Florida/Georgia Personal Injury & Workers Compensation

...In order to promote settlements, Florida has abolished the common law fule that a release of one tortfeasor discharges all other tortfeasors who might be liable for that tort. Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla. 1975); § 768.041(1) Fla....

...is given in good faith to one of two or more persons liable in tort for the same injury ... (a) It does not discharge any of the other tortfeasors from liability ... unless its terms so provice... ." § 768.31(5) Fla. Stat. (1977). Clearly there is no prohibition against a general release in section 768.041(1), Florida Statutes (1977)....

...1st DCA 1994), in which the district court of appeal certified the following questions to be of great public importance: (A) IS A NON-SETTLING DEFENDANT IN A CASE TRIED UNDER SECTION 768.81(3) ENTITLED TO SETOFF OR REDUCTION OF HIS APPORTIONED SHARE OF THE DAMAGES, AS ASSESSED BY THE JURY, UNDER THE PROVISIONS OF SECTIONS 768.041(2), 46.015(2) OR 768.31(5)(a), BASED UPON SUMS PAID BY SETTLING DEFENDANTS IN EXCESS OF THEIR APPORTIONED LIABILITY AS DETERMINED BY THE JURY? (B) DOES THE RULE AS TO SETOFF APPLY EQUALLY TO BOTH ECONOMIC AND NON-ECONOMIC DAMAGES? Id....

...esenting the total amount paid by the settling defendants. The trial court denied the requested setoff. On appeal, TMRMC contended that the trial court erred in denying the requested setoff. The district court of appeal held that sections 46.015(2), 768.041(2), and 768.31(5), *251 Florida Statutes (1991) (the setoff statutes), required that "the $300,000 paid in settlement by other defendants must be applied in reduction of the total damage award returned by the jury." Tallahassee Memorial Regional Medical Ctr., Inc., 634 So.2d at 658....

...Section 46.015 clearly applies to "a person who is or may be jointly and severally liable with other persons for a claim." Id. (emphasis added). A defendant sued under section 768.81 may not be jointly liable with other defendants for noneconomic damages. Thus, section 46.015 does not apply to noneconomic damages. Section 768.041 provides, in pertinent part: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...or corporation in partial satisfaction of the damages sued for, the court shall 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. § 768.041, Fla. Stat. (1989) (emphasis added). Under section 768.041, a setoff is made "in partial satisfaction of the damages sued for." Id....

...Because a party is only liable for noneconomic damages in proportion to the percentage of fault by which that party contributed to the accident, Fabre, 623 So.2d at 1185, a plaintiff cannot sue one party for the noneconomic damages caused by another party. Therefore, section 768.041 does not apply to noneconomic damages....

...While I concur in the majority's opinion because it makes very good sense, I have some concern that the legislature has not acted to express or clarify its intent as to the continuing application of the provisions of sections 46.015(2), 768.31(5)(a), and 768.041(2), Florida Statutes (1991), in view of the enactment of section 768.81(3), Florida Statutes (1989)....

...to be 85% responsible for the claimant's injury. As a practical matter, of course, this right to "contribution" is also limited, as all tort rights are, by the financial solvency of the contributing tortfeasors. Sections 46.015(2), 768.31(5)(a), and 768.041(2) are actually parts of the legislative contribution scheme....

...Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed. The underlying purpose of the contribution scheme and sections 46.015(2), 768.31(5)(a), and 768.041(2) is simply no longer served in such a case....

...It would be far better, however, since this is an area in which the legislature has broad discretion and authority, and has been very active, for the legislature to expressly indicate the limitations on the continuing use of the contribution scheme, including the setoff provisions of sections 46.015(2), 768.31(5)(a), and 768.041(2)....

..."We cannot determine that the error was harmless as pertains to the entry of the judgment. Therefore, the judgment is reversed and this cause remanded for further proceedings to afford appellants the opportunity to apply to the trial court for any setoff to which they may be entitled under the provisions of Section 768.041(2), F.S....

...e to be used unfairly as a tool to avoid complete justice. The object is to have a full and fair evaluation by the jury of the extent of each party's actual liability. NOTES [1] 202 So.2d 8 (Fla.App.2d 1967). [2] 252 So.2d 407 (Fla.App.2d 1971). [3] Section 768.041(2) 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...

...ies. Post-trial, Ingalls moved for a new trial based on the remark of State Farm's counsel to the jury during opening statements that a settlement had already been reached between Ingalls and Bradley. The circuit court found that the remark violated section 768.041(3), Florida Statutes (1999), and granted a new trial....

...In short, the exercise of sound professional judgment rests upon considerations of legal perception and not prescience. Davis v. Damrell, 119 Cal.App.3d 883, 174 Cal.Rptr. 257, 260-61 (1981). At the time Crosby entered the dismissal in this case, this Court had clearly stated that section 768.041(1), Florida Statutes (1973), abolished the common law rule that a discharge of one joint tortfeasor discharged all other tortfeasors....

...did not provide that DeMario could reduce her liability by staying in the litigation. Thus, he asserts that the agreement was more in the nature of a release or covenant not to sue which was protected from disclosure to the jury by the provisions of section 768.041(3), Florida Statutes (1989)....

...Thus the jury had to have been aware that these individuals did not stand united in opposition to the plaintiffs and that each felt the other bore some responsibility for the collision, a point of considerable importance to Quinn's defense. See note 1, supra. [5] We note parenthetically that plaintiffs' argument that § 768.041 F.S....

..., was an abuse of discretion. [1] We find the most damaging error to be that of permitting appellees to bring repeatedly to the jury's attention the fact that Jackson Hospital and its employees, including Dr. Hammond, had been dropped as defendants. Section 768.041(3), Florida Statutes (1979) provides: The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury....

...Though neither the fact of settlement, nor the terms of that agreement were put before the jury, the record shows numerous instances where appellees were permitted to bring to the jury's attention the fact that Jackson Hospital and its employees had been prior defendants. Section 768.041(3), Florida Statutes (1979), prohibits bringing before the jury such a fact whether the parties were dismissed by the plaintiff as a result of release or settlement or whether the parties were dismissed by the court....

...Admittedly, the receipt of the payments by the parking lot owner or the injured pedestrian would not have prevented either of them from suing Fielland, but Fielland (and hence F & C) would have been entitled to an offset by the amount of these payments under F.S. § 768.041, F.S.A....

...In reaching this result, the District Court stated: "There are two reasons why agreements of this type are a proper subject for pretrial discovery. First, there is the possibility that the agreement would be of such a nature as would sustain the non-signing defendant's entitlement to a setoff under F.S. Section 768.041, F.S.A....

...ly, the only true practical distinction between a covenant not to sue and a release was its effect upon a joint tortfeasor, see 10 Fla.Jur.2d Compromise, Accord, and Release § 23 (1979), and even this distinction has been statutorily abrogated. See § 768.041, Fla....

...radley, and the fact that Bradley had "gone away." Ingalls's attorney timely objected and, at a bench conference, remarked that this issue had been raised in a motion in limine. Contained in Chapter 768 of the Florida Statutes entitled "Negligence," Section 768.041(3), Florida Statutes (2000) provides that "[t]he fact of ......

...Hoffman as a result of this accident." Id. In so holding, this court noted that "[m]ention of a `claim' does not come within the specific prohibition against `revealing the fact of release or covenant, or that *1007 any defendant has been dismissed'" within the meaning of section 768.041(3)....

...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....

...er 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....

...Lytton, and the employer, L & D Farms, d/b/a an alleged partnership with Florida Tomato Packers, Inc., that Florida Tomato Packers, Inc., was released from any possible liability for the acts of the active tort feasor. We do not agree. It has been held that § 768.041, Florida Statutes, F.S.A., applies to all tort feasors, whether joint or several, including vicarious tort feasors....

