Ellison v. Willoughby
| Decision Date | 13 October 2021 |
| Docket Number | No. 2D19-1961,2D19-1961 |
| Citation | 326 So.3d 214 |
| Parties | Alberta S. ELLISON, Appellant, v. Randy WILLOUGHBY, Appellee. |
| Court | Florida District Court of Appeals |
Paul L. Nettleton of Carlton Fields, P.A., Miami; and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellant.
Brent Steinberg, Brandon Cathey, and Daniel L. Greene of Swope, Rodante P.A., Tampa, for Appellee.
IT IS ORDERED that the motion is granted to the extent that the opinion dated June 11, 2021, is withdrawn and the attached opinion is substituted therefor. Because full relief has been granted by the panel's ruling on the motion for rehearing, the motion for rehearing en banc is denied as moot. The motion for certification is also denied.
No further motions for rehearing will be entertained in this appeal.
How can a trial court apply a statute meant to prevent plaintiff windfalls when higher court precedent authorizes double recovery in all but the "perfect" case? It can't. Because we too are bound by higher precedent, we affirm the trial court's decision denying the defendant's request to set off $4 million in settlement proceeds against the $30 million jury verdict. And we certify a question of great public importance. We also affirm the four other issues raised on appeal without discussion.
Mr. Willoughby sustained serious injuries when a truck driven by Mr. Ellison T-boned an automobile in which Mr. Willoughby was a passenger. Mr. Willoughby sued Mr. Ellison for negligence and Mrs. Ellison—the co-owner of Mr. Ellison's truck—under vicarious liability principles. In the same complaint, Mr. Willoughby asserted claims against his uninsured motorist (UM) insurer, 21st Century Centennial Insurance Company, for UM benefits and bad faith damages pursuant to sections 624.155 and 627.727(10), Florida Statutes (2013).
Two years later, Mr. Willoughby and 21st Century executed a settlement agreement and agreed to release each other from all claims "which were or could have been asserted in the [l]awsuit, including all claims related to the [a]ccident or the [p]olicy." As consideration, 21st Century agreed to pay $4 million to Mr. Willoughby and his counsel.1 The settlement agreement recites that the $1.735 million payable to Mr. Willoughby "constituted damages on account of personal injuries or sickness, within the meaning of [s]ection 104(a)(2) of the Internal Revenue Code," but it does not otherwise differentiate categories of damage to which the settlement funds are attributable. No other person, firm, or corporation was released by the settlement agreement, and Mr. Willoughby reserved all claims and causes of action against the Ellisons. Shortly after the settlement agreement was executed, Mr. Willoughby dismissed his claims against 21st Century with prejudice and dropped his negligence claim against Mr. Ellison.
After four more years of litigation, Mrs. Ellison admitted liability and stipulated that Mr. Willoughby's past medical expenses were $147,020. The case then went to trial to determine Mr. Willoughby's remaining damages. After a week-long trial, a jury awarded Mr. Willoughby a total of $30,101,599 for future medical expenses, past and future lost earnings, and past and future pain and suffering.
Mrs. Ellison filed posttrial motions in which she sought various relief, including a $4 million setoff attributable to the 21st Century settlement. Although she apparently conceded that Florida case law did not permit a setoff for $10,000 in UM benefits (the policy limits of the 21st Century UM policy), Mrs. Ellison argued that the remaining $3.99 million was subject to setoff under section 768.76, Florida Statutes (2019), as a collateral source.
At the hearing on Mrs. Ellison's posttrial motions, the parties acknowledged that the question of whether the remaining $3.99 million was subject to setoff was one of first impression. Mrs. Ellison argued that the 21st Century settlement compensated Mr. Willoughby for economic damages, which were included within the amounts awarded by the jury verdict, and that the settlement amount should be set off to prevent a windfall to Mr. Willoughby. Mr. Willoughby maintained that the settlement amount was not subject to setoff because (1) 21st Century and Mrs. Ellison were not joint tortfeasors and (2) UM settlement awards are generally not considered collateral sources. The trial court denied Mrs. Ellison's motion for setoff, reasoning that "[t]he law is clear that an underinsured tortfeasor is not entitled to a setoff for payments made by plaintiff's own UM insurer" and relying on Hughes v. Enterprise Leasing Co. , 831 So. 2d 1240 (Fla. 1st DCA 2002) ; Terri Van Winkle, P.A. v. Johnston , 813 So. 2d 1065 (Fla. 1st DCA 2002) ; Hernandez v. Gisonni , 657 So. 2d 33 (Fla. 4th DCA 1995) ; Economy Fire & Casualty Co. v. Obenland , 629 So. 2d 265 (Fla. 2d DCA 1993) ; and Respess v. Carter , 585 So. 2d 987 (Fla. 5th DCA 1991).
