Pacific Indemnity Company v. Broward County, and Florida Airmotive Sales, Inc., 465 F.2d 99

Pacific Indemnity Company v. Broward County, and Florida Airmotive Sales, Inc.

465 F.2d 99

5th Cir.

1972

Check Treatment

*2 stipulation par- suant between Brodnax, Samuel Jr., A. Kermit G. Kindred, entered. The Miami, ties a order was Fla., for Pacific Indem- jury nity on the cause tried before a Co. Indemnity main claim of Pacific negligence GEWIN, and dam- Before COLEMAN and IN ages GRAHAM, Judges. cross-claim rаised Airmotive’s Circuit separately moved in its counter-cross-claim. and the Airmotive’s counts of dismiss jury in favor of both returned verdicts alia, because, inter Airmo- Indemnity against Pacific give County notice failed to tive had $389,000 and in favor Indemnity’s the time within claims Pacific claim jury the statute. of Air- it. The also found favor *3 against the motive its cross-claim during Thereafter the entire awarding damages $150,000, of proceedings, motions which included two against County counter- the on its by summary judgment County for the against Airmotive. cross-claim cross-claim, through the on Airmotive’s Following entry judgment on the of order, hearing up until the County cross-claim, the filed Airmotive’s specific trial, all evidence no close of judgment for a a motion for N. O. andV. made of the issue of notice was mention hearing After a on the mo- new trial. County by Un- Airmotive. either the or granted tion the the trial court local the der the court's rules district N.O.Y., judgment the motion vacated parties were in their judgment on its in favor of Airmotive stipulation the as to to set forth facts crоss-claim, and entered disagreement, the was which there no County. appeals from Airmotive for determination judgment.1 that undisposed al- all Airmotive’s motions. Although ques- parties other raise legation County not was of notice appeal, only prob- tions we reach stipulated fact,2 nei- set forth as a interplay lem the sub- between question in their ther included the 16 F. stantive law of Florida and list of issues to be determined. concerning pre-trial R.Civ.P. orders. Coun- stipulation that did indicate ty’s the cross-claim motions to dismiss importance Florida Of here is central of no- were on the absence based 95.08, Statute F.S.A.: § by the acted on tice to be remained “Every any county shall claim hearing pend- all At court. county presented to the board of be ing were denied. motions to dismiss year commissioners one from within due, cause, mention ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍no said claim At the trial of the time shall become statutory no- present- and shall be if not made of the barred so issue until all of evi- ed.” tice the conclusion denсe, di- moved when the In their cross- count one of amended Airmotive’s rected verdict on cross-claim specifically pleaded claim that Airmotive alia, because, inter had had notice any proof compliance to introduce accordance In count with the statute. statutory provisions. with the notice realleged by two Airmotive reference fol- However motion was denied. That allegations specific number sought lowing and was one, allegation including of no- count granted judgment on Airmotive’s N.O.V. County. tice to the In cross-claim for same reason. allegation specifically of no- denied the one, all of tice contained in count denied contends that the Florida allegations specific cоunt two and notice affect statute does not court’s general de- jurisdiction included as county may to both counts a and that allegations nial of all estopped waive to assert or be lack specifically argues addition admitted. nоtice. Airmotive by appeals cross-appeals stipulation There were did However include parties litigation Indemnity agreed all the dis but all fact Pacific puted requisite matters have now been settled ex cept the issues raised Airmotive and notice. Broward appears has waived “It that in this case to be settled law . estopped allege complaint compli- failure or is to assert must prove compliance pre-requi- ance Airmotive to with the .statute as a failing stating (1) preserve site to statute valid cause action ” pleadings, (2) county, fail- the issue its or . . . ing pretrial the issue in the 254 So.2d at 238-239. stipulation, (3) im- the collective In none the eases cited have we pact procedural of these and othеr devel- found an instance where the Florida opments prior to the time of trial. courts have indicated that the absence County responds that jurisdiction notice affects the court’s part constituting an al- conduct on its hear the suit. Indeed in v. Hills Wеbb leged estoppel lack of waiver or to assert borough County, 128 Fla. 175 So. during year pe- notice must occur permitted the court a claim given. The riod in which notice *4 in the absence of formal notice contem County is- contends it did plаted by the In statute. several suits proof of sue that in absence involving analogous requirem notice jurisdiction 3 notice the court lost against municipalities ents of claims suit. the Florida Courts that have indicated may suit A cases be maintained in review оf the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Florida some cir careful in us that the Florida courts cumstances the absence of no convinces at Bay tice all. view notice Rabinowitz v. condition Town of precedent (Fla.1965); Islands, Harbor White- 178 to a claimant’s suit. So.2d 9 City Pompano Tillman Beach, County, hurst 91 Fla. Hernando v. 100 v. (Fla.1957).4 perhaps So.2d 53 107 So. 627 the foun- is We therefore con proof clude point. that the dation case Whitehurst In absence of notice Supreme deprive jurisdic does not Court affirmed a Florida court of tion, judgment Coun- but that for the notice is an essential ele ty plaintiff where to al- of a had failed ment claimant’s suit which must be lege alleged presented proved that the claim had an absence of statutory peri- admission, to estoppel within the or waiver od. pre- requirement In the apparent “The is a case it is that right requisite action has nor ad- neither waived county.” plead- mitted notice in Unlike fact. ings Tillman, supra, Rabinowitz and also, Fradley 107 So. 628. See v. allege Airmotive did not in its cross- County Dаde, (Fla.App. So.2d County by claim that the its actions had 1966); Kahl Board v. Com estopped or waived was to assert lack County,

