Quinn v. Millard

• Decision Date: 09 May 1978
• Docket Number: Nos. 77-565,77-281 and 77-179,s. 77-565
• Citation: 358 So.2d 1378
• Court: Florida District Court of Appeals
• Parties: Elizabeth H. QUINN and Allstate Insurance Company, a Foreign Company doing business in Florida, Appellants, v. Truman Alan MILLARD, by his father and next friend, Merle A. Millard, et al., Appellees.

Page 1378

358 So.2d 1378

Elizabeth H. QUINN and Allstate Insurance Company, a Foreign Company doing business in Florida, Appellants, v. Truman Alan MILLARD, by his father and next friend, Merle A. Millard, et al., Appellees.

Nos. 77-565, 77-281 and 77-179.

District Court of Appeal of Florida,Third District.

May 9, 1978.

Rehearing Denied June 21, 1978.

Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellants.

Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Ezzo & Garel, Miami, for appellees.

Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.

NATHAN, Judge.

Appellants herein, defendants below, present multi-faceted consolidated appeals from a final judgment awarding damages to the plaintiffs in a personal injury suit and from the court's denial of their petitions for contribution between joint tortfeasors.

The event giving rise to the action below was an automobile accident. Two boys, Francis M. Quinn, Jr. (Frank), and Truman Alan Millard (Truman), were driving home from their summer jobs when their automobile collided with a station wagon driven by Wesley McMillan. Frank was driving a small sedan in which Truman was a passenger. McMillan's wife, Annie, was a passenger in his station wagon.

The evidence adduced at trial indicated that Frank was exceeding the speed limit while driving in a southerly direction on a north-south street, and that McMillan failed to yield the right of way after stopping at a stop sign and attempting to turn northward from an easterly direction on an east-west street. A violent collision ensued in which all occupants of both cars were injured, Truman most severely.

Truman and his father, Merle A. Millard, filed suit against Elizabeth H. Quinn (Quinn), Frank's mother, who owned the car in which Frank and Truman were riding; her insurer, Allstate Insurance Company; and Wesley McMillan and Underwriters Adjusting Company, the local representative of Fidelity and Casualty Company of New York (F&C), McMillan's insurer. ¹ Truman sought damages for bodily injury, mental suffering and loss of earning capacity; his father sought damages for medical obligations and loss of his son's services.

In their answer to the complaint, defendants Quinn and Allstate included a motion for an order confining Allstate's liability to the limits of its policy coverage. The record reveals no order directly responsive to this motion. During the course of discovery, Quinn and Allstate moved to amend their answer to claim a set off of sums they believed were received by Millard from McMillan's insurer. This motion was granted.

Although no formal dismissal of McMillan and his insurer was announced prior to trial, it appeared, when trial began, that the only remaining defendants in the case were Quinn and Allstate. Just after resting their case, plaintiffs announced that they were taking a voluntary dismissal against McMillan and F&C, ² since these defendants had remitted several checks to Millard in partial payment of an apparent settlement agreement with the Millards. Defendants Quinn and Allstate opposed allowing dismissal of the other defendants unless the jury were made aware of the alleged settlement. Voluntary dismissal was taken. The jury was not informed of any settlement between plaintiffs and former defendants McMillan and F&C. In due course the jury returned verdicts in favor of Truman in the sum of $275,000 and in favor of his father in the sum of $40,000. Final judgment was rendered against Quinn and Allstate in those amounts, plus costs.

Defendants filed numerous post-trial motions, among them a second motion for limitation of judgment against Allstate, motions to complete certain depositions after trial, a motion for remittitur and a motion to set aside the final judgment for plaintiffs. All the foregoing motions were denied except for the motion to limit judgment, upon which no ruling was made. A post-trial motion to set off the sums paid by McMillan's insurer to Millard was granted. Defendants also petitioned the court for contribution between joint tortfeasors, but these motions were twice denied. Additional facts pertinent to defendants' various arguments will be discussed in conjunction with these issues.

