author: Warner, J.

text:
    State of Florida, DEPARTMENT OF FINANCIAL SERVICES, Florida Department of Children and Families and City of Riviera Beach, a Florida Municipal Corporation, Appellants, v. Michael BARNETT, Individually, as Natural Father and Guardian of R.B., a Minor, and as the Personal Representative of the Estates of Daniel Barnett, Diane Barnett and Bryan Barnett, and Leroy Nelson, Jr., as Personal Representative of the Estate of Javon Xavier Nelson, a Minor, Appellees.
    No. 4D17-2840
    District Court of Appeal of Florida, Fourth District.
    [October 10, 2018]
    Sheridan Weissenborn of Dutton Law Group, P.A., Miami, for appellant Department of Financial Services.
    H.T. Smith of the Law Offices of H.T. Smith, P.A., Coral Gables, and John W. McLuskey of McLuskey, McDonald & Hughes, P.A., Miami, for appellee Michael Barnett.
    Vincent E. Miller of the Law Offices of Vincent E. Miller, P.A., Delray Beach, for appellee Leroy Nelson, Jr.
   Warner, J.

The issue presented in this case is one of first impression involving section 768.28(5), Florida Statutes (2010), waiver of sovereign immunity in tort actions. That statute limits to $200,000 the amount of liability of the state or its subdivisions for all claims or judgments "arising out of the same incident or occurrence." This underlying suit was brought by the fathers of children killed and injured by their stepfather on one murderous night. The fathers claimed negligence by the Department of Children and Families in its investigation of the family, and the trial court determined that the death of each child constituted an independent "incident or occurrence" for purposes of the statutory cap in the waiver statute. Therefore, each wrongful death or personal injury claim would be eligible for the $100,000 per person and $200,000 total claims limitations. Because statutes waiving sovereign immunity must be strictly construed, and any statute waiving sovereign immunity must be clear and unequivocal, the trial court erred in concluding that each death or injury constituted an independent incident or occurrence. We reverse.

Patrick Dell and Natasha Dell were married and had two children together. Natasha also had five children from two previous relationships, four with appellee Michael Barnett and one with Leroy Nelson. All of the children lived with her. According to the complaint filed in this action, the relationship between Patrick and Natasha was marred by domestic violence, and police had been called to their home many times. On December 20, 2009, a particular incident occurred where Patrick threatened Natasha with a knife and uttered threats against the entire family. That altercation was reported to DCF, which launched an investigation. After interviewing both parties, as well as the older children who all said that they did not fear for their safety, the investigator closed his file.

Nine months after the investigation was closed, Patrick, now an estranged husband, entered the home, where he shot and killed three of the Barnett children and the Nelson child. The other Barnett child was injured but not killed. The Dell children were not harmed. Patrick then killed Natasha and himself.

In their capacity as personal representatives of their children's estates and on behalf of the injured child, the fathers filed separate suits against DCF for negligence in its investigation. In its answer, DCF alleged that there was sovereign immunity for any amounts recovered above the statutory caps contained in section 768.28(5), Florida Statutes (2010). The Department of Financial Services-the agency in charge of payment of any judgment-was granted leave to intervene. It filed a declaratory judgment, requesting the court to determine each of the fathers' rights under section 768.28(5), Florida Statutes (2010), which provides in part:

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000.

After further discovery, the fathers filed a motion for summary judgment against both DCF and DFS. The motion framed the issue as "whether the murders of four children and the shooting of a fifth child, by separate gunshots, delivered in separate locations, at separate times, are five separate 'incidents' or 'occurrences' for purposes of sovereign immunity." In rendering a declaratory judgment, the trial court found that each claim, as presented in this particular case, constituted an independent incident or occurrence. Therefore, it concluded that "each wrongful death or personal injury claim [was] eligible for the $100,000 per person and $200,000 per claim limitation found in Florida Statute § 768.28(5)." DFS appeals the declaratory judgment. We review statutory construction de novo. Maggio v. Fla. Dep't of Labor & Emp't Sec. , 899 So.2d 1074, 1076 (Fla. 2005).

At common law, the state possessed immunity from suit as an aspect of its sovereignty. See Spangler v. Fla. State Tpk. Auth. , 106 So.2d 421, 424 (Fla. 1958). "Sovereign immunity's roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase 'the king can do no wrong.' " Cauley v. City of Jacksonville , 403 So.2d 379, 381 (Fla. 1981). Pursuant to the Florida Constitution, however, "The people of Florida vested the power to waive immunity in the Florida legislature at an early date." Id. (citing Art. IV, § 19, Fla. Const. (1868) (now Art. X, § 13, Fla. Const.) ). However, because waiver is an abrogation of the sovereignty of the state, courts have strictly construed any statute waiving immunity to protect the public purse.

Inasmuch as immunity of the state and its agencies is an aspect of sovereignty, the courts have consistently held that statutes purporting to waive the sovereign immunity must be clear and unequivocal. Waiver will not be reached as a product of inference or implication. The so-called 'waiver of immunity statutes' are to be strictly construed. This is so for the obvious reason that the immunity of the sovereign is a part of the public policy of the state. It is enforced as a protection of the public against profligate encroachments on the public treasury.

Spangler , 106 So.2d at 424. As such, "[s]tatutes purporting to waive sovereign immunity are strictly construed, and must be clear and unequivocal." State ex rel. Div. of Admin. v. Oliff , 350 So.2d 484, 486 (Fla. 1st DCA 1977) (alteration added).

The legislature did not define "incident or occurrence" in section 768.28(5). Limited case law has applied the statute to cases involving multiple claimants and a single tortious act. In Rumbough v. City of Tampa , 403 So.2d 1139, 1142-43 (Fla. 2d DCA 1981), the court considered the meaning of the terms in determining whether a city-created nuisance was one incident or occurrence when it produced injury to properties over time. In Rumbough , landowners sued the city for nuisance, claiming that foul odors from an expanded landfill impaired the use of their land. Id. at 1140. Prior to the suit, the city had already paid $100,000 in damages to other landowners for the same nuisance. Id. at 1142. The court found that because the nuisance amounted to an "occurrence," "continuing in nature" and creating damage over time, the city's payment of other claims were payments arising out of the same occurrence which had exhausted the statutory aggregate limit. Id. at 1142-43. The "occurrence" was tied to the negligence of the state actor, not to the damages resulting from the negligent acts. Id.

In Orange County v. Gipson , 539 So.2d 526, 527 (Fla. 5th DCA 1989), the county was sued for creating an attractive nuisance. Two children were crossing a canal over sewer pipes owned by the city. Id. One of the children slipped into the water and became entangled in weeds. Id. The other jumped in to save him and both drowned. Id. Their estates sued the city and the county. Id. Those claims were treated as one "incident." Id. at 529-30.

In City of Miami v. Valdez , 847 So.2d 1005, 1006 (Fla. 3d DCA 2003), the court considered the application of the statutory caps to a case where two vehicle occupants were injured in an accident with a police vehicle. One occupant filed suit against the city and obtained a multi-million dollar verdict on a single count of negligence. Id. The city settled, paying the occupant the $100,000 statutory cap, and then assisted him in the passage of a legislative claims bill for him to obtain the $4.9 million balance. Id. When the other occupant filed suit, the city maintained that because of the legislative payment to the first occupant, it was not liable to the second occupant for the statutory cap of $100,000 per person. Id. The city further argued it also exhausted the $200,000 cap per incident because of its compliance with the $4.9 million special claims bill in favor of the first occupant. Id. The appellate court affirmed the trial court's determination that the city was liable for the $100,000 left on the aggregate statutory cap and could not offset that obligation through the legislative payment to the first occupant. Id. at 1009. In other words, both vehicle occupants could collect $100,000, because the combined total did not exceed the aggregate $200,000 statutory cap. Id. Thus, Valdez applied the cap where there was a single tortious act causing multiple injuries.

In a case brought by two sisters claiming negligent supervision by DCF, similar to the present case, the court held that each child presented a single claim of negligent supervision, even though the negligence spanned several years and involved multiple individual acts of negligence. State Dep't of Health & Rehab. Servs. v. T.R. ex rel. Shapiro , 847 So.2d 981, 985 (Fla. 3d DCA 2002). All of the children's damages were limited by the $100,000 per person limitation in the statute. Id. The court considered the negligent claim against the Department as a single claim for each child, despite the fact that there were several acts of negligence by various state employees included in that claim.

The current case involves a single claim of negligence against the Department in the failure to properly investigate the family and the stepfather before closing its file. Thus, each estate's claim and the claim of the injured child arise from the same incident of negligence of the Department. Therefore, the $200,000 cap per incident or occurrence applies to limit recovery for all claims.

