41 Fla. L. Weekly D1469aTop of Form
Torts
— Automobile accident — Settlement agreement — Because presuit settlement
involved minors and totaled $50,000 or more, trial court was required to
appoint a guardian ad litem to represent children’s interest before approving
settlement that disposed of children’s claims — Settlement was invalid as to
claims of children, and trial court erred by dismissing children’s complaint
based upon that agreement — No merit to argument that $25,000 earmarked to
settle claim of deceased driver should be excluded from computation of gross
settlement, as evidence established that insurer globally tendered $50,000 policy
limit to settle all claims, including those of minors
— Automobile accident — Settlement agreement — Because presuit settlement
involved minors and totaled $50,000 or more, trial court was required to
appoint a guardian ad litem to represent children’s interest before approving
settlement that disposed of children’s claims — Settlement was invalid as to
claims of children, and trial court erred by dismissing children’s complaint
based upon that agreement — No merit to argument that $25,000 earmarked to
settle claim of deceased driver should be excluded from computation of gross
settlement, as evidence established that insurer globally tendered $50,000 policy
limit to settle all claims, including those of minors
LATASHA FULTON ALLEN and TRAVIS ALLEN, as parents and
natural guardians of T.A., a minor child; LATASHA FULTON ALLEN, as mother and
natural guardian of T.S., a minor child, and LATASHA FULTON ALLEN, as legal
guardian of S.K., a minor child, Appellants, v. OSCAR MONTALVAN, CLAUDIA DEBUSK
f/k/a CLAUDIA MONTALVAN, and PROGRESSIVE INSURANCE COMPANY, Appellees. 4th
District. Case No. 4D15-675. June 22, 2016. Appeal from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case
No. 11-19315 (08). Counsel: Jay B. Green of Green Ackerman & Frost, P.A.,
Boca Raton, William B. King of Searcy Denney Scarola Barnhart & Shipley,
P.A., and Philip M. Burlington and Nichole J. Segal of Burlington &
Rockenbach, P.A., West Palm Beach; for appellants. John H. Richards, Michele
Ricca, and Yvette Lavelle of Boyd Richards Parker & Colonelli, P.L., Fort
Lauderdale, for appellee Claudia Debusk f/k/a Claudia Montalvan. John J. Wilke
and Luis A. Botero of The Law Office of John J. Wilke, Boca Raton, for appellee
Oscar Montalvan. Thomas E. Scott and Scott A. Cole of Cole, Scott &
Kissane, P.A., Miami, for appellee Progressive Insurance Company.
natural guardians of T.A., a minor child; LATASHA FULTON ALLEN, as mother and
natural guardian of T.S., a minor child, and LATASHA FULTON ALLEN, as legal
guardian of S.K., a minor child, Appellants, v. OSCAR MONTALVAN, CLAUDIA DEBUSK
f/k/a CLAUDIA MONTALVAN, and PROGRESSIVE INSURANCE COMPANY, Appellees. 4th
District. Case No. 4D15-675. June 22, 2016. Appeal from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case
No. 11-19315 (08). Counsel: Jay B. Green of Green Ackerman & Frost, P.A.,
Boca Raton, William B. King of Searcy Denney Scarola Barnhart & Shipley,
P.A., and Philip M. Burlington and Nichole J. Segal of Burlington &
Rockenbach, P.A., West Palm Beach; for appellants. John H. Richards, Michele
Ricca, and Yvette Lavelle of Boyd Richards Parker & Colonelli, P.L., Fort
Lauderdale, for appellee Claudia Debusk f/k/a Claudia Montalvan. John J. Wilke
and Luis A. Botero of The Law Office of John J. Wilke, Boca Raton, for appellee
Oscar Montalvan. Thomas E. Scott and Scott A. Cole of Cole, Scott &
Kissane, P.A., Miami, for appellee Progressive Insurance Company.
(FORST, J.) Appellants Latasha Fulton Allen (“the mother”)
and Travis Allen (“the father”), on behalf of minors, T.A., T.S., and S.K.
