Safeco Ins. Co. v. Rochow, NN-451
| Decision Date | 30 April 1980 |
| Docket Number | NN-471,No. NN-451,NN-451 |
| Citation | 384 So.2d 163 |
| Parties | SAFECO INSURANCE COMPANY, Appellant, v. Tracy E. ROCHOW et al., Appellees. /T1-92,/T1-92A. |
| Court | Florida District Court of Appeals |
Sam Daniels, Miami, and Dennis J. Wall, Orlando, for appellant.
John W. Tanner, Daytona Beach, for appellees.
Defendant, Safeco Insurance Company, appeals a final order of the Circuit Court for Volusia County holding an agreement between appellees and appellant valid but incapable of performance. Plaintiffs, the Rochows, have cross appealed the same order raising as error a finding of the trial court that Safeco was liable for the Rochows' damages only if they exceeded $60,000.00.
The first question is whether this court can consider a cross appeal because appellees did not file their notice of cross appeal within the required time.
This question has been recently answered in Agrico Chemical Co. v. Department of Environmental Regulation, 380 So.2d 503 (Fla.2d DCA 1980), which held that filing of a notice of cross appeal was not jurisdictional.
In the case before us, the appeal questions the trial court's order dated April 4, 1979. The cross appeal raises as error a finding of fact in that same order. Appellant's notice of appeal raises as error "(w)hether the trial judge erred in holding that the agreement is incapable of performance and is, therefore, no longer binding on the parties." To consider this point, we must consider the factual findings of the lower court. We do not agree with appellant that we are prevented from looking at any factual matters which Safeco considers favorable to it because appellees were not diligent in filing a notice of cross appeal. We cannot consider one without the other. While we do not readily disregard the requirement of a notice of cross appeal we also hold that it is not jurisdictional.
Tracy Rochow, a minor, was injured while a passenger on a motorcycle which collided with a truck. Ron Rongstad, insured by Northland Insurance Company with policy limits of $10,000.00, operated the motorcycle. Robert Railey, insured by State Farm Insurance Company for policy limits of $50,000.00, was the owner of the truck. The Rochows, who sued Railey and State Farm in 1975, had uninsured and underinsured coverage with Safeco and asserted an underinsured motorist's claim against Safeco.
In 1977, Safeco and the trial court approved a settlement by the Rochows with the Rongstads and Northland for their $10,000.00 policy limits. Counsel for Safeco and the Rochows then executed an agreement waiving arbitration required under their policy and agreed to be bound by the jury's verdict in the Rochow v. Railey and State Farm case as to the amount of damages. They agreed that should the jury verdict against Railey and State Farm exceed $60,000.00 (the total of the State Farm and Northland policies), Safeco Insurance Company would pay the excess up to its policy limits. If less than $60,000.00, the Rochows would make no further demands against Safeco. The agreement did not specifically address the possibility that the jury might find Railey not negligent. The trial court determined that the jury...
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