Philippe Calderon v. Sixt Rent A Car, LLC
Citation114 F.4th 1190
Date Filed2024-08-15
Docket22-13539
Cited14 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13539
____________________
PHILIPPE CALDERON,
ANCIZAR MARIN,
on behalf of themselves and all others
similarly situated,
PlaintiďŹs-Appellants,
KELLI BOREL RIEDMILLER,
Interested Party-Appellant,
AMIR CHARNIS,
PlaintiďŹ,
versus
SIXT RENT A CAR, LLC,
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2 Opinion of the Court 22-13539
Defendant-Appellee,
SIXT FRANCHISE USA, LLC,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-62408-AHS
____________________
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and MARCUS,
Circuit Judges.
MARCUS, Circuit Judge:
This putative class action comes before us following the en-
try of final summary judgment for the defendant, Sixt Rent a Car,
LLC (âSixtâ). Plaintiffs in three different states (Philippe Calderon
in Florida, Ancizar Marin in Arizona, and Kelli Borel 1 in Colorado)
each rented a vehicle from Sixt. After each plaintiff returned their
vehicle, Sixt sent each of them a series of collection letters and
1 Since the filing of this lawsuit, Borel got married and changed her
name to Kelli Borel Reidmiller. We adopt the convention of the parties and
refer to Borel Reidmiller solely as âBorel.â
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22-13539 Opinion of the Court 3
invoices seeking payment for damages to the vehicles that allegedly
occurred during each respective rental period.
Plaintiffs brought their claims against Sixt in the United
States District Court for the Southern District of Florida for com-
mon law breach of contract, alleging that the invoices were in vio-
lation of Sixtâs Terms & Conditions (the âT&Câ). Plaintiffs also
sued Sixt under the Florida Deceptive and Unfair Trade Practices
Act, Fla. Stat. §§ 501.201 et seq. (âFDUTPAâ).
The district court granted summary judgment for Sixt on all
claims. First, the district court found that the T&C were not part
of the Rental Agreement and, therefore, there could be no breach
of contract. Second, the district court concluded that no reasonable
jury could find that any of the Plaintiffs suffered actual âout-of-
pocketâ damages, and therefore determined that the Plaintiffs
could not prove that element of a FDUTPA claim. The district
court correctly determined that Plaintiffs suffered no actual dam-
ages. However, the district court erred as to the breach of contract
claims. Under the respective state laws of Florida, Arizona, and
Colorado, the T&C were properly incorporated into the rental
contracts by reference.
We therefore reverse the judgment of the district court in
part as to the breach of contract claims, aďŹrm in part on the
FDUTPA claims, and remand for further proceedings consistent
with this opinion.
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4 Opinion of the Court 22-13539
I.
A.
Calderon, Marin, and Borel are representatives of a putative
class action against Sixt, a German car rental company whose
North American headquarters and claims department are located
in Fort Lauderdale, Florida. In essence, Plaintiffs allege that âSixt
has organized a company-wide scheme to profit by systemically
charging unfair, deceptive, and unauthorized Estimated Repair
Costs and other sham fees not permitted by the Rental Agreementâ
signed by Sixtâs customers.
The Rental Agreement is comprised of two documents. The
first document is the Face Page, which provides the terms that are
specific to a customerâs rental, such as the vehicle being rented, the
daily rate, the number of days in the rental period, restrictions on
where the vehicle can be taken, and so forth. When printed, the
Face Page looks something like a large receipt, with the customerâs
signature at the bottom.
The second part of the Rental Agreement is the T&C. The
T&C contain all the commercial, legal, and financial terms that are
generally applicable to Sixt rentals. Most often, the T&C appear in
the form of an eight-page preprinted booklet called the âRental
Jacket.â The Rental Jacket is bright orange and bears the words
âReady to rent. Terms and Conditions Rental Jacketâ in large let-
ters on the front cover. Among other things, the T&C establish
that the customer is âresponsible for the safety of and damage to or
loss of the Vehicleâ during the rental period. The T&C specifically
state that the customer is âresponsible for the cost of repair, or the
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actual cash retail value of the Vehicle on the date of the loss if the
Vehicle is not repairable or if [Sixt] elect[s] not to repair the Vehi-
cle.â The customer is also responsible for âLoss of Use,â âDimin-
ished Value,â and any âadministrative expenses incurred pro-
cessing a claim.â
Although the customerâs signature appears at the bottom of
the Face Page, the customer does not sign the T&C. However, the
Face Page says above the signature line that:
By signing below, you agree to the Terms and Condi-
tions printed on the rental jacket and to the terms
found on this Face Page, which together constitute
this Agreement. You acknowledge that you have
been given an opportunity to read this Agreement be-
fore being asked to sign it, and that all information
you have provided is true and correct.
Similarly, the first page of the Rental Jacket states that the âAgree-
mentâ encompasses âthe Terms and Conditions on this page and
the provisions found on the Face Page.â
Typically, as the parties agree, the standard practice for rent-
ing a vehicle from Sixt involves a customer arriving at the rental
counter, where he is greeted by a Sixt agent. The agent asks for the
customerâs name, driverâs license, and reservation (if any), and en-
ters that information into Sixtâs computer system. The customer
then selects his vehicle options (if he has not already done so
through a reservation), the price is disclosed to the customer, and
the customer inserts a credit card into a credit card reader and
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6 Opinion of the Court 22-13539
confirms the amount. After the credit card information is pro-
cessed, the agent prints a paper copy of the Face Page. The agent
then places the Face Page and the Rental Jacket containing the
T&C on the counter for the customer to review. The customer
then signs his name on an electronic signature pad. The signature
pad is a black box that displays only a blank space where the cus-
tomer can put his signature; it does not display any text from the
Rental Agreement. When the customer signs the signature pad, he
is signing a digital copy of the Face Page stored on the Sixt com-
puter. After the customer signs, the agent hands the customer the
keys to the vehicle along with paper copies of the Face Page and
the Rental Jacket containing the T&C.
At all times relevant to this case, it has been Sixtâs practice to
have copies of the T&C Rental Jacket available for each customerâs
review at the rental kiosk, as well as to provide each customer with
a copy of the T&C Rental Jacket before he leaves the rental kiosk.
Additionally, the T&C were always available online on the Sixt
website, to be viewed or downloaded by customers at will.
B.
On March 23, 2016, Phillipe Calderon made an online reser-
vation through Sixtâs website for an April 1, 2016 car rental in Mi-
ami, Florida. In making the reservation online, Calderon selected
the dates (April 1 to April 4), rate of his rental ($124.59 in total), a
specific vehicle (a Mercedes-Benz passenger van), add-on insur-
ance, and specified a second driver for the vehicle (his daughter,
Sue Ellen Calderon). To book the rental, Calderon was also
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22-13539 Opinion of the Court 7
required to click a checkbox acknowledging and accepting the
T&C, which were presented to him on the website via a hyperlink.
However, the version of the T&C that Calderon agreed to on the
website in March 2016 was not the same as the version of the T&C
that was in circulation in April 2016.
Calderon testified in a deposition that, on the day of the
rental:
I walked up to [the rental agent] and I said, âIâm Mr.
