Samples v. Fla. Birth-related Neurological, 5D09-3378.

• Decision Date: 18 June 2010
• Docket Number: No. 5D09-3378.,5D09-3378.
• Parties: Angela SAMPLES and Kenneth Ray Samples, etc., Appellants,v.FLORIDA BIRTH-RELATED NEUROLOGICAL, etc., Appellees.
• Court: Florida District Court of Appeals

40 So.3d 18

Angela SAMPLES and Kenneth Ray Samples, etc., Appellants,v.FLORIDA BIRTH-RELATED NEUROLOGICAL, etc., Appellees.

No. 5D09-3378.

District Court of Appeal of Florida Fifth District.

June 18, 2010.

COPYRIGHT MATERIAL OMITTED

Scott R. McMillen and Allison C. McMillen, of McMillen Law Firm, Orlando, and Mayanne Downs and Frederick S. Wermuth of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Appellants.

Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey, of Brewton Plante, P.A., Tallahassee, for Appellees.

CORRECTED OPINION

LAWSON, J.

The parents of a child with birth-related neurological injuries appeal an administrative order awarding them $100,000 jointly, in parental compensation, pursuant to section 766.31(1)(b)1., Florida Statutes (2007). That section provides for “an award of compensation ... to the parents or legal guardians ... which award shall not exceed $100,000.” They argue that this provision is ambiguous and should be construed to authorize an award of up to $100,000 to each parent rather than a single award of $100,000 to both parents. They also argue that such a construction would avoid three constitutional problems: equal protection, vagueness and access to courts. We disagree and find that the statute clearly limits parental compensation to a single award not to exceed $100,000. We also hold the statute constitutional. Accordingly, we affirm the joint award. In doing so, however, we note that our supreme court has construed an arguably similar statute in a manner consistent with Appellant's equal protection argument in this case. Although we view this binding precedent as distinguishable, we also certify the question presented in this appeal as one of great public importance.

Facts

In August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007). Her parents, Angela and Kenneth Samples (“the Samples”), filed a claim with the Division of Administrative Hearings (“DOAH”) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”). The Florida Birth-Related Neurological Injury Compensation Association (“NICA”) agreed that MacKenzie's injuries were compensable under the plan.

Pursuant to a stipulation between the parties, NICA agreed to pay expenses for MacKenzie's care pursuant to section 766.31(1)(a) and reasonable attorney's fees and other expenses pursuant to section 766.31(1)(c). The stipulation resolved the Samples' major claims except for the amount of parental compensation under section 766.31(1)(b)1. NICA agreed to make a lump sum payment of $100,000 to both parents jointly. However, the Samples reserved the right to have a hearing before an ALJ to raise the issue of the interpretation and constitutionality of section 766.31(1)(b)1.

The ALJ approved the stipulation and afforded the parties a hearing to offer any proof they perceived pertinent to the interpretation of section 766.31(1)(b)1. The parties filed a Joint Pre-Hearing Stipulation which included the following “Admitted Facts”:

(1) Once NICA ascertains that a claim is covered, NICA frequently offers a lump sum payment of a parental award totaling $100,000, regardless of whether there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ.

(2) Pursuant to Section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to Section 766.31(1)(b)1., Florida Statutes. An ALJ has never ordered NICA to pay a parental award in excess of $100,000, regardless of whether there was one parent or two parents involved in the claim.

(3) In a typical covered claim, NICA does not customarily argue that the parental award should be less than the full $100,000 authorized.

(4) Once the ALJ has ordered payment of a parental award in the amount of $100,000, NICA pays the $100,000 parental award by check made payable to both parents jointly, unless otherwise ordered by the ALJ.

(5) In the past, when there was a dispute between the parents with respect to the amount of the parental award to go to each parent, the ALJ has specified in the Final Order how much of the parental award would be paid to the mother and how much would be paid to the father. In those instances, the combined parental award was typically for the full $100,000.