(collectively “the children”), appeal the trial court’s order enforcing a
settlement agreement and dismissing their suit against appellees Oscar
Montalvan and Claudia Debusk (Montalvan’s former wife). Because we agree that
the settlement agreement was invalid as to the claims of the children, we
reverse the trial court’s order and remand for further proceedings.
and Travis Allen (“the father”), on behalf of minors, T.A., T.S., and S.K.
(collectively “the children”), appeal the trial court’s order enforcing a
settlement agreement and dismissing their suit against appellees Oscar
Montalvan and Claudia Debusk (Montalvan’s former wife). Because we agree that
the settlement agreement was invalid as to the claims of the children, we
reverse the trial court’s order and remand for further proceedings.
BACKGROUND
The children were three of six passengers in an automobile
that was involved in an accident with the appellees. The driver of the
automobile, the grandmother of two of the children and the mother of the third,
was killed in the crash. The other passengers, including the mother and another
minor, suffered varying degrees of injuries.
that was involved in an accident with the appellees. The driver of the
automobile, the grandmother of two of the children and the mother of the third,
was killed in the crash. The other passengers, including the mother and another
minor, suffered varying degrees of injuries.
Within two days of the accident, the mother entered into an
agreement with Miller & Jacobs, P.A., to represent herself and her family
members, including the children, injured in the accident. As part of the
representation agreement, the mother granted Miller & Jacobs the authority
to “prosecute any suits or actions . . . and to settle, compromise, dismiss, or
discontinue same.”
agreement with Miller & Jacobs, P.A., to represent herself and her family
members, including the children, injured in the accident. As part of the
representation agreement, the mother granted Miller & Jacobs the authority
to “prosecute any suits or actions . . . and to settle, compromise, dismiss, or
discontinue same.”
Miller & Jacobs sent a letter to the appellees’
insurance carrier, Progressive (also an appellee in this action), seeking
coverage information. The appellees’ coverage had limits of $25,000 per person
and $50,000 per incident. A Progressive employee spoke with Jacobs to discuss
possible claims against the appellees.
insurance carrier, Progressive (also an appellee in this action), seeking
coverage information. The appellees’ coverage had limits of $25,000 per person
and $50,000 per incident. A Progressive employee spoke with Jacobs to discuss
possible claims against the appellees.
The details of the conversation between Progressive and
Miller & Jacobs are disputed. The Progressive employee claims she told
Jacobs that Progressive would be “globally tendering our policy limits to
extinguish all bodily injury claims.” She recounted that Jacobs requested the
payment to be made as two checks, for $25,000 each, made payable to Miller
& Jacobs’s trust account. One check would be to settle the wrongful death
claim of the grandmother’s estate, while the remaining $25,000 was to settle
the claims of the five surviving passengers. The Progressive employee stated
that how Miller & Jacobs chose to divide the monies between these remaining
claimants was left to the law firm’s discretion. Progressive sent release forms
to be signed by the mother on behalf of the grandmother’s estate, herself, and
the four minors. Because of the uncertainty of how the funds were going to be
allocated, Progressive left the amounts in each release blank for the lawyers
to fill in. The Progressive employee testified that she did not even
contemplate that the money would be dispersed in such a manner that certain
claimants would not receive any funds.
Miller & Jacobs are disputed. The Progressive employee claims she told
Jacobs that Progressive would be “globally tendering our policy limits to
extinguish all bodily injury claims.” She recounted that Jacobs requested the
payment to be made as two checks, for $25,000 each, made payable to Miller
& Jacobs’s trust account. One check would be to settle the wrongful death
claim of the grandmother’s estate, while the remaining $25,000 was to settle
the claims of the five surviving passengers. The Progressive employee stated
that how Miller & Jacobs chose to divide the monies between these remaining
claimants was left to the law firm’s discretion. Progressive sent release forms
to be signed by the mother on behalf of the grandmother’s estate, herself, and
the four minors. Because of the uncertainty of how the funds were going to be
allocated, Progressive left the amounts in each release blank for the lawyers
to fill in. The Progressive employee testified that she did not even
contemplate that the money would be dispersed in such a manner that certain
claimants would not receive any funds.
