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Felgenhauer v. Bonds9/10/2004
Randy Ryan Felgenhauer seeks review of the final judgment which awarded the plaintiff Selina Bonds $165,608.90 in this automobile negligence action. Felgenhauer argues that the trial court erred in denying his motion to set off the $10,000 settlement between Bonds and the owner of the vehicle Felgenhauer was operating. Bonds cross-appeals, arguing that the trial court erred in granting Felgenhauer's motion to set off the $10,000 PIP benefits received by Bonds. We conclude that Felgenhauer is entitled to a set-off for the settlement but not the PIP benefits. Thus, we reverse on both direct appeal and cross-appeal.
On direct appeal, Felgenhauer argues that he was entitled to a set-off of the $10,000 settlement between Bonds and the owner of the vehicle Felgenhauer was driving. There is no dispute that the owner's settlement was on any basis other than the owner's vicarious liability for Felgenhauer's actions under the dangerous instrumentality doctrine. Sections 768.041 and 46.015, Florida Statutes (2001), provide for a set-off of settlements in negligence actions. Section 768.041 provides:
Release or covenant not to sue.-
(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 her or 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 rendering judgment and enter judgment accordingly.
(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.
Section 46.015 contains almost identical language. Under sections 768.041 and 46.015 a defendant is entitled to a set-off of the sum the plaintiff received from a tortfeasor who was vicariously liable for the defendant's acts. See Grobman v. Posey, 863 So. 2d 1230, 1237 (Fla. 4th DCA 2003); J.R. Brooks & Son, Inc. v. Quiroz, 707 So. 2d 861, 863 (Fla. 3d DCA 1998); see also Hertz Corp. v. Hellens, 140 So. 2d 73, 73 (Fla. 2d DCA 1962) (holding that section 54.28, the predecessor to section 768.041, applies to allow set-offs for vicariously liable tortfeasors). Bonds does not challenge Felgenhauer's assertion that defendants are entitled to a set-off for amounts received from a vicariously liable tortfeasor, but argues that Felgenhauer waived this argument by failing to plead set-off as an affirmative defense. It is well settled in contract actions that set-off is an affirmative defense that must be pleaded or it is waived. See Parker v. Priestly, 39 So. 2d 210, 213 (Fla. 1949); Coffin v. Talbot, 148 So. 184, 187 (Fla. 1933); Skaf's Jewelers, Inc. v. Antwerp Import Corp., 150 So. 2d 260, 262 (Fla. 2d DCA 1963); Jojo's Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003). However, in tort actions allowing for a set-off under sections 768.041 and 46.015, set-off is not an affirmative defense to be considered by the jury but is a determination regarding damages to be made by the court after the verdict is rendered.
Sections 768.041 and 46.015 specifically provide that the fact of the settlement is not to be made known to the jury. Thus, there is no need for the defendant to plead or present evidence regarding such a set-off at trial because it would
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