Rimer v. Safecare Health Corp.
| Decision Date | 03 July 1991 |
| Docket Number | No. 90-2115,90-2115 |
| Parties | Judith RIMER, the Personal Representative of the Estate of Gretel Loeb, Deceased, Appellant/Cross Appellee, v. SAFECARE HEALTH CORPORATION, Appellee/Cross Appellant. 591 So.2d 232, 16 Fla. L. Week. D1728 |
| Court | Florida District Court of Appeals |
Thomas D. Lardin, Thomas D. Lardin, P.A., Fort Lauderdale, for appellant, cross appellee.
James D. Demet, Klein & Tannen, P.A., Hollywood, for appellee, cross appellant.
Appellant, Judith Rimer, the personal representative of the Estate of Gretel Loeb, appeals from a summary judgment in favor of appellee, Safecare Health Corporation (Safecare), the defendant below in an action for Mrs. Loeb's wrongful death. The trial court held that Safecare was entitled to a set-off in the amount paid by its employee-doctor, Donald C. Howard, in settlement of a preceding medical malpractice action for personal injuries filed by Mrs. Loeb while she was still alive. Safecare cross-appeals the court's determination that the release given to the doctor did not have the legal effect of also releasing Safecare from liability for the wrongful death action. We disapprove of the set-off and affirm on the issue raised on cross-appeal.
Mrs. Loeb filed a personal injury action in 1988 against Dr. Howard and Safecare alleging liability based upon Howard's neglect, as well as an independent claim against Safecare unrelated to Howard's alleged neglect. Subsequently, in September of 1989, Mrs. Loeb settled her claim against Dr. Howard and his medical malpractice insurer for $150,000.00. The settlement specifically excluded Safecare from its terms. Pursuant to the settlement, Mrs. Loeb and Dr. Howard stipulated to the entry of an order of dismissal as to Dr. Howard. Nine days after the settlement, Mrs. Loeb died. Consequently, the original complaint was amended to seek damages against Safecare under the Florida Wrongful Death Act, and Judith Rimer, as special administrator for Mrs. Loeb's estate, was substituted as plaintiff.
Safecare filed a motion for summary judgment claiming (1) its exoneration from liability based upon the legal effect of the Howard release; and (2) its entitlement to a set-off for the Howard settlement. The court denied summary judgment as to the legal effect of the release, but granted it as to the set-off issue. This resulted in a judgment for Safecare, since the Estate stipulated that the amount of its damages would not exceed the amount received from Howard.
The Estate concedes that it is not entitled to recover any damages for wrongful death against Safecare predicated upon any actions or inactions of Dr. Howard. Instead, it seeks to proceed only on its alleged independent claim against Safecare. Hence, any issue as to Safecare's liability for its employee's conduct is moot.
The statute under which the court granted the set-off is Section 768.041, Florida Statutes (1989), which in part provides:
(1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.
(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of the rendering of the judgment and enter judgment accordingly ...
To the same effect is Section 768.31(5), Florida Statutes (1989), which states in part:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; ...
Initially, we note that both the terms of the Howard release and the provisions of these statutes expressly provide that a joint tortfeasor is not released by the execution of a release in favor of another tortfeasor. Accordingly, we find no error by the trial court in holding that Safecare was not discharged by execution of the Howard release.
The Estate contends that the trial court improperly allowed Safecare the $150,000.00 set-off in the wrongful death action, that amount having been paid by Dr. Howard in settlement of the personal injury claim. The Estate argues that section 768.041 authorizes a set-off only for a settlement with another tortfeasor for the damages recoverable in the same cause of action. Accordingly, since there are two different actions involved here--a personal injury action and a wrongful death action--the set-off provisions of sections 768.041 and 768.31 should not apply.
On the other hand, Safecare contends that it is not that clear that set-off is only appropriate in a situation involving recovery by a plaintiff against one of multiple tortfeasors in a single cause of action. Rather, it asserts, sections 768.041 and 768.31 suggest that set-off may be appropriate whenever the plaintiff has received a partial recovery from one of multiple defendants who may be liable in tort for the same injury, whether that injury results in a personal injury action or a claim for wrongful death.
The Estate relies on Devlin v. McMannis, 231 So.2d 194 (Fla.1970). Devlin held that amounts received from one tortfeasor for payment of a survival claim should not be set off against a recovery against another tortfeasor for the wrongful death of the same victim. The supreme court noted that the set-off statute, section 768.041(2), was designed to prevent duplicate or overlapping compensation for identical...
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