Farish v. Bankers Multiple Line Ins. Co., s. 79-2431

• Decision Date: 22 September 1982
• Docket Number: Nos. 79-2431,79-2432,s. 79-2431
• Citation: 425 So.2d 12
• Court: Florida District Court of Appeals
• Parties: Joseph D. FARISH, Jr., and Joseph D. Farish, Jr., as Administrator of the Estate of Joseph D. Farish, deceased, d/b/a Farish & Farish, a partnership, Appellants/Cross Appellees, v. BANKERS MULTIPLE LINE INSURANCE COMPANY and First Marine Bank & Trust Company of the Palm Beaches, as Ancillary Administrator of the Estate of John D. MacArthur, deceased, Appellees/Cross Appellants.

Page 12

425 So.2d 12

Joseph D. FARISH, Jr., and Joseph D. Farish, Jr., as Administrator of the Estate of Joseph D. Farish, deceased, d/b/a Farish & Farish, a partnership, Appellants/Cross Appellees, v. BANKERS MULTIPLE LINE INSURANCE COMPANY and First Marine Bank & Trust Company of the Palm Beaches, as Ancillary Administrator of the Estate of John D. MacArthur, deceased, Appellees/Cross Appellants.

Nos. 79-2431, 79-2432.

District Court of Appeal of Florida Fourth District.

Sept. 22, 1982.

Rehearing Denied Feb. 1, 1983.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellants/cross appellees.

Michael P. Mullen of Burke, Griffin, Chomicz & Wienke of Chicago, Ill., and Larry Klein, West Palm Beach, for appellees/cross appellants.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for Rosemary Barkett, Ken Slinkman, and Hubert R. Lindsey, amicus curiae in support of appellant.

PER CURIAM.

Appellants, plaintiffs below, ¹ seek reversal of an order which granted appellee Bankers Multiple Line Insurance Company's (Bankers) motion for new trial and claim further error in their not obtaining a new trial on the claim against the Estate of John D. MacArthur, deceased. Appellees have cross appealed and contend that the trial court erred in denying Bankers' motion for judgment in accordance with its motion for directed verdict. We have jurisdiction. Fla.R.App.P. 9.030(b)(1); 9.130(a)(4); 9.110(h).

This appeal involves an action for tortious interference with a lawyer's representation contract in which the jury found against Bankers and awarded appellants Joseph D. Farish, Jr., et al. d/b/a Farish & Farish, a partnership, $50,000 compensatory damages and $2,000,000 punitive damages. The jury also found in favor of the estate of MacArthur and against appellants.

John D. MacArthur, now deceased, was chairman of the board and president of Bankers, a subsidiary of Bankers Life and Casualty Insurance Company (Bankers Life). Bankers insured a vehicle involved in an accident which caused Donald Eugene Smith's death. MacArthur also owned and lived at the Colonnades Beach Hotel where Jill Smith (Jill) had worked as a waitress for three months prior to her husband's death. Although the parties disagree as to the sequence of events and as to the interpretation to be placed on the actions of MacArthur and others acting at his direction, the record demonstrates sufficient evidence to support the jury's verdict in favor of appellants and against Bankers. Neither party has challenged the sufficiency of the evidence.

On March 31, 1973, the day following the wrongful death of her husband, Jill executed contingent fee contracts with Farish & Farish, a partnership, for the claims arising out of her husband's death. The events which followed resulted in this action for tortious interference with contract.

After her husband's funeral, Jill remained in Illinois and lived with her parents. MacArthur contacted Paul Doolen, Vice Chairman of Bankers Life, and instructed him to see Jill. Doolen saw Jill about three weeks after the accident and offered her a job with Bankers Life and to place her on a group health insurance policy with maternity benefits. Jill was pregnant and she accepted the insurance coverage but rejected the job offer. Doolen testified that group insurance policies require that the insured be a present employee of Bankers Life, which Jill was not, but he said, "MacArthur said what he wanted done and we did it." Jill told Farish about Doolen's contact. Farish admonished Jill to have no further contact with Doolen or MacArthur and wrote MacArthur's attorney and protested MacArthur's conduct. On June 18th, MacArthur wrote Jill a letter in which he suggested that she had misunderstood his remarks and Doolen's visit, admitted that he had discussed the legality of the representation contract, and suggested that a settlement could be reached before the baby was born. Jill contacted Farish in July, 1973 and told him she wanted to settle the case and that she did not want suit filed. However, suit had been filed on June 22, 1973. After this telephone conversation, Jill accepted MacArthur's offer to provide her with an airline ticket to West Palm Beach. She came to West Palm Beach in August, 1979, and discharged Farish. MacArthur introduced Jill to Evelyn Flack, an attorney with no trial experience in personal injury or wrongful death cases. The evidence demonstrates that Farish's involvement in the case upset MacArthur, that MacArthur unbeknown to Jill encouraged the owner of the truck involved in the accident to divest the corporation of its assets, that he admitted that he had had Doolen contact Jill to attempt to convince her to fire Farish so that he could settle the case with Jill himself and that MacArthur's influence on Jill caused her to be uncooperative and antagonistic to Farish in the wrongful death action.

