20 Fla. L. Weekly Supp. 375a

Online Reference: FLWSUPP 2004UNITInsurance — Personal injury protection — Coverage — Medical expenses — Res judicata — Final judgment in provider’s first case against insurer foreclosed provider’s later suit based on invoices resulting from treatment of same patient for same injuries resulting from same accident — Each of insurer’s successive breaches was related in time, origin, and motivation, they collectively formed a convenient trial unit, and provider had ample procedural means for fully developing entire transaction in one action going to the merits

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. AFFILIATED HEALTHCARE CENTER, INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2010-440 AP. Opinion filed January 22, 2013. An appeal from County Court of Miami-Dade County, Florida. Counsel: Lara J. Edelstein, for Appellant. Marlene S. Reiss, for Appellee.

(Before MURPHY, BRENNAN and HANZMAN, JJ.)

(HANZMAN, J.) Claiming the lower court erred by refusing to grant summary judgment in its favor based on“res judicata,”United Automobile Insurance Company (“United”) seeks reversal of a ninety five dollar ($95.00) judgment entered against it following the entry of a jury verdict.¹ According to United this action — and the resulting judgment — is foreclosed by a final judgment in a prior case litigated by the same parties involving claims for breach of the same insurance contract.² Appellee, Affiliated Healthcare Centers, Inc. (“Affiliated”), disagrees.

FACTS AND PROCEDURAL HISTORY

United’s insured, Collin Stewart (“Stewart”), was involved in an automobile accident on August 13, 2005. He received medical treatment from Affiliated for resulting injuries. Stewart’s treatment commenced on August 19, 2005 and continued through February 7, 2006. Stewart assigned his claims for PIP benefits to Affiliated.

On March 13, 2006 Affiliated brought suit against United seeking payment for services provided to Stewart between August 19, 2005 and December 23, 2005. (“Case 1”). Over two (2) years later, on June 5, 2008, Affiliated brought this action against United seeking payment for services provided to Stewart between December 30, 2005 and February 7, 2006. (“Case 2”). According to Affiliated at the time “Case 1” was filed (March 13, 2006) its cause of action on the bills subject to “Case 2” had not yet accrued, as payment for those bills was not denied until May 16, 2008. And while United points out that at the time “Case 1” was filed (March 13, 2006) “all of the medical services rendered to the insured by [Affiliated] had been performed,” it does not dispute the fact that payment for those services was not overdue as of that date. Thus, it appears that Affiliated’s claims based on non-payment of the December 30, 2005 through February 7, 2006 bills had not accrued at the time “Case 1” was filed. There is no doubt, however, that they accrued during the time “Case 1” was still pending.³

In response to the 2008 complaint United filed a motion to consolidate the two actions. The motion, filed pursuant to Rule 1.270, asserted that United was improperly being forced to litigate the same issues between the same parties in two (2) different fora. Affiliated filed an opposition but neither party set the matter for a hearing. As a result the two (2) cases proceeded on separate tracks.

On March 25, 2009 the court in “Case 1” entered final summary judgment in favor of Affiliated, thereby disposing of that action. Nine (9) days later — on April 3, 2009 — United filed a proposed amended answer asserting that Affiliated’s “current case is barred because it has improperly split its cause of action. . .” On June 4, 2009 United filed yet another proposed amended answer alleging that “[t]he entry of final judgment on the merits in the first filed suit bars the filing of the instant lawsuit under the doctrine of res judicata.”United’s motion for leave to amend its answer was heard on December 1, 2009. While the trial court — over Affiliated’s objection — granted United leave to assert its amended defenses, it assured the parties that it was “not going to grant a motion on res judicata.”The lower court made good on its word when it subsequently denied United’s motion for summary judgment and later struck these defenses at the commencement of trial.

This procedural history reveals that both parties were on notice of this potentially dispositive issue, and both parties had ample opportunity to avoid it altogether. Affiliated could have either filed a motion for leave to amend in order to have its claims based upon the later bills added to — and adjudicated in — its already pending lawsuit involving the same contract. Or it could have consented to United’s motion to consolidate, thereby eliminating any risk that these later claims would be barred. It instead decided to proceed ahead in both cases, apparently confident that the doctrine of“res judicata”would not be triggered because “[d]ifferent sets of bills were sued for in each of the two (2) lawsuits.” United, on the other hand, also had an opportunity to avoid this issue by setting its motion to consolidate for a hearing. Perhaps United made a decision not to do so confident that once the prior case was disposed of these claims would be barred.

