Auto-Owners Ins. Co. v. Hooks, AUTO-OWNERS

• Decision Date: 07 February 1985
• Docket Number: Nos. AU-70,AUTO-OWNERS,AU-473,s. AU-70
• Citation: 463 So.2d 468,10 Fla. L. Weekly 347
• Parties: 10 Fla. L. Weekly 347 INSURANCE COMPANY, etc., Appellants, v. Eugene James HOOKS and Var Heyl Lincoln-Mercury, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 468

463 So.2d 468

10 Fla. L. Weekly 347

AUTO-OWNERS INSURANCE COMPANY, etc., Appellants, v. Eugene James HOOKS and Var Heyl Lincoln-Mercury, Inc., Appellees.

Nos. AU-70, AU-473.

District Court of Appeal of Florida First District.

Feb. 7, 1985.

L. Floyd Price, Bradenton, for appellants.

William C. Andrews, Gainesville, for appellee/Hooks.

Charles G. Felder and Robert E. Roundtree, Jr., of Clayton, Johnson, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee/Var Heyl Lincoln-Mercury, Inc.

SMITH, Judge.

Appellant Auto-Owners Insurance Company, Inc. ("Auto-Owners") brings this consolidated appeal from a final judgment for compensatory and punitive damages pursuant to jury verdict in litigation arising out of Auto-Owners' wrongful replevin of an automobile. Both appellees, Eugene James Hooks ("Hooks"), owner of the automobile, and Var Heyl Lincoln Mercury, Inc. ("Var Heyl"), who sold the car to Hooks, received compensatory and punitive damages. Appellant contends that the punitive damage award to Hooks was erroneous, and that Var Heyl was improperly awarded both compensatory and punitive damages. Appellant further maintains that the court erred in awarding attorney's fees. We reverse the judgment in favor of Hooks for punitive damages, and reverse the judgment in favor of Var Heyl as to both compensatory and punitive damages. ¹ We affirm the awarding of attorney's fees to both appellees, but reverse and remand for redetermination of the amounts awarded.

The litigation below had its genesis in February of 1981, when Clarence Loflin, an insured of Auto-Owners, transferred title of his 1980 Lincoln Continental automobile to Troy Arnold. Mr. Arnold gave in payment what subsequently turned out to be a forged cashier's check. As a result, Auto-Owners was required to reimburse Loflin for his monetary loss, and became subrogated to whatever rights Loflin had in the automobile. After Mr. Arnold's purchase, the automobile was transferred in rapid succession to a number of auto companies (four, to be exact, including Var Heyl, in a period of seven days), ending its journey among auto dealerships with Var Heyl.

In March 1981, Hooks purchased the automobile from Var Heyl, receiving title and possession. Later, on July 7, 1981, Auto-Owners filed a complaint for replevin of the automobile against Hooks. ² On July 9, 1981, Auto-Owners applied for and received from the circuit court an ex parte prejudgment writ of replevin under Section 78.068, Florida Statutes (1981), after posting a bond for $26,000 as security for any damages sustained by Hooks by reason of the writ being wrongfully obtained. The Alachua County Sheriff's Department took possession of the automobile from Hooks eight days later, and subsequently delivered it to Auto-Owners.

On July 24, 1981, Hooks filed a motion to dissolve the prejudgment writ of replevin, which was denied by the trial court. Hooks then filed a third party complaint against Var Heyl for breach of warranty of title. Var Heyl, in turn, filed an amended answer asserting claims against Auto-Owners under Chapter 78, and for negligence and malicious prosecution, seeking compensatory and punitive damages, costs and attorney's fees. Later, Hooks filed a counterclaim against Auto-Owners seeking compensatory and punitive damages, as well as attorney's fees and costs, alleging that Auto-Owners improperly obtained the prejudgment writ of replevin.

On Var Heyl's motion, the trial court, on December 30, 1981, dissolved the prejudgment writ of replevin, and granted summary judgment for Hooks and Var Heyl, and against Auto-Owners, based upon its action in wrongfully obtaining the writ of replevin. A jury trial was held on the issue of damages, resulting in verdicts for Hooks and Var Heyl for compensatory and punitive damages (see footnote 1, supra).