It should be noted that at Flack's suggestion, Jill resigned as personal representative of her husband's estate and Jill's successor rehired Farish to prosecute the action on behalf of the estate. Flack was appointed to the bench in North Florida and Jill hired Lake Lytal to represent her in the wrongful death action. Farish and Lytal tried the case and the jury returned a verdict of $118,000. Hubert Lindsey testified that the case had a jury verdict range of from $500,000 to $1,000,000, Farish testified that he had evaluated the case at $1,350,000. Appellants asserted that MacArthur's actions caused them to suffer a reduced fee in the wrongful death action.

Joseph D. Farish, Jr., d/b/a Farish and Farish, a partnership, filed suit against the appellees for tortious interference with contract. The trial court dismissed the original complaint for failure to join an indispensable party. Farish amended the complaint and added the Estate of Joseph D. Farish, deceased, as party plaintiff. On July 5, 1979, during the course of trial, appellees moved again to dismiss the complaint for failure to join indispensable parties and asserted that in 1973, Rosemary Barkett, Lindsey and Ken Slinkman were partners in the appellant law firm. The trial court reserved ruling on the motion but later cited the failure to join indispensable parties as one of the reasons for granting a new trial as to Bankers. In addition, the trial court determined that Lindsey's testimony should have been excluded because he was an interested party, and that its instruction on punitive damages failed to apprise the jury that it had discretion in awarding punitive damages. The trial court denied appellants' motion for a new trial on their claim against the Estate of MacArthur.

The parties have raised numerous points on appeal. Appellants challenge the trial court's order granting a new trial to Bankers and further contend that the trial court erred in holding: that Barkett, Lindsey and Slinkman were indispensable parties; that Lindsey's testimony should have been excluded because he was an interested party; and that its instruction on punitive damages failed to apprise the jury that it had discretion in awarding punitive damages. Appellants also contend that the trial court erred in failing to grant a new trial as to MacArthur's estate. Appellees in their cross appeal contend: that the jury verdict in favor of the Estate of MacArthur entitles Bankers to have the judgment against it set aside; and, that Bankers cannot be held liable for punitive damages. Both parties raised additional issues which we need not discuss.

We will first consider whether or not the trial court erred in granting a new trial to Bankers because of appellants' failure to join Barkett, Lindsey and Slinkman as party plaintiffs.

A dispute exists between Farish and Barkett, Lindsey and Slinkman as to the extent of their interest in Farish & Farish and more particularly as to their interest in the outcome of the case sub judice. ² The amended complaint named Joseph D. Farish, Jr., and Joseph D. Farish, Jr., as administrator of the Estate of Joseph D. Farish, deceased d/b/a Farish & Farish, a partnership, as party plaintiffs. The trial judge stated in his ruling that Barkett, Lindsey, and Slinkman were indispensible parties, and that he relied upon a stipulation which appellants claim that their counsel erroneously made but which counsel withdrew during an unreported meeting with appellees' counsel. The stipulation stated that the law firm of Farish & Farish, a partnership, filed Federal partnership income tax returns for the years 1973 through 1978 which reflected that Lindsey and Barkett were partners in those years.

Appellees cite Aronovitz v. Stein Properties, 322 So.2d 74 (Fla. 3d DCA 1975), to support the trial court's order directing a new trial as to Bankers:

Since the common law does not recognize a partnership as a legal entity distinct from and independent of the persons composing it, a partnership cannot, as such without statutory authority, sue in its firm name. All actions by a partnership must be brought in the names of its individual members.... Therefore, the trial court should have granted appellant's motion to dismiss for failure to join an indispensible party. (Emphasis added.)

Florida Rule of Civil Procedure 1.210(a) provides in part:

Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause.

The joinder of indispensable parties protects the defendant from the inconvenience and expense of defending multiple separate suits arising out of the same single claim and eliminates the defendant's exposure to multiple separate judgments arising out of the same claim. Lewis v. Hall, 271 S.W.2d 447 (Tex.Civ.App.1954); Yorkshire Insurance v. United States, 171 F.2d 374 (3d Cir.1948).

This cause of action arose on August 9, 1973 when Jill discharged the law firm of Farish & Farish. Therefore, the statute of limitations...