Saleeby v. Rocky Elson Const., Inc.

• Citation: 3 So.3d 1078
• Decision Date: 30 January 2009
• Docket Number: No. SC07-2252.,SC07-2252.
• Parties: Albert SALEEBY, Petitioner, v. ROCKY ELSON CONSTRUCTION, INC., Respondent.
• Court: United States State Supreme Court of Florida

3 So.3d 1078

Albert SALEEBY, Petitioner, v. ROCKY ELSON CONSTRUCTION, INC., Respondent.

No. SC07-2252.

Supreme Court of Florida.

January 30, 2009.

Rehearing Denied February 25, 2009.

[3 So.3d 1080]

Brett C. Powell, Mark Hicks, and Dinah Stein of Hicks, Porter, Ebenfeld, and Stein, P.A., and Edward G. Rubinoff and Andrew M. Moss of Kutner, Rubinoff and Moss, P.A., Miami, FL, for Petitioner.

Kimberly A. Ashby of Akerman Senterfitt, Orlando, FL, for Respondent.

PER CURIAM.

We have for review the decision of the Fourth District Court of Appeal in Saleeby v. Rocky Elson Construction, Inc., 965 So.2d 211 (Fla. 4th DCA 2007), review granted, 977 So.2d 577, 2008 WL 1746024 (Fla.2008), which expressly and directly conflicts with the decision of the Third District Court of Appeal in Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Both sections 768.041 and 90.408, Florida Statutes (2006), prohibit the admission at trial of any evidence of settlement or dismissal of a defendant. The issue we decide is whether evidence of settlement may nevertheless be admitted to impeach a witness's testimony. We hold that the unambiguous language of these statutes admits no exceptions and that violation of the prohibition is reversible error. For the reasons explained below, we quash the Fourth District's decision.

I. FACTS AND PROCEDURAL HISTORY

In December 1999, the petitioner, Albert Saleeby, was injured when roof trusses on the construction site at which he was working collapsed on him, rendering him a paraplegic. After collecting workers' compensation benefits from his employer, Labor for Hire, a company that supplies temporary workers, Saleeby filed a negligence action against Rocky Elson Construction Co. (Elson), the construction company that installed the trusses, and A-1Roof Trusses Ltd. (A-1), the company that manufactured them.

Before trial, Saleeby deposed defendant A-1's president, John Herring, regarding his review of the jobsite and his opinion of the cause of the truss collapse. Subsequently, A-1 settled with Saleeby and was dismissed as a party defendant. Saleeby then filed a motion in limine to exclude evidence at trial of A-1's prior status as a defendant and of the settlement. The trial court entered an "Agreed Order," stating that Saleeby and Elson agreed to the exclusion of any evidence of settlement, settlement amounts, and A-1's previously having been a defendant in the suit.¹

The suit proceeded to jury trial against Elson on the sole issue of liability, and Elson raised the affirmative defense of workers' compensation immunity. Saleeby sought to show that the collapse resulted from Elson's failure to follow safety requirements and industry standards in installing the trusses, particularly as to adequate bracing. To that end, Saleeby called John Herring, who testified regarding his observations of the accident site and what caused the trusses to collapse. He opined that the truss collapse resulted from Elson's faulty installation, not a manufacturing defect. The trial court overruled Elson's objection that Herring, who was offered as a fact witness, should be prohibited from testifying essentially as an expert witness on industry building standards and code requirements and Elson's conformity to them. However, the trial court granted Elson's motion that it be allowed to impeach Herring with evidence that A-1 had previously been a defendant and had settled with Saleeby. After hearing argument, the circuit court determined that the evidence went to the witness's bias because Herring's trial testimony was based on the opinions he formulated when A-1 was a defendant in the case. Accordingly, during cross-examination, Herring admitted that A-1 had previously been a defendant in the lawsuit, that money was paid to settle the suit, and that Herring had subsequently agreed to testify for Saleeby. After hearing all of the evidence at trial, the jury found that Saleeby was not entitled to recover damages from Elson because the company was immune from liability in tort under Florida's workers' compensation statute. See § 440.11(1), Fla. Stat. (1999).

