Underwriters at LaConcorde v. Airtech Services, Inc.

• Decision Date: 03 July 1986
• Docket Number: No. 67237,67237
• Citation: 493 So.2d 428,11 Fla. L. Weekly 300
• Parties: 11 Fla. L. Weekly 300 UNDERWRITERS AT LaCONCORDE, as Subrogee of International Aircraft Sales and Leasing Corporation, Petitioner/Cross-Respondent, v. AIRTECH SERVICES, INC., Respondent/Cross-Petitioner.
• Court: Florida Supreme Court

Page 428

493 So.2d 428

11 Fla. L. Weekly 300

UNDERWRITERS AT LaCONCORDE, as Subrogee of International Aircraft Sales and Leasing Corporation, Petitioner/Cross-Respondent, v. AIRTECH SERVICES, INC., Respondent/Cross-Petitioner.

No. 67237.

Supreme Court of Florida.

July 3, 1986.

Rehearing Denied Sept. 26, 1986.

Notice and Cross-Notice for Review of the Decision of the District Court of Appeal--Direct Conflict of Decisions; Third District--Case No. 84-230.

H.C. Palmer, III of McDonald & McDonald, Miami, for petitioner/cross-respondent.

Gilbert E. Theissen of Walsh, Theissen & Boyd, Fort Lauderdale, for respondent/cross-petitioner.

BARKETT, Justice.

We granted review in this case because the decision below, Underwriters at LaConcorde v. Airtech Services, Inc., 468 So.2d 386 (Fla.3d DCA 1985), directly and expressly conflicts with A.O. Smith Harvestore Products, Inc. v. Suber Cattle Co., 416 So.2d 1176 (Fla. 1st DCA 1982), Broward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981), and Fort Pierce Toyota, Inc. v. Wolf, 345 So.2d 348 (Fla. 4th DCA 1977). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Subsequent to the Third District's decision in this case, we decided Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985). That case is controlling. Accordingly, we quash the decision below with directions to remand the cause to the trial court for the calculation of pre-judgment interest for Underwriters' out-of-pocket pecuniary loss.

We decline to expand review from the conflict question to the issues raised by respondent which were the subject matter of the cross-appeal below.

It is so ordered.

McDONALD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice, concurring in part and dissenting in part.

I agree with the Court's application of the principle stated in our recent decision of Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985), that a plaintiff is entitled to prejudgment interest from the date of the loss when the verdict has the effect of fixing the amount of damages with certainty as of that certain prior date. However, in my view the question of whether the plaintiff was entitled to prejudgment interest in this case is a moot point as there was prejudicial error requiring reversal on other grounds. ¹

By the verdict of the jury, petitioner-respondent Airtech Service, Inc., was found negligent in the provision of aircraft repair service performed on an airplane owned by International Aircraft Sales and Leasing, Inc. Airtech Service appealed the judgment rendered against it, and the subrogee-plaintiff, referred to in the record as "Underwriters at La Concorde," appealed the trial court's decision not to award prejudgment interest. The district court of appeal provided extensive discussion of the prejudgment interest issue in reaching the erroneous ² conclusion that prejudgment interest was for the jury to assess and that the failure of the plaintiff to submit a written jury instruction form justified the trial court's refusal to instruct the jury on the matter.

The question of prejudgment interest was clearly a secondary or ancillary issue before the appellate court, as the losing party at the trial, Airtech Service, was clearly the primary aggrieved party and on appeal challenged the legal propriety of any judgment being entered against it at all. Far from recognizing Airtech Service as an aggrieved appellant, the district court of appeal even questioned whether Airtech's "cross-appeal" was proper. Then it gave superficial and perfunctory consideration to the issues raised on appeal by Airtech Service. I find both of Airtech's appellate arguments meritorious and would direct reversal.

The action was brought by a party denominating itself as "Underwriters at La Concorde, as Subrogee of International Aircraft Sales and Leasing Corporation." By appropriate pleadings defendant Airtech Services, Inc., questioned whether the plaintiff was a legal person or entity with capacity to sue, sought to discover the identity and nature of the plaintiff, and gave notice that it questioned whether the plaintiff was such a legal person or entity and that it would demand proof of same at trial. See Fla.R.Civ.Pro. 1.120(a).

It is axiomatic that the capacity to sue in the courts of Florida attaches only to natural or legal persons. See, e.g., Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. 4th DCA 1982); 39 Fla.Jur.2d Parties § 8 (1982). Groups of natural persons not taking on the corporate form of a separate legal entity, such as partnerships and unincorporated associations, are not legal persons and do not have such capacity unless it is specially conferred by statute. 39 Fla.Jur.2d Parties § 2 (1982). It was not established by competent, substantial evidence at trial that "Underwriters at La Concorde" was a legal person entitled to bring a legal action in court.

It appears from the record that Underwriters at La Concorde is an unincorporated association of insurers and is not itself an entity engaged in the business of insurance or anything else. The district court of appeal disposed of Airtech's contention on this point by reference to authorities dealing with the concept of the real party in interest. The issue is not whether plaintiff was the real party in interest; concededly, the insurer who paid the insured's casualty loss would be entitled to bring the negligence action in its own name as subrogee of the insured. The issue is whether the party calling itself Underwriters at La Concorde was a person, natural or legal, with capacity to sue. Until it is established that the party bringing the action is a person, the question of whether it is a real party in interest does not arise.

Plaintiff relies on section 624.04, Florida Statutes (1979), as support for the proposition that Underwriters at La Concorde is a legal person. That statute defines "person" for purposes of the Florida Insurance Code as follows:

"Person" includes an individual, insurer, company, association, organization, Lloyds, society, reciprocal insurer or interinsurance exchange, partnership, syndicate, business trust, corporation, agent, general agent, broker, solicitor, service representative, adjuster, and every legal entity.

However, the fact that the statute gives a broad definition of "person" for purposes of the many and various regulatory provisions of the Florida Insurance Code has nothing whatsoever to do with a party's having the capacity to sue in Florida courts, which requires that the plaintiff be a natural or legal person.

There was testimony that Underwriters at La Concorde is an organization similar to Lloyd's of London. It is a matter of common knowledge that Lloyd's of London is not an insurer, nor is it a legal entity. It is an unincorporated association of insurers, the purpose of which is merely to facilitate brokerage, exchange, referral, and joint undertaking of insurance contracts by actual insurers. Because there was no proof that the plaintiff was a person, the appellate court should have reversed.

Airtech Service's other contention is that the trial court erred in instructing the jury that the failure to follow the procedures set forth in the Federal Aviation Authority's inspection regulations constituted negligence per se. On appeal, Airtech's specific argument was that the trial court had given an instruction based on a regulation not in effect at the time of the rendering of service. ³ The district court...