IN THE SUPREME COURT OF FLORIDA CASE NO. SC …

1 1 IN THE SUPREME COURT OF FLORIDA _____ CASE NO. SC 07-721 _____ PATRICIA McKINNEY, Individually And As Guardian Of JARO S. HLADIK, A Minor, Petitioner, v. FORTUNE INSURANCE COMPANY, a FLORIDA corporation, Respondent. _____ On Petition For Discretionary Review Of A Decision Of The Third COURT of Appeal Of FLORIDA , Case No. 3D06-207 _____ PETITIONER S AMENDED JURISDICTIONAL BRIEF LAWRENCE R. METSCH ARTHUR W. TIFFORD THE METSCH LAW FIRM, ARTHUR W. TIFFORD, Attorneys for Petitioner Attorneys for Petitioner 20801 Biscayne Blvd., Ste. 307 1385 15th Street Aventura, FL 33180 Miami, FL 33125 (305) 792-2540 (305) 545-7822 FAX: (305) 792-2541 FAX: (305) 325-1825 2 TABLE OF CONTENTS Page Table Of 2 Table Of 3 Statement Of The Case And Summary Of 9 10 11 Certificate Of 12 Certificate Of 12 Appendix 3 TABLE OF CITATIONS Pages STATUTE , FLORIDA Statutes (1999).

2 8, 9 CASES Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000).. 8 Dreka v. Platt, 79 So. 2d 670 (Fla. 1955).. ,10 Estate of Villanueva v. Youngblood, 927 So. 2d 955 (Fla. 2nd DCA 2006), petition for review granted, 939 So. 2d 1061 (Case No. SC06-1205, October 17, 2006).. 9,10,11,12 McKinney v. Fortune Insurance Company, 949 So. 2d 255 (Fla. 3d DCA 2006).. 8,9,9f 4 STATEMENT OF THE CASE AND FACTS On October 21, 1998, an automobile negligently operated by one of Fortune s insureds, Martinez, crashed into the vehicle then owned and operated by Mrs. Marie Padron-Delgado ( Delgado ). Delgado asserted a claim against Fortune and Martinez for damage to her car ( the Delgado vehicle ), which before the collision had traveled more than 100,000 miles.

3 On November 20, 1998, Fortune s claims adjuster, De La Torre Insurance Adjusters Inc. ( DLT ), wrote a letter to Delgado which in pertinent part advised: We have had the opportunity to appraise your vehicle. Our appraiser has declared it a total loss and determined that the fair market value is $1, This has been determined by an average of current book value as well as quotes from local dealers. Any old damage your vehicle has sustained prior to the accident, will of course, lower the vehicle s market value. For the sale of expediency, I have taken the liberty of enclosing all applicable title documentation necessary to process your title with the Department of Motor Vehicles.

4 Said process is a requirement set forth by FLORIDA Law. Once your title has been processed and returned to our office, we will mail it to you. After you have had the opportunity to carefully review our offer, simply complete the enclosed documents, and upon receipt of same documents, a draft will be issued. Please remember to sign your title as the seller and enclose your vehicle s title along with the above mentioned forms. 5 (Emphasis supplied) On February 4, 1999, Delgado signed a Salvage Retention Agreement , which provided: As part of the settlement of damages on my 1988 Oldsmobile Sierra entered into with Fortune Insurance Company this date resulting from an accident 10/21/98, I request retention of the salvage at an agreed value of $ dollars.

5 (Emphasis supplied) In others words, Delgado agreed to take from Fortune a $ reduction in the amount of her property damage compensation in exchange for the opportunity to sell the total loss vehicle s parts [hopefully] for more money in the salvage [junk] market. On February 16, 1999, an employee of DLT executed an affidavit concerning the Delgado vehicle which was directed to the State of FLORIDA Department of Highway Safety and Motor Vehicles and recited: The affiant deposes and says that, De La Torre Insurance Adjuster handles claims for Fortune Insurance Company. That, the undersigned representative for [Fortune] hereby certifies that the motor vehicle to be titled will not be operated by [Fortune] upon the highways of this State and that the above information is true and correct to the best of my knowledge.

6 (Emphasis supplied) Fortune s adjusting agent also misrepresented the value of the vehicle such as to 6 make it appear that the cost to repair the vehicle did not exceed 80% of the current retail cost of the vehicle. On March 11, 1999, Delgado, in accordance with Fortune s instructions, executed and delivered to Fortune a bill of sale to the Delgado vehicle. However, Fortune, did not take possession of that Instead of junking the damaged vehicle, Delgado permitted her daughter, Ms. Marie Louise Delgado, to operate it. On April 11, 1999, while Fortune was its owner, Ms. Delgado negligently crashed the Delgado vehicle into McKinney s minor ward, Jaro S.

7 1 It is evident that Fortune never intended to take possession of and scrap the Delgado vehicle. Delgado, during her deposition examination of October 24, 2000, testified: I am going to try to tell you more or less. I can t quote word for word, but it was something more or less like that the car was a total loss and that I had to give them the title of the car. And I wasn t in agreement of giving the amount they offered, and they said there would be a salvage fee and that I would receive a title from them in the future. That s it. Deposition transcript, p. 15.

8 Well, at this meeting what was To the best I can recall, I was told that they had to deduct that amount of money if I wanted to get the car back, that that was something they could do. That they would deduct that amount and then I would get the car. 7 Hladik, who was walking his bicycle, thereby inflicting catastrophic personal injuries upon him. On August 1, 2000, McKinney, individually and as Mr. Hladik s guardian, brought suit for damages in the Circuit COURT against Fortune,2 Delgado, Ms. Delgado, Bob s Barricades, Inc., and others, which civil action was docketed as Case No. 00-18471 (CA 31). Claiming that on April 11, 1999, it had held mere naked title to the total loss vehicle, Fortune repeatedly and unsuccessfully moved for summary judgment of dismissal during the five years of pretrial litigation.

9 Eventually, all the defendants except Fortune and Bob s Barricades, Inc., settled or were involuntarily dismissed. With jury selection about to begin, on July 7, 2005, Senior Circuit Judge Herbert Stettin, to whom the case had been reassigned for trial, announced that he would grant Fortune s motion for summary judgment on the ground that Fortune, on April 11, 1999, had possessed mere Deposition transcript, p. 26 2 Fortune has been in receivership since May 21, 2001. See, In Re: The Receivership of Fortune Insurance Company, a FLORIDA corporation, Case No.

10 01-1254, Second Circuit COURT , Leon County, FLORIDA . On July 31, 2001, the Receivership COURT entered an agreed order granting McKinney s motion for relief from the automatic stay of all proceedings pending against Fortune. Fortune s liability insurance carrier, Zurich America, has undertaken its defense in this case. 8 naked title to the total loss The civil action proceeded to trial against Bob s Barricades, Inc., and resulted in a jury verdict in favor of McKinney and against Bob s Barricades, Inc. The jury s verdict also found the driver, Ms. Delgado, 25% at fault. The Circuit COURT entered a Final Judgment in favor of McKinney. Judge Stettin, on December 30, 2005, entered an order granting Fortune s motion for final summary judgment and a final summary judgment was docketed by the Clerk of the Circuit COURT on January 4, 2006.