author: DANIEL S. PEARSON, Judge.

text:
    HONDA MOTOR COMPANY, LTD., a Japanese corporation, and American Honda Motor Company, Inc., a foreign corporation, Appellants, v. David Paul MARCUS and Diana Rivera, Appellees.
    No. 82-1341.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    As Amended on Motion for Clarification Nov. 8, 1983.

      Murphy, Buschbom & Murphy, Coral Gables, Jay M. Smyser, Chicago, Ill., for appellants.
    J. Arthur Hawkesworth, Jr., Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appel-lees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

A jury rendered a verdict against Honda Motor Company, Ltd. and American Honda Motor Company, Inc. (jointly, Honda), finding both of these defendants to be strictly liable and to have breached an implied warranty of merchantability which resulted in damages to the plaintiff Diana Rivera. The jury assessed Rivera’s damages at three million dollars, but found her to be ten per cent responsible for her own injuries, solely because of her failure to use a seat belt. After entering final judgment for Rivera in the thus-reduced amount of $2,700,000, the trial court granted Honda’s motion for new trial or remittitur. Upon Rivera’s rejection of the ordered remittitur of one million dollars, the trial court granted a new trial on damages.

Honda appeals, contending that it was entitled to a judgment notwithstanding the verdict because of the failure of Rivera to present sufficient evidence of a defect in her Honda automobile or a causal relationship between any defect and her injuries, or, alternatively, that it was entitled to a new trial on liability as well as damages. Rivera cross-appeals, contending first, that the remittitur/new trial order was error, since the verdict was not excessive under the proof submitted, and second, that the trial court erred in submitting the issue of Rivera’s failure to wear a seat belt to the jury, and that, therefore, Rivera was entitled to the full amount of the verdict of three million dollars without any reduction attributable to her fault. For the reasons which follow, we reverse the order granting a new trial on damages and direct that judgment be entered for Rivera in the amount of three million dollars.

We find no merit in Honda’s claim that it was entitled to a judgment in its favor notwithstanding the verdict. Recognizing the general rule that its failure to renew its motion for directed verdict at the close of all the evidence constitutes both a waiver of its right to have the trial court consider its motion for judgment notwithstanding the verdict and a failure to properly preserve its claim on appeal that it was entitled to a judgment in its favor because of the insufficiency of the evidence, Gulf Heating & Refrigeration Co. v. Iowa Mutual Insurance Co., 193 So.2d 4 (Fla.1966); 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958); Keyes Co. v. Shea, 372 So.2d 493 (Fla. 4th DCA 1979); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979); Lee County Oil Co. v. Marshall, 98 So.2d 510 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 819 (Fla.1958), Honda nonetheless contends that because the error is fundamental, that is, “the insufficiency of the evidence constitutes plain error on the face of the record which, if not noticed, would constitute a manifest miscarriage of justice,” see Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412, 419 (Fla. 4th DCA 1980); Pickard v. Maritime Holdings Corp., 161 So.2d 239, 242 (Fla. 3d DCA 1964), appellate review is not precluded. We find, however, that no error at all, much less fundamental error, appears in the denial of Honda’s motion for judgment notwithstanding the verdict.

Honda’s alternative contention that it was entitled to a new trial on liability as well as damages is based in part on the claim that the closing argument made by Rivera’s counsel was improper and prejudicial in a number of respects, and the verdict forms and jury instructions were legally incorrect, and in part on the claim that the verdict on liability was against the manifest weight of the evidence. The closing argument remarks which Honda now finds offensive were not objected to and prompted no motions for mistrial; the proposed verdict forms and jury instructions were met with silence.

We, even as our sister court in Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978), are somewhat skeptical about “appellants’ agonized cries that comment by opposing counsel below deprived [it] of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances.” 368 So.2d at 362. But skepticism aside, we find that the remarks were not so inflammatory and the verdict forms and instructions were not so misleading as to extinguish Honda’s right to a fair trial and to, therefore, constitute fundamental error. Thus, the failure of Honda to preserve these issues by appropriate objections or in-trial motions precludes it from now arguing that the trial court erred by failing to grant it a new trial on these grounds. See Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983) and cases cited therein. And although Honda’s separate claim that it was entitled to a new trial on all issues because the verdict on liability was against the manifest weight of the evidence is one which could not have been brought to the trial court’s attention any sooner than in the motion for new trial and is therefore preserved for review, Sears Roebuck & Company v. Jackson, 433 So.2d at 1321, we find that the trial court correctly concluded that the jury’s verdict on liability was amply supported by the evidence and was not against its manifest weight.

We turn now to Rivera’s cross-appeal. The order granting a new trial on damages does not find the damages to be excessive in light of the evidence presented or the damages to be against the manifest weight of the evidence. Instead, the trial court found that two closing argument remarks made by Rivera’s counsel were inflammatory and improper and “patently prejudicial as to the damage issues in the trial and were of such character as to warrant a remittitur regardless of the want of objection.”

The remarks singled out by the trial court as evidencing that “the jury was swayed by passion” were these:

“Diana didn’t ask to be born. None of us did. Diana didn’t ask for her father to leave the family when she was a baby and Diana didn’t ask to be a battered child whose mother fractured her nose and she had a rhinoplasty way back when, and Diana didn’t ask to go into various foster homes but the law is you take the person as you find them.”

