Filippo Industries, Inc. v. Sun Insurance

Appellants Sun Insurance Company of New York (Sun), Phoenix Assurance Company of New York (Phoenix), 1 and William H. McGee & Co., Inc. (McGee) appeal from the denial of their motion for judgment notwithstanding the verdict, from the judgment, from the order on their motion to tax costs, and from the order on respondent’s motion for additional attorney fees.

Respondent Filippo Industries, Inc. (Filippo) filed a notice of appeal seeking interest on the awards from the date of judgment onwards. It has also filed a protective cross-appeal to take effect in the event that McGee’s appeal for judgment notwithstanding the verdict is successful. In such case it requests that Sun be substituted in for McGee in liability for punitive damages or, in the alternative, it seeks a new trial on McGee’s liability, or a new trial on Sun’s liability therefor.

We hold that the evidence was insufficient to uphold a verdict on either count against McGee because it was the agent for a disclosed principal. The majority holds that the evidence was sufficient as to Sun on both causes of action and finds that no error of the trial court calls for reversal of the judgment.

The dissent finds the…

Certified for Partial Publication. [*]

Appellants Sun Insurance Company of New York (Sun), Phoenix Assurance Company of New York (Phoenix), [1] and William H. McGee & Co., Inc. (McGee) appeal from the denial of their motion for judgment notwithstanding the verdict, from the judgment, from the order on their motion to tax costs, and from the order on respondent's motion for additional attorney fees.

Respondent Filippo Industries, Inc. (Filippo) filed a notice of appeal seeking interest on the awards from the date of judgment onwards. It has also filed a protective cross-appeal to take effect in the event that McGee's appeal for judgment notwithstanding the verdict is successful. In such case it requests that Sun be substituted in for McGee in liability for punitive damages or, in the alternative, it seeks a new trial on McGee's liability, or a new trial on Sun's liability therefor.

We hold that the evidence was insufficient to uphold a verdict on either count against McGee because it was the agent for a disclosed principal. The majority holds that the evidence was sufficient as to Sun on both causes of action and finds that no error of the trial court calls for…

A petition for a rehearing was denied October 18, 1999, and on October 20, 1999, the opinion was modified to read as printed above. Woods, J., was of the opinion that the petition should be granted. The petition of defendants and appellants for review by the Supreme Court was denied January 19, 2000. Chin, J., was of the opinion that the petition should be granted.

See footnote, ante, page 1429.