D'ANGELO v. Fitzmaurice, No. SC03-33

CourtUnited States State Supreme Court of Florida
Writing for the CourtBELL, J.
Citation863 So.2d 311
PartiesPhilip C. D'ANGELO, M.D., et al., Petitioners, v. John J. FITZMAURICE, et al., Respondents. John J. Fitzmaurice, et al., Petitioners, v. Philip C. D'Angelo, M.D., et al., Respondents.
Docket Number No. SC03-33, No. SC03-97.
Decision Date26 November 2003

863 So.2d 311

Philip C. D'ANGELO, M.D., et al., Petitioners,
v.
John J. FITZMAURICE, et al., Respondents.
John J. Fitzmaurice, et al., Petitioners,
v.
Philip C. D'Angelo, M.D., et al., Respondents

Nos. SC03-33, SC03-97.

Supreme Court of Florida.

November 26, 2003.


Esther E. Galicia of George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, FL, for Petitioners/Respondents.

Wagner, Vaughan & McLaughlin, P.A., Tampa, FL; and Joel D. Eaton of Podhurst Orseck, P.A., Miami, FL, for Respondents/Petitioners.

Wendy F. Lumish, Alina Alonso, and Cristina Alonso of Carlton Fields, P.A., Miami, FL, for Florida Defense Lawyers Association, Amicus Curiae.

BELL, J.

We have for review a decision of the Second District Court of Appeal in which that court certified the following question as one of great public importance:

IS IT APPROPRIATE TO SET OFF AGAINST THE DAMAGES PORTION

863 So.2d 312
OF AN AWARD AGAINST ONE TORTFEASOR IN A MEDICAL MALPRACTICE ACTION THE AMOUNT RECOVERED FROM SETTLEMENT FROM ANOTHER FOR THE SAME INCIDENT CAUSING THE INJURY WHERE THE SETTLING ALLEGED TORTFEASOR WAS NOT INCLUDED ON THE VERDICT FORM

D'Angelo v. Fitzmaurice, 832 So.2d 135, 137 (Fla. 2d DCA 2002). For the reasons set forth below, we answer the certified question in the affirmative as to economic damages. We hold that it is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form. However, there should be no setoff for noneconomic damages.

We also review D'Angelo for certified conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999), on an attorney's fees and cost question under section 768.79, Florida Statutes (1997). We accept jurisdiction in this case and approve the Second District's holding on the attorney's fees issue.1

I. FACTUAL AND PROCEDURAL BACKGROUND

John and Carole Fitzmaurice (the Fitzmaurices) filed a medical malpractice action against Phillip C. D'Angelo, M.D. and Phillip C. D'Angelo, M.D., P.A. (collectively referred to as Dr. D'Angelo). The Fitzmaurices alleged that a laparotomy pad was left inside John Fitzmaurice's abdominal cavity during an appendectomy performed by Dr. D'Angelo on August 23, 1997, at Charlotte Regional Medical Center. The Fitzmaurices reached a presuit settlement with Charlotte Regional that included both a cash settlement and the forgiveness of an outstanding hospital bill. Under the terms of the settlement, the Fitzmaurices received an undifferentiated lump sum payment of $200,000, and the hospital "discharge[d] any further obligations for payment of any outstanding bills which are due or owing" to the hospital for services rendered as a result of the procedure.

The case proceeded to trial against Dr. D'Angelo. Dr. D'Angelo defended the medical malpractice action on the theory that the hospital's negligence alone had caused the pad to remain in Mr. Fitzmaurice's abdomen and that the plaintiffs had sued the wrong party. However, Dr. D'Angelo did not request that the hospital appear on the verdict form for apportionment of liability purposes.2

The jury returned a verdict finding Dr. D'Angelo negligent.3 Dr. D'Angelo was

863 So.2d 313
the only defendant on the verdict form; therefore, the jury did not apportion fault. The jury awarded Mr. Fitzmaurice $128,732.814 in past medical expenses and $200,000 for past noneconomic damages. Additionally, the jury awarded Mrs. Fitzmaurice $50,000 in past damages for loss of consortium

Dr. D'Angelo filed a motion asking the trial court to set off against this damage award the entire amount of the hospital settlement. The trial court granted the motion as to economic damages and reduced the economic damages portion of the verdict by $67,980.47.5 The trial court denied any setoff as to noneconomic damages. As a result, an amended final judgment was entered against Dr. D'Angelo awarding Mr. Fitzmaurice $260,752.34 and Mrs. Fitzmaurice $50,000.

Dr. D'Angelo appealed this setoff determination, and the Fitzmaurices cross-appealed. The district court of appeal rejected Dr. D'Angelo's arguments on appeal. It reversed the trial court's setoff order, holding that Dr. D'Angelo was not entitled to a setoff because the hospital was not included on the verdict form for apportionment of fault purposes. The court certified the question as being of great public importance.

Prior to trial, the Fitzmaurices served an offer of settlement upon Dr. D'Angelo. The offer was for $250,000 in settlement of both Mr. and Mrs. Fitzmaurice's claims. The offer did not specify the amount each spouse was willing to accept to settle his or her individual claims. Dr. D'Angelo rejected the offer. After trial, the Fitzmaurices requested an award of attorney's fees pursuant to section 768.79, Florida Statutes (1997). After setting off the jury verdict with the hospital settlement, the trial court did not have to consider the motion for attorney's fees because the new verdict was less than 125% of the settlement offer.