The appellees rely on Zamora v. Florida Atlantic University Board of Trustees , 969 So.2d 1108 (Fla. 4th DCA 2007), as support for their position that each murder constituted a separate "incident or occurrence." Zamora , however, involved a single plaintiff making two separate and distinct claims of discrimination and retaliation against the appellee. Our court was not applying the aggregate cap but determining whether two disparate claims occurred. Id. at 1114. We applied the doctrine of res judicata to determine whether there were one or two claims brought by the single plaintiff. Because two separate negligent acts resulted in two separate incidents of discrimination and two separate damage awards, a separate statutory damage cap would apply to each claim. Id.

Appellees contend that we should apply the principle of res judicata to this case as well. Under res judicata, they argue, because there is no identity of persons, the claims do not constitute a single claim. However, that would mean that where there are multiple claimants, res judicata would never bar claims, because separate claims would lack identity of parties. Thus, even in cases such as Valdez , involving a single auto accident causing damages to two persons, they would be considered two separate incidents. Such an interpretation would write out the $200,000 limitation on liability entirely. While res judicata is useful in determining whether a single plaintiff has multiple claims or a single claim, it has no application to cases where there are multiple plaintiffs asserting a single claim of negligence against the state actor.

The trial court and appellees also rely on Koikos v. Travelers Ins. Co. , 849 So.2d 263 (Fla. 2003), involving the interpretation of a commercial insurance policy. There, during a brawl in a restaurant, two patrons were injured by shots fired by another patron. Id. at 265. The restaurant was sued for negligence, and it filed a declaratory judgment against its insurance company, asserting that each injury was a separate "occurrence" under the policy language. Id. The case was removed to a federal district court. Id. The case reached the supreme court on a question from the federal court, and the supreme court held that when the insured is being sued for negligence in failing to provide security, the "occurrence" under the policy is the act that caused the damages, not the underlying negligence by the insured. Id. at 271.

Koikos , however, is inapplicable for two reasons. First, it is based upon the definition of "occurrence" under an insurance policy, a definition which is not found in the statute. Second, and most importantly, insurance policies are to be construed liberally in favor of the insured, which Koikos relied on in reaching its construction. Any ambiguities must be construed against the drafter of the policy. This is exactly opposite to the sovereign immunity waivers, which must be strictly construed with any ambiguities being resolved against waiver. See Spangler . Therefore, the Koikos analysis does not apply to section 768.28(5).

We acknowledge that if we were to construe the statute liberally in favor of a waiver, the trial court's construction is reasonable. But we must construe it strictly, and the statute does not clearly and unambiguously waive sovereign immunity to the extent that the shooting of each child constitutes a separate occurrence. To construe it in such a manner would be contrary to the policies supporting sovereign immunity.

Although appellees' recoveries through a judgment may be substantially limited by section 768.28(5), they are not without remedy. The legislature may approve a claims bill authorizing further compensation. While this is a cumbersome process, the legislature has deemed it necessary to assure the protection of the state's revenues to the good of the entire population.

If the process is objectionable to the public in situations such as this, where multiple parties make claims against a state actor for a single tort, then the remedy is to petition the legislature to change the law.

For the foregoing reasons, we hold that section 768.28(5) waives sovereign immunity up to $200,000 for all claims or judgments arising out of the claims of negligent supervision by DCF brought in this case.

Reversed and remanded for entry of a declaratory judgment consistent with this opinion.

May and Forst, JJ., concur.

      Prior to 1981, the limit was $50,000 per person and $100,000 for all claims arising out of the same incident or occurrence. The limit was increased to $100,000 per person and $200,000 for all claims arising out of the same incident or occurrence in 1981. See Ch. 81-317, § 1, Laws of Fla. After 2010, the legislature amended the statute again, and the limit was increased to $200,000 per person and $300,000 for all claims arising out of the same incident or occurrence. See Ch. 10-26, § 1, Laws of Fla.

      We have jurisdiction because the declaratory judgment terminates the case as to a party (DFS). See Fla. R. App. P. 9.110(k). The order also ruled on entitlement to sovereign immunity as a matter of law. Thus, it is appealable pursuant to Florida Rule Appellate Procedure 9.130(a)(3)(C)(xi).


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    BROWN & BROWN, INC., Appellant, v. James T. GELSOMINO and Ace American Insurance Company, Appellees.
    No. 4D17-3737
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Lawrence P. Ingram, Melissa B. Murphy, and Christian M. Gunneson of Freeborn & Peters LLP, Tampa, for appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Geoff S. Stahl of Liggio Benrubi, West Palm Beach, for appellee James T. Gelsomino.
   Levine, J.

The legislature exercised its discretion by passing, over a period of years, several laws narrowing and eventually eliminating the doctrine of joint and several liability. Initially, joint and several liability was the standard under the common law until the legislature in 1986 began to redefine the statute, eventually prospectively eliminating it in 2006. The legislature then passed another law in 2011 which, according to appellant, made the elimination of joint and several liability retroactive.

Appellee James T. Gelsomino was injured in 2002 and the trial and verdict was in 2014. The trial court applied joint and several liability. Therefore, the question remains: which version of section 768.81, applies-the statute passed and effective in 2002, 2006, or 2011?

We find that when the legislature passed the legislation in 2011, it included language that made the abolition of joint and several liability retroactive. This makes the 2011 version the operative statute when this case went to trial. Consequently, we find the trial court erred in applying joint and several liability inasmuch as the legislature abolished it retroactively in 2011. Thus, we reverse and remand.

Appellee worked for his brother's company, T & T Contracting. That company was hired to do work in the Bahamas, and appellee and his brother incorporated T & T Services in the Bahamas to do that work. Appellee and his brother sought an insurance policy for T & T Services, but the policy mistakenly named T & T Contracting, the Florida corporation, as the insured instead of T & T Services, the Bahamian corporation. Appellant was the insurance broker and Ace American Insurance Company was the insurer.

In 2002, while in the Bahamas working for T & T Services, appellee was injured in a car accident. When appellee sought coverage for the accident, the insurer denied the claim because the policy did not cover T & T Services, only T & T Contracting. Appellee filed a negligence claim against appellant and Ace American Insurance Company in 2004. Appellee settled his claim against Ace in 2006 and obtained a consent judgment against T & T Services in 2008. The case proceeded to a jury trial in 2014, where the jury found for appellee and apportioned fault as follows:

• 35% to appellant
• 5% to appellee
• 25% to appellee's brother
• 10% to T & T Services
• 25% to T & T Contracting

Appellee then filed a motion for entry of final judgment seeking the entire monetary award (minus 5% apportioned to appellee's own share of fault) from appellant, alleging that appellant could be held jointly and severally liable. Appellee based his motion on appellant being held jointly and severally liable under the 2002 version of the statute.

The trial court, however, set aside the jury verdict and entered final judgment in favor of appellant. Appellee then appealed and this court reversed and reinstated the verdict. Gelsomino v. Ace Am. Ins. Co. , 207 So.3d 288, 293 (Fla. 4th DCA 2016).

The trial court eventually determined that appellant was responsible for paying the full monetary award, less the 5% determined to be the fault of appellee and a $17,500 set-off from the T & T Services settlement. Appellant appeals from this order.

We review de novo whether a statute applies retroactively or prospectively. Bionetics Corp. v. Kenniasty , 69 So.3d 943, 947 (Fla. 2011).

A statute operates retroactively when it "attaches new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods. , 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Whether a statute may be applied retroactively is subject to a two-step test. "First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles."

Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n , 67 So.3d 187, 195 (Fla. 2011) (citation omitted). Thus, in this case we must determine if the legislature intended the statute, enacted in 2011, to apply retroactively. If it did, we then consider whether the retroactive application of the 2011 statute would violate the United States or Florida Constitutions.

In order to answer these questions we need to examine the recent statutory history of joint and several liability. Joint and several liability was the standard under the common law. See Basel v. McFarland & Sons, Inc. , 815 So.2d 687, 690-91 (Fla. 5th DCA 2002). The Florida legislature began to limit the doctrine in 1986 until it completely eliminated joint and several liability in 2006. Id. at 691.

In 2006, the legislature amended the comparative fault statute to provide that "[i]n 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 liability." § 768.81(3), Fla. Stat. (2006). This amendment clearly abrogated the doctrine of joint and several liability, at least prospectively. Id. ; see also Port Charlotte HMA, LLC v. Suarez , 210 So.3d 187, 190-91 (Fla. 2d DCA 2016).

However, nowhere in the text of the 2006 statute does it provide for retroactive application. A law is presumed to apply prospectively, unless there is a clear legislative intent that the law be applied retroactively. Walker & LaBerge, Inc. v. Halligan , 344 So.2d 239, 241 (Fla. 1977). Further, the 2006 enacting legislation notes that "[t]his act shall take effect upon becoming a law and shall apply to causes of action that accrue on or after the effective date," April 26, 2006. Ch. 2006-6, § 2, Laws of Fla. When considering whether the law has retroactive application, the legislature's inclusion of an effective date should be considered as evidence rebutting the retroactive application of that statute. Devon Neighborhood Ass'n , 67 So.3d at 196.