...consolidated cases of Nearhoof vs. International Sales-Rentals Leasing Company (Case No. 41,659) and Government Employees Insurance Company (GEICO) vs. Nearhoof (Case No. 41,654). See 251 So.2d 717. Case No. 41,659 involves the question whether F.S. Section 768.041, F.S.A., gives a joint tortfeasor defendant a set-off equal to the amount of the recovery an injured *570 plaintiff receives from the carrier of his uninsured motorist coverage....

...We agree with the portion of the District Court's opinion which holds that International Sales-Rentals Leasing Company is not authorized by contract or statute to set-off against the $70,500 judgment obtained by the Nearhoofs, the amounts paid them by GEICO as uninsured motorist insurance. Neither Section 768.041 nor Section 627.0851 authorizes such a set-off of insurance benefits received as result of carrying uninsured motorist coverage in favor of a joint tortfeasor....

...McMannis, to be set off against the verdict to James D. McMannis, individually and on behalf of Marion R. McMannis. In so doing there would have been left a balance of $8,000 due plaintiff, James D. McMannis, as administrator of the estate of John H. McMannis, deceased minor. Section 768.041(2), F.S.A." McMannis v. Devlin at 493-494 of 222 So.2d. Having examined the briefs and heard oral argument in this cause, we affirm the decision of the Second District Court of Appeal. F.S. Section 768.041(2), F.S.A., provides: "(2) 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 o...

...ng under each such cause. The statute is designed, within the degree of specificity ascertainable under verdict 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....

...e of action may be the beneficial recipients of compensation awardable for different elements of damage accruing under another cause of action. The District Court's decision here reviewed is consistent with and preserves the intended purpose of F.S. Section 768.041(2), F.S.A....

...There are two reasons why agreements of this type are a proper subject for pretrial discovery. First, there is the possibility that the agreement would be of such a nature as would sustain the nonsigning defendant's entitlement to a setoff under F.S. Section 768.041, F.S.A....

...copy of the agreement which appellants have placed in the record. [3] The agreement involved in the case of Booth v. Mary Carter Paint Co., Fla. App. 1967, 202 So.2d 8 was held not to be a release or covenant not to sue within the provisions of F.S. Section 768.041, F.S.A., a view which we followed in the case of Schwencke v....

...After taking comparative negligence and the failure to wear a seat belt into account, the jury returned a verdict of $57,000 for Mrs. Dionese and $3,800 for her husband. A post-trial hearing was held to determine the proper method of set-off as required by section 768.041(2), Florida Statutes (1983), which provides: At trial, if any defendant shows the court that the plaintiff ......

...The jury returned a verdict of $4,500,000 in favor of Ileana, finding DOT 60% negligent and FPL 40% negligent. Defendants moved for a judgment notwithstanding the verdict, and for a setoff of the Brewer *1115 settlement against the verdict, pursuant to section 768.041(2), Florida Statutes (1983)....

...3d DCA 1960); Restatement (Second) of Torts § 488 (1965). Evidence of Neisis and Jesus' failure to protect Ileana with seat belts was, therefore, properly excluded at trial. DOT contends that it was entitled to a larger setoff of the judgment based upon Brewer's settlement. Pursuant to section 768.041, Florida Statutes (1983), a defendant is entitled to have all settlement funds paid by a joint tort-feasor in satisfaction of the same damages the plaintiff sued for subtracted from the judgment rendered against the defendant....

...d share of the settlement and in turn resulted in a reduction of the setoff to which DOT was entitled. A non-settling tort-feasor may attack an improper allocation which detrimentally affects its right to setoff in order to effectuate the purpose of section 768.041....

...amages to the witness' cars. The defendants argue that the rule pronounced in City of Coral Gables v. Jordan, Fla.App. 1966, 186 So.2d 60, affd, Fla. 1966, 191 So.2d 38 and Dade County v. Clarson, Fla. App. 1970, 240 So.2d 828 was violated. See also § 768.041, Fla....

...nt to settle-ment, is not the equivalent of an adjudication on the merits that will serve as a bar to continued litigation against the passive tortfeasor. [1] Our decision comports with Florida's public policy. This policy, as documented in sections 768.041(1) and 768.31(5), Florida Statutes, [2] encourages the settlement of civil actions....

...y responsible for his conduct as separate claims when one of them has been settled. Any payment received by the injured person in such a settlement, however, discharges pro tanto the obligation of the other obligor to pay the loss. See § 50(2). [2] Section 768.041(1), Florida Statutes (1987), states: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...As their first point on appeal, defendants claim that the trial court erroneously permitted plaintiff's counsel to bring to the jury's attention the fact that Silverman had previously been a defendant in the lawsuit for supplying a defective ladder. Silverman had settled with plaintiff before trial. Defendants maintain that Section 768.041(3), Florida Statutes (1983) prohibits such remarks....

...'s fees. This appeal ensued, the appellant contending that the trial court erred, first, in holding it liable under the terms of its policy and, second, that if it was liable that it was entitled to a set-off of the $19,500.00 settlement pursuant to § 768.041(2), Fla....

...es applied only where the liability continued to be joint and several. [2] See id. at 252-53. Justice Anstead, in his specially concurring opinion in Wells, explained the interplay between the statutory schemes: Sections 46.105(2), 768.31(5)(a), and 768.041(2) are actually parts of the legislative contribution scheme....

...Since the "problem" of a tortfeasor paying more than his fair share has been eliminated by the enactment of section 768.81(3), the "solution" to the problem by the scheme of contribution and setoff is no longer needed. The underlying purpose of the contribution scheme and sections 46.015(2), 768.31(5)(a), and 768.041(2) is simply no longer served in such a case....

...In contrast to the Third District's decision in Frederic, in Lauth v. Olsten Home Healthcare, Inc., 678 So.2d 447, 449 (Fla. 2d DCA 1996), the Second District allowed for a setoff against a settling defendant who was found not liable in a negligence action, relying upon the setoff statute contained in section 768.041(2), Florida Statutes (1993)....

...See ch. 99-225, Laws of Fla.; § 768.81(3), Fla. Stat. (2000). [2] Florida currently has three statutes governing contribution and setoff. All three statutes predated the enactment of comparative fault and the abrogation of joint and several liability. Section 768.041, Florida Statutes (2000), provides, in pertinent part: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge...

...Carroll by plaintiffs and satisfaction of the judgment against him *1089 had the effect of extinguishing any liability that might otherwise have accrued against Aetna. Conceding that the release of one joint tort-feasor no longer acts as a relaease of all joint tort-feasors, by virtue of Section 768.041, Florida Statutes (1977), appellant contends that a different rule prevails as to joint and several obligors, placing itself in that category....

...in this case. The district court therefore entered judgment for Scheib as follows: *862 Scheib's argument that the district court erred in setting off the amounts received by her from Florida Hospital and Dr. Garrett ($476,000) pursuant to Fla.Stat. section 768.041(2) (the setoff statute) 4 and section 768.31(5) (Florida’s enactment of the Uniform Contribution Among Tortfeasors Act) 5 is premised upon the fact that the trial court awarded nothing to Scheib for pain, suffering, disability, loss of enjoyment of life, or any intangible element of damage....

...The district court properly held that even if such an apportionment could be permitted under the plain terms of the Florida statutes, if the court were “required to fathom the discrete elements of damages which were intended to equate with the dollar value of a given release before it could apply Section 768.041(2), the court would be led into a grossly speculative endeavor unwarranted by the provisions of 768.041(2).” The district court correctly reduced the damages awarded Scheib against the Government by way of setoff of the full amounts of her settlements with Florida Hospital and Dr....