Phil Calderon. I have a reservation.â She look[ed] it
up, and she said, âOh, yeah, itâs ďŹne. Iâm ready.â And
she told me sign. She asked me for my ID and my
credit card. I gave it to her; she look[ed] at it. She did
what she ha[d] to do, and then she [gave] it back to
me with all the papers, like, in a packet, and the keys
and she walk[ed] out with me to the car.
Calderon described the âpacketâ as a ânormal rental car packet that
they give you with all the papers.â Calderon stated that he
âguess[ed]â that there was a copy of the rental agreement inside the
packet, but he did not specifically recall. He testified that he re-
ceived the packet of paperwork after he had already signed the elec-
tronic signature pad, and that at no point did the agent show him
any documents or walk him through the terms of the Rental Agree-
ment before he signed. However, Sue Ellen Calderon, who accom-
panied him at the rental car pick up, testified that the rental agent
placed a packet containing the Rental Agreement on the counter in
front of them when she and her father walked in.
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8 Opinion of the Court 22-13539
After the rental was returned, Sixt billed Calderon in the
amount of $631.65 for damage to the rental car. In a letter, Sixt
explained that it was âclaim[ing] damage compensation from [Cal-
deron] as per the rental contract [he] agreed to.â Calderon never
paid any of the charges invoiced by Sixt, and Sixt later canceled its
claim against Calderon and deleted all charges from his account.
C.
In February 2019, Ancizar Marin used a third-party website
-- orbitz.com -- to reserve a Sixt rental car in Phoenix, Arizona. To
make the reservation, Marin selected his car type (a Mercedes-Benz
CLA or similar), the dates of the rental (March 5 to March 8), and
the rental rate ($241.64 total).
Marin picked up the vehicle on the day of the rental at a Sixt
kiosk. Marin testified in a deposition that he could not recall
whether there were any papers or brochures at the kiosk. Marin
said that the Sixt rental agent asked for his ID and credit card, pro-
cessed the reservation on a computer behind the counter, and then
asked him to sign an electronic black box. Marin testified that he
had âno ideaâ what he was signing and that it was ânever ex-
plained.â Marin also said that he did not think he was handed any
paperwork before he went to get the vehicle. Marin unequivocally
stated that he did not receive the Rental Jacket with the T&C at
any point during his rental.
Later that month, Marin was notified of damage to his vehi-
cle by email and was asked to fill out an online damage report. Sixt
then emailed Marin an invoice in the amount of $708.62 for repair
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22-13539 Opinion of the Court 9
costs, loss of use, and administrative fees, asserting Sixtâs âright to
claim damage compensation . . . as per the rental contract [Marin]
agreed to.â Ultimately, Marinâs insurer, Allstate, paid the repair
costs, and Marin paid the administrative and loss of use fees with
his business credit card.
D.
In May 2019, Kelli Borel used a third-party website -- hot-
wire.com -- to reserve a Sixt Rental Car in Denver, Colorado from
June 10 through June 14, 2019. Borel prepaid for her reservation
online through the website. After Borelâs booking through the
third-party website was complete, she was informed that the car
rental was from Sixt.
Borel picked up a car from Sixt at a site near the Denver Air-
port. Borel testified in a deposition that she could not specifically
remember the details of this reservation pick-up because she fre-
quently rented cars, but that typically she would hand the rental
agent her identification and credit card, and the rental agent would
pull up the reservation and confirm the details of any dates or in-
surance add-ons. Borel did not specifically recall signing anything,
but her signature appears at the bottom of the Face Page. Borel
didnât recall whether she was shown any paperwork prior to re-
ceiving her keys, but specifically stated that she did not see the or-
ange Rental Jacket until the agent handed the packet to her with
the car keys. Borel testified that she did not read through the pa-
perwork when it was handed to her.
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10 Opinion of the Court 22-13539
After she returned the rental, Borel received an email from
Sixt indicating that damage had been found on the returned vehi-
cle. Sixt later sent Borel an invoice for the damage in the amount
of $523.75. Ultimately, the invoice was paid by Borelâs employer.
E.
In September 2019, Calderon and Marin filed a putative class
action complaint against Sixt in the Southern District of Florida. In
March 2022, Calderon, Marin, and Borel filed the operative Second
Amended Complaint, alleging three causes of action. Count One
is a breach of contract claim essentially asserting that Sixt breached
the T&C by charging fees that were not authorized by the T&C or
were not calculated in a manner consistent with the T&C. Counts
Two and Three allege statutory claims arising under Floridaâs De-
ceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201, et seq.
Sixt moved for summary judgment on all claims. The dis-
trict court granted Sixtâs motion for summary judgment against all
three representative PlaintiďŹs prior to addressing any questions
concerning class certiďŹcation. This timely appeal followed.
II.
âWe review the district courtâs grant of summary judgment
de novo, viewing all evidence and drawing all reasonable factual in-
ferences in favor of the nonmoving party.â Strickland v. Norfolk S.
Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (citing Chapman v. AI
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)). âSummary
judgment is appropriate where there are no genuine issues of ma-
terial fact and the movant is entitled to judgment as a matter of
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22-13539 Opinion of the Court 11
law.â Id. âIt is not the courtâs role to weigh conflicting evidence
or to make credibility determinations; the non-movantâs evidence
is to be accepted for purposes of summary judgment.â Mize v. Jef-
ferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
â[T]his, however, does not mean that we are constrained to
accept all the nonmovantâs factual characterizations and legal argu-
ments.â Beal v. Paramount Pictures Corp., 20 F.3d 454, 458â59 (11th
Cir. 1994). â[T]he nonmoving party must oďŹer more than a mere
scintilla of evidence for its position; indeed, the nonmoving party
must make a showing suďŹcient to permit the jury to reasonably
ďŹnd on its behalf.â Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050
(11th Cir. 2015).
III.
A.
We begin with the Plaintiffsâ breach of contract claims. This
action is before our Court as a diversity-based class action arising
under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2)(A).
When sitting in diversity jurisdiction, we are, of course, Erie-bound
to apply the substantive law of the forum state -- including on con-
flict-of-laws issues. See, e.g., Pier 1 Cruise Experts v. Revelex Corp., 929
F.3d 1334, 1349 (11th Cir. 2019). Here, the forum state is Florida.
âWhen resolving conflict-of-laws issues in contract actions,
the Florida Supreme Court has unambiguouslyâ adopted the âtra-
ditional rule of lex loci contractus.â Fioretti v. Mass. Gen. Life Ins. Co.,
53 F.3d 1228, 1235(11th Cir. 1995) (citing Goodman v. Olsen,305 So. 2d 753, 755
(Fla. 1974)). âThe doctrine of lex loci contractus directs
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12 Opinion of the Court 22-13539
that, in the absence of a contractual provision specifying the gov-
erning law, a contract . . . is governed by the law of the state in
which the contract is made . . . .â Id. (footnote omitted). Calderon,
Marin, and Borel rented their vehicles in Florida, Arizona, and Col-
orado, respectively. All of the parties therefore agree that the
breach of contract claims for each of the Plaintiffs are evaluated un-
der the law of the state in which each Plaintiff rented his or her
vehicle -- again, Florida, Arizona, and Colorado, respectively.
