Hartford Acc. & Indem. Co. v. Myers, 70--366

• Decision Date: 07 April 1971
• Docket Number: No. 70--366,70--366
• Citation: 247 So.2d 83
• Parties: HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Regina Marie Heitman Angley and James Angley, Appellants, v. Edna R. MYERS and Dale E. Myers, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 83

247 So.2d 83

HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Regina Marie Heitman Angley and James Angley, Appellants, v. Edna R. MYERS and Dale E. Myers, her husband, Appellees.

No. 70--366.

District Court of Appeal of Florida, Second District.

April 7, 1971.

Rehearing Denied May 5, 1971.

Ray Ulmer, Jr., of Roney, Ulmer, Woodworth & Jacobs, St. Petersburg, for appellants.

William R. Hapner, Jr., of Rood & Hapner, Tampa, for appellees.

HOBSON, Judge.

Appellants above named, defendants in the trial court, appeal from a final judgment entered on a jury verdict in favor of appellees, plaintiffs in the trial court, awarding them $20,800.00 and $2,500.00 respectively. The parties will be referred to as they were in the trial court.

The Myerses filed suit against the Angleys in the Pinellas County Circuit Court seeking damages for injuries sustained by Mrs. Myers in a rear-end automobile collision when the car in which she was a passenger was struck from behind, alleging among other things that her earning capacity had been permanently impaired. However, there was no specific allegation of loss of wages. By amendment Hartford, the insurance carrier, was added as a party defendant. All defendants answered, denying liability. The case was set for trial on February 24, 1970, and on February 12, 1970, the Angleys filed motion for separate trial from Hartford, which the court denied. Defendants' motion for new trial after verdict was also denied.

Appellants raise here essentially three questions: (1) that appellees failed to allege loss of wages as being specific damages, and that while 'impairment of earning capacity' was alleged as specific damages such is not strictly synonymous with 'loss of wages'; (2) that the evidence did not establish that the neck injury on Mrs. Myers was caused by a blow from the rear, but that it was in fact more consistent with an injury caused by a vehicle stopping sharp, thus throwing the passenger's neck forward; and (3) that the trial court was in error in not granting a separate trial for Hartford. We will discuss these three propositions in the order stated.

(1) Loss of Wages or Impairment of Earning Capacity.

From a study of the entire record there does not appear to us to be any substantial ground for defendants' apprehension as to the essential nature of the damages asserted. To contend otherwise would be to make a play on words. The damages contended for by appellees consisted of the loss or impairment of income from work or employment. A lay jury could not have been reasonably misled as to the character of such damages relied upon.

(2) The Neck Injury.

This was a question for the jury. Even if the theory of appellants was correct as to the cause of the neck injury and even if such theory was comprehensible and was reasonable, yet it would still be an ultimate fact which could only be settled and determined by the jury as the trier of the facts. There is no error here.

(3) Was Hartford Entitled to a Separate Trial?

We believe that whether or not Hartford was entitled to a separate trial was within the discretion of the trial court. An insurer does not have an absolute right to severance. On a proper motion, the trial judge may or may not sever. It is within his discretion. Under the severance rule 1.270(b), 30 F.S.A., the trial judge could under all the facts and circumstances of the particular case determine whether there should be a severance and his ruling subject to review. See Durrett v. Davidson, Fla.App.1970, 239 So.2d 46; Stecher v. Pomeroy, Fla.App.1971, 244 So.2d 488.

In this case, we do not believe that the trial judge committed reversible eror in denying severance. For these reasons we would affirm.

LILES, J., concurs.

PIERCE, C.J., dissents with opinion.

PIERCE, Chief Justice (dissenting).

Was Hartford Entitled to a Separate Trial?

This case presents a situation which has unfortunately been shunted about from Court to Court without yet being satisfactorily determined. I must dissent from my colleagues' opinion regarding this question.

Prior to 1968 the Florida Courts had held that an insurance liability carrier for a tort-feasor defendant could not be made an additional party defendant in a suit involving damages arising out of an automobile accident. Indeed, so strongly had this 'protection' of insurance companies become rooted into the procedural philosophy of so-called 'damage suits' that the very mention, however inadvertently, of insurance companies within hearing of the jury, was, in most trial jurisdictions, cause for an immediate mistrial. The decisions were weighted against anyone suing an insurance company.

But the 1st District Court in 1968, in Bussey v. Shingleton et al, Fla.App.1968, 211 So.2d 593, broke precedent with the previous line of cases 'because of events happening subsequent to the decisions mentioned.' In Bussey's case, attention was called to Rule 1.210(a), F.R.C.P. which provides inter alia that: 'any person may be made a defendant who has or claims an interest adverse to the plaintiff (or) if his presence is necessary or proper to a complete determination of the cause.' The 1st District Court thereupon held that the trial Court erred in granting Shingleton's motion to strike the insurance carrier as a party defendant.

The Supreme Court in Shingleton v. Bussey, Fla.1969, 223 So.2d 713, affirmed the 1st District Court, holding that 'a direct cause of action now inures to a third party beneficiary against an insurer in motor vehicle liability insurance coverage cases as a product of the prevailing public policy of Florida', and philosophizing that '(if) joinder is allowed initially, all the cards are on the table and all interrelated claims and defenses can be heard and adjudicated reciprocally among all parties * * *'.

Later the 1st District Court had before it the case of Beta Eta...