MARC E. BOSEM, M.D., ET AL., PETITIONERS,
v.
MUSA HOLDINGS, INC., ETC., ET AL., RESPONDENTS

Fla. | 2010-09-23
No. SC09-1277
CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur., PARIENTE, J., recused.
46 So. 3d 42 Florida Supreme Court (2010) Positive Treatment
Cited by 55 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Supreme Court resolved a conflict between Fourth District precedent and its own holding in Argonaut Insurance Co. v. May Plumbing Co. regarding prejudgment interest on lost profits damages. The Court held that under Florida's established "loss theory," prejudgment interest is a matter of right on pecuniary damages once a finder of fact determines the amount, even when the damages are characterized as unliquidated.


Holding

Prejudgment interest is a matter of right on pecuniary damages under Florida's loss theory, regardless of whether the damages are characterized as liquidated or unliquidated. Once a finder of fact determines the amount of damages, the plaintiff is entitled to prejudgment interest from the date of the loss, as the loss itself constitutes a wrongful deprivation by the defendant of the plaintiff's property.


Headnotes

[1] Prejudgment interest is a matter of right for pecuniary damages under the "loss theory" of recovery, which aims to make a plaintiff whole from the date of the loss.

[2] The "loss theory" of prejudgment interest is not affected by the merit of a defense or the certainty of the amount of loss; rather, it focuses on the wrongful deprivation…

Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Under the "loss theory," ... neither the merit of the defense nor the certainty of the amount of loss affects the award of prejudgment interest. Rather, the loss itself is a wrongful deprivation by the defendant of the plaintiffs property. Plaintiff is to be made whole from the date of the loss once a finder of fact has determined the amount of damages and defendant's liability therefor.”

Establishes the foundational principle of the loss theory that controls the award of prejudgment interest, making it a matter of right once damages are determined.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Dr. Marc Bosem sued Musa Holdings, Inc. for unauthorized use of his name, likeness, and biography in violation of Florida Statutes and the Lanham Act.…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Dr. Marc Bosem seeks review of the decision of the Fourth District Court of Appeal in Bosem v. Musa Holdings, Inc., 8 So.3d 1185 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with a decision of this Court in Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985), on whether a plaintiff is entitled to prejudgment interest on lost profits where the amount of damages was determined by the trial judge in the final judgment. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. In order to resolve the conflict between these cases, this Court must do nothing more than reassert its established precedent. For the reasons expressed below, we conclude that this Court’s precedent has remained unchanged for over one century, and that prejudgment interest is a matter of right under the prevailing “loss theory” of recovery for pecuniary damages, i.e., damages for economic or tangible losses. Accordingly, we quash the Fourth District’s decision in Bosem.

BACKGROUND

The facts are summarized in Bosem v. Musa Holdings, Inc., 8 So.3d 1185 (Fla. 4th DCA 2009) as follows:

Marc E. Bosem, M.D., Marc E. Bosem, M.D., P.A., d/b/a CorrectVision Laser Institute, (Bosem) brought an action for injunctive relief, fraud, false advertising, and compensatory damages against ... Musa Holdings, Inc., d/b/a Eyeglass World, The Laser Vision Institute, L.L.C., and Marco Musa, (Musa) for Musa’s alleged unauthorized use of Bo-sem’s image or likeness and violation of the Lanham Act, 15 U.S.C. § 1125. The trial court ultimately entered an order granting Bosem’s motion for partial summary judgment and holding that Musa’s use of Bosem’s name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act. Accordingly, Bosem’s entitlement to damages was the only issue determined by the subsequent bench trial and is also the only issue before this court on appeal.
... Bosem argued below, in part, that Musa’s unauthorized use of his image resulted in lost profits because he was forced to reduce the price of his LASIK eye surgery procedure in order to retain patients who had seen Musa’s advertisements in which Musa claimed Bosem would perform the same surgery for less at its centers.
The trial court found that Bosem sustained lost profits in the amount of $93,306 and awarded Bosem prejudgment interest on that amount. In concluding that prejudgment interest was warranted in the present case, the trial court discussed Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002).

Bosem, 8 So.3d at 1186.