In 2011, the legislature amended section 768.81 to include new statutory language that related in part to products liability, and to legislatively overrule D'Amario v. Ford Motor Co. , 806 So.2d 424 (Fla. 2001). The 2011 legislative act added two provisions that stated the statute should be applied retroactively:

Section 2. The Legislature intends that this act be applied retroactively and overrule D'Amario v. Ford Motor Co ., 806 So.2d 424 (Fla. 2001), which adopted what the Florida Supreme Court acknowledged to be a minority view. That minority view fails to apportion fault for damages consistent with Florida's statutory comparative fault system, codified in s. 768.81, Florida Statutes, and leads to inequitable and unfair results, regardless of the damages sought in the litigation. The Legislature finds that, in a products liability action as defined in this act, fault should be apportioned among all responsible persons.
Section 3. This act is remedial in nature and applies retroactively. The Legislature finds that the retroactive application of this act does not unconstitutionally impair vested rights. Rather, the law affects only remedies, permitting recovery against all tortfeasors while lessening the ultimate liability of each consistent with this state's statutory comparative fault system, codified in s. 768.81, Florida Statutes. In all cases, the Legislature intends that this act be construed consistent with the due process provisions of the State Constitution and the Constitution of the United States.

Ch. 2011-215, §§ 2-3, Laws of Fla.

In this case, it is uncontested that at the time of appellee's injury and the subsequent complaint, the statute in force was the 1999 version of section 768.81. At that time, the statute from 1999 would have allowed appellee to seek 95% of his damages from appellant. So if appellee and the trial court are correct, then appellant would be responsible for 95% of the damages based on the 1999 statute. If appellant is correct and the 2011 statute is the operative statute, then appellant is responsible for only its 35% share of the damages.

To determine if the 2011 statute is the operative statute rather than the 1999 statute which was in effect at the time of the injury and complaint, we have to examine the text of the 2011 statute as well as related session laws reflecting its enactment. See § 11.242(5)(a), Fla. Stat. (requiring amendments passed by legislature in session laws to be incorporated into text of subject statute); cf. Peck v. Palm Beach Cty. Bd. of Cty. Comm'rs , 442 So.2d 1050, 1052 (Fla. 1st DCA 1983) (stating that an enrolled act is generally the best evidence of the law in a period between enactment and official adoption of statutes).

The enacting legislation for the 2011 amendment to section 768.81 stated that the act was retroactive and the entire amended statute should be applied retroactively. Both sections 2 and 3 of the enacting legislation of the 2011 amendment clearly reference the retroactive application of the statute. Section 2, where the legislature explicitly overrules D'Amario , states that the "Legislature intends that this act be applied retroactively." Then in section 3, the enacting legislation states that "[t]his act is remedial in nature and applies retroactively." Once again, the legislature directly and plainly states in both sections that the statute is to be applied retroactively. We presume that the legislature added the instructions to apply the enacting legislation retroactively to both sections for a reason.

This court is required to give effect to every part of a statute if possible and avoid construing any portion of a statute as mere surplusage. Heart of Adoptions, Inc. v. J.A. , 963 So.2d 189, 198 (Fla. 2007). This basic rule of statutory construction tells us that the legislature does not enact useless provisions and that we therefore must avoid reading any provisions included in a statute as meaningless. See id. We apply the canon against surplusage here in giving section 3 of the enacting legislation meaning apart from section 2.

Clearly, there would be no need to include retroactivity language in both section 2 and section 3 if both sections dealt only with products liability. Since section 2 already references products liability and the overruling of D'Amario , section 3 must have independent significance. The plain language of section 3, which states that "[t]his act is remedial in nature and applies retroactively," informs our decision. (emphasis added). Section 3 clearly applies to the entire statute, section 768.81.

We are also persuaded by Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294 (Fla. 2017). In Schoeff , the Florida Supreme Court was asked to determine whether the comparative fault statute governed in an Engle progeny case where the jury found for the plaintiff on an intentional tort claim. The supreme court held in Schoeff that the operative version for a cause of action that accrued in 1994 was the 2011 version of the comparative fault statute. The supreme court specifically relied on the fact that the 2011 statute's enacting language stated that the statute was to be applied retroactively. Id. at 301. The court found the 2011 statute to be "remedial in nature" and to apply "retroactively" as to the entire statute and not just to the 2011 substantive amendments like those relating to products liability cases. Id.

Once we determine that a statute is to be applied retroactively, we then must determine if the retroactive application of the statute violates any constitutional rights, including vested rights. "Even when the Legislature does expressly state that a statute is to have retroactive application, [courts have] refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties." State Farm Mut. Auto. Ins. Co. v. Laforet , 658 So.2d 55, 61 (Fla. 1995). "Whether legislation may affect a vested right to a particular cause of action depends on the stage the right has attained when the legislation is enacted." Williams v. Am. Optical Corp. , 985 So.2d 23, 27 (Fla. 4th DCA 2008). Appellee contends that he has a right to the joint and several liability that vested at the time of his injury in 2002. We disagree.

Initially, it is important to note that the application of joint and several liability does not affect the amount of damages, but rather how those damages are apportioned among the potentially liable parties. Cf. Smith v. Dep't of Ins. , 507 So.2d 1080, 1091 (Fla. 1987) (finding that a plaintiff has no right to recover for injuries beyond those caused by a particular defendant). This type of right is different than a party's entitlement to damages, which is a vested substantive right. Miles v. Weingrad , 164 So.3d 1208, 1212-13 (Fla. 2015) ; cf. Raphael v. Shecter , 18 So.3d 1152, 1157 (Fla. 4th DCA 2009) (recognizing a money judgment as representing the vested right to recover damages).

Meanwhile, other states have addressed whether a plaintiff has a vested right in the continuation of a damages-allocation scheme. In Baldwin v. City of Waterloo , 372 N.W.2d 486, 492 (Iowa 1985), the Iowa Supreme Court held that a plaintiff has no vested right "in the continuation of the principle of unlimited joint and several liability," indicating that such an expectation is not fixed or established as a vested right must be. Characterizing a joint and several liability statute as merely procedural, appeals courts in Arizona have held the same. See Neil v. Kavena , 176 Ariz. 93, 859 P.2d 203, 208 (Ariz. Ct. App. 1993) (citing Church v. Rawson Drug & Sundry Co. , 173 Ariz. 342, 842 P.2d 1355, 1359 (Ariz. Ct. App. 1992) ).

Appellee contends that his due process rights would be violated by the retroactive application of the 2011 statute because he settled with other defendants under the expectation that joint and several liability would continue to exist throughout the duration of his case. However, his expectation that the apportionment scheme would continue is not constitutionally protected. See Sowell v. Panama Commons L.P. , 192 So.3d 27, 31 (Fla. 2016) ("[A] statute does not operate unconstitutionally simply if it upsets expectations based in prior law"); contra Basel , 815 So.2d at 694 (characterizing right to recover damages from a particular defendant as "relat[ing] to rights and duties" and thus as a substantive right).

We find that a plaintiff's expectation, at the time of accrual, to collect an undetermined amount of damages from a defendant under the theory of joint and several liability was not "an immediate, fixed right of present or future enjoyment," and was therefore not a vested substantive right. Sowell , 192 So.3d at 30 (citation omitted). Appellee had only an expectation with the regard to the damage-allocation model in place at the time of accrual, not a protected right. Thus, we find that, in this case, there is no constitutional impediment to the retroactive application of the 2011 statute.

In summary, we find that the trial court erred by not following the operative law as passed by the legislature. It is totally within the domain of the legislature to pass laws and exercise its discretion to make laws prospective or retroactive as it sees fit. We are obliged to follow the law as formulated by the legislature unless it infringes on vested rights as protected by the United States or Florida Constitution. The retroactive application of the law did not violate any vested rights in this case. As such, we reverse and remand for the trial court to enforce the bar to joint and several liability as required by the operative law.

Reversed and remanded with instructions.

May and Klingensmith, JJ., concur.


author: Klingensmith, J.

text:
    CHARTERHOUSE ASSOCIATES, LTD., INC., as Trustee of the Kenneth and Gail Browne Trust U/D/T DTD June 7, 2010, Kenneth Browne, and Gail Browne, Appellants, v. VALENCIA RESERVE HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D17-2640
    District Court of Appeal of Florida, Fourth District.
    [November 28, 2018]
    Scott Edwards of Scott J. Edwards, P.A., Boca Raton, and Christopher A. Sadjera of Sajdera Kim, PLLC, Boca Raton, for appellants.
    Ashley Landrum of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, and Allen E. Rossin of Rossin & Burr, PLLC, West Palm Beach, for appellee.
   Klingensmith, J.

Is a personal trainer in a fitness center like a "call girl" sitting at a clubhouse bar? This was the comparison drawn by the trial court when granting partial summary judgment in favor of a homeowner's association against one of its property owners regarding the issue of whether the personal trainer was an invitee or licensee. For the reasons set forth below, neither the analogy nor the analysis used by the trial court was properly applied to the facts presented here. Therefore, we reverse.

Charterhouse Associates, Ltd., Inc., owns property within the Valencia Reserve community. It authorized Kenneth and Gail Browne to reside at the property and assume the ownership rights of Charterhouse, which included membership within the Valencia Reserve Homeowner's Association ("the Association"). The Valencia Reserve community includes amenities such as a fitness center, which is the Association's property. According to the Association's Declaration, the center is available for the use of owners, family members, guests, invitees, and tenants.

On several occasions, the Brownes paid and authorized their friend, a personal trainer, to accompany them to the fitness center. He was only present when invited by the Brownes. Sometime thereafter, the Association entered into a contract with a third-party vendor, Total Health Systems ("THS"), to be the exclusive provider of fitness services in the Association's fitness center.

The relevant provisions of the Association's Declaration are as follows:

PRIVATE USE: For the term of this Declaration, the Association Property (except otherwise specifically provided in this Declaration, e.g., the Rural Parkway) is not for the use and enjoyment of the public, but is expressly reserved for the private use and enjoyment of the Declarant, the Association, and the Owners, and their family members, guests, invitees and tenants, but only in accordance with this Declaration .
....
OWNERS' EASEMENTS OF ENJOYMENT: Every Owner and family member, guest, tenant, agent, or invitee of an Owner shall, except as may otherwise be provided in this Declaration, have a permanent and perpetual, nonexclusive easement for ingress and egress over, enjoyment in, and use of Association Property within the Property (except as otherwise may be provided elsewhere in this Declaration), in common with all other Owners, their family members, guests, tenants, agents, and invitees, which easement shall be appurtenant to, and shall pass with deed and/or title to, each Owner's Lot. This right shall be subject to the following conditions and limitations:
....
C. The right of the association to establish, amend and/or abolish from time to time, uniform rules and regulations pertaining to the use of the Association Property.

(Emphases added). Because of the contract with THS, the Association enacted a new rule prohibiting private trainers, instructors, physical therapists, and massage therapists from working in the fitness center.

Appellants filed an action seeking declaratory relief, injunctive relief, and damages for breach of their rights under the Association's Declaration. They alleged that the Association exceeded its powers granted by the Declaration by excluding the Brownes' personal trainer from working with them at the fitness center via its newly enacted rule. The Association moved for partial summary judgment, and argued that the trainer was a licensee who could be excluded from the Association's property based on the new rule. Appellants opposed the motion, and asserted that their trainer was an invitee permitted to enter the fitness center according to the plain wording of the Declaration.

At the summary judgment hearing, the trial court found in favor of the Association:

If [the personal trainer] is getting a dime for training [the Brownes], at any time, which you have basically said he is, then he is carrying on a business, and you're going to the Fourth DCA if you have a problem with my ruling.
....
As soon as [the personal trainer] starts getting paid for his services is the difference between the girlfriend sitting at the clubhouse bar and the call girl. One is getting paid, they're a licensee; the other one is an invitee. Invitees are welcome, businesses are not.

Consequently, the trial court entered final partial summary judgment for the Association, and this appeal followed.

The standard of review regarding a trial court's ruling on a motion for summary judgment is de novo . See Frost v. Regions Bank , 15 So.3d 905, 906 (Fla. 4th DCA 2009). "When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party." Weinstein Design Grp., Inc. v. Fielder , 884 So.2d 990, 997 (Fla. 4th DCA 2004) (quoting City of Lauderhill v. Rhames , 864 So.2d 432, 434 n.1 (Fla. 4th DCA 2003) ). "Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Frost , 15 So.3d at 906. "[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact." Albelo v. S. Bell , 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). "When a defendant moves for summary judgment, the court is not called upon to determine whether the plaintiff can actually prove his cause of action. Rather, the court's function is solely to determine whether the record conclusively shows that the claim cannot be proved as a matter of law." Jennaro v. Bonita-Fort Myers Corp ., 752 So.2d 82, 83 (Fla. 2d DCA 2000).

Personal Trainer's Status as an Invitee

Under the common law, a visitor who enters the private property of another falls within one of three classifications: a licensee, an invitee, or a trespasser. See Post v. Lunney , 261 So.2d 146, 147 (Fla. 1972) ; see also Nolan v. Roberts , 383 So.2d 945, 946 (Fla. 4th DCA 1980) ("In the leading Florida case of Wood v. Camp , 284 So.2d 691 (Fla. 1973), the Supreme Court divided plaintiffs in cases of this nature into three categories: invitees, uninvited licensees and trespassers.").

To determine whether one has the status of an invitee, Florida courts originally applied the "economic benefit test":

[T]he general test is whether the injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.

McNulty v. Hurley , 97 So.2d 185, 188 (Fla. 1957) (emphasis in original) (quoting Cowart v. Meeks , 131 Tex. 36, 111 S.W.2d 1105, 1107 (Tex. Comm'n App. 1938) ).

Over time, courts began to use the "invitation test" to achieve more uniform results. See Post , 261 So.2d at 148-49. In Post , the Florida Supreme Court receded from McNulty , and stated, "We agree with the Fourth District Court of Appeal that the Second Restatement of Torts invitation test, which includes the public invitee as well as the business invitee is preferable to the exclusive use of the mutual benefit test ...." Post , 261 So.2d at 148 ; see also Wood , 284 So.2d at 693 (noting that the terms "mutual benefit test" and "economic benefit test" are interchangeable); Lunney v. Post , 248 So.2d 504, 506 (Fla. 4th DCA 1971) ("Florida, too, has recognized the value of the invitation test.").

According to the Restatement's invitation test, "[a]n invitee is either a public invitee or a business visitor." Restatement (Second) of Torts § 332 (1965). "A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." Id. "A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Id.

In words recently echoed by our court:

[T]he invitation test bases "invitation" on the fact that the occupier by his arrangement of the premises or other conduct has led the entrant to believe that the premises were intended to be used by visitors for the purpose which this entrant was pursuing, and that such use was not only acquiesced in by the owner or possessor, but that it was in accordance with the intention and design with which the way or place was adopted or prepared.

Arp v. Waterway E. Ass'n, Inc. , 217 So.3d 117, 120 (Fla. 4th DCA 2017) (quoting Smith v. Montgomery Ward & Co. , 232 So.2d 195, 198 (Fla. 4th DCA 1970) ). Invitees also include anyone present on a premises via express or reasonably implied invitation of the property owners. Wood , 284 So.2d at 695.

Nevertheless, the Florida Supreme Court has maintained its limited definition of licensees in the wake of Wood , Post , and Smith :

We thereby eliminate the distinction between commercial (business or public) visitors and social guests upon the premises .... In doing so, we continue the category of licensees who are [u]ninvited, that is, persons who choose to come upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances.

Wood , 284 So.2d at 695 (alteration and emphasis added). "An uninvited licensee is neither an invitee nor a trespasser, but rather, a legal status in between whose presence is neither sought nor forbidden, but merely permitted or tolerated by the landowner." Arp , 217 So.3d at 121 (quoting Bishop v. First Nat'l Bank of Fla. , 609 So.2d 722, 725 (Fla. 5th DCA 1992) ); see, e.g., Arp , 217 So.3d at 119 (holding that an individual crossing a shopping center's property late at night as a shortcut when the center's businesses were closed was nothing more than an uninvited licensee); Porto v. Carlyle Plaza , 971 So.2d 940, 941 (Fla. 3d DCA 2007) (finding that an individual walking a dog across private property and allowing it to relieve itself classifies such individual as an uninvited licensee); Iber v. R.P.A. Int'l Corp ., 585 So.2d 367, 368 (Fla. 3d DCA 1991) (concluding that an individual entering an office building to use building's private telephone to call a taxi was an uninvited licensee); Barrio v. City of Miami Beach , 698 So.2d 1241, 1242 (Fla. 3d DCA 1991) (holding that an individual walking on a public beach after midnight when the beach was closed to the public was an uninvited licensee).

The Association's Declaration gives its property owners an easement for ingress and egress, enjoyment in, and use of the fitness center, and specifically authorizes their guests and invitees to use the premises. When a homeowner exercises in the Association's fitness center and invites a third party along, whether for companionship or personalized guidance, they are using the property for a recreational purpose. This remains true regardless of whether the guest is a friend or a business invitee, because the activity they are engaging in is virtually the same. The evidence established that the Brownes expressly invited the trainer to accompany them into the fitness center, he was only on the premises with the Brownes, and did not attempt to gain business from other residents. The trainer never entered or remained in the fitness center solely for his own convenience at any time without an express or implied invitation from the Brownes. See Arp , 217 So.3d at 120 ; Wood , 284 So.2d at 695 ; Post , 261 So.2d at 148-49 ; Smith , 232 So.2d at 198.

The trial court erred by using the "economic benefit" test when it concluded that the Brownes' personal trainer was a licensee. The trial court incorrectly focused on the fact that the Brownes' trainer was paid for his services. Instead, the status of the personal trainer in this scenario is more akin to the invitee "girlfriend" at a clubhouse (using the trial court's analogy), rather than the uninvited licensee "call girl" soliciting her services to provide a "girlfriend experience" for paying customers.

