Opinion
No. 2196.
March 22, 1961.
Petition for review from the Circuit Court of Broward County, Richard M. Sauls, J.
Lawrence G. Ropes, Jr., Edward S. Kelly, Kelly, Brooks Ropes, Coral Gables, for petitioner.
Norman C. Roettger, Jr., Fleming, O'Bryan Fleming, Fort Lauderdale, for respondents.
The plaintiff below filed a complaint against several defendants, one of whom was the Tropical Roofing Company, a Florida corporation, the owner of the automobile involved in a highway collision with a motor vehicle operated by plaintiff's decedent-husband. The plaintiff sought compensatory and punitive damages against each of the defendants.
The defendant, Tropical Roofing Company, filed a motion to strike the allegations relating to punitive or exemplary damages on the ground such damages were sought against it based solely on its vicarious liability; that an owner of a vehicle as such is not liable for exemplary or punitive damages; and that the allegations for punitive and exemplary damages are insufficient as a matter of law.
The lower court entered an order striking "any claim in the amended complaint as to punitive damages against the defendant, Tropical Roofing Company." It is to this order that the instant petition for certiorari is directed.
It will be observed that the action below was at common law and this petition for certiorari, in effect, attempts to bring an interlocutory appeal to this court through the agency of certiorari.
Rule 4.2, subd. a, Florida Appellate Rules, 31 F.S.A., Interlocutory Appeals, provides:
"Appeals from interlocutory orders or decrees in equity, orders or decrees entered after final decree, and orders at common law relating to venue or jurisdiction over the person, may be prosecuted in accordance with this rule; provided that nothing contained in this rule shall preclude the review of such orders and decrees on appeal from the final decree in the cause."
It will be observed from the above rule that only orders at common law relating to venue or jurisdiction over the person may be appealed under this rule. To grant certiorari in this case would, in effect, authorize certiorari in any damage suit where the court had granted a motion to strike various allegations in the pleadings or refused to grant various motions to dismiss, etc.
The plaintiff below, petitioner here, after final judgment in this case, can appeal from the court's order striking allegations for punitive damages as to the defendant corporation, Tropical Roofing Company, if it is deemed advisable. Longo v. Collins, Fla.App. 1958, 106 So.2d 1.
Petition for certiorari denied.
SHANNON, J., and GERALD, LYNN, Associate Judge, concur.