6 Fla. L. Weekly Supp. 402a
Insurance — Subrogation — Torts — Comparative negligence — Joint and several liability — Pursuant to section 768.81, tortfeasor was jointly and severally liable for total damages paid by automobile insurer to its insured, notwithstanding fact that tortfeasor was found only 50% responsible for causing or contributing to accident, where damages were less than $25,000 — Error to enter judgment against tortfeasor for only 50% of damages
ALLSTATE INSURANCE COMPANY, as subrogee of Mayda Gonzalez, Appellant, vs. MARY KNOWLES, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 98-154 AP. Lower Case No. 97-17940 SP 05. Opinion filed March 26, 1999. An appeal from the County Court of Miami-Dade County, Florida, Marvin H. Gillman, Judge. Counsel: Scott A. Beatty, for Appellant. W.D. Hanford, for Appellee.
(Before JUDITH L. KREEGER, MAYNARD A. GROSS, and STANFORD BLAKE, JJ.)
Appellant, Allstate Insurance Company (“Allstate”), as subrogee of Mayda Gonzalez (“Gonzalez”), filed its initial brief on August 1, 1998, arguing that its damage award was improperly reduced by the trial court as a result of the court’s misapplication of the law. At the time that Allstate filed said brief, it noted that a statement of the evidence was not available.1 In reply thereto, Appellee, Mary Knowles (“Knowles”), argued in her August 20, 1998 answer brief that without a transcript of the proceedings or a statement of the evidence, it was impossible to prepare a response and that this Court was required to affirm the lower court’s decision.
When the original record was filed herein on July 1, 1998, it contained only Allstate’s statement of claim, the trial court’s pretrial conference order, Allstate’s affidavit of costs/pre-judgment interest, the trial court’s April 2, 1998 final judgment and Allstate’s notice of appeal. However, on October 21, 1998, a supplemental record was filed herein, containing Allstate’s August 19, 1998 Statement of Evidence and the trial court’s September 8, 1998 order approving Allstate’s Statement of Evidence.2 Although Knowles had an opportunity to respond before this supplemental record was permitted, it appears that Knowles did not.3 Further, Knowles did not file a supplemental brief at any time after the record was expanded, thereby failing to amend her original answer. Therefore, only Allstate’s substantive arguments are before this Court for consideration.
In the underlying suit, Allstate, as subrogee of Gonzalez, sued Knowles to recover insurance payments made to repair Gonzalez’ vehicle following an automobile accident in which it was alleged that Knowles was the tortfeasor. In its complaint, Allstate sought damages from Knowles in the principal amount of $2,765.19. At trial, testimony established that Knowles and another driver, Ana Fuentes (“Fuentes”),4 were responsible for the three-car accident, and that Gonzalez was not at fault. Allstate’s adjuster testified that Gonzalez’ vehicle received $2,765.19 in damages as a result of the collision. The trial court found that Knowles and Fuentes were each 50% responsible for causing/contributing to the accident. Based upon Knowles’ assessed percentage of fault, the trial court entered judgment against Knowles in the principal sum of only $1,382.59, or for 50% of Allstate’s proven damages.
Pursuant to §768.81, Fla. Stat. (1997), entitled “Comparative fault,” subsection (5) states that “[n]otwithstanding [other] provisions of this section, the doctrine of joint and several liability applies to all actions in which the total amount of damages does not exceed $25,000.” (Emphasis added.) Thus, where a total judgment is less than $25,000, §768.81(5) requires that the entire award be deemed “ `joint and several.’ ” Schultz v. Wilkes, 689 So. 2d 435, 436 (Fla. 5th DCA 1997). Once deemed as such, “[this doctrine] allows a claimant to recover all damages from one of multiple defendants even though that particular defendant may be the least responsible defendant in the cause.” Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239, 1257 (Fla. 1996).
Accordingly, this Court finds and concludes that the trial court misapplied the law by entering judgment against Knowles for only 50% of Allstate’s established damages. Under the doctrine of joint and several liability, Knowles (as the named defendant) is “100%” liable for Allstate’s damages, despite the fact that she was found only “50%” responsible for causing the accident. As the total damage award was less than $25,000, the trial court was required to apply the doctrine of joint and several liability and to enter judgment against Knowles in the principal sum of $2,765.19, excluding costs and pre-judgment interest.
Consequently, the lower court’s April 6, 1998 final judgment is reversed with instructions to enter a final judgment consistent with this opinion. (JUDITH L. KREEGER, STANFORD BLAKE and MAYNARD GROSS, JJ., concur.)
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1See, the “Statement of the Case” section of Allstate’s brief in which it was alleged that “as of the preparation of [the] brief, the trial court [had] not settled on a statement of the evidence.” Further, it appears that the trial proceedings were not recorded, stenographically or otherwise.
2It appears that Knowles never filed her own written statement of the evidence for consideration by the trial court.
3Allstate filed its Motion to Supplement Record on September 15, 1998. However, Knowles never responded to this motion. Thus, on October 1, 1998, the appellate court granted Allstate’s motion.
4Ana Fuentes was neither named nor joined as a party in the underlying suit.
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