A. O. SMITH HARVESTORE PRODUCTS, INC., AN ILLINOIS CORPORATION, APPELLANT,
v.
SUBER CATTLE COMPANY, A FLORIDA CORPORATION AND FLORIDA FARM BUREAU INSURANCE COMPANY, AN INSURANCE COMPANY AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLEES
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Harvestore, a manufacturer of specialized feed silos, appealed a jury verdict finding it negligent and in breach of warranty after a fire destroyed a customer's feed mill. The court affirmed the negligence verdict but reversed the trial court's denial of prejudgment interest to the insurance company, holding that the insurer's fixed damages warranted prejudgment interest even though the insured customer was not entitled to it.
The court held: (1) the business loss evidence was sufficient to go to the jury despite imprecision; (2) Harvestore had a duty to warn because the unique aspect of the silo—its requirement to remain virtually oxygen-free to prevent spontaneous combustion—created a special risk requiring instructions; (3) prejudgment interest was proper for FFB because its damages were liquidated and fixed from the date it paid the insured, distinguishing it from the insured's claim; and (4) the jury instruction issue was procedurally defective and not addressed.
[1] A jury verdict awarding business loss damages will not be disturbed if the evidence provides a reasonable basis for the jury's finding of the existence and amount of dama…
[2] A duty to warn may arise from the unique aspects of a product that create a special risk of harm if not used strictly according to directions, even if the product is gene…
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Join FLexlaw to unlock all legal intelligence“the evidence was sufficient to form a reasonable basis upon which the jury could have found the existence and amount of damages. The law requires only that the evidence be of "such certainty as satisfies the mind of a prudent and impartial person."”
Establishes the standard for sufficiency of damages evidence; precision is not required, only reasonable basis for jury finding.
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Join FLexlaw to unlock all legal intelligenceHarvestore manufactured oxygen-limiting feed silos designed to keep feed moist for efficient cattle digestion. Suber Cattle Company purchased two Harv…
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WENTWORTH, Judge.
Appellant Harvestore seeks review of a final judgment, entered pursuant to a jury verdict finding negligence and breach of warranty of fitness. Appellee Florida Farm Bureau Insurance Company (FFB) cross-appeals the order of the trial court denying its post-verdict motion for prejudgment interest. We affirm the final judgment, but conclude that the denial of prejudgment interest was error. Appellant is a company which manufactures specialized high-moisture feed silos called Harvestores. These silos are designed to be oxygen limiting so that the feed remains moist and may be digested more efficiently by cattle. The result is that less feed is required to establish the desired weight gain than if conventional dry feed is used. Appellee Suber Cattle Co. (Suber) purchased two of these Harvestores in 1967 and 1968. In late August of 1975, the grain unloader in one of the Harve-stores became inoperable. In order to get the grain out of that silo, Súber used a substitute auger which permitted air to enter. In November, 1975, a fire began in that Harvestore and the Quincy Fire Department and Gretna Volunteer Fire Department were called to the scene. The firefighters, not knowing how to fight the fire, used water which made the situation worse.1 Later, an explosion blew the top off of the Harvestore, and as a result, a substantial portion of Suber’s feed mill complex was destroyed by fire. FFB paid Súber for the property damage but not for any business loss. Therefore, Súber and FFB brought a suit against Harvestore alleging negligence and breach of warranty. FFB sought reimbursement for the sums paid to Súber, and Súber sought recovery for alleged loss of business. The jury verdict in favor of the plaintiffs attributed 10% of the fault to Súber for negligence.
In its first point on appeal, Harve-store argues that the evidence of business loss presented by Súber was too speculative and conjectural as a matter of law to be presented to the jury. While we agree that the business loss damages might have been more definitively established, the evidence was sufficient to form a reasonable basis upon which the jury could have found the existence and amount of damages. The law requires only that the evidence be of “such certainty as satisfies the mind of a prudent and impartial person.” Twyman v. Roell, 123 Fla. 2, 166 So. 2d 215, 218 (1936). Inability to give the exact or precise amount of damages does not preclude recovery. Conner v. Atlas Aircraft, 310 So. 2d 352 (Fla. 3d DCA 1975). We therefore decline to disturb the jury verdict.
Harvestore next argues that the verdict was contrary to the law and evidence, because of its contention that no evidence was presented on the existence of a dangerous risk requiring a duty to warn; the evidence showed that the Harvestore was almost fireproof, and safer than conventional silos even when used improperly. Therefore, according to Harvestore, there was no duty to provide instructions. Harvestore’s argument would indicate a misunderstanding of the plaintiffs’ allegations. The special risk asserted is the risk involved in failing to strictly observe the directions for use. The testimony substantiates the unique components of the Harve-store in that in order to process the high-moisture feed, the system must be virtually oxygen free. Several witnesses testified that they understood the reason for not allowing oxygen into the system to be that its presence would impede that process. However, there was no evidence that Harvestore warned its customers of the special risk of spontaneous combustion and fire control if oxygen entered the system. It was that unique aspect of the Harvestore silos which was the basis for the assertion of increased risk from spontaneous combustion and which forms the basis for finding a duty to warn.