Jacobs’s recollection of the conversation is different. He
testified that Progressive’s employee offered to tender the full policy limit.
Jacobs and the employee did not “go into specifics, as far as dollar amounts
per claim. We didn’t go into specifics about whose claims we were settling. She
just said, I’m globally tendering the rest of the $25,000, and I’m going to
send you blank releases. And I said okay.” Jacobs recalled that he told the
Progressive representative to make the checks payable to his firm’s trust
account. He did not recall if he spoke with the employee about the releases, as
he sometimes settled cases without a release. He further stated that while he
considered the $25,000 and release naming the deceased to be a settlement of
the wrongful death claim, he did not consider the second $25,000 and releases
for the other parties to be a settlement, but rather considered it an
“insurance tender.” Miller echoed this testimony, stating that he did not
consider the tender to be a resolution of the claims, but was merely a tender
of the policy limits.
testified that Progressive’s employee offered to tender the full policy limit.
Jacobs and the employee did not “go into specifics, as far as dollar amounts
per claim. We didn’t go into specifics about whose claims we were settling. She
just said, I’m globally tendering the rest of the $25,000, and I’m going to
send you blank releases. And I said okay.” Jacobs recalled that he told the
Progressive representative to make the checks payable to his firm’s trust
account. He did not recall if he spoke with the employee about the releases, as
he sometimes settled cases without a release. He further stated that while he
considered the $25,000 and release naming the deceased to be a settlement of
the wrongful death claim, he did not consider the second $25,000 and releases
for the other parties to be a settlement, but rather considered it an
“insurance tender.” Miller echoed this testimony, stating that he did not
consider the tender to be a resolution of the claims, but was merely a tender
of the policy limits.
Progressive sent Miller & Jacobs a letter to memorialize
the aforementioned discussion. The letter stated:
the aforementioned discussion. The letter stated:
Based
on the information we have obtained with regard to this loss we are globally
tendering our insured’s [sic] $50,000 bodily injury policy limits to settle the
following claims: [listing all six of the parties’ names, including the
deceased driver]. This settlement is being made in exchange for a Full and
Final Release of our insured’s [sic], Claudia Montalvan and Oscar Montalvan.”
on the information we have obtained with regard to this loss we are globally
tendering our insured’s [sic] $50,000 bodily injury policy limits to settle the
following claims: [listing all six of the parties’ names, including the
deceased driver]. This settlement is being made in exchange for a Full and
Final Release of our insured’s [sic], Claudia Montalvan and Oscar Montalvan.”
Attached to the letter were two checks for $25,000 each,
payable to the Miller & Jacobs Trust Account, as well as six releases, each
naming one of the occupants of the car. The release form naming the deceased
stated consideration in the amount of $25,000. The other five releases left the
consideration amounts blank. Each release was entitled “Bodily Injury Release”
and stated the signatory/party:
payable to the Miller & Jacobs Trust Account, as well as six releases, each
naming one of the occupants of the car. The release form naming the deceased
stated consideration in the amount of $25,000. The other five releases left the
consideration amounts blank. Each release was entitled “Bodily Injury Release”
and stated the signatory/party:
hereby
for myself, and for my heirs[,] executors, administrators, successors and
assigns release and forever discharge Claudia Montalvan and Oscar Montalvan
from any and all claims, actions, causes of action, demands, damages, costs,
and any compensation whatsoever, including any claims for loss of consortium,
which the undersigned now has/have or which may hereafter accrue on account of
or in any way arising out of an accident which occurred on or about August 12,
2009, at or near Andrews Ave & N.E. 56 Street, Oakland Park, Broward
County, Florida.
for myself, and for my heirs[,] executors, administrators, successors and
assigns release and forever discharge Claudia Montalvan and Oscar Montalvan
from any and all claims, actions, causes of action, demands, damages, costs,
and any compensation whatsoever, including any claims for loss of consortium,
which the undersigned now has/have or which may hereafter accrue on account of
or in any way arising out of an accident which occurred on or about August 12,
2009, at or near Andrews Ave & N.E. 56 Street, Oakland Park, Broward
County, Florida.
