 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hibbard v. McGraw12/2/2005
sserting his claims as his representative. Thus the case involved two plaintiffs, not one.
The court concluded that the defendant's offer did not comply with the offer of judgment statute or rule 1.442 because it did not state the amount attributable to each party. There were two distinct parties plaintiff -- the mother individually and her son, whom she represented. The mother may have been willing to settle her individual claims for all or part of the amount offered, if she had been able to do so without compromising her son's claims, or vise versa.
In this case, the defendants served their proposal to "Plaintiff, Amanda K. Carr" before moving to amend the pleadings to show Carr as the "sole" plaintiff. At the time the defendants served their proposal, "Plaintiff, Amanda K. Carr" was not the named plaintiff. In addition, given the defendants' position that Carr was the sole plaintiff, it is unclear whether the proposal to settle "all claims against the Defendants" included all damages of any kind arising out of the accident (Carr's claims as well as the claims of her mother) or only Carr's claims for future medical expenses, future lost earning capacity and pain and suffering) and not her mother's claims (medical expenses and loss of consortium).
The defendants' proposal for settlement was therefore unclear and ambiguous. Accordingly, the defendants were not entitled to an award of attorney's fees under section 768.79. See, e.g., Stern v. Zamudio, 780 So. 2d 155 (Fla. 2d DCA 2001)(sanctions of section 768.79 were not enforceable where lump sum offer was defective).
II. Damages
As to the issue of damages, Carr contends the trial court erred in determining the net recovery. Carr provides this court with two different calculations for reducing the verdict to final judgment in their favor.
The amount of Carr's recovery depends on the defendants' liability under the comparative fault statute and any applicable setoffs. At common law, under the doctrine of joint and several liability, all negligent defendants were held responsible for the total of the plaintiff's damages regardless of the extent of each defendant's fault in causing the accident. Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001).
In 1986, the Legislature enacted section 768.81, the comparative fa ult statute. This represented a policy shift from joint and several liability to the apportionment of fault among tortfeasors. Instead of each defendant being severally responsible for all of the plaintiffs' damages, with limited exceptions, the defendant is responsible only for the percentage of fault determined by the jury. Gouty.
In 1999, the Legislature amended section 768.81 to provide joint and several liability for economic damages based on a sliding scale, depending on whether the plaintiff was with or without fault and the percentage of fault of the defendant. The amendment made a defendant less than 10% at fault not subject to joint and several liability, regardless of whether the plaintiff had some fault or not. Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002). However, this court has held the 1999 amendment to section 768.81 is prospective only and may not be applied retroactively to causes of action accruing prior to its effective date. Basel.
The 1997 version of section 768.81, in effect at the time of the accident in this case, apportioned damages as follows:
(3) Apportionment of damages.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liabil
Page 1 2 3 4 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|