TRALA”) is a national trade association whose member companies rent or lease vehicles in interstate commerce. 1 TRALA, among others, previously joined in a coalition to advocate for the adoption of 49 U.S.C. § 30106, commonly referred to as the “Graves Amendment,” enacted into law by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, § 10208 (Aug. 10, 2005) (“SAFETEA-LU” or the “Federal statute”), and the repeal of vicarious liability statutes in several states and in Canada. Vicarious liability laws adversely affect TRALA’s member companies by substantially raising the costs of doing business nationwide, and limiting the availability of insurance coverage for owners of rented and leased vehicles. Because rented and leased vehicles are routinely driven across state lines, and such vehicles are an integral part of the seamless flow of interstate transportation, TRALA’s members are forced to account for those states, such as Florida, that impose vicarious liability on vehicle lessors. These extra costs are spread throughout the industry, and prior to enactment of the Graves Amendment TRALA estimated that vicarious liability requirements cost vehicle rental and leasing companies upwards of $100 million annually.

A list off TRALA Member Companies is included in the Addendum.

TRALA, headquartered in Alexandria, Virginia, is a voluntary, not-for-profit national trade association founded in 1978 to serve as a unified and focused voice for the truck renting and leasing industry. Its mission is to foster a positive legislative and regulatory climate within which companies engaged in leasing and renting vehicles and trailers and related businesses can compete fairly in the North American marketplace.

TRALA members engage in commercial truck renting and leasing,2 vehicle finance leasing, and consumer truck rental. The membership encompasses the full spectrum of the industry, including major national independent firms such as Ryder System, Penske Truck Leasing, U-Haul, Budget and Enterprise Truck Rental, as well as small and medium-size businesses that generally participate as members of four group systems: Mack Leasing, Volvo Truck Leasing, PacLease, and IdealLease. In total, these nearly 500 companies operate more than 4,000 commercial lease and rental locations and more than 18,000 consumer rental locations throughout the United States, Canada and Mexico. 3 The term “renting” is a term of art in the vehicle leasing industry, generally meaning a transaction granting the exclusive use of a vehicle for 30 days or fewer, whereas a lease generally means a transaction granting the exclusive use of a vehicle for more than 30 days. Use of the term “lease” herein includes rentals.

The TRALA membership also includes more than 100 supplier member companies providing equipment, products, and services to TRALA leasing company members.

The truck renting and leasing industry involves a vast network of truck transportation, logistics and related services. In 2003 there were 4,734,964 commercial trucks in classes 3 through 8 4 registered in the United States. Of that total, some 896,155, or approximately 19 percent, were operated pursuant to some form of lease agreement. Moreover, TRALA members account for upwards of 40 percent of all of the new commercial motor vehicles in classes 3 through 8 purchased each year in the United States.

Truck leasing customers represent virtually every segment of the North American economy. 5 Almost one-fifth of commercial trucks in the United States are operated under lease agreements. For vehicles operating in interstate commerce, as much as 90 percent of the total number of commercial vehicles may be operating under a lease agreement.

Classes 3 through 8 include commercial trucks over 10,000 pounds Gross Vehicle Weight (“GVW”) to 80,000 pounds GVW and above. Commercial trucks over 10,000 pounds GVW are generally subject to federal and state motor carrier safety regulations. See 49 C.F.R. Part 390.

Those segments include the following: (1) wholesale/retail, (2) manufacturing, (3) general freight, (4) food processing/distribution, (5) miscellaneous other, (6) services, (7) forestry/lumber/wood products, (8) beverage processing/distribution, (9) agricultural farm, (10) moving and storage, (11) landscaping/horticulture/ nursery service, (12) individual owner-operators, (13) petroleum, (14) sanitation/refuse, (15) government miscellaneous, (16) hazardous materials, (17) mining/quarry, (18) construction, (19) vehicle transporters, (20) specialized/heavy hauling, (21) sanitation-refuse combination, (22) general freight hazmat, (23) emergency vehicles, and (24) utility services.

Significantly, truck lessors do not control where a vehicle is operated once the lessee takes possession of the vehicle.6 For example, a vehicle may be leased to a customer in Georgia by a lessor located in Georgia, and with no commercial locations outside of that state, but the customer may operate the vehicle in dozens of states throughout the term of the lease without seeking permission from or even notifying the lessor. Further, according to data from the American Trucking Associations, 7 the average length of a single trip for all trucking operations is 469 miles, indicating these vehicles operate over a wide range of states on a daily basis.