On appeal, Auto-Owners first contends that the trial court erred in allowing the punitive damages issues to go to the jury. The law is well settled that in order to be entitled to an award of punitive damages, a complaining party must show that the defendant acted with malice, moral turpitude, wantonness, willfulness, or reckless indifference to the rights of others. Walsh v. Alfidi, 448 So.2d 1084, 1086 (Fla. 1st DCA 1984). Punitive damages may not be assessed on the basis of mere negligence, U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1064 (Fla.1983). Even gross negligence, by itself, will not support the award of punitive damages. White Construction Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984); Smith v. Brantley, 455 So.2d 1063 (Fla. 2d DCA 1984). In ruling on Auto-Owners' motion for a directed verdict, the trial court was required to evaluate the evidence in the light most favorable to appellees, drawing every reasonable inference flowing from the evidence in appellees' favor. On the other hand, Auto-Owners' motion for a directed verdict should have been granted if there was no evidence upon which the jury could legally base a verdict for such damages in favor of appellees. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1121 (Fla.1984); Pritchett v. Jacksonville Auction, Inc., 449 So.2d 364 (Fla. 1st DCA 1984).

Judged by the foregoing standards, we conclude that Auto-Owners' motion for directed verdict on the issue of punitive damages should have been granted. As the basis for punitive damages, appellees emphasized, both here and below, the testimony of James W. Campbell, claims representative for Auto-Owners who served as its representative in this action. Mr. Campbell admitted that before filing Auto-Owners' complaint for replevin, he made no contacts with Hooks directly, and made no determination that Hooks was engaged in, or was about to engage in, any conduct that would place the car in danger of removal, concealment or destruction. Nothing in Auto-Owners' complaint, however, implies that any such direct contact was made with Hooks, nor is there any direct or indirect implication that Auto-Owners had actual knowledge of any fact tending to show that Hooks intended to dispose of the car in any manner. Campbell's further testimony explained that the mere fact that title had changed hands four times prior to being transferred to Hooks, and the fact that Hooks had an apparently transferable title to the car (which Auto-Owners thought it rightfully owned), making it possible for Hooks to transfer the car to yet another party, gave Auto-Owners reason to fear that the car might change ownership again prior to clarification of the rights of the parties. Upon comparison of Campbell's testimony with the allegations of the sworn complaint (see footnote 2, supra), we conclude that these allegations are not only consistent with Campbell's testimony; they are not susceptible to any other reasonable interpretation. The complaint contains no factual misstatements or misrepresentations, nor does it allege or insinuate any improper conduct on the part of Hooks, nor of Var Heyl, for that matter.

Upon close examination of the statute, Section 78.068(1), we note that it authorizes the issuance of a prejudgment writ "when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition...." The complaint accurately set forth the facts relied upon by Auto-Owners to satisfy this requirement. Further, subsection (2) of the statute provides:

2. This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed. (emphasis supplied)

Section 78.068(2), Florida Statutes. The above-quoted subsection, as the emphasized words indicate, thus imposes a burden upon the trial court to determine the sufficiency of the facts alleged. Here, the complaint did not allege facts sufficient to meet this statutory standard, not because of any misstatement of the facts, but because of Auto-Owners (and the trial court's) erroneous assumption concerning the law applicable to those facts, particularly the legal effect of the forged cashier's check involved in the insured's sale of the vehicle, in relation to the rights of a subsequent good faith purchaser under the motor vehicle title transfer laws. ³

Admittedly, the court below found that Auto-Owners wrongfully obtained the issuance of the prejudgment writ. Auto-Owners does not contest the correctness of this ruling, nor its consequent liability for compensatory damages to Hooks as provided in Chapter 78, Florida Statutes. The issue, so far as the punitive damage awards are concerned, is whether the circumstances would permit a jury finding that Auto-Owners acted in wanton or reckless disregard of the rights of appellees. We hold that they would not. The actions of Auto-Owners were directed exclusively to its attempt to avail itself of a statutory remedy. Any mistake or misapprehension of the law involved, according to the specific directive of the statute (Section 78.068(2)), was a matter for consideration by the trial judge before issuance of the prejudgment writ. Absent a showing that Auto-Owners made false allegations, either deliberately or with reckless disregard for the rights of appellees--as opposed to legally unsound or insufficient allegations--the mere fact that the trial judge whose duty it was to protect the rights of appellees under the law erroneously granted the prejudgment writ cannot, in our view, afford the basis for assessment of punitive damages.

The theory upon which appellees' claims to punitive damages proceeded would extend the law allowing the award of punitive damages to unprecedented extremes....