The Fitzmaurices filed another motion for attorney's fees with the district court of appeal, which the court considered after reversing the setoff. Dr. D'Angelo argued that the proposal for settlement was invalid because it contained a joint offer and did not specify the amount each spouse was willing to accept to settle his or her individual claims, in violation of Florida Rule of Civil Procedure 1.442(c)(3). The district court of appeal denied the motion for attorney's fees and certified conflict with Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999), and Flight Express, Inc. v. Robinson, 736 So.2d 796 (Fla. 3d DCA 1999).

II. CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE

The district court failed to note in its opinion and certified question the distinction between noneconomic and economic damages setoffs. In our analysis, we address each type of setoff separately. We begin our discussion by referencing the relevant statutory scheme established by the three setoff statutes and the separate apportionment provisions of section 768.81, Florida Statutes (1997). We then review the critical difference between noneconomic and economic damages under this scheme by discussing each separately. Finally, we apply this distinction to the case before us.

863 So.2d 314
A. APPLICABLE LAW

The standard of review for the pure questions of law before us is de novo. See Armstrong v. Harris, 773 So.2d 7 (Fla. 2000). Therefore, no deference is given to the judgment of the lower courts.

1. Applicability of Section 768.81, Florida Statutes (1997)

Florida law regarding setoffs is found in sections 46.015(2),6 768.041(2),7 and 768.31(5),8 Florida Statutes (1997). Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla.1995). After these statutes were first enacted, the Legislature enacted section 768.81, Florida Statutes (1997). Section 768.81 eliminates joint and several liability for noneconomic damages and limits joint and several liability for economic damages. The pertinent part of the statute provides:

APPORTIONMENT OF DAMAGES.— In 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; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

§ 768.81(3) Fla. Stat. (1997).9 Section 768.81(4) expressly provides that the statute applies to negligence cases, including professional malpractice cases.

2. Noneconomic Damages

In Wells, the Court considered the interrelationship between the three setoff statutes and the apportionment provisions of section 768.81. We highlighted the critical difference this interrelationship makes between economic and noneconomic damages. Wells filed suit against Tallahassee Memorial Regional Medical Center (TMRMC) and two other defendants. Wells settled with all the defendants except

863 So.2d 315
TMRMC. Wells, 659 So.2d at 250. The jury was instructed to apportion fault, if any, among all the defendants. Id. The jury returned a verdict for economic and noneconomic damages, finding TMRMC 90% at fault and the other two defendants each 5% at fault. Id. TMRMC requested a setoff, arguing that the judgment should be reduced by the total amount paid by the settling defendants. Id. This Court concluded that the setoff statutes do not apply to noneconomic damages for which defendants are only severally liable pursuant to section 768.81(3), but held that the setoff statutes continue to apply to economic damages for which parties continue to be subject to joint and several liability. Wells, 659 So.2d at 253

To facilitate the pretrial application of this differentiation, the Court adopted a rule for determining the amount of the economic damages setoff in an undifferentiated economic and noneconomic damages settlement. See id. at 254. The Court held that each defendant is solely responsible for its share of the noneconomic damages and that only that portion of the settlement which represents a recovery for economic damages is available to offset a defendant's liability for economic damages. The portion of the settlement which represents economic damages is then based on the percentage of economic to noneconomic damages as determined by...

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97 practice notes
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • 12 Febrero 2015
    ...facts. Thus, the standard of review is de novo. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower......
  • Engle v. Liggett Group, Inc., No. SC03-1856.
    • United States
    • United States State Supreme Court of Florida
    • 21 Diciembre 2006
    ...judicata was proper is a question of law. See id. at 468. We therefore apply a de novo standard of review. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that standard of review for pure questions of law is de The doctrine of res judicata serves an important purpose in ......
  • Sosa v. Safeway Premium Fin. Co., No. SC09–1849.
    • United States
    • United States State Supreme Court of Florida
    • 7 Julio 2011
    ...46 So.3d 42, 44 (Fla.2010) (citing So. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005), and D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)); see, e.g., Fayad v. Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005) (applying the de novo standard of review in......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • 11 Diciembre 2008
    ...pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the low......
  • Request a trial to view additional results
97 cases
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • 12 Febrero 2015
    ...facts. Thus, the standard of review is de novo. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) (citing D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower......
  • Engle v. Liggett Group, Inc., No. SC03-1856.
    • United States
    • United States State Supreme Court of Florida
    • 21 Diciembre 2006
    ...judicata was proper is a question of law. See id. at 468. We therefore apply a de novo standard of review. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that standard of review for pure questions of law is de The doctrine of res judicata serves an important purpose in ......
  • Sosa v. Safeway Premium Fin. Co., No. SC09–1849.
    • United States
    • United States State Supreme Court of Florida
    • 7 Julio 2011
    ...46 So.3d 42, 44 (Fla.2010) (citing So. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005), and D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003)); see, e.g., Fayad v. Clarendon Nat'l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005) (applying the de novo standard of review in......
  • Kirton v. Fields, No. SC07-1739.
    • United States
    • United States State Supreme Court of Florida
    • 11 Diciembre 2008
    ...pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo and no deference is given to the judgment of the low......
  • Request a trial to view additional results

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