After reviewing its holding in Air Ambulance Professionals, Inc. v. Thin Air, *44809 So.2d 28 (Fla. 4th DCA 2002),1 the Fourth District concluded:

In the present case, the amount of damages was never certain until the trial court calculated Bosem’s lost profits. Bosem claimed he had sustained lost profits of between $300,000 and $400,000 and maintained that the period of infringement was from 2000 to 2002. The trial court found that Bosem’s lost profits were actually $93,306 and that the period of infringement was from July 2000 to December 2001. Florida case law suggests that on a claim for lost profits or price-erosion damages, prejudgment interest is not warranted because the amount of damages is generally unknown.... Moreover, “[t]o date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right,” and anticipated business profits are not a vested property right. See Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So.2d 1130, 1134 (Fla. 4th DCA 2008). Therefore, we reverse the award of prejudgment interest. As to all other issues, we affirm.

Bosem, 8 So.3d at 1186-87.

ANALYSIS

Because this is a pure question of law, our standard of review is de novo. So. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319 (Fla.2005); D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo). To resolve the apparent conflict, we first discuss the case below, then this Court’s holding in Argonaut, and finally the nature of recovery under the “loss theory.”

Bosem

After finding that Bosem’s case was not a liquidated damages case, the trial court found that he was nonetheless entitled to prejudgment interest pursuant to what the court considered to be “two conflicting principles enunciated in Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002).” The trial court explained that the “conflicting principles” were those set forth in Thin Air, that only liquidated damage claims generate prejudgment interest, and set forth in Argonaut, that Florida follows a “loss theory” where the loss itself is a wrongful deprivation requiring the plaintiff be made whole from the date of the loss once the finder of fact has determined the amount of damages. The trial court declared these principles “totally contradictory in the [cjourt’s view.” As we discuss next, the trial court correctly interpreted this Court’s precedent and Florida’s adoption of the loss theory of recovery for pecuniary damages.

Argonaut

In Argonaut,

Argonaut Insurance Company paid $249,360.51 to the owners of the Colony *45Club Apartments for damages from a fire caused by the negligence of a May Plumbing Company employee. Argonaut then filed a subrogation action against May and its insurers and was awarded a judgment of $187,020.38 after the apartment owners were found to have been 25% contributorily negligent in the fire. The trial court awarded prejudgment interest.
On appeal, the district court reversed the award of prejudgment interest, holding that the comparative negligence factor made the award of damages uncertain and, thus, unliquidated.

474 So.2d at 213. We reversed the district court, explaining, “[Wjhen a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest ... from the date of that loss.” Id. at 215. In issuing this opinion, we noted that we were not making new law, but were “reassert[ing] the stare decisis controlling effect of Supreme Court decisions from the past century, cases from which this Court has never receded.” Id. at 214; see also Sullivan v. McMillan, 37 Fla. 134, 19 So. 340, 343 (1896) (“[Wjherever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date.”) (quoting 1 Theodore Sedgwick, A Treatise on the Measure of Damages § 300 (8th ed. 1891)); Jacksonville, Tampa & Key West Ry. v. Peninsular Land, Transp. & Mfg Co., 27 Fla. 1, 9 So. 661 (1891) (holding that the measure of damages is just compensation in money equal to the value of the property destroyed including interest). We further explained that “since at least before the turn of the century, Florida has adopted the position that prejudgment interest is merely another element of pecuniary damages.” Argonaut, 474 So.2d at 214.2 As we explained:

Under the “loss theory,” ... neither the merit of the defense nor the certainty of the amount of loss affects the award of prejudgment interest. Rather, the loss itself is a wrongful deprivation by the defendant of the plaintiffs property. Plaintiff is to be made whole from the date of the loss once a finder of fact has determined the amount of damages and defendant’s liability therefor.

Id. at 215. Ultimately, we agreed with the First District Court of Appeal in Bergen Brunswig Corp. v. State, 415 So.2d 765 (Fla. 1st DCA 1982), that the “better rule” for assessing prejudgment interest is that “a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date.” Argonaut, 474 So.2d at 214 (quoting Bergen Brunswig Corp., 415 So.2d at 767).

