Claudio v. Regalado, ___ So. 3d ___, 38 Fla. L. Weekly D498 (Fla. 2d DCA March 1, 2013)
Mr. Claudio was involved in a motor vehicle collision with Mrs. Regalado. The Regalado’s three children were passengers in Mrs. Regalado’s car. One of the children, a daughter, died. Mr. Regalado sought damages for the wrongful death of his daughter, and Mrs. Regalado sought damages for the wrongful death of her daughter and her own injuries. The trial court denied Mr. Claudio’s motion to amend his answer to assert a counterclaim for contribution against Mrs. Regalado. The jury found that Mrs. Regalado was 50% negligent, and Mr. Claudio was 50% negligent. The appellate court held that the trial judges (there were three during the course of the case) erred by depriving Mr. Claudio of the opportunity to amend his answer to add a counterclaim for contribution against Mrs. Regalado because she was a party. Although Mrs. Regalado was treated as a Fabre defendant, a Fabre defendant is not a party to the lawsuit and, as a result, judgment cannot be entered against her. Therefore, Mr. Claudio would be prejudiced if he could not assert his contribution claim against Mrs. Regalado in the original lawsuit. Although contribution may be enforced by separate action, if is more efficient to resolve a contribution claim as part of the original lawsuit, and it would reduce the risk that Mr. Claudio would be unable to collect his judgment for contribution from Mrs. Regalado. As a result of the contribution claim, Mrs. Regalado’s judgment would be reduced not only by her 50% comparative negligence but also by 50% of Mr. Regalado’s recovery against Mr. Claudio. This result could not be achieved by resort to the Comparative Fault Statute, Section 768.81, Florida Statutes, because Section 768.20, Florida Statutes, which is part of the Wrongful Death Act, provides that “a non-negligent survivor’s recovery cannot be reduced [by] another survivor’s negligence.” The court certified to the Florida Supreme Court as questions of great public importance whether the comparative fault statute precludes a counterclaim or third party claim for contribution and, if so, whether Mrs. Regalado would have to be paid in full by Mr. Claudio before he could obtain contribution against her.