WORCESTER MUTUAL FIRE INSURANCE COMPANY AND SECURITY MUTUAL LIABILITY INSURANCE COMPANY, APPELLANTS,
v.
WILLIAM L. EISENBERG, APPELLEE
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Two insurance companies appealed a jury verdict finding them liable on fire and extended coverage policies covering a men's clothing store. The insurers denied coverage based on an exclusion for wave-wash damage, but the jury rejected their defense and awarded damages based on the actual cash value of destroyed merchandise.
The court affirmed the jury verdict, holding that wholesale cost evidence is relevant and admissible to establish actual cash value under the 'Broad Evidence Rule,' and that the trial court properly denied the motion for new trial and motion for apportionment of costs and fees.
“Under this rule, any evidence logically tending to establish a correct estimate of the value of the damaged or destroyed property may be considered by the trier of facts to determine "actual cash value" at the time of loss.”
Establishes the 'Broad Evidence Rule' governing valuation of damaged property for insurance purposes in Florida.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff owned a men's clothing store insured under two fire and extended coverage policies with maximum limits of $5,000 each. The plaintiff tes…
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The appellants, insurance companies, were defendants in the trial court to an action upon fire and extended coverage policies. Both companies denied coverage claiming that there was no liability because an exclusion in the policies prevented recovery for damage caused by wave-wash. At the conclusion of a jury trial, verdicts were entered against the defendants. This appeal is from a final judgpnent based on these verdicts.
The appellants present four points on appeal. The first two points in effect question the sufficiency of the evidence as to the actual cash value of the property destroyed. *576The plaintiff testified to a complete inventory made ten days prior to the loss, which reflected the wholesale cost of each item on the inventory. At the close of plaintiff’s case, the defendants moved for a directed verdict upon other grounds without questioning the sufficiency of the evidence as to actual cash value.
Both insurance policies involved in this ■cause insured the contents of appellee’s men’s clothing store “* * * to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss * * to a maximum of $5,000 under each policy. Our research discloses that this is the usual provision in policies of this type.
In order to establish to what extent an insurer is liable where “actual cash value” is the yardstick used to determine damages, it is necessary to determine what criteria is to be used to define this phrase. In New York Central Mutual Fire Ins. Co. v. Diaks, Fla.1954, 69 So.2d 786, the Supreme Court indicates that in these matters Florida will adhere to the so-called “Broad Evidence Rule.” Under this rule, any evidence logically tending to establish a correct estimate of the value of the damaged or destroyed property may be considered by the trier of facts to determine “actual ■cash value” at the time of loss. Where, as in this case, evidence of the wholesale ■cost of the destroyed merchandise is presented, it constitutes relevant evidence of actual cash value. Therefore, we think the trial judge correctly denied appellants’ motion for new trial made on the ground that there was no evidence of actual cash value.
Appellants’ remaining points urge that the trial court should have apportioned the costs and attorneys’ fees assessed against them and that the attorneys’ fees were excessive. As to the apportionment of the costs and fees, it does not appear in the record that appellants at any time requested an apportionment or even suggested that they wanted such an apportionment until appellate proceedings were instituted. Thus, this point is without merit since it is a well recognized principle of appellate practice that an objection may not be raised for the first time in appellate court upon matters which are not jurisdictional. See Condrey v. Condrey, Fla. 1957, 92 So.2d 423.
The last point directed to the amount of the attorneys’ fees cannot be considered inasmuch as appellants have not brought us the record of testimony upon which this portion of the judgment was based. Greene v. Hoiriis, Fla.App.1958, 103 So.2d 226.
Affirmed.
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Citator
Cited By (20 total)
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D.R. Mead & Co. v. Cheshire OF Fla., Inc., 489 So. 2d 830 (Fla. 3d DCA 1986)…that this testimony be admitted at the new trial. Honeywell, Inc. v. Trend Coin Co., 449 So. 2d 876 (Fla. 3d DCA 1984), approved in part, quashed in part on other grounds, 487 So. 2d 1029 (Fla.1986); Worcester Mutual Fire Insurance Co. v. Eisenberg, 147 So. 2d 575 (Fla. 3d DCA 1962). We reject the other claim of harmful evidentiary error on this issue. .We find no merit in either the appellants’ challenge to the award of pre-judgment interest, National Union Fire. Insurance Co. v. Gelfand, 477 So. 2d 28 (Fla…
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Honeywell, Inc. v. Trend Coin Co., 449 So. 2d 876 (Fla. 3d DCA 1984)…7 So. 2d 563 (Fla. 2d DCA 1963) (failure of expert witness to consider one factor in assessing compensation goes to the weight of expert’s testimony not his competency or the competency of his testimony); Worcester Mutual Fire Ins. Co. v. Eisenberg, 147 So. 2d 575 (Fla. 3d DCA 1962) (any evidence logically tending to establish a correct estimate of the value of property may be considered). We therefore reverse and remand for a new trial on damages. [t]he method of evaluation used by an appraiser-expert witne…
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Stafford Blatch v. Wesley, 238 So. 2d 308 (Fla. 3d DCA 1970)…, 31 F.S.A.; Seven-Up Bottling Co. of Miami v. George Const. Corp., Fla.App. 1964, 166 So. 2d 155. This point may not be considered because it was not raised in the trial court. Compare Worcester Mutual Fire Insurance Co. v. Eisenberg, Fla.App.1962, 147 So. 2d 575. The time set by Rule 1.510(c), R.C.P., is not • jurisdictional. It may therefore be waived by a failure to object or move for a continuance. Cf. Bernard Marko & Associates, Inc. v. Steele, Fla.App.1970, 230 So. 2d 42; Oppenheimer v. Morton Hotel Co…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NIX v. Lake W. Koontz, 103 So. 2d 226 (Fla. 2d DCA 1958)
- Condrey v. Condrey, 92 So. 2d 423 (Fla. 1957)
- N.Y. Cent. Mut. Fire Ins. Co. v. Diaks, 69 So. 2d 786 (Fla. 1954)