...and Dr. Garrett with Mr. Scheib extinguished the liability of the Government to him. 3 . This amount was reduced by $2,571.08 in premiums paid by Scheib so that the amount in the final judgment for net collateral source payments was $433,575.22. 4 . Section 768.041(2), Fla.Stat....

...It has nothing to do with this case, zero to do with this case. And the only reason that it might be a factor later on is when you apportion damages. That person is not even a party. That entity is not even a party to this lawsuit. So what he said to you, you should disregard completely, completely. Section 768.041(3), Florida Statutes (1993), prohibits a party from disclosing to the jury that a settlement has been made with an "empty chair" (non-party responsible for plaintiff's injuries)....

...Damages were assessed at $700,000 for Webb, *1063 $10,000 for Strong, and $150,000 each for the driver's two children. Accordingly, the judge found DOT and SCL jointly and severally liable to the driver's children in the amount of $37,500 each ($150,000 reduced by 75%). The judgments were further reduced pursuant to Section 768.041, Florida Statutes, because of settlement money the plaintiffs had received....

...10 The release, however, was executed in Florida in settlement of litigation pending in a court of that state. By statute, Florida's legislature has abrogated the common law rule as to the effect of a partial release given to one of several joint tortfeasors. Fla.Stat. Sec. 768.041....

...nt tortfeasors. Zimmerman's, Inc. v. McDonough Construction Co., et al, 240 Ga. 317 , 319, 240 S.E.2d 864 (1977). Florida has, by statute, abolished the common law rule that the release of one tortfeasor discharges the other tortfeasors. F.S.A. Sec. 768.041....

...That case was transferred to the Northern District of Georgia and consolidated with the instant lawsuit Theresa Menendez, the appellant's wife, claimed loss of consortium in this consolidated case. A stipulation of dismissal by consent of the parties disposing of her claim has been filed with the district court. 2 Section 768.041 provides in full: (1) A release or covenant not to sue as to one (1) tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...wise entitled at the time of rendering judgment and enter judgment accordingly. (3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury. Fla.Stat. Sec. 768.041....

...[3] It has been held that satisfaction of a judgment entered on stipulation is "no more than a release under the statute, notwithstanding that its ultimate form was that of a judgment duly satisfied." Mathis v. Virgin, Fla.App. 1964, 167 So.2d 897. The statute referred to is F.S. 1965, section 54.28, F.S.A. (now F.S. 1967, section 768.041, F.S.A.), which provides that a release of one joint tortfeasor does not totally relieve other joint tortfeasors of liability but rather operates only as a pro tanto discharge....

...Appellee argued to the jury that this was not sound banking principles. Said argument was not countered by appellant. Finally, appellee cross-appeals from that portion of the final judgment wherein the trial judge granted appellant's motion for a set-off, pursuant to Section 768.041, Florida Statutes (1977)....

...the two lawsuits were completely different, i.e., securities violation versus common law conversion, and (3) the amount set-off by the trial judge was purely arbitrary. After a careful review of the record, we must agree with appellee's contentions. Section 768.041, Florida Statutes (1977), authorizes a set-off from a judgment where joint tortfeasors are involved and where it appears that a release has been given by one tortfeasor in partial satisfaction for a claim made against the joint tortfeasors based upon the same cause of action....

...t of any conduct on the part of respondent. The effect of that release is the subject of controversy here. The trial court ruled that the release operated to discharge the alleged liability of respondent arising out of the same tort, notwithstanding section 768.041 (1), Fla....

...of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death." The district court affirmed the trial court and certified to this Court: "1. Does Section 768.041(1) F.S....

...abolish in toto the common law rule to the effect that the release of one or more tort-feasors operates as a discharge of all other tort-feasors who may be liable for the same tort? 2. If not, is an action for conversion one which is for `property damage to ... any person' within the meaning of Section 768.041(1) F.S.?" The first certified question is answered in the affirmative, making it unnecessary to answer the second question....

...[3] A more elaborate discussion of the policy reasons for applying this statute to all forms of torts is set forth in Judge Downey's dissent below. See Fla.App., 308 So.2d at 652-54. [4] Hanna v. Martin, 49 So.2d 585, 587 (Fla. 1950). [5] We note that the 1975 Legislature has reaffirmed the policy expressed in Section 768.041(1), Fla....

...4th DCA 2007), review granted, 977 So.2d 577, 2008 WL 1746024 (Fla.2008), which expressly and directly conflicts with the decision of the Third District Court of Appeal in Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Both sections 768.041 and 90.408, Florida Statutes (2006), prohibit the admission at trial of any evidence of settlement or dismissal of a defendant....

...es from Elson because the company was immune from liability in tort under Florida's workers' compensation statute. See § 440.11(1), Fla. Stat. (1999). In his appeal to the Fourth District, Saleeby argued, as he did in the trial court, that sections 768.041 and 90.408, Florida Statutes (2006), prohibited the admission of evidence of settlement and that violation of these statutes is clear reversible error....

...The trial court denied Ellis's immediate motion for mistrial and Ellis's objections to defense counsel's continual references to Dr. Kirsner's former party defendant status throughout the cross-examination. On appeal, the Third District reversed the jury verdict and remanded for a new trial. Id. Citing section 768.041's prohibition on informing a jury that a witness was a prior defendant in the case, the district court held that "[a]dmission of such testimony, even to attack the former defendant's credibility, is clear error and requires reversal." Id....

...d obvious meaning." Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Two Florida statutes specifically address the issue of disclosing evidence of settlement to the jury. Section 768.041, Florida Statutes (2006) provides as follows: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...uired that she remain a defendant participating in the litigation. Id. at 242. The trial court ruled that evidence of settlement could not be disclosed to the jury. On review here, Carsten argued that evidence of the settlement agreement fell within section 768.041(3)'s prohibition on disclosure of settlements to the jury, and Dosdourian countered that "the jury was still misled by not knowing that Carsten had settled his claim against DeMario while DeMario remained in the litigation." Id....

...The Fourth District cited this footnote to support its determination of an exception to the prohibitory statutes at issue here. As should be apparent from the foregoing discussion, our decision in Dosdourian addressed an entirely different situation than the one presented here. We did not apply section 768.041(3), nor did we create an exception to it....

...ontinue to participate as a defendant in the case. None of the concerns of fraud and unethical conduct propagated by Mary Carter Agreements are present here. Rather, the facts of the case fall entirely within the purview and prohibitions of sections 768.041 and 90.408....

...the scooter's operator. The plaintiff called the driver to testify and during redirect elicited testimony that the city had settled with him to show that the witness had no interest in the litigation. Id. at 61-62. Citing the predecessor statute to section 768.041, the district court stated: Section 54.28, Fla....

...and the defendant." Id. Accordingly, the appellate court found that admission of the evidence of settlement was reversible error and remanded for new trial. Id. at 64. Jordan and other cases fully illustrate the prejudice that results when sections 768.041 and 90.408 are violated: "[I]t is a practical impossibility to eradicate from the jury's minds the considerations that where there has been a payment there must have been liability." Jordan, 186 So.2d at 63 (quoting Fenberg v....

...cial and may have influenced the jury to return a verdict in favor of Toys `R' Us"); Henry v. Beacon Ambulance Serv., Inc., 424 So.2d 914, 916 (Fla. 4th DCA 1983) (reversing and remanding for new trial where disclosure of settlement to jury violated section 768.041(3)). From the foregoing discussion, it is clear that violation of sections 768.041 and 90.408 is reversible error....

...See Sheffield, 800 So.2d at 203 ("We hold that once a trial court makes an unequivocal ruling admitting evidence over a movant's motion in limine, the movant's subsequent introduction of that evidence does not constitute a waiver of the error for appellate review."). Second, Elson claims that sections 768.041 and 90.408 do not apply when the former defendant testifies as an expert witness for the plaintiff....

