LOUIS R. SMITH, SR., APPELLANT,
v.
FORTUNE INSURANCE COMPANY, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Smith appealed a judgment against him on a homeowner's insurance claim after his mobile home was destroyed by fire set by his daughter Cathy. The court affirmed, holding that Cathy was an adverse party witness whose out-of-court admissions to police were properly admitted as substantive evidence, and that the insurer properly invoked an exclusion for losses caused by household members' malicious acts.
The court held that Cathy was an adverse party even though not named in the pleadings, because she occupied an adverse position toward Smith and could have been named as a party. Her out-of-court statements to police were properly admitted as admissions under the hearsay exception and constituted substantive evidence from which the jury could infer she started the fire willfully and maliciously, supporting Fortune's invocation of the policy exclusion.
[1] A witness who is not a named party to the lawsuit may be considered an "adverse party" if they occupy an adverse position toward the party seeking to call them and could…
[2] A party may impeach the testimony of an adverse party witness.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“One need not be named in the pleadings or aligned in the pleadings in opposition to the party calling him, to be called as an adverse party witness.”
Establishes that adverse party status does not require formal naming in pleadings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceApproximately one year after Smith obtained a homeowner's policy from Fortune Insurance Company for his mobile home, the home was completely destroyed…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Breach Of Insurance Contract cases and more on FLexlaw
BOOTH, Judge.
This cause is before us on appeal from a judgment entered on a jury verdict against appellant Smith on his claim under a homeowner’s policy issued by appellee, Fortune Insurance Company. Approximately one year after the policy was issued, a fire completely destroyed Smith’s mobile home and its contents. An investigation by the Bradford County Sheriff’s Department revealed that Smith’s 19-year-old daughter, Cathy, apparently acting deliberately, had set fire to the mobile home. Fortune refused to pay out proceeds under the policy, citing the following exclusionary provision:
This company shall not be liable under Section I of this policy:
10. For loss due to acts of malicious mischief or vandalism perpetrated by any member of the household or a person in lawful possession or custody of the mobile home.
Smith brought suit for recovery under the policy. After a jury trial, judgment was entered in favor of Fortune.
At trial, Cathy Smith was called by Fortune as an adverse party witness. She denied starting the fire and also denied any knowledge of how or where the fire started. Fortune then called Lieutenant Moore of the Bradford County Sheriff’s Department, who testified, over objection, concerning an interview he had with Cathy at the home of one of her friends on the day after the fire. He testified that, during the interview, Cathy told him she had been “playing with matches” in her bedroom and the bed cover caught fire. Lieutenant Moore further stated that Cathy told him she did not attempt to put out the fire and that, although she knew her family was in the trailer, it did not really matter to her because “she had had all she could stand, all she wanted was out.”
Other evidence adduced at trial indicated that the fire had started in what appeared to be a bedroom area of the mobile home and that, when the fire started, Cathy took three packed suitcases from her room and fled the scene.
On appeal, Smith contends that Lieutenant Moore’s testimony regarding Cathy’s out-of-court statements should not have been allowed because Cathy, not a party to the lawsuit, was not an “adverse party,” and, under Rule 1.450, Florida Rules of Civil Procedure and Florida Statutes, Section 90.-09, Lieutenant Moore’s testimony was improper as impeachment of one’s own witness and as hearsay.
We find that Cathy was an “adverse party,” even though not a “party” named in the pleadings. Accordingly, Fortune’s impeachment of her testimony was proper under Rule 1.450(a), and Lieutenant Moore’s testimony regarding Cathy’s out- of-court statements came within the “admissions” exception to the hearsay rule. Florida Statutes, Section 90.803(18)(a); Hunt v. Seaboard Coastline Railroad Company, 327 So. 2d 193 (Fla.1976). Cathy’s admissions constituted substantive evidence that she started the fire, upon which the jury could base an inference that she did so willfully and maliciously.
One need not be named in the pleadings or aligned in the pleadings in opposition to the party calling him, to be called as an adverse party witness. Rubin v. Kapell, 105 So. 2d 28, 32 (Fla.3d DCA 1958). Rather, the test is whether the party sought to be called “occupied an adverse position toward” the party seeking to call him, Degelos v. Fidelity and Casualty Company, 313 F. 2d 809, 815 (5th Cir. 1963), and could have been named as a party. Chumbler v. Alabama Power Company, 362 F. 2d 161, 163 (5th Cir. 1966).
In the instant case, all of Cathy’s belongings, which she did not take with her, were in the mobile home and destroyed by the fire. Under the terms of the policy being sued upon, Cathy was an “insured;”1 and, therefore, she stood to gain financially by a resolution of the case favorable to her father. Also, Cathy was the alleged “wrongdoer” whose conduct caused the loss for which Fortune was potentially liable and which gave rise to the instant action.
Accordingly, the judgment is AFFIRMED.
ROBERT P. SMITH, Jr., C. J., and SHAW, J., concur. . Under the heading “Definitions — Section I,” the insurance policy provides, in pertinent part:
1. Insured: The unqualified word “Insured” includes:
(a) The Named Insured stated in the Declarations of this policy; and
(b) If residents of his household, his spouse, the relatives of either, and any other person under the' age of 21 in the case of any Insured.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Botte v. Pomeroy, 497 So. 2d 1275 (Fla. 4th DCA 1986)…on. Under Florida law a party need not be named in the pleadings to be called as an adverse party, so long as the party occupies an adverse position at trial to the calling party and could have been named as a party. Smith v. Fortune Insurance Co., 404 So. 2d 821, 823 (Fla. 1st DCA 1981). Edwards meets the Smith criteria for adversity; each factor identified by that court as significant is present here. Under the Smith analysis, with which we concur, the trial court erred in not allowing Botte to call Edward…
-
Medina v. Variety Child's. Hosp., 438 So. 2d 138 (Fla. 3d DCA 1983)…fendant Variety Children’s Hospital, plaintiff should have been permitted to call Dr. Meneia, a physician/agent of that hospital, as an adverse witness so as not to be bound by the witness’s unfavorable testimony. See Smith v. Fortune Insurance Co., 404 So. 2d 821 (Fla. 1st DCA 1981). Because the errors already addressed require a new trial, we need not discuss the more difficult issue, i.e., that the jury verdict was an impermissible compromise. It is extremely unlikely that another jury will return a simi…
-
D.J.G. v. State, 524 So. 2d 1024 (Fla. 1st DCA 1987)…party witness, (citation omitted).... the test is whether the party sought to be called “occupied an adverse position toward” the party seeking to call him (citation omitted) and could have been named as a party. Smith v. Fortune Insurance Company, 404 So. 2d 821, 823 (Fla. 1st DCA 1981). Accord Austin v. State, 461 So. 2d 1380, 1383 (Fla. 1st DCA 1984) — to be considered adverse, “the witness must give testimony prejudicial to the cause of the party calling him.” It is well settled that self-interest of a…
Authorities Cited
- Hunt v. Seaboard Coast Line R.R. Co., 327 So. 2d 193 (Fla. 1976)
- Mrs. Edith Adams Degelos v. The Fid. & Cas. Co. OF NEW York & United Servs. Auto. Ass'n, 313 F.2d 809 (5th Cir. 1963)
- Rubin v. Kapell, 105 So. 2d 28 (Fla. 3d DCA 1958)
- Chumbler v. Ala. Power Co., 362 F.2d 161 (5th Cir. 1966)