E.A.W., A MINOR, ETC., ET AL., APPELLANTS,
v.
ORLANDO REGIONAL MEDICAL CENTER, INC., ETC., ET AL., APPELLEES
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A minor plaintiff filed a medical malpractice complaint against two hospitals in different counties, alleging in separate counts that each hospital independently caused an identical injury (a finger amputation) through the same conduct. The trial court severed the counts and transferred one to the hospital's home county. The appellate court affirmed, holding that the plaintiff alleged two distinct causes of action against two separate defendants rather than joint liability, so each defendant has the right to be sued in its resident county.
The trial court properly severed the counts and transferred the count against the Alachua County defendant to that county because the plaintiff alleged two separate and distinct causes of action against two different defendants, not one cause of action against two jointly liable defendants. Each defendant has the right to be sued in its resident county under Florida law.
[1] A trial court may sever causes of action alleged in separate counts of a single complaint when those causes of action are distinct and not jointly alleged.
[2] A defendant has the right to be sued in its resident county.
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Join FLexlaw to unlock all legal intelligence“This plaintiff has filed two separate and distinct, albeit worded exactly the same, lawsuits in the two counts of the same complaint.”
Establishes the court's characterization that the plaintiff's allegations constitute two independent causes of action rather than joint liability claims.
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Join FLexlaw to unlock all legal intelligenceE.A.W., a minor, filed a complaint against Orlando Regional Medical Center, Inc. (Orange County) in Count I and Shands Teaching Hospital and Clinics, …
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DAUKSCH, Judge.
This is an appeal from a non-final order in a medical malpractice case. The order severs two causes of action alleged in two counts in a single complaint and transfers one count to another venue.
Orlando Regional Medical Center, Inc. operates a hospital in Orange County and is accused in Count I of the complaint of solely causing the injury to the plaintiff.
Shands Teaching Hospital and Clinics, Inc. operates a hospital in Alachua County and is accused in Count II of solely causing the same injury, by the same method at the same time as Count I alleges Orlando Regional Medical Center, Inc. did so.
The complaint does not allege that the two hospitals are jointly liable or that one or the other of them is liable and the plaintiff is uncertain as to which defendant should be held accountable. Had the plaintiff so alleged then we would agree with the assertion that Highland Insurance Co. v. Walker Memorial Sanitarium and Benevolent Assoc., 225 So. 2d 572 (Fla. 2d DCA 1969) applies.
In Highland it was alleged that two different surgeries were performed on the plaintiff and that one or both of the surgeries caused one or more of the defendants to be liable for alleged injuries. But the plaintiff here has not done as the plaintiff in Highland did. Here the plaintiff alleges, essentially, that each hospital “allow(ed) a warm and/or hot object to come in contact with” a finger and ultimately, as a result of that conduct the finger had to be amputated. Apparently, the plaintiff is trying to hold each of two defendants guilty for one act. He has not alleged that both defendants caused the injury and he has not joined two defendants to account for the one injury. This plaintiff has filed two separate and distinct, albeit worded exactly the same, lawsuits in the two counts of the same complaint.
The trial judge severed the count against the Alachua County defendant and transferred that suit to that county. We affirm that order because each defendant has the right to be sued in its resident county. Section 47.021, Florida Statutes (1981), has no applicability here because there is not one cause of action alleged against two defendants in this case. Instead, as we have said, there are two causes of action alleged against the two defendants.
AFFIRMED.
COBB, J., concurs.
ORFINGER, C.J., dissents with opinion.
ORFINGER, Chief Judge,
dissenting:
I would reverse the order on the authority of Highland Insurance Company v. Walker Memorial Sanitarium and Benevolent Association, 225 So. 2d 572 (Fla. 2d DCA 1969). Only one injury is alleged here, not two, for which either, neither or both defendants could be liable and for which only one recovery should be permitted, if at all. One trial, not two, is all that is required to determine which, if any, of the defendants are liable. Since both defendants are properly joined, venue is proper where either resides.
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Crescenzo v. Marshall, 199 So. 3d 353 (Fla. 2d DCA 2016)…nc. v. Lund, 702 So. 2d 250, 251 (Fla. 4th DCA 1997) (reversing denial of motion to sever where there was no allegation of any connection between two claims raised against separate defendants in one lawsuit); E.A.W. v. Orlando Reg’l Med. Ctr., Inc., 424 So. 2d 189, 190 (Fla. 5th DCA 1983) (affirming severance where the plaintiff “filed two separate and distinct, albeit [*357] worded exactly the same, lawsuits in the two counts of the same complaint”).1 Nonetheless, “[mjisjoinder of parties is not a ground fo…
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Bass Orlando LEE Rd., Inc. v. Iria Lund & Beverly Enters. Fla., Inc., 702 So. 2d 250 (Fla. 4th DCA 1997)…d in denying its motion to sever, as dispositive of both arguments. In support of its proposition, that because the complaint stated distinct claims the same should be tried separately, Bass relies on E.A.W. v. Orlando Regional Medical Center, Inc., 424 So. 2d 189, 189-90 (Fla. 5th DCA 1983). E.AW. concerned a non-final appeal from an order granting a motion to sever and transferring venue. The complaint in that case alleged claims against two defendants for the same injury. The complaint failed to allege, ho…
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Froats v. Baron, 883 So. 2d 885 (Fla. 5th DCA 2004)…in the two accidents were difficult or impossible to apportion between defendants. The lack of a similar allegation resulted in the affirmance of an order transferring an action for improper venue in E.A.W. v. Orlando Regional Medical Center, Inc., 424 So. 2d 189, 189-90 (Fla. 5th DCA 1983), the primary case relied upon by both Baron and the DOT. Under the circumstances of this case, however, the problem is essentially one of pleading and Froats should have the opportunity to make the necessary allegations.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Highland Ins. Co. v. Walker Mem'l Sanitarium & Benevolent Ass'n, 225 So. 2d 572 (Fla. 2d DCA 1969)