Ding v. Jones

• Decision Date: 07 February 1996
• Docket Number: No. 95-00705,95-00705
• Citation: 667 So.2d 894
• Parties: 21 Fla. L. Weekly D382 Peter DING, Individually and as Personal Representative of the Estate of Joan Ding, Deceased, on Behalf of the Estate of Joan Ding and Survivor, Peter Ding, Appellant, v. Leo D. JONES; Walden Leasing, Inc.; Florida Coca Cola Bottling Company, a corporation; the Merged Corporation of Fort Myers Coca Cola Bottling Company, Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 894

667 So.2d 894

21 Fla. L. Weekly D382

Peter DING, Individually and as Personal Representative of the Estate of Joan Ding, Deceased, on Behalf of the Estate of Joan Ding and Survivor, Peter Ding, Appellant, v. Leo D. JONES; Walden Leasing, Inc.; Florida Coca Cola Bottling Company, a corporation; the Merged Corporation of Fort Myers Coca Cola Bottling Company, Corporation, Appellees.

No. 95-00705.

District Court of Appeal of Florida Second District.

Feb. 7, 1996.

Appeal from the Circuit Court for Lee County; Lynn Gerald, Jr., Judge.

Mark Norden of Mark Norden, P.A., Ft. Myers, for Appellant.

Ted R. Manry, III, and D. James Kadyk of Macfarlane, Ausley, Ferguson & McMullen, Tampa, for Appellees Leo D. Jones and Florida Coca Cola Bottling Company.

Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for Appellee Walden Leasing, Inc.

CAMPBELL, Acting Chief Judge.

Appellant, Peter Ding, as surviving husband of Joan Ding, deceased, individually, and as personal representative of the estate of Joan Ding, deceased, challenges the orders dismissing his wrongful death counterclaim against appellee, Leo D. Jones (Jones), his wrongful death cross-claim against appellee Walden Leasing, Inc. (Walden), and his wrongful death third party claim against appellee, Florida Coca Cola Bottling Company (Coca Cola). Appellant's individual claims arising out of negligence remain pending. We affirm the dismissal of appellant's wrongful death claims resulting from the death of his wife in regard to appellees Walden and Coca Cola and that part of his counterclaim against appellee Jones that sought recovery on behalf of the estate of Joan Ding. We reverse the dismissal of appellant's counterclaim seeking recovery as the surviving spouse for the wrongful death of his wife as to appellee Jones.

Since appellant's wrongful death claims were dismissed as untimely under the wrongful death statute of limitations, appellant maintains on appeal that the doctrine of recoupment should have allowed him, in defense of the action brought against him, to advance his claim for all damages he sustained, even if they were otherwise barred by the statute of limitations. In support of his positions, appellant relies on Allie v. Ionata, 503 So.2d 1237 (Fla.1987) and Dye v. Houston, 421 So.2d 701 (Fla. 1st DCA 1982). We conclude, as we will explain, that while Allie applies to the circumstances surrounding appellant's wrongful death claim as surviving spouse arising out of his wife's death which was pled as a counterclaim against Jones, it does not apply to the other appellees or to appellant's wrongful death action on behalf of Joan Ding's estate. This holding results from our determination that the surviving spouse's rights in a wrongful death action are personal to that surviving spouse. Even though a wrongful death action must be brought by the personal representative of the estate as a nominal party on behalf of the surviving spouse, the real party in interest is the surviving spouse.

The history of the facts and circumstances that lead to this appeal begins with an automobile accident on July 14, 1990, in which appellant's wife, Joan Ding, was killed. Mrs. Ding was a passenger in a car driven by her husband, appellant, and owned by appellee Walden. The fatal accident occurred when a truck driven by appellee Jones and owned by appellee Coca Cola crashed into the side of the Walden vehicle driven by appellant. Mrs. Ding was killed, and appellant was injured. When appellant recovered sufficiently to be discharged from the hospital, he returned to the Dings' home in England.

The first legal action arising out of the accident began on February 15, 1994, almost four years after the accident and well after the two-year statute of limitations for wrongful death actions. § 95.11(4)(d), Fla.Stat. (1989). That action was initiated by appellee Jones, the driver of the Coca Cola truck, against appellee Walden as owner of the vehicle driven by appellant Ding, and against Ding, individually, as driver of that vehicle. Appellee Jones in that action sought to recover damages for his personal injuries received in the accident based upon his allegations of appellant Ding's negligence as driver of the Walden vehicle.

Appellant Ding subsequently filed claims against Jones, Walden and Coca Cola, seeking a recovery in negligence for Ding's own injuries and seeking a recovery for, as surviving husband, the wrongful death of his wife. Appellant Ding, in his capacity as personal representative, also filed wrongful death claims against all three appellees on behalf of his wife's estate.

Count I of appellant Ding's pleading seeking affirmative relief consisted of his individual counterclaims against appellee Jones, his third party claim against Coca Cola and his cross-claim against Walden seeking damages for Ding's personal injuries based upon the alleged negligence of each of the three appellees. Count I survived a motion to dismiss and remains pending.

Count II was Ding's action as personal representative of the Estate of Joan Ding, deceased, seeking recovery on behalf of the estate of Joan Ding against each of the three appellees for the wrongful death of Joan Ding. Count II was dismissed as being barred by the two-year wrongful death statute of limitations. We affirm that dismissal, as we will explain. Count III was Ding's action as personal representative of the estate of Joan Ding, on behalf of Ding as surviving husband against each of the three appellees for the wrongful death of Joan Ding. Count III was also dismissed as being barred by the statute of limitations. We conclude that the proper application of Allie to the circumstances of this case requires us to affirm the dismissal of Count III as to Walden and Coca Cola, but reverse as to Jones.

Appellees' principal argument against allowing the wrongful death claims to be asserted in the action brought by appellee Jones against appellant Ding, individually, is that the right to bring the wrongful death claims by statute rests in a different party, i.e., appellant Ding as personal representative of the estate of Joan Ding, deceased. We find that argument unavailing as to appellee Jones in regard to Ding's personal wrongful death rights to be compensated as surviving husband of Joan Ding.

In order to understand our resolution of this matter, it is necessary to first examine The Florida Wrongful Death Act, sections 768.16 through 768.27, Florida Statutes (1989). The purpose of the Act is to provide for a right to damages in a "survivor" (Ding) for the survivor's losses because of the death of a "decedent" by "wrongful act." When such a "survivor" is also a participant in the event that resulted in the survivor's decedent's death and is sued by another participant or tortfeasor, the survivor should have the right to both defend and affirmatively counterclaim against the participant bringing the action for all rights the survivor has which grow out of the event even if those rights had been otherwise barred by a statute of limitations. We conclude that in such a situation, the right to defend against an affirmative counterclaim in an action by reason of a statute of limitation defense is waived when one possessing such a statute of limitation defense is the one who initiates the action. That is the very essence of the doctrine of recoupment:

We are further persuaded by consideration of the purposes of statutes of limitation. The expiration of a statute of limitation does not resolve the underlying merits of the consequently barred claim in favor of either party; it merely cuts off the remedy of the party who has slept on his rights. Limitation statutes are designed as shields to protect defendants against unreasonable delays in filing law suits and to prevent unexpected enforcement of stale claims.

....

A party who seeks affirmative relief, whether through an original complaint or a counterclaim, effectively asserts that he is prepared to prosecute all aspects of that matter. Having sufficient knowledge of the facts to support a complaint and sufficient evidence to prosecute that complaint, he must be prepared to defend against any affirmative defenses arising therefrom. Thus, once a party files an affirmative action, he cannot thereafter profess to be surprised by or prejudiced by affirmative defenses or compulsory counterclaims that stem from that action. The same rationale which permits the defense of recoupment at all on a claim which would be barred by the statute of limitations supports the recovery of affirmative relief. We can perceive no logical reason to prohibit an affirmative judgment in such circumstances.

Allie, 503 So.2d at 1239-1240 (citations omitted).

It becomes important then to determine, when the counterclaim provisions of Florida Rule of Civil Procedure 1.170 are implemented, who is the "party" or the "pleader" with the right to assert the claim and, if not already a party to the action, how that entity may be made such a party. Rule 1.170(a) provides:

[A pleader] shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

(Emphasis supplied.)

Florida Rule of Civil Procedure 1.210(a) provides:

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the...