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SJC-13378, Maria Blanca, Elena Garcia
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and another v. Shaniqua Steele and another.
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Okay, Attorney Antonelli, whenever you're ready.
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May it please the court, good morning, Your Honors.
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Peter Antonelli on behalf of the plaintiffs
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Maria Elena Garcia and Jose Favian Sejo.
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Before the court is really a legal issue
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under the Graves Amendment, 49 USC 30106.
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We believe and it's our position
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that the superior court erred in finding
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that the Graves Amendment applied to the transaction
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at issue, which was a courtesy loaner car.
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The plain reading of the statute covers the lease
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and the rental of cars.
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The record before the court demonstrates
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that the courtesy loaner vehicle--
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Can you address the 11th circuit's take on consideration
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'cause we have two cases of the circuit.
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Well, you obviously know the case law.
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But we have the 11th circuit goes against you on this issue
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of consideration on a lease or rental.
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Can you address that, please?
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Your Honor, I can try.
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With all due respect to the 11th circuit,
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I didn't find the rationale entirely understandable.
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Yeah, as I understand this is part and parcel
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of you buying this fancy car and having this service,
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we're gonna give you a rental and that's the consideration?
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I think what the--
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Rental, I'm sorry, I misspoke, a loaner.
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Right, I think what the 11th circuit said
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in taking a square peg and putting it into the round hole
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of what was actually an ordinary and common usage
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for consideration, for rent, what was consideration.
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The court said that when I as the customer
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of the service department have an opportunity
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to service my vehicle,
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that constitutes sufficient consideration.
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So I go to the dealership, I go to the Mercedes-Benz
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of Caldwell to get my car serviced,
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I don't go to Joe's Garage
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because Joe's Garage is not gonna give me a loaner.
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Isn't that part of the consideration
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of me going to the Mercedes-Benz dealer
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'cause I'm gonna pay for this front end alignment
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and I'm gonna get a loaner.
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Well, the problem with that is that it's twofold.
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First of all, it's strained in the sense
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that if you take another hypo on the home owner that chooses
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to paint my house and actually the consideration
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that I'm paying to a particular painter
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before I actually pay it, before I actually undertake
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the agreement, before I even render the agreement
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is just the opportunity that I had to give that job out
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to seven different painters.
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It just strains credulity.
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It really contravenes statutory construction,
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which is let's use the plain and ordinary
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and common sense meaning, which is why you look
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to dictionaries, number one.
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I'm sorry.
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No, please continue.
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Number two, when I asked at deposition the CFO,
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the 36B representative very simply
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is there a cost associated with it,
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i.e. is there consideration paid
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by the customer for that?
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Not only did the 36B representative not say,
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well, I don't know what you mean,
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there's a lot of ways to construe that,
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she understood the plain and ordinary meaning
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of the question that I was asking and said, "No."
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I'll expose my naivete.
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I was struck by the fact that there are 125 vehicles
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that are loaners.
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This is a big business.
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Doesn't that more go to there's costs associated
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with maintaining those 125 vehicles that are passed on
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to the person who's getting their car fixed.
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Well, certainly the dealership can maintain its business
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of servicing the car
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and it can do what any number of dealerships do,
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which is maintain an independent rental agency
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within the dealership.
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It can give the customer an Uber ride.
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It could say, we don't wanna give you any rental at all.
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It could say any number of things.
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And my point there is it's separate, it's independent
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from the transaction.
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And the court need look no further
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than the actual rental document
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because the rental document has...
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Sorry--
Lack of a rental document.
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Right, it's not a rental document.
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The dealership calls it a loaner authorization form
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and front and center is a placeholder for cost
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and it's zero.
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It doesn't say what the 11th circuit says, which is,
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well, for this particular transaction,
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we're gonna call it an opportunity.
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But we're gonna charge you $1,000
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for the front end alignment rather than $800
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that Joe's Garage does, basically.
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(Gaziano laughs)
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Again, I think anybody construing this
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has a hard time finding consideration.
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I see what you're saying.
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It's a search and inquiry for consideration.
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Right.
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Let me ask you a different question then
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'cause I think it's as straightforward as that
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whether there's consideration,
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but one of the decisions talked about the statutory purpose
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of the Graves Amendment and that this failure
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to hold the business liable would be inconsistent
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with the statutory purpose.
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What do you understand the purpose
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of the Graves Amendment to be
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and whether or not your interpretation fits in
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with that purpose?
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Sure, I think first of all when construing a statute,
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a federal statute--
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Yeah, this is probably third in the tool box.
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Right, so if we get past the plain terms
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and we need to go past dictionaries and then we need
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to look at what is the statutory purpose, which I understand
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in other rules of construction is part and parcel
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of the first two steps.
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The statute was enacted in 2005 to afford protections
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to rental car companies and leasing companies,
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not just necessarily private individual rental cars,
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that operate in interstate markets.
