Mikes v. City of Hollywood
| Decision Date | 26 February 1997 |
| Docket Number | 96-0477,Nos. 96-0293,s. 96-0293 |
| Citation | 687 So.2d 1381 |
| Parties | 22 Fla. L. Weekly D528 Sheila MIKES and Robert Mikes, her husband, Appellants, v. The CITY OF HOLLYWOOD, Appellee. |
| Court | Florida District Court of Appeals |
Edward R. Curtis and Barbara A. Curtis of Curtis & Curtis, P.A., Fort Lauderdale, for appellants.
Richard T. Kilgore, Senior Assistant City Attorney, and Jamie Cole, City Attorney, Hollywood, for appellee.
The central issue of this appeal from the final judgment entered in a personal injury suit concerns the trial court's post-verdict order permitting the defendant to setoff from the economic damages award owed to the plaintiff, Sheila Mikes, a portion of the settlement proceeds paid to her husband in satisfaction of his loss of consortium claim. Finding that the allowance of such a setoff was in error, we reverse.
Sheila and Robert Mikes, the appellants, filed a personal injury action following Sheila Mikes' bicycle collision with another cyclist, Michael Emery. The appellants filed suit against both the City of Hollywood, whose maintenance vehicle was left on the bicycle path, and Emery. Prior to trial, the Mikes settled with Emery for $23,000 each. Following the trial against the City, the jury returned a verdict finding Emery 40% negligent, the City of Hollywood 40% negligent, and Sheila Mikes 20% comparatively negligent; the jury awarded Sheila Mikes $100,000 ($60,000 economic damages and $40,000 noneconomic damages) and Robert Mikes $10,000 for his loss of consortium claim.
A post-trial hearing was held to determine what portion of the settlement with Emery should be setoff against Sheila Mikes' economic damages award. At this hearing, the City argued that it was entitled to setoff from the economic damages award sixty percent of the entire amount that the Mikes had received from Emery (60% X $46,000 = $27,600) on the theory that the procedure adopted in Wells v. Tallahassee Memorial Regional Medical Center, 659 So.2d 249 (Fla.1995), for apportionment of settlement proceeds as between economic and noneconomic damages should be extended to apply to the apportionment of a settlement as between plaintiffs. The trial court accepted this argument and entered judgment in favor of Sheila Mikes in the amount of $36,400. 1
In Dionese v. City of West Palm Beach, 500 So. 2d 1347 (Fla.1987), the supreme court considered the issue of allocation of settlement proceeds among plaintiffs. In that case, Patsy Dionese suffered personal injuries when the car in which she was riding struck a raised manhole cover. Following the accident, Patsy filed a personal injury action against several defendants. Her husband joined in the suit seeking damages for loss of consortium. Id. at 1348. Prior to trial, the Dioneses settled with the driver of the vehicle for $45,000. The settlement agreement, however, did not apportion the proceeds as between Patsy and her husband. The Dioneses proceeded to trial against the City of West Palm Beach and obtained a verdict of $57,000 for Patsy and $3,800 for her husband, after taking into account comparative negligence. At a post-trial hearing to determine the issue of setoff, the Dioneses informed the court that the two of them had entered into a unilateral agreement which apportioned $10,000 of the settlement proceeds to Patsy and $35,000 to her husband. Based upon this agreement, the Dioneses argued that the City was entitled to setoff only $10,000 from the $57,000 judgment.
On appeal, the supreme court rejected the Dioneses' argument holding that
[A] private unilateral agreement among several plaintiffs to apportion funds paid by one joint tort-feasor is not binding upon the non-settling joint tort-feasors and the courts in determining the claim of the non-settling joint tort-feasors. Rather, an agreement to apportion the proceeds of a settlement agreement must be found on the face of the settlement agreement and agreed to by all of the parties involved in the settlement.
Id. at 1351 (emphasis added). The court further noted that to hold otherwise would discourage settlement and defeat Florida Statutes section 768.31(5), which provides that a joint tortfeasor who settles in good faith cannot later be sued by the remaining defendants for contribution.
The instant case involves precisely the method of apportionment advocated by the supreme court in Dionese. Here, two settlement agreements were executed: one between Sheila Mikes and Michael Emery and a second, separate agreement between Robert Mikes and Michael Emery. This is not the circumstance in Dionese where the two plaintiffs, without the consent of the settling defendant, agreed to an apportionment which could potentially subject the settling defendant to a claim for contribution based upon bad faith settlement. Rather, here, the settling defendant was a party to the apportionment. The apportionment of $23,000 to Sheila Mikes and $23,000 to Robert Mikes was clearly set forth on the face of the agreements, to both of which Emery was a party. Thus, the $23,000 that Robert Mikes received in settlement of his loss of consortium claim is not available to be used as a setoff against the economic damages award that the City of Hollywood owes his wife.
The supreme court's subsequent ...
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Am. Prime Title Servs., LLC v. Zhi Wang
...1161, 1166 (Fla. 4th DCA 2000) (stating appellant should have requested a setoff in his post-trial motion); Mikes v. City of Hollywood, 687 So. 2d 1381, 1383 (Fla. 4th DCA 1997) (describing the issue of setoff was determined during a post-trial hearing). Indeed, as was observed by our siste......