Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 3D98-2238.

• Decision Date: 28 June 2000
• Docket Number: No. 3D98-2238.,3D98-2238.
• Citation: 768 So.2d 1107
• Parties: ARENA PARKING, INC., etc., et al., Appellants/Cross Appellees, v. LON WORTH CROW INSURANCE AGENCY, etc., et al., Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

768 So.2d 1107

ARENA PARKING, INC., etc., et al., Appellants/Cross Appellees, v. LON WORTH CROW INSURANCE AGENCY, etc., et al., Appellees/Cross Appellants.

No. 3D98-2238.

District Court of Appeal of Florida, Third District.

June 28, 2000.

Rehearing Denied October 18, 2000.

Deehl & Carlson, and David L. Deehl, Miami, and Michele K. Feinzig, Plantation, Hinshaw & Culbertson, and Hugh J. Connolly and Andrew E. Grigsby, Miami, for appellants.

Demahy, Labrador & Drake, and Kenneth Drake, Miami, for appellees.

Before JORGENSON, GERSTEN, and RAMIREZ, JJ.

RAMIREZ, J.

Appellant/plaintiff Arena Parking, Inc. appeals the denial of its motion for additur or new trial on damages; intervenor Florida East Coast Railway Company appeals the denial of its motion for new trial; defendants Lon Worth Crow Insurance Agency and Maria Isabel Gonzalez cross appeal several adverse procedural rulings and the denial of their motion for directed verdict. We reverse because the trial court should have granted the requested additur, the intervenor should have received notice of the trial, and an attorneys' fee request should not have been summarily denied.

Factual Background

Arena Parking leased land owned by the Florida East Coast Railroad [FEC] near the Miami Arena for use as parking lots for events held at the Miami Arena. As a startup business, Arena Parking contracted with an already established parking company, Ambassador Events Co., to perform the actual day to day parking activities. Pursuant to the lease with FEC, Arena Parking was to carry liability insurance covering both FEC and Arena Parking. Through its agreement with Ambassador, Arena Parking sought to obtain the required insurance coverage by becoming an "additional insured" under Ambassador's already existing liability policy. That policy was obtained through Lon Worth Crow [the Agency].

Gonzalez is the customer service representative employed by the Agency who was allegedly contacted by Arena Parking and Ambassador in order to effect the desired additional insured status for Arena Parking and FEC. Gonzalez never completed the requested modification to Ambassador's policy. Arena Parking and Ambassador entered into operation of the parking lots, assuming, incorrectly, that they were insured.

While the operations were being conducted under the Arena Parking/Ambassador agreement, Jan Stephenson, a female professional golfer, was severely injured in a robbery on the premises of Arena Parking. When she sued Arena Parking, FEC, and other entities not parties to this appeal for her injuries, the litigants discovered the absence of liability insurance coverage for Arena Parking and FEC. That lawsuit is still pending, so the nature and extent of any Arena Parking/FEC liability has not yet been finally determined. Arena Parking, however, instituted this suit alleging breach of contract, promissory estoppel and negligence against the Agency and Gonzalez in an attempt to enforce the requested additional insured status under Ambassador's policy and coverage for the attorneys' fees and costs incurred by Arena Parking and FEC in defending Stephenson's lawsuit.

At the trial, Arena Parking presented testimony and documentary evidence showing that attorneys' fees in excess of $170,000 had already been incurred by Arena Parking and FEC in defense of Stephenson's suit. The jury returned a verdict in favor of Arena Parking and found it 57% negligent, but only awarded $28,500 in damages. Arena Parking elected to have the judge enter judgment under the promissory estoppel count of its complaint so that no comparative negligence reduction would have to be made. Arena Parking filed a motion for additur and/or new trial on damages, alleging that the damages awarded were inadequate and against the greater weight of the evidence. Arena Parking also contended that the trial court committed error requiring a new trial on damages when the trial judge refused to allow FEC's name to be referenced in jury instructions or on the verdict form. Arena Parking also complains of various evidentiary rulings made during the trial. We conclude that the evidentiary rulings were within the trial court's discretion and do not constitute reversible error. We discuss the remaining issues in the following sections of this opinion.

