State Farm Mut. Auto. Ins. Co. v. Sampaio

374 So. 2d 617

• Court: District Court of Appeal of Florida
• Decided: August 15, 1979
• Docket: 77-2408
• Status: Published

Opinion

374 So.2d 617 (1979)

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v.
William SAMPAIO, Rudy Wichmann, Jr., Louis Rio and Reserve Insurance Company, Appellees.

No. 77-2408.

District Court of Appeal of Florida, Fourth District.

August 15, 1979.

Frank W. Weathers and Peter M. Evans, of Weathers & Narkier, West Palm Beach, for appellant.

Janet W. Freeman, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee Louis Rio.

MOORE, Judge.

State Farm Mutual Automobile Insurance Company, the defendant below, appeals from an order denying its motion to tax costs in this consolidated action. The motion listed the costs of depositions, copies of depositions and hospital records. Summary judgment had been entered previously in State Farm's favor against both sets of plaintiffs.

Generally, if the depositions served a useful purpose, the party who prevails is entitled to have that item of cost taxed against the unsuccessful litigant. Miller Yacht Sales, Inc. v. Scott, 311 So.2d 762 (Fla. 4th DCA 1975). Similarly, costs of copies of depositions may be taxable if the copies served a useful purpose. County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978); Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979). The cost of hospital records not used in trial or introduced into evidence is not taxable. Cohn v. Florida National Bank at Orlando, 223 So.2d 767 (Fla. 4th DCA 1969).

Although the taxing of costs is discretionary with the judge, the exercise of that discretion is subject to appellate review. In the instant cause, the trial judge was correct in refusing to tax the costs of the hospital records; however, we are unable to determine from the summary denial of the motion if the trial judge determined whether the cost of the depositions and copies of depositions served a useful purpose. We therefore remand to him for this determination. If he decides that any of these costs are taxable, he should equitably apportion said costs between the unsuccessful plaintiffs.

REVERSED AND REMANDED.

BERANEK, J. and WALLACE R. PACK, Associate Judge, concur.