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The concept of secondary liability:

A conflict between car rental

Agencies and personnel Lines Insurer *

I.

INTRODUCTION

In the first week in January 1998, a tourist and his family arrived in Florida, for their two weeks holiday. In search of a car, the holiday after one of the many car rental companies at the airport main exit. In order to reduce costs, the tourists rented the least expensive car and not buy liability insurance from the company car option. He believed his personal car insurance would give him in case of an accident. His car, the holiday and his family, for their hotel.

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Maybe deals with anticipation, but unfortunately not the respect, the tourists have a stop sign. Another car was and whose driver was seriously injured. Then the injured driver sued the rental car and the tourists for their injuries. Vacationers tendered the defense of the action to his personal car insurance companies. They, in turn, offered the defense of the rental car companies. The rental car company, but declined to provide a defense to vacationers, advising vacationers personal automobile insurer that under the terms of the tenancy agreement, the insurer was required to provide the primary coverage and the defense of its insured. The rental car company, then, defends himself in the pending action.

Then the tourists' personal insurer has to search for an explanation, as between him and the car hire company, which was necessary to create a defense and primary reporting. The determination of this question is the core of the problems resulting from the secondary liability concept. "

The past years have a persistent conflict between car rental and personal lines insurer of the emerging concept of secondary liability in the car rental agreements.2 Reduced to its simplest form, secondary liability is a conditional transfer of responsibility for damage to third parties Parties to the motor vehicle accident, the owner of the rented car, the driver or the driver, the insurer. The concept of secondary liability is not, as some have tried to completely exonerate the car rental companies from liability for the innocent victims of a car accident, not even trying, the owner's liability for such an occurrence to the operator or lessee. Rather, it is an attempt by the car rental company contracted place primary responsibility for a car accident from the negligence of the operator on the negligent party, the owner or tenant.

The purpose of this article is the concept of secondary liability, as currently used by car rental companies as well as to examine how the courts in these disputes between landlords and operators of personal automobile liability insurers. To this end, the first in this article describe the historical context that gave rise to the implementation of the secondary liability of rental car companies. Next, a description, such as rental car companies the concept of secondary liability in its leases and a representation of the standard secondary liability provision. This article is from the arguments advanced by the proponents of the secondary liability concept and analyze the argument of the insurer, which is clearly against the concept. Finally, this article analyzes various court rulings, had the opportunity, and the question of how the courts have determined the controversy.

II

Historical Context

Historically, whether on the basis of common law or state statutes adopted, the responsibility for a permissive user's negligent operation of a motor vehicle is usually imputed to the owner.3 According to this rule in many states, car rental companies normally responsible for the negligence of their renters.4 Sun, rental car companies in a position where they not only obliged to defend himself, but to defend and indemnify the negligent renter / driver who is operating the vehicle with permission.

In most cases, but the car was not to bear sole responsibility for the resulting harm to the operator, the real culpable party, usually jointly and severally liable with the owner.5 car rental companies were still in a position in which they primarily obligated to defend and indemnify the negligent renter. A car rental company has certain rights for damages against the operator of the vehicle, either by contract under the terms of the tenancy agreement or under the general laws. In most cases, however, it was necessary to every first ruling by the accident victim, before it would be possible to enforce its payment to the lawsuit against the operators of negligence.