The basic elements of a breach of contract claim are essen-
tially the same in all three states: â(1) a valid contract; (2) a material
breach; and (3) damages.â Friedman v. N.Y. Life Ins. Co., 985 So. 2d
56, 58 (Fla. 4th DCA 2008); see also Thomas v. Montelucia Villas, LLC,
302 P.3d 617, 621(Ariz. 2013) (same); W. Distrib. Co. v. Diodosio,841 P.2d 1053, 1058
(Colo. 1992) (including an additional element of
âperformance by the plaintiff or some justification for nonperfor-
manceâ).
It is only the first element -- whether there is a valid contract
-- that is at issue in this case. To create a legally binding agreement,
Florida, Arizona, and Colorado each require, among other things,
âsufficient specification of essential terms.â St. Joe Corp. v. McIver,
875 So. 2d 375, 381 (Fla. 2004); see also Savoca Masonry Co. v. Homes
& Son Const. Co., 542 P.2d 817, 819 (Ariz. 1975) (same); I.M.A., Inc.
v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986)
(same). Each state also requires that the parties mutually agree
upon those essential terms. David v. Richman, 568 So. 2d 922, 924
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22-13539 Opinion of the Court 13
(Fla. 1990); Hill-Shafer Pâship v. Chilson Fam. Tr., 799 P.2d 810, 814
(Ariz. 1990); I.M.A., Inc., 714 P.2d at 888 (Colorado).
Sixt argues that, because each of the Plaintiffs used the elec-
tronic signature pad to sign the Face Page without receiving a copy
of the T&C, âthe T&C provisions concerning the Fees were not
incorporated by reference into their agreements, [and] it follows
that Sixt cannot have breached those provisions and summary
judgment was properly granted in Sixtâs favor on Plaintiffsâ con-
tract claims.â
The sole question on the breach of contract claims, then, is
whether, even if we assume that none of the Plaintiffs received a
copy of the T&C before signing the Face Page, the T&C were nev-
ertheless incorporated by reference into the contract signed by
each of the Plaintiffs under the laws of their respective states. For
the reasons we explain in some detail, the T&C were incorporated
by reference into each contract under the law of each state, and,
therefore, the district court erred in granting summary judgment.
B.
Calderon rented his car in Florida. The district court found
-- and Sixt argues -- that â[t]he undisputed factual record reveals
there is no evidence Calderon received or was shown the Terms
and Conditions before signingâ and that âthere is no other record
evidence that could support the inference Calderon received the
Terms and Conditions.â Therefore, the district court held, Calde-
ron cannot have been put on notice of the T&C, and they were not
incorporated. We observe at the outset, however, that although
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14 Opinion of the Court 22-13539
Calderon did testify that he did not see the T&C Rental Jacket prior
to signing, this is a disputed fact because there are two important
pieces of evidence to the contrary.
First, Sue Ellen Calderon testified that when she and her fa-
ther arrived at the Sixt kiosk, the rental agent placed a packet con-
taining the Rental Agreement -- that is, the Face Page and the
Rental Jacket -- on the counter in front of them. Sue Ellen Calde-
ronâs testimony was that she and her father received the packet
containing the Rental Agreement before Calderon signed the sig-
nature pad.
Second, Sue Ellen Calderonâs testimony is consistent with
Sixtâs admitted standard practice. There is no dispute that Sixtâs
practice and custom is for the rental agent to enter the customerâs
information into Sixtâs computer system, disclose the price to the
customer, and then to print a paper copy of the Face Page and place
it along with the T&C Rental Jacket on the counter for the cus-
tomer to review. Only then does the customer sign his name on
the Face Page using the electronic signature pad.
At the summary judgment stage, the court must view all ev-
idence in the light most favorable to the non-moving party. See
Strickland, 692 F.3d at 1154. Here, Calderon is the non-moving
party, and -- in the face of Sue Ellen Calderonâs testimony and Sixtâs
own standard practice -- the district court clearly erred in finding
that âthere is no other record evidence that could support the in-
ference Calderon received the Terms and Conditions.â A reasona-
ble jury could find that Calderon was, in fact, handed a copy of the
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22-13539 Opinion of the Court 15
T&C before he signed. See LoanFlight Lending, LLC v. Bankrate, LLC,
378 So. 3d 1280, 1288 (Fla. 2d DCA 2024) (noting that factual ques-
tions about whether the parties entered into a contract at all are
âantecedentâ and must be determined by the factfinder).
But the question of whether Calderon received a copy of the
Rental Jacket including the T&C before signing the Rental Agree-
ment need not be sent to a jury. Even if it were beyond dispute
that Calderon had not seen the T&C before signing -- which it is
not -- Florida law is clear that he is bound by the T&C anyway be-
cause he signed the Face Page and the Face Page validly incorpo-
rates the T&C.
Under Florida law, âwhere a writing expressly refers to and
sufficiently describes another document, that other document, or
so much of it as is referred to, is to be interpreted as part of the
writing.â OBS Co. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla.
1990). Specifically, Florida law provides that:
To incorporate by reference a collateral document,
the incorporating document must (1) speciďŹcally pro-
vide âthat it is subject to the incorporated [collateral]
documentâ and (2) the collateral document to be in-
corporated must be âsuďŹciently described or referred
to in the incorporating agreementâ so that the intent
of the parties may be ascertained.
BGT Grp., Inc. v. Tradewinds Engine Servs., LLC, 62 So. 3d 1192, 1194
(Fla. 4th DCA 2011) (alteration in original) (quoting Kantner v. Bou-
tin, 624 So. 2d 779, 781 (Fla. 4th DCA 1993)); see also Hurwitz v.
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16 Opinion of the Court 22-13539
C.G.J. Corp., 168 So. 2d 84, 87 (Fla. 3d DCA 1964). The key issue
for incorporation in Florida, in other words, is whether âthe con-
tract and related documents evidence an intent to be boundâ to the
terms of the collateral document. Kaye v. Macari Bldg. & Design,
Inc., 967 So. 2d 1112, 1114 (Fla. 4th DCA 2007) (emphasis added).
In Florida, the question of whether a contract validly incorporates
another document is a question of law, and we consider it de novo.
Avatar Props., Inc. v. Greetham, 27 So. 3d 764, 766 (Fla. 2d DCA 2010).
Here, the first element of incorporation by reference is sat-
isfied. The Face Page signed by Calderon explicitly states that:
By signing below, you agree to the Terms and Condi-
tions printed on the rental jacket and to the terms
found on this Face Page, which together constitute
this Agreement. You acknowledge that you have
been given an opportunity to read this Agreement be-
fore being asked to sign it . . . .
Therefore, the Face Page specifically provides that it is subject to
the incorporated collateral T&C. See BGT Grp., Inc., 62 So. 3d at
1194.
