C & B Airways Co. v. Ashurst, A-P

• Decision Date: 20 March 1979
• Docket Number: 78-1018,Nos. 78-1017,78-1118 and 78-1119,A-P,s. 78-1017
• Citation: 369 So.2d 631
• Court: Florida District Court of Appeals
• Parties: C & B AIRWAYS CO., operating as Lease-lane of Miami, Inc., and National Indemnity Co., and Piper Aircraft Corporation, Appellants, v. Caralee ASHURST, Individually and as personal representative of the Estate of John Ashurst, Deceased, Appellee.

Page 631

369 So.2d 631

C & B AIRWAYS CO., operating as Lease-A-Plane of Miami, Inc., and National Indemnity Co., and Piper Aircraft Corporation, Appellants, v. Caralee ASHURST, Individually and as personal representative of the Estate of John Ashurst, Deceased, Appellee.

Nos. 78-1017, 78-1018, 78-1118 and 78-1119.

District Court of Appeal of Florida, Third District.

March 20, 1979.

Rehearing Denied April 30, 1979.

Walton, Lantaff, Schroeder & Carson and James Knight, Miami, Edna L. Caruso, West Palm Beach, Howard E. Barwick, Miami Shores, for appellants.

Headley & Headley; Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellee.

Before HENDRY, HUBBART and KEHOE, JJ.

PER CURIAM.

The judgments appealed from are affirmed as to the appellants C & B Airways Company and National Indemnity Company without prejudice to the appellant National Indemnity Company to properly raise the insurance coverage issue in a subsequent proceeding. In our view, no error has been demonstrated on this record as to these appellants. American District Electric Protective Co. v. Seaboard Air Line Railway Co., 139 Fla. 451, 190 So. 820 (1939) (syllabus no. 3); Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972).

The judgments appealed from are reversed as to the appellant Piper Aircraft Corporation on the ground that the plaintiff Caralee Ashurst failed to present evidence at trial to establish that the subject aircraft herein had a defect sufficient to sustain a cause of action for breach of implied warranty or negligence. Although there was evidence in the record that the accident sued upon was caused by anti-symmetrical flutter, there is no evidence that such flutter was caused by a structural or design defect in the aircraft. The trial court, accordingly, erred in denying Piper Aircraft's motion for a directed verdict as such motion should have been granted. Hormovitis v. Mutual Lumber Co., 120 So.2d 42, 46 (Fla. 2d DCA 1960); Stolmaker v. Bowerman, 100 So.2d 659, 660 (Fla. 3d DCA 1958).

Affirmed in part; reversed in part.