VOLUME XVIII, NUMBER 4
April, 2006

FROM THE CORNER OFFICE

CLAIMS ANATOMY: AVOIDING ADJUSTING TRAUMA , our 2006 Property Adjusting Seminar, will be held on May 25, 2006 at the Rosen Plaza Hotel in Orlando , Florida .  The seminar has been approved for three adjuster continuing education credit hours.  SAVE THE DATE!   For more information, please contact Anna D. Torres at atorres@powersmcnalis.com

* * * *

FLORIDA SENATE REPEALS JOINT AND SEVERAL LIABILITY DOCTRINE 

On March 30, 2006, the Florida Senate overwhelmingly passed HB 145, which is aimed at changing the manner in which lawsuit damages are divided. The act seeks to amend §768.81, Florida 's "Comparative Fault" statute.

The senators voted 27-13 in favor of HB 145, which seeks to repeal the long-standing doctrine of joint and several liability. In accordance with

the Florida Constitution, the measure now goes to Florida Governor Jeb Bush (R) for consideration. It is expected that Governor Bush will approve and sign off on the bill. If he does, joint and several liability will be replaced with proportionate liability.

The concept of joint and several liability has been referred to as the "deep pocket rule." It makes every defendant in a lawsuit liable for the entire amount of the plaintiff's damages, irrespective of the actual degree of that individual defendant's fault. Proportionate liability, however, is a much more equitable theory. Under this standard, a defendant would only be responsible for damages in direct proportion to his own negligence as opposed to possibly being forced to pay the plaintiff's entire judgment.

The proposed new version of the statute does away with sections 768.81(3)(a)1-4, (4)(b)1-4 and 768.81(c), which previously allowed a court to enter judgment on the basis of joint and several liability in certain situations based on defendant's percentage of fault. The new version of section 768.81 entirely does away with joint and several liability.

If Governor Bush approves and signs the measure, as it is widely anticipated that he will, the act takes effect upon becoming law, and shall apply only to causes of action that accrue on or after the effective date. Alternatively, should the Governor fail to veto the bill within a specific period of time, as established by Article 3 § 8 of the Florida Constitution, it automatically becomes law. Liability for damages in cases already pending will be determined in accordance with the old rule.

In the unlikely event that the Governor decides to veto the measure, then he is required under the Constitution to transmit his signed objections to the house in which the bill originated, if it is in session. In such a situation, a two-thirds vote would be required to override the Governor's veto.

We will report further developments in future editions of Briefly Speaking.

Kathleen M. Bonczyk

* * * *  

PUT A MUZZLE ON IT, JUST IN CASE

On November 30, 2005, the Fourth District Court of Appeal issued two separate opinions on a non-owner's liability for dog bites. The court's first holding limited the liability of an employer when an employee's dog bites another individual. However, the Fourth District extended liability as to a landlord if a tenant's dog attacks a co-tenant and that attack occurs on property that the landlord uses to promote its business.

In Roberts v. 219 South Atlantic Blvd. , Inc., d/b/a Atlantis and Rohloff , 30 FLW D2704a (Nov. 30, 2005), the Fourth District affirmed the lower court's decision granting summary judgment in favor of an employer whose employee's dog bit a third party. The plaintiff sued Atlantis, a nightclub, for negligence resulting from a dog bite that occurred when the plaintiff walked by a pickup truck in Atlantis' parking lot and a Labrador stuck her head out the truck's window and bit the plaintiff on the shoulder. Mr. Rohloff, the other named defendant, was the driver of the pickup truck and owner of the Labrador . Mr. Rohloff was employed at Atlantis as an independent contractor; however, because Mr. Rohloff worked at Atlantis for more than 40 hours a week for more than two years prior to the incident, the court deemed him to be indistinguishable from an Atlantis employee. Moreover, Mr. Rohloff's truck was leased by Atlantis and given to him as a benefit. It is important to note that Atlantis was aware of the dog's presence and never told Mr. Rohloff that he could not bring the dog to work.

