ITT-Nesbitt, Inc. v. Valle's Steak House of Fort Lauderdale, Inc., ITT-NESBIT

• Decision Date: 25 February 1981
• Docket Number: No. 79-1864,INC,ITT-NESBIT,79-1864
• Citation: 395 So.2d 217
• Parties: , a Foreign Corporation, and Air Conditioning Associates, Inc., a Florida Corporation, Appellants/Cross-Appellees, v. VALLE'S STEAK HOUSE OF FORT LAUDERDALE, INC., Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 217

395 So.2d 217

ITT-NESBITT, INC., a Foreign Corporation, and Air Conditioning Associates, Inc., a Florida Corporation, Appellants/Cross-Appellees, v. VALLE'S STEAK HOUSE OF FORT LAUDERDALE, INC., Appellee/Cross-Appellant.

No. 79-1864.

District Court of Appeal of Florida, Fourth District.

Feb. 25, 1981.

Rehearing Denied April 2, 1981.

Eugene L. Heinrich and Patrick Gent of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant/cross-appellee, ITT-Nesbitt, Inc. Anthony A. Balasso of Miller, Zachman & Balasso, P. A., Pompano Beach, for appellant/cross-appellee, Air Conditioning Associates, Inc.

James D. Adams of Quinton, Lummus, Dunwody & Adams, P. A., Miami, for appellee/cross-appellant.

BERANEK, Judge.

This appeal and cross-appeal follow a complex civil suit involving a defective air conditioning system. From the time of its installation in plaintiff's building, the system was plagued with problems and numerous attempts to repair it proved unsuccessful. Eventually, plaintiff, Valle's Steak House of Fort Lauderdale, requested that the manufacturer, ITT-Nesbitt, take back the air conditioning units. When this request was denied, plaintiff replaced the units with new ones and sued ITT-Nesbitt and Air Conditioning Associates, Inc., which had installed the units and built the remainder of the system, on theories of negligence and breach of implied warranty. ¹ An extensive jury trial concluded with a special verdict on each of these claims.

In the negligence verdict, the jury determined that the negligence of ITT-Nesbitt and Air Conditioning Associates had caused damages of $101,108.90 to the plaintiff. The amount was exactly the same as the total verdict in the warranty count which included the total replacement cost of the units. This amount was thereafter reduced to $91,108.90 to reflect the $10,000 salvage value of the equipment which was still in the possession of the plaintiff. Of the total damages resulting from the negligence of the defendants, 80% was found to be attributable to ITT-Nesbitt and 20% to Air Conditioning Associates. The jury also found that the plaintiff was partially responsible for its own damages and set plaintiff's contributory negligence at 8%.

In its special verdict on the warranty count, the jury found that ITT-Nesbitt had breached its implied warranty running with the air conditioning equipment and that such breach of warranty was the cause of damage to plaintiff, Valle's. It determined that Valle's had justifiably replaced the defective units with new units and had properly offered to return the defective air conditioning equipment to ITT-Nesbitt, which offer of return was wrongly refused by ITT-Nesbitt. The jury set the damages due plaintiff from ITT-Nesbitt at $101,108.90. This sum was computed by the jury as follows:

                 $97,708.90  -- the reasonable cost of the
                                substitute equipment purchased to
                                replace the defective units
                   3,400.00  -- the reasonable expense in caring
                                for the equipment after
                                ITT-Nesbitt refused the return
                                thereof
                $101,108.90  -- TOTAL
                

After receipt of the verdicts, the trial court entered a final judgment, alternative in nature, with the provision that collection on either the negligence or breach of warranty theory would constitute a credit against the judgment entered on the other theory. ITT-Nesbitt and Air Conditioning Associates were also held jointly liable to the plaintiff on the negligence count without regard to the 80%/20% apportionment.

Both defendants appeal and plaintiff cross-appeals. The defendants raise numerous issues which we summarize as follows:

1. The trial court's refusal to instruct the jury that a partial directed verdict had been entered, thereby leading the jury to believe that the entire negligence count was still to be considered.

2. General insufficiency of evidence of negligence.

3. Failure to instruct the jury that the negligence of the plaintiff would serve to reduce any amounts recoverable under the warranty theory.

4. Denial of the motions for directed verdict on the warranty count.

5. Entry of an improper alternative judgment.

On cross-appeal, the plaintiff asserts that the trial court erred in granting the partial directed verdict on the negligence theory. We find defendants have demonstrated error requiring reversal and remand for a new trial.

As indicated above, the trial court directed a verdict on the issues of negligent design and manufacturing of the air conditioning units built by ITT-Nesbitt, finding that plaintiff had failed to offer sufficient evidence to show any defect in the air conditioning units. Although direction of the verdict should have removed the issue from jury consideration, the court refused to so instruct the jury despite a request by ITT-Nesbitt to do so. The parties to this appeal have found no authority directly on point, but settled law requires the trial judge to fully and fairly instruct on all issues in a cause. Security Mutual Casualty Company v. Bleemer, 327 So.2d 885 (Fla.3d DCA 1976). The test regarding jury instructions is whether, under the particular facts of the case, the instructions misled the jury or prejudiced a party's right to a fair trial. American National Bank of Jacksonville v. Norris, 368 So.2d 897 (Fla. 1st DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979). Here, the trial court ruled as a matter of law that plaintiff had failed to prove negligent design or negligent manufacturing of the units. Since this issue was presented to the jury in the context of the case, we find the court's refusal to instruct that a verdict had been directed thereon to be reversible error. We are so convinced by a comparison of the strikingly similar amounts found in the negligence verdict and the warranty verdict. Obviously, the jury concluded that plaintiff had been damaged to the extent of the total replacement cost of the air conditioning units. In the warranty verdict, this was clearly based on a finding that the units were defective. The jury apparently reached the same conclusion in the negligence verdict but the court had already ruled that there was insufficient evidence of a design defect when it directed the verdict. The jury should have been so advised.

We also conclude that the evidence was insufficient to sustain the judgment based on negligence as to Air Conditioning Associates. Under no construction of the evidence could Air Conditioning Associates have been responsible to the plaintiff for the cost of the new air conditioning units. Air Conditioning Associates had not manufactured the units but had only installed them. The final judgment entered in the cause was against Air Conditioning Associates in the total amount of the replacement cost less the salvage value of the units. ² There was simply no evidence of negligence by Air Conditioning Associates which could have been the proximate cause of this damage.

Appellant, ITT-Nesbitt, also contends that the trial court erred in failing to instruct the jury on comparative negligence as a defense to the implied warranty claim. Appellee concedes the case law of Florida requires an instruction on comparative negligence under such circumstances. West v. Caterpillar Tractor Company, 336 So.2d 80 (Fla.1976); ...