28 Fla. L. Weekly Supp. 333a
Online Reference: FLWSUPP 2804PINEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Collateral estoppel — Where identical parties have previously litigated identical issue of reasonableness of medical provider’s charges for same CPT codes, parties had full and fair opportunity to litigate issue and did litigate issue in prior proceedings, and issue is critical and necessary part of litigation, all elements necessary for application of doctrine of collateral estoppel are met — It is immaterial that prior adjudications pertained to different accidents, patients, claims, causes of action, and assignments of benefits than present case — No merit to argument that doctrine of collateral estoppel should not be applied because insurer believes that prior adjudications constituted error where insurer allowed those adjudications to become final without appeal — No merit to argument that court is barred from applying doctrine of collateral estoppel because it was not raised in provider’s reply, as rules and law did not permit provider to file reply asserting collateral estoppel — Provider is entitled to judgment on reasonableness issue as matter of law
DOCTOR REHAB CENTER, INC., a/a/o Winston Pineda, Plaintiff, v. UNITED AUTO. INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2011-002967-CC-21, Section HI01. April 20, 2020. Milena Abreu, Judge. Counsel: Majid Vossoughi, Brad Blackwelder, and David Mannering, Majid Vossoughi, P.A., Miami, for Plaintiff. Paula Elkea Ferris, House Counsel for United Auto. Ins. Co., Miami Gardens, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORORDER PRECLUDING AND/OR SUMMARYJUDGMENT AS TO THE REASONABLENESS OFPLAINTIFF’S CHARGES BASED ON THEDOCTRINE OF COLLATERAL ESTOPPEL(ISSUE PRECLUSION)
THIS CAUSE came before the Court on 02/21/20 on Plaintiff’s Motion for Order Precluding Defendant From Contesting the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel and Plaintiff’s Motion for Summary Judgment as to the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel (Issue Preclusion).
The parties were represented by counsel at the hearing who presented arguments to this Court. Paula Elkea Ferris, Esq. appeared on behalf of the Defendant, and Majid Vossoughi, Esq., Brad Blackwelder, Esq., and David Mannering, Esq. appeared on behalf of the Plaintiff.
The Court having reviewed Plaintiff’s Motion for Order Precluding Defendant From Contesting the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel and Plaintiff’s Motion for Summary Judgment as to the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise fully advised in the premises, hereby makes the following factual findings and conclusions of law, and enters this Order GRANTING Plaintiff’s Motion for Order Precluding Defendant From Contesting the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel and Plaintiff’s Motion for Summary Judgment as to the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel.
Background & Factual Findings
Winston Pineda was involved in an automobile accident on January 30, 2010 and treated with Plaintiff from March 15, 2010 through December 30, 2010 in relation to injuries sustained in said accident.
Plaintiff submitted its bills for treatment of Winston Pineda to Defendant for payment of Personal Injury Protection (“PIP”) benefits containing the following thirteen (13) charges: 99203 ($250; initial examination), 97124 ($60; massage), 97530 ($65; therapeutic activities), 97010 ($50; hot/cold pack), 97110 ($60; therapeutic exercises), 97012 ($40; mechanical traction), 97014 / G0283 ($50; electric stimulation), 98940 ($85; chiropractic adjustments), 98941 ($95; chiropractic adjustments), 99213 ($150; patient evaluation), 97112 ($70; neuromuscular reeducation), 97140 ($70; manual therapy), 97035 ($50; ultrasound).
Plaintiff’s motion reflects that a court of competent jurisdiction has previously adjudicated through final judgment the reasonableness of Plaintiff’s charges in the following two (2) cases against Defendant:
i. Doctor Rehab Center, Inc., a/a/o Julian Grillo v. United Automobile Insurance Company, Case No. 11-01877 SP 26;1
ii. Doctor Rehab Center, Inc., a/a/o Jose Miranda v. United Automobile Insurance Company, Case No. 11-01982 SP 26.2
Plaintiff argues that the doctrine of Collateral Estoppel and/or Issue Preclusion precludes Defendant from re-litigating the identical issue of reasonableness of Plaintiff’s charges for the very same treatment and/or CPT codes previously litigated through final judgment between the very same parties. Plaintiff argues that since all of the requisite elements for application of the doctrine of Collateral Estoppel and/or Issue Preclusion have been met this Court is mandated to apply the doctrine in this case.