The checks were deposited into the law firm’s trust account
on August 26, 2009, and payments from those funds were made to the mother by
sometime in 2011. The mother and father testified that these funds were used
for household expenses, including furniture, clothes, and food for the
children.
on August 26, 2009, and payments from those funds were made to the mother by
sometime in 2011. The mother and father testified that these funds were used
for household expenses, including furniture, clothes, and food for the
children.
Roughly two years later, in August 2011, Miller & Jacobs
sent the completed releases back to Progressive, with each release signed by
the mother and a witness. Each release was accompanied by a letter, stating
that it was a “release of all claims with regard to the settlement of the
above-referenced claim.” The blank consideration amounts were now filled in,
with the mother’s claim stating it was released for $25,000, while all the
minors’ claims showed consideration in the amount of $0. Everyone involved,
including Miller, Jacobs, and the mother, claimed to have no knowledge as to
who filled in these blanks, although the figures were apparently added while
the documents were in Miller & Jacobs’s control. In his deposition, Miller
stated that his representation of the plaintiffs “was completed” in August
2011, after the releases had been returned.
sent the completed releases back to Progressive, with each release signed by
the mother and a witness. Each release was accompanied by a letter, stating
that it was a “release of all claims with regard to the settlement of the
above-referenced claim.” The blank consideration amounts were now filled in,
with the mother’s claim stating it was released for $25,000, while all the
minors’ claims showed consideration in the amount of $0. Everyone involved,
including Miller, Jacobs, and the mother, claimed to have no knowledge as to
who filled in these blanks, although the figures were apparently added while
the documents were in Miller & Jacobs’s control. In his deposition, Miller
stated that his representation of the plaintiffs “was completed” in August
2011, after the releases had been returned.
Approximately two weeks after the return of the releases,
the mother, now represented by new attorneys, filed a complaint that, after
multiple amendments, alleged a claim for damages against the appellees arising
from the auto accident. The appellees answered the complaint and raised a
number of affirmative defenses, including that the claims were barred by
settlement or accord and satisfaction arising from the prior release, as well
as contributory negligence on the part of the mother and deceased driver.
Progressive intervened in the action to address the limited issues of
settlement, accord and satisfaction, and release. Progressive moved to enforce
the purported settlement by dismissing the claims against the appellees, and to
set a non-jury hearing to determine the validity and enforceability of the
alleged settlement. The mother objected, arguing that the settlement issue
should be submitted to a jury.
the mother, now represented by new attorneys, filed a complaint that, after
multiple amendments, alleged a claim for damages against the appellees arising
from the auto accident. The appellees answered the complaint and raised a
number of affirmative defenses, including that the claims were barred by
settlement or accord and satisfaction arising from the prior release, as well
as contributory negligence on the part of the mother and deceased driver.
Progressive intervened in the action to address the limited issues of
settlement, accord and satisfaction, and release. Progressive moved to enforce
the purported settlement by dismissing the claims against the appellees, and to
set a non-jury hearing to determine the validity and enforceability of the
alleged settlement. The mother objected, arguing that the settlement issue
should be submitted to a jury.
The trial court conducted an evidentiary hearing without a
jury. After hearing deposition testimony from the mother, the father, Miller,
Jacobs, and the Progressive employee, the trial court found in favor of the
appellees and granted the motion to enforce the settlement. The trial court
concluded that the parties had entered into a binding settlement agreement and
that chapter 744 of the Florida Statutes did not require a different outcome.
Accordingly, the trial court dismissed the children’s claims and entered final
judgment in favor of the appellees. This appeal followed.
jury. After hearing deposition testimony from the mother, the father, Miller,
Jacobs, and the Progressive employee, the trial court found in favor of the
appellees and granted the motion to enforce the settlement. The trial court
concluded that the parties had entered into a binding settlement agreement and
that chapter 744 of the Florida Statutes did not require a different outcome.
Accordingly, the trial court dismissed the children’s claims and entered final
judgment in favor of the appellees. This appeal followed.
ANALYSIS
The appellants argue that the alleged settlement agreement
was invalid because it did not comply with the requirements of chapter 744.
Whether the alleged settlement required the approval of a court under chapter
744 is a question of law and, as such, is reviewed de novo. Brown v. City of
Vero Beach, 64 So. 3d 172, 174 (Fla. 4th DCA 2011) (“[W]here the question
involves interpretation of a statute, it is subject to de novo review.”).
“We review the trial court’s factual findings for competent, substantial
evidence.” Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. 4th DCA 2012).
was invalid because it did not comply with the requirements of chapter 744.
Whether the alleged settlement required the approval of a court under chapter
744 is a question of law and, as such, is reviewed de novo. Brown v. City of
Vero Beach, 64 So. 3d 172, 174 (Fla. 4th DCA 2011) (“[W]here the question
involves interpretation of a statute, it is subject to de novo review.”).
“We review the trial court’s factual findings for competent, substantial
evidence.” Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. 4th DCA 2012).
Section 744.3025(1)(b), Florida Statutes (2009), states that
unless a guardian with no potential adverse interest to the minor has already
been appointed, “the court shall appoint a guardian ad litem to
represent the minor’s interest before approving a settlement of the minor’s
claim in a case in which the gross settlement involving a minor equals or
exceeds $50,000” (emphasis added). Although the appellees argue that the
$25,000 earmarked to settle the claim of the deceased driver should not be
included in the computation of the “gross settlement” for the purposes of this
statute, the facts in the record indicate otherwise. The trial court found that
Progressive globally tendered the $50,000 policy limit to settle all claims.
This finding was supported by competent substantial evidence and leads to the
inescapable conclusion that this was a case in which the universal settlement
“involve[ed]” the minor children and was within the monetary range of the
statute.
unless a guardian with no potential adverse interest to the minor has already
been appointed, “the court shall appoint a guardian ad litem to
represent the minor’s interest before approving a settlement of the minor’s
claim in a case in which the gross settlement involving a minor equals or
exceeds $50,000” (emphasis added). Although the appellees argue that the
$25,000 earmarked to settle the claim of the deceased driver should not be
included in the computation of the “gross settlement” for the purposes of this
statute, the facts in the record indicate otherwise. The trial court found that
Progressive globally tendered the $50,000 policy limit to settle all claims.
This finding was supported by competent substantial evidence and leads to the
inescapable conclusion that this was a case in which the universal settlement
“involve[ed]” the minor children and was within the monetary range of the
statute.
Further support for considering the full $50,000 as a single
settlement “involving a minor” comes from the Florida Probate Rules. Rule
5.636(d), which was intended to mirror the requirements of section 744.3025,
states:
settlement “involving a minor” comes from the Florida Probate Rules. Rule
5.636(d), which was intended to mirror the requirements of section 744.3025,
states:
The
court shall appoint a guardian ad litem on behalf of a minor, without bond or
notice, with respect to any proposed settlement that exceeds $50,000 and
affects the interests of the minor, if:
court shall appoint a guardian ad litem on behalf of a minor, without bond or
notice, with respect to any proposed settlement that exceeds $50,000 and
affects the interests of the minor, if:
(1)
there is no court-appointed guardian of the minor;
there is no court-appointed guardian of the minor;
(2)
the court-appointed guardian may have an interest adverse to the minor; or
the court-appointed guardian may have an interest adverse to the minor; or
(3)
the court determines that representation of the minor’s interest is otherwise
inadequate.
the court determines that representation of the minor’s interest is otherwise
inadequate.
Fla. Prob. R. 5.636(d).1 The committee notes for this
provision provide a useful illustration.
provision provide a useful illustration.
The total settlement to be
considered under subdivisions (d) and (e) is not limited to the amounts
received only by the minor, but includes all settlement payments or proceeds
received by all parties to the claim or action. For example, the proposed
settlement may have a gross value of $60,000, with $30,000 payable to the minor
and $30,000 payable to another party. In that instance the total proposed
settlement exceeds $50,000.
considered under subdivisions (d) and (e) is not limited to the amounts
received only by the minor, but includes all settlement payments or proceeds
received by all parties to the claim or action. For example, the proposed
settlement may have a gross value of $60,000, with $30,000 payable to the minor
and $30,000 payable to another party. In that instance the total proposed
settlement exceeds $50,000.
