Sunday, September 13, 2009

Second DCA Regarding The Release Of Negligence Claims

In Abis v. Tudin, D.V.M. (2D08-119), the Second District reviewed a veterinary malpractice action.  Interestingly, the Per Curium opinion was written by "CASANUEVA, C.J., DAVIS, J., and CANADY, CHARLES T., ASSOCIATE JUDGE."  However, Justice Canady was appointed the Florida Supreme Court on August 28, 2008 and "took office" at the Supreme Court on Septmeber 8, 2008 - more than a year ago.  I imagine the only impact is a recusal in the very unlikely event the Supreme Court somehow ended up with the case.  Back to the opinion, the court held:
Abis first contends that because the release does not expressly reference acts of negligence, it is unenforceable...Abis's reliance is misplaced, however, because the instant case involves a postclaim release as distinguished from a preclaim exculpatory clause...The rule that a release of claims arising from events that have already occurred when the release is entered need not specifically reference acts of negligence is supported by Hardage Enterprises v. Fidesys Corp., 570 So. 2d 436, 437 (Fla. 5th DCA 1990), where the release at issue was entered by the parties after a dispute arose between them regarding alleged deficiencies in a building construction project. The court stated that "[i]n the instant case, we are not concerned with a release from future acts of negligence, but from past acts." Id. at 438. The court held that "[t]here are no words of art required in a release if the intent of the parties is apparent from the language used. No Florida appellate court has ever held that the word 'negligence' must be included in a release for it to bar negligence claims." Id.
Abis's next argument is that the release is unenforceable because it did not specifically state that it covered the appellees. Abis's argument would be well taken if this case involved a release containing a handwritten portion specifically naming one party and a typewritten portion generally referencing "any other person, corporation, association or partnership."...However, in this case, the release was completely typewritten. The reference in the release to "all other persons, firms, corporations and entities" clearly applies to appellees for claims resulting from "the sale, use or administration of ProHeart 6."


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