Fabre v. Marin

• Decision Date: 26 August 1993
• Docket Number: Nos. 79869,79870,s. 79869
• Citation: 623 So.2d 1182
• Parties: 18 Fla. L. Week. S453 Marie G. FABRE, et vir, Petitioners, v. Ann MARIN, Respondent. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Ann MARIN, Respondent.
• Court: Florida Supreme Court

Page 1182

623 So.2d 1182

18 Fla. L. Week. S453

Marie G. FABRE, et vir, Petitioners, v. Ann MARIN, Respondent.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Ann MARIN, Respondent.

Nos. 79869, 79870.

Supreme Court of Florida Aug. 26, 1993.

Marc R. Ginsberg of Mandina & Ginsberg, and James K. Clark of Barnett, Clark and Barnard, Miami, for petitioners.

Neal A. Roth of Grossman & Roth, and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for respondent.

Marguerite H. Davis of Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, amicus curiae for American Ins. Ass'n.

Robert A. Butterworth, Atty. Gen. and Cecilia Bradley, Asst. Atty. Gen., Tallahassee, amicus curiae for the State of Florida, Dept. of Ins., Div. of Risk Management.

Bonita L. Kneeland of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, amicus curiae for the Florida Ass'n for Ins. Review.

Roy D. Wasson, Miami, amicus curiae for Dade County Trial Lawyers Ass'n.

Barbara W. Green, Coconut Grove, and Karen J. Haas, Miami, amicus curiae for Academy of Florida Trial Lawyers.

GRIMES, Justice.

We review Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992), based upon its certified conflict with Messmer v. Teacher's Insurance Co., 588 So.2d 610 (Fla. 5th DCA1991), review denied, 598 So.2d 77 (Fla.1992). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

Ann Marin was injured in an accident while riding as a passenger in an automobile driven by her husband, Ramon Marin. Mrs. Marin sued Marie and Eddie Fabre, claiming that while driving her husband's automobile Mrs. Fabre had negligently changed lanes in front of the Marin vehicle, causing it to swerve into a guardrail. The Fabres denied responsibility and asserted that Mrs. Fabre had been parked on the expressway shoulder four to five minutes prior to the collision to change a flat tire. They contended that it was another automobile which had cut off the Marin vehicle. During discovery, Mrs. Marin learned that the Fabres' liability insurance for injuries to one person was limited to $10,000. Therefore, she amended her complaint to add her uninsured motorist carrier, State Farm, as an additional defendant.

At the jury charge conference, the trial judge denied the defendants' request that the verdict form be drafted so as to allow the jury to apportion blame for the accident between Mr. Marin and Mrs. Fabre. However, to obviate the necessity of a retrial if this ruling later proved to be erroneous, Mrs. Marin agreed to have the issue of Mr. Marin's negligence submitted to the jury subject to a posttrial determination of whether any affirmative finding on that issue would result in a reduction of Mrs. Marin's recovery. The jury returned a verdict finding both Mrs. Fabre and Mr. Marin 50% at fault. The jury awarded Mrs. Marin $12,750 in economic damages and $350,000 in noneconomic damages. The trial judge granted a $5,000 remittitur on Mrs. Marin's economic damages but refused to reduce her noneconomic damages. An amended judgment for Mrs. Marin was entered in the amount of $357,750.

On appeal, the issue was whether the liability for noneconomic damages should be apportioned to the Fabres on the basis of the percentage of fault attributed to them. Hence, the district court of appeal was called upon to interpret section 768.81(3), Florida Statutes (Supp.1988), which states:

(3) APPORTIONMENT OF DAMAGES.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

The court employed the following reasoning to conclude that the statute was ambiguous:

The statute does not define the term "party." As used in subsection three, "party" may be interpreted as referring to: 1) persons involved in an accident; 2) defendants in a lawsuit; or 3) all litigants in the lawsuit. Despite appellants' urging to the contrary, we decline to apply the first interpretation: subsection three requires a court to enter judgment against liable parties; the court lacks jurisdiction to enter a judgment against nonparties, such as Ramon. The statute does not indicate what quantity or total the court should utilize to factor the "percentage of fault" for which judgment shall be entered, that is, whether to consider the fault attributable to all defendants, or to all participants in the accident. The resolution again depends on the definition assigned to the term "party."