In any event, it is apparent that both sides gambled on their respective legal positions and assumed the risk of being incorrect. So our task is to decide which party won this calculated bet, an issue we review de novo. See Rodriguez v. City of Key West, 981 So.2d 664 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1369a](review of an order granting or denying summary judgment is de novo); United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D2390a] (a trial court’s ruling on the legal issue of whether res judicata bars a claim is a question of law reviewed de novo).

ANALYSIS

The issue presented here is relatively straightforward but its resolution not so simple. When a party successively breaches the same contract resulting in different damages, may the non-breaching party bring a separate action for each breach, or is the non-breaching party required to bring (or at least attempt to bring) all its claims in a single suit? Affiliated says that because each of “United’s successive breaches” gives rise to a separate cause of action, it was entitled to bring the first suit to collect for services rendered between August 19, 2005 and December 23, 2005, and a second suit to collect for services rendered between December 30, 2005 and February 7, 2006. That is because — according to Affiliated — “the cause of action and damages sued for in each lawsuit” are different.

Taking Affiliated’s argument to its logical extreme would of course permit it to bring a separate lawsuit on each and every unpaid bill. So if Stewart had been treated three (3) times a week for ten (10) weeks and United failed to pay a separate bill rendered for each date of service, Affiliated would be permitted to bring thirty (30) lawsuits because each refusal to pay would — according to Affiliated — give “rise to a separate and distinct breach of insurance contract and a separate and distinct cause of action.” But under Affiliated’s logic if it waited until treatment was concluded, and sent a single bill for all services which United improperly denied, only one (1) suit would be permitted, as a failure to pay that single bill would be one (1) breach, giving rise to only one (1) cause of action.

United, on the other hand, says that regardless of how many separate bills are issued, the established elements in each cause of action are the same, as each arise out of the same insurance contract, covering the same insured, for services provided arising out of a single accident. According to United its multiple breaches constituted a “single wrongful act” for res judicata purposes, thereby obligating Affiliated to sue for all of them one (1) time, in a single suit. So taking United’s argument to its logical extreme Affiliated was required to either wait until its claims for all services provided to Stewart accrued and file one (1) action, or continuously amend its complaint as successive bills became overdue (i.e., when each cause of action accrued) — a protocol which is apparently now required by statute.⁴

A careful review of relevant appellate decisions confirms that the elements of these related defenses are always easy to recite but often difficult to apply. As Judge Gross pointed out in Tyson v. Vicon, 890 So. 2d 1205 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D185c], “imprecise language used by district courts of appeal have resulted in this being a confusing and difficult area of Florida law.” Id at 1214. We agree.

“[T]he Florida cases are uniform in their pronouncement of the requisite elements of res judicata. There must be:

1) identity of the thing sued for;

2) identity of the cause of action;

3) identity of persons and parties of the action; and

4) identity of the quality in the person for or against whom the claim is made.”

Signo v. Florida Farm Bureau Cas. Ins. Co., 454 So.2d 3, 4 (Fla. 4th DCA 1984). The rule against splitting a cause of action, which has been described as “an aspect” of the doctrine of“res judicata,”likewise provides that “all damages sustained by a party as a result of a single wrongful act must be claimed and recovered in one (1) action.” Lobato-Bleidt v. Lobato, 688 So.2d 431 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D541c].⁵ Both res judicata and the rule against splitting a cause of action are designed to avoid piecemeal litigation, promoting judicial efficiency and economy. Each are “founded upon the plainest and most substantial justice namely, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits.” Gaynon v. Statum, 10 So.2d 432, 433 (Fla. 1942).

In Signo, the court discussed why application of these defenses is sometimes so difficult, pointing out that “much of the confusion and misunderstanding in this area is generated by the terms used, such as claim, cause of action, theory of recovery, grounds, and remedies,” 454 So. 2d at 4, causing courts to grapple with how these terms are defined for purposes of applying rules of preclusion. See, e.g., Tyson, 890 So. 2d 1205. The Signo court then turned to the American Law Institute, Restatement of the Law of Judgments, (Second) which describes “[t]he essence of what is intended to be precluded under the concept of res judicata,”and in particular Section 24:

(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguishes all rights of the plaintiff to remedies against the defendant with respect to all or part of the transaction, or a series of connected transactions, out of which the action arose.