...Accordingly, we reject Elson's proposed expert witness exception to these statutes. Based on our previous discussion, we also reject without further discussion Elson's attendant suggestion that Dosdourian required the disclosure. IV. CONCLUSION As explained above, we find that the plain language of sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from the suit....

...In my view, section 768.04(3), Florida Statutes (2006), does not embody a rule that trumps all other relevant rules of evidence. Although Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993), dealt with a fact pattern dissimilar to this case, it nonetheless clearly established the point that the rule of exclusion in section 768.041(3) is not invariably applied in derogation of other applicable rules or principles of law. *1087 Here, section 768.041(3) should not be applied in derogation of section 90.608(2)....

...The exposure of the fact that A-1 had somehow exited the lawsuit necessarily accompanied the exposure of Herring's bias arising from A-1's prior status as a defendant. Assuming that the fact that A-1 had exited the lawsuit falls within the scope of section 768.041(3), I would nevertheless hold that allowing the jury to consider the highly probative evidence of Herring's bias was not error. By the choice of Herring as an expert witness, the plaintiff unilaterally created the situation in which a choice was required between applying section 768.041(3) and applying section 90.608(2). I would conclude that a party who chooses to present the expert opinion testimony of a witness whose credibility is subject to impeachment for bias should not be permitted to use section 768.041(3) as a cloak to hide from the jury facts relevant to the bias of that witness....

...bject to harmless error analysis. See BCK Land, Inc. v. Cook, 119 So.2d 717, 719 (Fla. 2d DCA 1960) (finding harmless error regarding admission of settlement evidence in violation of section 54.28, Florida Statutes (1957), the predecessor statute of section 768.041)....

...of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000). I therefore would approve the result reached by the Fourth District. POLSTON, J., dissenting. I respectfully dissent. Unlike the majority, I do not believe that sections 90.408 and 768.041, Florida Statutes (2006), prohibit the admission of evidence of settlement or dismissal of a defendant when such evidence is offered to demonstrate that a witness is biased or prejudiced....

...Carsten[, 624 So.2d 241 (Fla.1993),] the court imposed an affirmative obligation to admit evidence that a defendant remaining in the action had settled the matter so that the jury was aware of the motivations, interest, and position of the settling party. Although sections 46.015 and 768.041(3) of the Florida Statutes contain broad language prohibiting any admissibility of evidence of a release or settlement which was earlier construed to bar evidence of a settlement *1090 offered to prove bias or interest of the witness, the Florida Supreme Court implicitly overruled those cases in Dosdourian....

...red not to establish liability, but to establish violation of consumer credit laws). [8] "The concept of limited admissibility applies to evidence of settlement and compromise negotiations." Ehrhardt, § 408.1, at 309. In contrast to section 90.408, section 768.041 includes a more general prohibition against admitting evidence of a settlement. Specifically, section 768.041(3), Florida Statutes (2006), provides that "[t]he fact of such a release or covenant not to sue, or that any defendant has been *1091 dismissed by order of the court shall not be made known to the jury." However, this Court in Dosdourian, 624 So.2d at 247, expressly rejected the argument that section 768.041(3) prohibited the jury from knowing that a plaintiff had settled his claim against one of the defendants while that defendant remained in the litigation....

...And this Court determined that "the jury was entitled to weigh the [settling] codefendant's actions in light of its knowledge that such a settlement has been reached." Id. at 247 n. 4. Thus, this Court in Dosdourian held that an exception to the general prohibition of section 768.041(3) exists when the otherwise inadmissible evidence is offered to prove bias or prejudice. In light of the above, I would conclude that sections 90.408 and 768.041(3) do not prohibit the admission of evidence of a settlement or dismissal of a defendant when such evidence is offered to prove a witness's bias or prejudice....

...by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret "Mary Carter Agreement." Ward, 284 So.2d at 387. [4] Section 54.28, Florida Statutes (1963), was subsequently renumbered as section 768.041 and amended....

...Nauman does not dispute the way in which the trial court allocated the settlement. Rather he contends as a matter of law that, in the absence of allocation by the settling parties at the time of settlement, the entire settlement amount should have been offset against the damages awarded by the jury. We agree. Section 768.041(2), Florida Statutes (1985), provides that, if a defendant shows that a plaintiff has delivered a release in partial satisfaction of damages sought, the court shall set off this amount from that to which plaintiff is otherwise entitled and enter judgment accordingly....

...settlement *984 against the total jury verdict of $15,000. The appellate court reversed, finding that the setoff should be directed to the individual verdicts to which it pertained. The Supreme Court affirmed, holding that the setoff contemplated by section 768.041(2) must be interpreted so as to preserve the identity of the separate causes of action, and the distinctive character of the damage elements accruing under each such cause....

...Owens, 127 Fla. 91, 172 So. 694 (1937); Washewich v. LeFave, 248 So.2d 670 (Fla. 4th DCA 1971); Wise v. Carter, 119 So.2d 40 (Fla. 1st DCA 1960). If the jury could not apportion the injuries and returned a verdict for all of them, then by virtue of section 768.041, Florida Statutes (1985), [1] appellant would have been entitled to an offset for the $6,000 received by plaintiff from the first tortfeasor....

...o make the showing that the plaintiff had been partially paid for the same injury. Based on the pleadings and the evidence here, the jury could have determined that it could apportion the damages. AFFIRMED. DAUKSCH and COWART, JJ., concur. NOTES [1] Section 768.041, Florida Statutes (1985) states in pertinent part: (2) 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 corpora...

...2 (1986)("The Comparative Negligence Act is applicable where there are joint tortfeasors. Clearly, the Act does not apply where the liability of one of the defendants is solely vicarious."), cert. denied, 107 N.J. 101, 526 A.2d 175 (1987). Instead, the issue is governed by sections 46.015 and 768.041, Florida Statutes (1995), which, as confirmed by the decided cases, require a complete set off as to amounts received from the active tortfeasor. See JFK Medical Ctr., Inc. v. Price, 647 So.2d 833 (Fla.1994); Smith v. State Farm Mut. Auto. Ins. Co., 691 So.2d 1127 (Fla. 3d DCA 1997); Hertz Corp. v. Hellens, 140 So.2d 73 (Fla. 2d DCA 1962) (section 54.28, predecessor to section 768.041 providing for set off, applies to vicarious tortfeasors); see also De Los Santos: Where an individual's liability is solely vicarious, a plaintiff is entitled to only one satisfaction for the same loss and, thus, damages for which the...

...on vicariously liable defendants was proper and did not need to be apportioned because the defendants' claims were unified, not separate and distinct. [5] These proposals under rule 1.442 and section 768.79 are not immune from the rule announced in section 768.041, Florida Statutes (2003). Section 768.041 requires the trial court to offset funds received in any pretrial settlement with a party such as FOI from the damages later awarded in the verdict. This statute is designed to prevent a double recovery for a single injury. Both parties in this action agree that the offers by Ms. Walton were designed to comply with section 768.041....

...As such, we hold the trial court abused its discretion by reserving ruling on the Plaintiffs motion for mistrial and subsequently granting the motion for new trial. Id. In finding that the trial court abused its discretion by granting a new trial, the Fourth District stated: Section 768.041(3), Florida Statutes, provides that releases, covenants not to sue, and dismissals of defendants by order of the court "shall not be made known to the jury." § 768.041(3), Fla....

...ectionable statement could be construed to improperly refer to the underlying reason why those other parties were not involved in the case. Of course, one of the reasons they were not directly involved is because they had settled with the plaintiff. Section 768.041 states in pertinent part: Release or covenant not to sue.— (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or disc...

