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Hibbard v. McGraw12/2/2005
ity; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.
(5) Applicability of joint and several liability.-- Notwithstanding the provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000.
Since McGraw's percentage of fault (5%) was less than Carr's percentage of fault (25%) and the total amount of damages exceeded $25,000, the doctrine of joint and several liability does not apply. Metropolitan Dade County v. Frederic, 698 So. 2d 291 (Fla. 3d DCA ), rev. denied, 705 So. 2d 9 (Fla. 1997).
Prior to trial, Carr settled with Brock for $100,000 but this does not benefit McGraw. The provisions for setting off settlement proceeds do not apply to non-economic damages for which the defendants are only severally liable. Furthermore, these setoffs are only applicable to economic damages where the parties are subject to joint and several liability. Gouty; Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So. 2d 249 (Fla. 1995); Metropolitan Dade County; Cohen v. Richter, 667 So. 2d 899 (Fla. 4th DCA 1996).
Nevertheless, Carr received collateral source payments which do reduce economic damages. However, the method the trial court used to calculate the damages was error. Norman v. Farrow, 880 So. 2d 557 (Fla. 2004).
In Norman, the Florida Supreme Court held that damages should be computed by deducting the amount of PIP benefits paid or payable from the amount of economic damages awarded, adding the non-economic damages awarded, and then applying the percentage of comparative negligence to reduce the damages recoverable. Here the trial court first reduced the award by the parties' comparative negligence, that is, the court found the defendants were liable for 5% of the total award of $364,766.44 or $18,238.32 and then applied a setoff of $72,966.09 from collateral sources. That calculation of course resulted in no judgment for Carr.
Under Norman, the amount of PIP benefits paid or payable must be first deducted from the amount of economic damages awarded, the non-economic damages added and then comparative negligence considered. Since the method used by the trial court was erroneous, we remand this matter for the trial court to reconsider the calculation of damages in accordance with Norman.
AFFIRMED in part; REVERSED in part; REMANDED.
PETERSON and TORPY, JJ., concur.
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