Defendant argues that the doctrine of Collateral Estoppel does not apply since the “operative facts” such as the claim #, date of loss, and patients are not identical in the instant action and the prior adjudications. Defendant also argues that the parties are not identical since in each PIP case the Plaintiff received an assignment of benefits from a different insured. Defendant further argues against application of the doctrine of Collateral Estoppel claiming error on the part of the court in the prior adjudications although it is undisputed that the Defendant did not appeal the final judgments in those cases and allowed same to become final without attack. Finally, Defendant argues that this Court is barred from considering Plaintiff’s Collateral Estoppel arguments and motion since the issue was not raised in a reply to Defendant’s affirmative defenses.
Summary Judgment Standard
Florida Rule of Civil Procedure 1.510 provides that “[t]he judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”. Volusia County v. Aberdeen At Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a] (citing Menendez v. Palms West Condominium Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a].
In a PIP case, the Plaintiff’s burden of proof in establishing its prima facie case to recover PIP benefits requires proof that its bills and/or charges for the services rendered are reasonable in price. See Derius v. Allstate Indemnity Co., 723 So.2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].
Legal AnalysisDoctrine of Collateral Estoppel (Issue Preclusion)
“Collateral estoppel is a judicial doctrine which in general terms prevents identical parties from relitigating the same issues that have already been decided.” Department of Health and Rehabilitative Services v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) [20 Fla. L. Weekly S188a] (citing to Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977) (action by oil companies should have been dismissed under doctrine of collateral estoppel since identical issue of Attorney General’s authority was previously determined by the Fifth District Court of Appeal); see also, Seaboard Coast Line Railroad v. Cox, 338 So.2d 190 (Fla. 1976) (approving the District Court of Appeal’s affirmance of lower court’s grant of partial summary judgment as to issue of liability based on doctrine of collateral estoppel or estoppel by judgment); Weiss v. Courshon, 768 So.2d 2 (Fla. 2000) [25 Fla. L. Weekly D1237a] (applying the doctrine of collateral estoppel to prevent relitigating an action for accounting and breach of fiduciary duties which was decided in federal Court); Provident Life and Accident Ins. Co. v. Genovese, M.D., 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (reversing a trial court’s denial of a motion for directed verdict and remanding for entry of directed verdict based on doctrine of collateral estoppel).
“The doctrine is intended to prevent repetitious litigation of what is essentially the same dispute”. Id. (citing Zimmerman v. State of Florida Office of Insurance Regulation, 944 So.2d 1163 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3126a]). The doctrine “serves to ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” United States v. Mendoza, 464 U.S. 154, 158 (1984) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)).
Florida jurisprudence reflects that courts have applied the doctrine to various areas of law and causes of action such as breach of contract3, wrongful death4, negligence5, declaratory relief6, dissolution of marriage7, uninsured motorist claim8, constitutional challenges9, action for accounting and breach of fiduciary duties10, and appeals from administrative rulings11.
“The essential elements of the doctrine are that the parties and issues be identical, and that the particular matter be fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction.” Department of Health and Rehabilitative Services v. B.J.M., 656 So.2d 906, 910 (Fla. 1995) [20 Fla. L. Weekly S188a] (quoting Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977)); Seaboard Coast Line Railroad v. Cox, 338 So.2d 190 (Fla. 1976).
The Third District Court of Appeal has articulated and held that the following elements must be met for the application of the doctrine of Collateral Estoppel and/or Issue Preclusion: (1) the identical issues were presented in a prior proceeding; (2) there was a full and fair opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior litigation were a critical and necessary part of the prior determination; (4) the parties in the two proceedings were identical; and (5) the issues were actually litigated in the prior proceeding. See e.g., Pearce v. Sandler, 219 So.3d 961 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1214b] (citing to Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004) [29 Fla. L. Weekly S21a]; see also Carnival Corp. v. Middleton, 941 So.2d 421 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2480a].
As it pertains to the first element, the record before this Court reflects that in Case No. 11-01877 SP 26 and Case No. 11-01982 SP 26, the identical parties to this action previously litigated the reasonableness of Plaintiff’s charges for the very same CPT codes at issue in this case: 99203 ($250), 97124 ($60), 97530 ($65), 97010 ($50), 97110 ($60), 97012 ($40), 97014 / G0283 ($50), 98940 ($85), 98941 ($95), 99213 ($150), 97112 ($70), 97140 ($70), 97035 ($50). As such, the first element for application of the doctrine has been met.
