Imperial Elevator Co., Inc. v. Cohen, s. 74--608

• Decision Date: 08 April 1975
• Docket Number: 74--609,74--681,Nos. 74--608,s. 74--608
• Citation: 311 So.2d 732
• Parties: IMPERIAL ELEVATOR COMPANY, INC., a Florida Corporation, and the Travelers Insurance Company, a Foreign Corporation, Appellants, v. Hannah COHEN et al., Appellees.
• Court: Florida District Court of Appeals

Page 732

311 So.2d 732

IMPERIAL ELEVATOR COMPANY, INC., a Florida Corporation, and the Travelers Insurance Company, a Foreign Corporation, Appellants, v. Hannah COHEN et al., Appellees.

Nos. 74--608, 74--609, 74--681.

District Court of Appeal of Florida, Third District.

April 8, 1975.

Rehearing Denied May 14, 1975.

Adams, George, Wood, Lee, Schulte & Thompson, Jeanne Heyward, Miami, for appellants.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.

Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

NATHAN, Judge.

These are consolidated appeals by the defendants, Imperial Elevator Company, and its insurer, the Travelers Insurance Company, from a final judgment in a personal injury action, entered pursuant to a jury verdict finding both appellant, Imperial Elevator Company, and its co-defendant, Penn Ten Manor Condominium, Inc., to be negligent. ¹

The plaintiff, Hannah Cohen, a resident of Penn Ten Manor condominium, filed suit against the appellants and two co-defendants, Penn Ten Manor Condominium, Inc., and Highlands Insurance Company, for damages stemming from an injury which she sustained in the elevator, a common element owned by the defendant, Penn Ten Manor Condominium, Inc. The elevator was installed by and maintained as per a service contract with the defendant, Imperial Elevator Company, appellant herein.

The main thrust of Imperial Elevator's appeal is that the court erred in not allowing the defendant-appellants to advise the jury of the 'Mary Carter Agreement' between Penn Ten Manor and Hannah Cohen, where they first learned of such agreement during the course of the trial. We agree and reverse as to damages alone.

It is uncontradicted that on the Saturday prior to the call of the calendar on Monday, at which time the trial commenced, an agreement was entered into by and between plaintiff and co-defendants, Penn Ten Manor Condominium, Inc., and Highlands Insurance Company, providing that Penn Ten Manor would pay up to $50,000 if the verdict was not in excess of $125,000. In the event the verdict was in excess of $125,000 Penn Ten Manor would contribute nothing to any verdict that might be entered against it. During the third day of the trial, counsel for the appellant, Imperial Elevator, sensed from the conduct of the trial by the attorney for Penn Ten Manor that there may have been a 'Mary Carter Agreement.' Inquiry was made of counsel for the respective parties, Cohen and Penn Ten Manor, as to whether such an agreement had been entered into and upon learning of such agreement, counsel for defendants, Imperial Elevator and Travelers Insurance Company, requested the court to permit disclosure of this information to the jury even though the plaintiff's witnesses had testified and the plaintiff had rested her case. The court denied the request. The appellants contend that this ruling was prejudicial as it was obvious that Penn Ten Manor was not conducting its defense in such a manner as to limit the amount of liability, if any, and in addition, was casting blame on Imperial Elevator. Counsel for the plaintiff contends that it was the duty of the attorney for Imperial Elevator either at the calling of the calendar or at some time prior to the commencement of trial, to make such inquiry and that such request, not timely made, was prejudicial to the plaintiff's case.

The following decisions reflect the position of Florida courts on the issue of 'Mary Carter Agreements.' In Ward v. Ochoa, the leading case, Fla.1973, 284 So.2d 385, the Florida Supreme Court held not only that 'Mary Carter Agreements' are admissible into evidence but also that where ...