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470 So. 2d 817

470 So.2d 817

10 Fla.L.Weekly 1446

Docket No. AY-165.

Bangert v. Beeler

Bert T. BANGERT and Janet T. Bangert, Appellants, v. Byron D. BEELER and Beeler Development Company, Appellees.

District Court of Appeal of Florida

Decided June 12, 1985.

District Court of Appeal of Florida · decided 1985-06-12

Key passage — most relied on by later courts

“In Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976), we held that the collateral source rule applies not only in tort, but also in contract. Thus, a tractor seller who breached the warranty of title was hable for the full amount of damages even though the buyer’s insuror paid the buyer for some of the damages. Here, the party that breached the warranty to defend title is likewise liable for the full amount of damages. The breaching party should not be rewarded when the wronged party’s collateral source is wholly independent of the breaching party. At the oral argument on this case, counsel for [defendants] contended the collateral source rule should not apply because there is no evidence that the [plaintiffs] bought the title insurance policy, and that it was probably purchased by [someone else]. We have examined the record and find Mr. Bangert [plaintiff] testified, without contradiction, that he procured and paid for the policy.”

quoted by 1 later decision, including State ex rel. Owners Insurance v. McGraw

Relies on Walker v. Hilliard

Good law ✅— No negative treatment on recordhow we know

Decided 1985-06-12

How this case has been cited

Cited by 4 later decisions — most recently June 2014

4 state decisions

201985199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*818 James D. Easley of Moore & Moore, P.A., Niceville, for appellants.

¶2Michael T. Webster of Webster & Colpitts, P.A., Shalimar, for appellees.

¶3MILLS, Judge.

¶4The Bangerts appeal from a final judgment in a third-party claim alleging fraud and breach of warranties, and in a third-party counterclaim for mortgage foreclosure. The trial court erred in finding the Bangerts were not damaged as a result of the third-party defendants' breach of warranty to defend title. We reverse on this issue. We affirm the other issues.

¶5Beeler Development Company (BDC) conveyed property to the Bangerts by warranty deed. The Bangerts and Ridgeway, a man involved with the sale of the property, were later sued by McMullen for specific performance of a contract between Ridgeway and McMullen for sale of the property to McMullen.

¶6That original suit spawned a third-party claim by the Bangerts against BDC and its president, Beeler, which in turn precipitated a third-party counterclaim by Beeler for foreclosure of the Bangerts' mortgage held by him.

¶7The Bangerts contended BDC and Beeler breached the warranty to defend title by not defending them in the original suit. The trial court found that Beeler or BDC or both breached the warranty, but that the Bangerts did not incur damages. The later finding was apparently based on testimony that the Bangerts' title insuror paid the attorney's fees for their defense. The trial court awarded one dollar nominal damages.

¶8In Walker v. Hilliard,329 So.2d 44 (Fla. 1st DCA 1976), we held that the collateral source rule applies not only in tort, but also in contract. Thus, a tractor seller who breached the warranty of title was liable for the full amount of damages even though the buyer's insuror paid the buyer for some of the damages. Here, the party that breached the warranty to defend title is likewise liable for the full amount of damages. The breaching party should not be rewarded when the wronged party's collateral source is wholly independent of the breaching party.

¶9At the oral argument on this case, counsel for Beeler and BDC contended the collateral source rule should not apply because there is no evidence that the Bangerts bought the title insurance policy, and that it was probably purchased by Ridgeway. We have examined the record and find Mr. Bangert testified, without contradiction, that he procured and paid for the policy.

¶10Beeler and BDC also contend the issue is not preserved for review because counsel for the Bangerts did not object to testimony concerning the collateral source. We find he did.

¶11Finally, Beeler and BDC contend the Bangerts failed to submit evidence of damages and therefore cannot recover even if the collateral source rule applies. The affidavit of the Bangerts' trial counsel attesting to the amount of time he spent representing the Bangerts in the original suit and the reasonable value of such representation was sufficient.

¶12The other issues are without merit.

¶13Affirmed in part; reversed in part and remanded for proceedings consistent with the opinion.

¶14SMITH and THOMPSON, JJ., concur.

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