As this court stated in Beachwood Villas Condo. v. Poor , 448 So.2d 1143, 1144 (Fla. 4th DCA 1984) :

Hidden Harbour Estates, Inc. v. Basso , 393 So.2d 637 (Fla. 4th DCA 1981), suggested that condominium rules falling under the generic heading of use restrictions emanate from one of two sources: the declaration of condominium or the board of directors. Those contained in the declaration "are clothed with a very strong presumption of validity ....," id. at 639, because the law requires their full disclosure prior to the time of purchase and, thus, the purchaser has adequate notice. See Section 718.503(2)(a), Florida Statutes (1983). Board rules, on the other hand, are treated differently. When a court is called upon to assess the validity of a rule enacted by a board of directors, it first determines whether the board acted within its scope of authority and, second, whether the rule reflects reasoned or arbitrary and capricious decision making.

(Emphasis added).

In Beachwood , this court was tasked with determining the validity of two rules enacted by a condominium board of directors. 448 So.2d at 1143. As in this case, there was no suggestion that the rule under consideration violated the Condominium Act, Section 718, Florida Statutes (1983), or was otherwise unreasonable, only the scope of the board's authority was in question:

A declaration of condominium is "the condominium's 'constitution'." Schmidt v. Sherrill , 442 So.2d 963, 965 (Fla. 4th DCA 1984). Often, it contains broad statements of general policy with due notice that the board of directors is empowered to implement these policies and address day-to-day problems in the condominium's operation through the rulemaking process. It would be impossible to list all restrictive uses in a declaration of condominium. Parking regulations, limitations on the use of the swimming pool, tennis court and card room-the list is endless and subject to constant modification. Therefore, we have formulated the appropriate test in this fashion: provided that a board-enacted rule does not contravene either an express provision of the declaration or a right reasonably inferable therefrom, it will be found valid, within the scope of the board's authority. This test, in our view, is fair and functional; it safeguards the rights of unit owners and preserves unfettered the concept of delegated board management.

Beachwood , 448 So.2d at 1145 (emphasis added).

The Association claims they enacted the personal trainer exclusion rule pursuant to the Declaration's provision authorizing the Association to "provide owners with service [and] amenities ... which will enhance the quality of life at Valencia Reserve." Regardless of the rule's intent, it ultimately fails by directly conflicting with the Declaration's provision granting a property owner's invitees access to the fitness center. See Beachwood , 448 So.2d at 1145. The rule contravenes an express provision of the Declaration, therefore, the Association exceeded the scope of its authority by enacting the subject rule. Accordingly, we need not discuss the reasonableness of the rule. See id. at 1144.

In sum, the trial court's errors arose from its failure to apply the proper test when designating the personal trainer as a licensee. That error was compounded when the trial court erroneously upheld the validity of the rule as applied, and failed to consider whether the Association had the authority to enact the rule at all. Therefore, we reverse the partial summary judgment entered in favor of the Association, and remand for further proceedings consistent with this opinion.

Reversed and remanded .

Taylor and Kuntz, JJ., concur.

      Charterhouse filed the initial notice of appeal as trustee of the Kenneth and Gail Browne Trust U/D/T DTD June 07, 2010. Collectively, Charterhouse and the Brownes will be referred to as "appellants."

      Notably, this rule did not prohibit private swimming instructors from providing private instruction in the Association's swimming pool.

      The trial court action includes other disputes between the parties; however, only the claims related to the fitness center were at issue in the Association's Motion for Partial Summary Judgment.

      In this case, Charterhouse, itself, or the Brownes via authorization from Charterhouse, as noted above.

      This court cannot ignore the fact that while the trainer's presence certainly benefitted the homeowner, it also indirectly benefitted the Association by facilitating the use of the exercise room by the resident, while also enabling the safe and proper use of the equipment.


author: Per Curiam.

text:
    Charles BARONE, Appellant, v. PALM BEACH HOTEL CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D17-3861
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Brian Buckstein of Gonzalez, Shenkman & Buckstein, P.L., Wellington, for appellant.
    Lillian M. Farinas-Sabogal and Jamie Dokovna of Becker & Poliakoff, P.A., Miami, for appellee.
   Per Curiam.

We reverse the final summary judgment entered in favor of appellant's former employer, the Palm Beach Hotel Condominium Association, on appellant's retaliation claim under Florida's Private Sector Whistleblower Act, section 448.101, et seq. , Florida Statutes (2015). Even assuming, without deciding, that the "manager rule" should be applied to whistleblower retaliation claims under section 448.102, we find that there is a genuine issue of material fact as to whether appellant stepped outside his role as manager and engaged in protected oppositional conduct.

Furthermore, we find that there are genuine issues of material fact on the issues of whether appellant had a good faith, objectively reasonable belief that the Association engaged in unlawful activity, and whether appellant's objections were the "but for" cause of the non-renewal of his employment agreement, i.e., the Association's proffered reasons for the adverse employment action were pretextual. Accordingly, we reverse and remand for further proceedings.

Reversed and Remanded.

Taylor, Levine and Forst, JJ., concur.

      "In essence, the 'manager rule' holds that a management employee that, in the course of her normal job performance, disagrees with or opposes the actions of an employer does not engage in 'protected activity.' " Brush v. Sears Holdings Corp. , 466 Fed. Appx. 781, 787 (11th Cir. 2012). Florida courts apply Title VII analysis to retaliatory discharge claims under this state's whistleblower statutes. Rustowicz v. N. Broward Hosp. Dist. , 174 So.3d 414, 419 (Fla. 4th DCA 2015). However, federal courts are split as to whether the "manager rule" applies to retaliation claims under Title VII. Compare Brush , 466 Fed. Appx. at 787 (applying the "manager rule" to a retaliation claim under Title VII), with Littlejohn v. City of New York , 795 F.3d 297, 317 n.16 (2d Cir. 2015) ("The manager rule's focus on an employee's job duties, rather than the oppositional nature of the employee's complaints or criticisms, is inapposite in the context of Title VII retaliation claims.").

      Under our court's interpretation of the Whistleblower Act, a plaintiff objecting to the employer's conduct need only have "a good faith, objectively reasonable belief" that the employer's activity was illegal. Aery v. Wallace Lincoln-Mercury, LLC , 118 So.3d 904, 916 (Fla. 4th DCA 2013). By contrast, the Second District has disagreed with Aery in dicta and interpreted the Whistleblower Act as requiring a plaintiff to prove "that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law." Kearns v. Farmer Acquisition Co. , 157 So.3d 458, 465 (Fla. 2d DCA 2015) (emphasis added). In any event, the Association has not asked us to reconsider Aery in this appeal, and it remains the law in this district.


text:
    Saul PRECIADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1527
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Thomas A. Kennedy of Thomas A. Kennedy, P.A., Vero Beach, for appellant.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Hernandez v. State , 124 So.3d 757 (Fla. 2012).

Warner, Taylor and Conner, JJ., concur.


author: Artau, Edward L., Associate Judge. Forst, J., concurring in part and dissenting in part.

text:
    PHILIP MORRIS USA INC. and R.J. Reynolds Tobacco Company, Appellants, v. Stanley MARTIN, as Personal Representative of the Estate of Carole Martin, Appellee.
    No. 4D17-574
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    William L. Durham II and Val Leppart of King & Spalding LLP, Atlanta, GA, for appellant R.J. Reynolds Tobacco Co.
    Scott A. Shesin and Michael Rayfield of Mayer Brown LLP, New York, NY, and Joseph H. Lang, Jr. of Carlton Fields Jorden Burt, P.A., Tampa, for appellant Philip Morris USA Inc.
    Richard B. Rosenthal of Richard B. Rosenthal, P.A., Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for appellee.
   Artau, Edward L., Associate Judge.

In this Engle wrongful death case, the defendants, Philip Morris and R.J. Reynolds, appeal a final judgment awarding the plaintiff just under $3.7 million in compensatory damages (the $5.4 million assessed by the jury, less a 32% comparative fault reduction), and $650,000 in punitive damages. The plaintiff cross-appeals the trial court's reduction of the compensatory damages award based on the decedent's comparative fault.

On the main appeal, we hold that, because the specific tobacco-related disease that caused the Engle class member's death and gave rise to this claim manifested after October 1, 1999, the trial court erred by declining to apply the post-1999 version of section 768.73, Florida Statutes, which bars successive awards of punitive damages under the circumstances here. We therefore reverse the trial court's ruling on that issue, but affirm on all other issues raised in the main appeal.

On the cross-appeal, we reverse and remand for reinstatement of the entire amount of compensatory damages found by the jury.

Factual Background

The plaintiff and his late wife, Carole Martin, moved to Florida in 1992, but split their time between New York and Florida.

Mrs. Martin suffered a smoking-related heart attack in 1995. She later developed lung cancer in 2003, and ultimately died of the cancer in 2004.

In 2007, the plaintiff brought this Engle wrongful death lawsuit against the defendants, asserting claims of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. The trial court granted the plaintiff leave to amend his complaint to add claims for punitive damages.

