I Bear Witness to the State of Florida’s Disregard for Human Life

8/20/2019 I Bear Witness to the State of Florida’s Disregard for Human Life

1/13

VIA Email to the DOS E-service list February 2, 2016

Ken Detzner, Secretary of State

Florida Department of State (DOS)

R.A. Gray Building

500 South Bronough StreetTallahassee, Florida 32399-0250

http://dos.myflorida.com/

Public record request F.S. § 119.07(1)(c) All public records requests shall be acknowledged

promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.

Dear Secretary Detzner:

Enclosed is the response of the Office of the General Counsel February 2, 2016 to my revised

record request of January 21, 2016. Adam S. Tanenbaum is General Counsel for the DOS.

We are in receipt of you revised public records request on January 21, 2016. Because your

request remains unlimited in terms of date and subject matter we anticipate that a revised cost

estimate still will be in the thousands of dollars. Unless we hear from you otherwise, we will

proceed to finalize an estimate and provide it to you for advance payment. If you instead decide

that you would like to reduce the scope of your request further, please advise so that our estimate

can accommodate your decision.

Meanwhile, your request that the Department, “Please identify the source of federal grant funds

so that I may make a separate FOIA to the respective federal agencies,” is not a public records

request under Chapter 119, Florida Statutes.

• In response to the foregoing, provide records for the last 3 years mandated under FloridaStatutes, section 20.051 Review of programs. A PDF of section 20.051 (2015) is attached.

• Provide records showing the source of the federal grant funds under F.S. section 20.051.

The Older Americans Act (OAA), 42 U.S.C. 3001 et seq., is federally funded, and administered

by the Department of Elder Affairs (DOEA) under F.S. § 430.101 Administration of federal

aging programs. The DOEA was created by F.S. § 20.41 Department of Elderly Affairs.

On March 3, 2015, Frank Collelo, a 67-year-old non-lawyer, appearing pro se, died after

collapsing in a Hillsborough courtroom during a foreclosure hearing on his home. Records

provided by DOEA counsel Sarah Halsell show Mr. Collelo may have been entitled to legal

counsel under the OAA to represent him during the foreclosure hearing March 3, 2015.

If the DOS has not complied with F.S. § 20.051 Review of programs, I believe a complaint to the

General Accounting Office (GAO) is appropriate. For wrongful death in Florida see,

Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222 (Fla. Dist. Ct. App., 3d Dist.

1978). In connection with the requirement in wrongful death actions of an underlying tort

or breach of duty, proof of the defendant’s violation of a statute or regulatory provision


2/13

Ken Detzner, Secretary of State February 2, 2016

Florida Department of State

Public Records RequestPage - 2

that either is designed to protect a particular class of persons from their inability to

protect themselves or establishes a duty to take precautions to guard a certain class of

persons from a specific type of injury, establishes negligence per se.

While the information in this letter deals with legal issues, it does not constitute legal advice. If you have specific questions related to the information presented here, you are encouraged to

consult an attorney who can investigate the particular circumstances of your situation.

Thank you for the courtesy of a response.

Sincerely,

Neil J. Gillespie8092 SW 115th Loop

Ocala, Florida 34481

Tel. 352-854-7807

Email: [email protected]

Enclosures

F.S. § 20.051 Review of programs

F.S. § 20.41 Department of Elderly Affairs

F.S. § 430.101 Administration of federal aging programs

U.S. CODE-2010-title42-chap35, Older Americans Act, et al.DOS Response to REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016

Email of Sarah Halsell Esq. DOEA Jan-26-2016 re Older Americans Act

Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, Fla. 3rdDCA

I bear witness to the state of Florida’s

disregard for human life


3/13

Neil Gillespie

From: "General Counsel" To: "Neil Gillespie" Sent: Tuesday, February 02, 2016 9:43 AMSubject: RE: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an unreasonable

charge for public records

Page 1 of 1

2/2/2016

Good Morning,

We are in receipt of you revised public records request on January 21, 2016. Because your request

remains unlimited in terms of date and subject matter we anticipate that a revised cost estimate still

will be in the thousands of dollars. Unless we hear from you otherwise, we will proceed to finalize an

estimate and provide it to you for advance payment. If you instead decide that you would like to reduce

the scope of your request further, please advise so that our estimate can accommodate your decision.

Meanwhile, your request that the Department, “Please identify the source of federal grant funds so that

I may make a separate FOIA to the respective federal agencies,” is not a public records request under

Chapter 119, Florida Statutes.