Additur

Based on our review of the record, we conclude that the jury verdict was clearly inadequate and that the trial court erred in denying Arena Parking's motion for additur. While the record of the trial shows that liability was hotly contested through testimony, Arena Parking's presentation on damages was made mostly in the form of trial exhibits representing attorneys' fees and costs incurred by Arena Parking and FEC in defending the Stephenson lawsuit. The Agency and Gonzalez did contest damages, but their argument was that there had been a total lack of evidence presented on that issue, not that the fees and costs were excessive or overstated. To this day, they have not adequately explained how to reconcile the jury's finding of liability while awarding only $28,500, which amount is approximately 16% of the damages shown by the exhibits. In fact, the jury found that Arena Parking had proven its claim to recover under promissory estoppel, which requires proof by clear and convincing evidence. See Crown Life Ins. Co. v. McBride, 517 So.2d 660, 663 (Fla.1987) (Grimes, J., specially concurring)

.

The trial court's determination regarding additur may be reversed on appeal only where there is a clear abuse of discretion. See Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998)

. The trial court denied Arena Parking's motion for additur without stating any reasons for the exercise of its discretion. Under the facts of this case, we believe this was a clear abuse of discretion.

In section 768.74(1), Florida Statutes (1997), the legislature authorizes trial courts to review the amount of damages awarded under a verdict to determine if they are "inadequate in light of the facts and circumstances which were presented to the trier of fact." Section 768.74(5) provides further guidance. When presented with an additur motion, the trial court must consider whether the jury "misconceived the merits of the case relating to the amounts of damages recoverable," § 768.74(5)(b), and whether it "arrived at the amount of damages by speculation and conjecture." § 768.74(5)(c). The trial court must also determine "[w]hether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered." § 768.74(5)(d). Finally, the court must decide "[w]hether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons." § 768.74(5)(e). Using this criteria, we conclude that the jury must have misconceived the merits of the case presented by Arena Parking with respect to damages. The amount awarded could only have been arrived at by speculation and conjecture because it bears no reasonable relation to the damages proved. There is no logical explanation as to how reasonable persons who found liability under the promissory estoppel theory ended up awarding only 16% of the damages claimed. The trial court should have ordered an additur and, pursuant to section 768.74(4), if the defendants disagreed to the additur ordered, then ordered a new trial on damages.

Rather than point to any record evidence to support the jury's award, the Agency and Gonzalez now argue that the itemized bills produced by Arena Parking were heavily redacted and were thus incompetent to prove their damages. Because the Stephenson case was still pending, Arena Parking was obviously reluctant to divulge privileged information that could undermine its defense of the underlying suit. Furthermore, the Agency and Gonzalez never objected to the introduction of the redacted bills and may not now do so for the first time on appeal. See Marks v. Delcastillo, 386 So.2d 1259, 1266 (Fla. 3d DCA 1980)

; Tabasky v. Dreyfuss, 350 So.2d 520, 521 (Fla. 3d DCA 1977).

The Agency and Gonzalez also raise another argument not advanced at the trial level. They complain that Arena Parking failed to introduce the entire insurance policy that would have provided coverage in this case. Had the Agency and Gonzalez timely objected to the policy introduced as an exhibit at trial, Arena Parking could easily have corrected the deficiency by photocopying the missing pages. The policy, after all, had been produced by the defendants in discovery. If there were pages missing, the defendants could hardly complain. See Castor v. State, 365 So.2d 701 (Fla.1978)

; Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802, 804 (Fla. 5th DCA 1981).

FEC as Intervenor

A few months before trial, FEC moved to intervene in the action as an interested party. The trial court entered an agreed order granting the motion. Unfortunately, when the trial court sent out its order the next day rescheduling the trial for August 1997, counsel for FEC was not sent a copy of the order. FEC received no notice of the trial, although clearly entitled to such notice. See Mayflower Inv. Co. v. Brill, 137 Fla. 287, 289, 188 So. 205, 205 (1939) (vacating an order of dismissal where the intervenor was not given notice, and stating: "It is fundamental that due process guarantees to a party notice and an opportunity to be heard before his rights are taken away from him by order, decree or judgment of any court.")

It is equally clear that FEC had a right to intervene. In the Stephenson case, FEC filed a third-party claim against Arena Parking seeking indemnification and a defense. FEC even obtained partial summary judgment finding that it was entitled to indemnification from Arena Parking. In fact, Arena Parking presented, as a part of its damages, the legal fees incurred by FEC in defending the Stephenson suit. FEC had a direct and immediate interest in the Arena Parking case against the Agency and...