Before trial, the defendants sought to invoke the current version of section 768.73(2)(a), Florida Statutes, which generally bars successive punitive damages awards against a defendant "in any action alleging harm from the same act or single course of conduct." The defendants argued that section 768.73(2)(a) barred a punitive damages award because: (1) the plaintiff's claim arose after the October 1, 1999 effective date of the statute; and (2) each defendant had already paid over $150 million in punitive damages in tobacco lawsuits based on the same conduct. The trial court deferred ruling on this issue until after trial.

At the conclusion of the trial, the jury found that Mrs. Martin was "a legal citizen and resident of Florida on or before November 21, 1996," found in favor of the plaintiff on each claim, determined that Mrs. Martin was 32% at fault, found that the plaintiff had suffered approximately $5.4 million in compensatory damages, assessed $450,000 in punitive damages against Philip Morris, and assessed $200,000 in punitive damages against R.J. Reynolds.

In post-trial motions, the defendants argued that the plaintiff's claim for punitive damages was barred by the current version of section 768.73(2)(a). The trial court denied the defendants' post-trial motions.

The trial court entered final judgment in favor of the plaintiff, but reduced the compensatory damages award to just under $3.7 million to account for the jury's comparative fault determination. This appeal and cross-appeal ensued.

Main Appeal

We first address the defendants' argument that the trial court erred by refusing to apply the post-1999 version of section 768.73. The defendants contend that the post-1999 version of the statute applies because the plaintiff's cause of action arose after 1999. Specifically, the defendants contend that the plaintiff's wrongful death cause of action arose when Mrs. Martin died in 2004. Alternatively, the defendants contend that even if the plaintiff's cause of action arose when Mrs. Martin developed lung cancer in 2003, the post-1999 statute would still apply.

The plaintiff argues in response that the post-1999 statute does not apply here, because (1) the wrongful death action relates back to the 1994 Engle class action complaint, and (2) the date of the applicable statutory law necessarily had to be before the November 1996 Engle class membership cut-off date. Additionally, the plaintiff argues that the post-1999 statute's limitation on successive punitive damages awards is unconstitutional.

A trial court's ruling on an issue of statutory interpretation is subject to de novo review. Headley v. City of Miami , 215 So.3d 1, 5 (Fla. 2017).

Section 768.73(2)(a), Florida Statutes, as amended in 1999, provides that "punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant ... in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages." § 768.73(2)(a), Fla. Stat. (1999).

The amended version of section 768.73 applies "to all causes of action arising after the effective date of [the] act," which was October 1, 1999. § 768.73(5), Fla. Stat. (1999) ; Ch. 99-225, § 23, Laws of Fla. Before the 1999 amendment, section 768.73 had no such bar on successive awards of punitive damages.

The question for this court, therefore, is whether the plaintiff's cause of action arose after October 1, 1999.

In civil cases, the applicable version of a statute is ordinarily the one "in effect when the cause of action arose." D'Angelo v. Fitzmaurice , 863 So.2d 311, 314 n.9 (Fla. 2003).

This court has previously concluded that "Florida law does not distinguish between when a cause of action accrues and when a cause of action arises." See Lumbermens Mut. Cas. Co. v. August , 509 So.2d 352, 353 (Fla. 4th DCA 1987), quashed , 530 So.2d 293 (Fla. 1988). Moreover, Black's Law Dictionary defines the term "accrue" as meaning "[t]o come into existence as an enforceable claim or right; to arise." Accrue , BLACK'S LAW DICTIONARY (10th ed. 2014). We quote these sources to emphasize that the terms "accrue" and "arise" are synonymous with respect to when a cause of action comes into existence, and we will be using those terms interchangeably in this opinion.

As a general proposition, "[a] cause of action for wrongful death accrues on the date of [the] decedent's death." Nationwide Mut. Fire Ins. Co. v. MacDonald , 645 So.2d 1057, 1058 (Fla. 4th DCA 1994). However, in Engle wrongful death cases, this court has looked to the time when the injury causing the smoker's death manifested in determining which version of section 768.73 applied. R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487, 492 (Fla. 4th DCA 2015) ("Plaintiff's cause of action accrued in 1994, when Mr. Schoeff was diagnosed with lung cancer. As such, the 1994 version of the statute governs.") (citation omitted), quashed on other grounds , 232 So.3d 294 (Fla. 2017) ; R.J. Reynolds Tobacco Co. v. Buonomo , 138 So.3d 1049, 1052 (Fla. 4th DCA 2013) (holding that the 1995 version of section 768.73 applied in an Engle wrongful death case where the smoker began suffering from COPD in 1995, which caused his death in 2008: "It is ... the 1995 version of the statute that governs the instant case-a fact the parties do not dispute."), quashed on other grounds , Nos. SC14-81 & SC14-83, 41 Fla. L. Weekly S113, 2016 WL 374082 (Fla. Jan. 26, 2016).

Similarly, in R.J. Reynolds Tobacco Co. v. Allen , 228 So.3d 684, 689 (Fla. 1st DCA 2017), the First District reasoned that, although a cause of action for wrongful death usually accrues upon the decedent's death, "Engle -progeny cases are different." The Allen court held that the pre-1999 version of section 768.73 applied to an Engle progeny personal injury suit that converted to a wrongful death action after the smoker died. Id. at 689-91.

In Allen , the smoker's COPD manifested before the November 21, 1996 Engle class cut-off date, the smoker's personal injury suit was commenced in 2007, and the smoker's suit was converted into a wrongful death action after she died in 2009. Id. at 689-90. In rejecting the defendants' argument that the post-1999 version of the statute applied, the First District reasoned that: "[a]fter her causes of action accrued , Mrs. Allen had a substantive right to seek punitive damages under the then-existing standard. Application of the post-1999 amendments to the punitive damages statute to Appellee's derivative claim would impair those substantive rights." Id. at 690 (emphasis added) (citation omitted).

In R.J. Reynolds Tobacco Co. v. Evers , 232 So.3d 457 (Fla. 2d DCA 2017), the Second District extended Allen and held that the pre-1999 version of section 768.73 applied to an Engle progeny suit that was initially brought as a wrongful death action after the smoker died of lung cancer in 2007. The Second District reasoned that the plaintiff's "wrongful death action, like all Engle -progeny complaints, relates back to the 1994 Engle class-action complaint." Id. at 462. Thus, the Second District concluded that "[w]hile [the plaintiff] did not file the wrongful death action until 2007 when [the smoker] died, her right to do so was based on [the smoker's] status as an Engle class member, i.e., [the smoker's] manifestation of a tobacco-related disease or medical condition prior to November 21, 1996." Id. at 463.

Notably, the wrongful death causes of action in both Allen and Evers related back to a manifestation of a tobacco-related disease which arose prior to the 1999 amendment to the punitive damages statute. In other words, the claimants in those cases succumbed to the manifestation of the very disease that had already plagued them prior to the 1999 amendment. Those claimants could have brought their claims prior to the 1999 amendment as personal injury actions. Upon death from the same disease, their estates could have amended the pleadings, converting their claims into wrongful death actions. It is of no consequence that the lawsuits had not been filed prior to the 1999 amendment, as the relevant inquiry is when did the claims arise or accrue.

Recently, this court agreed "with the First and Second District Courts of Appeal in holding that the pre-1999 version of section 768.73, Florida Statutes, applies in an Engle progeny personal injury suit that is converted into a wrongful death action upon the smoker's death." R.J. Reynolds Tobacco Co. v. Konzelman , 248 So.3d 134 (Fla. 4th DCA 2018) (citing Allen and Evers ).

The holding in Konzelman was, however, limited to the facts before us. Specifically, we agreed with the plaintiff's argument that the 1999 amendment to section 768.73 did not apply to an Engle class member's personal injury claim that accrued before the effective date of the statute, even if the claim was later converted to a wrongful death action after the effective date of the statute. While we agreed with Allen and Evers as applied to the facts before us, our decision also relied upon Buonomo , 138 So.3d at 1052, a case which looked to the time of the manifestation of the illness causing the smoker's death in determining that the pre-1999 statute applied.

Konzelman was also consistent with the principle that an injured party's right to seek punitive damages survives the merger or amendment of a personal injury survivor claim into a new wrongful death claim upon the injured party's death. See Martin v. United Sec. Servs., Inc. , 314 So.2d 765, 771-72 (Fla. 1975) (allowing for punitive damages upon merger of personal injury survival action into wrongful death action).

In effect, Konzelman agreed with Allen and Evers to the extent that they recognized an exception to the general rule that a wrongful death claim accrues or arises upon the injured party's death, preserving an Engle class member's vested rights where the class member eventually dies of a tobacco-related illness that manifested before the 1999 amendment to section 768.73. In other words, the accrual date of an Engle class member's personal injury survivor claim effectively carries over to a merged or amended wrongful death claim upon death for purposes of determining when a cause of action arises.

