SUSAN KIRKPATRICK, appellant, vs. JOHN ZITZ and TRANSAMERICA INSURANCE COMPANY, appellees.

Case Brief:

SUSAN KIRKPATRICK, appellant, vs. JOHN ZITZ and TRANSAMERICA INSURANCE COMPANY, appellees.

No. PP-120

District Court of Appeal, Florida First District

401 So. 2nd 850; 1981 Fla, App. LEXUS 20472

July 7, 1981; Rehearing Denied August 17, 1981

  1. The Facts:

On July 2, 1979, Kirkpatrick filed a third amended complaint seeking damages for a skunk bite she received while in a pet store owned by Zitz. Count two of the amended complaint alleged a cause of action against Transamerica for intentional infliction of emotional distress. Transamerica is Zitz’s insurer. 

Kirkpatrick contends Zitz then sold the skunk, which was then lost prior to the incubation period required to determine if the skunk had rabies. Kirkpatrick asserts she suffered severe emotional distress when she learned Transamerica intentionally exposed her to death by not telling her the skunk was not available to be monitored for rabies. 

  1. Procedural History:

An appeal from the Circuit Court for Duval County where Transamerica moved for, and was granted a dismissal. Thomas D. Oakley, Judge.

  1. Procedural Issue:

Whether the trial court erred in dismissing count two of the third amended complaint with prejudice.

  1. The Issue: 

Whether Kirkpatrick’s third amended complaint adequately states a cause of action against Transamerica.

  1. The Holding:

Court ruled in the plaintiff’s favor.

  1. The Legal Reasoning:

Buyer complied with requirement in Nevada Lemon Law that she make reasonable number of attempts to conform automobile to applicable express warranty, where automobile was subject to repair four or more times, it was out of service for aggregate of more than 30 days during first year after delivery for defective rear window seal and molding and problems with braking system, and dealer was unable to repair or correct defects or conditions.

  1. Judgment:

Reversed and remanded for further proceedings.

Case Links:

http://vlex.com/vid/marina-milicevic-imports-mercedes-benz-36495167 

https://web2.westlaw.com/result/default.wl?rltdb=CLID_DB3171528222711&srch=TRUE&db=ALLFEDS&sv=Split&service=Search&eq=search&fmqv=s&rlti=1&sskey=CLID_SSSA1186528222711&n=-1&method=WIN&origin=Search&query=milicevic&mt=Westlaw&action=Search&vr=2.0&rlt=CLID_QRYRLT13743528222711&rp=%2fsearch%2fdefault.wl&cnt=DOC&cfid=1&rs=WLW10.10&fn=_top

http://openjurist.org/402/f3d/912/milicevic-v-fletcher-jones-imports-ltd