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So they don't get sued in California
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when they rent it in Virginia.
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Right, and so the congress made a decision
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to bolster that business by affording liability protection
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on a countrywide basis
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so as to preempt individual state laws
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that might impose liability
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on a particular national rental chain
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in a particular state.
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That was the purpose.
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Where does the 100 miles radius fit into that
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in that inquiry?
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Well, it fits in I believe in the sense that generally
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for Congress to act in a case like this, it's operating
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under its powers under the Commerce Clause.
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And I think it was the GMC case
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also by the 11th circuit cited by my brother,
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the court analyzed under Raich I think
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that where you have activities that substantially effect,
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that's the test under Raich,
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substantially effect interstate commerce,
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then Congress has the power to act.
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So it goes to both the purpose and it goes to both the power
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of Congress to act.
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In other words, here we have a situation
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where the local dealer much like many dealers,
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most dealers perhaps, are operating
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in a localized environment at least vis a vis
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national rental companies, national truck rental companies,
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auto rental companies.
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And so it doesn't fit within the purpose.
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And then as to the power, it undercuts the proposition
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that Congress was acting
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under its interstate commerce powers
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because obviously the dealership is telling its customer
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don't go more than 100 miles.
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And in most circumstances,
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unless you live in a border state,
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that's gonna restrict the loan of the vehicle
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to that particular state.
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So I think it cuts on both those points.
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Can I ask a silly question?
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Am I cutting you off?
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No, I'm all set, thank you.
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As much as we love deciding
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complicated federal statutory questions,
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there's no possibility of negligence here
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on the part of this company, right?
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I mean, the lease is with...
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The rental agreement is with her husband or her boyfriend,
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I can't remember who he is.
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He's not driving the car.
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She's driving the car.
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Don't they preclude him
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from letting anyone else drive the car?
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So should we be even deciding
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this difficult federal question in a case
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in which there's no possibility
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of proving negligence against the company?
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I think that's one argument
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that the court need not reach that,
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but here, we're arguing obviously that there is liability
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based upon essentially responding at the superior--
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Applying other statutes.
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Yeah, applying 85A, 231:85A and number two--
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Meaning that if they're the owner...
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Okay, so your point is that if we rule the other way,
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there's a presumption that they're the owner,
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but there's not a presumption
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that there's negligence, right?
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Well, I've read the case law.
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Judge Gantz in the,
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I believe it's the St. Pierre v. Penske Truck case,
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while he was a superior court justice traced the arc
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of the development of 85A.
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It's prima facie evidence of responsibility.
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It's not only prima facie evidence, but where he came out
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in 2001 was that the SJC creates...
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The SJC has ruled, applied that statute in such a way
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that the question of the presumption goes to a jury.
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So that's number one.
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Number two is on the question of liability.
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Admittedly, this is a question before the court.
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It's a question of what is the legal question
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of whether or not there's a duty
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and then because I found no case that was four square
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on the circumstances of this case.
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There are a couple cases, I think it's Jupen or Jupin,
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which dealt with the court, the SJC imposing a new burden
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on a home owner whose boyfriend had firearms
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and created a burden.
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And so it's an issue of law.
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And those are duties that evolve.
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And the judge below didn't reach this issue.
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What's that?
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The judge below didn't reach this issue.
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The judge did reach the issue and he said unequivocally
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there is no duty under the circumstances of the case.
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And I submit that there is a duty
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and there should be a duty because--
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He said that notwithstanding the Graves Amendment?
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Yeah, he reasoned that there was no duty
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under the circumstances.
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'Cause I was more looking at whether
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or not Mr. Oakey was liable for negligent entrustment.
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Well, I just heard Your Honor's question as whether
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or not there was a duty as to the dealership.
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And he reasoned that there was no duty
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under the circumstances of this case
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because the conduct was not foreseeable.
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Ultimately that, Oakey entrusting the car to his wife
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and his wife, who is an unlicensed driver
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was not a foreseeable injury such that that was a duty.
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And I think it's the Jupin case, obviously the court,
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whether or not there's a duty is a matter of law
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and then we get to the question of what is the scope
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of the duty and that becomes a factual interest.
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And I submit to the court that under the circumstances
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of this case where you have a Mercedes dealership
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renting out high end cars that generates 10
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to $15 million just in its parts and service business
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because that's what Mr. Pittman testified to
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in his deposition and that's before the court
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that there should be a duty.
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In other words, they're in the best position
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to assess the risk of giving out these loaner vehicles.
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They've decided that it helps their business to do that,
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but they have options.
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They can give a customer a rental voucher,
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they can give the customer an Uber ride.
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And this court is not blind to those options.
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Those are everyday options.
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The dealership could put a LoJack on the vehicle
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that enforces the distance limitation.
267
00:13:58.920 --> 00:14:01.473
The record testimony is they don't do anything.