Sincerely,

Office of the General Counsel

Note: This response is provided for reference only and does not constitute a formal legal opinion or representationfrom the sender or the Department of State. Parties should refer to the Florida Statutes and applicable case law,and/or consult an attorney to represent their interests before relying upon the information provided.

In addition, Florida has a very broad public records law. Written communications to or from state officials

regarding state business constitute public records. Public records are available to the public and media uponrequest, unless the information is subject to a specific statutory exemption. Therefore, any information that yousend to this address, including your contact information, may be subject to public disclosure.

From

Neil Gillespie [mailto:[email protected]]

Sent

Thursday, January 21, 2016 10:09 AM

To

Strom, Lydia J.; Jones, Jordan; Office of the Inspector General; General Counsel; Fugett, David A.;

Rey, Carlos A.; Tanenbaum, Adam S.; Detzner, Kenneth W.

c

Neil Gillespie

Subject

REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an

unreasonable charge for public records

The Department of State is committed to excellence.Please take our Customer Satisfaction Survey.


4/13

Neil Gillespie

From: "General Counsel" To: "Neil Gillespie" Sent: Monday, January 25, 2016 9:13 AMSubject: RE: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an

unreasonable charge for public records

Page 1 of 1

1/25/2016

Good Morning,

We have received your public records request. Your request will be processed in accordance

with the Florida Public Records Law. You will be advised as soon as possible regarding

estimated costs. Payment will be due in advance by cash, check, or money order made payable

to the Florida Department of State.

Sincerely,

Brandy Hedges

Executive Assistant I

Office of the General Counsel

Florida Department of State

850 245 6513

Note: This response is provided for reference only and does not constitute a formal legal opinion orrepresentation from the sender or the Department of State. Parties should refer to the Florida Statutes andapplicable case law, and/or consult an attorney to represent their interests before relying upon theinformation provided.

In addition, Florida has a very broad public records law. Written communications to or from state officialsregarding state business constitute public records. Public records are available to the public and mediaupon request, unless the information is subject to a specific statutory exemption. Therefore, anyinformation that you send to this address, including your contact information, may be subject to publicdisclosure.

From: Neil Gillespie [mailto:[email protected]]

Sent: Thursday, January 21, 2016 10:09 AM

To: Strom, Lydia J.; Jones, Jordan; Office of the Inspector General; General Counsel; Fugett,

David A.; Rey, Carlos A.; Tanenbaum, Adam S.; Detzner, Kenneth W.

Cc: Neil Gillespie

Subject: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is

an unreasonable charge for public records

The Department of State is committed to excellence.Please take our Customer Satisfaction Survey.


5/13

VIA Email to the DOS E-service list January 21, 2016

Ken Detzner, Secretary of State “Revised record request”

Florida Department of State (DOS)

R.A. Gray Building500 South Bronough Street

Tallahassee, Florida 32399-0250

http://dos.myflorida.com/

“Revised record request” F.S. § 119.07(1)(c) All public records requests shall be acknowledged

promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.

Dear Secretary Detzner:

This is a “Revised record request”. Please advise if there is a cost for the records.

• Provide public records for the Federal Grants Trust Fund, section 20.105, Florida Statutes.

• Provide public records for the Clearing Funds Trust Fund, section 20.104, Florida Statutes.

If this record has been complied by the DOS and/or the Florida Department of Financial

Services, or other entity, and is online, kindly provide a link to the record in lieu of duplication.

• On December 10, 2015 I requested of Mr. Carlos Rey, "Please identify the source of the

federal grant funds so that I may make a separate FOIA to the respective federal agencies."

• When can I expect a response to the forgoing? (Federal FOIA allows for a fee waiver.)

Kindly provide the records requested by email in PDF to me at Email: [email protected]

Thank you in advance for the courtesy of a response.

Sincerely,

Neil J. Gillespie

8092 SW 115th LoopOcala, Florida 34481

Tel. 352-854-7807

Email: [email protected]


6/13

Select Year:

The 2015 Florida Statutes

Title IV

EXECUTIVE BRANCH

Chapter 20

ORGANIZATIONAL STRUCTURE

View Entire Chapter

20.051 Review of programs.—

(1) To achieve maximum efficiency and effectiveness of government as intended by s. 6, Art. IV of the

State Constitution, and to promote quality management and accountability as required in s. 19, Art. III of the