As it pertains to the second and fifth elements, the record before this Court reflects that in the prior cases litigated between the parties they had a full and fair opportunity to fully litigate the issue of reasonableness of Plaintiff’s charges and the issue was actually litigated through final judgment after extensive motion practice, discovery, presentation of evidence, and service of affidavits and record evidence as to the central issue of reasonableness of Plaintiff’s charges. As such, the second and fifth elements for application of the doctrine have been met.
As it pertains to the third element, “[a]n issue is a critical and necessary part of the prior proceeding where its determination is essential to the ultimate decision.” Provident Life and Accident Ins. Co. v. Genovese, M.D., 138 So.3d 474, 478 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (citing Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1215 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D1881a]). In the context of PIP litigation, the issue of reasonableness of charges is not only “a critical and necessary part” of the litigation, but same is in fact part and parcel of Plaintiff’s prima facie burden of proof. See Derius v. Allstate Indemnity Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. As such, the third element for application of the doctrine has been met.
As it pertains to the fourth element, the parties to the instant action are clearly the identical parties in Case No. 11-01877 SP 26 and Case No. 11-01982 SP 26 cases where the issue of reasonableness of Plaintiff’s charges was litigated through final judgment. As such, the fourth element for application of the doctrine has also been met.
Binding decisional precedent holds that once the elements are met, a court is obligated to apply the doctrine of collateral estoppel. Provident Life and Accident Ins. Co. v. Genovese, M.D., 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b] (reversing a trial court’s denial of a motion for directed verdict and remanding for entry of directed verdict based on doctrine of collateral estoppel); Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977) (remanding action to trial court with directions to have action by oil companies dismissed under doctrine of collateral estoppel since the issue pertaining to Attorney General’s authority was previously adjudicated adversely to the companies by the Fifth District Court of Appeal). Additionally, our own Circuit, sitting in it appellate capacity just recently affirmed the entry of final judgment against the Defendant on the issue of reasonableness of charges holding that United was “precluded from re-litigating the issue of reasonableness under the doctrine of collateral estoppel,” citing to Pearce v. Sandler, 219 So.3d 961 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1214b], see (Case No: 2018-228-AP-01: United Automobile Insurance Company v. Doctor Rehab Center, Inc., Lower Case No: 2011-1980-SP-26, *Not a Final until disposition of any timely filed motion for rehearing, clarification, or certification).
Based on the foregoing, this Court finds that all elements for application of the doctrine of Collateral Estoppel have been met. As such, Plaintiff is entitled to judgment as a matter of law as to reasonableness of its charges for CPT codes 99203 ($250), 97124 ($60), 97530 ($65), 97010 ($50), 97110 ($60), 97012 ($40), 97014 / G0283 ($50), 98940 ($85), 98941 ($95), 99213 ($150), 97112 ($70), 97140 ($70), 97035 ($50) and Defendant is precluded from re-litigating same. To hold otherwise would circumvent the purpose and intent of the doctrine, result in unnecessary repetitious litigation, undermine the parties’ reliance on prior adjudication, allow inconsistent decisions, and needlessly expend otherwise scarce judicial resources.
Accordingly, although the prior adjudications pertained to different motor vehicle accidents, patients, claims, and/or causes of action, the question or issue of reasonableness of Plaintiff’s charges was common and litigated through final judgment in the prior actions. It is immaterial that the prior adjudications pertained to different motor vehicle accidents, patients, claims, and/or causes of action than in the instant case as there is no element requiring “identity in the thing sued for” and/or “identity of the cause of action” for application of the doctrine of Collateral Estoppel (Issue Preclusion).
Similarly, Defendant’s argument that the parties are not identical since in each PIP case the Plaintiff received an assignment of benefits (commonly abbreviated as “AOB”) from a different insured is without merit.
In Seaboard Coast Line Railroad Co. v. Cox, 338 So. 2d 190 (Fla. 1976) the Supreme Court of Florida rejected the same argument in the context of Collateral Estoppel. In Seaboard Coast, a guardian on behalf of a minor brought a successful suit for the wrongful death of the minor’s mother establishing liability against a railroad company. The minor then brought a second suit for the wrongful death of his father and the trial court found that the railroad company was collaterally estopped on the issue of liability. On appeal the Supreme Court of Florida rejected the railroad company’s argument that “there [was] no identity of the parties since the action is derivative in nature and stems from deaths of different persons”, finding that the doctrine of Collateral Estoppel applies “in situations where the actions were derivative”. Accordingly, although the instant action and the prior adjudications derive from different assignors, it is the very same Plaintiff medical provider — Doctor Rehab Center, Inc., — that brought both this action and the prior adjudications, thereby meeting the identity of parties element for purposes of Collateral Estoppel.
