We are representing the surviving spouse of an elderly gentleman who fell and broke his hip due to the negligence of a condominium association. While hospitalized for the serious injury, he contracted Covid 19 and died. Our claim against the condo association is for his wrongful death rather just for the broken hip. We are doing so on the authority of Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977).
In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), a car crash victim’s injuries were made worse by the negligence of a treating doctor. The victim was allowed to claim damages for the enhanced injuries from the parties liable for the underlying car crash case.
The main issued addressed in Stuart concerned “the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party complaint against the treating physician of the plaintiff for alleged malpractice which aggravated the injuries of the plaintiff.” at 704. In deciding against the right, the Florida Supreme Court explained that “[t]he negligent action of the defendant tortfeasor in the case sub judice was the proximate cause of the plaintiff’s injuries. However, the action of petitioner doctor was in fact an aggravating intervening cause of the ultimate condition of the plaintiff. The parties causing plaintiff’s injuries here were not joint tortfeasors but distinct and independent tortfeasors.” Id. at 705. Because Florida follows the general rule that “where each tortfeasor is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other.” 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v. Elev. Sales & Serv., Inc., 309 So.2d 44 (Fla.3d DCA 1975); Dura Corp. v. Wallace, 297 So.2d 619 (Fla.3d DCA 1974); General Motors Corp. v. County of Dade, 272 So.2d 192 (Fla.3d DCA 1973); University Plaza Shopping Center, Inc. v. Stewart, supra; Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.3d DCA 1969); Winn-Dixie Stores, Inc. v. Fellows, supra. Id. at 705.
This does not necessarily mean that the initial tortfeasor does not have a remedy. In Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla. 1980), the Florida Supreme Court addressed the following certified question:
DOES THE DECISION IN STUART V. HERTZ BAR A SEPARATE LAWSUIT BY THE INITIAL TORTFEASOR AGAINST A SUCCESSOR TORTFEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?
The court answered the certified question in the negative, explaining that in order to “preclude a negligent doctor from escaping the responsibilities for his actions,” the remedy of equitable subrogation, which placed the initial tortfeasor in the shoes of the plaintiff, was available. Id. at 704.
In a later decision, the court, in Dade County School Board v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999), expounded on what was required for an initial tortfeasor to assert an equitable subrogation claim:
(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.
- Damages can and must be maximized by accounting for the aggravation of injuries caused by subsequent tortfeasors.
- Knowing that it may be able to recoup money from the subsequent tortfeasor, the initial tortfeasor may be more generous with settlement money.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.