BERGER, J.
Beverly Cesary Daniel appeals the final summary judgment entered by the trial court in favor of Associated Investigators, Inc. and John B. Morris, an employee of Associated Investigators. Daniel argues the trial court erred when it determined that Associated Investigators and Morris were subsequent tortfeasors of BankFirst and that the settlement and release of BankFirst discharged Associated Investigators and Morris from liability. We agree and reverse.
Daniel owned and operated Orlando Limousine, Inc., with her business partner, Carlos Rivera.
After Rivera's death, Orlando Limousine defaulted on the loan. Thereafter, BankFirst obtained a judgment against Rivera's estate for $70,000 plus statutory interest. BankFirst then hired Associated Investigators to repossess the bus. An initial attempt at repossession was unsuccessful. However, on March 6, 2012, Morris made a second attempt. This time, when he entered Orlando Limousine's premises to repossess the bus, Morris allegedly ignored Daniel's request to leave, forced his way onto the bus, and came into physical contact with Daniel.
Daniel filed a two-count complaint against BankFirst, Associated Investigators, and Morris. The first count alleged negligence during the repossession when
BankFirst and Daniel later reached a settlement agreement and executed a mutual release.
Thereafter, Associated Investigators and Morris filed a motion for summary judgment, arguing that when Daniel released her claims against BankFirst, she failed to preserve her claims against them. They asserted that BankFirst was the initial tortfeasor and that they were subsequent tortfeasors based on BankFirst's earlier repossession attempt before March 6, 2012. Associated Investigators and Morris argued that the repossession on March 6, 2012, aggravated the earlier trespass. Daniel denied that Associated Investigators and Morris were subsequent tortfeasors. She noted that BankFirst paid her nothing in exchange for the release and that Associated Investigators was hired by BankFirst as an independent contractor. Daniel contended that the release was intended only to settle BankFirst's claims against Carlos Rivera's estate and not the claims against Associated Investigators and Morris.
The trial court granted the Appellees' motion for summary judgment, stating:
This timely appeal followed.
We review orders granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Daniel argues that the trial court erred in applying the initial and subsequent tortfeasor doctrine to this case. She claims that Morris' act of pushing her out of a bus during the repossession was the initial and sole injury, meaning there were no subsequent tortfeasors. Daniel contends that there was no aggravation of the injury in this case and that, even if there was, only doctors and other medical professionals could be subsequent tortfeasors. Associated Investigators and Morris respond that the initial and subsequent tortfeasor doctrine has been applied outside the context of doctors and medical professionals and quote from
A secured party may take possession of the collateral with or without judicial process if it can be done without a breach of the peace. § 679.609(2)(b), Fla. Stat. (2012). Creditors electing peaceful repossession over replevin are liable for any negligence during the repossession. See S. Indus. Sav. Bank v. Greene, 224 So.2d 416, 418 (Fla. 3d DCA 1969). A creditor's duty to repossess peacefully, imposed by section 679.609(2)(b), Florida Statutes, is a nondelegable duty, and a creditor cannot avoid liability for a tortious repossession by hiring an independent contractor to repossess the vehicle. See Sammons v. Broward Bank, 599 So.2d 1018, 1020 (Fla. 4th DCA 1992) (citing Nichols v. Metro. Bank, 435 N.W.2d 637, 640-41 (Minn.Ct.App.1989)); see also Nixon v. Halpin, 620 So.2d 796, 798 (Fla. 4th DCA 1993) (holding that the creditor's nondelegable duty to not breach the peace during a repossession extends to third parties injured during the repossession attempt (citing Sammons, 599 So.2d at 1020)).
Here, BankFirst, as the creditor, had a nondelegable duty
The problem with Associated Investigators' and Morris' argument is two-fold. First, although the pre-March 6, 2012 trespass to land was alleged in the facts section of the complaint, it was not alleged as an actual count. Second, the facts provided in the complaint do not allege a breach of the peace before March 6, 2012, as the repossession attempt apparently stopped when Appellant refused to consent to the entry. See Northside Motors of Fla., Inc. v. Brinkley, 282 So.2d 617, 625 (Fla.1973) (noting that the debtor was not required to permit repossession and could have forced the creditor to resort to judicial methods such as replevin (citing Greene v. First Nat'l Exch. Bank of Va., 348 F.Supp. 672 (W.D.Va.1972))); Quest v. Barnett Bank of Pensacola, 397 So.2d 1020, 1023 (Fla. 1st DCA 1981) ("The debtor's consent, freely given, legitimates any entry; conversely, the debtor's physical objection bars repossession even from a public street." (quoting James J. White & Roberts S. Summers, Handbook of the Law Under the Uniform Commercial Code 966-69 (1972))); Raffa v. Dania Bank, 321 So.2d 83, 85 (Fla. 4th DCA 1975) (finding that contractual language consenting to entry prevents a breach of the peace unless the entry is into the home or a closed structure or some other event occurs during the repossession that breaches the peace). Accordingly, in the
Additionally, the initial and subsequent tortfeasor doctrine could not apply solely based on the events occurring on March 6, 2012. The March 6, 2012 trespass exists because a breach of the peace was alleged. See Cote, 351 So.2d at 752. A subsequent physical injury caused by the alleged negligence in carrying out the repossession was also alleged. While it is true that the trespass on March 6, 2012, could have been aggravated by the subsequent alleged negligence, because BankFirst had a nondelegable duty and was directly liable for the breach of that duty by its independent contractor, Associated Investigators, and Associated Investigators' employee, Morris, there could not be a subsequent tortfeasor as no tortfeasor was liable only for the aggravated portion of the injury. See Sammons, 599 So.2d at 1020; Rucks, 541 So.2d at 675. Indeed, all three would be liable for the entire injury. Therefore, this case is distinguishable from cases applying the initial and subsequent tortfeasor doctrine because in those cases certain tortfeasors were liable only to the extent they aggravated the injury. See Francois, 76 So.3d at 365 n. 5; Caccavella, 814 So.2d at 1148; Rucks, 541 So.2d at 674.
As the initial and subsequent tortfeasor doctrine is not applicable to this case,
REVERSED AND REMANDED.
TORPY and WALLIS, JJ., concur.