Fabre v. Marin, 597 So.2d at 885. After pointing out that Mrs. Marin could not recover damages from her husband because of the doctrine of interspousal tort immunity, the court concluded that in discarding joint and several liability, the legislature did not intend to curtail a fault-free plaintiff's ability to recover the total of her damages. Rather, the legislature intended only to apportion liability among those tortfeasors who were defendants in the lawsuit. Hence, the court affirmed the full amount of the judgment.

In Messmer, the Fifth District Court of Appeal reached the opposite conclusion in applying section 768.81(3) to facts which for purposes of this appeal were the same as those in the instant case. The Messmer court adopted the rationale of the trial court's order, which read in pertinent part:

"Section 768.81(3) provides that the court shall enter judgment against 'each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.' The court is of the opinion that the language of the statute supports defendant's contention that a party's percentage of the total fault of all participants in the accident is the operative percentage to be considered. The use of the word 'party' simply describes an entity against whom judgment is to be entered and is not intended as a word of limitation. Had the legislature intended the apportionment computation to be limited to the combined negligence of those who happened to be parties to the proceeding, it would have so stated. The plain meaning of the word percentage is a proportionate share of the whole, and this meaning should apply in the absence of any language altering or limiting the plain meaning. See Holly v. Auld, 450 So.2d 217 (Fla.1984).

Even if the language of the statute were deemed to be ambiguous, this court would look to the legislative intent and purpose of the statute.... The obvious purpose of the statute was to partially abrogate the doctrine of joint and several liability by barring its application to non-economic damage. To exclude from the computation the fault of an entity that happens not to be a party to the particular proceeding would thwart this intent."

Messmer, 588 So.2d at 611-12. Thus, the court held that the defendant was responsible only for that portion of the noneconomic damages equivalent to the percentage of fault attributable to that defendant. In Dosdourian v. Carsten, 580 So.2d 869 (Fla. 4th DCA 1991), quashed on other grounds, 624 So.2d 241 (Fla.1993), the Fourth District Court of Appeal adopted the Messmer interpretation of the statute.

The doctrines of contributory negligence and joint and several liability have been part of our common law for many years. See Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987). In the case of the former, even if the plaintiff's negligence was only partially responsible for the accident, there could be no recovery from defendants who may have been guilty of even greater negligence. Louisville & N. R.R. v. Yniestra, 21 Fla. 700 (1886). In the case of the latter, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Louisville & N. R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), this Court took the first step toward equating liability with fault. In receding from the doctrine of contributory negligence, this Court said:

If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on a fault premise.

Id. at 436. Thereafter, in Lincenberg v. Issen, 318 So.2d 386, 391 (Fla.1975), we abolished the rule against contribution among joint tortfeasors, stating that "it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault...." Subsequently, the doctrine of joint and several liability was severely tested in Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla.1987), a case in which the jury had returned a verdict finding the plaintiff 14% at fault, Walt Disney World 1% at fault, and the plaintiff's fiance who was not joined as a defendant 85% at fault. While recognizing the logic in Disney's position that it should not be responsible for 86% of the damages, we declined to judicially eliminate joint and several liability on the premise that this was a public policy matter which would be best decided by the legislature. The legislature acted upon the subject by enacting section 768.81(3).

We conclude that the statute is unambiguous. By its clear terms, judgment should be entered against each party liable on the basis of that party's percentage of fault. The Fabres' percentage of fault was 50%. To accept Mrs. Marin's position would require the entry of a judgment against the Fabres in excess...