Even aside from the general proposition that in a case such as this, involving disfigurement, the loss of a limb, and severe mental trauma, counsel may be expected to be emotional and are accorded a wide latitude in making arguments to the jury, see Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla. 3d DCA 1974), we . find the remarks of counsel to be well within the evidence presented on the issue of the mental trauma suffered by Rivera as a result of the accident and by no means so inflammatory as to constitute fundamental error which would permit a trial court to grant a new trial in the absence of a timely objection to the remarks. See Sears Roebuck & Company v. Jackson, 433 So.2d at 1322.

The remark said by the trial court to evidence that the jury took improper elements of damages into account was this:

“Then, maybe if she’s got that ten million dollars, she can help do the research.”

Once again, Honda, having made no objection to this remark at trial, carries the burden of demonstrating that the remark was fundamental error which warranted the grant of a new trial. It is clear to us, however, that the error is not fundamental. First, the evidence at trial clearly justified the award made by the jury under proper instructions as to the items of damages it could take into account and with the additional cautionary instruction that argument of counsel is not to be considered as evidence. Thus, if the remarks be deemed improper, the error of them is hardly fundamental. See Decks, Inc. v. Nunez, 299 So.2d 165 (Fla. 2d DCA 1974). Second, unlike Marks v. Delcastillo, 386 So.2d 1259 (Fla. 3d DCA 1980), in which this court found fundamental error where the jury specifically awarded damages which were not authorized by law under an unobjected-to instruction, in the present case the damages awarded were part of a general verdict not excessive under the evidence. Thus, conceding, arguendo, that the remark about ten million dollars for research referred to an element of damages which the jury could not consider, we cannot assume that the jury’s undifferentiated verdict of three million dollars took into account this improper element, since proper elements of damage justified its award. See Marks v. Delcastillo, 386 So.2d at 1268 n. 19; Decks, Inc. v. Nunez, 299 So.2d at 166.

Finally, Rivera says that the trial court erred in submitting to the jury the issue of her failure to wear a seat belt, which resulted in a ten per cent reduction of the jury’s award. While we agree with Rivera, we do so without deciding whether the “seat belt defense” exists, or should exist, in present-day Florida, a question exhaustively treated in Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982), and Insurance Company of North America v. Pasakarnis, 425 So.2d 1141, 1142 (Fla. 4th DCA 1982) (Schwartz, A.J., dissenting). See also Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA 1981). Whatever the merits of both sides of this question, it is clear that even those who conclude that the “seat belt defense” exists and should be submitted to and determined by a jury, concede that “like all other negligence issues, the ‘seat belt defense’ may be submitted only when there is also competent evidence that the failure to use it bore a causal relation to the plaintiff’s injuries.” Insurance Company of North America v. Pasakarnis, 425 So.2d at 1147 (Schwartz, A.J., dissenting). This, of course, whatever the ultimate resolution of the larger controversy, has always been the law. Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978) (lack of evidence of causal connection between claimant’s injuries and his failure to fasten seat belt precludes submission to jury, even if seat belt defense were recognized); Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966) (although holding that seat belt defense unavailable in any event, alternatively holding that lack of evidence of causal connection between claimant’s injuries and his failure to fasten seat belt made defense unavailable in instant case).

In the present ease, Honda points to the testimony of its accident reconstruction expert as supplying the needed causal connection. The expert was asked:

“Do you have an opinion within reasonable probability in your field of expertise as to whether or not she would have suffered any physical injury as a result of this accident because she was wearing the lap belt and the shoulder belt, that is, would she have been injured by the belt?” (Tr. 701).

He answered:

“The statistics show, and the belt loadings show, that there probably should not be internal injury. In other words, you would have the classical belt bruises, but that would be the extent of it.” (Tr. 702).

While the foregoing testimony arguably tends to prove that had Rivera worn a seat belt, she would not have been injured by the belt, it simply does not tend to prove that had Rivera worn a seat belt, she would not have been injured in the accident. Since Honda refers us to no other proof on the issue, we must conclude that the record contains no competent evidence that Rivera’s failure to wear a seat belt bore a causal relation to her injuries and, consequently, that the jury’s finding that Rivera was ten per cent responsible for her injuries because of that failure is without evidentia-ry support.

Accordingly, insofar as the order of the trial court granted a new trial on damages, it is reversed with directions to the trial court to enter judgment for Rivera in the amount of three million dollars, with interest thereon from the date of the verdict rendered in favor of the appellee. See Mabrey v. Carnival Cruise Lines, Inc., 438 So.2d 937 (Fla. 3d DCA 1983). That part of the order denying a new trial on liability is affirmed.

Affirmed in part; reversed in part.

      . The proposition that a trial court may — even should — intervene to restrain improper comments despite the lack of objection by counsel, see, e.g., Schreier v. Parker, 415 So.2d 794 (Fla. 3d DCA 1982); Hillson v. Deeson, 383 So.2d 732 (Fla. 3d DCA 1980), does not, as appellant seems to suggest, relieve counsel from his obligation to object.


source: Caselaw Access Project

author: THOMPSON, Judge. THOMPSON, Judge.

license: Public Domain

text:
    MOBIL CHEMICAL COMPANY, A DIVISION OF MOBIL CORPORATION, Appellant, v. Carl R. HAWKINS, Appellee.
    No. AQ-165.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1983.
    Rehearing Denied Nov. 3, 1983.