However, all Engle wrongful death actions do not necessarily arise before the 1999 amendment to section 768.73, on the theory that they all relate back to the 1994 Engle class action complaint. We cannot agree with the sweeping proposition that all applicable statutory law in an Engle progeny case is necessarily frozen in place as of the time of the original 1994 Engle class action complaint.

Turning to the facts of this case and the plain text of the current version of section 768.73, we find that the plaintiff's wrongful death cause of action arose after October 1, 1999. This court has held that when a smoker suffers from more than one smoking-related disease, a cause of action for each distinct disease accrues separately. See Philip Morris USA, Inc. v. Barbanell , 100 So.3d 152, 158-60 (Fla. 4th DCA 2012) (action against cigarette manufacturer relating to smoker's death from lung cancer accrued, and limitations period began to run, when smoker knew or should have known that smoker had tobacco-related lung cancer ; not when she earlier knew of a separate and distinct tobacco-related disease).

Under the circumstances here, we can think of no compelling legal reason why the trial court should have applied the pre-1999 punitive damages statute to a separate and distinct claim that did not accrue earlier than 2003. Although Barbanell was determining when a tobacco-related claim accrued or arose for statute of limitations purposes, we see no distinction in applying the same reasoning to when a claim accrued or arose for purposes of the punitive damages statute. After all, the Legislature intentionally avoided any impairment of vested rights by clarifying that its 1999 amendment to the punitive damages statute would apply only to those claims "arising after the effective date of [the] act," which was October 1, 1999. § 768.73(5), Fla. Stat. (1999) ; Ch. 99-225, § 23, Laws of Fla. If a claim cannot be said to have arisen or accrued for statute of limitations purposes, it is axiomatic that no vested rights have arisen to prevent the Legislature from limiting punitive damages as to that unripe claim.

Moreover, manifestation of a tobacco-related disease for purposes of establishing Engle class membership is a completely separate issue from the date a cause of action accrues or arises. See R.J. Reynolds Tobacco Co. v. Ciccone , 190 So.3d 1028, 1039 (Fla. 2016) ("Simply put, the policy undergirding the 'manifestation' of an injury for the accrual of a cause of action is not the same as the policy rationale for the 'manifestation' requirement to establish Engle class membership. Accrual is simply not the relevant inquiry for determining Engle class membership.").

Here, the relevant facts are simple. Mrs. Martin qualified for Engle class membership based on her smoking-related heart disease that manifested in 1995, but she died from lung cancer that manifested in 2003. Accordingly, we find that the plaintiff's wrongful death cause of action arose no earlier than 2003, which was when Mrs. Martin developed lung cancer. We emphasize that, as of October 1, 1999, Mrs. Martin had no vested right to bring a claim for punitive damages under the pre-1999 statute arising from the harm caused by her lung cancer that manifested in 2003. Thus, because the smoking-related illness causing Mrs. Martin's death did not develop until after the 1999 amendment to section 768.73, we find that the post-1999 version of section 768.73 applies to this case.

The plaintiff suggests that even if the post-1999 version of the statute applies to this case, it is unconstitutional. However, the plaintiff's constitutional challenge to the current version of section 768.73 is not properly before us because the plaintiff did not notice the Attorney General or the State Attorney as required by Florida Rule of Civil Procedure 1.071 when challenging the constitutionality of a state statute.

Therefore, applying the current version of section 768.73 to this case, we find that section 768.73(2)(a) bars a punitive damages award to the plaintiff because the defendants established before trial that punitive damages had previously been awarded against them in other actions "alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages."

Cross-Appeal

On cross-appeal, the plaintiff argues that the trial court erred in reducing the compensatory damages award based on comparative fault where the jury found for the plaintiff on the intentional tort claims. The trial court, of course, was simply following the law as we understood it to be correct in this district prior to Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294 (Fla. 2017). See R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d at 495-96 (interpreting section 768.81 to require apportionment of comparative fault in a tobacco case because at its core it is a product liability action, and concluding "that section 768.81 cannot be avoided simply because the action includes an intentional tort"). The Florida Supreme Court disagreed.

Therefore, we are bound by the Florida Supreme Court's precedent in Schoeff to reverse and remand.

The dissent urges us to adopt the remedy employed by the Fifth District in Foreline Security Corp. v. Scott , 871 So.2d 906, 911 (Fla. 5th DCA 2004), where the Fifth District held that a trial court erred when it ignored the jury's allocation of fault and determined post-verdict that the defendant was solely responsible for the full amount of the plaintiff's damages. The Fifth District concluded that the trial court erred by not applying the comparative negligence statute when it misled the jury into believing that it was allocating fault between the defendant and a nonparty, reasoning that "[t]he jury may have reached a different verdict on damages had it known that [the defendant] would bear the entire amount." Id. Based on the comparative fault issue, as well as a separate error in failing to instruct the jury on a liability defense, the Fifth District remanded the case for a new trial. Id.

The reasoning of Foreline thus suggests that, absent any other errors at trial, the proper remedy upon setting aside a jury's comparative fault allocation would be a new trial on damages. But we cannot find, nor does the Fifth District cite to, any statutory or other applicable legal basis for the remedy of requiring a new trial on damages when reversing or entering a directed verdict on a comparative fault defense after trial.

Indeed, it is well established that a reversal based on a comparative fault error does not affect or require a new trial on a jury's determination of compensatory damages. E.g., Nash v. Wells Fargo Guard Servs., Inc. , 678 So.2d 1262 (Fla. 1996). Instead, such an error simply requires a remand for apportionment of fault. See id. at 1263-64 (limiting remand to liability and apportionment of fault, and holding that "a reversal precipitated by Fabre errors does not affect the determination of damages. As a consequence, the reversal in this case should not have extended to a new trial on damages."); see also Regions Bank v. Capital Square, Inc., 83 So.3d 900, 902-03 (Fla. 3d DCA 2012) (concluding that "a reversal precipitated by Fabre errors does not affect the determination of damages and should not require a new trial on damages," and remanding for "a new trial solely on the issue of apportionment between the parties"); Schindler Elevator Corp. v. Viera , 693 So.2d 1106, 1108 (Fla. 3d DCA 1997) (holding that a comparative negligence error in erroneously omitting a nonparty from the verdict form required "a new trial limited to the apportionment issue, not a new trial on all liability issues"); Am. Aerial Lift, Inc. v. Perez , 629 So.2d 169, 172 (Fla. 3d DCA 1993) (where reversal was required "on grounds unrelated to the damages issue," including a comparative negligence error in omitting Fabre defendants from the verdict form, the new trial would be "confined to issues of the liability of the defendant and of the other entities allegedly responsible for the condition of the defective equipment"); Schindler Corp. v. Ross , 625 So.2d 94, 95-97 (Fla. 3d DCA 1993) (holding that a comparative negligence error required a retrial to determine the percentage of fault, but since neither that error nor a separate jury instruction error on a liability issue affected the jury's determination of damages, the retrial would be "confined to the issues of negligence, comparative negligence and the apportionment of fault, if any, as to the plaintiffs, the defendant, and Dade County").

Although the dissent asserts that the remand in these cases would have no impact on the amount of damages ultimately awarded, any remand to apportion liability between the parties and any Fabre defendants would have a net impact on the ultimate amount awarded without changing the gross amount of damages awarded by a prior jury. In those cases, the gross amount of damages awarded by a prior jury did not change despite comparative fault errors impacting the net amount of damages.

Here, the Florida Supreme Court's elimination of the comparative negligence defense under the circumstances below leaves nothing for retrial or apportionment. The jury was instructed to award the compensatory damages they found to be attributable to the defendants-nothing less-nothing more. The fact that they were also instructed to determine the percentage of comparative negligence attributable to the plaintiff on a defense that the Florida Supreme Court has eliminated as applied here is of no consequence to the gross amount of compensatory damages awarded by the jury.

Moreover, it is a well-established presumption that a jury would have properly followed a trial court's instructions. See, e.g. , Carter v. Brown & Williamson Tobacco Corp. , 778 So.2d 932, 942 (Fla. 2000) ("Absent a finding to the contrary, juries are presumed to follow the instructions given them."); Sutton v. State , 718 So.2d 215, 216 n.1 (Fla. 1st DCA 1998) ("The law presumes that the jury followed the trial judge's instructions in the absence of evidence to the contrary."); see also Johnson v. State , 164 So.3d 794, 797 (Fla. 1st DCA 2015) (verdict was not defective on the basis that the jury found defendant guilty of both the main offense and the lesser-included offense; the jury's separate finding of guilt on the lesser-included offense was deemed surplusage, and did not require mistrial, as the jury is presumed to follow court's instructions separately as to each charge).

The jury was separately instructed to award the full amount of compensatory damages they found to be proximately caused by the defendants. They were also separately instructed to determine what percentage of comparative negligence, if any, they attributed to the plaintiff. They were instructed not to reduce the total amount of compensatory damages by the amount of comparative negligence, leaving it to the court to reduce any amount of comparative fault. In the absence of any evidence of wrongdoing by the jury, we must accept the well-established presumption that the jury properly followed the trial court's instructions.

