Proprietors Ins. Co. v. Valsecchi, s. 80-752

• Decision Date: 18 July 1980
• Docket Number: 80-753,Nos. 80-752,s. 80-752
• Citation: 385 So.2d 749
• Parties: PROPRIETORS INSURANCE COMPANY et al., Appellants, v. John and Janet VALSECCHI, etc., Ann and Richard Scileppi, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 749

385 So.2d 749

PROPRIETORS INSURANCE COMPANY et al., Appellants, v. John and Janet VALSECCHI, etc., Ann and Richard Scileppi, etc., et al., Appellees.

Nos. 80-752, 80-753.

District Court of Appeal of Florida, Third District.

July 18, 1980.

Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, Daniels & Hicks, Dolan, Fertig & Curtis, Ft. Lauderdale, for appellants.

Rossman & Baumberger, Podhurst, Orseck & Parks, Miami, for appellees.

Before HUBBART, NESBITT and BASKIN, JJ.

ON MOTION TO REVIEW

HUBBART, Judge.

This is a motion to review an order of a trial court increasing the amount of three supersedeas bonds previously posted by the appellant in this cause. We have jurisdiction to review this order. Fla.R.App.P. 9.310(f).

The central issue presented for review is whether an insurance company which is appealing an adverse final money judgment may obtain an automatic stay pending appeal under Fla.R.App.P. 9.310(b)(1) by posting a good and sufficient supersedeas bond in the amount ordered to be paid by said money judgment plus 15 percent thereof. We conclude that under Fla.R.App.P. 9.310(b)(1) the insurance company is entitled to such an automatic stay upon the posting of a supersedeas bond in the above amount, which amount a trial court has no discretion to increase. Accordingly, we reverse the order under review and reinstate the original supersedeas bonds posted by the appellant Proprietors Insurance Company herein.

I

The facts pertaining to the instant motion are undisputed. In an action filed and tried in the Circuit Court for the Eleventh Judicial Circuit of Florida, the plaintiffs John and Janet Valsecchi, the plaintiffs Ann and Richard Scileppi and the crossclaimant Caetano Da Vital secured jury verdicts against the defendant Proprietors Insurance Company and its insured defendants Deland Aviation, Inc., O. R. Hunt, and Dean V. West in the amount of $750,000, $750,000 and $750,000 respectively. Three final judgments were entered upon these verdicts in favor of the plaintiffs against all the above defendants in this cause. These final judgments were, in turn, amended by the trial court to reduce the defendant Proprietors Insurance Company's liability on the judgments to the amount of the applicable insurance policy limits, to wit: $75,000 as to the Valsecchi plaintiffs; $75,000 as to the Scileppi plaintiffs and $100,000 as to the Vital plaintiff. All the defendants have prosecuted an appeal to this court from these final judgments as amended.

The defendant Proprietors Insurance Company sought to supersede the amended final judgment entered against it and from which it has appealed by posting with the clerk of the circuit court three supersedeas bonds equal to the amount which it was required to pay by the judgments appealed from, plus 15 percent thereof. ¹ The plaintiffs herein were dissatisfied with the amount of these bonds and moved the trial court to increase such bonds to equal the amount which the defendant Proprietors Insurance Company was required to pay by the amended final judgments plus 15 percent of the $750,000 entered against the individual insured defendants herein. The trial court entered an order granting this motion after a full hearing. The defendant Proprietors Insurance Company has filed a motion to review this order.

II

The applicable and controlling law in this case is found at Fla.R.App.P. 9.310 (1977), which provides in relevant part as follows:

"(a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.

(b) Exceptions.

(1) Money Judgments. When the order is solely for the payment of money, a stay pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof. If the liability of a party is less than the entire amount ordered to be paid, the bond required for that party shall be equal to the amount of such liability, plus 15%. Multiple parties having common liability may file a bond in the amount of the common liability, plus 15%."

This rule represents the change from the prior applicable appellate rules on this subject which provided at Fla.R.App.P. 5.5, 5.7 (1962) as follows:

"If a party desires to supersede a final decision, judgment, order or decree, he shall, at the time the appeal is taken, or at any time prior to filing the record-on-appeal in the Court, apply to the lower court for an order fixing the amount, terms and conditions for good and sufficient bond to be payable to the adverse party." Fla.R.App.P. 5.5 (1962).

"When the decision, judgment, order or decree requires or provides unconditionally for the payment or recovery of money, the bond shall be conditioned to satisfy the judgment or decree or any modification not increasing the amount thereof, in full, including costs, interest (if chargeable), and damages for delay, in event the appeal be dismissed or the judgment, order or decree is affirmed." Fla.R.App.P. 5.7 (1962).

As a plain reading of the above rules indicate, Fla.R.App.P. 9.310 (1977), does not provide for a hearing and a discretionary setting of a supersedeas bond by the trial court, as the prior rule did, where an appeal is taken...