State Constitution, all programs, functions, and entities must be reviewed by the executive and the legislative

branches. The review must identify and examine the purpose of each program, function, or entity to ensure

that each program, function, or entity is administered in the most effective and efficient manner possible, and

to assess the public benefit derived from the program, function, or entity. Reviews must determine whether

the function, program, or entity:(a) Serves an identifiable purpose that benefits the public and accomplishes the purpose for which it was

created;

(b) Operates efficiently and effectively within its statutory framework, and whether there are any

statutory changes that would likely increase the effectiveness and efficiency of the function, program, or

entity;

(c) Is necessary to the public health, safety, or welfare, and what would be the effect of its abolition;

(d) Serves a beneficial purpose to state agencies in improving the effectiveness and efficiency of the

operations of the state;

(e) Directly or indirectly increases or decreases the costs of any goods or services, and whether any

identified increase in cost is more harmful to the state than any of the harm that could occur absent thefunction, program, or entity;

(f) Is situated within an organizational structure that promotes its efficient and effective administration

and does not duplicate activities conducted in other agencies of the state; and

(g) Could be assigned to another state agency or to private enterprise, and if so, the most efficient way of

doing so.

(2) Unless other criteria are specifically provided by law, any review of a function, program, or entity

scheduled for repeal by law must be conducted in accordance with the criteria specified in subsection (1). In

conducting a review of a function, program, or entity scheduled for repeal, the presumption is in favor of the

repeal. The need for or benefits derived from a program, function, or entity subject to repeal and prior review

must be compelling as measured by these criteria for the function, program, or entity to be continued.History.—s. 5, ch. 94-235.

Copyright © 1995-2016 The Florida Legislature • Privacy Statement • Contact Us

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0020/Sections/0020


7/13

Select Year:


Title IV

EXECUTIVE BRANCH

Chapter 20

ORGANIZATIONAL STRUCTURE

View Entire Chapter

20.41 Department of Elderly Affairs.—There is created a Department of Elderly Affairs.

(1) The head of the department is the Secretary of Elderly Affairs. The secretary must be appointed by the

Governor, subject to confirmation by the Senate. The secretary serves at the pleasure of the Governor. The

secretary shall administer the affairs of the department and may employ assistants, professional staff, and

other employees as necessary to discharge the powers and duties of the department.

(2) The department shall plan and administer its programs and services through planning and service areas

as designated by the department.

(3) The department shall maintain its headquarters in Tallahassee.(4) The department shall administer the State Long-Term Care Ombudsman Program, created by s.

400.0063, and shall, as required by s. 712 of the federal Older Americans Act of 1965, ensure that the State

Long-Term Care Ombudsman Program operates in compliance with the Older Americans Act.

(5) The department shall be the state unit on aging as defined in the federal Older Americans Act of 1965,

as amended, and shall exercise all responsibilities pursuant to that act.

(6) In accordance with the federal Older Americans Act of 1965, as amended, the department shall

designate and contract with area agencies on aging in each of the department’s planning and service areas.

Area agencies on aging, as nongovernmental, independent, not-for-profit corporations under s. 501(c)(3) of the

Internal Revenue Code, shall ensure a coordinated and integrated provision of long-term care services to the

elderly and shall ensure the provision of prevention and early intervention services. The department shallhave overall responsibility for information system planning. The department shall ensure, through the

development of equipment, software, data, and connectivity standards, the ability to share and integrate

information collected and reported by the area agencies in support of their contracted obligations to the

state. The department shall contract with area agencies on aging to fulfill programmatic and funding

requirements.

(7) The area agency on aging shall, in consultation with the secretary, appoint a chief executive officer,

hereafter referred to as the “executive director,” who shall be accountable for the agency’s performance.

(8) Area agencies on aging are subject to chapter 119, relating to public records, and, when considering

any contracts requiring the expenditure of funds, are subject to ss. 286.011-286.012, relating to public

meetings.History.—s. 1, ch. 91-115; s. 17, ch. 93-177; s. 13, ch. 94-235; s. 45, ch. 95-418; s. 30, ch. 97-286; s. 5, ch. 99-377; s. 15, ch.

99-393; s. 203, ch. 99-397; s. 119, ch. 2000-349; s. 39, ch. 2000-367; s. 9, ch. 2002-1; s. 19, ch. 2002-223; s. 1, ch. 2009-46; s . 19,

ch. 2015-31.




