Brown & Brown, Inc. v. Gelsomino
| Decision Date | 28 November 2018 |
| Docket Number | No. 4D17-3737,4D17-3737 |
| Parties | BROWN & BROWN, INC., Appellant, v. James T. GELSOMINO and Ace American Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Lawrence P. Ingram, Melissa B. Murphy, and Christian M. Gunneson of Freeborn & Peters LLP, Tampa, for appellant.
Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Geoff S. Stahl of Liggio Benrubi, West Palm Beach, for appellee James T. Gelsomino.
The legislature exercised its discretion by passing, over a period of years, several laws narrowing and eventually eliminating the doctrine of joint and several liability. Initially, joint and several liability was the standard under the common law until the legislature in 1986 began to redefine the statute, eventually prospectively eliminating it in 2006. The legislature then passed another law in 2011 which, according to appellant, made the elimination of joint and several liability retroactive.
Appellee James T. Gelsomino was injured in 2002 and the trial and verdict was in 2014. The trial court applied joint and several liability. Therefore, the question remains: which version of section 768.81, applies—the statute passed and effective in 2002, 2006, or 2011?
We find that when the legislature passed the legislation in 2011, it included language that made the abolition of joint and several liability retroactive. This makes the 2011 version the operative statute when this case went to trial. Consequently, we find the trial court erred in applying joint and several liability inasmuch as the legislature abolished it retroactively in 2011. Thus, we reverse and remand.
Appellee worked for his brother's company, T & T Contracting. That company was hired to do work in the Bahamas, and appellee and his brother incorporated T & T Services in the Bahamas to do that work. Appellee and his brother sought an insurance policy for T & T Services, but the policy mistakenly named T & T Contracting, the Florida corporation, as the insured instead of T & T Services, the Bahamian corporation. Appellant was the insurance broker and Ace American Insurance Company was the insurer.
In 2002, while in the Bahamas working for T & T Services, appellee was injured in a car accident. When appellee sought coverage for the accident, the insurer denied the claim because the policy did not cover T & T Services, only T & T Contracting. Appellee filed a negligence claim against appellant and Ace American Insurance Company in 2004. Appellee settled his claim against Ace in 2006 and obtained a consent judgment against T & T Services in 2008. The case proceeded to a jury trial in 2014, where the jury found for appellee and apportioned fault as follows:
Appellee then filed a motion for entry of final judgment seeking the entire monetary award (minus 5% apportioned to appellee's own share of fault) from appellant, alleging that appellant could be held jointly and severally liable. Appellee based his motion on appellant being held jointly and severally liable under the 2002 version of the statute.
The trial court, however, set aside the jury verdict and entered final judgment in favor of appellant. Appellee then appealed and this court reversed and reinstated the verdict. Gelsomino v. Ace Am. Ins. Co. , 207 So.3d 288, 293 (Fla. 4th DCA 2016).
The trial court eventually determined that appellant was responsible for paying the full monetary award, less the 5% determined to be the fault of appellee and a $17,500 set-off from the T & T Services settlement. Appellant appeals from this order.
We review de novo whether a statute applies retroactively or prospectively. Bionetics Corp. v. Kenniasty , 69 So.3d 943, 947 (Fla. 2011).
A statute operates retroactively when it "attaches new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods. , 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Whether a statute may be applied retroactively is subject to a two-step test.
Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n , 67 So.3d 187, 195 (Fla. 2011) (citation omitted). Thus, in this case we must determine if the legislature intended the statute, enacted in 2011, to apply retroactively. If it did, we then consider whether the retroactive application of the 2011 statute would violate the United States or Florida Constitutions.
In order to answer these questions we need to examine the recent statutory history of joint and several liability. Joint and several liability was the standard under the common law. See Basel v. McFarland & Sons, Inc. , 815 So.2d 687, 690-91 (Fla. 5th DCA 2002). The Florida legislature began to limit the doctrine in 1986 until it completely eliminated joint and several liability in 2006. Id. at 691.
In 2006, the legislature amended the comparative fault statute to provide that "[i]n cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability." § 768.81(3), Fla. Stat. (2006). This amendment clearly abrogated the doctrine of joint and several liability, at least prospectively. Id. ; see also Port Charlotte HMA, LLC v. Suarez , 210 So.3d 187, 190-91 (Fla. 2d DCA 2016).
However, nowhere in the text of the 2006 statute does it provide for retroactive application. A law is presumed to apply prospectively, unless there is a clear legislative intent that the law be applied retroactively. Walker & LaBerge, Inc. v. Halligan , 344 So.2d 239, 241 (Fla. 1977). Further, the 2006 enacting legislation notes that "[t]his act shall take effect upon becoming a law and shall apply to causes of action that accrue on or after the effective date," April 26, 2006. Ch. 2006-6, § 2, Laws of Fla. When considering whether the law has retroactive application, the legislature's inclusion of an effective date should be considered as evidence rebutting the retroactive application of that statute. Devon Neighborhood Ass'n , 67 So.3d at 196.
In 2011, the legislature amended section 768.81 to include new statutory language that related in part to products liability, and to legislatively overrule D'Amario v. Ford Motor Co. , 806 So.2d 424 (Fla. 2001). The 2011 legislative act added two provisions that stated the statute should be applied retroactively:
Ch. 2011-215, §§ 2-3, Laws of Fla.
In this case, it is uncontested that at the time of appellee's injury and the subsequent complaint, the statute in force was the 1999 version of section 768.81. At that time, the statute from 1999 would have allowed appellee to seek 95% of his damages from appellant. So if appellee and the trial court are correct, then appellant would be responsible for 95% of the damages based on the 1999 statute. If appellant is correct and the 2011 statute is the operative statute, then appellant is responsible for only its 35% share of the damages.
To determine if the 2011 statute is the operative statute rather than the 1999 statute which was in effect at the time of the injury and complaint, we have to examine the text of the 2011 statute as well as related session laws reflecting its enactment. See § 11.242(5)(a), Fla. Stat. (); cf. Peck v. Palm Beach Cty. Bd. of Cty. Comm'rs , 442 So.2d 1050, 1052 (Fla. 1st DCA 1983) ().
The enacting legislation for the 2011 amendment to section 768.81 stated that the act was retroactive and the entire amended statute should be applied retroactively. Both sections 2 and 3 of the enacting legislation of the 2011 amendment clearly reference the retroactive application of the statute. Section 2, where the legislature explicitly overrules D'Amario , states that the "Legislature intends that this act be applied retroactively." Then in section 3, the enacting legislation states that "[t]his act is remedial in nature and applies retroactively." Once again, the legislature directly and plainly states in both sections that the statute is to be applied retroactively. We presume that the legislature added the instructions to apply the enacting legislation retroactively to both sections for a reason.
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