Corack v. Travelers Ins. Co.

• Decision Date: 20 May 1977
• Docket Number: No. 76-1439,76-1439
• Citation: 347 So.2d 641
• Parties: Edward T. CORACK, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 641

347 So.2d 641

Edward T. CORACK, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.

No. 76-1439.

District Court of Appeal of Florida, Fourth District.

May 20, 1977.

Frank Henry Molica, Merritt Island, for appellant.

Barbara Kane, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.

ANSTEAD, Judge.

The appellant, Edward T. Corack, is appealing from an adverse jury verdict claiming error by the trial court in denying pretrial discovery of surveillance films used as evidence by the appellee, Travelers Insurance Company. We find prejudicial error and reverse.

Corack filed suit against Travelers claiming benefits under a disability insurance policy. Prior to trial, a pretrial order was entered requiring the disclosure of all exhibits to be used at trial. Travelers listed 150 feet of surveillance films of Corack. Upon motion the trial court overruled an objection by Travelers that the film was work product and ordered the films produced for Corack's counsel to inspect. Travelers then claimed the films did not really exist and none were produced.

Thereafter, the trial was continued and another judge assigned to the case. Both parties filed supplements to their original lists of exhibits but surveillance film was not listed again by Travelers. Approximately one week before trial Travelers' counsel notified Corack's counsel that he now had surveillance film which he intended to use at trial. Corack filed a motion seeking the production of said film before trial but the trial court denied the motion. Corack then made an oral motion in limine before the start of the trial seeking to exclude the film because it had not been previously disclosed on a pretrial list or produced for inspection. The trial court denied the motion and stated:

"Well, you see the Defendant has a little advantage there because he is entitled to impeach the credibility of witnesses and that is not substantive evidence, but he is entitled to rebut when it comes up in the trial depending on how the witness testified, either lay a predicate or impeaching material or not."

Subsequently, the film was admitted into evidence over Corack's objection, the trial court finding "that they meet the test of being a rebuttal not simply evidence which would have been found at some prior time." The film and the private investigator who took it were the chief evidence presented and relied on by Travelers. The jury returned a verdict for Travelers.

At a hearing on a motion for new trial the trial judge observed that he probably would have granted a motion for continuance if Corack had asked since there was no question but that the film constituted surprise and was devastating to Corack's case. The motion for new trial was denied.

We find that the trial court erred in failing to order the pretrial production of the surveillance film and that the error was prejudicial. We further find that Corack is not estopped to claim error by his failure to move for a continuance since he had already been denied pretrial discovery of the films on the basis that the films were "rebuttal" or "impeachment" evidence. A continuance would be of no avail if the films were not subject to pretrial discovery. These rulings by the trial court were contrary to this court's decision in Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975) ¹ which ruled that the contents of surveillance films were subject to pretrial discovery....