Defendant’s assignment of benefits argument also fails since under Collateral Estoppel only an “identity of the parties” is required and there is no element requiring “identity of the quality or capacity” of the parties.13 Defendant argues that the Plaintiff, in this as well as the prior actions, is only acting in a “representative capacity” standing in the shoes of the assignor, as opposed to its “individual capacity” as a medical provider and corporate entity organized and existing under the laws of this State. Accordingly, even if it could be said that the Plaintiff was acting in different “capacities” in this and the prior actions, any such distinction is immaterial for purposes of Collateral Estoppel.
Moreover, this Court notes that the identity of parties element under the doctrine of Collateral Estoppel extends to parties “and their privies”. Southeastern Fidelity Ins. Co. v. Rice, 515 So.2d 240, 242 (Fla. 4th DCA 1987); see also, Stogniew v. McQueen, 656 So.2d 917, 919 (Fla. 1995) [20 Fla. L. Weekly S208a]; Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla. 1984) (“collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies”). Clearly, there is privity between the Plaintiff in the instant action as well as the Plaintiff in the prior PIP actions it filed, since both “have an interest in the action such that [they] will be bound by the final judgment as if [they] were a party”. Southeastern Fidelity Ins. Co. v. Rice, 515 So.2d 240, 242 (Fla. 4th DCA 1987). Regardless of the assignee, Doctor Rehab Center, Inc. is a single corporate entity organized and existing under the laws of this State. It is this entity that is entitled to payment of PIP benefits, it is this entity that collects, deposits, and files suits for PIP payments from insurers, and it is this entity that would bound by any judgments in cases it filed as assignee of a PIP insured.14
Defendant’s argument that the doctrine of Collateral Estoppel should not be applied since it believes the prior adjudications constitute error is also unavailing. This same argument was expressly rejected by the Supreme Court of Florida in Seaboard Coast Line Railroad Co. v. Cox, 338 So. 2d 190 (Fla. 1976):
“We conclude that there is no merit in petitioner’s argument and that it is bound by the result of the first action.
We further hold that the respondent may not now contest the propriety of applying the percentage of liability determination made by the jury in the first suit. The respondent allowed the first judgment to become final without attack, and he cannot now collaterally attack that result. The petitioner’s 15% nonliability as determined by the jury in the first trial is therefore applicable in the second action for damages.”
As in Seaboard Coast, Defendant did not appeal any of the prior final judgments relied upon by the Plaintiff in asserting the doctrine of Collateral Estoppel. Defendant allowed the prior adjudications “to become final without attack” and “cannot now collaterally attack that result”, that is, “it is bound by the result of the [prior] action[s]”. Id.
Finally, the Court rejects Defendant’s argument that it is barred from considering Plaintiff’s Collateral Estoppel arguments and motion since the issue was not raised in a reply to Defendant’s affirmative defenses. Fla. R. Civ. P. 1.100(a) requires filing of a “reply” to an affirmative defense only when the opposing party seeks to “avoid” that defense. Indeed, a plaintiff who “does not seek to avoid the substantive allegation of the defendant’s affirmative defense. . .need not file, indeed, is precluded by the rules from filing, a reply”. Kitchen v. Kitchen, 404 So.2d 201 (Fla. 2d DCA 1981). Plaintiff did not raise the doctrine of Collateral Estoppel to “avoid” any affirmative defenses pled by the Defendant. Instead, the doctrine was raised in regard to an element of Plaintiff’s own prima facie burden of proof, to wit, the reasonableness of Plaintiff’s charges. Accordingly, the rules and applicable law did not require, or even permit, Plaintiff to file a “reply” asserting the doctrine of Collateral Estoppel in this case.
Conclusion
Accordingly, based on this Court’s analysis set forth above, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Order Precluding Defendant From Contesting the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel and Plaintiff’s Motion for Summary Judgment as to the Reasonableness of Plaintiff’s Charges Based on the Doctrine of Collateral Estoppel is hereby GRANTED. Plaintiff’s charges for treatment and/or CPT codes 99203 ($250), 97124 ($60), 97530 ($65), 97010 ($50), 97110 ($60), 97012 ($40), 97014 / G0283 ($50), 98940 ($85), 98941 ($95), 99213 ($150), 97112 ($70), 97140 ($70), 97035 ($50) are reasonable in price as a matter of law and Defendant is precluded from re-litigating same pursuant to the doctrine of Collateral Estoppel and/or Issue Preclusion.