That a number of different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims. This remains true although the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief.

Restatement of Law of Judgments, (Second), at 200. See also 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4407 (3d ed. 1998).

Applying this rule it is clear, and courts have routinely held, that all claims arising from a single “wrongful act” or a “single transaction” must be brought at one (1) time, in a single action, and that a final judgment in a prior action will extinguish all claims arising out of the same “wrongful act” or “transaction.” It matters not that the later claim carries a different label. See, e.g., Signo, 454 So. 2d 3, (the transaction here was the collision and any theory for holding appellee liable for injuries resulting therefrom was required to be brought in third amended complaint); Woodson v. Woodson, 89 So. 2d 665 (Fla. 1956) (all legal theories which may have resulted in liability for wrongful death were required to be plead and pursued in the prior action); Hay v. Salisbury, 109 So. 617 (Fla. 1926) (specific performance claim was barred when it could have been asserted in a prior suit to quiet title arising out of the same real estate transaction, as doctrine of res judicata precludes litigation of issues tried as well as those which could have been tried in prior case); Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla.1984) (doctrine of res judicata makes a judgment on the merits conclusive “not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action”).

Nor does it matter that the second suit seeks a different measure of damages or different relief altogether. See Restatement, supra, p. 200; Gaynon v. Statum, 10 So. 2d 432, 433 (Fla. 1942) (“[a]s a general rule the law mandatorily requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one (1) action or not at all”); McKibben v. Zamora, 358 So. 2d 866 (Fla. 3d DCA 1978) (the law does not permit a plaintiff to split his cause of action by dividing his property and personal injury claims arising from a single tort into two (2) lawsuits); Unger v. Bergness, 172 So. 2d 627 (Fla. 3d 1965) (“plaintiff was precluded from filing separate suits for injuries to his dog and for his dogs death arising out of the same attack by defendant’s dog.”)

So in instances when a party commits a single tortious act or commits a single breach of contract, these “rules” generally lend themselves to easy application. All claims arising out of the single tortious act, or single breach — however labeled — must be brought in a single action, even when each may entitle the aggrieved party to different types of damages. The victim of a car accident is required to sue the tort-feasor for “strict liability,” “negligence” and “gross negligence” in the same suit, and is required to seek “property,” “personal injury,” “lost wages,” and any other permissible damages in that single action. And if a contractor building a home applies a defective roof the homeowner is required to bring her “breach of contract,” “breach of warranty,” and “negligence” claims together in a single action, seeking all damages, even though the damages to the structure, and the damages resulting from the loss of personal property, may be distinct both in character and degree.

At the other extreme it is equally clear that the doctrine of res judicata will not bar a claim that could not possibly have been properly brought in the prior action, even when the parties are the same. See, e.g., Burns v. Daimler Chrysler Corp., 914 So. 2d 451 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2358a] (Magnuson Moss’ claim was not barred by prior Lemon Law arbitration as Lemon Law Board lacked the “authority to hear Magnuson Moss claim and to award the damages authorized by 15 U.S.C. §2301 et. seq.”); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216 (Fla. 2006) [31 Fla. L. Weekly S882a] (arbitration proceeding did not operate to bar subsequent bad faith claim as that claim could not be legally brought prior to arbitrator’s coverage determination); Inter-Active Servs. Inc. v. Heathrow Master Assoc., Inc., 809 So. 2d 900 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D619a] (damage claim that did not arise until trial court ruled on prior injunction claim not barred as it could not have been brought prior to end of earlier suit); Lobato-Bleidt v. Lobato, 688 So. 2d 431 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D541c] (a judgment is not res judicata as to rights that were not in existence and which could not have been litigated at the time the prior judgment was entered”).