      Julian Clarkson of Holland & Knight, Tallahassee, Charles H. Kirbo and Michael C. Russ of King & Spalding, Atlanta, Ga., for appellant.
    Alan C. Sundberg, George N. Meros, Jr., and J. Robert McClure, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Edwin B. Browning, Jr. of Davis, Browning & Hardee, Madison, for appellee.
    David G. Owen, Columbia, S.C., for ami-cus curiae FMC Corp.
    Stephen F. Baker, Winter Haven, for amicus curiae Florida Agr. Research Institute, Inc.
    John D. Conner, Jr. and Raymond B. Biagini of McKenna, Conner & Cuneo, Washington, D.C., for amicus curiae Nat. Agr. Chemicals Ass’n.
    Mygnon C. Evans, Lakeland, for amicus curiae Florida Citrus Mutual.
   THOMPSON, Judge.

Mobil Chemical Company (Mobil) appeals a judgment awarding appellee compensatory and punitive damages pursuant to the jury’s verdict finding that Mobil breached express and implied warranties, and knowingly made certain misrepresentations in connection with the sale of its nematieide-insecticide, Mocap. Mobil’s principal contentions on appeal are that a new trial should have been granted because of juror misconduct and that a directed verdict should have been granted in Mobil’s favor with respect to the punitive damage count. We agree with both of these contentions and reverse.

During voir dire of prospective jurors, the trial judge introduced the parties and their attorneys to the members of the venire, and the attorneys then read to the venire the names of their prospective witnesses. The names of the attorneys and several of the witnesses were thereafter repeated before the venire as specific questions were asked of individual prospective jurors. Among the names so repeated was that of A.E. Crawford, appellee’s father-in-law. In another question, the prospective jurors were asked if any of them knew “the Crawford family.” Another name repeated before the venire was that of Judge Bobby Kirby, an attorney who represented appellee in this case prior to being elected judge and who retains a fee interest in this case by virtue of that prior representation. As the voir dire progressed, and as individual prospective jurors were excused and replaced in the jury box by other members of the venire, the court and the attorneys for both parties increasingly relied on the commendable (and, we believe, universally practiced) time saving technique of asking the new prospective jurors whether they had heard the questions asked previously, and whether their answers would differ from those given by the other prospective jurors. The last person on the venire to be called into the jury box answered “No” to the court’s questions whether she knew “anything about this case or anyone involved” and whether her answers to the previously asked questions would be “unusual.” When Mobil’s counsel asked this prospective juror if she had heard the questions asked of the other jurors and whether her answers would be the same as theirs, she responded affirmatively. Based on these responses, the juror was accepted as qualified by both parties, and was seated on the jury. After conclusion of the trial, counsel for Mobil discovered that the juror was a member of the Crawford family, was the second cousin of appellee’s wife, and had been a client of Judge Kirby’s as recently as one year before the trial.

Florida Rule of Civil Procedure 1.431(c)(1) provides as follows:

On motion of any party the court shall examine any prospective juror on oath to determine whether he is related to any party or to the attorney of any party within the third degree or is related to any person alleged to have been wronged or injured by the commission of the wrong for the trial of which the juror is called or has any interest in the action or has formed or expressed any opinion or is sensible of any bias or prejudice concerning it or is an employee or has been an employee of any party within 30 days before the trial. A party objecting to the juror may introduce any other competent evidence to support the objection. If it appears that the juror does not stand indifferent to the action or any of the foregoing grounds of objection exists or that he is otherwise incompetent, another shall be called in his place, (emphasis supplied).

In Florida, the rule to be applied in determining degrees of kinship is the common law rule, under which second cousins are held to be related within the third degree. See E. Simon, Redfearn Wills and Administration in Florida, § 20.10 at 377, n. 23 (5th Ed.1977); Trawick, Florida Practice & Procedure, § 23-6 (1982). See also Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911), wherein a juror who was a second cousin of the decedent’s wife was held related by affinity to the decedent within the third degree.. Thus, the juror who failed to disclose her relationship to appellee’s wife was subject to challenge for cause under the rule, and we have not the slightest doubt that she would have been so challenged had this relationship been revealed.

Appellee’s argument that reversal is not required because Mobil has failed to prove that the juror was biased in his favor or that the juror even knew of her relationship to him must fail. In our view, the above quoted rule and its predecessor statute, § 53.021(1), Fla.Stat. (1971), were respectively promulgated and enacted on the basis of a commonly held (and probably accurate) presumption that persons related to a party within the third degree know of the relationship and are prejudiced thereby. Obviously, if prejudice is presumed no burden of proving prejudice exists. If a jury verdict in a case such as this is to be allowed to stand at all, logic would dictate that the burden be placed on appellee to prove an absence of bias, and not vice versa. Furthermore, we believe that the rule was intended to eliminate both actual impropriety and any appearance of impropriety. The public perception of our system of justice would hardly be enhanced by a rule which permitted a relative of a party to sit in judgment of that party’s dispute with an outside party.