missioners of Dade 162 So.2d alleged notice. it had that (Fla.App.1964). recently in Most required ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍notice. Light Co., Ribler v. Florida Power and Cоunty by its answer denied that (Fla.App.1971), involving 254 So.2d 238 Airmotive had notice County arising a suit and moved to dismiss. issue was operation airport, from its of this same joined pleadings. clearly thus in the the court affirmed a in favor complaint because the Airmotive contеnds that even if the allege compliance to stat constituted a sufficient ute. allegation notice, denial of the it sub- contrary prevail 3. The Florida Courts do not did seem to distin However guish cases, municipalities g., between counties and Dora e. Town Mount earlier regard. Cf., Toop Metropolitan Green, in this 117 Fla. So. (Fla.App. (1934). Dade 151 So.2d 69 1963). nec- issue, to plaint drafted with view is sequently waived the abandoned jurisdiction allegations to essary a re- estopped it as to assert or became in some claim. The answer must state a participation in the County's sult of the respond aver- to claim and each fashion stipulation. This amounts pre-trial complaint. If the answer although ment in the the assertion deny in the com- fact, fails an averment it waive did did not waive 8 F. plaint it deemed admitted. complain is estopped or become is But order R. Civ.P. notice. failed to proof drafted with a what view as disagree. We stipu- preparing the will be at trial. gives Rule 16 F.R.Civ.P.5 part of the order lаtion which forms ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in conduct trial court discretion broad party are forth the facts which each sets ing nar pre-trial procedures in order to agreed remain. and the issues which issues, fact the field of row the reduce Nothing in Rule F.R.Civ.P. simpli controversy resolution, and to suggests that a local rule involved here fy re offer and the mechanics waives or admits issue as ceipt v. Air Carrier Laird evidence. opponent which his burden Engine Service, by failing to include the issue Certainly stipulated list of regard, and order is most useful in this issues. subse when does control entered The failure to indicate in the quent modi unless course of action re order that an remains to be issue *5 injus prevent fied manifest at trial to usually precludes of solved at trial the tice. Rule 16 F.R.Civ.P. on at fer of the issue trial —to pre-trial supersedes “The order detriment of the who has bur governing pleadings becomes the prove the This common den to issue. pattern of lawsuit. The issues sense rule has been followed where they ought defined, having thus theоry recovery plaintiff pleads in a to in the absence to be adhered complaint, preserve the fails to but good some and sufficient reason which order, theory pre-trial in Fernandez largely must rest within the discretion (2d Co., v. United Fruit 200 F.2d of the trial cоurt.” 1952), cert. denied Cir. 345 U.S. Abrams, F.2d 195-196 Case v. (1953), Ct. S. L.Ed. (10th 1965). Cir. pleads a where the defendant number Although pre-trial may fails to affirmative which he order defenses during oper pre-trial, supersede Shell it does not Strong, the is ate in the manner to frame same per pleadings. manner order The com- In this sues as earlier action, may any in make an dis- Tlie court shall order the court its attorneys par- at the con- recites the action taken cretion direct for the ference, appear to the it amendmеnts allowed ties to before confer- agreements pleadings, and the made ence to consider issues; parties (1) simplification of the matters con- as to The necessity desirability sidered, (2) for and which limits The disposed pleadings; not admis- trial to those amendments agreements counsel; obtaining (3) possibility and such sions or admis- the subse- order when entered controls of documents which sions of fact and action, unnecessary quent proof; unless modi- course of the will avoid prevent (4) manifеst the trial to fied The limitation of the number injustice. expert witnesses; in its discretion The court may admissibility preliminary (5) establish may placed be on which actions for calendar issues to a master find- reference of provided and ings consideration as above for as evidence when to be used jury may to jury; either confine calendar trial is to be non-jury may or extend or to actions in actions other matters as aid Such disposition to it all actions. the action. prepare parties mits the to and the court Accord- they ingly, court, trial with for the assurance that district they ready notwithstanding verdict, know what issues is affirmed. meet.6 ON FOR PETITION REHEARING In the case Airmotive AND PETITION FOR REHEAR- prove part of had as its the burdn ING EN BANC County that cause of action PER CURIAM: had been Rehearing The Pеtition for alleged. is denied When ad Judge panel and no member this nor preserved mitted for trial regular active service the Court hav- grounds order ing requested polled the Court be objection technical the event (Rule rehearing banc, en 35 Fеderal attempted prove notice at Procedure; Appellate Rules Local trial. However the court the exercise 12) Rule Fifth the Petition Circuit prevent of its discretion to in manifest Rehearing En Bane is denied. justice under Rule 16 F.R.Civ.P. could during hаve amended the order permit proof question. on the