8/13

Select Year:


Title XXX

SOCIAL WELFARE

Chapter 430

ELDER AFFAIRS

View Entire Chapter

430.101 Administration of federal aging programs.—The Department of Elderly Affairs is designated

the state unit on aging under the federal Older Americans Act of 1965, as amended, and shall exercise all

responsibilities under that act. The department is the state agency designated to handle all programs of the

Federal Government relating to the aging, by virtue of funds appropriated through the Older Americans Act of

1965 and subsequent amendments, requiring actions within the state which are not the specific responsibility

of another state agency under the provisions of federal or state law. Authority is hereby conferred on the

department to accept and use any funds in accordance with established state budgetary procedures which

might become available pursuant to the purposes set out herein.History.—s. 1, ch. 70-255; s. 115, ch. 71-355; s. 286, ch. 77-147; s. 18, ch. 78-433; s. 70, ch. 95-418.

Note.—Former s. 409.360; s. 410.011.




9/13

354 So.2d 1222 (1978)

FLORIDA FREIGHT TERMINALS, INC., Appellant,

v.

Joe CABANAS, As the Adminis trator of the Estates of Vincente Iglesias, Teresa

Iglesias, Maria Iglesias, and Manuel Iglesias, Deceased, Appellee.

Nos. 76-2210 to 76-2213.

January 24, 1978.

Rehearing Denied February 27, 1978.

District Court of Appeal of Florida, Third District.

*1223 Sam Daniels, Miami, for appellant.1223

Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appellee.

Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

NATHAN, Judge.

This is an appeal by Florida Freight Terminals, Inc. (Florida Freight), a defendant below, from final money

judgments entered pursuant to jury verdicts in four consolidated wrongful death actions.

On December 15, 1973, an airplane loaded with a cargo of Christmas trees took off from Miami Internationa

Airport, bound for Caracas, Venezuela. Minutes later, it crashed into the home of the Iglesias family of Miami

Two children, Vincente, Jr. and Jose, though injured, survived. Their parents and grandparents died as a

result of the crash.

In 1974, four wrongful death actions were brought by Joe Cabanas, the administrator*1224 of the decedents'

estates, against numerous defendants, and were consolidated for trial. A fifth action brought by Ladislao

Ferrera, the children's guardian, for their injuries, was severed for separate trial, and remains pending.

1224

Prior to the trial of the wrongful death actions, both appellee, acting on behalf of the four estates, and

Ferrera, acting on behalf of the children in their personal injury actions, reached settlements with other

original defendants for the sum of $745,000; $300,000 to go to the decedents' estates to settle the wrongfu

death claims and $445,000 to go to the children in their guardianship action for personal injury and pain and

suffering. Releases were signed by both Cabanas and Ferrera.

The four consolidated wrongful death actions proceeded to trial against the two remaining defendants,

appellant, Florida Freight, the air freight handler which loaded the cargo of trees onto the aircraft, and

Paulssen and Guice, Ltd. (P&G), the freight forwarding firm which arranged for the loading and transportation

of the trees and hired the pilot in charge of the flight.

During the course of trial, appellant presented evidence that the pilot, in contravention of FAA rules, had

permitted the cargo to be loaded without being secured, and that the plane crash might have resulted from

engine failure. P&G presented evidence that it was customary in the business for freight forwarders to rely o

ps://scholar.google.com/scholar_case?q=Florida+Freight+Terminals,+Inc.+v.+Cabanas&hl=en&as_sdt=40006&as_vis=1&case=1117939273


10/13

the expertise of freight handlers in the balancing and securing of cargo. Appellee offered extensive evidence

that Florida Freight had improperly loaded the plane in that i t should have tied down the trees by means of

ropes, nets or other restraining devices, and that the crash was caused by the shifting of the cargo to the

rear of the plane upon takeoff, making the craft so tail heavy that getting off the ground was difficult and

remaining aloft was impossible. It was uncontested that Florida Freight did not secure the trees. Protracted

evidence was also presented pertaining to the damage aspects of the proceedings.

During the charge conference, Florida Freight requested that the trial court instruct the jury on the "Slavinrule": that an independent contractor was not liable for its negligent acts once its work had been accepted by

an owner or employer. Appellant also requested that the jury be charged that violation of applicable FAA

regulations was negligence per se. The trial court denied both requests. Instead of giving the requested

instruction on the "Slavin rule" the court gave instructions on proximate cause, concurrent cause and

intervening cause. Instead of giving the requested instruction on negligence per se, the court instructed the

jury that violation of applicable FAA regulations was non-conclusive evidence of negligence.

