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Philip Morris USA Inc. v. Marchese

Florida Court of Appeals, Fourth District

November 22, 2017

PHILIP MORRIS USA INC. and R.J. REYNOLDS TOBACCO COMPANY, Appellants/Cross-Appellees,
v.
GERTRUDE MARCHESE, as Personal Representative for the Estate of SALVATORE MARCHESE, Appellee/Cross-Appellant.

         Not final until disposition of timely filed motion for rehearing.

         Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case Nos. 2013CV 002849 (19) and 08-80000 (19).

          Joseph H. Lang, Jr., of Carlton Fields Jorden Burt, P.A., Tampa, and Scott A. Chesin of Mayer Brown LLP, New York, NY, for appellant/cross-appellee Philip Morris USA Inc.

          Gregory G. Katsas of Jones Day, Washington, DC; and Charles R.A. Morse of Jones Day, New York, NY, for appellant/cross-appellee R.J. Reynolds Tobacco Co.

          Lance V. Oliver and Lisa M. Saltzburg of Motley Rice LLC, Mt. Pleasant, SC; Howard M. Acosta of Law Offices of Howard M. Acosta, St. Petersburg; Kent G. Whittemore, Hutch Pinder and Erin W. Lohmiller of The Whittemore Law Group, P.A., St. Petersburg; and Bruce H. Denson of Bruce H. Denson, P.A., St. Petersburg, for appellee/cross-appellant.

          KLINGENSMITH, J.

         Appellee Gertrude Marchese filed a wrongful death action against appellants, Philip Morris USA, Inc., ("PMUSA") and R.J. Reynolds Tobacco Company ("Reynolds"). Appellee sought compensatory and punitive damages under the theories of strict liability, negligence, fraud by concealment, and conspiracy to commit fraud by concealment. After appellee obtained a compensatory and punitive damages award, the trial court reduced the jury's compensatory damages award by the amount of comparative fault attributed to the decedent.

         Appellants raise various arguments on appeal, and we affirm on those arguments without further discussion. On the cross-appeal, appellee argues that the appellants waived their right to reduce the compensatory award by repeatedly stating that the award would not be reduced. We agree, and reverse for entry of judgment in the full amount of the jury's verdict.

         "[A] trial court's finding of waiver is reviewed for abuse of discretion." R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 492 (Fla. 4th DCA 2015) (quoting R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473, 479 (Fla. 1st DCA 2014)). "Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right." Hiott, 129 So.3d at 479 (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n.12 (Fla. 2001)). However, courts apply a de novo standard when considering the apportionment of damages under section 768.81(4), Florida Statutes (2011). See id. at 495. See also Philip Morris USA, Inc. v. Boatright, 217 So.3d 166, 172 (Fla. 2d DCA 2017) ("[W]e review de novo the legal issue of whether the conduct qualifies as negligence or as an intentional tort.").

         At the Phase I charge conference, the parties disputed a proposed jury instruction on damages. Counsel for the appellants stated, "We've been very clear in our pleadings and in our arguments that we are seeking apportionment only on the non-intentional torts not on the intentional torts." In her proposed jury instructions, appellee suggested a damages instruction stating: "Please note that if you find for Plaintiff on either or both of her claims for fraudulent concealment and/or agreement to conceal, the Court will not reduce the amount of Plaintiff's damages by the percentage of fault you assign." Her proposed verdict form similarly read: "[Y]ou should not make any reduction because of any responsibility you charge to [the decedent]. . . . There will be no such reduction if you find for the Plaintiff on his claims for concealment or conspiracy to conceal." Appellants proposed a damages instruction devoid of such a comparative fault instruction. They averred, "[Appellants] acknowledge that this Court has previously held that comparative fault does not apply to Engle[1] plaintiffs' intentional tort claims. For preservation purposes, we respectfully maintain our argument that comparative fault should apply even if Plaintiff succeeds on those claims."

         During Phase I closing arguments, appellee's counsel argued, "[T]here are not going to be any reduction[s] for comparative fault if you find for us on the fraud claims." Counsel for PMUSA added, "If you decide based on the facts that [the decedent] is 95 percent responsible, if you answer yes to question 5 or question 6, comparative fault is out the window and [appellee] gets a hundred percent of the damages."

         At the conclusion of the Phase I trial, the trial court instructed the jury consistent with the appellants' arguments, that "in determining the total amount of damages, you should not make any reduction because of the responsibility of [the decedent]. . . . There will be no such reduction if you find for the Plaintiff on her claims for concealment or conspiracy to conceal."

         The jury ultimately allocated 22.5% fault to Reynolds and PMUSA, respectively, and 55% to the decedent. They also found in favor of appellee on her intentional tort claims.

         In Phase II opening statements, counsel for Reynolds acknowledged that the jury awarded "a significant amount of money, one million dollars." He reminded the jury that "there will be no reduction of that million dollars." Further, counsel stated, "[A]t the end of the day, ...


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