Alternatively, the could court have or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dered a new limited trial under where,

F.R.Civ.P. as in circum these stances, good issue was faith

overlooked all concerned. But hold, contends, as Airmotivе waived notice because NATIONAL LABOR RELATIONS BOARD, Petitioner, failed to remind Airmotive pre-trial stipulation that Airmo tive still had to that it had MARINE, INC., ERIE DIVISION OF LIT- *6 logic notice would strain the INDUSTRIES, Respondent. TON system of our adversarial and would de No. 71-2099. stroy pre much of the usefulness of a Appеals, United States Court trial order as device a to reduce and lim Third Circuit. it issues at trial. May 26, Argued Airmotive did not ask the trial court Aug. 2, Decided following entry new N.O.V. and has stated to this court that it does not seek new trial. Airmotive failed to a mate-

rial element of its cause of action

6. The courts have 122, (9th followed similar 1941) ; F.2d 126-127 Cir in the more common Neuspiekle City Knoxville, instance where v. 48 offer of aof new claim (E.D.Tenn.1969) [involving or de F.R.D. 441 attempted fense is non-statutory defect]; trial when men no Washi tion of the claim or ngton Acceptance defensе has been v. General Motors pre made in either the Corp., ; or the (S.D.Fla.1956) F.R.D. 19 370 g., trial order. E. where a defendant Aircoach, F.Supp. Bernard 117 v. U. S. defense, has failed to mention 134, (S.D.Calif.1953). g., South 137 E. where Transportation ern Pacific plaintiff Co. v. Niel mention a sen, 121, (10th claim, Futura, Inc., F.2d Cir. Monod v. 415 F.2d 1971) ; Compania Valdesa (10th Cf., Naviera v. Petroleiros, Frota Nacional de Wright, 348 F. Meadow Gold Co. Products (10th 1965) Taylor ; 2d U.S.App.D.C. Cir 278 F.2d Motors, Reo (1960). ; 1960) Giesy, Cir Frank v.