New Hampshire Indem. Co. v. Gray, 1D14–3348.

• Decision Date: 08 October 2015
• Docket Number: No. 1D14–3348.,1D14–3348.
• Citation: 177 So.3d 56
• Parties: NEW HAMPSHIRE INDEMNITY COMPANY, Appellant, v. John GRAY, Damil Belizaire & Daline Belizaire, jointly & severally, Appellees.
• Court: Florida District Court of Appeals

177 So.3d 56

NEW HAMPSHIRE INDEMNITY COMPANY, Appellant,

v.John GRAY, Damil Belizaire & Daline Belizaire, jointly & severally, Appellees.

No. 1D14–3348.

District Court of Appeal of Florida, First District.

Oct. 8, 2015.

Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Ft. Lauderdale; Michael C. Clarke of Kubicki Draper, P.A., Tampa, for Appellant.

Brandon G. Cathey and Stephanie M. Miles of Swope, Rodante P.A., Tampa, for Appellee John Gray.

THOMAS, J.

Appellant, New Hampshire Indemnity Company (NHIC), appeals a final judgment for costs imposed jointly and severally with its insured, Damil Belizaire. NHIC raises both procedural and substantive arguments against being joined in this judgment, contending: 1) NHIC was improperly joined because Appellee failed to comply with the statutory service provision found within section 627.4136(4), Florida Statutes ; 2) the court failed to "articulate any basis" for adding NHIC to the judgment or making any findings that the policy covered Appellee's taxable costs; and 3) the policy does not provide such coverage, rendering the judgment "substantively improper." As explained below, we reject each of these arguments and affirm.

Factual Background

Mr. Belizaire was involved in a motor vehicle collision resulting in a catastrophic injury to Appellee, John Gray, who in turn sued Belizaire for damages. NHIC provided a defense to Belizaire under the subject insurance policy and the matter went to trial, resulting in a jury verdict of $2.3 million in damages, in Appellee's favor.

The trial court entered a final judgment against Belizaire, reserving jurisdiction to award costs. Appellee then moved to tax costs against Belizaire, serving the motion on his attorneys, who represented him at the cost hearing. The trial court granted the motion in December 2013, and awarded costs of more than $127,000. Approximately one week later, Appellee filed a motion asking the court to enter a final judgment for the taxable costs awarded and to join NHIC in the judgment. Appellee served the motion, not on NHIC, but on Belizaire's NHIC-retained attorneys. Ten days later, Appellee filed another motion to tax costs related to litigation that ensued after Belizaire objected to aspects of Appellee's prior cost motion. This, too, he served on Belizaire's attorneys.

In June 2014, NHIC, through independent counsel, filed a "Memorandum in Response and Opposition" to Appellee's motion. NHIC asserted that Appellee failed to comply with section 627.4136(4), Florida Statutes, by not serving NHIC with the joinder motion by certified mail. NHIC also argued that it could not be joined as a party because it was not responsible for Appellee's costs under the policy's terms.

Appellee filed a "Supplemental Certificate of Service" dated June 26, 2014 (the same day NHIC filed its memorandum in opposition to joinder), indicating that a copy of Appellee's motion was furnished by email to the attorneys who filed the opposition memorandum, and by certified mail to "AIG Insurance."¹ Appellee filed a copy of this supplemental certificate in the trial court on September 18, 2014. The court held a hearing on the matter four days later at which counsel for NHIC, Belizaire, and Appellee appeared. NHIC argued against joinder on the same grounds asserted in its memorandum in opposition.

Appellee's counsel expressed her appreciation for NHIC's memorandum, because it alerted her to the procedural defect and allowed her time to rectify it, which she asserted was achieved by filing a copy of the motion and a supplemental certificate of service via certified mail before the hearing. NHIC's counsel indicated that he had not received either document and asserted that it was insufficient to serve a motion on a Thursday before a Monday hearing. Appellee responded that the statute does not provide when a joinder motion must be served, only how, and that the carrier was represented by counsel and had been for the entirety of the litigation. The court took the matter under advisement and ultimately entered the judgment on appeal that adjudicated NHIC jointly and severally liable for costs in excess of $135,000.

Legal Analysis

I. NHIC's Procedural Challenges

NHIC asserts two procedural grounds against the trial court's judgment: 1) NHIC was improperly joined in the judgment, because Appellee failed to comply with the statutory service provision found within section 627.4136(4), Florida Statutes ; and 2) the court erred by failing to "articulate any basis" for adding NHIC to the judgment and not making any finding that the policy covered Appellee's taxable costs.

