769 F. 2d 1485 - Tds Incorporated v. Shelby Mutual Insurance Company
769 F2d 1485 Tds Incorporated v. Shelby Mutual Insurance Company
769 F.2d 1485
T.D.S. INCORPORATED, d/b/a Lord & Lady Restaurant, Thomas
Starr, and Dorothy Starr, Plaintiffs-Appellees,
v.
SHELBY MUTUAL INSURANCE COMPANY, a foreign corporation
authorized to do business in the State of Florida,
Defendant-Appellant.
No. 83-3622.
United States Court of Appeals,
Eleventh Circuit.
Aug. 12, 1985.
W. Donald Cox, Chris Altenbernd, William A. Gillen, Tampa, Fla., for defendant-appellant.
John W. Berry, Pinellas Park, Fla., for plaintiffs-appellees.
Appeal from the United States District Court for the Middle District of Florida.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion May 24, 1985, 11 Cir., 1985, 760 F.2d 1520)
Before TJOFLAT and FAY, Circuit Judges, and ALLGOOD*, District Judge.
PER CURIAM:
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On Petition for Panel Rehearing the defendant correctly notes that when the panel conditionally remitted plaintiffs' special compensatory damages award to $225,000, the panel did not take into consideration the $100,000 in insurance proceeds awarded to plaintiffs for loss of business, personal property and leasehold improvements. After reviewing the record, we agree with the defendant that Mrs. Starr's estimation of the value of the business in January, 1980, was based in part on the value of the property and improvements covered under the insurance policy. The special compensatory damages award is accordingly reduced to $125,000 to reflect the plaintiffs' recovery on the insurance policy.
Except as noted above, the Petition for Rehearing addressed to the panel is denied. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the Suggestion for Rehearing En Banc is denied.
Honorable Clarence W. Allgood, U.S. District Judge for the Northern District of Alabama, sitting by designation