The essential question, then, is whether the T&C were âsuf-
ficiently described or referred to in the incorporating agreementâ
so that we may ascertain the intent of the parties. Id. (quoting Kant-
ner, 624 So. 2d at 781). Here, the T&C were specifically described
as âthe Terms and Conditions printed on the rental jacket.â This is
a specific description that the T&C are physically printed on a sep-
arate document -- namely, the Rental Jacket, which is itself bright
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22-13539 Opinion of the Court 17
orange in color, and says âTerms and Conditions Rental Jacketâ in
large block letters on the cover. This is âmore than a âmere refer-
enceââ to the possible existence of a separate collateral document.
Kaye, 967 So. 2d at 1114. Although Calderon testified that he was
not given a copy of the T&C before he signed, there is no dispute
that a copy of the Rental Jacket was available for his review at the
counter (and, indeed, he was handed a copy of the Rental Jacket, at
the latest, moments after he signed). Furthermore, Calderon had
already been required to assent to the T&C, which had been pro-
vided to him via hyperlink when he made his booking on Sixt.com.
See Massage Envy Franchising, LLC v. Doe, 339 So. 3d 481, 485 (Fla.
5th DCA 2022) (holding that a hyperlink provided âsufficient notice
of [the] terms and conditionsâ). Although it is true that the T&C
that Calderon assented to online were out of date by the time he
picked up his car, Calderon was placed on notice that the T&C
were readily available online. Finally, the specific clause on the
Face Page requiring the signer to âacknowledge that you have been
given an opportunity to read this Agreementâ (which expressly in-
cludes both the Face Page and the T&C by the terms of the Face
Page itself) and that the signer âagree[s] to the Terms and Condi-
tionsâ together âunambiguously indicate the partiesâ intention to
be boundâ by both the Face Page and the T&C. Kaye, 967 So. 2d at
1114.
Sixt, nevertheless, relies upon Spicer v. Tenet Florida Physician
Services, LLC, 149 So. 3d 163 (Fla. 4th DCA 2014), to argue that be-
cause the Face Page did not explicitly tell Calderon where to find
the T&C, it was not sufficiently described. But Spicer is readily
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18 Opinion of the Court 22-13539
distinguishable from this case. In Spicer, the contract at issue stated
only that âany and all disputes regarding your employment with
[Tenet] . . . are subject to the Tenet Fair Treatment Process
[âFTPâ].â Id. at 164. But the location of the FTP was not only un-
disclosed to the employee, it was difficult to locate: the FTP was
not a document in and of itself, but rather was âa subpart of the
Open Door and Fair Treatment Policy, which was not mentioned
or described within the employment agreement.â Id. at 167.
In holding that the FTP was not incorporated for lack of
specificity, Floridaâs Fourth District Court of Appeal in Spicer drew
a comparison to Kaye v. Macari Building & Design, Inc., 967 So. 2d
1112 (Fla. 4th DCA 2007). In Kaye, the Fourth District Court of
Appeal reversed the circuit court and held that a nonâcontempora-
neously provided document -- âThe American Institute of Archi-
tects Documents No. A-201, April 1997 Editionâ -- had been incor-
porated into a contract. Id. at 1113. Unlike the FTP in Spicer, the
âcitation to a specific documentâ in Kaye gave more information
about the incorporated document than just a vague reference to it.
Spicer, 149 So. 3d at 167. The appellate court in Spicer further dis-
tinguished its holding from Kaye on the ground that the document
in Kaye was identifiable in and of itself, whereas the referenced col-
lateral document in Spicer was not even a document itself, but
merely a subpart of a third document not even mentioned in the
incorporating document. Id.
This case strikes us as more like Kaye than Spicer. The Face
Page describes the T&C as âprinted on the rental jacket,â the
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22-13539 Opinion of the Court 19
Rental Jacket was an easily identifiable standalone document, and
the Face Page required Calderon to affirm that he had been given
an opportunity to view the T&C before he agreed to it. Moreover,
Calderon had already been provided a copy of the T&C (albeit an
outdated one) online.
Sixt also says that this case is like the Florida Fourth District
Court of Appealâs decision in BGT Group, Inc. v. Tradewinds Engine
Services, LLC, 62 So. 3d 1192 (Fla. 4th DCA 2011). But this analog
is equally misplaced. In BGT Group, a sales quote included, under
a section labeled âremarks,â a note that the quote was âsubject to
the attached BGT terms and conditions.â Id. at 1193 (formatting
altered) (emphasis added). However, no terms or conditions were
in fact attached to the quote. Id. at 1194. The purchaser later tes-
tified that he did not request a copy of the terms and conditions
because âthe reference to it in the quote was to âsomething that
didnât exist.ââ Id. at 1193â94. The court in BGT Group held that the
terms and conditions were not incorporated because â[a] reasona-
ble view of this âcontractâ is that BGT, as the drafter of the docu-
ments, did not intend to incorporate any âterms and conditionsâ
where it did not provide a specific description of them or attach
them to the quote and purchase order.â Id. at 1195. In sharp con-
trast, the T&C in this case were provided to Calderon beforehand
via hyperlink on the website, they were not described as âattachedâ
when no document was in fact attached, but rather described as
âprinted on the rental jacket,â and there is no reasonable doubt that
Sixt intended to incorporate the terms and conditions. Id.
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20 Opinion of the Court 22-13539
Finally, at oral argument, Sixt asserted for the first time that
Calderon could not have assented to incorporation terms on the
Face Page because he never saw a copy of the Face Page prior to
signing the electronic signature pad. For one thing, Sixtâs argu-
ment on this count has been abandoned. See Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 680â83 (11th Cir. 2014). âAny issue
that an appellant wants [us] to address should be specifically and
clearly identified in the brief.â Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004). âIf an argument is not fully
briefed . . . to the Circuit Court, evaluating its merits would be im-
proper both because the appellants may control the issues they
raise on appeal, and because the appellee would have no oppor-
tunity to respond to it.â Id. Arguments raised for the first time at
oral argument plainly âcome too late.â Sapuppo, 739 F.3d at 683.
Furthermore, we think the argument fails on the merits an-
yway. âIt has long been held in Florida that one is bound by his
contract.â Allied Van Lines, Inc. v. Bratton, 351 So. 2d 344, 347 (Fla.
1977). As the Supreme Court of Florida has explained:
Unless one can show facts and circumstances to
demonstrate that he was prevented from reading the
contract, or that he was induced by statements of the
other party to refrain from reading the contract, it is
binding. No party to a written contract in this state
can defend against its enforcement on the sole ground
that he signed it without reading it.
Id. at 347â48. This rule holds true regardless of whether a party
simply chooses not to read the agreement or is even physically
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22-13539 Opinion of the Court 21
incapable of reading the agreement. Rocky Creek Ret. Props., Inc. v.
Est. of Fox ex rel. Bank of Am., N.A., 19 So. 3d 1105, 1108 (Fla. 2d DCA
2009); see also Estate of Etting ex rel. Etting v. Regents Park at Aventura,
Inc., 891 So. 2d 558, 558 (Fla. 3d DCA 2004) (per curiam) (holding
that blind decedent was bound by signed contract in the absence of
evidence that she was coerced into signing it or affirmatively pre-
vented from knowing its contents); Merrill, Lynch, Pierce, Fenner &
Smith, Inc. v. Benton, 467 So. 2d 311, 312â13 (Fla. 5th DCA 1985)
(holding that plaintiff was bound by signed contract despite her in-
ability to read English).