Defendants present eight points on appeal. They first assert that the trial court erred in failing to confine the liability of Allstate to its policy limits of $100,000, and contend that, by entering judgment against Allstate in the total sum of $315,000, the trial court was, in effect, rewriting the contract of insurance between Quinn and Allstate.

Although this contention is incorrect inasmuch as the trial court did not enter judgment solely against Allstate, ³ defendants are correct in asserting that there was error in the court's failure to resolve the issue of the extent of Allstate's liability by ruling on the motion for limitation of liability. Instead, judgment was entered against both defendants with no specification of the sums recoverable from each. Cf. Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974) (order of trial court specified limitations of insurer's liability).

The trial court's denial of defendants' motion to set aside final judgment for plaintiffs did not treat the question of the limitation of Allstate's liability under the terms of the policy it had issued to Quinn. Therefore this issue was left unresolved, a situation which is unfair to all parties.

It affirmatively appears from the record that the limit of Allstate's coverage under the policy is $100,000, and no disagreement appears among any of the parties to this cause on this point. However, the record before us does not contain a copy of the policy itself. Therefore we direct that, on remand, the trial court shall verify the policy limits and incorporate its finding on this point to govern a modification of the judgment against Allstate and Quinn. See Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973). And cf. Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972) (where an insured contests his policy limits and no proof of those limits is in evidence, the filing of a cross claim is the proper procedure). The court shall then confine Allstate's liability to the limits of its policy coverage.

Defendants' next assertion of error deals with the testimony of two policemen who were permitted to testify as expert witnesses on the subject of accident reconstruction. One of these officers, Robert Needleman, was not present in the courtroom. His deposition was read in lieu of his actual appearance, since he had informed counsel at the time his deposition was taken that he would be out of town during the trial. The other officer, Robert Dixon, testified in the courtroom. Both officers had arrived at the scene after the collision occurred, and gave opinion testimony as to the speed at which the Quinn vehicle was traveling at the time of impact and as to the precise location of the two cars on the roadway at the time of impact.

Specifically, defendants contend that the court committed prejudicial error in allowing both officers to testify as experts for three reasons, all of which were asserted upon repeated objections raised at trial: (1) Plaintiffs did not make a sufficient showing that the witnesses met the necessary criteria of expertise in the area of accident reconstruction; (2) The officers' opinions were based on data which was insufficient to substantiate their conclusions; and (3) No proper predicate in the form of hypothetical questions was laid for the officers' opinion testimony.

Since essentially similar facts apply to the testimony of both witnesses, the rationale of our decision regarding Officer Dixon's testimony would apply equally to Officer Needleman, but for the applicability of Florida Rule of Civil Procedure 1.330(d)(3)(A) and (B) to the latter's testimony. The rule states:

(3) As to taking of deposition.

(A) Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form or the questions or answers, . . . and errors of any kind that might be obviated, removed or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition. (Emphasis supplied)

If defendants had raised objections at the time of deposition on the grounds stated in their in-court objections and in this appeal, plaintiffs might have been able to obviate or cure any alleged deficiencies by offering greater proof of the officer's competency as an expert, by probing for additional data to support his conclusions, or by framing appropriate hypotheticals, if indeed such hypotheticals were necessary. The purpose of the rule is to give a party just such opportunities and to avoid undue dissension at trial. Since the required objections were not timely raised, defendants will not be allowed to profit by their own omissions, and we find no prejudicial error in the admission of this witness' deposition. Florida Rule of Civil Procedure 1.330(d)(3)(A) and (B); Evans v. Perry, 161 So.2d 27 (Fla. 2d DCA 1964).

We next consider the applicability of defendants' objections to Officer Dixon's testimony. As to the assertion that he was not qualified to testify as an expert, the record reveals that plaintiffs' counsel did question him on his credentials and the court specifically determined that he was qualified. While our decision as to whether or not he was shown to have possessed the requisite expertise in accident reconstruction might have differed from that of the trial judge, it is a well established principle that such determination lies within the discretion of the trial court and its decision will not...