Omar Otaola died after his bicycle was struck by a Cusano’s Italian Bakery delivery truck on Bear Cut Bridge in Key Biscayne in 2006.
Since then, Miami-Dade County redesigned the popular bike lane on the shoulder of Crandon Boulevard, the site of multiple serious accidents. Marisela Otaola, the 34-year-old bicyclist’s widow, accepted a $1 million payout from Allstate, Cusano’s insurer, on behalf of her two young daughters, Joanna and Jessica Otaola. She filed a wrongful death action against Cusano’s in February 2008.
Now the case is heading back to the trial court. On Dec. 19, the Third District Court of Appeal reversed Miami-Dade Circuit Judge Marc Schumacher, who dismissed the wrongful death lawsuit with prejudice.
The decisive pretrial insurance issue, called “unusual” in the Third District opinion, was whether the pre-suit settlement and payment of a $1 million policy limit by one of Cusano’s insurers — without a release of Cusano’s or AIG, its excess-coverage insurer — should be rescinded as an incomplete settlement or enforced as if the wrongful death lawsuit was completely settled.
Rescission would require Otaola to return the $1 million; enforcement would doom the lawsuit.
Schumacher agreed with Cusano’s argument that the Allstate payout constituted a global settlement of Otaola’s claims.
When Otaola did not comply with his order to either return the $1 million or release Cusano’s from all liability claims, Schumacher issued an order that ended the lawsuit.
On appeal, the Third DCA decided there had been only a partial settlement of the family’s claims. It found that the $1 million received through a probate action was for Otaola’s daughters and did not satisfy her individual claim.
“Cusano’s was not entitled to any such ‘heads I win, tails you lose’ relief,” Judge Vance Salter wrote for the three-judge panel. He was joined by Judges Barbara Lagoa and Kevin Emas.
The opinion doesn’t explain why no release was obtained from Otaola.
“As Allstate’s insured, Cusano’s would normally participate directly in the terms of settlement of a covered claim, including the delivery of a release as a condition of payment,” the ruling notes. “This is an extraordinary case in that sense.”
Cusano’s argued that although there was no release, it was clear both sides intended to settle the claims. But Otaola presented affidavits indicating otherwise, which created an issue of fact for a jury to decide, the Third DCA ruled.
Cusano’s lawyer, Betsy Gallagher of Kubicki Draper in Tampa, and Otaola’s lawyer, Kimberly Boldt of Hollywood, could not be reached for comment by deadline. Stuart Ratzan of Miami, who also represented Otaola, declined to comment.
Killed Under Truck
In a second wrongful death case ruling from Dec. 19, thecourt affirmed a summary final judgment in favor of the National Marine Manufacturers Association.
The recreational boat industry trade group, a participant in the 2008 Miami International Boat Show, parked several tractor trailers on a lot owned by the city of Miami Beach under a temporary license and use agreement signed with the city’s housing authority.
On Feb. 7, 2008, David Collins entered the lot, climbed under a parked trailer and fell asleep. A truck driver for the association, who didn’t know anyone was under the trailer, hitched it to his truck and pulled out, running over and fatally injuring Collins. The driver was not cited.
Collins’ mother, Constance Ryan, sued the trade group and the truck driver, alleging he was negligent in failing to “check around and under the tractor-trailer so as to avoid striking a pedestrian in the vicinity.”
A toxicology report determined Collins’ blood alcohol level was 0.21, nearly three times the legal limit for drivers. That finding triggered a winning defense.
Under Florida law, anyone “owning or controlling an interest in real property” cannot be held liable for injuries to a trespasser who was legally under the influence of alcohol. The question was: Did the association have an owning or controlling interest?
Ryan contended it did not because the agreement with the city was nominally a license. The association asserted it did because the intent of the agreement made it effectively a lease.
“Our argument was that although it was labeled a license, the essence of the document and what they [the housing authority] purported to do was to grant a short-term lease to National Marine,” said Rafael De la Grana, who worked on the appellate brief with James K. Clark of Clark, Robb, Mason, Coulombe & Buschman in Miami. “It therefore was entitled to avail itself of the immunity given by the statute.”
Miami-Dade Circuit Judge David C. Miller agreed and ruled for National Marine. Emas, who wrote the opinion, Salter and Senior Judge Alan Schwartz affirmed.
Ryan’s attorney, Andrew Harris of Burlington & Rockenbach in West Palm Beach, could not be reached for comment by deadline.
In a special concurrence, Schwartz wrote: “On the ground that as a matter of law, no one is liable for the accident but the decedent, I join in affirmance.”
De la Grana observed the hearing where Clark argued for National Marine. He said Schwartz’s opinion didn’t come as a surprise.
“The first question out of Judge Schwartz was, ‘Why are we even here? … How is this an issue?”