268
00:14:02.760 --> 00:14:06.150
They don't check to see that their policies
269
00:14:06.150 --> 00:14:09.000
and procedures are being enforced.
270
00:14:09.000 --> 00:14:12.060
So as Justice Scalia said, quoting someone, one
271
00:14:12.060 --> 00:14:14.437
of the founding fathers, "It's a parchment guarantee."
272
00:14:14.437 --> 00:14:17.910
"It's just a piece of paper," in their words.
273
00:14:17.910 --> 00:14:19.470
So I submit--
274
00:14:19.470 --> 00:14:21.900
That's mostly what we deal with, parchment guarantees,
275
00:14:21.900 --> 00:14:24.210
so you don't wanna put us out of business.
276
00:14:24.210 --> 00:14:25.890
I don't, I don't.
277
00:14:25.890 --> 00:14:28.380
On the negligence, and I have 49 seconds,
278
00:14:28.380 --> 00:14:29.980
so on the negligent entrustment,
279
00:14:31.524 --> 00:14:36.524
I read Judge Deakins' decision and my brother's briefing
280
00:14:38.430 --> 00:14:43.430
to say that because Mr. Oakey testified
281
00:14:43.650 --> 00:14:45.510
and because Steele testified
282
00:14:45.510 --> 00:14:48.150
that I didn't have express permission to drive that car
283
00:14:48.150 --> 00:14:49.050
that that's enough.
284
00:14:49.050 --> 00:14:50.790
It doesn't get to a jury.
285
00:14:50.790 --> 00:14:54.060
And our position is regardless
286
00:14:54.060 --> 00:14:56.760
of what they said about authority--
287
00:14:56.760 --> 00:15:00.810
But he left it running with her in the front seat.
288
00:15:00.810 --> 00:15:03.000
So the test under the negligent entrustment doctrine
289
00:15:03.000 --> 00:15:06.630
is whether there's specific or general permission.
290
00:15:06.630 --> 00:15:08.187
And our position is--
291
00:15:10.380 --> 00:15:11.910
The parking enforcement person
292
00:15:11.910 --> 00:15:14.373
thought she had permission to move it.
293
00:15:15.531 --> 00:15:18.450
Everybody seemed to think it and there's no dispute.
294
00:15:18.450 --> 00:15:21.270
Your Honors can look to the incident report, the detective
295
00:15:21.270 --> 00:15:24.030
that investigated it that happened to be on the scene,
296
00:15:24.030 --> 00:15:26.730
Detective McManus, observe the incident.
297
00:15:26.730 --> 00:15:29.880
He saw her behind the wheel of the car, Oakey admitted
298
00:15:29.880 --> 00:15:32.850
that he left her in the car running.
299
00:15:32.850 --> 00:15:36.430
So the circumstances of the case I would submit
300
00:15:37.710 --> 00:15:40.740
show implied permission.
301
00:15:40.740 --> 00:15:44.490
But in any event, it's something that a jury should decide
302
00:15:44.490 --> 00:15:46.293
under the circumstances of the case.
303
00:15:47.460 --> 00:15:48.870
Looks like I'm over.
304
00:15:48.870 --> 00:15:50.400
I believe so.
305
00:15:50.400 --> 00:15:52.142
I'll rest, sir, thank you.
306
00:15:52.142 --> 00:15:53.142
Thank you.
307
00:15:54.570 --> 00:15:55.770
Okay, Attorney Melville.
308
00:15:58.170 --> 00:16:00.420
May it please the court, Michael Melville on behalf
309
00:16:00.420 --> 00:16:04.050
of MBF Auto doing business in Mercedes-Benz of Caldwell
310
00:16:04.050 --> 00:16:07.350
and MBB Auto doing business Mercedes-Benz Brooklyn.
311
00:16:07.350 --> 00:16:11.640
We ask the court affirm the judgment of the trial court.
312
00:16:11.640 --> 00:16:15.360
As there's really no evidence of negligence in this case,
313
00:16:15.360 --> 00:16:20.070
the plaintiffs have to rely on the prima facie assumptions
314
00:16:20.070 --> 00:16:25.070
created by 231:85A, but that statute one,
315
00:16:26.340 --> 00:16:27.780
with regard to MBB--
316
00:16:27.780 --> 00:16:31.560
Does that get you over the rail to a jury trial?
317
00:16:31.560 --> 00:16:33.000
Well, we were granted
318
00:16:33.000 --> 00:16:35.095
some rejudgement on this, Your Honor.
319
00:16:35.095 --> 00:16:38.190
And my opinion on 85A just in general,
320
00:16:38.190 --> 00:16:40.830
first of all, it's preempted by the Graves Amendments,
321
00:16:40.830 --> 00:16:44.040
but secondly, as far as if we just wanted to focus
322
00:16:44.040 --> 00:16:46.323
on whether or not you need to apply 85A,
323
00:16:47.970 --> 00:16:51.690
while there's some rather old SJC case law,
324
00:16:51.690 --> 00:16:54.570
I think the most recent case was the '40s,
325
00:16:54.570 --> 00:16:56.970
more recent appellate authority in Massachusetts
326
00:16:56.970 --> 00:17:00.300
has indicated that some rejudgement can be appropriate.
