Pages v. Dominguez By and Through Dominguez

• Decision Date: 08 March 1995
• Docket Number: No. 94-1824,94-1824
• Citation: 652 So.2d 864
• Parties: 20 Fla. L. Weekly D594 Umberto PAGES, Petitioner, v. Jonathan DOMINGUEZ, a minor, By and Through his father and next friend, Robert DOMINGUEZ, and Robert Dominguez, individually, Robert Ambridge, and Hannah E. Croshaw, Respondents.
• Court: Florida District Court of Appeals

Page 864

652 So.2d 864

20 Fla. L. Weekly D594

Umberto PAGES, Petitioner, v. Jonathan DOMINGUEZ, a minor, By and Through his father and next friend, Robert DOMINGUEZ, and Robert Dominguez, individually, Robert Ambridge, and Hannah E Croshaw, Respondents.

No. 94-1824.

District Court of Appeal of Florida Fourth District.

March 8, 1995.

Rehearing Denied April 20, 1995.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A., Fort Lauderdale, for petitioner.

Todd R. Falzone of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for respondents--Jonathan Dominguez and Robert Dominguez.

PARIENTE, Judge.

The petition for writ of certiorari seeks relief from a trial court's order denying defendant Pages' motion to consolidate two claims arising out of the same automobile accident. Because we find the order denying the motion to consolidate these cases for trial did not constitute a departure from the essential requirements of law, we deny the petition.

A refusal of a trial court to grant consolidation in separate and distinct causes of action, involving separate and distinct damages, is not an abuse of discretion which will automatically result in our granting certiorari relief merely because the actions arise out of the same accident. This tragic case arises from an automobile accident in which two brothers were passengers in a vehicle struck by another vehicle--one brother was killed; the other brother is permanently and severely brain damaged. In each case the damage considerations are entirely different and unique, both qualitatively and quantitatively. The elements of damages and testimony thereon, including the presentation of expert witnesses, would be separate and distinct for the wrongful death claim and for the personal injury claim.

Only in rare cases has this court found it appropriate to grant certiorari relief from orders denying motions to consolidate. See, e.g., Tommie v. LaChance, 412 So.2d 439 (Fla. 4th DCA 1982). The decision to consolidate actions ordinarily falls within the sound discretion of the trial court. Barnes v. Meece, 530 So.2d 958 (Fla. 4th DCA 1988); Brody Constr. Inc. v. Fabri-Built Structures, Inc., 322 So.2d 61 (Fla. 4th DCA 1975). In order to justify granting certiorari relief from pretrial orders, there must be a departure from the essential requirements of law which will cause material injury that cannot be rectified on plenary appeal. Barnes, 530 So.2d at 959.

The two primary reasons advanced by defendant Pages in favor of consolidation in this case are avoidance of possibly inconsistent verdicts and considerations of judicial economy. We turn first to the argument that consolidation is required to avoid inconsistent verdicts.

THE POSSIBILITY OF DIFFERENT VERDICTS

In this case there appear to be only two active tortfeasors who contributed to cause the accident. The potential for differing results would thus be limited to the possibility of different juries apportioning different percentages of fault between the defendants. However, defendant Pages has raised the affirmative defense of failure to wear a seat belt. By statute, failure to wear a seat belt may be considered as evidence of comparative negligence and not in mitigation of damages, which accordingly may affect the apportionment of liability between the parties. Sec. 316.614(10), Fla.Stat. (1993). Given the unique aspect of each brother's injuries, the nature and substance of the seat belt evidence will likely vary, as will the significance of such evidence on the liability issues. It would therefore be logical that, in each case, the verdicts concerning percentages of fault could vary.

This is not a case where two different verdicts hold the potential to be unjust and repugnant. In Tommie, 412 So.2d at 441, a case involving a disputed issue of fact as to which plaintiff was the passenger and which one was the driver of a dirt bike, this court, through Judge Glickstein, explained the repugnancy which necessitated consolidation:

It is possible that two independent verdicts could find (1) neither boy or (2) both boys operated the dirt bike. Either possibility is unjust and can be prevented by consolidation.