We address the second argument first, which we find unpreserved. NHIC argues that the judgment is defective, because it does not contain sufficient findings to support the court's joinder of NHIC. Even if correct, any such defect necessarily first appeared on the face of the judgment itself. Because NHIC did not file a motion for rehearing to alert the court to the alleged defect, NHIC's arguments in this regard are unpreserved for appellate review. See, e.g., Pensacola Beach Pier, Inc. v. King, 66 So.3d 321, 325–26 (Fla. 1st DCA 2011) (holding, where "Appellants did not file a motion for rehearing asking the court to make a finding regarding [certain] statements," they failed to preserve the argument). See also Williamson v. Cowan, 49 So.3d 867 (Fla. 5th DCA 2010) (holding, "[b]ecause Appellant never challenged the adequacy of the findings in a motion for rehearing ... the issue was not properly preserved for appellate review."). We state once again: When errors appear for the first time in a judgment, the party harmed by the error must assert its grounds in a motion for rehearing to allow the trial court an opportunity to rectify the error.

Even if preserved, however, the judgment was not defective for failing to include the findings NHIC asserts were necessary. First, there was no dispute below that Appellee obtained a verdict against Belizaire, or that Belizaire was an insured under the policy, something NHIC acknowledged in its reply brief. Furthermore, both parties relied on diametrically opposed interpretations of the same policy provision in support of their respective positions on the substantive issue of joinder based, as discussed below, on conflicting district court opinions. Therefore, by granting Appellee's joinder motion, it is apparent that the court was persuaded by the authority on which Appellee relied.

Turning to NHIC's first procedural argument, section 627.4136(4) provides, in relevant part:

(4) At the time a judgment is entered ... a liability insurer may be joined as a party defendant for the purposes of entering final judgment ... by the motion of any party.... A copy of the motion to join the insurer shall be served on the insurer by certified mail....

In GEICO General Insurance Company v. Williams, 111 So.3d 240, 246–47 (Fla. 4th DCA 2013), the court explained that a carrier is timely added as a party at the time a final judgment for fees and costs is entered, citing Ulrich v. Eaton Vance Distributors, Inc., 764 So.2d 731, 733 (Fla. 2d DCA 2000), and section 627.4136, Florida Statutes. We agree with the analysis of the Fourth District in Williams. A judgment on the merits of a suit is not final for purposes of determining the collateral issues of attorney's fees and litigation costs until those issues are resolved.

Here, although it is undisputed that Appellee did not serve a copy of the motion directly on NHIC at the time he first filed the motion in January 2014, Appellee asserts that he complied with this provision by sending a supplemental certificate in which he averred that he sent a copy of the motion via certified mail on the same day NHIC filed its memorandum in opposition to the motion. Appellee also argues that the statute requires the insurer to be joined by sending the insurer a copy of the motion via certified mail at or before the time the final judgment to which it is joined is entered, which he did. NHIC argues that Appellee's last-minute amended certificate of service of the motion never reached its attorneys before the hearing, and that there still is no evidence that the motion was actually mailed by certified mail, because the card indicating as much is not in the record.

NHIC relies on ACE American Insurance Company v. HCP IIII of Bradenton, Inc., 913 So.2d 1280 (Fla. 2d DCA 2005), in support of its position that failure to "timely" serve NHIC via certified mail is fatal to the judgment at issue. This reliance is misplaced. In that case, ACE and two other carriers tendered checks to satisfy a judgment against their insured, but the plaintiff filed a motion asserting the amounts paid were deficient and sought an order directing ACE pay the deficiency. Id. at 1281. The trial court entered such an order and the appellate court reversed, holding that "[t]he trial court had no in personam jurisdiction over ACE because it is undisputed that ACE was never served and was never a party to the suit." Id. Critically, the court explained: "Although, pursuant to section 627.4136(4), Florida Statutes (2004), a liability carrier may be joined at or before the time judgment is entered against its insured, there was no such joinder in the present case." Id.

In ACE, therefore, unlike here, the plaintiff made no attempt to join the carrier at or before the time the plaintiff asked the court for an order instructing the carrier to pay the alleged deficiency at issue; thus, the carrier was not a party against whom the court could issue an order to enforce the judgment. It was for that reason that the court lacked in personam jurisdiction.

Here, however, Appellee did move to join NHIC, and did so before the judgment on costs was entered. Additionally, there is no dispute that NHIC received a copy of Appellee's joinder motion before the hearing, as indicated by the fact that it retained separate counsel, who filed a memorandum in opposition to joinder. NHIC...