EFTA00679838.pdf

Haddad. Tonja 6/2612014 For Educational Use Only Kee v. Baptist Hosp. of Miami, Inc., 971 So.2d 814 (2007) 32 Fla. L. Weekly D2374 or tender 971 So.2d 814 District Court of Appeal of Florida, Hospital's proposal to settle patient's medical Third District. malpractice case for $600, which required patient to execute a general release, to hold Thomas B. KEE and Helen Kee, Appellants, hospital harmless against "any and all existing, v. or potentially existing, liens or other claims BAPTIST HOSPITAL OF MIAMI, INC., a Florida which any person or entities may have on the non-profit corporation; South Dade Healthcare damages sought," and to agree to extinguish any Group, Ltd., d/b/a Deering Hospital; Allan such liens or claims, was not ambiguous as to Herskowitz, M.D.; Michael Latterman, D.O.; whether it extinguished any of patient's claims Inphynet Contracting Services, Inc.; South Florida against other parties, and thus hospital was Emergency Physicians, Inc.; Mitchell Gregg, M.D., entitled to award of attorney fees and costs after Jorge Fleites, M.D. and Florida Patients prevailing on summary judgment; settlement Compensation Fund, Appellees. proposal was limited to claims against hospital and did not limit recovery against third parties. No. 3D06-2476. I Oct. 3, 2007. I Rehearing Denied West's F.S.A. § 768.79; West's F.S.A. RCP Jan. 2, 2008. Rule 1.442. Synopsis Cases that cite this headnote Background: Patient brought medical malpractice action against hospital arising out of its alleged failure to diagnose and properly treat a stroke. After award of summary judgment in hospital's favor, the Circuit Court, Miami—Dade County, Scott Bernstein, J., awarded Attorneys and Law Firms attorney fees and costs to hospital based on its having made a settlement proposal to patient that was not *815 John W. Kearns, Coral Gables, for appellants. accepted. Patient appealed. Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and Rosemary B. Wilder, Coral Gables, for appellees. Holding: The District Court of Appeal, Ramirez, J., held that settlement proposal was not ambiguous as to whether Before RAMIREZ, WELLS, and SHEPHERD, 11. it extinguished any of patient's claims against other parties. Opinion RAMIREZ, J. Affirmed. Thomas B. Kee and Helen Kee appeal an award of attorney's fees and costs entered in favor of appellee Baptist Hospital of Miami, Inc. in this medical West Headnotes (I) malpractice case. We affirm because the underlying settlement proposal of Baptist Hospital was not too ambiguous and was thus enforceable. Costs -SRecovery less favorable than tender or offer The Kees filed a complaint against Baptist Hospital and Costs other healthcare providers in which they alleged that the (iFEffect of offer of judgment or pretrial deposit healthcare providers failed to diagnose and properly treat WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00679838  Haddad, Tonja 6/28/2014 For Educational Use Only Kee v. Baptist Hosp. of Miami, Inc., 971 So.2d 814 (2007) 32 Fla. L. Weekly D2374 Mr. Kee's stoke. Baptist Hospital thereafter filed its Nichols stated at the outset that it would be: Proposal for Settlement in the sum of $600.00. The proposal required the Kees to execute both a General [A] full and final satisfaction and Release and Hold Harmless and Indemnity Agreement. settlement of any and all of The Hold Harmless and Indemnity Agreement obligated Nichols's claims and causes of the Kees to hold Baptist Hospital harmless and indemnify action in, or arising out of the Baptist Hospital as follows: above-styled case. [F]rom any and all existing, or Id. at 1079. Then it provided that Nichols would be potentially existing, liens or other required to: claims which any person or entities may have on the damages sought in [E]xecute a General Release in this lawsuit arising out of [the favor of State Farm, which will be Kees'] claims or potential claims in expressly limited to all claims, this case. causes of action, etc., that have accrued through the date of The Proposal for Settlement also provided that the Kees Nichols's acceptance of this and the Kees' counsel: Proposal. [S]hall agree that all known liens or Id. The settlement proposal here contains no such other claims of third parties, language. including but not limited to, health care providers of [the Kees], will More importantly, the Florida Supreme Court held in be satisfied and extinguished by Nichols that the proposal for settlement was too [the Kees] and [the Kees'] counsel. ambiguous because the