BROWN & BROWN, INC. v. JAMES T. GELSOMINO and ACE AMERICAN INSURANCE COMPANY

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BROWN & BROWN, INC.,

Appellant,

v.

JAMES T. GELSOMINO

and ACE AMERICAN INSURANCE COMPANY,

Appellees.

No. 4D17-3737

[November 28, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 04-11578 (09).

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.

2

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 (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

3

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,

4

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

5

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. Schecter, 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, 859

P.2d 203, 208 (Ariz. Ct. App. 1993) (citing Church v. Rawson Drug &

Sundry Co., 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

6

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.

* * *

Not final until disposition of timely filed motion for rehearing.

7