...would be otherwise entitled at the time of rendering judgment and enter judgment accordingly. (3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury. § 768.041, Fla....

Florida Statutes (1987) (and its predecessor section 768.41, Florida Statutes (1985)) provides that the

...regarding a "claim." In its amended order granting new trial the lower court set forth the reasons for its action, stating: 1. The cumulative effect of defense counsel's statements and arguments violated the spirit and interest [sic] of Section *780 768.041(3), Florida Statutes Annotated....

...3d DCA 1983) is on all fours with the present case in that making the empty chair argument, following an improper reference to a prior claim, is absolute reversible error. In the Green case, like the instant case, there was also a Motion in Limine which the defense counsel violated. Section 768.041, Florida Statutes (1983), states: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...Cenvill questions, however, whether the mere mention that a "claim" was made necessarily infers a settlement, as appellees argue it does. Mention of a "claim" does not come within the specific prohibition against "revealing the fact of release or covenant, or that any defendant has been dismissed" referred to in Section 768.041(3)....

...At the heart of this appeal is the issue of whether the evidence of plaintiff's damages, for which he sought recovery from Dr. Rosenberg, were the same damages for which he had obtained a recovery from Dr. Newman. The statutory provision by which Dr. Rosenberg could seek a setoff is section 768.041(2), Florida Statutes (1993). [1] In Devlin v. McMannis, 231 So.2d 194, 196 (Fla. 1970) the Supreme Court of Florida stated that section 768.041(2) "must be interpreted so as to preserve the identity of separate causes of action and the distinctive character of the damage element accruing under each such cause." Further, it stated, the statute was designed to prevent duplicate or overlapping compensation for identical damages....

...Plaintiff could not recover from the defendant an amount which would exceed the amount of his proven damages. Defendant, therefore, was entitled to set off against the jury award that amount which had already been paid by the original tortfeasor in partial satisfaction of the claim. § 768.041(2), Fla. Stat. (1985); Devlin v. McMannis, 231 So.2d 194 (Fla. 1970) (§ 768.041(2) is designed to prevent duplicate or overlapping compensation for identical damages)....

...See Tobias v. Osorio, 681 So.2d 905 (Fla. 4th DCA 1996). III. On cross appeal, plaintiff argues that it was error for the trial judge to permit the fact and amount of the settlement with the manufacturer to be disclosed to the jury. He bases his argument on section 768.041 which states in pertinent part that: "(1) A release or covenant not to sue as to one (1) tortfeasor for ......

...We recognize that there are no cases in Florida deciding whether a spoliation of evidence claim is the same tort for the same damages as the underlying products liability claim that has been affected by the deprivation of crucial evidence. But see Hertz Corp., v. Hellens, 140 So.2d 73 (Fla. 2d DCA 1962) (§ 768.041 applies to all tortfeasors, whether joint or several, including vicarious tortfeasors)....

...From the very nature of the spoliation claim, however, it would appear to us that the damages in a spoliation claim are derivative of the damages in a products liability claim whose viability has been spoiled by the loss of critical evidence. Hence, we conclude that, only for purposes of section 768.041, the spoliation claim is the same tort for the same damages as the underlying products liability claim substantially impaired by the loss of the ruined evidence. Section 768.041(3) provides that "[t]he fact of ... a release or covenant not to sue ... [a joint tortfeasor] shall not be made known to the jury." From our discussion of the spoliation claim, we conclude that under section 768.041 the spoliator is properly deemed a joint tortfeasor with the defendant in the products liability claim....

...This would be a clear exception to the well-accepted rule that such settlements are never divulged to juries. Such a scenario is before this court. Accordingly, I would not take exception to the trial judge's decision to inform the jury of the $250,000 settlement with Tri-Arc, but I would submit that Florida Statutes section 768.041 simply does not apply under the facts of this case....

...s settlement with Howard; and (2) if the wrongful death action is permissible, then a set-off is required. We disagree with Safecare and find the district court's rationale and holding correct. First, the district court correctly found that sections 768.041 [2] and 768.31(5), [3] Florida Statutes (1989), provide that a jointtortfeasor is not released by the execution of a release in favor of another tortfeasor....

...To disregard this fact and not consider it as a set-off would allow double recovery for the same injury. I dissent. OVERTON and GRIMES, JJ., concur. NOTES [1] The Wrongful Death Act is contained in sections 768.16-.27, Florida Statutes (1989). [2] Section 768.041, Florida Statutes (1989), reads in part: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...t them. The appellants contend that the parties to the settlement agreement did not intend to release the appellee from liability and that this is clearly established by the release itself. In support of their position, the appellants point out that section 768.041(1), Florida Statutes (1985), provides: 768.041 Release or covenant not to sue....

...the mediated partial settlement. The majority acknowledges that had the appellants simply dropped Mr. and Mrs. Camus without prejudice, pursuant to rules 1.250(b) and 1.420(a)(1), their cause of action against Gulf Coast would have been preserved by section 768.041(1), Florida Statutes (1985)....

...Harley, of Williams, Gibson & Harley, Tallahassee, for appellees. BOYER, Judge. The primary issue to be resolved by this appeal from a partial summary judgment relates to the effect, if any, of chapter 75-108 (F.S. 768.31), known as the Uniform Contribution Among Tortfeasors Act on F.S. 768.041 (chapter 57-395 Laws of Florida)....

...The trial judge, in a thorough and well reasoned order, found that the defendants were joint tortfeasors (which finding was in accordance with an oral stipulation among the parties before the court); that the voluntary dismissal with prejudice as to Virgo was "tantamount to a release"; that F.S. 768.041 was neither expressly nor impliedly repealed by F.S. 768.31 and that F.S. 768.041 was applicable....

...The parties agree that under the common law a release or discharge of one or more joint tortfeasors was a discharge of all other tortfeasors liable for the same tort and that such principle of law was applicable in Florida until the adoption in 1957 of F.S. 768.041....

...The query therefore becomes whether the dismissal or release of Virgo, a joint tortfeasor, also released by operation of law the other joint tortfeasors. Clearly under the common law such would have been the result. However in 1957 the Florida legislature adopted chapter 57-395, Laws of Florida (F.S. 768.041) which provides, in material part, as follows: "A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability...

...1975) the Supreme Court of Florida reversed the Fourth District Court of Appeal which had held that the statute did not abolish the common law rule entirely and did not apply to an action for conversion, the Supreme Court holding that no tort was excluded by the legislature when it enacted 768.041. It is apparent therefore and the parties so agree, that the common law rule was abrogated by F.S. 768.041 and that accordingly under that statute a release of one tortfeasor does not, and did not, operate as a release or discharge of the other joint tortfeasors. However, appellants contend that F.S. 768.041 was repealed by chapter 75-108, Laws of Florida (F.S....

..., therefore, that if the tort charged sub judice involved breach of trust or other fiduciary obligation and that F.S. 768.31 (the Uniform Contribution Among Tortfeasors Act) is not applicable to breaches of trust or other fiduciary obligation and if 768.041 is applicable to all torts, as held by the Supreme Court in the Batchelor case, then the conclusion is inescapable that F.S. 768.31 is inapplicable and F.S. 768.041 is controlling. F.S. 768.041 being controlling, the common law rule is inapplicable; therefore the release of Virgo did not operate as a release or discharge of the other joint tortfeasors. Further, even if F.S. 768.31(2)(g) did not contain the recitation that the "act" shall not apply to breaches of trust or other fiduciary obligations, still that act (F.S. 768.31) did not repeal F.S. 768.041....

...learly intended to prescribe the only governing rule, or that it revises the subject matter of the former. Beasley v. Coleman, 136 Fla. 393, 180 So. 625. * *" (161 So.2d at page 46) We recognize the similarity between the subject matter treated in F.S. 768.041(1) and subsection F.S....

