Opinion
Nos. 78-1017, 78-1018, 78-1118 and 78-1119.
March 20, 1979. Rehearing Denied April 30, 1979.
Appeal from the Circuit Court, Dade County, George Orr, J.
Walton, Lantaff, Schroeder Carson and James Knight, Miami, Edna L. Caruso, West Palm Beach, Howard E. Barwick, Miami Shores, for appellants.
Headley Headley; Goodwin, Ryskamp, Welcher Carrier and Kenneth L. Ryskamp, Miami, for appellee.
Before HENDRY, HUBBART and KEHOE, JJ.
The judgments appealed from are affirmed as to the appellants C B Airways Company and National Indemnity Company without prejudice to the appellant National Indemnity Company to properly raise the insurance coverage issue in a subsequent proceeding. In our view, no error has been demonstrated on this record as to these appellants. American District Electric Protective Co. v. Seaboard Air Line Railway Co., 139 Fla. 451, 190 So. 820 (1939) (syllabus no. 3); Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972).
The judgments appealed from are reversed as to the appellant Piper Aircraft Corporation on the ground that the plaintiff Caralee Ashurst failed to present evidence at trial to establish that the subject aircraft herein had a defect sufficient to sustain a cause of action for breach of implied warranty or negligence. Although there was evidence in the record that the accident sued upon was caused by anti-symmetrical flutter, there is no evidence that such flutter was caused by a structural or design defect in the aircraft. The trial court, accordingly, erred in denying Piper Aircraft's motion for a directed verdict as such motion should have been granted. Hormovitis v. Mutual Lumber Co., 120 So.2d 42, 46 (Fla. 2d DCA 1960); Stolmaker v. Bowerman, 100 So.2d 659, 660 (Fla. 3d DCA 1958).
Affirmed in part; reversed in part.