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LLC v. Wiederhold

Florida Court of Appeals, Fifth District

May 11, 2018

DOMINO'S PIZZA, LLC, Appellant/Cross-Appellee,


          Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge.

          Dinah S. Stein and Mark Hicks, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Richard S. Womble and Christine V. Zharova, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellant/Cross Appellee.

          John S. Mills and Courtney Brewer, of The Mills Firm, P.A., Tallahassee, for Appellee/Cross Appellant.

          ORFINGER, J.

         Domino's Pizza, LLC, [1] appeals a final judgment entered in favor of Yvonne Wiederhold, as personal representative of the estate of Richard E. Wiederhold. Domino's argues that the trial court should have granted directed verdicts on Mrs. Wiederhold's claim as a surviving spouse under the Wrongful Death Act, sections 768.16-.26, Florida Statutes (2012) (the "Act"), because she was not married to Mr. Wiederhold at the time of his injury; and that as a matter of law, it was not vicariously liable for the actions of its franchisee, Fischler Enterprises of C.F., Inc., because it did not control Fischler's day-today operations. Domino's also seeks a new trial based on Mrs. Wiederhold's improper closing arguments, which it claims denigrated its defense, referenced facts not in evidence, mischaracterized the law, and expressed counsel's personal beliefs or evoked the "golden rule." Mrs. Wiederhold cross-appeals, arguing that the trial court erred by denying her request for an award of Mr. Wiederhold's medical expenses paid by Medicare and insurance.

         For the reasons set forth below, we affirm the denial of the directed verdicts on the issues of Mrs. Wiederhold's status as a "surviving spouse" and on Domino's vicarious liability. However, we reverse and remand for a new trial on liability and damages based on Mrs. Wiederhold's improper closing argument.[2] We also find merit in Mrs. Wiederhold's cross-appeal claim. On retrial, all medical expenses paid by or on Mr. Wiederhold's behalf should be considered by the jury.

         Facts and Procedural Background

         In January 2011, Richard Wiederhold swerved into the median to avoid a vehicle that had pulled out in front of him. His vehicle drifted through the median and back across the roadway, flipped over once or twice, and came to rest in a ditch. The collision immediately rendered him a quadriplegic. The other vehicle was driven by Jeffrey Kidd, who was delivering pizza for Domino's franchisee, Fischler. One month after the accident, Mr. Wiederhold sued Domino's, Fischler, and Mr. Kidd, claiming that Mr. Kidd negligently caused his injuries and that Fischler and Domino's were vicariously liable. Several months later, Mr. Wiederhold married his girlfriend, who was an uninjured passenger in the accident. In March 2012, Mr. Wiederhold died, and his now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff. She then filed an amended complaint to include a claim for wrongful death damages as Mr. Wiederhold's surviving spouse. In June 2013, Fischler was dismissed from the lawsuit after it settled with Mrs. Wiederhold for $1 million. That same month, the trial court allowed the attorneys representing Fischler and Mr. Kidd to withdraw from representing Mr. Kidd due to alleged irreconcilable differences. Mr. Kidd represented himself from that point forward, including at trial.

         Prior to trial, Domino's filed several motions for summary judgment, which argued, among other things, that Mrs. Wiederhold was not a surviving spouse under the Act because the Wiederholds were not married at the time of the injury, it was not vicariously liable because it did not exercise control over Fischler's day-to-day operations, and all but one claim for medical and hospital expenses were barred because no claims had been filed in Mr. Wiederhold's probate proceeding. The court denied Domino's motions that challenged Mrs. Wiederhold's status as a surviving spouse under the Act and Domino's vicarious liability. However, the trial court granted Domino's motion that Mrs. Wiederhold could only recover $1165.67 for medical expenses that were claimed in the probate proceedings. At the jury trial, Domino's renewed its motion for summary judgment on the vicarious liability issue and moved for directed verdict on the surviving spouse issue. The court denied both motions.

         Ultimately, the jury rendered a verdict against Domino's, finding that: (1) Fischler was an agent of Domino's at the time of the crash; (2) Mr. Kidd's negligence was ninety percent of the legal cause of Mr. Wiederhold's injury and death; (3) total expenses incurred for home renovations to accommodate Mr. Wiederhold's injuries were $114, 660;[3] and (4) Mrs. Wiederhold's damages for "loss of her husband's companionship and protection and for her mental pain and suffering as a result of [Mr. Wiederhold's] injury and death" totaled $10 million.

