Sunbank and Trust Co. of Brooksville v. Transcontinental Ins. Co., 95-652
Decision Date | 22 December 1995 |
Docket Number | No. 95-652,95-652 |
Citation | 666 So.2d 198 |
Parties | 21 Fla. L. Weekly D23, 28 UCC Rep.Serv.2d 918 SUNBANK AND TRUST COMPANY OF BROOKSVILLE, Florida, Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, etc., Appellee. |
Court | Florida District Court of Appeals |
Charlie Luckie, Jr. of McGee, Luckie & Dayton, P.A., Brooksville, for Appellant.
Eddy R. Resnick of Gold & Resnick, P.A., and Larry M. Segall, Tampa, for Appellee.
This is an appeal from a judgment in a commercial banking case. Appellant was a clearing bank for a Tennessee construction company which was working on a Brooksville hospital. The local providers of services and supplies to the construction company would cash or deposit checks of the company, written on the company's Tennessee bank account, in appellant bank. The checks were then sent by usual banking channels to the Tennessee bank for payment back to the clearing bank, appellant.
An employee of the construction company caused false and forged checks to be written to nonexistent employees of the construction company and then deposited in appellant bank to the credit of the embezzling employee. Appellee is the subrogated insurer of the construction company which was cheated by its employee. Appellee sued appellant to recover the money stolen from the construction company by the employee alleging that it was liable for conversion under section 673.419(1)(c), Florida Statutes (1989), was guilty of "bad faith in handling items" and was guilty of negligence in its handling of the checks.
The problem in the case is the jury verdict has two fatally inconsistent interrogatories:
2. Was there negligence on the part of Defendant, Sunbank and Trust Company of Brooksville, which was a legal cause of the damage sustained by the Plaintiff, Transcontinental Insurance Company, as Subrogee of Rock City Mechanical, Inc.?
_____ _____
6. State the percentage of any negligence, which was a legal cause of damage sustained by the Plaintiff, Transcontinental Insurance Company, as Subrogee of Rock City Mechanical, Inc., that you charge to:
Sunbank and Trust Company of Brooksville 20% ---- Rock City Mechanical, Inc. 80% ---- Total must be 100%
Because the jury first found that appellant was not guilty of negligence in its transaction, it could not then assess a percentage of...
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...a claim that a verdict is inconsistent, that issue has been waived. See id. at 611 ; see also Sunbank & Trust Co. of Brooksville v. Transcon. Ins. Co., 666 So.2d 198, 199 (Fla. 5th DCA 1995) (not applying the “fundamental nature” exception to a “fatally” inconsistent verdict where the jury ......