Were we to ignore this well-established presumption in response to the defendants' perceived claim of unfairness from the post-verdict elimination of a comparative negligence defense they believed they could assert before the Florida Supreme Court's ruling in Schoeff , we would be imposing "will" instead of "judgment." This we cannot do.

Accordingly, we are left with no alternative but to reverse and remand "with instructions for the trial court to award compensatory damages in the full amount of the jury's verdict." See Philip Morris USA Inc. v. Gore , 238 So.3d 828, 831 (Fla. 4th DCA 2018) (reversing to comply with Schoeff's elimination of the comparative negligence defense under similar circumstances).

Conclusion

On the main appeal, we reverse and remand with instructions for the trial court to vacate the punitive damages awards, but affirm on all other issues. On the cross-appeal, we reverse and remand with instructions for the trial court to reinstate the entire amount of the jury's verdict on compensatory damages.

Affirmed in part, Reversed in part, and Remanded.

Levine, J., concurs.

Forst, J., concurs in part and dissents in part with opinion.

Forst, J., concurring in part and dissenting in part.

I concur in the majority opinion in regard to the main appeal. I respectfully dissent concerning the disposition of the cross-appeal. Although I join the panel in reversal of the compensatory damage award, per Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294 (Fla. 2017), I would hold that the appropriate remedy is to remand for a new trial limited to a determination of the amount of compensatory damages to be awarded to the plaintiff.

The issue of compensatory damages went to the jury in the instant case during the brief period in which R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487 (Fla. 4th DCA 2015) was the law of this District. In that opinion, we held that the compensatory damages awarded to an Engle -progeny plaintiff could be reduced by the amount of comparative fault attributed to the plaintiff, concluding that an Engle -progeny suit "is a products liability suit based on conduct grounded in negligence." Id. at 496. Accordingly, the trial court in the instant case instructed the jury that its compensatory damages award would be reduced by the "percentage of responsibility" which the jury determined "was caused by Carole Martin." This was the proper course of action to take during the time period between our opinion in Schoeff and the Florida Supreme Court's opinion that determined our analysis was erroneous and that compensatory damages could not be reduced in this manner in Engle -progeny cases.

After receiving the above-noted jury instructions regarding compensatory damages, the jury determined those damages to be approximately $5.4 million. It also found Mrs. Martin to have been 32% at fault. The defendant argues that the award of $5.4 million was "tainted" by the jury instruction, "because there is a substantial likelihood that the jury would have reached a different verdict had it been properly instructed about the role of its comparative fault allocation."

The defendants rely upon Foreline Security Corp. v. Scott , 871 So.2d 906 (Fla. 5th DCA 2004) for their argument that a new trial on damages is appropriate. In that case, the jury found Foreline to be 50% liable after having been informed by the trial court that " '[t]he court in entering judgment will take into account your allocation of fault.' " Id. at 911 (alteration in original). The trial court subsequently "ignored the allocation of fault determined by the jury" and found Foreline to be 100% percent liable for the damages. Id. Because the jury was "misled" into believing that its allocation of fault would be taken into account by the trial court in awarding damages, the Fifth District remanded this issue, concluding "[t]he jury may have reached a different verdict on damages had it known that Foreline would bear the entire amount." Id.

Although I would not go so far as the defendants' brief and argue there is a "substantial likelihood" that the jury would have brought back a lower damages award if it knew that its award would not be reduced, I similarly cannot conclude that there is "no reasonable possibility" that the verdict would not have been affected. See Special v. West Boca Med. Ctr. , 160 So.3d 1251, 1253 (Fla. 2015). As in Foreline , the jury here "may have reached a different verdict on damages" had it known the defendants would bear the full amount of the damages and that the compensatory damage award would not be reduced to reflect the plaintiff's comparative fault.

The cases cited by the majority opinion are distinguishable with respect to the situation in the instant case. In all five cases, the trial court apportioned one hundred percent of the damages to either one defendant or, per a finding of comparative negligence, to one defendant and the plaintiff. See Nash v. Wells Fargo Guard Servs., Inc. , 678 So.2d 1262, 1263-64 (Fla. 1996) ; Regions Bank v. Capital Square, Inc. , 83 So.3d 900, 902 (Fla. 3d DCA 2012) ; Schindler Elevator Corp. v. Viera , 693 So.2d 1106, 1108 (Fla. 3d DCA 1997) ; Am. Aerial Lift, Inc. v. Perez , 629 So.2d 169, 172 (Fla. 3d DCA 1993) ; Schindler Corp. v. Ross , 625 So.2d 94, 95-97 (Fla. 3d DCA 1993). As in the instant case, a change in the law attributable to a Florida Supreme Court decision necessitated a reversal at the appellate level. The courts remanded these cases back to the jury to apportion fault. The court's remand in each of these cases would have no impact on the amount of the damages ultimately awarded to the plaintiff, as distinguished from the instant case.

The plaintiff here vehemently opposes remand of this issue for a new trial, arguing that the defendants invited the erroneous jury instruction. However, it is more appropriate to conclude that our Schoeff opinion invited, if not dictated, the (now-deemed) erroneous instruction, and the defendants (and the trial court) were merely following the law of this District with respect to the comparative fault jury instructions. Accordingly, I would remand the determination of the amount of compensatory damages for a limited hearing on that issue. Thus, I dissent in part from the majority opinion. I otherwise fully concur.

      Engle v. Liggett Grp., Inc. , 945 So.2d 1246, 1254 (Fla. 2006).

      While it is true that the Florida Supreme Court quashed this court's Lumbermens decision, the Florida Supreme Court's opinion did not appear to turn on any distinction between the terms "accrue" and "arise." See Lumbermens Mut. Cas. Co. v. August , 530 So.2d 293 (Fla. 1988). Instead, the Florida Supreme Court applied the rule of lex loci contractus , and held that a cause of action for uninsured motorist benefits arose in Massachusetts, where the insurance policy was executed, rather than in Florida, where the automobile accident occurred. Id. at 294-96. Thus, the real issue in Lumbermens was where the cause of action arose, not when it arose.

      Furthermore, the exception in (2)(b) does not apply because the trial court did not make specific findings of fact that the amount of prior punitive damages awarded was insufficient to punish the defendants. And even if the exception in (2)(b) did apply, the plaintiff still could not recover punitive damages because "[a]ny subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court." § 768.73(2)(b), Fla. Stat. (1999). Undoubtedly, the prior punitive damages awards against the defendants would easily exhaust the plaintiff's $650,000 punitive damages award.

      Fabre v. Marin , 623 So.2d 1182, 1184 (Fla. 1993) (if defendant proves the fault of a nonparty on a comparative negligence affirmative defense, the jury may be asked to apportion the percentage of fault to the nonparty on the jury verdict form).

      The Federalist No. 78 (Alexander Hamilton) ("The judiciary ... may truly be said to have neither force nor will but merely judgment.") (capitalizations altered).


text:
    Wayne CULBERTSON and Beth Culbertson, Appellants, v. 21ST MORTGAGE CORPORATION, Appellee.
    No. 4D18-164
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    James R. Ackley of Law Offices of James R. Ackley, P.A., West Palm Beach, for appellant.
    Sonia Henriques McDowell of Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for appellee.
   Per Curiam.

We affirm the summary final judgment in all respects but one - genuine issues of material fact remained regarding the amounts owed by the borrowers for private mortgage insurance (PMI) and interest on the note.

When summary judgment was entered, the loan had been in default for nearly eight years. The bank submitted an affidavit in support of its motion for summary judgment. Loan histories from several servicers were attached to the affidavit and the affiant stated that her testimony was based on her review of these records.

"Under ordinary circumstances, a summary judgment can be supported if the undisputed evidence shows that all values matched with the payment history admitted into evidence." O'Connor v. U.S. Bank Nat'l Ass'n , 253 So.3d 628, 630 (Fla. 4th DCA 2018). Here, the amounts awarded for PMI and interest are not supported by the loan histories attached to the affidavit.

Only one of the loan histories includes any payments for PMI, and the sum of those payments is less than the amount claimed in the affidavit and awarded in the final judgment. On the issue of interest, the loan histories are incomplete and show varying interest rates, while the affidavit sets forth a fixed interest rate since default. The final judgment awarded the amount of interest claimed in the affidavit.

While the bank established its entitlement to damages for PMI and interest, because the values awarded do not match the loan histories admitted into evidence, the bank failed to establish the amount recoverable for those items at summary judgment. We reverse and remand to the circuit court for further proceedings on those damages items and for the entry of an amended final judgment.

GROSS , MAY , JJ., and CARACUZZO , CHERYL , Associate Judge, concur.

      The loan history shows 65 PMI payments while the final judgment awards damages for 90 PMI payments.

      The affiant stated that interest was 4.125% from October, 2009-May, 2017, but this was an adjustable rate note, and the loan history shows interest rates ranging from 3.375% to 7.625% during the same period.