...tribution to any other tortfeasor." We are also cognizant of the provision of said act which provides that "all acts or parts of acts which are inconsistent with the provisions of this act are hereby repealed." But we simply find no inconsistency. F.S. 768.041(1) provides that a release or covenant not to sue as to one tortfeasor shall not operate to release or discharge the liability of any tortfeasor who may be liable for the same tort or death....

...768.31 does not constitute a complete revision of the subject because, as observed already, it is inapplicable by its own wording to breaches of trust or other fiduciary obligations; the legislature is presumed to have known of the existing law, F.S. 768.041; and each statute yet has a field of operation. In summary, we hold: (a) A dismissal with prejudice is tantamount or equivalent to a release. (b) The common law rule relating to release of a joint tortfeasor was abrogated by F.S. 768.041. (c) F.S. 768.041 was not repealed by F.S....

...ce the common law which still prevails in Florida is to the effect that a release of one joint and several obligor releases all others. Moreover, the District Court was correct in refusing to treat the post judgment release as a covenant not to sue. Section 768.041, Florida Statutes, which provides that a release or covenant not to sue as to one tortfeasor shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death, extends only to the full limits of causes of action in tort....

...Patsy and Charles Dionese won separate adjusted jury verdicts of $57,000 and $3,800 respectively for Patsy's personal injury claim and Charles's loss of consortium claim. On October 10, 1984, the Dioneses filed a motion for entry of final judgment in accordance with the set-off procedure set forth in section 768.041(2), Florida Statutes (1983), and represented for the first time that the Hoyle settlement was to be apportioned with $10,000 for Patsy Dionese and $35,000 to Charles Dionese....

...d in the only release accepted by Hoyle. Therefore, the judgment provided that the City was entitled to a set-off of the Hoyle settlement of $45,000 against the net jury award to the plaintiffs of $60,800. Appellants, the plaintiffs below, rely upon section 768.041(2), Florida Statutes (1983); Devlin v....

...estate $10,000 and the parents $5,000. The court set off the total settlement amount against the total jury award and entered judgment jointly at $0. The district court reversed. The supreme court upheld the district court's reversal and stated that section 768.041(2), Florida Statutes "authorizes 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 to...

...he City. We, therefore, hold that a private, unilateral agreement among plaintiffs to apportion settlement funds is not binding on the non-settling joint tort-feasor and will not control the set-off due the non-settling joint tort-feasor pursuant to section 768.041(2), Florida Statutes (1983)....

...n the release that had been given in the previous settlement. Prior to 1957 the rule in Florida was that a release or discharge of one or more joint tort-feasors was a discharge of them all. 28 Fla.Jur., Release, § 19. At the present time, however, Section 768.041, *919 Florida Statutes (1975), provides that a release as to one tort-feasor shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort....

...obertson and Leatherby would not have been released. But Hurt's release was not limited to Hatmaker, Whitcomb and Reserve; it also released "any other person, corporation, association or partnership which might be charged with responsibility." While Section 768.041 allows a release of less than all joint tort-feasors it does not prevent a person from giving a release that discharges the liability of all who might be charged with responsibility....

...In Alaska [3] the Court had before it a release releasing a specifically named person and "all other persons, firms, corporations, associations", etc. A summary judgment was rendered in favor of an unnamed tort-feasor. Although Alaska had no statute similar to 768.041, supra, in reversing the summary judgment the Court said: "In our opinion the rule which will bring most clarity to this area of ambiguous and conflicting release rules is one under which a release of one tort-feasor does not release other joint tort-feasors unless such tort-feasors are specifically named in the release....

...ote 1 from the Second and Third District Courts of Appeal. Also see case cited in footnote [6] . I would reverse. NOTES [1] Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla.3d DCA 1976); Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976). [2] Sec. 768.041, Florida Statutes (1975)....

duty to maintain such a report, Fla.Stat.Ann. § 768.41(l)(d). The report was prepared November 20,1980

...stances where prescriptive rights in favor of the public have not been perfected. [1] We hold that in informing the jury that the court had discharged the defendant *484 State Farm Mutual Insurance Company as a party, the trial court did not violate section 768.041(3), Florida Statutes, which, in effect, provides that the fact that one tortfeasor has been given a release or covenant not to sue shall not be made known to the jury....

...was intended to release only those defendants and not all joint tort feasors, and under the authority of Talcott v. Central Bank & Trust Company, Fla.App. 1971, 247 So.2d 727 (cert. disch. Fla. 1972, 262 So.2d 658), such satisfaction of judgment should be considered only as a pro tanto release under Section 768.041, F.S....

...of the prior judgment which appellant obtained against Humphrey and U-Haul Company of North Carolina, Inc. was on its face free from any qualifications, restrictions or limitations. We also reject appellant's suggestion that the failure to construe Section 768.041, F.S....

...Bonds and the owner of the vehicle Felgenhauer was driving. There is no dispute that the owner's settlement was on any basis other than the owner's vicarious liability for Felgenhauer's actions under the dangerous instrumentality doctrine. Sections 768.041 and 46.015, Florida Statutes (2001), provide for a set-off of settlements in negligence actions. Section 768.041 provides: Release or covenant not to sue....

...enter judgment accordingly. (3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury. Section 46.015 contains almost identical language. Under sections 768.041 and 46.015 a defendant is entitled to a set-off of the sum the plaintiff received from a tortfeasor who was vicariously liable for the *1045 defendant's acts....

...See Grobman v. Posey, 863 So.2d 1230, 1237 (Fla. 4th DCA 2003); J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 863 (Fla. 3d DCA 1998); see also Hertz Corp. v. Hellens, 140 So.2d 73, 73 (Fla. 2d DCA 1962) (holding that section 54.28, the predecessor to section 768.041, applies to allow set-offs for vicariously liable tortfeasors)....

...184, 187 (1933); Skaf's Jewelers, Inc. v. Antwerp Import Corp., 150 So.2d 260, 262 (Fla. 2d DCA 1963); Jojo's Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So.2d 503, 504 (Fla. 4th DCA 2003). However, in tort actions allowing for a set-off under sections 768.041 and 46.015, set-off is not an affirmative defense to be considered by the jury but is a determination regarding damages to be made by the court after the verdict is rendered. Sections 768.041 and 46.015 specifically provide that the fact of the settlement is not to be made known to the jury....

...d or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable. This section, unlike sections 768.041 and 46.015, expressly requires a jury [2] determination regarding the set-off of benefits paid....

...or inactions of Dr. Howard. Instead, it seeks to proceed only on its alleged independent claim against Safecare. Hence, any issue as to Safecare's liability for its employee's conduct is moot. The statute under which the court granted the set-off is Section 768.041, Florida Statutes (1989), which in part provides: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...Howard release. The Estate contends that the trial court improperly allowed Safecare the $150,000.00 set-off in the wrongful death action, that amount having been paid by Dr. Howard in settlement of the personal injury claim. The Estate argues that section 768.041 authorizes a set-off only for a settlement with another tortfeasor for the damages recoverable in the same cause of action. Accordingly, since there are two *234 different actions involved here — a personal injury action and a wrongful death action — the set-off provisions of sections 768.041 and 768.31 should not apply. On the other hand, Safecare contends that it is not that clear that set-off is only appropriate in a situation involving recovery by a plaintiff against one of multiple tortfeasors in a single cause of action. Rather, it asserts, sections 768.041 and 768.31 suggest that set-off may be appropriate whenever the plaintiff has received a partial recovery from one of multiple defendants who may be liable in tort for the same injury, whether that injury results in a personal injury action or a claim for wrongful death....