At the hearing, NICA introduced various documents comprising the legislative history of the Plan. The ALJ also took official notice of two final orders Waddell v. Florida Birth-Related Neurological Injury Compensation Association, 1999 WL 1483760, DOAH Case No. 98-2991N (May 11, 1999) and Wojtowicz v. Florida Birth-Related Neurological Injury Compensation Association, 1994 WL 1027875, DOAH Case No. 93-4268N (July 22, 1994). The ALJ entered a Final Order denying the Samples' claim for an additional $100,000 as part of the parental award. He found that the legislative history of section 766.31(1)(b)1. showed that the Legislature clearly intended that the maximum award of $100,000 was for “both parents or legal guardians, and not for each parent or legal guardian.” The ALJ allowed the parties to make arguments and present evidence on the constitutional issues but did not rule on them.

Ambiguity

On appeal, the Samples first argue that section 766.31(1)(b)1. is ambiguous. The starting point of statutory interpretation is always the words themselves. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). If statutory language 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.” Id. (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). However, if a statutory provision is ambiguous-subject to more than one reasonable interpretation-courts may employ rules of construction and extrinsic aids to discern legislative intent. Id.

Section 766.31(1)(B)1. states:

(1) Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury:

....

(b)1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.

(Emphasis added). In three places, this provision plainly speaks of a single “award,” not to exceed $100,000, to a plural “parents or legal guardians.”

The Samples concede that the term “award” is singular and the term “parents” is plural. Nevertheless, they argue that the statute is ambiguous because it does not clearly explain how a singular award to two parents replaces the common-law right of each parent to recover individual damages for filial consortium. This argument is flawed for at least two reasons. First, the statute plainly authorizes no-fault “compensation,” not fault-based “damages.” The fact that it does not explain how such compensation replaces common-law damages does not make it ambiguous. Second, the Samples' argument relies on a rule of statutory construction that statutes enacted in derogation of common law should be strictly construed in favor of the common law, and they must be clear on the extent of such abrogation or change; when they are not clear on the extent of abrogation or change, the common law rule stands. Slawson v. Fast Food Enter., 671 So.2d 255, 257-58 (Fla. 4th DCA 1996) (citing Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362 (Fla.1977)). Appellants' reliance on a rule of statutory construction as a basis for finding an ambiguity places the proverbial “cart before the horse”-because rules of statutory construction are designed to be applied only after a statute is found to be ambiguous, to resolve the ambiguity. Here, the plain language of section 766.31(1)(b)1. clearly and unambiguously provides “an award to the parents ... which award shall not exceed $100,000.” This language cannot be reasonably interpreted to provide multiple awards of $100,000 to each parent of a qualifying child.

Even if it were necessary to resort to rules of construction, we would reject the Samples' contention that the Plan does not clearly define the extent to which parental filial consortium claims have been abrogated. Section 766.303(2), Florida Statutes, expressly excludes filial consortium claims, stating that the rights and remedies granted by the Plan “shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise ... arising out of or related to a medical negligence claim with respect to such injury.” ¹

Without conceding that the statute is ambiguous or that this court need resort to statutory construction,² NICA notes that the legislative history clearly establishes that the Legislature intended a single award to parents. When section 766.31(1)(b) was enacted, it used the singular terms “parent or legal guardian.” Ch. 88-1, Laws of Fla.; § 766.31(1)(b), Fla. Stat. (1988). In 1989, the Legislature changed these terms to “parents or legal guardians.” Ch. 89-186, § 5, Laws of Fla.; § 766.31(1)(b)1., Fla. Stat. (1989). This change was made “to clarify the fact that the maximum award of $100,000 is for both parents or legal guardians and is not intended to award up to $100,000 for each parent or legal guardian.” Fla. H.R. Ins. Comm., CS for CS for HB 339, Final Staff Analysis (June 30 1989) (on file with Fla. State Archives). Clearly, the Legislature intended the statute to provide a single award of up to $100,000 for both parents.

Constitutional Challenges

The Samples challenge section 766.31(1)(b)1. on three...