327
00:17:00.300 --> 00:17:02.610
I think it was the appeals court, not this court,
328
00:17:02.610 --> 00:17:03.960
so it's per sway of authority,
329
00:17:03.960 --> 00:17:07.620
but I believe the Thompson case said you can overcome
330
00:17:07.620 --> 00:17:12.403
that presumption of 85A at the summary judgment stage.
331
00:17:14.280 --> 00:17:15.690
Let's go to the Graves Amendment.
332
00:17:15.690 --> 00:17:17.250
What's your view of the consideration?
333
00:17:17.250 --> 00:17:20.670
Does it have to be dollars for consideration
334
00:17:20.670 --> 00:17:23.100
or could it be this kind of goodwill?
335
00:17:23.100 --> 00:17:25.080
Well, it's not goodwill, Your Honor,
336
00:17:25.080 --> 00:17:25.950
in these circumstances.
337
00:17:25.950 --> 00:17:27.000
It doesn't have to be dollars.
338
00:17:27.000 --> 00:17:30.690
Consideration has never been anywhere
339
00:17:30.690 --> 00:17:32.280
and it's not limited to dollars.
340
00:17:32.280 --> 00:17:35.010
Consideration is something which motivates a person
341
00:17:35.010 --> 00:17:36.840
to do another act.
342
00:17:36.840 --> 00:17:41.010
In this case, the consideration is if you bring your car
343
00:17:41.010 --> 00:17:44.640
into a dealership and it meets certain criteria, including
344
00:17:44.640 --> 00:17:47.550
that it has to be there for more than three hours,
345
00:17:47.550 --> 00:17:51.570
so presumably larger repairs, not just an oil change
346
00:17:51.570 --> 00:17:56.570
or whatever, we will provide you with a courtesy vehicle
347
00:17:57.450 --> 00:17:58.283
as part of it.
348
00:17:58.283 --> 00:18:00.060
And you only get that courtesy vehicle,
349
00:18:00.060 --> 00:18:02.520
not for an unlimited period of time.
350
00:18:02.520 --> 00:18:04.020
You have to return it within 24 hours
351
00:18:04.020 --> 00:18:05.310
of our service being done.
352
00:18:05.310 --> 00:18:10.290
So it's very clearly tied into the requirements
353
00:18:10.290 --> 00:18:12.180
and business of this vehicle--
354
00:18:12.180 --> 00:18:14.620
But Mr. Oakey doesn't believe he paid anything
355
00:18:16.020 --> 00:18:17.760
for the loaner vehicle, right?
356
00:18:17.760 --> 00:18:21.810
He got it as a gratuity for the service.
357
00:18:21.810 --> 00:18:24.480
Well, no, Your Honor, while he may have said
358
00:18:24.480 --> 00:18:27.810
he didn't pay anything for it, he brought it in,
359
00:18:27.810 --> 00:18:32.160
he chose to come into a Mercedes-Benz dealership,
360
00:18:32.160 --> 00:18:36.320
pay presumably higher prices as part of that,
361
00:18:36.320 --> 00:18:38.880
as part of his calculation of where do I bring my vehicle?
362
00:18:38.880 --> 00:18:42.660
Do I bring it to Joe's Auto as Your Honor referred to as
363
00:18:42.660 --> 00:18:45.060
or do I go into a Mercedes-Benz dealer
364
00:18:45.060 --> 00:18:47.910
where I might pay a higher rate per hour for work,
365
00:18:47.910 --> 00:18:52.410
a premium on prices, the same part, the same service,
366
00:18:52.410 --> 00:18:54.300
motivated him to go to the dealership
367
00:18:54.300 --> 00:18:55.567
'cause he indicated I think in his testimony,
368
00:18:55.567 --> 00:18:57.390
"I always go to dealerships."
369
00:18:57.390 --> 00:18:58.223
Well, why does he do that?
370
00:18:58.223 --> 00:19:01.740
He goes there because it gives him additional services
371
00:19:01.740 --> 00:19:04.620
in addition to having his vehicle repaired.
372
00:19:04.620 --> 00:19:06.840
What's your understanding of the statutory purpose
373
00:19:06.840 --> 00:19:07.770
of the amendment?
374
00:19:07.770 --> 00:19:09.990
Well, the statutory purpose of the amendment, Your Honor,
375
00:19:09.990 --> 00:19:11.640
it's under, the congress enacted it
376
00:19:11.640 --> 00:19:13.290
under the Commerce Clause.