Here, Calderon signed the Face Page using the electronic
signature pad, and under the facts and circumstances of this case he
is bound under Florida law by the terms of the Face Page -- includ-
ing those terms incorporating the T&C -- even if he did not in fact
see the Face Page before he signed. Calderon reserved the car
online, knew the exact dates, the vehicle type, and the exact price,
and when he approached the kiosk he was asked to sign on the line
before he paid. If there was any ambiguity about what he was sign-
ing or what the ramifications of signing were, under Florida law,
Calderon had the duty to inquire before he signed. Rocky Creek Ret.
Props., 19 So. 3d at 1109 (ââA party has a duty to learn and know the
contents of an agreement before signing it,â and â[a]ny inquiries . . .
concerning the ramifications of [the contract] should have been
made before signing.ââ (alterations in original) (quoting Onderko v.
Advanced Auto Ins., Inc., 477 So. 2d 1026, 1028 (Fla. 2d DCA 1985));
see also Benton, 467 So. 2d at 313 (â[F]ailure to obtain a reading and
explanation of [a contract] is such gross negligence as will estop
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22 Opinion of the Court 22-13539
[the signer] from avoiding it on the ground that he was ignorant of
its contents.â (citation omitted)). The only way Sixt could argue
that Calderonâs signature on the Face Page was not binding under
Florida law would be if Sixt alleged that its own agent coerced Cal-
deron to sign or affirmatively prevented him from knowing what
he was signing. See Rocky Creek Ret. Props., 19 So. 3d at 1108; Etting,
891 So. 2d at 558â59. Sixt wisely makes no such argument.
The T&C were incorporated into Calderonâs rental agree-
ment. The district court erred in granting summary judgment on
Calderonâs breach of contract claims.
C.
Marinâs vehicle was rented in Arizona. Arizonaâs courts in-
struct us that the â[i]nterpretation of a contract presents a question
of law.â Weatherguard Roofing Co. v. D.R. Ward Const. Co., 152 P.3d
1227, 1229 n.4 (Ariz. Ct. App. 2007). We therefore consider
whether the T&C were incorporated by reference into Marinâs
contract de novo. Id.
Under Arizona law, a document may be incorporated by ref-
erence into a contract if: (1) the reference is âclear and unequivo-
cal,â (2) the reference is âcalled to the attention of the other party,â
(3) the other party âconsent[s] thereto,â and (4) âthe terms of the
incorporated document must be known or easily available to the
contracting parties.â United Cal. Bank v. Prudential Ins. Co. of Am.,
681 P.2d 390, 420 (Ariz. Ct. App. 1983) (emphasis omitted) (citation
omitted). Physical attachment of an incorporated document âis
not necessary if the document to be incorporated is clearly and
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22-13539 Opinion of the Court 23
unambiguously incorporated by reference.â Id.; see also Weather-
guard Roofing, 152 P.3d at 1230. Moreover, where a party âgave its
consent to the incorporation of [a collateral document] into the
contract by reference,â that party âis presumed to know its full pur-
port and meaning, even though as a fact it did not.â Indust. Commân
v. Ariz. Power Co., 295 P. 305, 307 (Ariz. 1931).
The Arizona standard for incorporating a document is a gen-
erous one. In Weatherguard Roofing Co. v. D.R. Ward Construction
Co., 152 P.3d 1227 (Ariz. Ct. App. 2007), for example, the subcon-
tract at issue contained a single clause which stated that â[t]he at-
tached General Conditions are part of the subcontract.â Id. at 1229.
However, the authoring party of the subcontract failed to attach a
copy of the General Conditions to the subcontract. Id. at 1230.
Nevertheless, the Court of Appeals of Arizona, Division One, held
that âwhether the general conditions were attached to the subcon-
tract is irrelevantâ because the clause in the subcontract meant that
the signing party âwas on notice of the general conditions, and their
incorporation into the subcontract.â Id.
The incorporation of the T&C in this case easily meets this
standard. First, the Face Page explicitly states that the T&C and
the Face Page âtogether constitute th[e] Agreement.â Thus, the
incorporation of the T&C into the agreement is âclear and une-
quivocal.â United Cal. Bank, 681 P.2d at 420. Second, the Face Page
expressly required the signer to consent to the T&C in two sepa-
rate clauses, and required the signer to acknowledge that he has
âbeen given an opportunity to read th[e] Agreement,â including
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24 Opinion of the Court 22-13539
the T&C. The reference was called to Marinâs attention within the
Face Page and, by signing the Face Page, Marin expressly con-
sented to the incorporation of the T&C. See id. Finally, as the par-
ties agree, the T&C were at all times available online and it was
Sixtâs practice to have copies of the T&C at every rental kiosk avail-
able for the customerâs review. Therefore, we find that the incor-
porated T&C were âeasily available to the contracting parties.â Id.
Sixt concedes that â[h]ad Marin been shown the Face Page
or signed a paper copy of the Face Page that referenced the T&C,
he arguably would have been on notice of the T&C and thus bound
by its terms.â However, Marin testified in a deposition that he was
not shown a copy of the Face Page before he signed the electronic
signature pad. Sixt argues that, because Marin did not read the Face
Page itself, the fact that it referenced the T&C was never âcalled to
Marinâs attentionâ and therefore the Face Page could not have in-
corporated the T&C. Sixtâs argument fails for two reasons.
First, the sole case cited by Sixt to support the proposition
that an incorporated document must be called to the signerâs atten-
tion outside of the signed contract itself is an unpublished District
of Arizona case, Cottonwood Centers Inc. v. Klearman, No. CIV 18-
252-TUC-CKJ, 2018 WL 5084657(D. Ariz. Oct. 18, 2018). Seeid. at *6
(holding that terms and conditions emailed to contracting party
along with contract that was eventually signed, and referenced as
incorporated into the contract, were not incorporated because the
body of the email itself did not call the terms and conditions to the
attention of the contracting party). Cottonwood Centers, although
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22-13539 Opinion of the Court 25
ostensibly applying Arizona law, relied primarily on a Ninth Circuit
case which applied California state law. See id. at *5 (discussing
Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014)). And,
on our read, Cottonwood Centers is directly in conflict with Weather-
guard Roofing, where the Court of Appeals of Arizona, Division
One, held that the simple statement in the contract that â[t]he at-
tached General Conditions are part of the subcontractâ was alone
enough to incorporate the General Conditions by reference even
when they were not, in fact, attached. Weatherguard Roofing, 152
P.3d at 1229â30. We are Erie-bound to follow Weatherguard Roof-
ing. See Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008,
1025 (11th Cir. 2014) (âFederal courts sitting in diversity are bound
to adhere to decisions of [Arizonaâs] intermediate appellate courts,
absent some persuasive indication that the stateâs highest court
would decide the issue otherwise.â (internal quotation marks and
citation omitted)).
