Pellegrino By and Through Pellegrino v. Horwitz

• Decision Date: 09 September 1994
• Docket Number: No. 93-0999,93-0999
• Citation: 642 So.2d 124
• Parties: 19 Fla. L. Weekly D1876 Sara PELLEGRINO, a minor, by and through her natural guardians, Richard PELLEGRINO and Susan Pellegrino, Appellants, v. Jeffrey HORWITZ, M.D., et al., Appellee.
• Court: Florida District Court of Appeals

Page 124

642 So.2d 124

19 Fla. L. Weekly D1876

Sara PELLEGRINO, a minor, by and through her natural guardians, Richard PELLEGRINO and Susan Pellegrino, Appellants, v. Jeffrey HORWITZ, M.D., et al., Appellee.

No. 93-0999.

District Court of Appeal of Florida Fourth District.

Sept. 9, 1994.

Scott Newmark of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellants.

Gary M. Farmer, Jr. and George E. Bunnell of Bunnell, Woulfe & Keller, P.A., Fort Lauderdale, and John D. Kelner of Law Offices of John D. Kelner, Miami, for appellees Horwitz, South Broward Hosp. Dist. and Mount Sinai Medical Center.

PARIENTE, Judge.

In this medical malpractice action, appellants (plaintiffs) appeal an order dismissing one count of a nine count complaint. We dismiss the appeal because there is a remaining count against the same appellees (defendants) arising out of the same set of facts, even though the counts involve different legal theories. We therefore do not at this time reach the substantive question of whether the trial court properly dismissed the breach of contract count which was based on a third party beneficiary theory.

Plaintiffs brought a nine count complaint against four physicians and two hospitals for injuries alleged to be sustained as a result of the surgical procedure performed on their minor daughter. The relevant counts for this appeal concern defendants, Mount Sinai Medical Center (Mount Sinai), Memorial Hospital (Memorial) and Dr. Jeffrey Horwitz (Dr. Horwitz). In one count, plaintiffs allege a cause of action for breach of contract against Dr. Horwitz, Mount Sinai and Memorial claiming the minor plaintiff was the intended third party beneficiary of a surgical residency agreement between Memorial and Mount Sinai. In the preceding count, plaintiffs allege negligence in the treatment and care of the minor plaintiff on the part of Dr. Horwitz. Mount Sinai and Memorial are parties to the negligence count based on respondeat superior.

Both counts are based on Dr. Horwitz's treatment of the minor plaintiff. In fact, the factual allegations of the two counts are virtually identical; only the legal theories vary. In the tort count, plaintiffs state the treatment of their daughter was a deviation from acceptable standards of care; in the contract count, plaintiffs state defendants breached the contract by virtue of the rendered treatment.

Defendants moved to dismiss the contract count claiming the minor plaintiff was, at best, an incidental, rather than an intended, third party beneficiary of the surgical residency agreement. The trial court agreed and dismissed the contract count with prejudice. However, the negligence count against defendants remained.

An appeal from an order dismissing one count of a complaint, where other counts against the same parties remain, is authorized only when the dismissed count arises from a separate and distinct transaction independent of the other pending pleaded claims. Mendez v. West Flagler Family Ass'n, 303 So.2d 1 (Fla.1974). The supreme court in Mendez set forth the limited exception:

We adhere to the rule that piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction. However, when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appealable if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties.

303 So.2d at 5. Final orders dismissing fewer than all of several interrelated claims involving the same transaction and parties are not appealable. See Palm Beach Newspapers, Inc. v. Walker, 506 So.2d 39 (Fla. 4th DCA 1987).

Plaintiffs argue that the contract claim is not legally interrelated to the tort claim because the legal elements and principles for breach of contract differ from those governing negligence. As a result, the jury would be instructed on a different legal standard for the breach of contract count; a jury could find defendants liable under a contract theory while exonerating defendants for negligence because of the differing standard. For this reason plaintiffs assert that the claims are not...