Tucker v. Shelby Mut. Ins. Co. of Shelby, Ohio, BB--201

Decision Date06 April 1977
Docket NumberNo. BB--201,BB--201
Citation343 So.2d 1357
PartiesJulia Fay TUCKER, by and through her father and next friend, William Tucker, and William Tucker, Individually, Appellants, v. SHELBY MUTUAL INSURANCE CO. OF SHELBY, OHIO, and Lou Goldman, Appellees.
CourtFlorida District Court of Appeals

Paul R. Stern, Stern & LaRue, Daytona Beach, for appellants.

J. Richard Caldwell, Jr. and Sutton G. Hilyard, Jr., Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees.

ERVIN, Judge.

This is an appeal by plaintiff-appellants from a cost judgment awarding certain accrued costs in favor of defendants-appellees. Julia Fay Tucker, a minor, through her father and next friend, William Tucker, brought a personal injury action against appellees based upon the negligent operation of an automobile by appellee Lou Goldman. She sought damages for bodily pain, suffering and disfigurement. William Tucker, individually, in the same action, sought damages for medical expenses and the denial of the services of his child resulting from the accident. On June 18, 1975, Shelby Mutual Insurance Company filed its offer of judgment in the amount of $6,000.00, plus costs accrued, for the combined claims of Julia Fay Tucker and of William Tucker, individually. The offer of judgment was refused. The case proceeded to trial and on November 20, 1975, a verdict was returned assessing damages in favor of Julia Fay Tucker in the amount of $1,500.00 and William Tucker in the amount of $2,029.20.

The Tuckers appealed the cost judgment which denied their costs incurred after the offer of judgment, alleging generally that Fla.R.Civ.P. 1.442 does not permit an offer in gross to two parties plaintiffs having separate causes of action. Rule 1.442 provides in part:

'At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the advrese party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. If the adverse party serves written notice that the offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer.'

The Tuckers argue that because of the specific wording of the rule, an offer may only be made by one party to another in a specific action and does not apply to a single offer to two parties having separate causes of action. Thus they conclude that an offer of judgment addressed to two parties is void unless it directs the specific amount to be paid each party. The claims for damages of Julia Tucker and her father are separate and distinct. A parent's right of action for recovery of loss of his child's services and medical expenses is independent of the right of action of the child arising from the same incident. Cicero v. Paradis, 184 So.2d 212 (Fla.2nd DCA 1966). Still, it is obvious that joinder of the two distinct claims into one cause of action is, under the circumstances, most appropriate. In the first place the child can not bring the cause of action in her own right but may only sue by a duly appointed representative, or as in this case, by her next friend, her father. Fla.R.Civ.P. 1.210(b). Secondly, since the claims of the respective parties arose from the same transaction, their interests may be joined in the same action. Fla.R.Civ.P. 1.210(a...

To continue reading

Request your trial
17 cases
  • Barger for Wares v. Cox
    • United States
    • South Dakota Supreme Court
    • August 28, 1985
    ...Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Botelho v. Curtis, 28 Conn.Supp. 493, 267 A.2d 675 (1970); Tucker v. Shelby Mutual Ins. Co. of Shelby, Ohio, 343 So.2d 1357 (Fla.App.1977); Jones v. City Council of Augusta, 100 Ga.App. 268, 110 S.E.2d 691 (1959); Rader v. Collins, 130 Ind.App. 22......
  • Berges v. Infinity Ins. Co.
    • United States
    • Florida Supreme Court
    • November 18, 2004
    ...courts have never considered court approval a prerequisite to a valid settlement offer for a minor. See Tucker v. Shelby Mut. Ins. Co., 343 So.2d 1357, 1359 (Fla. 1st DCA 1977) (settlement offer binding against minor even though acceptance of such offer required court approval), abrogated o......
  • Burden v. Dickman
    • United States
    • Florida District Court of Appeals
    • June 6, 1989
    ...services and medical expenses is independent of child's right of action arising from same tortious incident); Tucker v. Shelby Mut. Ins. Co., 343 So.2d 1357 (Fla. 1st DCA 1977) (same); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA), rev. dismissed, 312 So.2d 758 (Fla.1975) (same). T......
  • Dudley v. McCormick
    • United States
    • Florida District Court of Appeals
    • November 16, 2001
    ...Her individual claims, although arising out of the same accident, were distinct from those of her son. See Tucker v. Shelby Mut. Ins. Co., 343 So.2d 1357, 1358 (Fla. 1st DCA 1977) ("A parent's right of action for recovery of... medical expenses is independent of the right of action of the c......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT