Maule Industries, Inc. v. Rountree, s. 71--863

Citation264 So.2d 445
Decision Date11 July 1972
Docket NumberNos. 71--863,71--1053,s. 71--863
PartiesMAULE INDUSTRIES, INC., and Johnny Dunlap, Appellants, v. Joan L. ROUNTREE and David R. Rountree et al., Appellees.
CourtCourt of Appeal of Florida (US)

John R. Beranek, of Jones, Paine & Foster, West Palm Beach, for appellants.

Ronald E. Jones, of Cook, Shots & Jones, West Palm Beach, for appellees.

OWEN, Judge.

The primary issue we consider in this case is whether the court erred in denying to appellants, who were two of the four defendants in this personal injury action, pretrial discovery of a so-called 'Mary Carter Agreement' 1 between the plaintiffs and the other two defendants. If so, we have the corollary question of whether such error was sufficiently prejudicial to appellants in the presentation of evidence and in the closing argument before the jury as to require that we set aside the judgment for plaintiffs and award appellants a new trial.

The facts giving rise to the litigation can be stated rather briefly. Plaintiff Joan Rountree, driving her car easterly on 45th Street in the City of West Palm Beach, encountered what she described as a torrential downpour as she neared the intersection of Congress Avenue, and because of limited visibility she slowed to approximately 5 miles per hour. At that time a vehicle northbound on Congress Avenue, operated by Forbes Wood and owned by Willie Walker, III, entered the intersection without stopping at the posted 'Stop' sign, and was struck on the left side by Mrs. Rountree's car. The two cars, while still engaged, slid into the westbound lane of 45th Street, where seconds later they were struck by a westbound cement truck owned by appellant Maule Industries, Inc. and operated by appellant Dunlap. Mrs. Rountree sustained serious and permanent injuries, the nature of which we need not detail other than to note that none of the defendants have sought to attack the $300,000 verdict as being excessive.

Mrs. Rountree and her husband filed this suit in October, 1970, naming Wood, Walker and the appellants as defendants. Less than two months later a written agreement was entered into between counsel for plaintiffs and counsel for defendants Wood and Walker. Patterned somewhat along the lines of the agreement involved in the case of Booth v. Mary Carter Paint Co., Fla.App.1967, 202 So.2d 8, it provided that Wood and Walker would continue in active defense of the litigation, but that their financial responsibility would be limited in accordance wih the agreement. In this regard, it provided in substance that if the verdict were to be returned against them solely, they could satisfy the judgment entered thereon by paying the plaintiffs $10,435.00, plus taxable costs, but that if the verdict were returned against all of the defendants no contribution whatever would be required from Wood and Walker, or their insurance carrier, and the plaintiffs would look solely to the appellants for satisfaction of judgment entered on that verdict. As in the Booth case, the agreement further provided that it was designed only to limit financial responsibility and was neither an admission of liability nor of the extent of damages, and further, that the contents would not be divulged except upon court order.

Despite the requirement of secrecy, appellants' counsel either became aware of the agreement or strongly suspected its existence, because in April, 1971 (some five months before the scheduled trial), appellants filed a motion for an order requiring the plaintiffs or their counsel to produce a copy of the agreement. The denial of that motion has been assigned as the error by which this issue is presented to us. 2

Although the narrow issue presented is whether appellants were entitled to pre-trial discovery of the agreement, and if so, whether denial was prejudicial to their case, the initial thrust of appellants' argument is much broader. They asked us to take a fresh look at the so-called 'Mary Carter Agreements' and hold them to be void as against public policy, citing as authority the well-reasoned decision of the Supreme Court of Nevada in the case of Lum v. Stinnett, Nev.1971, 488 P.2d 347. We are not inclined to paint with a brush that broad. Obviously, the number of variations of the so-called 'Mary Carter Agreement' is limited only by the ingenuity of counsel and the willingness of the parties to sign, and we therefore feel that we can neither condone nor condemn such agreements generically. We simply say that we do not find the agreement in this case to be void.

Confining ourselves to the issue as presented to us we hold that the court erred in denying appellants' pretrial motion for an order requiring production of the agreement, but that such error did not so prejudicially affect appellants either in the presentation of evidence or in the closing arguments before the jury as to require that the judgment be set aside.

There are two reasons why agreements of this type are a proper subject for pretrial discovery. First, there is the possibility that the agreement would be of such a nature as would sustain the nonsigning defendant's entitlement to a setoff under F.S. Section 768.041, F.S.A. While this would depend upon the form and content of the particular agreement 3, such defendant should have the opportunity to have the information prior to trial so that if setoff is appropriate under the statute, the necessary information may be brought to the court's attention at the time of trial. Second, the moving party is entitled to have the agreement available for use in evidence to the extent that it is relevant to any of the matters in issue. ...

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22 cases
  • Abbott Ford, Inc. v. Superior Court
    • United States
    • United States State Supreme Court (California)
    • September 3, 1987
    ...cases involving such an agreement, Booth v. Mary Carter Paint Company (Fla.Ct.App.1967) 202 So.2d 8. In Maule Industries, Inc. v. Rountree (Fla.App.1972) 264 So.2d 445, 446, footnote 1, the court observed that the term "appears to be used rather generally to apply to any agreement between t......
  • Soria v. Sierra Pacific Airlines, Inc., s. 15817
    • United States
    • United States State Supreme Court of Idaho
    • August 26, 1986
    ...Carter Agreements Defined. The term "Mary Carter" Agreement was coined by the Florida Court of Appeals in Maule Industries, Inc. v. Rountree, 264 So.2d 445, 446 N. 1 (Fla.App.1972), reversed on other grounds, 284 So.2d 389 (Fla.1973). It arose from an agreement popularized in Booth v. Mary ......
  • Quick v. Crane
    • United States
    • United States State Supreme Court of Idaho
    • October 17, 1986
    ...defendants. Soria, supra, 111 Idaho at 603-04, 726 P.2d at 715-16; Lahocki, supra 410 A.2d at 1042 (citing Maule Industries, Inc. v. Rountree, 264 So.2d 445 (Fla.Dist.App.1972)). The reason such agreements have been found to be admissible by some courts is because of the potential for misle......
  • C & K Lord, Inc. v. Carter, 600
    • United States
    • Court of Special Appeals of Maryland
    • February 4, 1988
    ...amount of recovery which the plaintiff is able to make against the nonagreeing defendant or defendants. [ Maule Indus., Inc. v. Rountree, 264 So.2d 445, 446, n. 1 (Fla.Dist.App.1972), rev'd, 284 So.2d 389 (Fla.1973) It is probably safe to say that no two pacts dubbed "Mary Carter Agreement"......
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1 books & journal articles
  • In Re the Exxon Valdez: the Danger of Deception in a Novel Mary Carter Agreement
    • United States
    • Seattle University School of Law Seattle University Law Review No. 21-01, September 1997
    • Invalid date
    ...Note, It's a Mistake to Tolerate the Mary Carter Agreement, 87 COLUM. L. REV. 368, 371-372 (1987). 76. Maule Industries v. Rountree, 264 So. 2d 445, 447 (Fla. Dist. Ct. App. 1972), rev'd on other grounds, 284 So. 2d 389 (Fla. 77. See, e.g., Elabor v. Smith, 845 S.W.2d at 247. "A Mary Carter......

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