Tallahassee Memorial Regional Medical Center, Inc. v. Wells

• Decision Date: 09 February 1994
• Docket Number: No. 92-3294,92-3294
• Citation: 634 So.2d 655
• Parties: 19 Fla. L. Weekly D302, 19 Fla. L. Weekly D651 TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC., Appellant, v. Joyce WELLS, Appellee.
• Court: Florida District Court of Appeals

Page 655

634 So.2d 655

19 Fla. L. Weekly D302, 19 Fla. L. Weekly D651

TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC., Appellant, v. Joyce WELLS, Appellee.

No. 92-3294.

District Court of Appeal of Florida First District.

Feb. 9, 1994.

As Clarified March 14, 1994.

Jesse F. Suber of Henry & Buchanan, P.A., Tallahassee, for appellant.

Jon D. Caminez and Barry Gulker of Caminez, Walker & Brown, Tallahassee, for appellee.

SMITH, Judge.

Tallahassee Memorial Regional Medical Center, Inc. (TMRMC), appeals a final judgment entered against it after a jury trial, contending that the trial court erroneously refused to set-off from the judgment the amounts paid in settlement by two co-defendants prior to trial. Upon consideration of certain language appearing in the decision of the Florida Supreme Court in Fabre v. Marin, 623 So.2d 1182 (Fla.1993) (Fabre II ), we conclude that reversal is mandated. However, we certify the question at issue as one of great public importance.

The appellee, Joyce Wells, as representative of the estate filed suit against TMRMC, Dr. Donald Alford, M.D., Dr. Bruce Sell, M.D., Raymond Johns, a certified registered nurse anesthetist, and Anesthesiology Associates, for wrongful death of her husband, Jacob Wells, while in the care of the defendants. The claim against Dr. Sell was dismissed. Prior to trial, Wells reached a settlement with the remaining defendants, receiving in settlement $250,000 from Dr. Alford, and $50,000 from Johns and Anesthesiology Associates.

The case went to trial against TMRMC as the sole defendant; however, the jury was instructed to apportion fault among all defendants. ¹ At the conclusion of the trial, the jury returned a verdict assessing damages at $573,853, finding TMRMC 90% at fault, Dr. Alford 5% at fault, and Johns and Anesthesiology Associates 5% at fault. By amended final judgment, the appellee was found to have sustained, consistent with the jury verdict, $202,853 in economic damages and $371,000 in non-economic damages, which totals $573,853. ² The appellee was awarded 90% of this sum, plus $9,000 in costs; however, $17,000 was deducted as a setoff for the social security benefits received by appellee for a total of $509,267.70. ³

TMRMC moved the court for a reduction of the amended judgment by setting off from the total damages awarded the sum of $300,000, the total amount received by Wells from the settling defendants. After a hearing on the motion, the trial court denied the requested setoff. This appeal followed.

This case raises issues relating to the several statutes in effect in Florida which provide, albeit in somewhat different language, for a reduction of the damages recoverable from a non-settling tortfeasor based upon the amount of damages received in settlement from other jointly or severally liable tortfeasors. ⁴ More importantly, this case raises the question of the effect, if any, upon the applicability of these statutes created by the adoption of section 768.81(3), which provides for the apportionment of damages based upon each party's percentage of fault, and not on the basis of joint and several liability. ⁵

TMRMC urges that notwithstanding the abolition of joint and several liability accomplished by section 768.81 (except as to economic damages, with respect to a defendant whose percentage of fault equals or exceeds that of the claimant), the other previously existing statutory provisions still require a setoff or reduction in the amount of the total damages assessed by the jury, in the amount of $300,000 paid in settlement by Dr. Alford and Anesthesiology Associates. More specifically, TMRMC argues, section 768.041(2) provides that when a release has been given "in partial satisfaction of the damages sued for," the court "shall setoff this amount from the amount of any judgment to which the plaintiff would be otherwise entitled ...," and the court must enter judgment accordingly. Further, section 768.31(5)(a) provides that a release or covenant not to sue does not discharge any other tortfeasors from liability, "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;...."

It is important to note that under both statutes, sections 768.041(2) and 768.31(5)(a), in order for a setoff to be made the payments made in settlement must be in satisfaction of the claim at issue in the lawsuit, not a separate claim. Devlin v. McMannis, 231 So.2d 194 (Fla.1970); Florida Patient's Compensation Fund v. Scherer, 558 So.2d 411 (Fla.1990). In the case before us it is without dispute that the settlement payments were made in partial satisfaction of the damages sued for.

