Domino's Pizza, LLC v. Wiederhold

• Decision Date: 11 May 2018
• Docket Number: Case No. 5D16-2794
• Citation: 248 So.3d 212
• Parties: DOMINO’S PIZZA, LLC, Appellant/Cross-Appellee, v. Yvonne WIEDERHOLD, as personal representative of the Estate of Richard E. Wiederhold, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

248 So.3d 212

DOMINO’S PIZZA, LLC, Appellant/Cross-Appellee,

v.Yvonne WIEDERHOLD, as personal representative of the Estate of Richard E. Wiederhold, Appellee/Cross-Appellant.

Case No. 5D16-2794

District Court of Appeal of Florida, Fifth District.

Opinion filed May 11, 2018

Dinah S. Stein and Mark Hicks, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Richard S. Womble and Christine V. Zharova, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellant/Cross Appellee.

John S. Mills and Courtney Brewer, of The Mills Firm, P.A., Tallahassee, for Appellee/Cross Appellant.

ORFINGER, J.

Domino’s Pizza, LLC,¹ appeals a final judgment entered in favor of Yvonne Wiederhold, as personal representative of the estate of Richard E. Wiederhold. Domino’s argues that the trial court should have granted directed verdicts on Mrs. Wiederhold’s claim as a surviving spouse under the Wrongful Death Act, sections 768.16-.26, Florida Statutes (2012) (the "Act"), because she was not married to Mr. Wiederhold at the time of his injury; and that as a matter of law, it was not vicariously liable for the actions of its franchisee, Fischler Enterprises of C.F., Inc., because it did not control Fischler’s day-to-day operations. Domino’s also seeks a new trial based on Mrs. Wiederhold’s improper closing arguments, which it claims denigrated its defense, referenced facts not in evidence, mischaracterized the law, and expressed counsel’s personal beliefs or evoked the "golden rule." Mrs. Wiederhold cross-appeals, arguing that the trial court erred by denying her request for an award of Mr. Wiederhold’s medical expenses paid by Medicare and insurance.

For the reasons set forth below, we affirm the denial of the directed verdicts on the issues of Mrs. Wiederhold’s status as a "surviving spouse" and on Domino’s vicarious liability. However, we reverse and remand for a new trial on liability and damages based on Mrs. Wiederhold’s improper closing argument.² We also find merit in Mrs. Wiederhold’s cross-appeal claim. On retrial, all medical expenses paid by or on Mr. Wiederhold’s behalf should be considered by the jury.

FACTS AND PROCEDURAL BACKGROUND

In January 2011, Richard Wiederhold swerved into the median to avoid a vehicle that had pulled out in front of him. His vehicle drifted through the median and back across the roadway, flipped over once or twice, and came to rest in a ditch. The collision immediately rendered him a quadriplegic. The other vehicle was driven by Jeffrey Kidd, who was delivering pizza for Domino’s franchisee, Fischler. One month after the accident, Mr. Wiederhold sued Domino’s, Fischler, and Mr. Kidd, claiming that Mr. Kidd negligently caused his injuries and that Fischler and Domino’s were vicariously liable. Several months later, Mr. Wiederhold married his girlfriend, who was an uninjured passenger in the accident. In March 2012, Mr. Wiederhold died, and his now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff. She then filed an amended complaint to include a claim for wrongful death damages as Mr. Wiederhold’s surviving spouse. In June 2013, Fischler was dismissed from the lawsuit after it settled with Mrs. Wiederhold for $1 million. That same month, the trial court allowed the attorneys representing Fischler and Mr. Kidd to withdraw from representing Mr. Kidd due to alleged irreconcilable differences. Mr. Kidd represented himself from that point forward, including at trial.

