Sponga v. Warro

• Decision Date: 29 August 1997
• Docket Number: No. 96-2984,96-2984
• Citation: 698 So.2d 621
• Parties: 22 Fla. L. Weekly D2044 Robert E. SPONGA, Appellant, v. Angela WARRO, Appellee.
• Court: Florida District Court of Appeals

Page 621

698 So.2d 621

22 Fla. L. Weekly D2044

Robert E. SPONGA, Appellant, v. Angela WARRO, Appellee.

No. 96-2984.

District Court of Appeal of Florida,

Fifth District.

Aug. 29, 1997.

David C. Knapp, of Rogers, Dowling, Fleming & Coleman, P.A., Orlando, for Appellant.

Gregory S. Hansen, of Frese, Nash & Torpy, P.A., Melbourne, for Appellee.

GRIFFIN, Chief Judge.

This is an appeal of an order entered pursuant to Rule 1.540, Florida Rules of Civil Procedure. The order purports to set aside a final order of dismissal based on a settlement agreement executed by the parties after mediation. The agreement was set aside on the basis of newly discovered evidence. We reverse.

On April 8, 1994, Angela Warro was involved in an automobile accident with Robert E. Sponga. Warro later brought suit against Sponga for negligence, seeking to recover damages for permanent injuries allegedly sustained in the accident.

Warro saw a number of physicians prior to trial, apparently seeking treatment for her injuries. In December 1995, Warro went to an orthopaedist, Dr. Anthony Lombardo, complaining of "bilateral" shoulder pain. Warro apparently claimed her left shoulder had been injured in the accident.

In January 1996, Dr. Lombardo informed Warro that she would need surgery on her left shoulder. Warro's counsel related the potential need for surgery to Sponga's counsel by letter dated January 25, 1996, stating:

Today I was advised telephonically, that my client was informed by her orthopedic physician, that he is recommending surgery on her shoulder as a result of the impingement syndrome received in the accident.

Warro's counsel followed up by asking Dr. Lombardo for a narrative report concerning Warro's injuries, which among other things was to consider whether Warro had suffered a permanent impairment or injury as a result of the accident.

Dr. Lombardo summarized his findings concerning Warro's left shoulder in a report dated February 19, 1996. The report, which is somewhat garbled, stated in relevant part as follows:

The injection of both left and right side gave her relief of left shoulder pain by January 15, 1996, but the right shoulder was still quite painful. She still showed signs of impingement with diminished range of motion, as well as with pain with any overhead activity or any internal rotation. At that point, I ordered an MRI, which essentially was normal except for a pre-existing down slope anatomy of the acromion which was causing some impingement, but was not caused by the accident. There was no evidence of any rotator cuff involvement or bursitis.

She returned to the office, where she was told that there was not much to do at this point except to see if this will get better on its own. I felt as though with the negative MRI, and the fact that there was no real objective findings for her pain with overhead activities, that she should work in a conservative manner to try to solve this problem. I did not feel at this point that surgery would be in her best interest since there was nothing really positive on the MRI. I did feel that if she continued to have pain and could not live with the situation, that an arthroscopic evaluation of the shoulder could be done with decompression of the anterior hook of the acromion. I do not feel that this is actually part of an injury that she suffered in a car accident, and this is a result of her normal anatomy that has flared up this condition.

I do not anticipate any further diagnostic studies as everything has been done. She may benefit from physical therapy if she becomes deconditioned, and she does have some impairment with regards to lifting anything overhead and lifting greater than 30 pounds in each arm. There are within medical certainty, that she would have problems....

(emphasis added).

After Warro had received Dr. Lombardo's report, the case proceeded to mediation on March 6, 1996, pursuant to which Sponga and/or his insurance company agreed to pay Warro $12,500 in exchange for Warro's agreement to release and discharge Sponga from:

any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the Undersigned now has or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforseen, bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 8th day of April, 1994, in Brevard County, Florida.

The agreement also recognized:

IT IS UNDERSTOOD AND AGREED that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said release denies liability therefore and intends merely to avoid litigation and buy their peace.

The Undersigned hereby declares and represents that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the Undersigned relies wholly upon the Undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.

Based on the settlement, the parties stipulated to the dismissal of the complaint with prejudice. Accordingly, a final order of dismissal was entered on March 7, 1996.

Warro filed a motion for relief from judgment under rule 1.540 on April 15, 1996, alleging that the order of dismissal should be set aside on the basis of "mistake" or "newly discovered evidence." In her motion, Warro complained that Dr. Lombardo had made a "serious error" in his preparation of his original report and that, in reliance on the erroneous report, she had agreed to accept $12,500 in compensation, which was less than she would have accepted if she had known that Dr. Lombardo related the left shoulder pain to the accident. A corrected report attached to the complaint was substantially similar to the earlier report, but stated:

At that point, I ordered an MRI, which was essentially normal except for a down slope anatomy of the acromion which was causing impingement of the rotator cuff. This down sloping acromion was not caused by the accident, but this pre-existing anatomy was aggravated by the accident that has caused the persistence of her shoulder pain and impingement-type syndrome. Although there was no evidence of any rotator cuff involvement or bursitis, she persistently had positive findings with examinations, as well as with limitations in her ability to lift overhead.

Another portion of the report stated:

I feel as though she actually has an injury that she had from the motor vehicle accident that was aggravated by her anatomy that included an anterior hook to her acromion. I feel that in regard to any future type of treatment that I do anticipate future treatment in the form of an arthroscopy if she continues to have problems with her shoulder.

The court held a hearing on the motion to vacate the order of dismissal. Warro testified that, prior to settling the case, she had reviewed Dr. Lombardo's first report, which she had understood to state that her shoulder injury was not connected with the accident. She testified that due to the report she agreed to reduce her settlement demand to $12,500. Warro said that following the settlement she had continued to...