Daniel v. Morris

• Decision Date: 04 December 2015
• Docket Number: No. 5D14–1658.,5D14–1658.
• Citation: 181 So.3d 1195
• Parties: Beverly Cesary DANIEL, Appellant, v. John B. MORRIS, et al., Appellees.
• Court: Florida District Court of Appeals

181 So.3d 1195

Beverly Cesary DANIEL, Appellant,
v.
John B. MORRIS, et al., Appellees.

No. 5D14–1658.

District Court of Appeal of Florida, Fifth District.

Dec. 4, 2015.
Rehearing Denied Jan. 19, 2016.

Ronald S. Webster, of Webster Law Group, P.A., Orlando, for Appellant.

Wilbert R. Vancol and Mary Jaye Hall, McEwan, Martinez & Dukes, P.A., Orlando, for Appellee.

BERGER, J.

Beverly Cesary Daniel appeals the final summary judgment entered by the trial court in favor of Associated Investigators, Inc. and John B. Morris, an employee of Associated Investigators. Daniel argues the trial court erred when it determined that Associated Investigators and Morris were subsequent tortfeasors of BankFirst and that the settlement and release of BankFirst discharged Associated Investigators and Morris from liability. We agree and reverse.

Daniel owned and operated Orlando Limousine, Inc., with her business partner, Carlos Rivera.¹ BankFirst held a purchase-money security interest in a bus owned by Orlando Limousine from a loan it made to Rivera.

After Rivera's death, Orlando Limousine defaulted on the loan. Thereafter, BankFirst obtained a judgment against Rivera's estate for $70,000 plus statutory interest. BankFirst then hired Associated Investigators to repossess the bus. An initial attempt at repossession was unsuccessful. However, on March 6, 2012, Morris made a second attempt. This time, when he entered Orlando Limousine's premises to repossess the bus, Morris allegedly ignored Daniel's request to leave, forced his way onto the bus, and came into physical contact with Daniel.

Daniel filed a two-count complaint against BankFirst, Associated Investigators, and Morris. The first count alleged negligence during the repossession when

181 So.3d 1197

Morris came into physical contact with Daniel and injured her. The second count was also titled negligence, but asserted a trespass to land and chattels (the bus) claim.

BankFirst and Daniel later reached a settlement agreement and executed a mutual release.² The release stated that the Estate of Carlos Rivera satisfied the $70,000 judgment held by BankFirst against the estate and that Daniel, individually and as personal representative of the estate, paid BankFirst $8,000 to settle all other claims BankFirst had against the estate. The release specifically referenced the case brought by BankFirst against the estate and this case. The release further stated that Daniel agreed to voluntarily dismiss her claim against BankFirst as additional consideration for BankFirst's release of its claims against the estate.

Thereafter, Associated Investigators and Morris filed a motion for summary judgment, arguing that when Daniel released her claims against BankFirst, she failed to preserve her claims against them. They asserted that BankFirst was the initial tortfeasor and that they were subsequent tortfeasors based on BankFirst's earlier repossession attempt before March 6, 2012. Associated Investigators and Morris argued that the repossession on March 6, 2012, aggravated the earlier trespass. Daniel denied that Associated Investigators and Morris were subsequent tortfeasors. She noted that BankFirst paid her nothing in exchange for the release and that Associated Investigators was hired by BankFirst as an independent contractor. Daniel contended that the release was intended only to settle BankFirst's claims against Carlos Rivera's estate and not the claims against Associated Investigators and Morris.

The trial court granted the Appellees' motion for summary judgment, stating:

The allegations against BankFirst were such that BankFirst initiated repossession of the vehicle and that BankFirst subsequently initiated additional repossession efforts on Plaintiff's alleged property. The release however failed to preserve any claims against MORRIS and ASSOCIATED in her settlement with BankFirst. Plaintiff's failure to preserve the claim and the mutual release which was executed by the Plaintiff acts as a release of MORRIS and ASSOCIATED precluding further action [against] MORRIS and ASSOCIATED which entitles MORRIS and ASSOCIATED to Summary Final Judgment as a matter of law. See Rucks v. [P ]ushman, 541 So.2d 673 (Fla. 5th DCA 1989), Caccavella v. Silverman, 814 So.2d 1145 (Fla. 4th DCA [2002] ), [Univ. ] of Miami v. Francois, 76 So.3d 360 (Fla. 3d DCA 2011).

This timely appeal followed.

We review orders granting summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Daniel argues that the trial court erred in applying the initial and subsequent tortfeasor doctrine to this case. She claims that Morris' act of pushing her out of a bus during the repossession was the initial and sole injury, meaning there were no subsequent tortfeasors. Daniel contends that there was no aggravation of the injury in this case and that, even if there was, only doctors and other medical professionals could be subsequent tortfeasors. Associated Investigators and Morris respond that the initial and subsequent tortfeasor doctrine has been applied outside the context of doctors and medical professionals and quote from

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the complaint to support their contention that there were at least two attempts to repossess the bus. They argue that their first repossession attempt on behalf of BankFirst, which occurred before March 6, 2012, was the initial injury in the form of trespass and that the March 6, 2012 repossession on behalf of BankFirst aggravated the earlier trespass injury. Although Associated Investigators and Morris correctly argue that the initial and subsequent tortfeasor doctrine can apply outside the context of medical malpractice,³ the doctrine does not apply to this particular factual scenario.

A secured party may take possession of the collateral with or without judicial process if it can be done without a breach of the peace. § 679.609(2)(b), Fla. Stat. (2012). Creditors electing peaceful repossession over replevin are liable for any negligence during the repossession. See S. Indus. Sav. Bank v. Greene, 224 So.2d 416, 418 (Fla. 3d DCA 1969). A creditor's duty to repossess peacefully, imposed by section 679.609(2)(b), Florida Statutes, is a nondelegable duty, and a creditor cannot avoid liability for a tortious repossession by...