The jury returned a verdict in favor of P&G, and its liability is not at issue in this appeal. Florida Freight was

found solely liable and damages totalling $2,034,500 were assessed. Appellee stipulated below that the

$300,000 settlement reached between decedents' estates and the other original defendants was to be set oagainst the verdicts, but appellant's request for a hearing to determine how much of the $445,000 settlemen

should be set off was denied. The trial court found, as a matter of law, that no part of the $445,000 settleme

between Ferrera, as guardian of the children, and the other original defendants was subject to being set off

against the amounts of the final judgments in the cases sub judice, although this sum might be set off in the

pending case between Ferrera and Florida Freight. Final judgment was entered against appellant in the sum

of $1,734,500; that is, the amount of the total damages assessed, less the amount stipulated as a set off by

appellee.

Florida Freight raises several points on appeal. Foremost among them, and one which mandates reversal, is

that the trial court erred in refusing to instruct the jury that violation of the applicable FAA regulations wasnegligence per se.

The regulations unequivocally stated:

"No pilot in command may permit cargo to be carried in any airplane unless

.....

*1225 it is properly secured by a ... tiedown having enough strength to eliminate the possibility of

shifting under all normally anticipated flight and ground conditions."

1225

General Operating and Flight Rules, 14 C.F.R. § 91.203(a) (1973). This regulation requires the conclusion

that it was designed to prevent plane crashes caused by shifting cargo and to protect that class of persons

who might be injured by such a crash. It is negligence per se to violate a statute designed to protect a

particular class of persons from their inability to protect themselves or to violate a statute which establishes

duty to take precautions to protect a particular class of persons from a particular type of injury.deJesus v.

Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla. 1973);Sloan v. Coit International, Inc., 292

So.2d 15 (Fla. 1974). The regulation at issue in the instant case encompasses both of these situations.

While our research reveals no case in Florida which holds precisely that violation of an FAA safety regulatio



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is negligence per se, we believe that deJesus and Sloan mandate this conclusion, and find additional suppor

for such a position in decisions of other jurisdictions.See e.g. Gatenby v. Altoona Aviation Corporation, 407

F.2d 443 (3rd Cir.1968); Rudelson v. United States, 431 F. Supp. 1101 (C.D.Cal. 1977);Todd v. United

States, 384 F. Supp. 1284 (M.D.Fla. 1975); in which the laws of Pennsylvania, California and Alabama,

respectively, were found to compel the conclusion that violation of an FAA safety regulation was negligence

per se.

The jury in the case sub judice was left free to find that the pilot was not negligent in carrying unsecuredcargo. It should not have been at liberty to decide that violation of the standard of care imposed by an FAA

safety regulation was not negligence. Failure to properly instruct the jury on this issue constituted prejudicial

error and requires reversal.

Appellant also asserts as error the trial court's failure to direct a verdict for Florida Freight on the basis of th

so-called "Slavin rule,"[1] which, in appropriate circumstances, has been held to sever the causal relationship

between the negligence of an independent contractor and the harm resulting therefrom. We believe an

accurate statement of the rule to be: An independent contractor is not liable for injuries to third parties after

the contractor has completed his work and turned the project over to the owner or employer and it has been

accepted by himunless the parties were dealing with inherently dangerous elements or the defect at issuewas latent and could not have been discovered by the owner or employer. (Emphasis supplied.)

It is neither appropriate[2] nor necessary for us to decide whether or not the vitality of the "Slavin rule"

remains undiminished in the light of more recent supreme court rulings which strive to equate liability with fau

in negligence actions, e.g. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); andLincenberg v. Issen, 318

So.2d 386 (Fla. 1975), because we find no error in the trial court's refusal to direct a verdict in favor of

Florida Freight. This is so for several reasons.

In the first place, a careful examination of the cases in which the rule has been allowed to operate to insulat

an independent contractor from liability for his negligent acts or omissions reveals that the factual contexts o

the cases generally encompassed the builder/subcontractor relationship vis-a-vis construction defects in

buildings or delivery of material to a fixed job site. We decline to extend it at this late date into an area far

afield from that in which we believe it was intended to apply, and on facts materially different from those in

which the rule has been held applicable.

*1226 Secondly, it is clear that the rule was not intended to insulate an independent contractor from liability in

circumstances in which inherently dangerous elements were involved.See Carter v. Livesay Window Co., 73

So.2d 411 (Fla. 1954), andBreeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941), both

cited in Slavin. The instant case presents just such a situation, for we deal with the dangers which arose fro

the shifting of unsecured cargo on an airplane, which, when moving, is itself a dangerous instrumentality.

