Cummins Alabama, Inc. v. Allbritten

548 So. 2d 258, 1989 WL 81236
CourtDistrict Court of Appeal of Florida
DecidedJuly 21, 1989
Docket88-455
StatusPublished
Cited by12 cases

This text of 548 So. 2d 258 (Cummins Alabama, Inc. v. Allbritten) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummins Alabama, Inc. v. Allbritten, 548 So. 2d 258, 1989 WL 81236 (Fla. Ct. App. 1989).

Opinion

548 So.2d 258 (1989)

CUMMINS ALABAMA, INC., Appellant,
v.
William A. ALLBRITTEN, et ux., State Farm Fire and Casualty Insurance Company, and U.S. Fire Insurance Company, Appellees.

No. 88-455.

District Court of Appeal of Florida, First District.

July 21, 1989.

*259 Robert B. Parrish and James P. Moseley, Jr., of Taylor, Moseley & Joyner, Jacksonville, for appellant.

Daniel C. Shaughnessy of Coker, Myers & Schickel, P.A., Jacksonville, and Almer W. Beale, II, Jacksonville, for appellees.

*260 ZEHMER, Judge.

Cummins Alabama, Inc., a defendant in the circuit court below, appeals from an order denying its motion to strike the motion for new trial filed by William Allbritten, Gwendolyn Allbritten, State Farm Fire and Casualty Insurance Company, and U.S. Fire Insurance Company (appellees). Cummins Alabama contends that the trial court lacked jurisdiction to consider the motion because it was not timely filed. Cummins Alabama also appeals from the order granting the motion for new trial, arguing abuse of discretion. We hold that the motion was timely filed and reverse the order granting a new trial.

I.

The pertinent facts are as follows. Appellees William and Gwendolyn Allbritten purchased a new 65-foot passenger and fishing vessel, which they named "Sea Gwen," from Cummins Alabama. A-1 Marine, one of the defendants in the case below, built the vessel, and its work included the installation of two diesel engines A-1 Marine had purchased from Cummins Alabama. On May 19, 1984, the Allbrittens took possession of the Sea Gwen and departed from a dock in Panama City enroute to Tampa. The next day, at approximately 12:30 p.m., the Allbrittens' son Billy noticed smoke coming out of the port engine exhaust. He raised the hatch to the engine room and thick, black smoke billowed out. He undertook to determine the location of the fire in the engine room and attempted to extinguish it with hand-held extinguishers. All of the Sea Gwen's passengers abandoned ship, and the vessel sank and was never found. Billy Allbritten was the only witness to the location and characteristics of the fire.

The Allbrittens collected $300,000 under their hull insurance policy with U.S. Fire, and $3,000 under their homeowner's insurance policy with State Farm. On June 3, 1986, the Allbrittens filed an action against Cummins Alabama, A-1 Marine, and others, seeking damages for their loss of the Sea Gwen. On February 5, 1987, the Allbrittens amended their complaint to add State Farm and U.S. Fire as parties plaintiff, as each insurer sought to recover the insurance payments they had made pursuant to their subrogation rights.

Prior to trial, appellees entered into settlement agreements with all defendants except Cummins Alabama and A-1 Marine. A seven-day jury trial ensued. Appellees' case was based on their theory that the fire was caused by a leak in the fuel delivery system on the port-side engine, due to either an inherent design defect or the negligence of Cummins Alabama's mechanics in removing and replacing the fuel pump just prior to delivery of the boat, or both. This latter work allegedly caused a crack in the fuel line or fittings, and the alleged crack supposedly allowed diesel fuel to spray out from the fuel line, up and over the engine, and down onto a quarter-inch circular exposed portion of the hot turbocharger. In defense, Cummins Alabama presented the testimony of fire experts who rejected appellees' theory as being inconsistent with the known physical facts, and attempted to impeach Billy Allbritten's trial testimony with prior inconsistent statements. Cummins Alabama theorized that the fire was caused by a defect in the exhaust system supplied and installed by the builder, A-1 Marine.

On November 17, 1987 the jury returned a verdict exonerating Cummins Alabama but finding A-1 Marine liable to plaintiffs in the amount of $395,000. A-1 Marine did not seek post-judgment relief. On November 30, 1987, the Monday following Thanks-giving, appellees served Cummins Alabama with a copy of their motion for new trial. On January 5, 1988, Cummins Alabama filed its motion to strike appellees' motion for new trial as untimely, arguing that the motion for new trial should have been served on counsel no later than Friday, November 27, 1987, to comply with the requirements of Rules 1.530(b) and 1.090(a), Fla.R.Civ.P. On January 25, 1988 the court granted the motion for new trial. On February 5, 1988, the court entered its order denying Cummins Alabama's motion to strike without explanation.

*261 II.

We first address appellant's contention that appellees' motion for new trial was not timely filed. Rule 1.530, Fla.R.Civ.P. (1987), requires that a "motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action... ." This rule must be read in conjunction with Rule 1.090(a), Fla.R.Civ.P. (1987):

In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday.... [Emphasis added.]

The timeliness of the subject motion for new trial turns on the proper construction of the term "legal holiday" as used in Rule 1.090(a). The parties agree that the office of the clerk of the fourth judicial circuit was closed for a holiday on November 27, 1987, the Friday after Thanksgiving. But appellant, citing Flack v. Carter, 392 So.2d 37 (Fla. 1st DCA 1980), contends that the closure of the clerk's office is not dispositive of whether the day in question was a legal holiday within the meaning of that rule. Appellant argues that Flack makes clear that the term "legal holiday" as used in Rule 1.090(a) is to be interpreted solely by reference to the statutory definition of "legal holiday" found in section 683.01, Florida Statutes (1987). Since section 683.01 does not list the Friday after Thanksgiving as a legal holiday, appellant says that the motion should have been filed on or before that date. This means, in effect, that the motion had to be filed on the Wednesday immediately preceding Thanksgiving. Appellees, however, cite Cassas v. Lazan, 488 So.2d 671 (Fla. 4th DCA 1986), wherein the fourth district found that the day after Thanksgiving was a "legal holiday" contemplated by Rule 1.090(a), as authority for extending the time for filing the motion for new trial to the following Monday, the first day the clerk's office was open for business after Thanksgiving.

In determining the intent of Rule 1.090(a) with respect to legal holidays, we must examine not only the relevant statutory provisions but the rules promulgated by the supreme court as well. The Supreme Court of Florida has the exclusive power to prescribe rules for the practice and procedure in Florida courts. Bluesten v. Florida Real Estate Comm'n, 125 So.2d 567 (Fla. 1960). Necessarily included is the power to designate legal holidays for state courts. Of course, both the court rules and the statutory provisions relating to legal holidays should be harmonized to the maximum extent possible, but any conflict between the rules and statutory provisions must be resolved in favor of the supreme court provisions in respect to the courts.

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Cite This Page — Counsel Stack

Bluebook (online)
548 So. 2d 258, 1989 WL 81236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummins-alabama-inc-v-allbritten-fladistctapp-1989.