02-1270 AMERICAN V. ABRAHAM

State: Florida

Court: Florida Third District Court

Docket No: 02-1270 AMERICAN V. ABRAHAM

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

AMERICAN HOME ASSURANCE CO., Appellants, vs.

** ** ** CASE NO. 3D02-1270

ABRAHAM CHEVROLET-MIAMI INC., ** ** Appellee. ** LOWER TRIBUNAL NO. 99-26671

Opinion filed November 27, 2002. An appeal from the Circuit Court for Dade County, Eleanor Schockett, Judge. Underwood, Karcher & Karcher and Michael R. Karcher, for appellant. Dearman & Gerson and Mark T. Kobelinski, for appellee. Before JORGENSON, COPE, GREEN, JJ.

PER CURIAM. American Home Assurance Company appeals a judgment in favor of defendant-appellee Abraham Chevrolet-Miami, Inc. after a bench trial. We conclude that on the evidence presented, the

trial court could reasonably conclude that the automobile had been stolen from Abraham's body shop, and that Abraham had used

due care in maintaining custody of the automobile.

See Value

Rent-A-Car, Inc. v. Collection Chevrolet, Inc., 570 So. 2d 1376 (Fla. 3d DCA 1990). American Home attempts to distinguish Value Rent-A-Car by pointing out that in the present case, the missing automobile was never recovered. American Home contends that absent

particularized proof of what happened to the missing car, the presumption that the bailee was negligent is not rebutted. disagree. The defending party may establish We

through

circumstantial evidence what, more probably than not, happened to the missing vehicle. Here, the trial court could reasonably conclude that, more probably than not, the missing vehicle had been stolen. The

present case is otherwise indistinguishable from Value Rent-ACar. Affirmed.

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