Second, Sixtâs argument that Marin would have been on no-
tice of the T&C but for the fact that he did not read the Face Page
he was signing (or ask to read what he was signing with the elec-
tronic signature pad), runs afoul of a long-established rule in Ari-
zona law that âone who signs a written document is bound to
know and assent to its provisions in the absence of fraud, misrep-
resentation, or other wrongful acts by the other party.â Teran v.
Citicorp Pers.-to-Pers. Fin. Ctr., 706 P.2d 382, 384 (Ariz. Ct. App.
1985). Here, there is no dispute that Marinâs signature appears on
the bottom of the Face Page. And absent any evidence of fraud --
which, not surprisingly, Sixt does not allege -- the fact that Marin
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26 Opinion of the Court 22-13539
did not look at the Face Page or understand what he was signing is
ânot material unless [Sixt] undertook the responsibility to explain
the documents to [Marin] and, either intentionally or negligently,
failed to adequately perform that undertaking.â Id. at 384â85.
There is no suggestion that Sixtâs employees undertook an attempt
to explain the document to Marin and misled him, negligently or
otherwise. To the contrary, Marin affirmatively denied that any
explanation was given for what he was signing at all. Where Marin
was simply asked to sign the electronic signature pad, and he did so
without knowing what he was signing or the legal significance of
it, he is not absolved of his failure to make a bare inquiry as to what
he was signing and binding himself to. See id.; cf. Condos v. United
Benefit Life Ins. Co. of Omaha, 379 P.2d 129, 131 (Ariz. 1963) (âIt is
generally held that, when a person is unable to read a document
which he signs, it is his duty to have the same read to him, if there
is a person available who can read it, and that, if he neglects to have
this done, he may not thereafter be heard to say that he did not
assent to its provisions.â (quoting Sovereign Camp of the Woodmen of
the World v. Daniel, 62 P.2d 1144, 1148 (Ariz. 1936))).
Marin was bound to the terms of the Face Page which
clearly and unequivocally incorporated the T&C, unambiguously
alerted Marin to the T&Câs incorporation, and to which he con-
sented by signing. Again, the T&C were readily available for his
review. No more was required under Arizona law. The district
court erred in granting summary judgment to Sixt on Marinâs
breach of contract claims.
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22-13539 Opinion of the Court 27
D.
Borel rented her car in Colorado. In Colorado, â[t]he inter-
pretation of a contract is a question of lawâ to be reviewed de novo.
Fed. Deposit Ins. Corp. v. Fisher, 292 P.3d 934, 937 (Colo. 2013).
âWhether contract terms have been incorporated by reference into
a contract is also a question of law subject to de novo review.â
French v. Centura Health Corp., 509 P.3d 443, 449 (Colo. 2022). Un-
der Colorado law, a collateral document may be incorporated only
if it is âclear that the parties to the agreement had knowledge of
and assented to the incorporated terms.â Id. (citation omitted).
âAccordingly, for contract terms outside the four corners of a con-
tract to be incorporated by reference into the contract, the terms
to be incorporated generally must be clearly and expressly identi-
fied.â Id. âGeneral or oblique references to a document to be in-
corporated, in contrast, are usually insufficient to support a finding
that the document was incorporated by reference.â Id. at 450.
In French v. Centura Health Corp., 509 P.3d 443 (Colo. 2022),
the Supreme Court of Colorado collected a number of cases from
other jurisdictions it found persuasive. See id. at 449â50. Among
the fact patterns the French court listed as acceptable examples of
incorporation by reference were a case where âexpress references
in an employment contract to a universityâs governance document
were sufficient to incorporate the governance document by refer-
ence,â id.at 449â50 (citing Britt v. Univ. of Louisville,628 S.W.3d 1
,
7â8 (Ky. 2021)), and a case where ââStandard Terms and Condi-
tionsâ were incorporated by referenceâ because they âwere refer-
enced expressly, by name and in boldface type,â id. at 450 (citing
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28 Opinion of the Court 22-13539
RTS Shearing, LLC v. BNI Coal, Ltd., 965 N.W.2d 40, 46 (N.D. 2021)).
By contrast, cases cited by the French court where the documents
were not incorporated included those where âa mere reference to
[an] amendment, without more, was insufficient to incorporate its
substance,â id.(citing Town of Cheswold v. Cent. Del. Bus. Park,188 A.3d 810
, 818â19 (Del. 2018)), or where âa reference in a contract
to the sellerâs âTerms of Saleâ was insufficient to incorporate the
terms of sale contained on the sellerâs website because merely plac-
ing quotation marks around the phrase âTerms of Sale,â without
more, was insufficient to convey to the buyers that the seller was
referring to anything other than the sales terms expressly enumer-
ated within the four corners of the partiesâ contract,â id. (citing
Walker v. BuildDirect.Com Techs., Inc., 349 P.3d 549, 554 (Okla.
2015)).
The case before us is more similar to the former category of
cases than the latter. The Face Page did not just make a â[g]eneral
or oblique reference[] to a document to be incorporated,â id., but
expressly named the T&C printed on the Rental Jacket, and re-
quired the signer to assent to their incorporation and acknowledge
that she had been given the opportunity to read them. There was
no ambiguity in the Face Page that the T&C were a separate doc-
ument.
Sixt argues anyway that Frenchâs requirement that the parties
âhad knowledge of and assented to the incorporated termsâ means
that the parties must have actual knowledge or be directly told how
to access the T&C. Sixt says that because Borel did not receive the
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22-13539 Opinion of the Court 29
Rental Jacket until after she signed the contract, she could not have
had knowledge of the terms. But the list of cases provided by
French explaining the âknowledge ofâ requirement does not sup-
port this conclusion. See id. at 449â50 (citing Britt, 628 S.W.3d at 7â
8 (holding that an employment contract stating that the terms of
employment include all rules promulgated in a âgovernance docu-
ment known as The Redbookâ was sufficient to incorporate the gov-
ernance document by reference)).
Sixt also relies on Frenchâs citation to State ex rel. U-Haul Co.
of West Virginia v. Zakaib, 752 S.E.2d 586 (W. Va. 2013). In French,
the Supreme Court of Colorado described Zakaib as âconcluding
that a brief mention of an addendum in preprinted and electronic
rental contracts was insufficient to incorporate the addendum by
reference when renters were not given copies of the addendum
prior to signing the rental contracts,â and emphasized Zakaibâs con-
clusion that â[a]n oblique reference to a separate, non-contempo-
raneous document is insufficient to incorporate the document into
the partiesâ final contract.â French, 509 P.3d at 450 (citing Zakaib,
752 S.E.2d at 595, 598).
But Frenchâs reliance on Zakaib is distinguishable. French
cited Zakaib to illustrate the type of reference that is too â[g]eneral
or obliqueâ to incorporate additional terms, as opposed to refer-
ences that âclearly and expressly identif[y]â such terms. See id. at
449â50. The references in Zakaib were too oblique for three rea-
sons. First, the rental addendum in Zakaib was referenced only
âsuccinctlyâ and âwith no detail provided to ensure that U-Haulâs
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30 Opinion of the Court 22-13539
customers were aware of the Addendum and its terms.â Zakaib,
752 S.E.2d at 591, 598. Second, the addendum itself was difficult to
identify, because it was âdesigned to look more like a document
folder advertising U-Haul products, services, and drop-off proce-
dures, rather than a legally binding contractual agreement.â Id. Fi-
nally, and âmost troublingâ to the Zakaib court, customers had no
way of accessing the addendum prior to signing because it was U-
Haulâs policy âto provide customers a copy of the Addendum only
after the Rental Agreement had been executed.â Id.
