Hartford Acc. & Indem. Co. v. U.S. Concrete Pipe Co., s. 74-235

• Decision Date: 11 April 1979
• Docket Number: 74-236,Nos. 74-235,s. 74-235
• Citation: 369 So.2d 451
• Court: Florida District Court of Appeals
• Parties: HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. U.S. CONCRETE PIPE COMPANY, a Florida Corporation, Dorothy Bould and Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased and Mitchell C. Touchette, Appellees. Mitchell C. TOUCHETTE and Hartford Accident & Indemnity Company, Appellant, v. Dorothy BOULD, Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased, and U.S. Concrete Pipe Company, a Florida Corporation, Appellees.

Page 451

369 So.2d 451

HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. U.S. CONCRETE PIPE COMPANY, a Florida Corporation, Dorothy Bould and Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased and Mitchell C. Touchette, Appellees.

Mitchell C. TOUCHETTE and Hartford Accident & Indemnity Company, Appellant, v. Dorothy BOULD, Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased, and U.S. Concrete Pipe Company, a Florida Corporation, Appellees.

Nos. 74-235, 74-236.

District Court of Appeal of Florida, Fourth District.

April 11, 1979.

Sam Daniels, Miami, for appellant Hartford Acc. & Indem. Co.

James A. Smith of Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee U.S. Concrete Pipe Co.

Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellant Mitchell C. Touchette.

Edward A. Perse of Horton, Perse & Ginsberg and Brumer, Moss, Cohen & Rodgers, Miami, for appellees Dorothy Bould and Edward Simonson, Jr.

MOORE, Judge.

This is not the first appearance of this case before this court. Since detailed discussion of the facts would serve no useful purpose suffice to say appellant, Hartford Accident and Indemnity Company, insured appellee, U.S. Concrete Pipe Company. In a tragic accident the negligence of one of appellee's employee-drivers resulted in two deaths. After trial final judgments for compensatory and punitive damages were entered against the driver and U.S. Concrete. This court reversed those judgments as being excessive ¹ and the Supreme Court quashed this court's opinion ², mandating the reinstatement of the judgments and directing this court to entertain the interlocutory appeals from post-judgment orders of the trial court. Those two interlocutory appeals are what we presently consider.

In the second interlocutory appeal the appellant, Touchette, contests the order of the trial court taxing costs against him. That appeal was predicated upon Touchette's anticipated success in challenging the final judgments against him. His failure to prevail on that issue correspondingly determines his failure to successfully attack the order taxing costs which should be affirmed.

In the first interlocutory appeal appellant, Hartford, seeks review of an order entered by the trial court pursuant to motion of U.S. Concrete wherein the trial court entered judgment against Hartford ³ which has the effect of requiring Hartford, as insurer, to pay a portion of the $800,000 punitive damage award entered against U.S. Concrete.

It is well settled in Florida that one may not insure against liability for punitive damages as the result of his own misconduct which gave rise to such damages. Nicholson v. American Fire & Casualty Ins. Co., 177 So.2d 52 (Fla. 2d DCA 1965); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962); Commercial Union Ins. Co. of New York v. Reichard, 404 F.2d 868 (5th Cir. 1968); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). These decisions are grounded upon public policy which, in effect, states that punitive damages are imposed against a defendant as punishment to the defendant and as a deterrent to the defendant and others. As such, that public policy would be frustrated if one were allowed to shift the risk of liability for such damages to an insurance company thereby avoiding the punishment imposed.

It is equally well established that a corporate employer may be held vicariously liable for punitive damages for the acts of its agent or servant under the doctrine of "respondeat superior" and that public policy is not contravened by shifting the risk of vicarious liability for punitive damages to an insurance company. See, Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Sterling Ins. Co. v. Hughes 187 So.2d 898 (Fla. 3d DCA 1966); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972); Norfolk and Western Railway Co. v. Hartford Accident and Indemnity Co., 420 F.Supp. 92 (N.D.Ind.1976). Appellant acknowledges this principle in quoting from Sterling Ins. Co., supra, where the court stated:

"However, it is generally held that there is a distinction between the actual tortfeasor and one only vicariously liable and that therefore public policy is not violated by construing a liability policy to include punitive damages recovered by an injured person where the insured did not participate in or authorize the act."

Hartford contends that it is impossible to apportion the punitive damages imposed against U.S. Concrete in the case sub judice between those for which U.S. Concrete is vicariously liable and those which are the result of U.S. Concrete's own misconduct. Relying upon Universal Underwriters Corp. v. Reynolds, 129 So.2d 689 (Fla. 2d DCA 1961) appellant argues that the burden of apportioning the punitive damages is upon U.S. Concrete and the fact that such a task is impossible should not act to the detriment of Hartford. It is Hartford's contention, therefore, that because U.S. Concrete failed to carry its burden of proving the apportionment U.S. Concrete thereby has failed to establish coverage for punitive damages under the terms of Hartford's policy. For reasons stated hereafter we find it unnecessary to determine the applicability of Reynolds, supra.

If the final judgment for punitive damages against U.S. Concrete was based solely on the concept of vicarious liability the trial court was correct in entering the judgment from which this appeal stems. On the other hand, if the judgment against U.S. Concrete was because of its own active misconduct the order of the trial court would be erroneous. Of course, if the jury imposed punitive damages on both theories we would then be confronted with a Reynolds, supra, situation.

Although we have carefully considered the...