Knutson v. Life Care Retirement Communities, Inc., 85-2597

• Decision Date: 17 September 1986
• Docket Number: No. 85-2597,85-2597
• Citation: 11 Fla. L. Weekly 1996,493 So.2d 1133
• Parties: 11 Fla. L. Weekly 1996 Gertrude KNUTSON and Gustav Knutson, her husband, Appellants, v. LIFE CARE RETIREMENT COMMUNITIES, INC., d/b/a Abbey Delray South, etc., Appellee.
• Court: Florida District Court of Appeals

Page 1133

493 So.2d 1133

11 Fla. L. Weekly 1996

Gertrude KNUTSON and Gustav Knutson, her husband, Appellants, v. LIFE CARE RETIREMENT COMMUNITIES, INC., d/b/a Abbey Delray South, etc., Appellee.

No. 85-2597.

District Court of Appeal of Florida Fourth District.

Sept. 17, 1986.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Roth & Romano, P.A., West Palm Beach, for appellants.

Jill A. Van Derven of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellee.

DELL, Judge.

Gertrude and Gustav Knutson appeal the entry of a summary judgment against them and in favor of appellee Life Care Retirement Communities, Inc. (nursing home). Mrs. Knutson suffered head injuries in an automobile accident, caused by Timothy Douglas. While convalescing at the nursing home she sustained injuries to her hip because of a fall from her bed.

In July, 1983, the Knutsons filed suit against Timothy Douglas and his insurance carrier for the injuries sustained in the auto accident. That complaint did not allege any ultimate facts regarding the subsequent fall at the nursing home or seek damages for the subsequent hip injuries. On October 2, 1984, the Knutsons entered into a settlement with Timothy Douglas and Northumberland General Insurance Company. The release provided that the Knutsons remised, released, acquitted, satisfied, and forever discharged Timothy Douglas and Northumberland General Insurance Company

of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents, and more specifically that certain law suit filed in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida styled GERTRUDE KNUTSON and GUSTAV KNUTSON, her husband, Plaintiffs, vs. NORTHUMBERLAND GENERAL INSURANCE COMPANY, a foreign corporation and TIMOTHY DOUGLAS, an individual, Defendants, Case Number 83-3916 CA (L) B.

In January, 1985, the Knutsons filed the present lawsuit against the nursing home for the hip injuries. The complaint did not mention the previous auto accident and sought damages only for the hip injury. The nursing home did not raise the release as an affirmative defense in its answer.

The nursing home moved for summary judgment based upon Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977) (Hertz II ) and McCutcheon v. Hertz Corp., 463 So.2d 1226 (Fla. 4th DCA 1985). ¹ It argued that because the Knutsons released Douglas and his insurance company from any and all claims arising out of and associated with the automobile accident, that it, as a subsequent tortfeasor, was also released because Douglas was responsible for all injuries occurring, including any subsequent acts of malpractice. The trial judge granted the summary judgment expressly upon the authority of Hertz II and McCutcheon, and dismissed the action against appellee with prejudice. The issue for our determination is whether the trial court erred by granting summary judgment on the basis of Hertz II and McCutcheon. We hold that it did.

A brief recitation of the factual background of the Hertz cases is necessary at this point. Ruth McCutcheon was injured in an auto accident caused by the negligence of the driver of an automobile owned by the Hertz Corporation. Immediately following the accident, McCutcheon was treated by Dr. Stuart for the injuries she had sustained. Stuart, while performing surgery, negligently severed her carotid artery thus aggravating her injuries. Hertz I, 302 So.2d at 189. McCutcheon sued Hertz and the driver in a personal injury action. Hertz attempted to assert a third party claim for indemnity against Stuart for the aggravation of McCutcheon's injuries.

In Hertz I, this court concluded that an indemnity action would be allowed under these facts. In Hertz II, the supreme court reversed and held the initial tortfeasor may not file a third-party complaint seeking indemnity for the alleged aggravation of injuries caused by the negligence of a treating physician. The supreme court recognized the rule from J. Ray Arnold Corporation v. Richardson, 105 Fla. 204, 141 So. 133 (1932), that an initial tortfeasor's negligence in causing the original injury is considered the proximate cause of the damages from the subsequent malpractice and concluded that the initial tortfeasor was liable for the aggravation of injuries caused by the treating physician. 351 So.2d at 707. Nevertheless, the supreme court held that an injured plaintiff is not required to combine actions against the initial tortfeasor...