The court reviewed prior case law providing that, ".an employer is not liable for injury caused to a third party by his employee's dog if the bringing of the dog to the work site: 1) 'is not consented to or encouraged by the employer,' 2) is 'of no benefit to the employer,' 3) is not within the scope of the employee's duties,' and 4) 'the employer has no knowledge of the vicious propensities of the animal.'" Poling v. Peter R. Rylance, Inc . 388 So. 2d 353 ( Fla. 4 th DCA 1980); see Dickson v. Graham-Jones Paper Co . , 84 So.2d 309 ( Fla. 1955).

In this case, while Atlantis did have knowledge of the dog's presence on the property, the plaintiff did not meet the other requirements. The dog's presence on the property had nothing to do with Mr. Rohloff's scope of employment; Atlantis received no benefit from the dog's presence on the property; and Atlantis had no knowledge of the dog's vicious propensities. Thus, the Fourth District affirmed the lower court's summary judgment in favor of the employer.

In a separate but equally interesting dog bite case, the Fourth District held that a landlord could be held liable when a tenant's dog bites another tenant in a neighboring public park. Ramirez v. M.L. Management Co., Inc., Poole and the Town of Pembroke Pines , 30 FLW D2710 (Nov. 30, 2005).

The plaintiff, a minor named Carlina Ramirez, was injured when another tenant's pit bull bit her in a public park that bordered the apartment complex that the co-tenants lived in. On the day of the incident Carlina was in the park with her grandmother. Carlina recognized the dogs as the same pit bulls from the apartment complex. While Carlina was rollerblading in the park, the dogs attacked, causing severe injuries. Carlina's mother sued the owner of the dog and the management company for ".violat[ing] its duty to its tenants by permitting the known danger of the dogs on its premises". The management company successfully moved for summary judgment, citing the Fourth District's decision in Tran v. Bancroft . In Tran v. Bancroft the court held ".that a landlord has no duty to third parties for injuries caused by a tenant's dog whether those injuries occur off the leased premises". Tran v. Bancroft , 648 So.2d 314 (Fla. 4 th DCA 1995).

In determining whether it was appropriate to grant summary judgment to the management company, the court noted that in Florida a landlord has never been held liable to a third person for injuries resulting from a tenant's dog where injuries occurred off the property of the leased premises. However, the court also considered certain distinguishing facts. Specifically, the management company advertised the park to potential tenants as an amenity of the apartment complex. In fact, another tenant testified in court that she was not sure if the park was owned by the town or the apartment complex. The lease agreement that governed the apartment complex explicitly prohibited pit bulls. Nonetheless, another tenant testified that she complained to the management company prior to the incident about the two pit bulls owned by the tenant.

Based on these specific facts, the Fourth District reversed the summary judgment. The court reasoned that the landlord owed a duty to its tenant and that, "[i]f the jury finds the landlord extended its business interest to the adjacent property, then the landlord should have the same duty to protect its tenants on that property as if the dog had attacked [Carlina] within the apartment complex itself".

Sarah Marks

* * * *  

SUBROGATION: WHY WAITING IS A BAD IDEA

In the recent case of Twin City Fire Insurance Co. v. Jason Jones , Twin City provided uninsured motorist coverage to Marian Jones. Ms. Jones was injured in an automobile accident caused by a vehicle driven by Jason Jones (no relation). Twin City paid Marian Jones for her injuries, and filed a subrogation lawsuit against Jason. Marian Jones also filed a separate lawsuit against Jason for additional damages not covered by her insurance. Marian settled her lawsuit with Jason, and executed a release of all claims against Jason, in which she agreed to indemnify him for any claims relating to the accident.

Based upon the release, Jason moved for summary judgment against Twin City , arguing that Marian's release applied to her subrogated insurance carrier. The appellate court rejected this argument. Instead , because Jason had knowledge of Twin City 's claim prior to settling with Marian , Marian's release did not bind Twin City . Therefore, Twin City could continue its subrogation lawsuit against Jason Jones.

The key point is that Twin City had already instituted its own lawsuit and thus Jason was on notice of its claim when he settled with Marian. The implication is that without this fore-knowledge, Marian could have released Twin City 's independent claim. Therefore, we recommend that our client place all potential adverse parties on prompt notice of subrogation claims. Twin City Fire Insurance Co. v. Jason Jones, 31 Fla. Law Weekly D238 ( Fla. 5 th DCA January 20, 2006).

Mark A. Greenberg