...1970). Devlin held that amounts received from one tortfeasor for payment of a survival claim should not be set off against a recovery against another tortfeasor for the wrongful death of the same victim. The supreme court noted that the set-off statute, section 768.041(2), was designed to prevent duplicate or overlapping compensation for identical elements of damage....

...operly refer to the underlying reason why those other parties were not involved in the case. Of course, one of the reasons they were not directly involved is because they had settled with the plaintiff. Id. at 507. The supreme court pointed out that section 768.041(3), Florida Statutes, provides that releases, covenants not to sue, and dismissals of defendants by order of the court "shall not be made known to the jury," and stated: [J]urors logically could have interpreted counsel's statement to...

...l's statement to imply that a settlement had been reached with others involved in the case, despite the fact that counsel did not actually use the word `settlement.'"). Furthermore, the district court reversed the order granting a new trial because: Section 768.041(3), Florida Statutes, provides that releases, covenants not to sue, and dismissals of defendants by order of the court "shall not be made known to the jury." § 768.041(3), Fla....

...The jury returned a verdict in favor of the plaintiff and against all defendants in the amount of $117,700.00, and final judgment was entered thereon. The court thereafter entered its order granting appellants' motion for a $65,000.00 setoff against the judgment under provision of F.S. Section 768.041, F.S.A....

...Although we have summarized and paraphrased the relevant portions of the agreement, rather than quoted them verbatim, we think it abundantly clear that the legal effect of the agreement was such as to bring it squarely within the scope of the legislative intent of Section 768.041, F.S....

...tly and severally) they have nonetheless "bought their peace" and have contractual assurance that plaintiff-appellee will not seek to enforce the judgment against any of them. This is a release or covenant not to sue within the contemplation of F.S. Section 768.041, F.S.A....

...*635 REED, C.J., concurs. CROSS, J., dissents, with opinion. CROSS, Judge (dissenting in part): I respectfully dissent from that portion of the majority opinion which affirms the trial court's order granting defendants' motion for a setoff under the provisions of Section 768.041, F.S. 1969, F.S.A. By its own terms, § 768.041, F.S.A., applies only to instances involving joint or several tortfeasors....

...From the above, I would conclude that Leaseco, the owner of the truck in the instant case, was not a joint tortfeasor, nor even a tortfeasor at all. From this determination, several consequences flow. If the owner of the vehicle is not to be classed as a tortfeasor, § 768.041, F.S.A., is not applicable....

...In the instant case, since plaintiff settled with the actively negligent defendants for $65,000, plaintiff's total recovery should be limited to that amount. Leaseco's liability, being derivative, cannot exceed that of the operator of the truck. The trial court erred in allowing a setoff under the provisions of § 768.041....

...ian's. In the instant case, DeMario agreed to settle with Carsten for the $100,000 liability limitation of her insurance policy. The settlement in this case was also conditioned upon DeMario's continued participation in the lawsuit. Florida Statutes section 768.041(3) generally provides that releases are not admissible into evidence....

...ration of this contract. Prior to trial, HRS settled with the plaintiffs for $30,000. The plaintiffs then proceeded to trial against ARC, and a jury returned a verdict finding ARC negligent, and awarding damages in the amount of $66,500. Pursuant to Section 768.041(2), Florida Statutes (1991), the trial court set-off the jury verdict by the amount of the HRS settlement, and entered a judgment in favor of the plaintiffs and against ARC for $36,500....

...* The trial court summarily denied the motion without explanation. We see no valid reason for including Area Glass in the caption to the verdict form and also determine the trial court’s response to the jury’s question exacerbated the problem. Section 768.041, Florida Statutes (2012), prohibits the admission at trial of any evidence of settlement or dismissal of a defendant....

...The verdict form in that case erroneously included the name of the insurance company, which was listed as a party in the style of the case but opted out of participation at trial as allowed by state law. Id. In this case, we find that it was a violation of section 768.041 to include Area Glass on the verdict form when the defendant had been apparently dismissed from the case....

...be measured. See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Groebner v. State, 342 So.2d 94 (Fla. 3d DCA 1977). The "empty chair" arguments in this case violated not only the pretrial order, but also the spirit of Section 768.041(3), Florida Statutes (1981), which provides: The fact of ......

...In Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982), we found error, where appellees had brought to the jury's attention on numerous occasions the fact that certain persons no longer present in the lawsuit had previously been defendants, in violation of Section 768.041(3), even though neither the fact of settlement nor the terms of the agreement were mentioned....

...NOTES [1] Although this court in the prior proceedings held that the derivative nature of the spoliation claim is such that the spoliation claim should be considered the same tort as the underlying products liability claim, that holding was strictly limited to the context of set-off under section 768.041, Florida Statutes (1997), and therefore we do not believe it to be applicable to a determination as to whether an insurer is entitled to recover as subrogee under the Workers' Compensation Act.

...ate. When the estate rejected remittitur, the trial court ordered a new trial to determine damages on the estate's claim, and entered judgement for Balsera in the amount of $100,000.00. Finally, the trial court denied Fernandez's motion, pursuant to section 768.041(2), Florida Statutes (1985), for setoff based upon monies he allegedly paid to Balsera in compensation prior to trial....

...Bank objected. Both parties appeal, Cornerstone claiming that no set-off should have been allowed and the Bank claiming that a full set-off of the entire settlement amount should have resulted in no recovery for Cornerstone. Because we conclude that section 768.041(2), Florida Statutes (2012), compels a full set-off, we agree with the Bank’s position on both the appeal and cross appeal and reverse. Cornerstone, a small start-up company in the radio-dispatch business, was developing its busi...

...would “not create a windfall for Cornerstone nor constitute a duplicative payment, and therefore, there is no basis to reduce the amount found to be due from [the] Bank[.]” The Bank opposed rehearing. Among the many arguments it made, it pointed to section 768.041(2), Florida Statutes (2012), which required that the set-off should be applied to “any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment[.]” Moreover, the Bank argued that to apply the o...

...provided that a release of one joint tortfeasor discharged the obligation or liability of any other joint tortfeasor.” Thomas D. Sawaya, 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 7:11 (2014-15 ed.). The Florida Legislature abolished this common law rule in section 768.041, Florida Statutes (2012), which provides: 4  (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person...

...n partial satisfaction of the damages sued for, the court shall 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. § 768.041(2), Fla....

...(2012) (emphasis added); accord § 46.015(2), Fla. Stat. (2012) (containing materially identical language); see also § 768.31(5), Fla. Stat. (2012) (effect of release or covenant not to sue on rights of contribution). The set-off provision in section 768.041(2) “was designed to prevent duplicate or overlapping compensation for identical damages.” Gordon v. Marvin M....

...CORNERSTONE [should] be set off or reduced by any recovery received from third parties.” (Emphasis added.) Moreover, the Bank’s affirmative defense clearly demanded a set-off of the Settlement amount against any judgment entered against it. Under the plain language of section 768.041(2), Florida Statutes, the set-off must be applied to “the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment . . . .” § 768.041(2), Florida Statutes (2012)....

...The question presented by this appeal is whether the trial court was correct as a matter of law in holding that a limited satisfaction from judgment of one of several tort-feasors executed for consideration by a judgment creditor was a release within the purview of F.S. § 768.041 F.S.A....

...giving the plaintiff the benefit of the longer alternative period for which settlement payments would be forthcoming." From these facts the trial judge held that the execution of the limited satisfaction was only a release within the purview of F.S. § 768.041, F.S.A....

...as found in those situations where the satisfaction is given prior to final judgment. We must determine if it is reasonably applicable to the situation as set out by the trial judge. Appellants present two points on appeal. The first urges that F.S. § 768.041, F.S.A....

...satisfaction of a judgment against more than one tort-feasor and a partial satisfaction or release as to one judgment debtor is effected during the progress of appeal from the judgment then the partial satisfaction or release is effective under F.S. § 768.041, F.S.A., as a pro tanto release only of the judgment....