We do not agree that Tommie is authority for the proposition that because both cases arose from the same accident consolidation is required, rendering the failure to consolidate an abuse of discretion. To the extent that Maharaj v. Grossman, 619 So.2d 399 (Fla. 4th DCA 1993), contains dicta to this effect and to the extent that the first district in U-Haul Co. of Northern Florida, Inc. v. White, 503 So.2d 332 (Fla. 1st DCA 1986), so held in reliance on Tommie, we disagree. See also Holiday Inns, Inc. v. Spevak, 639 So.2d 1110 (Fla. 1st DCA 1994). In Maharaj, the sole reason cited by the trial court for denying consolidation was the possibility of delay of the case already set for trial. We agree that this reason alone is insufficient where all other factors favor a joint trial, including the possibility in Maharaj of overlapping damages between the husband's consortium claim for his wife's injuries and his own personal injury claim. ¹

Florida has no rule of procedure establishing compulsory consolidation for distinct claims arising from a single accident. Compare Fed.R.Civ.P. 19 (providing for permissive joinder). There is also no rule of procedure or principle of law which requires separate plaintiffs with distinct causes of action to file their lawsuits arising out of a single automobile accident simultaneously.

In fact, it is well-settled that pursuant to Florida Rule of Civil Procedure 1.110(g), the actions for the death of one brother and the severe injuries to the other brother could not have been filed in one lawsuit because the separate actions were not "in the same right," a requirement for joinder in one lawsuit. Under this rule, a party who is the plaintiff in several suits may not combine causes of action brought in different representative capacities into a single lawsuit. Department of Ins. v. Coopers & Lybrand, 570 So.2d 369 (Fla. 3d DCA 1990); County of Sarasota v. Wall, 403 So.2d 500 (Fla. 2d DCA 1981); Metropolitan Dade County v. Hicks, 323 So.2d 590 (Fla. 3d DCA 1975). As the third district explained in Department of Insurance:

Rule 1.110(g), Florida Rules of Civil Procedure (1989) states in pertinent part: "A pleader may set up in the same action as many claims or causes of action or defenses in the same right as he has...." This rule "forbids the joinder of causes which arise out of separate rights." Horowitz v. United Investors Corp., 227 So.2d 719, 721 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 180 (Fla.1970); see also General Dynamics Corp. v. Hewitt, 225 So.2d 561, 563 (Fla. 3d DCA 1969) (quoting 1 Am.Jur.2d Actions Sec. 125 (1962)) ("One cannot in the same action sue in more than one distinct right or capacity."). Causes of action accruing to a plaintiff in different capacities must be brought separately regardless of whether or not the causes of action arise "out of the same occurrence because the respective causes of action are not 'in the same right.' " Metropolitan Dade County v. Hicks, 323 So.2d 590, 591 (Fla. 3d DCA 1975) (citing Pensacola Elec. Co. v. Soderlind, 60 Fla. 164, 53 So. 722 (1910) and Latimer v. Sears Roebuck & Co., 285 F.2d 152 (5th Cir.1960)).

570 So.2d at 370.

While rule 1.110(g) does not permit separate actions of distinct plaintiffs to be joined in a single lawsuit, Florida Rule of Civil Procedure 1.270 does not prevent consolidation of the separate actions. Rule 1.270, governing consolidation, vests the trial court with broad discretion to consolidate actions involving common questions of law or fact and to order joint hearings or a joint trial. The trial court is guided in its exercise of discretion by the direction in rule 1.270 that "it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." There is no language explicitly or implicitly mandating consolidation of distinct lawsuits by distinct plaintiffs which would render the refusal of a trial court to consolidate two lawsuits arising from the same accident an automatic abuse of discretion.

UNNECESSARY COSTS AND JUDICIAL ECONOMY

We next address defendant Pages' argument that economic considerations of the parties, as well as of the trial court's, favor consolidation. Defendant Pages cites his concerns with "needless expense and duplication of effort, as well as delay in the proceedings" and "the specter of inconsistent rulings" because the cases remain assigned to different divisions with different judges presiding. Defendant Pages also expresses concern for the "efficient and proper administration of justice."

Defendant Pages' argument--that the efficient...