377
00:19:13.290 --> 00:19:17.610
The Commerce Clause allows Congress to do several things,
378
00:19:17.610 --> 00:19:20.790
but the large one I think RC in the 11th circuit noted
379
00:19:20.790 --> 00:19:25.260
allows them to regulate purely intrastate activities
380
00:19:25.260 --> 00:19:30.260
which have a substantial factor on interstate commerce.
381
00:19:30.630 --> 00:19:34.770
The repair of vehicles, an instrumentality of commerce,
382
00:19:34.770 --> 00:19:39.300
has a substantial impact on the interstate commerce.
383
00:19:39.300 --> 00:19:40.133
This is allowing him...
384
00:19:40.133 --> 00:19:43.050
First of all, I would dispute that this activity
385
00:19:43.050 --> 00:19:45.300
of this company is purely intrastate.
386
00:19:45.300 --> 00:19:47.570
100 miles from Caldwell, New Jersey...
387
00:19:48.528 --> 00:19:49.620
He wasn't supposed to be there.
388
00:19:49.620 --> 00:19:51.150
Well, he wasn't supposed to be in Massachusetts,
389
00:19:51.150 --> 00:19:52.770
but 100 miles would bring you to Philadelphia
390
00:19:52.770 --> 00:19:54.750
or New Haven, Connecticut from Caldwell,
391
00:19:54.750 --> 00:19:57.003
New York City is still within that 100 miles.
392
00:19:58.560 --> 00:20:00.800
What do we make of the fact that it doesn't say bailments?
393
00:20:00.800 --> 00:20:03.960
It just says leases or rentals.
394
00:20:03.960 --> 00:20:06.690
Well, Your Honor, I assume you're talking
395
00:20:06.690 --> 00:20:08.580
about the statute saying lease, yes.
396
00:20:08.580 --> 00:20:10.620
Well, it doesn't say bailment.
397
00:20:10.620 --> 00:20:13.350
And first of all, I think a rental, even if I paid money
398
00:20:13.350 --> 00:20:15.540
to rent to Enterprise, that is a bailment.
399
00:20:15.540 --> 00:20:19.440
The terms in the statute are lease or rent.
400
00:20:19.440 --> 00:20:24.090
And those terms, this fits that, which is a rent is...
401
00:20:24.090 --> 00:20:26.790
Well, I think we look at the 2004 version of Black's
402
00:20:26.790 --> 00:20:28.500
which doesn't define rent--
403
00:20:28.500 --> 00:20:31.830
Everybody cites the definitions, both sides.
404
00:20:31.830 --> 00:20:32.663
Yeah, it does.
405
00:20:34.049 --> 00:20:37.567
The question is how do we define consideration
406
00:20:38.430 --> 00:20:39.900
in this transaction?
407
00:20:39.900 --> 00:20:43.320
And it was an activity that motivated him
408
00:20:43.320 --> 00:20:46.980
or it motivated a consumer rather to bring their vehicle--
409
00:20:46.980 --> 00:20:48.510
Maybe I should've looked at it
410
00:20:48.510 --> 00:20:51.900
and maybe it's not before me, but what did he say
411
00:20:51.900 --> 00:20:54.930
in his deposition as far as that goes?
412
00:20:54.930 --> 00:20:59.550
I'm not sure what his motivation was explicitly asked,
413
00:20:59.550 --> 00:21:03.030
this particular individual's motivation was explicitly asked
414
00:21:03.030 --> 00:21:05.130
and I'm not sure it's necessary to interpret the statute.
415
00:21:05.130 --> 00:21:07.200
As you know I don't know--
416
00:21:07.200 --> 00:21:09.270
I'm getting more to the brass tacks.
417
00:21:09.270 --> 00:21:12.000
Was he asked about why he went to the Mercedes dealer
418
00:21:12.000 --> 00:21:14.160
and whether or not the rental car
419
00:21:14.160 --> 00:21:16.743
or the loaner cars were part of his reasoning?
420
00:21:17.760 --> 00:21:21.480
I don't recall that that was actually part of the record
421
00:21:21.480 --> 00:21:22.920
if that was ever asked of him, Your Honor.
422
00:21:22.920 --> 00:21:25.500
I was not the trial attorney on this case,
423
00:21:25.500 --> 00:21:26.820
but I don't recall that that was
424
00:21:26.820 --> 00:21:28.710
in the part of the record of this case.
425
00:21:28.710 --> 00:21:31.617
I believe he said, "I brought it in to get it repaired."
426
00:21:32.520 --> 00:21:34.920
His individual intent wouldn't really matter.
427
00:21:34.920 --> 00:21:36.150
Exactly, Your Honor.
428
00:21:36.150 --> 00:21:37.470
That was more my point is I'm not sure
429
00:21:37.470 --> 00:21:38.670
that his intent matters,
430
00:21:38.670 --> 00:21:41.190
it's is this consideration for the transaction.
431
00:21:41.190 --> 00:21:45.840
The company's giving a detriment, which it seems
432
00:21:45.840 --> 00:21:48.660
it meets contractual definition of consideration.
433
00:21:48.660 --> 00:21:51.150
I don't know if it meets the definition of rent or lease,
434
00:21:51.150 --> 00:21:55.830
but it satisfies the meaning of consideration, doesn't it,
435
00:21:55.830 --> 00:21:57.420
under contract law?
436
00:21:57.420 --> 00:21:59.550
They're suffering a detriment.
437
00:21:59.550 --> 00:22:03.360
In return for getting the ability to repair his car
438
00:22:03.360 --> 00:22:08.360
and make some money, they're providing this car to him.
439
00:22:08.670 --> 00:22:11.790
So that gives him a benefit and it's a detriment to them.
440
00:22:11.790 --> 00:22:13.710
So it seems like it's gonna meet
441
00:22:13.710 --> 00:22:15.603
some definition of consideration.
442
00:22:16.590 --> 00:22:18.090
I agree, Your Honor.
443
00:22:18.090 --> 00:22:20.580
11th circuit's embellishment of rent or lease.
444
00:22:20.580 --> 00:22:22.380
Well, Your Honor, and I think you have to go back
445
00:22:22.380 --> 00:22:24.090
to break down what a rent or a lease is,
446
00:22:24.090 --> 00:22:27.450
which is I'm giving someone a piece of the use,
447
00:22:27.450 --> 00:22:31.620
the temporary use of property in exchange for consideration.
448
00:22:31.620 --> 00:22:32.880
That's when you go back to the consideration,
449
00:22:32.880 --> 00:22:33.960
this meets the definition of it.
450
00:22:33.960 --> 00:22:38.670
It doesn't need to necessarily be a dollar figure.
451
00:22:38.670 --> 00:22:43.560
If Congress wanted to include a dollar requirement
452
00:22:43.560 --> 00:22:46.770
that a dollar figure be part of the transaction,
453
00:22:46.770 --> 00:22:48.480
it could've done so, it did not do so.
454
00:22:48.480 --> 00:22:50.130
It said a rent or a lease.
455
00:22:50.130 --> 00:22:51.870
And the definition of common parlance
456
00:22:51.870 --> 00:22:56.040
of rent or lease is a temporary granting of property
457
00:22:56.040 --> 00:22:57.810
in exchange for consideration.
458
00:22:57.810 --> 00:22:58.980
And this meets the definition.
459
00:22:58.980 --> 00:23:01.500
I'm sorry, I'm slow today, but so...
460
00:23:01.500 --> 00:23:03.033
And probably always.
461
00:23:04.905 --> 00:23:09.790
So your client gave the plaintiff a loaner car
462
00:23:11.490 --> 00:23:16.350
and the consideration for that loaner was the opportunity
463
00:23:16.350 --> 00:23:20.520
to repair the car as opposed to him going to Joe's?
464
00:23:20.520 --> 00:23:23.130
Correct, it's an opportunity for him
465
00:23:23.130 --> 00:23:24.630
to come in and repair the car.
466
00:23:24.630 --> 00:23:26.817
It doesn't need to specifically be--
467
00:23:30.248 --> 00:23:32.280
And so there's two parts to the Graves Amendment.
468
00:23:32.280 --> 00:23:35.520
So you are saying that you're the owner
469
00:23:35.520 --> 00:23:37.530
that rented or leased the vehicle
470
00:23:37.530 --> 00:23:41.160
and the consideration was the opportunity to get...
471
00:23:41.160 --> 00:23:45.090
How do you meet the engaged in the business
472
00:23:45.090 --> 00:23:46.320
of renting and leasing?
473
00:23:46.320 --> 00:23:48.660
Is that because your fleet is so large?
474
00:23:48.660 --> 00:23:53.660
Well, it's part of I think, one, they are a car dealership
475
00:23:54.600 --> 00:23:56.310
that leases vehicles in general.
476
00:23:56.310 --> 00:24:01.310
But besides that with regards to this specific issue here,
477
00:24:01.620 --> 00:24:04.590
Your Honor, yes, in addition to being a car dealership
478
00:24:04.590 --> 00:24:08.190
that leases vehicles to other consumers,
479
00:24:08.190 --> 00:24:12.540
long-term leases as Mercedes-Benz is wont to do,
480
00:24:12.540 --> 00:24:17.540
they also have a very large repair business.
481
00:24:19.260 --> 00:24:23.580
That repair business has a fleet of 125 vehicles.
482
00:24:23.580 --> 00:24:27.900
95% of them on any given day are out on loaner.
483
00:24:27.900 --> 00:24:32.900
Part of that repair business also is enticing people
484
00:24:33.720 --> 00:24:35.910
to come in as part and parcel of the whole business,
485
00:24:35.910 --> 00:24:38.520
the whole repair package together.