In his appeal to the Fourth District, Saleeby argued, as he did in the trial court, that sections 768.041 and 90.408, Florida Statutes (2006), prohibited the admission of evidence of settlement and that violation of these statutes is clear reversible error. The district court, however, held that the trial court did not abuse its discretion in admitting the evidence because "Herring had first rendered this opinion when he was a defendant with a pecuniary interest in the case." Saleeby, 965 So.2d at 215. The Fourth District reasoned as follows:

Section 90.408 excludes evidence of a settlement to prove liability; courts may, however, admit settlement-related evidence if offered for other purposes, such as proving witness bias or prejudice. See Dosdourian v. Carsten, 624 So.2d 241, 247 n. 4 (Fla.1993) (evidence of a settlement with a codefendant who remained in the case was admissible since "the jury was entitled to weigh the codefendant's actions [at trial] in light of its knowledge that such a settlement has been reached."). Section 90.408 was enacted to protect against the prejudicial effect that settlement evidence may have on a jury. However, when settlement evidence goes to a witness's "motivation[ ], interest, and position" the probative value of such proof of bias outweighs the danger of prejudice. See Ehrhardt, Florida Evidence § 408.1, Fla. Stat. (2003 ed.) (citing Dosdourian, 624 So.2d at 241; § 90.403, Fla. Stat. (2006)). A witness's bias or improper motive is always an important factor to a jury's credibility determination. See Russ v. City of Jacksonville, 734 So.2d 508, 511 (Fla. 1st DCA 1999).

Here, A-1 Roof Trusses had a financial stake in the matter which could have impacted its president's expert opinion. Evidence of the prior settlement was properly admitted to show potential bias.

Saleeby, 965 So.2d at 215-16. Thus, finding no merit in this or any of Saleeby's other claims, the district court affirmed the adverse judgment in the case.

II. CONFLICT JURISDICTION

Saleeby petitioned this Court for review, alleging express and direct conflict with Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989), regarding the admissibility of evidence of settlement at trial to demonstrate the bias of a testifying witness.² As explained below, these cases are in express and direct conflict regarding the admissibility of evidence of settlement at trial to demonstrate the bias of a testifying witness, and this Court has jurisdiction. See art. V, § 3(b)(3), Fla. Const.

In Ellis, Darryl Ellis sued Jefferson Stores, Inc., and Drs. Kirsner and Weisbrot for dental malpractice. Ellis voluntarily dismissed Dr. Kirsner in return for a waiver of fees and costs but nevertheless called him as a witness at trial. Id. at 16. During cross-examination, Dr. Kirsner admitted that he had previously been a defendant in the case. Id. The trial court denied Ellis's immediate motion for mistrial and Ellis's objections to defense counsel's continual references to Dr. Kirsner's former party defendant status throughout the cross-examination. On appeal, the Third District reversed the jury verdict and remanded for a new trial. Id. Citing section 768.041's prohibition on informing a jury that a witness was a prior defendant in the case, the district court held that "[a]dmission of such testimony, even to attack the former defendant's credibility, is clear error and requires reversal." Id.

In both cases, the plaintiff dismissed a defendant from the case and then called the former defendant to testify. In both cases, the trial court permitted the remaining defendant in the case to use evidence of the witness's former party status to impeach the witness in contravention of a statute. Finally, in both cases, the district courts were presented with the same question of law regarding the admissibility of such evidence to impeach a witness, but they reached opposite conclusions. The Fourth District found no error and held that despite a statutory prohibition, the evidence was admissible to show witness bias, Saleeby, 965 So.2d at 216, but the Third District held that admission of such evidence to demonstrate witness bias was "clear error," requiring reversal. Ellis, 550 So.2d at 16.

III. ANALYSIS

Petitioner argues that the trial court's admission of evidence of settlement violated clear statutory law barring such admission for any purpose. Respondent contends, however, that an unwritten exception to the prohibition applies to the facts of this case. As we explain below, the question of whether evidence that a previous defendant settled out of a lawsuit is admissible for purposes of impeachment is readily answered by reading the plain language of the applicable statutes.

"It is well settled that legislative intent is the polestar that guides a court's statutory construction analysis." Knowles v. Beverly Enterprises-Fla., Inc., 898 So.2d 1, 5 (Fla.2004). Thus, to determine the meaning of a statute, we first look to its plain language. McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1208 (Fla.2006). When the statute is clear and unambiguous, "there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)).

Two Florida statutes specifically address the issue of disclosing evidence of settlement to the jury. Section 768.041, Florida Statutes (2006) provides as follows:

(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...