Pacific Indemnity Co. v. Broward Count

465 F.2d 99 (5th Cir. 1972)

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Nature of the Case

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Facts

Pacific Indemnity (P) sued as insurer and subrogee of Donzi Marine Corporation for damages for the destruction by fire of four aircraft owned by Donzi and insured by P. P sued Broward County (D) which owned the hanger in which the aircraft were housed at the time of the fire and another company called Airmotive (D1) which leased the hangar from D and then D1 in turn leased to P. D1 filed a cross-claim against D seeking indemnity from any loss. D counterclaimed against D1 for indemnity and damages against the loss of the hangar from the fire. The jury returned a verdict for P and in favor of D1 at to P's claim against it. The jury also found for D1 on its cross-claim against D and awarded damages of $150,000. D then filed a motion for judgment n.o.v. and for a new trial on the D1 cross-claim. This was based on the failure of D1 to properly notice D as to its claims as was required under law. D1 did not put at issue during trial the issue of notice to D even though during the entire pretrial proceedings, D motioned twice for summary judgment on these issues but was denied. No evidence was entered during trial regarding the issue of statutory notice and D1 did not enter any evidence that it had complied with statutory notice. The judgment n.o.v. was granted and D1 appealed.