486
00:24:38.520 --> 00:24:42.090
And can you cite for me again that Commerce Clause case
487
00:24:42.090 --> 00:24:46.230
that is really about the breadth of the Commerce Clause.
488
00:24:46.230 --> 00:24:49.980
It's really, really hardly a limit at all.
489
00:24:49.980 --> 00:24:52.770
You had discussed it earlier or I can just listen back
490
00:24:52.770 --> 00:24:54.000
to the tape if you don't have that.
491
00:24:54.000 --> 00:24:56.780
It was Garcia, Your Honor, I believe was the case.
492
00:24:56.780 --> 00:24:59.190
It was the 11th circuit case cited in my brief.
493
00:24:59.190 --> 00:25:01.470
Well, there was two, Thayer didn't have to deal
494
00:25:01.470 --> 00:25:05.160
with the Commerce Clause because the 11th circuit itself
495
00:25:05.160 --> 00:25:06.687
had already found it was constitutional statute
496
00:25:06.687 --> 00:25:09.270
and it wasn't a constitutional challenge on Thayer
497
00:25:09.270 --> 00:25:10.680
or in this case really either.
498
00:25:10.680 --> 00:25:12.480
They didn't really challenge the constitutionality of it,
499
00:25:12.480 --> 00:25:17.480
but the Commerce Clause, by and large, the Graves Amendment
500
00:25:18.090 --> 00:25:20.010
almost I believe every time it's been challenged
501
00:25:20.010 --> 00:25:23.310
has been found to be constitutional by the federal courts,
502
00:25:23.310 --> 00:25:24.870
at least the circuit courts of appeal,
503
00:25:24.870 --> 00:25:26.320
at least as far as I'm aware.
504
00:25:29.220 --> 00:25:31.350
With no other questions, we'll rest on our brief, thank you.
505
00:25:31.350 --> 00:25:32.183
Thanks.
506
00:25:35.520 --> 00:25:38.283
And Attorney Lantini gets a chance.
507
00:25:44.580 --> 00:25:47.370
Good afternoon, Your Honors, may it please the court.
508
00:25:47.370 --> 00:25:50.970
David Lantini on behalf of the defendant Goliweli Oakey.
509
00:25:50.970 --> 00:25:53.820
The sole claim against Mr. Oakey is for one
510
00:25:53.820 --> 00:25:55.830
in negligent entrustment of the vehicle
511
00:25:55.830 --> 00:25:58.350
to Ms. Steele causing the accident.
512
00:25:58.350 --> 00:26:02.977
Is that the only claim against Mr. Oakey in the complaint?
513
00:26:02.977 --> 00:26:05.820
There's a claim for consortium, Your Honor.
514
00:26:05.820 --> 00:26:07.260
Only summary judgment was entered as
515
00:26:07.260 --> 00:26:10.650
to the negligent entrustment claim count two.
516
00:26:10.650 --> 00:26:12.780
And how is it that if you double park your car,
517
00:26:12.780 --> 00:26:15.000
leave somebody who can't drive in the vehicle
518
00:26:15.000 --> 00:26:17.729
with the car running not negligent entrustment?
519
00:26:17.729 --> 00:26:18.990
The foreseeability issue, Your Honor,
520
00:26:18.990 --> 00:26:20.040
I'll get right to it.
521
00:26:20.880 --> 00:26:22.650
Was it foreseeable, I guess that's the question
522
00:26:22.650 --> 00:26:25.710
to Mr. Oakey whether Ms. Steele was going to--
523
00:26:25.710 --> 00:26:28.620
It's right down there during business hours.
524
00:26:28.620 --> 00:26:30.810
It's not out in a field in Iowa.
525
00:26:30.810 --> 00:26:33.420
Understandable, but there's also I think everyone
526
00:26:33.420 --> 00:26:36.120
in this room has been in a car, an occupant of a vehicle
527
00:26:36.120 --> 00:26:38.640
and the owner or the operator gets out,
528
00:26:38.640 --> 00:26:40.433
runs into the convenience store with the car running.
529
00:26:40.433 --> 00:26:42.630
So that the person in the passenger seat
530
00:26:42.630 --> 00:26:44.610
can move the car if need be.
531
00:26:44.610 --> 00:26:46.620
If there was such evidence in a discussion, Your Honor,
532
00:26:46.620 --> 00:26:47.693
that would be great.
533
00:26:47.693 --> 00:26:49.823
But you don't even have to.
534
00:26:49.823 --> 00:26:51.300
Aren't you at summary judgment?
535
00:26:51.300 --> 00:26:53.460
We were, Your Honor, and there was affirmative evidence
536
00:26:53.460 --> 00:26:54.960
from Ms. Steele and Mr. Oakey
537
00:26:54.960 --> 00:26:57.210
that she didn't have a license, he knew this,
538
00:26:57.210 --> 00:26:59.670
she never tried to drive one of his cars.
539
00:26:59.670 --> 00:27:02.190
For all we know, he could've left her there as,
540
00:27:02.190 --> 00:27:03.510
for lack of a better description,
541
00:27:03.510 --> 00:27:05.490
a human scarecrow if a meter maid came along
542
00:27:05.490 --> 00:27:08.820
seeing that this car is running, the lights are there,
543
00:27:08.820 --> 00:27:10.710
they're obviously not gonna be here for a long time,
544
00:27:10.710 --> 00:27:12.360
I'm just gonna go down the street.
545
00:27:12.360 --> 00:27:15.630
If there was some evidence that they had a discussion,
546
00:27:15.630 --> 00:27:18.090
move the car, I wouldn't get summary judgment
547
00:27:18.090 --> 00:27:20.370
and I would have never moved for it.
548
00:27:20.370 --> 00:27:22.860
But there was no discussion amongst them and I would--
549
00:27:22.860 --> 00:27:25.170
Why would he leave the car running?
550
00:27:25.170 --> 00:27:27.150
That's a great question, Your Honor.
551
00:27:27.150 --> 00:27:28.973
One for the jury probably.
552
00:27:29.850 --> 00:27:33.000
Not when there's affirmative evidence, Your Honors.
553
00:27:33.000 --> 00:27:35.760
Must have been hot, keep the air conditioner on.
554
00:27:35.760 --> 00:27:36.593
We're guessing.
555
00:27:36.593 --> 00:27:38.670
It's speculation as to why he left her there,
556
00:27:38.670 --> 00:27:41.400
but he knew she couldn't drive it and she literally said--
557
00:27:41.400 --> 00:27:42.990
Is it really guesswork, though?
558
00:27:42.990 --> 00:27:45.660
Isn't it a fair inference and on summary judgment,
559
00:27:45.660 --> 00:27:48.690
we indulge the fair inferences in favor of the nonmovement.
560
00:27:48.690 --> 00:27:51.330
But she said, "I didn't have permission to drive the car,"
561
00:27:51.330 --> 00:27:53.520
in her interrogatories and that's her testimony.
562
00:27:53.520 --> 00:27:54.660
That's affirmative evidence
563
00:27:54.660 --> 00:27:56.670
that she knew she did not have consent
564
00:27:56.670 --> 00:27:57.840
to operate the vehicle.
565
00:27:57.840 --> 00:27:59.160
And there's been nothing to refute that.
566
00:27:59.160 --> 00:28:01.440
And the plaintiff's only real argument is
567
00:28:01.440 --> 00:28:04.110
that it is a matter of implied consent
568
00:28:04.110 --> 00:28:05.310
and that seems to be.
569
00:28:05.310 --> 00:28:07.650
And the only case they cite in their portion
570
00:28:07.650 --> 00:28:10.860
of the brief addressing this is the O'leary v. Fox case.
571
00:28:10.860 --> 00:28:14.370
And it's convoluted similar to this,
572
00:28:14.370 --> 00:28:16.590
but that was two motorcycles crashing and they found
573
00:28:16.590 --> 00:28:20.400
that the owner, the operator, they found the owner liable
574
00:28:20.400 --> 00:28:24.000
under a negligent entrustment theory because the owner saw
575
00:28:24.000 --> 00:28:26.880
that the operator bought the bike on her credit card.
576
00:28:26.880 --> 00:28:28.580
Is that a summary judgment case?
577
00:28:29.610 --> 00:28:31.290
I thought usually these cases are kids
578
00:28:31.290 --> 00:28:34.710
that take a parent's car for a joyride and there's evidence
579
00:28:34.710 --> 00:28:37.440
of parents never allowed the kid in this.
580
00:28:37.440 --> 00:28:39.335
You can have summary judgment there.
581
00:28:39.335 --> 00:28:41.280
Those are a little different, right?
582
00:28:41.280 --> 00:28:42.600
I don't really see a lot of difference.
583
00:28:42.600 --> 00:28:44.820
If there was, again, there's just no affirmative evidence
584
00:28:44.820 --> 00:28:45.960
and we're on summary judgment
585
00:28:45.960 --> 00:28:49.500
as to why she was sitting in the car.
586
00:28:49.500 --> 00:28:50.400
If there was,
587
00:28:50.400 --> 00:28:52.080
again, this wouldn't be a summary judgment case.
588
00:28:52.080 --> 00:28:57.080
But for those reasons, I would just respectfully request
589
00:28:57.780 --> 00:28:59.850
the court uphold the lower court's decision
590
00:28:59.850 --> 00:29:01.110
and I would rest on my brief,
591
00:29:01.110 --> 00:29:03.240
unless there's any further questions from the court.
592
00:29:03.240 --> 00:29:04.653
Okay, thank you.