The case of State v. Rodgers, 347 So.2d 610 (Fla.1977), wherein an underaged juror lied about her age in order to be seated on the jury, is clearly distinguishable. The fact that a person has not attained the age of majority may give rise to an inference that he or she lacks the maturity necessary to the proper discharge of the solemn responsibilities of jurors. However, age, unlike kinship, will not ordinarily support an inference of bias for or against a particular party in a particular case.

We also reject, as being entirely without merit, appellee’s argument that Mobil waived its right to challenge the jur- or post-trial by failing to specifically ask her on her voir dire about any relationship she might have with the Crawford family or appellee’s wife. It is abundantly clear from the transcript of the voir dire proceedings that no person sufficiently perceptive and alert to be qualified to act as a juror could have sat through the voir dire without realizing that it was his or her duty to make known to the parties and the court any relationship with any of the named parties, witnesses, or attorneys. Nevertheless, the juror failed to reveal her relationship to appellee’s wife and to his former attorney. Her failure to disclose material information bearing on her possible bias and her qualifications to serve as a juror deprived Mobil of its right to intelligently participate in selection of the jury, and gives rise to an unacceptably strong inference that Mobil did not receive the fair trial to which it was entitled. Accordingly, we reverse and remand for a new trial.

We further conclude that the trial judge erred in permitting the appellee’s claim for punitive damages to go to the jury. It is the established law of this state, as recently reaffirmed by our Supreme Court, that punitive damages are not awardable for a breach of contract unless the conduct constituting the breach of contract is accompanied by wrongful conduct which amounts to a distinguishable and independent tort. Southern Bell Telephone & Telegraph Co. v. Hanft, 436 So.2d 40 (Fla.1983); Lewis v. Guthartz, 428 So.2d 222 (Fla.1983); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957).

Here, the representations which created the warranty alleged to have been breached are precisely the same representations as those which the appellee chooses to characterize as tortious misrepresentations, and upon which appellee relies as the basis for his claim for punitive damages. Appel-lee did not plead and prove an independent tort against him. The case of Johnson v. Lasher Milling Co., Inc., 379 So.2d 1048 (Fla. 1st DCA 1980) is not to the contrary. There, the defendant deliberately defrauded the plaintiff by misrepresenting the weight of loads of corn sold to plaintiff, an act which in our view could constitute a criminal act under Ch. 812, Fla.Stat. In other words, the defendant intentionally took the plaintiff’s money in exchange for goods which he represented had been delivered, but which in fact he did not deliver and did not intend to deliver. Here, the alleged misrepresentations made by Mobil were directed only to the quality and efficacy of Mocap. The appellee has not alleged that he- received less Mocap than he believed he had purchased, and he neither pled nor proved that the chemical composition of the Mocap was other than as represented by Mobil. While it appears that appellee did not receive the benefit of his bargain in the sense that the Mocap did not perform well and did not meet his economic expectations, see Monsanto Agricultural Products Company v. Edenfield, 426 So.2d 574 (Fla. 1st DCA 1983) (tort law does not impose a duty upon a manufacturer to produce only such products as will meet the economic expectations of purchasers), there is no issue in this case as to whether the appellee received what he paid for, i.e., a stated quantity of Mocap. Although the proofs adduced at trial suggest that Mobil may have breached its warranty of the effectiveness of Mocap, no independent tort has been committed and punitive damages may not be awarded.

For the foregoing reasons we remand the case to the trial court with instructions that judgment be entered for Mobil with respect to the punitive damages count of the complaint, and for retrial of appellee’s counts alleging breach of express and implied warranties. Reversed and remanded for further proceedings consistent herewith.

BOOTH and WENTWORTH, JJ., concur.

ON REHEARING

THOMPSON, Judge.

Much of appellee’s motion for rehearing or certification is impermissible reargument. See Rule 9.380(a), Fla.R.App.P. However, several of appellee’s apparent misconceptions warrant discussion.

Appellee contends this court held that a misrepresentation of quality cannot be fraud, and that the same facts that were the basis for the breach of warranty cannot also constitute a tortious misrepresentation which would support an award of punitive damages. Although this was not the court’s holding, the opinion should be clarified if it is susceptible of such an interpretation.

Appellee argues this court misunderstands Johnson v. Lasher Milling Co., Inc., 379 So.2d 1048 (Fla. 1st DCA), cert. denied, 388 So.2d 1114 (Fla.1980). The Johnson case involved a seller who lied about the weight of his loads of corn, an intentional misrepresentation of a known and existing fact. This court affirmed the award of punitive damages on the fraud count of the complaint, finding that “the willful tort of fraudulent misrepresentation was properly pled and proved.” 379 So.2d at 1051. According to appellee this court erroneously distinguished Johnson from the instant case on the ground that Johnson involved a misrepresentation of quantity whereas this case involves a misrepresentation of the quality and efficacy of Mocap. He contends that this is not a meaningful distinction under Florida law or the definition of fraudulent misrepresentation. Using the example of a merchant who sold a one carat diamond and represented it as a two carat diamond, the appellee argues that under the holding in this case the merchant would be guilty of fraudulent misrepresentation, whereas if the same merchant sold an F-quality diamond and misrepresented it as the highest quality diamond, A-quality, it would not be a fraudulent misrepresentation. That is simply not true. A misrepresentation of quality can be and is fraudulent misrepresentation where there is a misrepresentation of known and presently existing characteristics or attributes of the product. In fact, the selling of an F-quality diamond which was represented as an A-quality diamond is a very good example of an actionable fraudulent misrepresentation of quality because it is a misrepresentation of a presently known and existing fact.