To aid in this freedom of movement, truck lessors generally register their vehicles over 26,000 pounds through the International Registration Plan, which allows the vehicles to be operated in all states without any special permits or additional licensing. Lessors also generally arrange to pay fuel taxes for these vehicles through the International Fuel Tax Agreement, which serves as a See, e.g., Truck Renting and Leasing Ass’n, Inc. v. Comm’r of Revenue, 433 Mass. 733; 746 N.E.2d 143, 145 (2001) (Lessors “retained ownership of the vehicles and the lessees were granted ‘exclusive dominion and control’ at all times.”); Marx v. Truck Renting and Leasing Ass’n, Inc., 520 So.2d 1333 (Miss.

1987) (“[N]either Ryder nor Saunders have equipment here and do not consistently utilize the Mississippi highways. In fact, they have no control over which highways the lessees of their vehicles use once those vehicles are leased.”).

Thomas M. Corsi, The Truckload Carrier Industry Segment, Trucking in the Age of Information, Ashgate Publishing (2004); based on the author’s calculations from 2001 Motor Carrier Annual Report, American Trucking Associations, Inc., Alexandria, Virginia.

clearinghouse for state fuel tax payments to each state in which the vehicle is operated.

TRALA’s members also include the Industry Council for Vehicle Renting and Leasing 8 (the “Industry Council”), a coalition of automobile and truck lessors formed to address the issues facing the broader vehicle renting leasing industry, including state vicarious liability laws.

This free flow of vehicles in interstate commerce illustrates why vicarious liability imposed by a single state can adversely affect vehicle leasing operations nationwide. In the above example, if the vehicle leased in Georgia is operated by the lessee in Florida and is involved in an accident in this state, the Georgia-based lessor could be subject to the liability imposed under Florida law, without ever having any intent to do business in the state or to subject itself to such laws.

Moreover, the leased vehicle does not even have to be operated in Florida to subject the lessor to vicarious liability. If the injured party is a resident of Florida, or the parties have some other connection to the state, the trial court may, through choice of law principles, opt to apply the substantive law of Florida, including its The Industry Council members are Avis Budget Group, Daimler Chrysler Truck Financial, Dollar Thrifty Automotive Group, Enterprise Rent-A-Car, Key Equipment Finance, Navistar Financial Corporation, Penske Truck Leasing Company, Ryder System, U-Haul International, and PACCAR Financial Services Corporation.

vicarious liability statute, even if the accident occurred outside of Florida and/or the lawsuit is brought in the courts of another jurisdiction besides Florida. 9 Florida’s vicarious liability law therefore increases the costs of doing business for all car and truck lessors wherever their principal place of business or the location of their leasing facilities. For lessors located in Florida or in a bordering state, the potential liabilities, and therefore the increased costs of operation, are much greater, resulting in significantly higher consumer prices.

Because truck lessors provide vehicles to virtually every type of manufacturing, wholesale and retail entity in the country, the increased costs show up in higher costs of distributing virtually every type of product sold in the United States.

The history of the Graves Amendment illustrates the devastating impact that “liability without fault” laws have on vehicle lessors: many leasing entities were forced out of the market due to vicarious liability laws in just a handful of states. 10 For example, a number of press articles described the additional costs and other effects of the New York vicarious liability law on vehicle lessors in that state. One article noted, “Try to reserve a Hertz or Avis vehicle in Brooklyn or the Bronx, and This possibility was discussed in congressional hearings during the consideration of a precursor to the Graves Amendment. See Prepared Statement of Rep. Oxley, The Rental Fairness Act, 1999 WL 959128 (Oct. 20, 1999).

See Prepared Statement of Ms. Sharon Faulkner, the Rental Fairness Act, 1999 WL 959129 (Oct. 20, 1999) (stating that due to vicarious liability laws she sold her small car rental company to a competitor and that over 300 car rental companies had closed in New York between 1990 and 1999).

you may face a surcharge of $60 or $80 a day over what the same car would rent for in the rest of the country.” Walter Olson, Silver’s Wreck, N.Y. Post, June 9, 2003.

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