         Domino's filed a timely renewed motion for directed verdict, judgment notwithstanding the verdict, or alternative motion for new trial or new trial on damages, renewing its earlier arguments, and additionally arguing that certain objected-to and unobjected-to comments made by Mrs. Wiederhold's counsel in closing argument warranted a new trial. Specifically, Domino's sought a new trial based on Mrs. Wiederhold's closing arguments, many of which were related to her theme that Domino's business model and its defense of this case was a "greedy charade" designed to control the activities of its franchisees to maximize profits, while contending that it lacked sufficient control of its franchisee's activities to avoid vicarious liability. The trial court denied Domino's motions and entered a final judgment against Domino's for ninety percent of the verdict amount, less the $1 million setoff for the Fischler settlement, for a total judgment of $8, 103, 194 in favor of Mrs. Wiederhold and the estate.[4] This appeal and cross-appeal follow.


         On Direct Appeal

         A. Is Mrs. Wiederhold a Statutory Survivor?

         Domino's first argues that one's status as a survivor is determined on the date of injury, and thus, we must reverse the wrongful death award to Mrs. Wiederhold because she is not a survivor under the Act.

         This is a matter of statutory construction subject to de novo review. Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass'n, 164 So.3d 663, 666 (Fla. 2015). "The starting point of statutory interpretation is the language of the statute itself." Herrin v. City of Deltona, 121 So.3d 1094, 1097 (Fla. 5th DCA 2013) (citing GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007)). "If statutory language is clear and unambiguous, 'there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.'" Id. (quoting A. R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). "However, if a statutory provision is ambiguous, courts may employ rules of construction and extrinsic aids to discern legislative intent." Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)).

         A wrongful death action must "be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death." § 768.20, Fla. Stat. (2012). The Act defines "survivors" as "the decedent's spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters." Id. § 768.18(1). Where the legislature has defined a term, courts are bound to follow that definition. Streeter v. Sullivan, 509 So.2d 268, 272 (Fla. 1987). Section 768.21 specifies the types of damages that may be awarded to "each survivor" and additional types of damages for certain survivors, including a "surviving spouse." It states, in pertinent part:

All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death
and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.
. . . .
(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

§ 768.21(1), (2), (5), Fla. Stat. (2012) (emphasis added). However, while the statute defines who survivors are, it does not answer the question presented in this case of when their status as a survivor is determined.

         Although the Act does not specify whether a "surviving spouse" must be married at the time of injury or the time of death, that alone does not render the term unclear or ambiguous if the common and ordinary meaning leads to clear and unambiguous results. Univ. of Fla. Bd of Trs v Andrew, 961 So.2d 375, 376 (Fla 1st DCA 2007); see State v Nichols, 892 So.2d 1221, 1227 (Fla 1st DCA 2005) (holding failure of statute to define term does not necessarily render statute ambiguous) The common and ordinary meaning of the term "survivor" is "esp a person remaining alive after an event in which others have died" Survivor, The Oxford American College Dictionary (2002 ed) Black's Law Dictionary defines "survivor" even more succinctly as "[o]ne who outlives another" Survivor, Black's Law Dictionary (9th ed 2009) By extension, the common and ordinary meaning of a "surviving spouse" is a married person who outlives his or her husband or wife Consequently, applying the plain meaning of these terms, we conclude the term "surviving spouse" is necessarily determined on the date of the other spouse's death because one cannot be a survivor before that date Accord King v Font Corp, 612 So.2d 662, 664 (Fla 2d DCA 1993) ("[I]t seems clear that the definition of 'survivors' in section 76818, Florida Statutes (Supp 1990), determines survivorship at the moment of the wrongful death"); see Snyder v Alamo Rent-A-Car, Inc, 790 So.2d 1262, 1262 (Fla 5th DCA 2001) (Sharp, J, concurring specially) (noting that this Court's affirmance was based on King); Thomas D. Sawaya, 6 Fla. Prac, Personal Injury & Wrongful Death Actions § 20:1 (2017-18 ed.) ("The definition of survivor in this statute determines survivorship at the time of the decedent's death." (citing King, 612 So.2d at 664)).

         This conclusion is consistent with cases recognizing that wrongful death actions accrue on the date of the decedent's death. See, e.g., Love v. Hannah, 72 So.2d 39, 41 (Fla. 1954) ("The plaintiffs' right of action under the wrongful death statute must be determined by the facts existing at the time of the death of decedent."); Phlieger v. Nissan Motor Co., 487 So.2d 1096, 1098 (Fla. 5th DCA 1986) (reiterating that supreme court held, in Love, that plaintiff's right of action under wrongful death statute must be determined by facts existing at time of decedent's death); Bruce v. Byer, 423 So.2d 413, 414-15 (Fla. 5th DCA 1982) ("The general rule is that a cause of action for wrongful death accrues upon the date of the decedent's death.").