Mobil’s alleged misrepresentation concerned the future performance of a product which was to be applied under circumstances and conditions, in a manner, and by persons over which it had no control, and was not a misrepresentation of a presently existing and presently known quality or quantity. This court has previously held in Monsanto Agricultural Products Co. v. Edenfield, 426 So.2d 574, 577 (Fla. 1st DCA 1982), that tort law does not impose a duty upon manufacturers to produce only such products as will meet the economic expectations of purchasers, saying that “[a] manufacturer of agricultural chemicals, like a producer of seed, will generally have no knowledge of the field or weather conditions which will obtain when its product is put to use, and certainly has no control over the manner in which its product is applied.” Likewise, a seed producer breaches his warranty, express or implied, but is not guilty of fraudulent misrepresentation merely because the seed he sells, when planted in the future, does not have the represented percentage rate of germination. Cf. Corneli Seed Co. v. Ferguson, 64 So.2d 162 (Fla.1953); Pennington Grain and Seed, Inc. v. Tuten, 422 So.2d 948 (Fla. 1st DCA 1982). As the representation in this case involved the future performance of a product, the application and use of which was wholly beyond Mobil’s control, such representation does not rise to an actionable tort of fraudulent misrepresentation and cannot be a basis for punitive damages.

The same facts that are the basis for a breach of warranty count can be but are not always the basis of a fraudulent misrepresentation count. The misrepresentation of the quality of a diamond would support not only a breach of warranty count, but also a fraudulent misrepresentation count. However, in this case the representation as to the future performance of a product to be used under conditions and in a manner over which Mobil had no control was not a representation of a known and existing fact or condition and did not constitute a tort or fraudulent misrepresentation.

Appellee also contends this court overlooked its recent per curiam decision in Mobil Chemical Company v. Garrison, 392 So.2d 71 (Fla. 1st DCA 1980), which affirmed an award of both compensatory and punitive damages in connection with the sale of Mocap. Garrison was a per curiam affirmance without written opinion, which is no precedent even in this court. See Department of Legal Affairs v. District Court of Appeal, 5th District, 434 So.2d 310 (Fla.1983). If we could consider per curiam affirmances as precedent and went to the trouble of obtaining the record and briefs and reviewing same we would find, as admitted by the appellee in his Motion for Rehearing, that the issue of the absence of a separate and indépendent tort was not raised on appeal in Garrison. This court does not consider on appeal points which are not raised, briefed, or argued on appeal. Therefore, the question could not have been considered by this court in its per curiam affirmance.

In our discussion of the appellee’s misconception of our holding we have removed all of the alleged conflicts except the alleged conflict on the degree of kinship created by Jenkins v. State, 380 So.2d 1042 (Fla. 4th DCA 1980). As we stated in the opinion, the Supreme Court has held in Walsingham v. State, 61 Fla. 67, 56 So. 195 (Fla.1911) that a juror who was a second cousin of the decedent’s wife was related by affinity to the decedent in the third degree. This decision has never been modified or reversed by the Supreme Court. Walsingham was not cited by the Jenkins court, but the court in Jenkins was without authority to overrule it, either knowingly or unknowingly. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Even if the relationship was not a sufficient basis for a challenge for cause pursuant to Rule 1.431(c)(1), Fla.R.Civ.P., the fact that the juror withheld information that she was a cousin of appellee’s wife and withheld information that she had been represented within the past year by an attorney still holding a fee interest in the case casts such grave doubts on her ability to render a fair and impartial verdict to the defendant that a challenge for cause should be granted. See Irby v. State, 436 So.2d 1047 (Fla. 1st DCA 1983).

The motion for rehearing or certification is denied.

BOOTH and WENTWORTH, JJ., concur.


author: DOWNEY, Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. The R.H. BARTO COMPANY, A DIVISION OF ATLAS AIR CONDITIONING CORPORATION, Appellee.
    No. 81-1512.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Nov. 21, 1983.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellant.
    Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, Commercial Union Insurance Company, has perfected this appeal from a judgment of the trial court finding Commercial Union liable to appellee, The R.H. Barto Company, for breach of an insurance contract in refusing to defend its insured Barto.

The factual background reflects that Bar-to entered into a subcontract with an owner, Ecclestone, to install the air conditioning equipment in towers A and B of the Forum III office complex in West Palm Beach. After the building was occupied the air conditioning equipment continually malfunctioned even after repair and replacement. Eventually, Ecclestone sued Barto and Dunham-Bush, Inc., the manufacturer of the air conditioning equipment, seeking damages for expenses incurred in repairing and replacing the malfunctioning equipment and for the loss of rentals resulting from lost tenants. Barto notified its insur-anee carrier, Commercial Union, and demanded the carrier assume defense of the suit; however, Commercial Union refused to defend Barto, contending that the policy-in question did not cover the damages which Ecclestone sought to recover. The Ecclestone-Barto suit was ultimately settled and the present suit was instituted by Barto against Commercial Union for Barto’s damages resulting from Commercial Union’s breach of contract in refusing to defend Barto.

