R.J. REYNOLDS TOBACCO COMPANY v. BERTIE THOMAS, as Personal Representative of the Estate of Marvin Thomas , 264 So. 3d 199 ( 2019 )


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  •               DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    R.J. REYNOLDS TOBACCO COMPANY,
    Appellant,
    v.
    BERTIE THOMAS, as Personal Representative of the
    Estate of Marvin Thomas,
    Appellee.
    No. 4D17-3040
    [February 13, 2019]
    Appeal and cross-appeal from the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case No.
    07-CV-036432 (19).
    William L. Durham II and Val Leppert of King & Spalding LLP, Atlanta,
    Georgia, for appellant.
    Richard B. Rosenthal of The Law Offices of Richard B. Rosenthal, P.A.,
    Miami, and Eric S. Rosen of Kelley Uustal, PLC, Fort Lauderdale, for
    appellee.
    GROSS, J.
    In this Engle 1 wrongful death action, R.J. Reynolds (“RJR”) appeals a final
    judgment awarding the plaintiff $2.2 million in compensatory damages after
    making a reduction for the decedent’s comparative fault. The plaintiff, Bertie
    Thomas, cross-appeals the trial court’s reduction of the compensatory damages
    award by the decedent’s share of comparative fault. We affirm on all issues raised
    by RJR without further comment, but we reverse on the cross-appeal and remand
    for reinstatement of the full value of the jury’s compensatory damages verdict.
    By way of background, the jury returned a verdict finding in favor of the
    plaintiff on each claim, apportioning 45% of the fault to the decedent, determining
    that the total amount of compensatory damages was $4 million, and concluding
    that punitive damages were not warranted. Over the plaintiff’s objection, the trial
    court made a reduction for the decedent’s comparative fault and entered final
    judgment awarding the plaintiff $2.2 million in compensatory damages.
    1   Engle v. Liggett Grp., Inc., 
    945 So. 2d 1246
     (Fla. 2006).
    Under the law in this district at the time this case was tried, an Engle plaintiff’s
    compensatory damages award had to be reduced by the smoker’s share of
    comparative fault even if the plaintiff prevailed on intentional tort claims. See
    R.J. Reynolds Tobacco Co. v. Schoeff, 
    178 So. 3d 487
     (Fla. 4th DCA 2015) (“Schoeff
    I”).
    However, the Florida Supreme Court later quashed Schoeff I and held that “the
    comparative fault statute does not apply to Engle progeny cases in which the jury
    finds for the plaintiff on the intentional torts such that the compensatory damage
    awards in those cases are not subject to reduction.” Schoeff v. R.J. Reynolds
    Tobacco Co., 
    232 So. 3d 294
    , 298 (Fla. 2017) (“Schoeff II”). The Florida Supreme
    Court further explained that where the jury finds for the plaintiff on the
    intentional tort claims, the plaintiff’s compensatory damages award “may not be
    reduced” by comparative fault unless the plaintiff “waived the intentional tort
    exception.” Id. at 305.
    On the cross-appeal, the plaintiff argues that the trial court erred in reducing
    the compensatory damages award based on comparative fault where the jury
    found for the plaintiff on the intentional tort claims. We agree.
    As an initial matter, the plaintiff did not waive the intentional tort exception
    to comparative fault.       Throughout the litigation, the plaintiff steadfastly
    maintained her position that any compensatory damages award should not be
    reduced by comparative fault. Moreover, all of RJR’s waiver arguments based on
    the plaintiff’s trial conduct have been foreclosed by Schoeff II and subsequent
    case law applying that decision. See Schoeff II, 232 So. 3d at 306 (rejecting this
    court’s “theory of waiver” that was based on arguments substantially similar to
    those now raised by RJR in this appeal); Philip Morris USA, Inc. v. Gore, 
    238 So. 3d 828
    , 831 (Fla. 4th DCA 2018) (“Here, the plaintiff’s arguments to the jury were
    similar to those in Schoeff that the Florida Supreme Court found to be insufficient
    to constitute a waiver of the intentional tort exception. Moreover, although the
    defendants now attempt to distinguish Schoeff on the basis that the verdict form
    here, unlike in Schoeff, asked jurors to apportion fault after the questions
    concerning the intentional tort claims, we are unpersuaded by this argument.”);
    Burkhart v. R.J. Reynolds Tobacco Co., 
    884 F.3d 1068
    , 1089 (11th Cir. 2018) (“It
    is true that this rhetorical question clearly compared Burkhart’s negligent
    conduct with Appellants’ intentional conduct. However, in light of the entire body
    of the trial record, we conclude that this statement cannot amount to a waiver of
    Burkhart’s apportionment rights with respect to her negligence claims.”).
    We next turn to the appropriate remedy for the error. Relying heavily upon
    Foreline Security Corp. v. Scott, 
    871 So. 2d 906
    , 911 (Fla. 5th DCA 2004), RJR
    contends that because the jury was instructed that its damages verdict would be
    reduced by comparative fault, the proper remedy for a reversal on this issue is a
    new trial limited to damages and comparative fault.
    -2-
    In Philip Morris USA Inc. v. Martin, 43 Fla. L. Weekly D2747, D2749–50 (Fla.
    4th DCA Dec. 12, 2018), however, we recently rejected this identical argument
    and held the proper remedy for a trial court’s error in applying a comparative
    fault reduction to an Engle progeny plaintiff who prevailed on the intentional tort
    claims is reinstatement of the full amount of the jury verdict on compensatory
    damages, even if the jury was erroneously instructed that its compensatory
    damages award would be reduced by the smoker’s share of comparative fault. As
    we explained in Martin:
    Here, the Florida Supreme Court’s elimination of the comparative
    negligence defense under the circumstances below leaves nothing for
    retrial or apportionment. The jury was instructed to award the
    compensatory damages they found to be attributable to the
    defendants—nothing less—nothing more. The fact that they were
    also instructed to determine the percentage of comparative
    negligence attributable to the plaintiff on a defense that the Florida
    Supreme Court has eliminated as applied here is of no consequence
    to the gross amount of compensatory damages awarded by the jury.
    Moreover, it is a well-established presumption that a jury would have
    properly followed a trial court’s instructions. . . .
    The jury was separately instructed to award the full amount of
    compensatory damages they found to be proximately caused by the
    defendants. They were also separately instructed to determine what
    percentage of comparative negligence, if any, they attributed to the
    plaintiff. They were instructed not to reduce the total amount of
    compensatory damages by the amount of comparative negligence,
    leaving it to the court to reduce any amount of comparative fault. In
    the absence of any evidence of wrongdoing by the jury, we must
    accept the well-established presumption that the jury properly
    followed the trial court’s instructions.
    
    Id.
     at D2750 (citations omitted).
    In short, we presume that the jury has followed the court’s instructions, not
    that the jury ignored the instructions and manipulated the damages award based
    on its determination of comparative fault. Accordingly, we reverse and remand
    on the cross-appeal “with instructions for the trial court to award compensatory
    damages in the full amount of the jury’s verdict.” Gore, 238 So. 3d at 831.
    Affirmed on main appeal; reversed and remanded on cross-appeal.
    CONNER and KLINGENSMITH, JJ., concur.
    *         *        *
    -3-
    Not final until disposition of timely filed motion for rehearing.
    -4-
    

Document Info

Docket Number: 17-3040

Citation Numbers: 264 So. 3d 199

Filed Date: 2/13/2019

Precedential Status: Precedential

Modified Date: 2/13/2019