5D03-1604 5D03-2123 Zambos v. Meier

State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1604

Case Date: 03/22/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

JOHN M. ZAMBOS, M.D., Appellant, v. BERNHARD M. MEIER, and GLORIA P. MEIER, his wife, Appellees. / Opinion Filed March 26, 2004 Appeal from the Circuit Court for Brevard County, Meryl L. Allawas, Judge. Jennifer S. Carroll, of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for Appellant. James R. Provencher and Lisa Finaldi Simmons, of James R. Provencher, P.A., Orlando and Stephan W. Carter, Winter Park, for Appellees. GRIFFIN, J. John M. Zambos, M.D. ["Dr. Zambos"], appeals a final judgment rendered in favor of the plaintiffs below, Bernhard M. Meier and his wife, Gloria P. Meier ["the Meiers"], in a suit for medical negligence.1 We conclude the trial court did not reversibly err in giving the challenged jury instruction and, accordingly, we affirm. Dr. Zambos has filed as supplemental authority the decision of the Florida supreme CASE NOS. 5D03-1604 & 5D03-2123

1

Also appealed is a final cost judgment.

court in D'Angelo v. Fitzmaurice, 863 So. 2d 311, 319 (Fla. 2003), seeking entitlement to the benefit of the new rule set forth in that opinion that: [I]t is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form. We agree with Dr. Zambos that this is a "pipeline case" and that he is entitled to the benefit of this decision. See D'Aquisto v. Costco Wholesale Corp., 816 So. 2d 1231 (Fla. 5th DCA 2002). We reject the Meiers' contention that the setoff is inapplicable to this case because it had not been requested below by Dr. Zambos. According to the formula set forth in footnote 12 of the D'Angelo opinion,2 the calculation urged by the Meiers appears to be substantially correct: 1. Percentage of jury's award allocated to economic damages = $53,674.47 ($44,474.48 past + $9,000 future)/ $453,674.48 (total damages) = .118 2. Portion of settlement that nonsettling defendant is entitled to set off = $75,000 x .118 = $8,850. Accordingly, we remand this case to the trial court for application of the setoff and amendment to the final judgment. AFFIRMED and REMANDED. PLEUS, J., and EDWARDS-STEPHENS, S., Associate Judge, concur.

2

863 So. 2d at 318. -2-

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