It is axiomatic that an insuror’s duty to defend is determined by the allegations of the complaint filed by a third party against the insured. Klaesen Brothers v. Harbor Insurance Co., 410 So.2d 611 (Fla. 4th DCA 1982); Auto-Owners Insurance Co. v. Jones, 397 So.2d 317 (Fla. 4th DCA 1981); Buchwald v. Hartford Accident & Indemnity Co., 319 So.2d 164 (Fla. 3d DCA 1975). Even though some of the claims made by the third party are not within the coverage, the insurer has the duty to defend as long as any of the claims made are covered by the policy. 31 Fla.Jur.2d Insurance § 822. It therefore is necessary to look to both the complaint against the insured and the provisions of the policy to determine whether a defense is required by the carrier.

The Ecclestone complaint charged that Barto had installed the air conditioning equipment knowing what was required of it but that the equipment was inadequate. It broke down continuously; required constant repair and eventually replacement but even then it failed to meet the needs of the buildings and their occupants. As a consequence it is alleged that Ecclestone was required to expend large sums for labor and materials to repair and replace the equipment. In addition, the complaint alleges Ecclestone “lost rentals, tenants, and the opportunity to obtain other and additional high quality business and commercial tenants.”

The Commercial Union policy is known as a Comprehensive General Liability policy. It provides that the company will pay on behalf of the insured all sums which the insured becomes obligated to pay because of “property damage” or bodily injury to which this insurance applies caused by an “occurrence.” An occurrence is defined in the policy as:

[A]n accident, including continuous or repeated exposure to conditions, which results in property damage neither expected nor intended from the standpoint of the insured.

Property damage is defined as:

(1) Physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) Loss of use of tangible property which has not been physically injured or destroyed, providing such loss of use is caused by an occurrence during the policy period.

Barto contends that the claim made by Ecclestone falls within the foregoing provisions because the allegations of the complaint refer to an occurrence, i.e., “an accident, including continuous and repeated exposure to conditions, which results in . .. property damage neither expected nor intended from the standpoint of the insured.” The property damage envisioned by Barto is the loss of use of parts of its office building due to inadequate air conditioning which caused the offices to become uninhabitable.

Commercial Union on the contrary argues that its policy simply does not cover the type of claim made by Ecclestone; a claim based on the fact that the air conditioners did not work right. The carrier contends there was no occurrence because there was no accident. Furthermore, there are exclusions which would eliminate this coverage if it pertained in the first instance. For example, the policy further provides:

Exclusions

This insurance does not apply:

(h) to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement or
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured;
(i) to property damage to the named insured’s products arising out of such products or any part of such products;
(j) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;
(k) to damages claimed for the withdrawal, inspection, repair, replacement of the named insured’s products or work completed by or on behalf of the named insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known defect or suspected defect or deficiency therein.

A further exclusion is contained in subsection (a) which provides that the insurance does not apply:

(a) to liability assumed by the insured under any contract or agreement except an
incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.

This type of insurance coverage is described in a well considered opinion in Weedo v. Stone-E-Brick, Inc., 81 N.J. 283, 405 A.2d 788 (1979), cited favorably by the Supreme Court of Florida in LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980). We learn from those opinions that a comprehensive general liability policy is intended to protect an insured from injury incurred by a third party resulting from the insured’s faulty workmanship and material. It is not intended to protect the insured from liability for replacement or repair of the defective work or material itself. As the Supreme Court stated in LaMarche:

Rather than coverage and payment for building flaws or deficiencies, the policy instead covers damage caused by those flaws.

Perhaps the best explanation of the intended coverage is found in Weedo, supra, quoting from the Nebraska Law Review:

The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to' protect against.

The cases make clear that the risk a contractor takes that he will do defective work or furnish inadequate material is a business risk not insured against. It is the more extensive liability he may incur to others due to injury to them resulting from his defective work which is the coverage extended by this type of policy. At the risk of belaboring the point we quote an illustration suggested by the author of Weedo, supra:

Aii illustration of this fundamental point may serve to mark the boundaries between “business risks” and occurrences giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case. The happenstance and extent of the latter liability is entirely unpredictable — the neighbor could suffer a scratched arm or a fatal blow to the skull from the peeling stonework. Whether the liability of the businessman is predicated upon warranty theory or, preferably and more accurately, upon tort concepts, injury to persons and damage to other property constitute the risks intended to be covered under the CGL.

Adverting to the factual situation in the present case, Barto was charged by Ecclestone with installing defective equipment which, among other things, caused Ecclestone to be unable to use portions of his office building for rental purposes. This constituted an occurrence within the meaning of the policy because it involved the continuous or repeated exposure to conditions which in turn caused the office building to become in part unrentable. Thus, Ecclestone lost the use of that property even though it was not physically damaged. Had Ecclestone’s claim against Barto involved nothing but the cost of repairing or replacing the deficient equipment that would have fallen within the business risk dichotomy of this type of insurance and coverage would not extend to that loss. However, the claim is for loss of use of other tangible property caused by the defective equipment and repairs.