settlement proposal failed to eliminate the ambiguity regarding one of two claims The Kees did not respond to the proposal and the which Nichols had. Id. at 1078. At the time during which litigation continued for several years. The trial court the offer was made, Nichols had two pending claims: one subsequently granted summary judgment in Baptist was a PIP claim against State Farm, and another an Hospital's favor, and then entered final judgment uninsured motorist claim arising out of the same accident. awarding fees and costs in the sum of $160,912.80 in Id. It appeared as though Nichols, in order to settle one favor of Baptist Hospital. claim, would have had to sign a general release which would release his second claim as well. The release was *816 The Kees argue that the trial court incorrectly thus unclear as to whether or not the second claim would enforced the Proposal for Settlement because the proposal also be released in the settlement of the first claim. There was ambiguous under the Florida Supreme Court's is no similar ambiguity in this case. Baptist Hospital decision in State Farm Mut. Auto., Ins. Co. v. Nichols, offered to settle all claims against Baptist Hospital only, 932 So.2d 1067 (Fla.2006). We are mindful of the and it did not limit the Kees' ability to recover against any requirements which must be satisfied for a proposal for other defendant. settlement to be valid in accordance with section 768.79, Florida Statutes (2001), and rule 1.442, Florida Rules of Other Florida cases finding ambiguity are distinguishable Civil Procedure. But we do not agree that Florida law or as well. In Palm Beach Polo Holdings, Inc. v. The Village the Nichols case, upon which the Kees exclusively rely in of Wellington, 904 So.2d 652, 653-54 (Fla. 4th DCA this appeal to invalidate the proposal on ambiguity 2005), the Fourth District held that the proposal for grounds, mandates reversal here. settlement was legally deficient because it could have extinguished pending unrelated claims where there were First, the Nichols case is factually dissimilar. The multiple suits pending between the parties. By contrast, language in the settlement proposal in Nichols, for the situation here does not involve another pending action example, varies significantly from the language in the or potential lawsuit by the Kees against a party whose settlement proposal here. The proposal for settlement in claim would be extinguished by accepting the proposal WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00679839  Haddad. Tonja 6/2612014 For Educational Use Only Kee v. Baptist Hosp. of Miami, Inc., 971 So.2d 814 (2007) 32 Fla. L. Weekly D2374 and executing the releases. The proposal in this case Settlement was not too ambiguous. This is consistent with clearly offered to settle all claims against Baptist Hospital the Nichols case and more recent cases. only, not claims against any other party. We also reject the argument that the Proposal for Similarly, in Morgan v. Beekie, 879 So.2d 110, 111 (Fla. Settlement is ambiguous as to whether or not the Kees' 5th DCA 2004), the Fifth District found the proposal counsel must guarantee payment of any hospital liens to ambiguous because the proposal did not state or identify the extent that these are satisfied and extinguished. whether the demand related to pending property damage Furthermore, we decline to address the Kees' contention claims or personal injury claims. The same situation that Baptist Hospital's offer of settlement was not made in occurred in Dryden v. Pedemonii, 910 So.2d 854 (Fla. 5th good faith, an argument which they inappropriately raise DCA 2005). In that case, the trial court found the proposal for the first time on appeal. For these reasons, we affirm for settlement was ambiguous because it was unclear the final judgment awarding Baptist Hospital attorney's whether the language contained in the proposal would fees and costs. release PIP benefits claims or health insurance claims. *817 Id. at 856-57. Again, this is not the situation here. Affirmed. We thus conclude that the language of the settlement proposal limited recovery against Baptist Hospital to claims arising in relation to this case, and in no way Parallel Citations interfered with the Kees' ability to raise and recover as against any third party. Accordingly, the Proposal for 32 Fla. L. Weekly D2374 End of Document C 2014 Thomson Reuters. No claim to original U.S. Government Works. WestlawNexi © 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00679840