J & H Auto Trim Co., Inc. v. Bellefonte Ins. Co.

• Citation: 501 F. Supp. 942
• Decision Date: 03 November 1980
• Docket Number: No. 76-933 Civ. T-K.,76-933 Civ. T-K.
• Court: U.S. District Court — Middle District of Florida
• Parties: J & H AUTO TRIM COMPANY, INC., Plaintiff, v. BELLEFONTE INSURANCE COMPANY, California Union Insurance Company, Underwriters at Lloyd's London, Sphere Insurance Company, Ltd., Canadian Universal Insurance Company Limited, Defendants.

501 F. Supp. 942

J & H AUTO TRIM COMPANY, INC., Plaintiff, v. BELLEFONTE INSURANCE COMPANY, California Union Insurance Company, Underwriters at Lloyd's London, Sphere Insurance Company, Ltd., Canadian Universal Insurance Company Limited, Defendants.

No. 76-933 Civ. T-K.

United States District Court, M. D. Florida, Tampa Division.

November 3, 1980.

COPYRIGHT MATERIAL OMITTED

D. Russell Stahl, David A. Maney, Tampa, Fla., for plaintiff.

William A. Gillen, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, Fla., for defendants.

MEMORANDUM OPINION

KRENTZMAN, District Judge.

In this diversity case, the plaintiff, J & H Auto Trim Company, Inc., was the owner of certain vinyl auto tops which were destroyed by fire in February 1976. The vinyl auto tops, along with other goods, had been purchased by the plaintiff's predecessors for the aggregate sum of $10,000.00 in November, 1975. Prior to such loss, the plaintiff's predecessors or the plaintiff had applied for and each of the defendants had issued a policy insuring the vinyl auto tops against loss by fire. The aggregate amount of coverage provided by the five policies was $280,800.00. The plaintiff sued the defendants seeking to recover the aggregate coverage, plus interest, costs and a reasonable attorney's fees.

The case was first tried in January 1980 before Honorable Richard E. Robinson, of Omaha, Nebraska, a Senior Judge, sitting by special assignment, and a jury. The jury was required to return a special verdict and to answer certain written questions concerning the issues. By its special verdict, the jury found that the defendants had not proved any of their three affirmative defenses, and that the actual cash value of the destroyed vinyl auto tops was the sum of $345,925.00. The defendants moved for a new trial. After considering written memoranda and hearing oral arguments of counsel for the respective parties, the Court rendered a memorandum opinion specifying its grounds for granting a new trial, and entered an order sustaining the defendants' motion for new trial.

The case was tried a second time before the undersigned Judge and a jury in July 1980. At the close of all of the evidence, the defendants moved for a directed verdict in their favor upon each of their three affirmative defenses, and limiting the plaintiff's damages, if any, to the sum of $10,000.00, which amount the defendants contended the evidence showed to be the maximum actual cash value of the insured property at the time of the loss or the replacement cost of the insured property within a reasonable time after the loss. The Court denied the motion, but expressly stated that the action would be submitted to the jury, subject to a later determination by the Court of the legal issues raised by the motion for directed verdict.

Again the jury was instructed to return a special verdict, based upon a preponderance of the evidence, answering four written questions which covered the issues in the case.

Question 1 was as follows:

1. Have the defendants proved that in applying for the insurance policies in this case the plaintiff made any misrepresentations or concealed any fact which was either fraudulent or material to the acceptance of the risk by defendants or was such that in good faith the defendants would not have issued the respective policies in the amounts they did if the true facts had been known to them? (Answer Yes or No)

The jury answered "No."

Question 2 was as follows:

2. Have the defendants proved that the plaintiff intentionally burned, caused or procured the burning of the insured property? (Answer Yes or No)

The jury answered "No."

Question 3 was as follows:

3. Have the defendants proved that plaintiff wilfully misrepresented the value of the insured personal property damaged or destroyed in completing the proofs of loss or inventory submitted as a part thereof, or when plaintiffs' representatives were examined under oath after the loss? (Answer Yes or No)

The jury answered "No."

Question 4 was as follows:

4. What was the "actual cash value" of the insured personal property damaged or destroyed by the fires involved in this case as of the date of such fires?

The jury answered "$165,000.00."

The defendants timely filed post-trial motions for a judgment notwithstanding the verdict and for a new trial. The respective parties submitted written memoranda in support of and in opposition to such motions, and the Court heard oral statements and arguments by counsel for the respective parties.

The Court measured the defendants' motion for judgment notwithstanding the verdict by the standard enunciated in Boeing Co. v. Shipman, 411 F.2d 365, 374-375 (5th Cir. 1969) (en banc), and subsequent decisions re-affirming said standard, including Spurlin v. General Motors Corp., 528 F.2d 612, 614-619 (5th Cir. 1976) and Maxey v. Freightliner Corp., 623 F.2d 395, 397 (5th Cir. 1980).

In Boeing Co. v. Shipman, supra, the court said, at 411 F.2d 374-375:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover's case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. (Footnotes omitted)

At this point, the Court feels it important to state that, during the second trial, the Court erroneously and improperly admitted into evidence, over the defendants' objections, and permitted the jury to consider in reaching its special verdict, certain testimony of John Jackson, a witness for the plaintiff, concerning the prices for which small quantities of the vinyl auto tops had been sold in isolated sales prior to the fires involved herein, and concerning the prices for which the remainder of the tops could have been sold in small quantities in isolated sales over a long period of time had their destruction by fire not occurred. The Court also erroneously denied the defendants' motion, made after the close of all of the evidence, to strike said testimony of Mr. Jackson, and failed to instruct the jury to disregard such testimony.

Mr. Jackson and James Harris were the predecessors and organizers of the plaintiff, and were the latter's sole stockholders, directors, officers and managers. The aforementioned testimony of Mr. Jackson was unsupported and self-serving, and, in the opinion of the Court, was not relevant and substantial evidence sufficient to create a jury question as to the actual cash value of the insured vinyl auto tops as a stock of merchandise, either at the time of the applications for the insurance policies involved herein or at the time of the loss of the vinyl auto tops by fire. In the opinion of the Court, the aforementioned testimony of Mr. Jackson was not within the scope of the evidence which was properly before the jury in reaching its special verdict.

In measuring the defendants' motion for judgment n.o.v., all of the evidence was considered-not just that evidence which supported the plaintiff's case-but in the light and with all reasonable inferences most favorable to the plaintiff, but no weight was given to the aforementioned testimony of Mr. Jackson. The facts and inferences disclosed by the admissible evidence pointed so strongly and overwhelmingly in favor of the defendants with respect to Questions 1, 3 and 4 set forth in the special verdict that the Court believed that reasonable men could not arrive at a contrary verdict with respect to those questions. Further, the Court was of the opinion that, with respect to each of those three questions, there was no conflict in substantial evidence to create a jury question. Therefore, the Court entered its order granting the defendants' motion to set aside the jury's responses to Questions 1, 3 and 4 of the special verdict, and granting the defendants' motion for judgment notwithstanding the verdict with respect to the defenses and the issues covered by those questions.

After considering all of the evidence and measuring the same by the rule enunciated in the Shipman case, the Court believed that there was substantial evidence to create a jury question with respect to the defense and issue covered by Question 2 of the special verdict. Accordingly, the Court did not grant the defendants' motion for judgment notwithstanding the verdict with respect to Question 2.

The Court measured the defendants' motion for new trial by the standards set forth in Cities Service Oil Co. v. Launey, 403 F.2d 537, 540 (5th Cir. 1968); O'Neil v. W. R. Grace & Co., 410 F.2d 908, 913-915 (5th Cir. 1969); National Car Rental System, Inc. v. Better Monkey Grip Co., 511 F.2d 724, 730-31 (5th Cir. 1975); Spurlin v. General Motors Corp., 528 F.2d 612, 620 (5th Cir. 1976), supra; Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362-363 (5th Cir. 1980), and thereafter felt that the motion should be granted...