         We recognize that our conclusion conflicts with Kelly v. Georgia-Pacific, LLC, 211 So.3d 340 (Fla. 4th DCA), review denied, No. SC17-714 (Fla. Oct. 23, 2017). In Kelly, the majority concluded that

the plain language of the Wrongful Death Act indicates that the legislature did not intend for a surviving spouse to recover consortium damages if the surviving spouse was not married to the decedent prior to the date of the decedent's injury. The definition of "survivor" in the statute is limited to familial relationships only, and both subsections (1) and (2) of section 768.21 clearly provide that damages are recoverable from the date of "injury." §§ 768.18(1), 768.21(1)-(2), Fla. Stat. (2015). Thus, the plain language of the statute indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury.

Id. at 345.

         We agree that although the definition of "survivors" is limited to familial relationships, nothing in that definition limits those terms to familial relationships existing at the time of injury. As the Kelly dissent observed, "The statute defines 'survivors' as including 'the decedent's spouse' without any other limitation." Id. at 348 (Taylor, J., dissenting). Thus, "[i]t would be inappropriate for this Court to read any more into [the statutory definition] than what is plainly there." Streeter, 509 So.2d at 272. "Even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 78 So. 693, 694 (Fla. 1918)).

         Moreover, if, as posited by the Kelly majority, survivorship is determined at the time of injury, then children born or adopted by the decedent after the date of injury would not be considered survivors. Likewise, a spouse who divorces a decedent after the date of injury would be considered a survivor. This would be contrary to established precedent holding that such determinations are made at the time of the decedent's death. See, e.g., Powell v. Gessner, 231 So.2d 50, 51 (Fla. 4th DCA) ("[T]he status of a child in respect to its right to sue for the wrongful death of a parent is determined at the time of the death of the parent."), opinion adopted, 238 So.2d 101 (Fla. 1970). It also would be contrary to the legislative intent expressed in section 768.17, Florida Statutes (2012), which states, "It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed." See also Wagner, Vaughan, McLaughlin & Brennan, PA v. Kennedy Law Grp., 64 So.3d 1187, 1191 (Fla. 2011) (noting that Act is "designed to substitute the financial resources of the wrongdoer for the resources of the decedent, in an attempt to meet the financial obligations of the decedent, . . . and to prevent a tortfeasor from evading liability for his or her misconduct when such misconduct results in death").

         The Kelly majority's reliance on the Act's damage provisions to limit the definition of survivors is unconvincing. It concluded that the phrase "from the date of injury, " repeatedly used in the damages section, "indicates that the legislature anticipated that the surviving spouse would have been married to the decedent prior to the date of injury." 211 So.3d at 345. While it is appropriate to read all sections of the Act together to determine the meaning of its terms, see, e.g., BellSouth Telecommunications, Inc. v. Meeks, 863 So.2d 287, 290 (Fla. 2003) ("To ascertain the meaning of a specific statutory section, the section should be read in the context of its surrounding sections."), we agree with the Kelly dissent that the damages provisions do not limit who may recover, but rather, only limits what a survivor may recover. See Kelly, 211 So.3d at 349 (Taylor, J., dissenting). In fact, the legislature's frequent differentiation between the "date of injury" and the "date of death" in section 768.21 demonstrates its awareness that these may be two different dates in a given case. Given this recognition, it is illogical to conclude that the legislature would not also have recognized that a decedent's legal relationships and obligations may change between the date of injury and date of death. Yet, the Kelly majority's conclusion limits such relationships and obligations to those present on the date of injury. If the legislature intended to limit survivors to those existing on the date of injury, it could have done so. Cf § 440.16, Fla. Stat. (2014) ("Relationship to the deceased giving right to compensation under the provisions of this section must have existed at the time of the accident, save only in the case of afterborn children of the deceased.").

         Even if such a limitation is read into the statute based on the damages language, it would, at best, create an ambiguity as to whether survivors are determined on the date of injury or the date of death. And, as we have already noted, the legislature has instructed that the Act is to be liberally construed to achieve its purposes. Cf Ellis v. Humana of Fla., Inc.,569 So.2d 827, 829 (Fla. 5th DCA 1990) (construing Act liberally to hold that "a posthumous child is a ...

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