Orefice v. Albert, 237 So.2d 142 (Fla. 1970). The only significant difference between window frames which

are left on a job site unsecured (Carter ) or electrical wires which are improperly connected in a stationary

piece of equipment (Breeding's) and a load of Christmas trees left unsecured when they should have been

fastened is that the element of danger is exacerbated in the instant case by its association with an inherentl

dangerous object, the moving airplane. Thus the case before us presents, not a situation in which the rule

could apply, but one in which the exception is applicable.

1226

In a circumstance involving inherently dangerous elements, where evidence of negligence has been

presented, questions of causation are properly for the jury to decide. Thus the trial court committed no error



12/13

in refusing to direct a verdict for Florida Freight.

The above discussion necessarily is dispositive of appellant's next assertion: that the trial court erred in

failing to charge the jury that an independent contractor is not liable for injuries to third persons occurring

after the work is turned over to the owner. Since the "Slavin rule" is inapplicable on the facts of this case, the

requested charge was not in order.[3] The charges given adequately covered the applicable law.

The next point we reach is whether the trial court erred in ruling that no portion of the $445,000 settlement

was subject to being set off against the judgments in the instant actions. The release signed by Ferrera, as

guardian of the children, acknowledges receipt of $445,000, and releases the settling defendants from "any

and all actions, causes of action, claims, including claims for wrongful death ... arising from the crash. It

goes on to accept $222,500 on behalf of each of the children,

"for the purpose of making a full and final compromise, adjustment, and settlement of all claims of

the said minor, and of his heirs and legal representatives and beneficiaries, past, present and

future, including claims for wrongful death. ..."

Section 768.041(2), Florida Statutes, (Supp. 1977) provides:

At trial if any defendant shows the court that the plaintiff, or any person lawfully on his behalf,

has delivered a release or covenant not to sue to any person, firm or corporation in partial

satisfaction of the damages sued for, the courtshall set off this amount from the amount of any

judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and

enter judgment accordingly. (Emphasis supplied.)

This provision was construed by the Florida Supreme Court as authorizing "to be set off from a judgment

against one joint tort-feasor only the amount constituting a settlement for the damages or damage elements

recoverable in the same cause of action against another joint tort-feasor."Devlin v. McMannis, 231 So.2d

194 (Fla. 1970), at 196.

The court went on to say:

The set off contemplated by the above-cited statutory provision must be interpreted so as to

preserve the identity of the separate causes of action and the distinctive character of the

damage element accruing under each such cause. The statute is designed, within the degree of

specificity ascertainable under verdict *1227 and judgment procedures, to prevent duplicate or

overlapping compensation for identical damages. However, in effecting this purpose, F.S.

Section 768.041, F.S.A. does not require set offs where parties entitled to compensation for

particular damage elements recoverable under one cause of action may be the beneficial

recipients of compensation awardable for different elements of damage accruing under another

cause of action. Id.

1227

It is clear that some portion of the $445,000 was paid for the children's wrongful death claims since their

personal injury claims do not involve such substantial damages. The language of the release specifically

includes as part of the settlement, claims for wrongful death, and while a set off of the total sum would be

incorrect in view of the pending personal injury action between the children and Florida Freight, we hold that

the trial court erred in finding, as a matter of law, that no portion of the $445,000 was subject to being set of

against the judgments in the cases sub judice. Clearly, some portion of the total sum is allocable to the



13/13

wrongful death recovery. In the event that the plaintiff should prevail in a new trial, the court should conduct

proceedings to determine the portion of the $445,000 which is applicable to the wrongful death claims in

order that such sum may be apportioned as a set off.

In conclusion, we find merit in appellant's contention that the trial court erred in admitting certain testimony

relating to appellee's damage claims. The economic loss theory advanced by appellee's expert witness to

determine the extent of the damages was not in conformity with the requirements of Section 768.21 of the

Florida Wrongful Death Act. In any future proceedings in this cause, adherence to the provisions of thisstatute should be compelled.

In light of the above opinion, it is unnecessary to reach the question of whether the verdicts rendered were

excessive.

Affirmed in part, reversed in part, and remanded for a new trial.

[1] Slavin v. Kay, 108 So.2d 462 (Fla. 1959).

[2] Cf. Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977), in which our sister court evinced reluctant adherence to the rule, noting

that it is not the function of a District Court of Appeal to override the Supreme Court of Florida.

[3] We note, parenthetically, that even if some charge on the "Slavin rule" would have been appropriate, neither of Florida Freight's

requested instructions properly stated the rule since they omitted mention of the exceptions thereto which were applicable in this case.

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I Bear Witness to the State of Florida’s Disregard for Human Life

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