Prior to trial, Domino’s filed several motions for summary judgment, which argued, among other things, that Mrs. Wiederhold was not a surviving spouse under the Act because the Wiederholds were not married at the time of the injury, it was not vicariously liable because it did not exercise control over Fischler’s day-to-day operations, and all but one claim for medical and hospital expenses were barred because no claims had been filed in Mr. Wiederhold’s probate proceeding. The court denied Domino’s motions that challenged Mrs. Wiederhold’s status as a surviving spouse under the Act and Domino’s vicarious liability. However, the trial court granted Domino’s motion that Mrs. Wiederhold could only recover $1165.67 for medical expenses that were claimed in the probate proceedings. At the jury trial, Domino’s renewed its motion for summary judgment on the vicarious liability issue and moved for directed verdict on the surviving spouse issue. The court denied both motions.

Ultimately, the jury rendered a verdict against Domino’s, finding that: (1) Fischler was an agent of Domino’s at the time of the crash; (2) Mr. Kidd’s negligence was ninety percent of the legal cause of Mr. Wiederhold’s injury and death; (3) total expenses incurred for home renovations to accommodate Mr. Wiederhold’s injuries were $114,660;³ and (4) Mrs. Wiederhold’s damages for "loss of her husband’s companionship and protection and for her mental pain and suffering as a result of [Mr. Wiederhold’s] injury and death" totaled $10 million.

Domino’s filed a timely renewed motion for directed verdict, judgment notwithstanding the verdict, or alternative motion for new trial or new trial on damages, renewing its earlier arguments, and additionally arguing that certain objected-to and unobjected-to comments made by Mrs. Wiederhold’s counsel in closing argument warranted a new trial. Specifically, Domino’s sought a new trial based on Mrs. Wiederhold’s closing arguments, many of which were related to her theme that Domino’s business model and its defense of this case was a "greedy charade" designed to control the activities of its franchisees to maximize profits, while contending that it lacked sufficient control of its franchisee’s activities to avoid vicarious liability. The trial court denied Domino’s motions and entered a final judgment against Domino’s for ninety percent of the verdict amount, less the $1 million setoff for the Fischler settlement, for a total judgment of $8,103,194 in favor of Mrs. Wiederhold and the estate.⁴ This appeal and cross-appeal follow.

ANALYSIS

On Direct Appeal

A. Is Mrs. Wiederhold a Statutory Survivor?

Domino’s first argues that one’s status as a survivor is determined on the date of injury, and thus, we must reverse the wrongful death award to Mrs. Wiederhold because she is not a survivor under the Act.

This is a matter of statutory construction subject to de novo review. Citizens Prop.Ins. Corp. v. Perdido Sun Condo. Ass’n, 164 So.3d 663, 666 (Fla. 2015). "The starting point of statutory interpretation is the language of the statute itself." Herrin v. City ofDeltona, 121 So.3d 1094, 1097 (Fla. 5th DCA 2013) (citing GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007) ). "If statutory language is clear and unambiguous, ‘there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ " Id. (quoting A.R. Douglass, Inc. v.McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931) ). "However, if a statutory provision is ambiguous, courts may employ rules of construction and extrinsic aids to discern legislative intent." Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) ).

A wrongful death action must "be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20, Fla. Stat. (2012). The Act defines "survivors" as "the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." Id. § 768.18(1). Where the legislature has defined a term, courts are bound to follow that definition. Streeter v.Sullivan, 509 So.2d 268, 272 (Fla. 1987). Section 768.21 specifies the types of damages that may be awarded to "each survivor" and additional types of damages for certain survivors, including a "surviving spouse." It states, in pertinent part:

All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:

(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.

(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury .

....

(5) Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.

§ 768.21(1), (2), (5), Fla. Stat. (2012) (emphasis added). However, while the statute defines who survivors are, it does not answer the question presented in this case of when their status as a survivor is determined.

Although the Act does not specify whether a "surviving spouse" must be married at the time of injury or the time of death, that alone does not render the term unclear or ambiguous if the common and ordinary meaning leads to clear and unambiguous results. Univ. of Fla. Bd. of Trs. v. Andrew, 961 So.2d 375, 376 (Fla. 1st DCA 2007) ; see Statev. Nichols, 892 So.2d 1221, 1227 (Fla. 1st DCA 2005) (holding failure of statute to define term does not necessarily render statute ambiguous). The common and ordinary meaning of the term "survi...