Weinstein v. National Car Rentals, s. 73-421

• Decision Date: 21 December 1973
• Docket Number: 73-459,Nos. 73-421,s. 73-421
• Citation: 288 So.2d 509
• Parties: Maurice WEINSTEIN et al., Appellants, v. NATIONAL CAR RENTALS et al., Appellees. Robert LANDIS, Appellant, v. Maurice WEINSTEIN et ux. et al., Appellees.
• Court: Florida District Court of Appeals

Page 509

288 So.2d 509

Maurice WEINSTEIN et al., Appellants, v.NATIONAL CAR RENTALS et al., Appellees.

Robert LANDIS, Appellant, v.Maurice WEINSTEIN et ux. et al., Appellees.

Nos. 73-421, 73-459.

District Court of Appeal of Florida, Third District.

Dec. 21, 1973.

Opinion Clarified and Rehearing Denied Feb. 4, 1974.

Whitman & Wolfe, Miami, for the Weinsteins and Nixons.

Weinstein & Bavly, Miami, for Landis.

Adams, George, Wood, Schulte & Thompson, Jeanne Heyward, Miami, for appellees.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

Plaintiff-appellants and defendant-appellantRobert Landis appeal the trial court's order granting defendant-appellees post judgment relief by way of proportionally setting-off against and deducting the sum of $20,000 from the sums awarded plaintiff-appellants.

Plaintiffs, Maurice and Minnie Weinstein and Barney and Rose Nixon, sustained serious injuries as the result of a collision involving three automobiles.Plaintiffs filed suit against defendants National Car Rentals, Randy Herman, Dr. Herman and Robert Landis.Prior to trial, plaintiffs entered into a so called 'Mary Carter Agreement' with defendant Landis and his insurer, Nationwide Mutual Fire Insurance Company, whereby Robert Landis was to continue as an active defendant in the litigation but his own maximum liability (i. e. $20,000) would be diminished proportionately by increasing the liability of the other co-defendants.The agreement further provided that if plaintiffs should receive a total verdict of less than $180,000, then Nationwide would pay for itself and Landis $20,000 over and above the total verdict.At the conclusion of the trial, the jury returned a verdict in the sum of $100,000 for plaintiffs against defendantsRandy Herman, Dr. Herman and National Car Rentals; however, Robert Landis was absolved.After judgment was entered thereon, defendant-appelleesRandy Herman, Dr. Herman and National Car Rentals filed a motion for entry of a set-off in the amount of $20,000 which plaintiffs were entitled to receive from defendant Landis and his insurer pursuant to the Mary Carter Agreement.The trial judge granted the motion and plaintiffs and defendant Landis individually appealed therefrom.Both appeals were consolidated.

On appeal, all appellants contend that the trial court erred in granting appellees' motion for set-off.

First, we note that Mary Carter Agreements in Florida are not void as against public policy and an order directing a set-off based thereon is not proper.SeeBooth v. Mary Carter...