By contrast, as we have repeatedly emphasized, the T&C in
this case were specifically named, clearly distinguished in the Face
Page from the Face Page itself, and the fact that the T&C were
found in the Rental Jacket was apparent from both the text of the
Face Page and cover of the Rental Jacket itself. The T&C were also
available online and Sixtâs policy was to have copies available for
customer review. And, far from U-Haulâs policy of never showing
the customer the addendum, Borel was expressly required to
acknowledge that she had the opportunity to review the T&C be-
fore signing.
Finally, Sixt asserts that Borel could not have assented to any
incorporation clauses in the Face Page because she did not read the
Face Page before signing the electronic pad. Like with Calderon,
Sixt failed to raise this argument prior to oral argument and so
these âarguments come too late.â Sapuppo, 739 F.3d at 683. We do
not address arguments that have been abandoned. Id. at 680.
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22-13539 Opinion of the Court 31
Moreover, it is not clear from the record that it is necessarily
true that Borel did not read the Face Page. In her deposition, Borel
only said that she did not physically touch the printed Face Page until
after she signed, but could not specifically remember one way or
another whether she saw the Face Page prior to signing. And, as
we have already observed, Sixtâs professed standard practice was to
present a copy of the Face Page to the customer prior to requesting
any signature. Assuming arguendo that Borel did not read the Face
Page, however, even if this argument had not been abandoned it
would still fare no better under Colorado law than it did under
Florida law. Under Colorado law, âin the absence of fraud,â a party
who signs a contract âis presumed to know its contentsâ and is
bound by all conditions within the contract even if the party did
not in fact read the contract. B & B Livery, Inc. v. Riehl, 960 P.2d
134, 138 n.5 (Colo. 1998) (citing Cordillera Corp. v. Heard,592 P.2d 12
(Colo. App. 1978), affâd,612 P.2d 92
(Colo. 1980)). Colorado
courts have found this rule even more applicable where -- as here --
the signer testifies that she has signed similar contracts in the past
and is familiar with the process. Id. Borel testified that she did not
remember the specifics of the rental process at issue in this case
because she had ârented so oftenâ over so many years.
Moreover, Colorado law is clear that where a signatory to a
contract âdoes not have actual notice of certain contract terms, [she
is] nevertheless bound by such terms if [she is] on inquiry notice of
them and assent[s] to them through conduct that a reasonable per-
son would understand to constitute assent.â Macasero v. ENT Credit
Union, 533 P.3d 982, 990 (Colo. App. 2023) (quoting Starke v.
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32 Opinion of the Court 22-13539
SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019)). Borel reserved
her rental car ahead of time, prepaid for the reservation, arrived on
the designated day to pick up the rental car, and signed the Face
Page by using the electronic signature pad. Again, Sixt does not
allege that it induced Borel to sign through fraud, and there is no
evidence of fraud in this record. Thus, even if Borel did not see the
Face Page itself before she signed, under Colorado law she was on
âinquiry noticeâ as to the Face Pageâs terms, including those incor-
porating the T&C. See id.
The T&C were incorporated into Borelâs Rental Agreement.
The district court erred in granting summary judgment to Sixt as
to Borelâs breach of contract claims.
IV.
Finally, we address the Plaintiffsâ statutory claims under
FDUTPA. FDUTPA provides that â[i]n any action brought by a
person who has suffered a loss as a result of a violation of [the stat-
ute], such person may recover actual damages, plus attorneyâs fees
and court costs.â Fla. Stat. § 501.211(2). âThus a consumer claim
for damages under FDUTPA has three elements: (1) a deceptive act
or unfair practice; (2) causation; and (3) actual damages.â Rollins,
Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006) (collecting
cases).
âThe standard for determining the actual damages recov-
ered under FDUTPA is well-defined in the case law.â Id. â[T]he
measure of actual damages is the difference in the market value of
the product or service in the condition in which it was delivered
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22-13539 Opinion of the Court 33
and its market value in the condition in which it should have been
delivered according to the contract of the parties.â Rollins, Inc. v.
Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984) (quoting Raye v. Fred
Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex. App. 1983)).
âFDUTPA does not provide for the recovery of nominal damages,
speculative losses, or compensation for subjective feelings of disap-
pointment.â Butland, 951 So. 2d at 873. In other words, a FDUTPA
claim necessarily fails unless the plaintiff suffered âout-of-pocket
damages.â Himes v. Brown & Co. Secs. Corp., 518 So. 2d 937, 938
(Fla. 3d DCA 1987).
The district court held that none of the Plaintiffs can show
actual damages because none of them paid Sixtâs invoices out of
their own pockets: Calderon refused to pay his invoice and the
charges were dropped by Sixt; Marinâs invoice was split between
his insurer and his employer; and Borelâs invoice was paid wholly
by her employer.2
For the reasons described below, even viewing the evidence
in the light most favorable to the Plaintiffs, none of the Plaintiffs
2 As a preliminary matter, Sixt argues that â[b]ecause Plaintiffs did not
argue to the district court that they could prove actual damages,â but only that
they had standing, âtheir attempts to do so on appeal should be waived.â But
the district courtâs order granting summary judgment clearly addresses the is-
sue of whether the Plaintiffs could prove actual damages on the merits.
âThere can be no forfeiture where the district court nevertheless addressed
the merits of the issue.â Hi-Tech Pharms., Inc. v. HBS Intâl Corp., 910 F.3d 1186,
1194 (11th Cir. 2018) (alteration adopted) (quotation marks omitted) (quoting
United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011)).
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34 Opinion of the Court 22-13539
suffered any actual out-of-pocket damages. We affirm the district
courtâs grant of summary judgment for Sixt as to each of the
FDUTPA claims.
A.
In the first place, Calderon did not suffer any out-of-pocket
damages as required to sustain a FDUTPA claim. Calderon never
paid any of the charges invoiced by Sixt and, on January 25, 2018,
Sixt canceled its claim against Calderon and deleted all charges
from his account. Therefore, he has not suffered actual damages
and his FDUTPA claim necessarily fails. See Butland, 951 So. 2d at
873.
Calderonâs sole argument on appeal is that, if the T&C were
not incorporated by reference into the Face Page, then he suffered
actual damages as a result of his $27 payment to Sixt for the âPartial
Damage Waiver,â a product that only has a use if he is liable for
damages to the car under the T&C. However, as we have already
explained, the T&C were incorporated by reference into the Face
Page agreement. Calderon concedes that if we reverse the district
courtâs order on the breach of contract claims and hold that the
T&C were incorporated -- as we have -- his damage theory does
not apply.
Therefore, as he acknowledges, no reasonable jury could
find that Calderon suffered any actual damages for the purposes of
a FDUTPA claim. The district court did not err in granting sum-
mary judgment on Calderonâs FDUTPA claims.
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22-13539 Opinion of the Court 35
B.
Marin and Borel similarly cannot show that they have suf-
fered any actual damages because neither of them paid the invoice
sent to them by Sixt out of their own pocket. Marinâs insurer, All-
state, paid the amounts associated with his repair costs, and Marin
expensed the remaining balance to his business, which is a separate
legal entity. Borelâs entire balance was paid by her employer.
Marin and Borel argue that they are nevertheless entitled to
recover damages for which they were personally liable but which
were ultimately paid for by a third party under the âcollateral
source rule.â3 This argument is a novel one that has never been
addressed by a Florida court. However, we can say with confi-
dence that the argument is not persuasive because the Plaintiffs
misunderstand the collateral source rule.
The purpose of the collateral source rule is to preserve a
plaintiffâs right to recover the value of damages from a tortfeasor
without offset for any amounts received in compensation for the
injury from a third party. Higgs v. Costa Crociere S.P.A. Co., 969 F.3d
3 Sixt urges that Marin and Borel have waived their collateral source ar-
gument by not raising it during summary judgment briefing. However, it ap-
pears that they did raise the issue in the context of standing -- and the district
court acknowledged it -- they simply did not make the argument with the
same level of depth during summary judgment as they do now, nor did they
use the phrase âcollateral sourceâ rule. To the extent that Marin and Borel
failed to address actual damages as opposed to standing, that issue was not
waived because it was addressed on the merits by the district court. See supra
note 2.
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36 Opinion of the Court 22-13539
1295, 1310 (11th Cir. 2020); see also Janes v. Baptist Hosp. of Miami,
Inc., 349 So. 2d 672, 673 (Fla. 3d DCA 1977) (per curiam). In other
words, the collateral source rule concerns not the elements of lia-
bility, but the determination of damages owed. See Janes, 349 So.
2d at 673. The rule prevents a wrongdoer from benefiting from the
injured partyâs insurance policy by using insurance monies to offset
the damage he owes. Id. The cases cited by Marin and Borel are
consistent with this. What the collateral source rule does not do is
allow a third-party payment to satisfy the statutory element of ac-
tual damages. This is because in a situation where the plaintiff was
not reimbursed, but in fact never paid any money out-of-pocket at
all, the plaintiff never suffered any actual damages.
Although the collateral source rule has never been discussed
in the context of FDUTPA specifically, it has been rejected as a the-
ory of satisfying the actual damages element in Californiaâs similar
statute, the Unfair Competition Law (the âUCLâ). Like FDUTPA,
the UCL provides a cause of action for a private plaintiff âwho has
suffered injury in fact and has lost money or property as a result of
[] unfair competition.â Cal. Bus. & Prof. Code § 17204. Thus, a
private plaintiff making a claim under the UCL âmust make a two-
fold showing: he or she must demonstrate injury in fact and a loss
of money or property caused by unfair competition.â Peterson v.
Cellco Pâship, 80 Cal. Rptr. 3d 316, 321 (Cal. Ct. App. 2008). Compare
id.,with Butland,951 So. 2d at 869
(â[A] consumer claim for dam-
ages under FDUTPA has three elements: (1) a deceptive act or un-
fair practice; (2) causation; and (3) actual damages.â). Federal dis-
trict courts have repeatedly rejected the application of the collateral
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22-13539 Opinion of the Court 37
source rule as a method of fulfilling the UCLâs âinjury in factâ re-
quirement. See, e.g., Lucas v. Breg, Inc., 212 F. Supp. 3d 950, 965 n.9
(S.D. Cal. 2016) (denying restitution under the UCL because insur-
ance monies used to purchase a product on plaintiffsâ behalf cannot
be âa standalone source of economic loss -- i.e., injuryâ); In re Tra-
sylol Prods. Liab. Litig., No. 08-MD-01928, 2010 WL 6098571, at *14â
15 (S.D. Fla. Mar. 16, 2010) (applying California law and finding
that plaintiffs âfail[ed] to come forward with evidence of financial
loss, an essential element for standing under the UCL,â because the
product was paid for by the insurance company and the collateral
source rule was inapplicable).
More generally, courts have found that the collateral source
doctrine cannot be used to satisfy a requirement of showing injury-
in-fact for standing purposes. See, e.g., QST Envât, Inc. v. Natâl Union
Fire Ins. Co. of Pittsburgh, No. CIV.98-572-M, 2002 WL 1072310, at
*2 n.2 (D.N.H. May 28, 2002) (âThe collateral source rule . . . ap-
plies only to preserve an award of damages and does not affect a
partyâs standing to litigate a claim.â); Williamson v. Genentech, Inc.,
No. 19-cv-01840-JSC, 2020 WL 1281532, at *6 (N.D. Cal. Mar. 18,
2020) (âIt is thus unsurprising that no court has used the collateral
source rule to find Article III standing. This Court is not persuaded
that it should be the first.â). Again, this is because the collateral
source rule only applies at the calculation of damages stage -- not
the pleading of an injury-in-fact.
Moreover, our conclusion that Marin and Borel have not
suffered any actual damages is consistent with at least three Florida
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38 Opinion of the Court 22-13539
District Courts of Appeal that have categorically held that a plaintiff
need not be a consumer in order to bring a FDUTPA claim -- show-
ing that what matters for a FDUPA claim is who made the pay-
ment. Allstate Ins. Co. v. Auto Glass Am., LLC, 418 F. Supp. 3d 1009,
1018 (M.D. Fla. 2019); see Bailey v. St. Louis, 196 So. 3d 375, 382 (Fla.
2d DCA 2016); Off Lease Only, Inc. v. LeJeune Auto Wholesale, Inc.,
187 So. 3d 868, 869 n.2 (Fla. 3d DCA 2016); Caribbean Cruise Line,
Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So. 3d 164, 169
(Fla. 4th DCA 2015). This makes sense: when third parties -- such
as insurers or employers -- make the payment for a consumer, it is
only the third party that has suffered the damages. For example,
somewhat analogous to this action, in a case where a business
fraudulently replaced damaged windshields and then charged the
consumersâ insurance companies, it was the insurers, not the con-
sumers themselves, who suffered the injury-in-fact and had stand-
ing to bring FDUTPA claims against the business. Allstate Ins. Co.,
418 F. Supp. 3d at 1018â19. After all, the âgeneral rule in federal
court is that if an insurer has paid the entire claim of its insured, the
insurer is the real party in interest . . . and must sue in its own
name.â Krueger v. Cartwright, 996 F.2d 928, 931 (7th Cir. 1993) (cit-
ing United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 380â81
(1949)).
In short, Marin and Borel cannot show actual out-of-pocket
damages as required by FDUTPA because they never paid any-
thing to Sixt. And the district court did not err in holding that, even
viewing the record in the light most favorable to their claims, a rea-
sonable jury could not find that Marin or Borel suffered actual
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22-13539 Opinion of the Court 39
damages as required by FDUTPA. Summary judgment on these
claims was appropriate.
V.
For the foregoing reasons, the judgment of the district court
is affirmed in part as to the FDUTPA claims and reversed in part as
to the breach of contract claims. We remand for further proceed-
ings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.