Thus it appears Ecclestone’s claim fits within the general coverage afforded by the policy unless it falls within one of the exclusions in the insurance contract. Exclusion (m) provides:

This insurance does not apply:
(m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement or
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured;

It is apparent that the claimed damage falls clearly within the exclusion because it involves a loss of use of tangible property (loss of use of the office space) not physically injured or destroyed, resulting from the failure of the insured’s (Barto’s) products or work to meet the level of performance warranted or represented. But that does not end the story because the exclusion also includes an exemption which goes on to provide that the exclusion does not apply to loss of use of other tangible property resulting from the súdden and accidental physical injury to or destruction of the named insured’s products or work after such products or work have been put to use by any person other than the insured. Paragraph 11 of Count I of the complaint alleges:

11. That despite the foregoing, the air conditioning equipment supplied and installed as aforesaid was not suitable, was not merchantable, did not perform normally, used excessive amounts of electricity while struggling to meet the normal requirements of use, has been subject to frequent and repetitive breakdown and even though major portions of the equipment have been replaced by Defendants DUNHAM-BUSH and BARTO the replacement equipment has been subject to the same deficiencies, excessive electrical use, overloading and breakdown, and both the original and replacement equipment have repeatedly failed to produce specified capacity under normal conditions of operation in this climate.

The closest those allegations come to meeting the policy requirement of sudden and accidental physical injury to or destruction of the insured’s product or work is that the equipment frequently broke down and some of it was replaced. In our considered opinion those allegations do not measure up to sudden and accidental physical injury or destruction. Therefore, the exemption does not apply; the exclusion does apply and Ecclestone’s claim was excluded from this policy.

Appellee points to the evidence wherein Mr. Barto testified to an occasion when the equipment ruptured, and to certain occasions when it did not function. However, appellant is charged with breaching its duty to defend. There is no duty to defend if the allegations of the injured party’s complaint do not bring the claim within the provisions of the defendant/insured’s policy. Federal Insurance Co. v. Appelstein, 377 So.2d 229 (Fla. 3d DCA 1979). It does not suffice to say that later on in the proceeding the evidence showed that the injured party really did have a claim against the insured which was covered by the insured’s policy. As stated in 7c Appelman, Insurance Law and Practice § 4683.01 at pg. 63:

[T]he determination in regard to the duty to defend is made at the time suit is brought and not after it is reduced to judgment.

We therefore hold that the allegations of the Ecclestone complaint did not state a claim against Barto requiring appellee to defend that action. Accordingly, the judgment appealed from is reversed.

REVERSED.

HURLEY, J., and GEIGER, DWIGHT L., Associate Judge, concur.

GLICKSTEIN, J., recused himself after oral argument.

      . This exclusion appears as section (h)(1) & (2) in the general comprehensive liability policy and also in a contractual liability policy endorsement as section (m)(l) & (2).


author: ORFINGER, Chief Judge.

text:
    BIDDERS, INC., Appellant, v. The CITY OF COCOA and Continental Insurance Company, Appellees.
    No. 83-54.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1983.
    Rehearing Denied Nov. 7, 1983.

      Steven J. Jacovitz, Cocoa Beach, for appellant.
    Robert A. Hannah and John G. Harper of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   ORFINGER, Chief Judge.

Because a directed verdict should not be granted where there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the plaintiff, American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981), and because the court, in passing on a motion for directed verdict must evaluate the evidence and every reasonable inference to be drawn therefrom in a light most favorable to the plaintiff, Reams v. Vaughn, 435 So.2d 879 (Fla. 5th DCA 1983), the entry of a directed verdict in favor of defendant here was error. There was evidence presented that the proper procedure in removing a water meter from occupied premises was to either install a by-pass so that the customer could continue to receive water pending installation of a new meter, or to close the cut-off valve on the customer’s side of the meter, so that water already in the system would not escape. There was also evidence from which the jury could have concluded that neither measure was taken here when the city removed the water meter; that, as a result, the water in the plaintiff’s system backed up and escaped, thereby depriving plaintiff’s air conditioning system of water which it required to operate properly, and that this omission was the proximate cause of the damage to the air conditioning system.

The final judgment is reversed and the cause remanded for a new trial.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.


author: ERVIN, Chief Judge.

text:
    HERITAGE PAPER COMPANY, INC., Appellant, v. Fred FARAH, Edward Farhat, Robert H. Taylor, Sr. and William H. Tuck, Sr., Appellees.
    No. AS-319.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1983.
    Rehearing Denied Nov. 18, 1983.

      Scruggs <& Carmichael, Gainesville, and Knight, Kincaid, Poucher & Harris, Jacksonville, for appellant.
    Jack Singbush, Black, Meffert, Landt, Appleget & Weichens, Ocala, and Glickstein & Crenshaw, Jacksonville, for appellees.
   ON MOTION TO DISMISS

ERVIN, Chief Judge.

Appellant, Heritage Paper Company, Inc. (Heritage), appeals from the entry of an order finding that appellees, former employees, directors and stockholders of Heritage, were entitled to an accounting to determine whether Heritage underpaid appel-lees who were to be compensated on a commission basis. Finding the order in question to be both non-final and non-appeala-ble, we revisit appellees’ motion to dismiss and accordingly grant it.