We reaffirmed our adherence to the “loss theory” in Florida Steel Corp. v. Adaptable Developments, Inc., 503 So.2d 1232, 1236 (Fla.1986) (reaffirming holding in Argonaut that the loss theory of prejudgment interest is the law in Florida because “interest is merely another element of pecuniary damages”).

Recovery Under the “Loss Theory”

As we explained in Argonaut, “The distinction between liquidated and unliquidated damages is closely linked to [the now obsolete] ‘penalty theory’ of prejudgment interest.” Argonaut, 474 So.2d at 215. Because “loss theory forecloses discretion in the award of prejudgment interest,” Argonaut, 474 So.2d at 215, it is irrelevant that the trial court described the *46damages in the present case as unliquidat-ed.

Here, Bosem requested purely pecuniary damages of lost profits of at least $300,000, of which he was awarded under $100,000 for the unauthorized use of his likeness. Accordingly, even before the trial court calculated the amount of damages, the amount was ascertainable and not speculative.

“Historically, plaintiffs in personal injury cases have not been entitled to prejudgment interest[, because a]s we explained in Lumbermens Mutual Casualty Co. v. Percefull, 653 So.2d 389, 390 (Fla.1995), damages in personal injury cases are too speculative to liquidate before final judgment.” Amerace Corp. v. Stallings, 823 So.2d 110, 113 (Fla.2002). In Jackson Grain Co. v. Hoskins, 75 So.2d 306, 310 (Fla.1954), we explained that the reason for not allowing prejudgment interest from the date of loss in personal injury actions was that “an exception to the allowance of interest has been made in personal injury cases because of the speculative nature of some items of damage, such as mental anguish, and the indefiniteness of items such as future pain and suffering.” Amerace, 823 So.2d at 116 (Pariente, J., dissenting) (quoting Jackson, 75 So.2d at 310). “Thus, it has long been the law in Florida that in contract actions, and in certain tort cases, once the amount of damages is determined, prejudgment interest is allowed from the date of the loss or the accrual of cause of action.” Id. at 116 (citing Jackson, 75 So.2d at 310; Zorn v. Britton, 120 Fla. 304, 162 So. 879, 880 (1935)).

In all cases, either of tort or contract, where the loss is wholly pecuniary, and may be fixed as of a definite time, interest should be allowed as a matter of right, whether the loss is liquidated or unliquidated.... [T]he plaintiff will not be fully compensated unless he receive, not only the value of what he has lost, but receive it as nearly as may be as of the date of his loss.

William B. Hale, The Law of Damages, § 67 (2d ed.1912) (emphasis added).

For the reasons expressed above, we find that the Fourth District incorrectly reversed the trial court’s award of prejudgment interest. We therefore quash the district court’s decision. We decline to address the other issues raised by Bosem in this review proceeding.

It is so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., recused.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (32 total)

  • Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011)
    …ided in article V, section 3(b)(3) of the Florida Constitution. ANALYSIS The Third District Applied the Wrong Standard of Review Because this is a pure question of law, this Court’s standard of review is de novo. See Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla.2010) (citing So. Baptist Hosp. of Fla., Inc. v. Welker, 908 So. 2d 317, 319 (Fla.2005), and D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla.2003)); see, e.g., Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082, 1085 (Fla.2005) (applying…
  • Pino v. The Bank OF NEW York, 121 So. 3d 23 (Fla. 2013)
    …e and interpret the Florida [*31] Rules of Civil Procedure and the trial court’s inherent authority to protect judicial integrity in the litigation process. This is a pure question of law, subject to de novo review. See Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla.2010) (“Because this is a pure question of law, our standard of review is de novo.”); Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla.2006) (reviewing de novo an interpretation of Florida Rule of Civil Procedure 1.525); Bord…
  • Delmonico v. Traynor, 116 So. 3d 1205 (Fla. 2013)
    …ex-parte, out-of-court statements made by an attorney to potential, nonparty witnesses in the course of that attorney’s investigation of a pending lawsuit. This is a pure question of law, subject to de novo review. See Bosem v. Musa Holdings, Inc., 46 So. 3d 42, 44 (Fla.2010). I. Historical Development of Florida’s Absolute Privilege To resolve this issue first requires examining the history of the absolute privilege and its application to statements made during judicial proceedings as has been developed…

Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (16 total)

View all 16 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw