Dionese v. City of West Palm Beach

• Decision Date: 22 January 1987
• Docket Number: No. 68689,68689
• Citation: 500 So.2d 1347,12 Fla. L. Weekly 76
• Parties: , 12 Fla. L. Weekly 76 Patsy DIONESE, et vir., Petitioners, v. CITY OF WEST PALM BEACH, et al., Respondents.
• Court: Florida Supreme Court

Page 1347

500 So.2d 1347

55 USLW 2479, 12 Fla. L. Weekly 76

Patsy DIONESE, et vir., Petitioners, v. CITY OF WEST PALM BEACH, et al., Respondents.

No. 68689.

Supreme Court of Florida.

Jan. 22, 1987.

Barbara Green of Daniels and Hicks, P.A., Miami, and Ricci and Roberts, P.A., West Palm Beach, for petitioners.

R. Fred Lewis of Magill & Lewis, P.A., Miami, for respondents.

Patricia A. Seitz and Nancy E. Swerdlow of Steel, Hector & Davis, Miami, for Florida Power & Light Co., amicus curiae.

ADKINS, Justice.

We have for review Dionese v. City of West Palm Beach, 485 So.2d 1361 (Fla. 4th DCA 1986), in which the district court certified the following as a question of great public importance:

Whether a private, unilateral agreement among several plaintiffs to apportion funds paid by one joint tort-feasor is binding upon non-settling joint tort-feasors and the court in determining the set-off claim of the non-settling joint tort-feasors?

Id. at 1364. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution and answer the question in the negative.

Patsy Dionese, a driving instructor, was injured when an automobile driven by a student collided with a partially raised manhole cover located in the City of West Palm Beach. Patsy sued various parties in an attempt to recover damages for her personal injuries and her husband Charles joined the suit seeking damages for loss of consortium.

The Dioneses settled their claim with the driver of the automobile and her insurer for $45,000. The settlement agreement did not apportion the money between Mr. and Mrs. Dionese. The Dioneses proceeded to trial against the City of West Palm Beach. After taking comparative negligence and the failure to wear a seat belt into account, the jury returned a verdict of $57,000 for Mrs. Dionese and $3,800 for her husband.

A post-trial hearing was held to determine the proper method of set-off as required by section 768.041(2), Florida Statutes (1983), which provides:

At trial, if any defendant shows the court that the plaintiff ... has delivered a release ... in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

At the hearing, the Dioneses notified the court of a private unilateral agreement to apportion $10,000 of the $45,000 settlement proceeds to Mrs. Dionese's claim for personal injuries, and the remaining $35,000 to Mr. Dionese's claim of loss of consortium. A set-off of $10,000 from Mrs. Dionese's verdict of $57,000 would leave a $47,000 judgment against the City. The City would not have to pay any of the $3,800 verdict to Mr. Dionese because the $35,000 settlement would result in a net judgment of zero. Hence, the Dioneses sought entry of a $47,000 judgment against the City. The Dioneses both testified in post trial depositions that they agreed to the $35,000/$10,000 apportionment because Mrs. Dionese was receiving workers' compensation benefits while Mr. Dionese was previously uncompensated.

The City of West Palm Beach asserted that the general $45,000 settlement must be deducted from the combined $60,800 verdict. This calculation would result in entry of a $15,800 judgment against the City. In support, the City notes that the settlement agreement itself did not apportion the proceeds. Further, in response to a pretrial inquiry concerning the existence of any settlement agreements, counsel for the Dioneses explained that his clients had obtained a $45,000 settlement that was a "general release." The Dioneses did not advise the City, or the court, that the settlement had been apportioned until after entry of the jury verdict. In addition, counsel for the settling parties testified that he had refused to execute a post-verdict settlement agreement apportioning the $45,000, and would not have settled at all if the Dioneses had insisted upon an apportionment.

Both existing case law and fairness to the parties involved require us to ignore a private unilateral apportionment of settlement proceeds among plaintiffs, when the settlement agreement itself fails to apportion the proceeds among the plaintiffs.

Both parties argue that Devlin v. McMannis, 231 So.2d 194 (Fla.1970), supports their position and controls the question presented. In Devlin, a father brought two separate causes of action against the joint tort-feasors responsible for his son's death. In one cause of action, the father was suing as the administrator of the estate of his deceased son. In the second cause of action, the father was suing individually and on behalf of his wife as surviving parents of their minor son. Prior to trial, one of the joint tort-feasors reached a $20,000 settlement agreement with the father. The agreement specified that $2,000 was in settlement of the estate's claim and $18,000 was in settlement of the parents' claim. The jury returned a verdict of $10,000 to the estate and $5,000 for the parents individually.

The trial court entered a zero verdict after setting off the $20,000 settlement from the $15,000 verdict. The district court of appeal reversed and entered a $8,000 verdict in favor of the estate. This figure was reached by setting off the $2,000 settlement allocated to the estate from the $10,000 verdict returned in favor of the estate. This Court upheld the decision of the district court.

The Dioneses assert that Devlin is supportive of their position because it recognizes and preserves the identity of separate causes of action, and provides that only the amount of the settlement agreement apportioned to a specific cause of action, not the amount of the entire settlement, must be set off against the jury verdict for the corresponding cause of action. The Dioneses fail to recognize that Devlin is easily distinguishable from the instant case. In Devlin, the settlement agreement itself recognized two separate and distinct causes of action and apportioned the proceeds accordingly. Conversely, the settlement agreement in the instant case was a general release that failed to apportion the proceeds. In Devlin, we recognized this crucial distinction when we cautioned:

[W]e are not unaware that there may be occasions where a settlement is effected so as to fail to preserve or otherwise differentiate settlement sums pertaining to the damages distinctive and peculiar to the underlying causes of action. Under such circumstances, subsequent verdicts entered against another joint tort-feasor on the same causes of action may indeed occasion the necessity of offsetting against the total sum of the verdicts the total amount of the prior settlement.

231 So.2d at 196-97. This case presents the situation referred to in Devlin. The settlement agreement failed to apportion the proceeds among the separate and distinctive causes of action. Hence, the total amount of the settlement must be set off from the entire verdict.

City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981), is directly on point with Devlin and fully supports our finding that private, unilateral agreements by plaintiffs to apportion settlement proceeds are nonbinding. In City of Tamarac, the plaintiff sued several parties as a result of injuries sustained in an automobile accident and his wife joined the...