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1This case adjudicated the reasonableness of Plaintiff’s charges for the following treatment and/or CPT codes: 99203 ($250), 97124 ($60), 97530 ($65), 97010 ($50), 97012 ($40), G0283 ($50), 98940 ($85), 98941 ($95), 99213 ($150), 97112 ($70), 97140 ($70), 97035 ($50). A final judgment was entered in favor of Plaintiff and against Defendant on April 14, 2015.
2This case adjudicated the reasonableness of Plaintiff’s charges for the following treatment and/or CPT codes: 97124 ($60), 97530 ($65), 97010 ($50), 97110 ($60), 97012 ($40), 97014 ($50), 98940 ($85), 98941 ($95), 99213 ($150), 97112 ($70), 97140 ($70), 97035 ($50). In this case Defendant, after much litigation, confessed to judgment. The mere fact that Defendant confessed to judgment does not make the prior final adjudication any less binding upon the parties. See e.g., Eastern Shores Sales Co. v. City of North Miami Beach, 363 So.2d 321 (Fla. 1978) (“[t]he fact that the [prior] decree. . .was by consent did not make it any less conclusive or binding on the parties”); Hay v. Salisbury, 92, Fla. 446, 109 So. 617 (Fla. 1926) (“[a] judgment by default or upon confession is, in its nature, just as conclusive on the rights of the parties before the court, as a judgment upon demurrer or verdict”); In re Zoernack, 289 B.R. 220 (M.D. Florida, 2003) [16 Fla. L. Weekly Fed. B43a] (federal court applying Florida law on the doctrine of collateral estoppel found that a consent to judgment is treated the same as any other judgment and carries issue preclusion under the doctrine); Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184 (Fla. 1989) (rejecting argument “attempt[ing] to differentiate between a consent judgment and a final judgment entered after trial on the merits” and finding that a consent judgment is entitled to preclusive effect); see also, Cabinet Craft, Inc. v. A.G. Spanos Enterprises, Inc., 348 So.2d 920 (Fla. 2d DCA 1977) (“for purposes of res judicata, a judgment entered upon default is just as conclusive as one which was hotly contested”).
3See e.g., West Point Const. Co. v. Fidelity and Deposit Co. of Maryland, 515 So.2d 1374 (Fla. 3d DCA 1987); Daniel Intern. Corp. v. Better Const., Inc., 593 So.2d 524 (Fla. 3d DCA 1991); Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981); Provident Life and Accident Insurance Company v. Genovese, 138 So.3d 474 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D442b].
4See e.g., Rehe v. Airport U-Drive, Inc., 63 So.2d 66 (Fla. 1953); Seaboard Coast Line Railroad Co. v. Cox, 338 So. 2d 190 (Fla. 1976).
5See e.g., Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla. 1956); Lorf v. Indiana Insurance Co., 426 So.2d 1225 (Fla. 4th DCA 1983); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).
6See e.g., Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla. 1977); Paresky v. Miami-Dade County Bd. Of County Com’rs, 893 So.2d 664 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D462b]; Essenson v. Polo Club Associates, 688 So. 2d 981 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D552a].
7See e.g., Field v. Field, 91 So.2d 640 (Fla. 1956).
8See e.g., U.S. Fidelity & Guar. Co. v. Odoms, 444 So. 2d 78 (Fla. 5th DCA 1984).
9See e.g., GLA and Associates, Inc., v. City of Boca Raton, 855 So.2d 278 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2318a].
10See e.g., Weiss v. Courshon, 768 So.2d 2 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1237a].
11See e.g., Zimmerman v. State Office of Ins. Regulation, 944 So.2d 1163 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3126a].
[Editor’s note: Footnote 12 omitted from order.]
13As discussed above, the element requiring “identity of the quality or capacity” of the parties is applicable in the context of Res Judicata, not Collateral Estoppel. Pearce v. Sandler, 219 So.3d 961, 966-67 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1214b].
14To illustrate this point, suppose Defendant had prevailed in a suit brought by Plaintiff as assignee of an insured, resulting in Defendant obtaining a judgment for attorney’s fees incurred in the litigation. Plaintiff could not avoid payment of the judgment by asserting that it was merely acting in a “representative capacity” in the suit and that the entity as assignee does not have a bank account or any funds to its name. Clearly, Plaintiff in its “individual capacity” as a corporate entity would be required to pay the judgment.
