School Bd. of Broward County v. Surette

• Decision Date: 28 January 1981
• Docket Number: No. 78-191,78-191
• Citation: 394 So.2d 147
• Parties: The SCHOOL BOARD OF BROWARD COUNTY, Florida and Pacific Indemnity Insurance Company, a foreign corporation, Appellants, v. Virginia L. SURETTE, as administratrix of the Estate of Diane Surette, deceased, Joan M. Galiardo and Liberty Mutual Insurance Company, a foreign corporation, Appellees.
• Court: Florida District Court of Appeals

Page 147

394 So.2d 147

The SCHOOL BOARD OF BROWARD COUNTY, Florida and Pacific Indemnity Insurance Company, a foreign corporation, Appellants, v.Virginia L. SURETTE, as administratrix of the Estate of Diane Surette, deceased, Joan M. Galiardo and Liberty Mutual Insurance Company, a foreign corporation, Appellees.

No. 78-191.

District Court of Appeal of Florida, Fourth District.

Jan. 28, 1981.

Rehearing Denied March 16, 1981.

William S. Gardella of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellantsSchool Board of Broward County and Pacific Indemnity Ins. Co.

Frank E. Maloney, Jr., and Paul R. Regensdorf of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellees/cross appellants, Joan M. Galiardo and Liberty Mutual Ins. Co.

Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Robert M. Sussman, Miami, for appellee, Virginia L. Surette.

MOORE, Judge.

The tragedy in this case has spawned a number of cases in the trial court as well as a number of appeals and petitions in the appellate system.The appellees' decedent, Diane Surette, age thirteen, was struck by an automobile owned by Arthur Galiardo, Jr. and driven by Joan Galiardo on September 15, 1971 while she was waiting for a school bus.She passed away twenty-nine days later.

Two suits were commenced as a result of this unfortunate accident.In Case No. 1, Virginia and Gilbert Surette, as parents of the decedent, sued the School Board of Broward County, its insurer, Pacific Indemnity Insurance Company, Joan Galiardo, her insurer, Liberty Mutual Insurance Company, and others who are not parties to this appeal.The parents sought damages pursuant to Section 768.03, Florida Statutes(1971) for the wrongful death of their minor child.Although this case is not before us, we will necessarily refer to it as Case No. 1 in this opinion.

In Case No. 2, Virginia Surette, as administratrix of the Estate of Diane Surette, sued the School Board, Pacific Indemnity, Arthur and Joan Galiardo, Liberty Mutual and others who are not parties to this appeal.In a single complaint damages were sought for the wrongful death of Diane pursuant to Section 768.02, Florida Statutes(1971) and for survivorship damages pursuant to Section 46.021, Florida Statutes(1971).A jury returned a verdict in favor of the plaintiff against the School Board, Pacific Indemnity, Joan Galiardo and Liberty Mutual.The jury found the School Board 50% negligent, Joan Galiardo 15% negligent, and the decedent 35% negligent.Wrongful death damages were found to be $25,000 and the survival action damages were found to be $121,000.After an appropriate final judgment was entered, the School Board and Pacific Indemnity appealed.We affirm the judgment against the School Board and Pacific Indemnity.Galiardo and Liberty Mutual cross-appealed and we reverse the judgment against Galiardo and Liberty Mutual.

The School Board and Pacific Indemnity argue four grounds for reversal of the final judgment.They contend that the Pacific Indemnity Insurance Policy was a general comprehensive liability policy which specifically excluded liability for bodily injury arising out of the ownership, maintenance, operation, use and loading and unloading of school busses.In this regard, they contend the trial court erred in not severing Pacific Indemnity as a defendant pursuant to Fla.R.Civ.P. 1.270(b) because there was a genuine and justiciable issue concerning insurance coverage.Their second ground for reversal is the alleged error in denying their motion to sever the insurance company and suppress any mention of insurance coverage to the jury pursuant to Section 234.03(4), Florida Statutes(1973).The appellants' next contention is that the trial court erred in admitting the expert testimony of a safety engineer in proof of the Board's negligence in the selection and maintenance of the school bus stop.Their final contention is that the evidence was insufficient, as a matter of law, to establish a breach of any duty owed by the School Board to the decedent.Rather, they contend the evidence established, as a matter of law, that the proximate cause of the accidental death was the intervening negligence of Galiardo and the decedent.

On the cross-appeal, Galiardo and Liberty Mutual contend that the trial court erred in denying their motion to dismiss the survival action because the statute of limitations had run prior to the commencement of the action.