Following the trial court’s order directing a partial accounting for a five-month period, the trial court, on March 24, 1983, entered an order directing a full accounting for that time between September 30, 1973 and February 11, 1977. In addition, the court rejected exceptions, filed by both parties, to an accounting committee’s report finding a tentative underpayment of $1,143.66 for the five-month period, and directed that the costs of the accounting be borne by the parties, with the appellees responsible for four-fifths of that cost and Heritage responsible for the remainder. Heritage appeals from this order, contending it is a non-final but appealable order in that it determines the issue of liability in favor of appellees. Appellees responded by moving to dismiss the appeal, arguing that the order in no way determined the issue of liability. Although this court initially denied the motion, a complete review of the issues and arguments raised by the parties, together with the appendices submitted, now convinces us that appellees are correct and that the order is in fact non-appealable.

Cases interpreting and applying pre-1977 rules of appellate procedure, relating to interlocutory appeals, held that orders finding an entitlement to an accounting, and ordering that the same be had, were non-final but appealable orders. See McCann Plumbing Co. v. Plumbing Industry Program, Inc., 105 So.2d 26 (Fla. 3d DCA 1958); Carberry v. Foley, 206 So.2d 425 (Fla. 3d DCA 1968); A-1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442 (Fla. 3d DCA 1969). In 1977, however, procedures for taking interlocutory appeals were extensively altered to provide for review of only a limited group of non-final orders “based upon the necessity or desirability of expeditious review.” 32 Fla.Stat.Ann. 387, 1977 Committee Notes (1983). In particular, Florida Rule of Appellate Procedure 9.130(a)(3) now provides:

(3) Review of non-final orders of lower tribunals is limited to those which:
(A) concern venue;
(B) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) jurisdiction of the person;
(ii) right to immediate possession of property;
(iii) right to immediate monetary relief or child custody in domestic relations matters; or
(iv) the issue of liability in favor of a party seeking affirmative relief.

(e.s.). Post-1977 cases have generally interpreted rule 9.130(a)(3)(C)(iv) strictly, so as to limit such review to those orders which affirmatively determine the issue of liability in favor of a party seeking such relief. See State Farm Mutual Automobile Insurance Co. v. Morris, 370 So.2d 828, 829 (Fla. 1st DCA 1979) (order determining inapplicability of insurance policy exclusionary clause did not determine issue of liability); American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420, 421 (Fla. 5th DCA 1980) (order determining sufficiency of allegations of class action not a determination of liability). But see Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981), approved, 411 So.2d 872 (Fla.1982) (order denying motion to vacate default does determine liability). If, however, an order does nothing more than to allow a cause to “proceed towards a potential liability as yet undetermined, and one which may never be established,” no liability is determined and such an order is non-appealable. Price, 379 So.2d at 421 (e.s.).

In this case, Heritage is entitled to appellate review of the order of March 24 only if it can be said that this non-final order affirmatively determines the issue of liability in favor of appellees. Our review of the order in question leads to the conclusion that no such determination has been made at this stage of the accounting procedure. At most the order decides that ap-pellees are now entitled to a full accounting in order to discover therefrom if any liability for unpaid or underpaid commissions exists. After an accounting of Heritage’s records for a five-month period, the accounting committee found discrepancies totaling $1,143.66. Although that finding suggests that appellees may have been underpaid, it is entirely conceivable that once the accounting for the five-year period is completed, the final result may establish that Heritage owes nothing. Therefore, as in Price, the order does nothing more than to allow this case to proceed toward a potential, but as yet undetermined liability, which may, in fact, never materialize. As such, it is non-appealable.

In reaching our conclusion we are strongly persuaded by the rationale of Morton v. City of Miami Beach, 376 So.2d 279 (Fla. 3d DCA 1979), in which an accounting was sought to determine the existence and extent of alleged rent overcharges. An accounting for the calendar year 1975 was ordered and, in a later order from which an appeal was taken, a similar accounting was ordered for the calendar year 1976. In dismissing the appeal, the court reasoned that the order for accounting was clearly not an appealable, final order because the judicial labor was not at an end. 376 So.2d at 281. At the same time, however, the order was found to be non-final and non-ap-pealable in that it was merely “... a partial accounting order ... which in no way decides a liability issue in favor of plaintiff-appellant .... ” Id. Finally, the court declined to treat the appeal as a petition for writ of certiorari, finding that appellants would have an adequate remedy by direct appeal once a final judgment was eventually entered.

Although the Morton case involved an order for a partial accounting for a one-year period, we find the reasoning and conclusions of that case are fully applicable to this situation where the court ordered a full accounting for the five-year period in dispute. Because, as the Morton court observed, “piecemeal appeals” should not be entertained, this appeal is dismissed without prejudice to the parties’ rights to raise these issues on direct appeal from the final order entered.

THOMPSON and NIMMONS; JJ., concur.

      . Florida Appellate Procedure Rule 4.2 is worded far differently from its later amended counterpart, rule 9.130(a)(3). That rule, quoted infra, ■ is far more restrictive in its application than the former rule.

      . An action for accounting is an equitable procedure which normally calls for a two-stage proceeding: “[Fjirst for the establishment of the right or basis for the accounting with the actual accounting following in accordance with the earlier determination.” A-1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442, 444 (Fla. 3d DCA 1969). It is only after the accounting is actually held that the court must “balance the equities, adjust the accounts of the parties, and render complete justice between them.” F.A. Chastain Construction, Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962). Given this unique procedure, it is clear that at the conclusion of the first stage — that is the determination of entitlement to an accounting — no determination of liability is as yet made.