These doctrines also do not apply when parties are bringing — or defending — the cases in different capacities. See, e.g., Gaynon, 10 So. 2d 432, (husband had a cause of action in his capacity as husband for damages caused to his wife, as well as damages for his own injuries which he could not recover in his wife’s action. As a result, his joining in with wife’s prior action did not preclude his later suit). This rule has been applied in the insurance context. See State Farm Mut. Auto. Ins. Co. v. Yenke, 804 So. 2d 429 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2521a] (Judgment in first suit brought against State Farm in its role as the uninsured motorist carrier did not bar second suit against State Farm in its role as underinsured motorist carrier, and plaintiff did not improperly split her cause of action as breach of “each coverage provision in an insurance policy gives rise to a separate cause of action”); Bryant v. Allstate Ins. Co., 584 So. 2d 194 (Fla. 5th DCA 1991) (judgment in prior suit for property and personal injury damages against insurer did not bar second suit against insurer for beach of uninsured motorist provision of her insurance contract as “a breach of each coverage provision give rise to a separate cause of action and may be separately asserted”).⁶

Cases such as this one do not fall at either end of this spectrum. On the one hand, United committed more than a “single” wrongful act, as it breached the contract each time it refused payment. On the other hand the court in “Case 1” had the legal ability to adjudicate each of Affiliated’s “claims;” United was sued in the same capacity in both cases; and Affiliated had the ability to bring (or at least try to bring) all of these related claims in that case, as each accrued prior to the time “Case 1” proceeded to final judgment. The only difference between this case and a run-or-the-mill scenario compelling easy application of res judicata is that instead of there being a “single” breach, United successively breached the same covenant in a series of connected transactions. See Restatement (Second) § 24. But “the law does not permit the owner of a single or entire cause of action or an entire indivisible demand to divide or split that cause of action so as to make it the subject of several actions . . .” AMEC Civil, LLC v. State, Dep’t. of Transp., 41 So. 3d 235, 241 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D864c]. Rather, “it is incumbent” upon plaintiffs to raise all available claims involving the same circumstances in one action.” Dep’t. of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 570 So 2d 892, 901 (Fla.1990).

For purposes of applying res judicata in cases, such as this, involving a “series of connected transactions,” the questions of “[w]hat factual groupings constitute a ‘transaction’, and what groupings constitute a ‘series,’ are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” AMEC Civil, LLC v. State, Dep’t. of Transp., 41 So.3d at 239, citing Restatement (Second) of Judgments, § 24 at 196 (1982). This analysis, as the comment to the Restatement instructs, results in defining a claim to encompass all the remedial rights of the plaintiff arising out of a series of connected transactions, “when the parties have ample procedural means for fully developing the entire transaction in the one (1) action going to the merits to which the plaintiff is ordinarily confined.” Restatement (Second) of Judgments, § 24 at 196 cmt. d. Thus:

When a defendant is accused of . . . acts which though occurring over a period of time was substantially of the same sort and similarly motivated, fairness to the defendant as well as the public convenience may require that they be dealt with in the same action.

Id.

In AMEC Civil LLC, supra, the court applied these Restatement provisions in a case which, like the one at bar, involved allegations that the defendant (DOT) had repeatedly breached the same construction contract causing different damages each time. The plaintiff, AMEC, first brought suit for breach in August 2003, claiming that DOT failed to obtain permits necessary to work on the project at night (“Night Work Lawsuit”). While that suit was pending DOT issued its final acceptance of the work, at which time AMEC provided a comprehensive list of additional contractual breaches allegedly entitling it to relief. DOT, in turn, repeatedly sought to continue and/or stay the “Night Work Lawsuit,” arguing that all “claimed breaches of the parties’ contract should be adjudicated in a single lawsuit.” Id. 41 So. 3d at 237. Though the trial court denied DOT’s attempt to delay the proceeding and ruled that AMEC was not required to amend to add claims for subsequent alleged breaches, it advised AMEC that it “risked” those subsequent claims being later barred.

Despite the trial court’s warning — over DOT’s protestation — and at AMEC‘sinsistence — the “Night Work Lawsuit” proceeded to judgment. DOT, like United here, then asserted that “its liability under the contract had been fully adjudicated.” Id at 238. And when AMEC subsequently brought suit in an attempt to collect damages resulting from the subsequent breaches DOT — like United here — claimed that the suit was barred by res judicata and the related doctrine against splitting a cause of action. The trial court agreed and entered summary judgment in DOT’s favor. Id.