I.

The School Board had a policy of insurance with Continental Casualty Insurance Company which provided coverage for injuries arising from the ownership, maintenance, operation, or use of school busses and other vehicles while transporting pupils to and from school.This policy was designed to provide coverage concomitant with the School Board's waiver of sovereign immunity pursuant to Section 234.03(4), Florida Statutes(1971).The appellants contend that if the School Board is liable, its liability is covered under the Continental policy as opposed to the Pacific Indemnity policy.This contention is erroneous.As we opined in Surette v. Galiardo, 323 So.2d 53(Fla. 4th DCA1975) in discussing the Pacific policy:

The record reflects that the school board purchased a comprehensive general liability insurance policy from Pacific Indemnity which provided for bodily injury and property damage liability coverage for an "occurrence" which was defined to embrace "an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured...."

The policy in question specifically excluded bodily injury or property damage liability arising out of the ownership, maintenance, operation or use of any automobile owned, leased or operated by the school board.Clearly, therefore, as the trial court correctly observed, the policy in question did not cover an accident resulting from an automobile (or bus) owned, leased or operated by the school board.However, the circumstances in the instant case do not involve the ownership, maintenance, operation, use, loading or unloading of a school bus.The plaintiff's minor child was allegedly struck and killed by an automobile driven by one Joan Galiardo who had no relation to the school board or any of its activities.The presence of the school board and its insurer in the action below was not occasioned by the ownership, maintenance, operation, use, loading or unloading of a school bus, but, rather, by the school board's alleged negligence in its selection, designation, location and maintenance of school bus stop sites.Id. at 55-56.

Thus, although we decline to expressly hold that the Pacific policy provided coverage for the accident involved here, we certainly intimated that the language of that policy was sufficiently broad to encompass this accident.Since we are now asked to determine coverage, we hold that the Pacific Indemnity policy issued pursuant to the Board's waiver of immunity under Section 455.06, Florida Statutes(1971), provided coverage for the alleged injuries.We therefore find no merit in the appellants' arguments that severance should have been granted pursuant to Fla.R.Civ.P. 1.270(b).Severance under the rule is a discretionary matter and the decision of the trial court will not be disturbed absent a clear showing of an abuse of discretion.That showing is conspicuously absent in this case.

II.

Our determination of appellants' next contention necessitates a brief summary of the parallel courses which these cases have taken through the courts.

In Case No. 1, Pacific Indemnity moved for severance pursuant to Section 455.06(2), Florida Statutes(1971) which provides for the waiver of governmental immunity of political subdivisions of the State to the extent of their insurance coverage, and prohibits the suggestion of such coverage in any trial.The trial court held Section 455.06(2) unconstitutional and Pacific Indemnity sought common law certiorari review in this Court.We transferred the cause to the Florida Supreme Court.School Board of Broward County v. Surette, 277 So.2d 604(Fla. 4th DCA1973).The Supreme Court affirmed the trial court holdingSection 455.06(2) unconstitutional to the extent that it prohibited the suggestion of insurance coverage.School Board of Broward County v. Surette, 281 So.2d 481(Fla.1973).

Trial then commenced in Case No. 2.A direct verdict was entered in favor of the School Board and Pacific Indemnity; the plaintiff thereupon voluntarily dismissed her claim against the Galiardos and Liberty Mutual.The final judgment which was entered pursuant to the directed verdict was reversed by this Court and the cause was remanded for a new trial.Surette v. Galiardo, 323 So.2d 53(Fla. 4th DCA1975), cert. denied, 339 So.2d 194(Fla.1976).

In Case No. 1, the School Board and Pacific filed a renewed motion to sever the insurance company and to suppress the mention of insurance, notwithstanding the Supreme Court's prior ruling.They contended that Carter v. Sparkman, 335 So.2d 802(Fla.1976) impliedly overruled the Supreme Court's prior holding in School Board v. Surette, 281 So.2d 481(Fla.1973) and that Carter should control the disposition of their motion.After the trial court held that the principle of law announced in School Board v. Surette, 281 So.2d 481(Fla.1973) was the established and controlling law of the case, a direct appeal was taken to the Supreme Court.The trial court was affirmed, the Supreme Court stating:

This marks the third appearance of this cause in this Court.School Board of Broward County v. Surette, 281 So.2d 481(Fla.1973);School Board of Broward County v. Surette, 339 So.2d 194(Fla.1976).The occasion for its most recent visit stems from an order entered by the Circuit Court of the Seventeenth Judicial Circuit for Broward County,...