Finally, Harvestore raises as error the trial court’s failure to give several allegedly requested jury instructions. However, there is no evidence in the record that the instructions were in fact requested or that there was any objection to their omission. We therefore decline to address this point. Fla.R.Civ.P. 1.470(b).
On the cross-appeal, FFB argues that the trial judge erred in denying its motion for prejudgment interest, because its damages were liquidated at the time it issued the last draft to Súber Cattle Company. Harve-store argues that prejudgment interest was not appropriate in this case, because the amount of damages was in dispute and it could not have known what sum was owed until the jury spoke. See McCoy v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979).
Initially we note that the persuasiveness of Harvestore’s argument is diminished if not obliterated by our opinion in Bergen Brunswig Corporation v. Dept, of Health and Rehabilitative Services, 415 So. 2d 765 (Fla. 1st DCA 1982). However, we need not rely on Bergen Brunswig in determining whether prejudgment interest was proper in this case, because the damages incurred by FFB were fixed at the time it paid Súber and were never disputed in the proceedings below. Therefore, even under the traditional principles for awarding prejudgment interest, it was proper here.
Harvestore also argues that FFB was not entitled to prejudgment interest because the jury did not award it and because the rights of the insurer cannot be greater than those of the insured. Since Súber was not entitled to interest, Harvestore maintains that its insurer could not be. Neither of these contentions has merit.
First, prejudgment interest is permissible even though a verdict fails to allow it or indicate a decision to allow interest. Bro-ward County v. Sattler, 400 So. 2d 1031 (Fla. 4th DCA 1981). Second, an insurance company may be entitled to prejudgment interest when a cause is based on breach of warranty and negligence even though the insured in not so entitled. Alarm Systems of Florida v. Singer, 380 So. 2d 1162 (Fla. 3d DCA 1981) and Singer v. Durbin, 348 So. 2d 370 (Fla. 3d DCA 1977). This case presents such a situation because the damages sought by FFB (reimbursement for sums paid) were separate and distinct from those sought by Súber (recovery of uninsured losses).2 As previously noted, FFB’s damages were fixed as of a prior date and prejudgment interest should have been awarded.
The final judgment is AFFIRMED, but the order denying FFB’s motion for prejudgment interest is REVERSED, and this cause is REMANDED for further proceedings consistent with this opinion.
ERVIN and SHIVERS, JJ., concur. . Evidence at trial indicated that the fire could have been contained by either sealing the Harvestore or using 002.
. This assumes, although we need not so decide, that Súber would not be entitled to interest.
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Keene v. Chicago Bridge & Iron Co., 596 So. 2d 700 (Fla. 1st DCA 1992)…ondition or special risk can be excused as a matter of law only if the workers’ knowledge is conclusively shown by the evidence to be equal to or greater than that of the first subcontractor. A.O. Smith Harvestore Products, Inc. v. Suber Cattle Co., 416 So. 2d 1176 (Fla. 1st DCA 1982); Horton v. Gulf Power Co., 401 So. 2d 1384 (Fla. 1st DCA), rev. denied, 411 So. 2d 382 (Fla.1981). While [*705] such knowledge is a valid defense to the alleged breach of duty to warn, however, it is not a defense to the charge o…
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Underwriters AT LaCONCORDE v. Airtech Servs., Inc., 493 So. 2d 428 (Fla. 1986)…ice. 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…
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Underwriters AT LaCONCORDE v. Airtech Servs., Inc., 468 So. 2d 386 (Fla. 3d DCA 1985)…he first and fourth districts have enunciated a rule relieving the court of the obligation to submit the question of prejudgment interest to the jury where the amount of damages is liquidated. See A.O. Smith Harvestore Products v. Silver Cattle Co., 416 So. 2d 1176, 1179 (Fla. 1st DCA 1982) (where insurer paid insured pursuant to insurance policy and amount of damages not disputed below, damages incurred by insurer liquidated upon payment, and prejudgment interest “permissible even though verdict fail[ed] to a…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Twyman v. Gus Roell, 123 Fla. 2 (Fla. 1936)
- Bergen Brunswig Corp. & Health Application Sys., Inc. v. State of Fla. Dep't OF Health & Rehabilitative Servs., 415 So. 2d 765 (Fla. 1st DCA 1982)
- Conner v. Atlas Aircraft Corp., 310 So. 2d 352 (Fla. 3d DCA 1975)
- McCOY v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979)
- Broward Cnty. v. Sattler, 400 So. 2d 1031 (Fla. 4th DCA 1981)
- McCLUSKEY v. Wittenberg, 400 So. 2d 1031 (Fla. 5th DCA 1981)
- Alarm Sys. OF Fla., Inc. v. Singer, 380 So. 2d 1162 (Fla. 3d DCA 1980)
- Singer v. I.A. Durbin, Inc., 348 So. 2d 370 (Fla. 3d DCA 1977)