Relying on the Restatement (Second) of Judgments, and in particular § 24, the appellate court first observed that AMEC had “ample procedural means for developing the entire transaction” in one (1) action. Id at 240. The court cited Fla. R. Civ. P. 1.190(d) which allows a party to “serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented,” as well as Fla. R. Civ. P. 1.190(e) which permits amendments “in furtherance of justice.” Id. The court then pointed out that “[b]oth the ‘Night Work Lawsuit’ and the breaches alleged in the present action are based on a single contract between the parties,” a contract the court found “indivisible,” as all of its parts, material provisions and the consideration [were] common to each other and interdependent.” Id.

Finally, the court observed that AMEC was not “required to file the Night Work Lawsuit in 2001,” and that “[o]nly AMEC’s strategic choice prevented joinder of all claims.” Id at 243. For this reason, the court found that “the numerous alleged breaches of the indivisible contract could ‘with propriety have been litigated and determined’ in a single action.” Id, citing Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984). The court therefore perceived “no justification for departing from the general rule that all claims arising out of the same indivisible contract constitute the same cause of action for purposes of res judicata.” Id. Finding “no injustice in the learned trial judge’s decision not to give AMEC two (2) bites at the apple,” the court affirmed the summary judgment. Id.

In his dissent Judge Kahn expressed the view that the majority had improperly relied upon the principle of “one contract, one lawsuit” to establish the elements of res judicata, in a case involving separate, unrelated breaches of contract spanning a period of time “of some four-and-a-half years.” Id at 244. In his view successive breaches of a continuing contract causing separate damages results “in separate causes of action” which can be separately pursued. Id. In other words, “[c]laims for subsequent unrelated breaches of a contract resulting in new and distinct damages are not barred by res judicata and may be addressed in new lawsuits.” Id at 245. In his opinion DOT’s breaches of the contract were not “based on a single group of operative facts,” nor was there any “other relationship between the breaches other than the occurrence in the context of the construction project.” Id at 245, 246. Under such circumstances Judge Kahn did “not see any favorable public policy emanating” from the holding in the case, which in his view caused AMEC “to bear the financial burden for DOT’s subsequent breaches without any opportunity for recourse.” Id. See also, Klein v. John Hancock Mutual Life Ins. Co., 683 F. 2d 358 (11th Cir. 1982) (because a long term continuing contract can be breached intermittently during its term, litigation or settlement will not automatically bar a later suit for a second identical breach).

Although Judge Kahn’s reasoning may, to some extent, be compelling, he did “dissent,” and AMEC clearly supports United’s position. In fact, this dispute presents an even more compelling case for application of res judicata than did AMEC, as: (a) United’s breaches were not “separate and unrelated,” but rather involved breaches of the identical covenant applied to the same patient; and (b) the alleged breaches occurred over a span of only a few months, not over years. So Affiliated could have easily — and without prejudice — waited until all its claims for breach of this identical promise accrued to bring suit. Or it could have amended to add its claims based upon the later bills. Or it could have consented to United’s motion to consolidate. Like in AMEC, the only thing that “prevented the joinder of all claims” was Affiliated’s “strategic choice.” This is not a situation where all claims could not have been pursued in one (1) action. Compare, Dadeland Depot Inc., supra; Lobato-Bleidt, supra (res judicata does not bar claims that were not in existence at the time the prior judgment was entered).

Under the circumstances of this case, involving successive breaches of the identical contract — and identical contract provision — we hold that the final judgment entered in “Case 1” foreclosed Affiliated’s later suit based on invoices resulting from its treatment of the same patient for injuries resulting from the same accident. Each successive breach was related in time, origin and motivation; they collectively formed a convenient trial unit; and Affiliated had “ample procedural means for fully developing the entire transaction in the one (1) action going to the merits to which the plaintiff is ordinarily confined.” Restatement (Second) of Judgments § 24. We find AMEC to be at least persuasive — and possibly binding — particularly as it is in accord with precedent from this district. See Beck v. Penn. Nat’l. Mutual Cas. Ins. Co., 279 So. 2d 377 (Fla. 3d DCA 1973) (insured who sued for breach of covenant to defend lawsuits brought by two (2) injured parties precluded from pursuing second lawsuit after disposition of the first case as “it was incumbent on [insured] to have awaited the conclusion of the two (2) [underlying] cases, which would have established the expenses in both cases, and to have filed one (1) action for such expenses when so determined, in order to avoid splitting the cause of action”).