Fla. Prob. R. 5.636 committee notes.
Because the pre-suit settlement in this case involved minors
and totaled $50,000 or more, the trial court was required to appoint a guardian
ad litem to represent the children’s interest before approving a settlement
that disposed of the children’s claims. See generally Sullivan v. Dep’t of
Transp., 595 So. 2d 219 (Fla. 2d DCA 1992) (referencing other chapter 744
statutory provisions to arrive at the conclusion that, when the monetary
threshold amount is met in a pre-suit settlement, the minor’s guardian (natural
or appointed) must obtain the circuit court’s approval of the settlement).
Because the violation of section 744.3025(1)(b) is alone sufficient to require
reversal, we do not need to address the appellants’ other arguments for
invalidating the purported settlement agreement.
and totaled $50,000 or more, the trial court was required to appoint a guardian
ad litem to represent the children’s interest before approving a settlement
that disposed of the children’s claims. See generally Sullivan v. Dep’t of
Transp., 595 So. 2d 219 (Fla. 2d DCA 1992) (referencing other chapter 744
statutory provisions to arrive at the conclusion that, when the monetary
threshold amount is met in a pre-suit settlement, the minor’s guardian (natural
or appointed) must obtain the circuit court’s approval of the settlement).
Because the violation of section 744.3025(1)(b) is alone sufficient to require
reversal, we do not need to address the appellants’ other arguments for
invalidating the purported settlement agreement.
CONCLUSION
The record in this case indicates that Progressive, in good
faith, left the amounts given to each injured party to be determined by the
mother and her attorneys, Miller & Jacobs. However, Progressive and the two
other appellees, as parties to the settlement agreement, had an obligation to
ensure the settlement was legally binding. Because the proposed settlement did
not comply with the requirements of section 744.3025, it was invalid as to the
claims of the children. As such, the trial court erred by dismissing the
children’s complaint based upon that agreement. We thus reverse for further
proceedings in this case.
faith, left the amounts given to each injured party to be determined by the
mother and her attorneys, Miller & Jacobs. However, Progressive and the two
other appellees, as parties to the settlement agreement, had an obligation to
ensure the settlement was legally binding. Because the proposed settlement did
not comply with the requirements of section 744.3025, it was invalid as to the
claims of the children. As such, the trial court erred by dismissing the
children’s complaint based upon that agreement. We thus reverse for further
proceedings in this case.
Reversed. (WARNER and CONNER, JJ., concur.)
__________________
1We note there is a discrepancy
between the language in the statute and the language in the rule. Specifically,
the statute’s monetary threshold is met when a settlement “equals or exceeds
$50,000” while the rule triggers only when the settlement “exceeds $50,000.”
(emphases added). The committee notes to Rule 5.636 makes no reference to this
difference, but do note that the 2006 amendment revising the rule was intended
“to reflect 2006 passage of new section 744.3025, Claims of Minors, increasing
the dollar figure from $25,000 to $50,000 as the threshold for requiring
appointment of guardian ad litem . . . .” We take this note describing the
amendment to indicate that the rule is meant to mirror the statute and that any
alteration of the language was incidental.
between the language in the statute and the language in the rule. Specifically,
the statute’s monetary threshold is met when a settlement “equals or exceeds
$50,000” while the rule triggers only when the settlement “exceeds $50,000.”
(emphases added). The committee notes to Rule 5.636 makes no reference to this
difference, but do note that the 2006 amendment revising the rule was intended
“to reflect 2006 passage of new section 744.3025, Claims of Minors, increasing
the dollar figure from $25,000 to $50,000 as the threshold for requiring
appointment of guardian ad litem . . . .” We take this note describing the
amendment to indicate that the rule is meant to mirror the statute and that any
alteration of the language was incidental.
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