The Week in Torts – Cases from the Week of March 31, 2017
FLORIDA LAW WEEKLY
VOLUME 42, NUMBER 13
CASES FROM THE WEEK OF MARCH 31, 2017
COURT SAYS BROAD RELEASE LANGUAGE IN PROPOSAL FOR SETTLEMENT IS “A-OK.”
Costco Wholesale Corp. v. Llanio-Gonzalez, 42 Fla. L. Weekly D672 (Fla. 4th DCA March 22, 2017):
The defendant in this slip and fall case served proposals for settlement both upon the injured plaintiff wife, and her husband for his loss of consortium. The proposal required each plaintiff to execute a general release and attached it.
The release language included as part of the definition of “second parties” who would be released, every possible person and entity in the world, and also said that plaintiff agreed to release those second parties for every claim, demand (and 15 or so other synonyms) which the plaintiff ever had, now has, or “may have” against the second parties from the beginning of the world to the “end of these presents.” The release specifically covered but was not limited to “any and all claims from personal injuries, pain and suffering, doctors and nurses and all medical expenses and claims for lost wages and future lost wages, and extra contractual damages as a result of the incident and matters set forth in that certain lawsuit referred to as the [case caption].”
The trial judge–seemingly appropriately so–refused to enforce these proposals for settlement for being ambiguous and unenforceable and because the releases contained “broader language releasing…claims more than and broader than only the claims related to the facts and circumstances in the lawsuit.”
Surprisingly, however, the appellate court disagreed. It said that the proposals contained “unambiguous standard release language” that did not render the proposal invalid. Even though the court acknowledged that the language of these proposals was more expansive than the precedent the court was relying on, it ruled the effect was the same.
If there is anything that this case signals, it is that the pendulum seems to be swinging away from the “ambiguity” argument against enforcing proposals for settlement. As the Fourth District said, “Courts are discouraged from ‘nitpicking’ settlement proposals for ambiguities unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the settlement proposal.” It then wrote “[Rule 1.442] does not demand the impossible.”
However, from this observer’s perspective, it does seem that this extraordinarily broad release language subsumed claims and parties that had nothing to do with the plaintiff and the defendant in this particular case. That said, the Fourth District ruled otherwise. Reflecting on the most recent proposal for settlement cases, it does appear that courts are looking for ways to enforce proposals for settlement–which generally seem to be from defendants to plaintiffs–and to award attorney’s fees. This is something to be mindful of in advising our clients.
TRIAL COURT ERRED IN DISMISSING COMPLAINT AS TIME BARRED WHERE STATUTE OF LIMITATIONS DEFENSE NOT APPARENT FROM FOUR CORNERS OF COMPLAINT IN CASE ALLEGING SEXUAL ABUSE OF A MINOR.
Jane Doe No. 3 v. Nur-Ul-Islam Academy, Inc., 42 Fla. L. Weekly D674 (Fla. 4th DCA March 22, 2017):
In 2014, the plaintiff alleged that she was a victim of sexual abuse on school grounds during school hours perpetrated by a teacher during the 2004-05 school year. She alleged that on the same day she was abused, she reported the abuse to an official of the school, and said that the school took actions which promoted and encouraged further harm to her by calling her a liar, failing to investigate, etc.
Plaintiff brought claims for negligence, mental and emotional child abuse, negligent hiring, retention and supervision against the defendants. The trial court dismissed plaintiff’s complaint, and although the order did not say why, the parties agreed that it was based on the statute of limitations defense. While affirmative defenses may be considered on a motion to dismiss if the complaint on its face contains allegations demonstrating the existence of the said defense, affirmative defenses may not be considered on motions to dismiss if that is not the case.
In 2010, the legislature enacted a revision to section 95.11 which provides for an unlimited time period for pursuing a cause of action when a child under the age of 16 is the victim of sexual battery. This is codified in section 95.11(9). The legislature clearly did not intend for the statute of repose bar in section 95.051(1)(i) or the tolling provisions, to apply. The entitlement to an unlimited period of time for bringing an action negates the application of any tolling or repose provision.
There is no information in the complaint to indicate when the plaintiff’s parents “knew or should have known” about the abuse. To the contrary, plaintiff alleged that because no one at the school told her parents that she reported the abuse, they were prevented from knowing through that means. While the statute of limitations does start running when the plaintiff turns 18, the plaintiff did not put her birth date or age in the complaint. Therefore it could not be determined at what time she reached the age of majority.
The court determined that the cause of action did not begin to accrue until the plaintiff’s parents knew or should have known of the abuse, or until she reached 18 and the statute of repose would not have extinguished the cause of action until 2011. The court reversed the dismissal.