A trial court's ruling on a motion to determine setoff is reviewed de novo. See, e.g. , Addison Constr. Corp. v. Vecellio , 240 So. 3d 757, 764 (Fla. 4th DCA 2018) (citing D'Angelo v. Fitzmaurice , 863 So. 2d 311, 314 (Fla. 2003) ). Mrs. Ellison argues that the trial court erred by denying her motion to set off the 21st Century settlement proceeds under sections 768.041(2) and 768.76(1). We disagree.
We first address Mr. Willoughby's argument that Mrs. Ellison did not preserve a claim for setoff under section 768.041(2). Generally, "[a]n issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination." Derouin v. Universal Am. Mortg. Co. , 254 So. 3d 595, 601 (Fla. 2d DCA 2018). However, "[a] party need not cite the exact cases on point to the trial court in order to preserve a claim, so long as its objection is sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor." Lincare Holdings Inc. v. Ford , 307 So. 3d 905, 912 (Fla. 2d DCA 2020) (cleaned up).
While Mrs. Ellison never specifically cited section 768.041(2) below, this issue was thoroughly litigated in the trial court, and both the parties and the trial court relied on case law analyzing setoff of UM settlements under both sections 768.041(2) and 768.76(1). See, e.g. , Hughes , 831 So. 2d at 1240–41 (); Terri Van Winkle, P.A. , 813 So. 2d at 1066–67 (same); Respess , 585 So. 2d at 989 (). Accordingly, the propriety of setoff under section 768.041(2) is preserved for review.
Turning to the merits, "[t]he purpose of [ section 768.041(2) ] is to prevent a windfall to a plaintiff by way of double recovery." Addison , 240 So. 3d at 764. Section 768.041(2) requires setoff "if any defendant shows ... that the plaintiff ... has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for ." § 768.041(2) (emphasis added). This text is plain and unambiguous, and if we were writing on a blank slate, the analysis would end here. We would hold that section 768.041(2) required the trial court to set off the 21st Century settlement proceeds because Mrs. Ellison "show[ed] that" Mr. Willoughby "delivered a release" to 21st Century in "partial satisfaction" of the damages he "sued for" in this lawsuit. However, our supreme court has declared that section 768.041(2) "presupposes the existence of multiple defendants jointly and severally liable for the same damages ." D'Angelo , 863 So. 2d at 314 (emphasis added) (citing Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc. , 659 So. 2d 249, 253 (Fla. 1995) ). The D'Angelo court explained that "the applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party ." Id. at 316–17 (emphasis added) (quoting Gouty v. Schnepel , 795 So. 2d 959, 965 (Fla. 2001) ). The district courts have followed this precedent. For instance, the Third and Fourth Districts have held that if "settlement funds are applicable to a claim asserted only against the settling co-defendant [sic], the non-settling [sic] co-defendants [sic] are not eligible for a set-off [sic] in the amount of the settlement." Escadote I Corp. v. Ocean Three Ltd. P'ship , 211 So. 3d 1059, 1062 (Fla. 3d DCA 2016) ; accord Addison , 240 So. 3d at 764.
Mr. Willoughby argues that the 21st Century settlement funds applied only to the claims he asserted against 21st Century (breach of contract for failure to pay UM benefits and bad faith refusal to settle), which were not asserted against Mrs. Ellison. Mrs. Ellison indisputably was not a joint tortfeasor with 21st Century. See, e.g. , Respess , 585 So. 2d at 990 (). Thus according to Mr. Willoughby, section 768.041(2) does not entitle Mrs. Ellison to a setoff in the amount of the 21st Century settlement. And under the foregoing precedent, Mr. Willoughby is correct.
Nonetheless, Mrs. Ellison contends that the entire amount of the 21st Century settlement should be set off because the settlement does not apportion amounts attributable to the UM benefits claim (i.e., damages attributable to Mr. Willoughby's injuries) and damages attributable to the bad faith claim. It is true that where "a settlement recovery is not apportioned between (a) claims for which co-defendants [sic] are jointly and severally liable with the settling co-defendant[ ] [sic] and (b) claims which were only asserted against the settling co-defendant [sic], the entire amount of the undifferentiated recovery is allowable as a set-off." Escad...
To continue reading
Request your trial