The trial judge below rejected appellant's arguments, reasoning that notwithstanding the existence of the statutes above referred to, the judgment against TMRMC should be in accordance with the jury's verdict; and that since the jury was called upon to decide the specific amount that should be paid by TMRMC, the judgment should be based upon that amount. We note that the trial court at the time of this ruling did not have the benefit of the supreme court's recent decision in Fabre v. Marin, supra, which, as we indicated earlier, in our opinion dictates a contrary result.

Upon certification of conflict, the Florida Supreme Court in Fabre II disapproved the Third District's decision in Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992) (Fabre I ), and approved the ruling of the Fifth District in Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1992). In Fabre II, the court found that section 768.81(3), Florida Statutes (1991), is unambiguous; that by its terms the statute requires entry of judgment against each party liable based upon their percentage of fault; and further, that the only means of determining a party's percentage of fault "is to compare that party's percentage of fault to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants." Id. at 1185 (emphasis added). Mrs. Marin, the injured party, argued that judgment should have been entered for the full amount of her damages against the Fabres, although they were found to be only 50 percent at fault by the jury, because, under the doctrine of interspousal immunity, Mrs. Marin could not recover damages from her husband who was found 50 percent at fault in causing the accident. This argument was rejected by the court, based upon its interpretation of the statute.

We recognize that the Fabre II court was not called upon to reach the specific issue presented in the case before us; that is, whether in entering judgment for the apportioned liability of a non-settling defendant, the amount of the judgment should be reduced by sums paid in return for a release from liability by settling parties. Nevertheless, the court expressed a belief that any conflicts or inconsistencies between section 768.81(3) and other statutes could be harmonized; and in event they cannot be harmonized, the court said, then the issue must be resolved by application of the legislative directive appearing in section 768.71(3) which states that in event of conflict with other statutes, "such other provisions shall apply." From these and other expressions of the court in its Fabre II opinion, it is clear that the appellee's arguments, both here and in the lower court, that the setoff provisions do not survive the abolition of joint and several liability found in section 768.81(3), must yield to the contrary legislative intent expressed in section 768.71(3).

Should there remain any doubt as to the applicability of the setoff provisions in the light of section 768.81(3), we find such doubt eliminated by reference to footnote 3 of the Fabre II opinion, which we think can be best explained here by quoting in its entirety:

Thus, we reject the argument that our interpretation of section 768.81(3) when coupled with the right to setoff under section 768.31(5) will lead to a double reduction in the amount of damages. This possibility may be avoided by applying the setoff contemplated by section 768.31(5) against the total damages (reduced by any comparative negligence of the plaintiff) rather than against the apportioned damages caused by a particular defendant. For example, suppose defendant A is released from the suit for a settlement of $60,000 and the case goes to trial against defendant B. The jury returns a verdict finding the plaintiff's comparative negligence to be 40%, the negligence of A and B to be 30% each, and the damages to be $300,000. Because the $60,000 setoff would not reduce the plaintiff's $180,000 to below $90,000, B would still have to pay the full $90,000 for his share of the liability. Of course, if the damages were found to be $150,000, the $60,000 from the settlement with A would be set off against the plaintiff's $90,000 recovery which would mean that B's obligation would be reduced from $45,000 to $30,000.

Fabre II, 623 So.2d at 1186 fn. 3 (emphasis added).

In our view, the emphasized portion of the above-quoted hypothetical, when applied to the case before us, unequivocally directs that the $300,000 paid in settlement by other defendants must be applied in reduction of the total damage award returned by the jury.

We acknowledge, as urged by appellee, that footnote 3 of the Fabre II opinion is dicta. Nevertheless, we follow the rule as expressed in our opinion in Aldret v. State, 592 So.2d 264, 266 (Fla. 1st DCA 1991), reversed on other grounds, 606 So.2d 1156 (Fla.1992), where we stated:

[I]t is well-established that dicta of the Florida Supreme Court, in the absence of a contrary decision by that court, should be accorded persuasive weight. O'Sullivan v. City of Deerfield Beach, 232 So.2d 33 (Fla. 4th DCA 1970); Weber v. Zoning Board of Appeals of the City of West Palm Beach, 206 So.2d 258 (Fla. 4th...