Requiring a party such as Affiliated to bring all of its claims in one (1) proceeding furthers the policies of underlying this doctra; namely, that “litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits.” Gaynon v. Statum, 10 So. 2d 442, 443 (Fla. 1942). Parties are required “to raise all available claims involving the same circumstances in one action” because doing so promotes finality, stability in the law, and judicial efficiency. Dep’t. of Agric. & Consumer Servs. v. Mid Florida Greens, Inc., 570 So. 2d 892, 901 (Fla. 1990). Finally, we find that application of res judicata here does not lead to any inequity, as (a) Affiliated was aware of — and assumed the risk of — such a result which it could have easily avoided; and (b) Affiliated was not precluded from asserting these claims in “Case 1.” Compare, Diaz v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp 774a (Fla. 11th Cir. July 13, 2011) (judgment based on res judicata would result in “manifest injustice” as order freezing pleadings in prior case denied plaintiff the “ability to amend the complaint” to add claim based on later bills).

The Judgments below are Reversed, with instruction to make judgment for United.

__________________

¹And, a fortiori, the resulting judgment for attorney’s fees and costs entered pursuant to Fla. Stat. § 627.428(1).

²Styled Affiliated Healthcare Centers Inc., (a/a/o) Stewart Collin v. United Auto Ins. Co., Case Number 06-03832 SP 05

³While Stewart’s treatment concluded on February 7, 2006, for some reason, which the parties do not illuminate, the pre-suit demand letter for the bills that are subject to this case was not sent until April 18, 2008. When United received that 2008 demand letter it advised Affiliated that a prior action between the parties involving bills for services provides to the same insured was pending; that any issues regarding these subsequent bills for services rendered to the same insured should be litigated in that prior case; and that any later suit would be defended on the basis that Affiliated had improperly split its cause of action.

⁴In 2008 the PIP statute was amended, adding Fla. Stat. § 627.736(15), which mandates that “all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is shown why such claims should be brought separately.” Id. Affiliated says that the law prior to this enactment must have permitted multiple suits as the legislature would not have enacted a meaningless provision. See Merkle v. Health Options, Inc., 940 So. 2d 1190 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2579a] (“it must be assumed that a provision enacted by the legislature is intended to have some useful purpose”). As we have been provided no legislative history, we cannot discern whether the purpose of this statute was to change, clarify or codify existing law. Nor will we speculate on the matter. Our task is to apply the law in existence at the relevant time, as no party suggests that this case is governed by the 2008 statute. See, e.g., Knowles v. Beverly Enterprises-Florida Inc., 898 So. 2d 1, 6 (Fla. 2004) [29 Fla. L. Weekly S788a] [ 30 Fla. L. Weekly S15a] (refusing to consider statute enacted during pendency of the case which specifically addressed controversy, noting that legislative history was silent and concluding the “revision to be of no monument. . .”).

⁵While the rule against splitting causes of action is “an aspect of the doctrine of res judicata,” see Alvarez v. Nestor Salesco, Inc., 695 So. 2d 941 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1627a], the two “are not interchangeable concepts.” Tyson v. Viacom, Inc., 890 So. 2d 1205, 1211 (Fla. 4th DCA 2005) [28 Fla. L. Weekly D2420c] [30 Fla. L. Weekly D185c]. “It logically follows that if res judicata is not a bar to the bringing of a claim, impermissible splitting of a cause of action is not either.” Id. But “one who runs afoul of res judicata may not have done so by impermissibly splitting cause of action, as the claim could be barred based on another aspect of res judicata. Id.

⁶Affiliated — relying upon Bryant and Yenke for the proposition that “[a] breach of each coverage provision gives rise to a separate cause of action and may be separately asserted,” Bryant, 584 So. 2d 195 — again maintains that each failure to pay one of its invoices justified — and permitted — a separate lawsuit. But both Bryant and Yenke, unlike this case, involved breaches of “separate and divisible” coverage covenants, and the defendant insurers were sued in different capacities. See Bryant, supra, at195; Yenke, 804 So. 2d at 431(“State Farm in its role as the uninsured motorist coverage is different than State Farm in its role as underinsured motorist carrier”).

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