RICHARD ALEXANDER, APPELLANT,
v.
SEAQUEST INCORPORATED, ETC., ET AL., APPELLEES
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The court affirmed the trial judge's set-off of a settlement against a jury verdict in a wrongful death case, holding that a probate court's unilateral settlement apportionment made without notice to non-settling defendants and before knowledge of the jury verdict was properly corrected by the trial court to prevent double recovery.
A trial court properly sets off an undifferentiated lump sum settlement against a total jury award in a wrongful death action to prevent double recovery, even when the probate court's prior apportionment was made without notice to non-settling defendants and without knowledge of the jury verdict.
[1] A settlement apportionment made by a probate court in a private and unilateral manner without notice to non-settling defendants and before knowledge of a jury verdict in…
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Join FLexlaw to unlock all legal intelligence“The trial judge properly set-off the undifferentiated lump sum settlement against the total jury award in order to ensure that appellant did not recover twice for the same wrong.”
Court explaining the proper application of set-off doctrine in settlement cases.
A wrongful death action against non-settling defendants went to trial, and the jury determined the estate was entitled to thirty percent of the total …
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PER CURIAM.
ON REHEARING
We grant appellant’s motion for rehearing and substitute the following for our opinion filed October 10, 1990:
We affirm on the authority of Dionese v. City of West Palm Beach, 500 So. 2d 1347 (Fla.1987). The “private and unilateral” settlement apportionment took place before the probate court without notice to appellees. Id. at 1350. The trial judge properly set-off the undifferentiated lump sum settlement against the total jury award in order to ensure that appellant did not recover twice for the same wrong. Id. Apparently, the probate judge did not know that the wrongful death action against the non-settling defendants had gone to trial and that the jury had determined that the estate was entitled to thirty per cent of the total verdict.1 Had the probate judge known of the jury verdict we doubt that he would have apportioned as he did: just under six per cent of the total settlement to the estate. If the probate judge had followed the jury’s verdict there would have been a total set off. In any event, the apportionment of a settlement comes too late if done after the jury verdict because the non-settling tort-feasors lose the right to settle, thus frustrating the purpose of section 768.31(5), Florida Statutes (1987).
GLICKSTEIN and GARRETT, JJ., concur. LETTS, J., dissenting without opinion.
. Appellant argued to the trial judge that the probate court did not base its apportionment of the settlement funds on the jury’s verdict and even if the probate judge had known of the jury’s verdict he would have made the same apportionment because the verdict was clearly erroneous.
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Escadote I Corp. v. Ocean Three Ltd. P'ship, 211 So. 3d 1059 (Fla. 3d DCA 2016)…are not favored with a transcript of the hearing on the Developer’s and Contractor’s joint motion for set off. It may be that the facts as they unfolded at the hearing revealed the apportionment was an afterthought. See Alexander v. Seaquest, Inc., 575 So. 2d 765 (Fla. 4th DCA 1991) (“[T]he apportionment of a settlement comes too late if done after the jury verdict because the non-settling tortfeasors lose their right to settle, thus frustrating the purpose of section 768.31(5), Florida Statutes 1987.”). It…1 / 2
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Liberty Mut. Ins. Co. & Liberty Mut. Fire Ins. Co. v. Wolfson (Fla. 4th DCA 2020)…he settlement. Id. at 1348, 1350-51; see also Cornerstone, 163 So. 3d at 569 (“Where a settlement is undifferentiated and general, the aggregate of the amount of the settlement should be set off against the judgment.”); Alexander v. Seaquest, Inc., 575 So. 2d 765, 765-66 (Fla. 4th DCA 1991) (where a private and unilateral settlement apportionment occurred without notice, “[t]he trial judge properly set-off the undifferentiated lump sum settlement against the total jury award in order to ensure that appellant…
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Liberty Mut. Ins. Co. v. Wolfson (Fla. 4th DCA 2020)
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dionese v. City OF W. Palm Beach, 500 So. 2d 1347 (Fla. 1987)