...We should and will go only so far as is necessary to decide this appeal. We hold therefore that under the circumstances of this partial satisfaction and the facts found by the trial judge, the partial satisfaction did not operate as a discharge of the judgment. Affirmed. NOTES [1] 768.041 Release or covenant not to sue (1) A release or covenant not to sue as to one (1) tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death....

...The Penza court apparently relied on the earlier case of Louisville & N.R. Co. v. Allen, 67 Fla. 257, 65 So. 8 (1914) which involved joint tortfeasors rather than joint contract obligors. This creates a curious anomaly because this rule as to joint tortfeasors has been expressly changed by statute. § 768.041, Fla....

...The appellees incorrectly urge that setoff does not apply because the accidents were separate and distinct as evidenced by the jury's apportionment of ten per cent negligence to TRM. Settlement proceeds must be set off against the jury verdict where defendants are liable for the same injury. § 768.041, Fla.Stat....

...en covenant not to sue or release of a person who is or may be jointly and severally liable with other persons for a claim shall not release or discharge any other person who may be liable for the balance of such claim. The second statute, Fla.Stat. § 768.041(1) (1965), governs the release of negligent tortfeasors: A release or covenant not to sue as to one (1) tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge th...

...Fla.Stat. § 768.81 (1986), regarding apportionment of damages among joint tortfeasors. II. DISCUSSION The Williamses seek a reversal of summary judgment for Arai, contending that the district court erred in refusing to apply Fla.Stat. §§ 768.81, 768.041, and 46.-015 in determining whether their offer of judgment to the state court defendants included a release of Arai....

...Following the blank space, the printed form of the release continued, “and any other person, corporation, association or partnership, which might be charged with responsibilities for injury to the persons or property_” Id. at 433 . The Supreme Court of Florida noted that Fla. Stat. §§ 768.041 (1) and 768.31(5) had abrogated the common law rule that a release of one tortfeasor discharges all other tort-feasors who may be liable for that tort....

...Accordingly, summary judgment was reversed, and the case was remanded to determine the factual issue of the intent of the parties. Id. This court construed the opinion of the Supreme Court of Florida in Hurt as follows: The Florida Supreme Court has interpreted [Fla.Stat. § 768.041] to permit the release of all joint tortfeasors, but only if the terms of the agreement clearly express the releasing party’s intent to do so, Hurt v....

...Perishable Distributors, Inc., 763 F.2d 1374, 1378 (11th Cir.1985). Thus, if the terms of the agreement do not clearly express an intent to release all joint tortfeasors or if extrinsic evidence proves an intent to limit the release, Florida case law holds under Fla.Stat. § 768.041 that the discharge of one tortfeasor does not discharge all tortfeasors....

...ted verdict. *969 Next we consider the setoffs. They appear to arise from settlements of claims brought by the trustee, along with Banks, against third parties indebted to both Borrower and Banks. In allowing these setoffs, the trial court relied on section 768.041(2), Florida Statutes (2000), and our own decision in Raben Builders, Inc. v. First American Bank & Trust Co., 561 So.2d 1229 (Fla. 4th DCA 1990). Section 768.041(2) allows such a setoff only if the person claiming it shows that the amount claimed to be setoff was paid "in partial satisfaction of the damages sued for" by the nonsettling party against whom the setoff is claimed. [5] In Wells v. Tallahassee Mem. Reg. Med. Center, Inc., 659 So.2d 249 (Fla.1995), the supreme court held that setoffs are allowed under section 768.041 only for payments made "in partial satisfaction of the damages sued for" by the nonsettling defendant. In short, only payments made by joint tortfeasors, i.e., persons jointly liable with the nonsettling defendant, qualify for a setoff under section 768.041....

...Banks therefore argue that these settlements came from parties who may have been severally liable with KPMG to both Borrower and Banks, but they were not jointly liable. In response KPMG recognizes that joint liability may be required for a setoff under section 768.041 but argues that this is a case of joint liability....

...Accordingly, as we understand Wells, it supplants our decision in Raben to the extent of any inconsistency with Wells. Hence there is no showing that the parties settling with the trustee paid money "in partial satisfaction of the damages sued for" by Banks. [10] *971 Returning therefore to section 768.041(2) and its construction by the Wells court, it is apparent to us that KPMG was required to support its claim to setoffs on a showing that the recoveries from the designated settlements were joint obligations with its debt for negligent misrepresentations. The record fails to contain any showing of joint obligations. KPMG has therefore failed to demonstrate an entitlement to setoffs for joint liability as required by section 768.041....

...Butler Accountancy Corp., 177 Cal.App.3d 806, 814, 223 Cal.Rptr. 218, 222 (4th Dist.1986) ("Further, audited financial statements are not confidential information for the client only, but are instead investigatory reports for possible, if not probable, public use in the business world."). [5] See § 768.041(2), Fla....

...has delivered a written release or covenant not to sue to any person in partial satisfaction of the damages sued for [e.s.], the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment."). [6] See § 768.041(1), Fla....

...motion for new trial. Frei v. Alger, 655 So.2d 1215, 1216 (Fla. 4th DCA 1995). However, "a stronger showing of abuse of discretion is required to overturn an order granting a new trial than is required to overturn an order denying a new trial." Id. Section 768.041(3), Florida Statutes, provides that releases, covenants not to sue, and dismissals of defendants by order of the court "shall not be made known to the jury." § 768.041(3), Fla.Stat....

...3, Doc. 159. The parties agree that pursuant to Florida law this settlement should have been set off from the award to Mrs. Hiatt owed by the United States rather than from the amount that Anderson owed the United States in contribution. See Fla.Stat. § 768.041(2) (1986)....

...If a defendant demonstrates to the court that the plaintiff has released a codefendant in consideration of partial satisfaction of the damages sought the amount stipulated by the release is to be set off from the amount of a judgment returned in favor of the plaintiff. Section 768.041(2), Florida Statutes (1975)....

1.280(b)(2). There is no conflict between Section 768.41(4), Fla. Stat. (1979) and Fla.R.Civ.P. 1.280(b)(2)

...t of the lower courts.' " Cornerstone SMR, Inc. v. Bank of Am., N.A. , 163 So.3d 565 , 568 (Fla. 4th DCA 2015) (quoting D'Angelo v. Fitzmaurice , 863 So.2d 311 , 314 (Fla. 2003) ). Setoffs for collateral recoveries are available pursuant to sections 768.041(2) and 46.015(2) of the Florida Statutes, (2015). Both sections contain nearly identical language, however, section 46.015 is located in the civil practice and procedure title of the Florida Statutes and section 768.041 is located in the torts title....

...therwise entitled at the time of rendering judgment." § 46.015(2), Fla. Stat. (2015). The purpose of the setoff statutes is to prevent a windfall to a plaintiff by way of double recovery. See Cornerstone , 163 So.3d at 569 ("The setoff provision in section 768.041(2) 'was designed to prevent duplicate or overlapping compensation for identical damages.' " (quoting Gordon v....

..., 654 So.2d 643 , 644 (Fla. 4th DCA 1995) ). Thus, any "settlement recovery sought to be set off must be 'in partial satisfaction for the damages sued for.' " Escadote I Corp. v. Ocean Three Ltd. P'ship , 211 So.3d 1059 , 1062 (Fla. 3d DCA 2016) (quoting § 768.041(2), Fla....

...t is not unduly burdensome and is in line with the expansive trend of Florida negligence law. For the foregoing reasons, it is Ordered and adjudged that defendant's motion for judgment notwithstanding the verdict is denied. NOTES [1] Florida Statute 768.041(2), F.S.A....

...hat Owen is liable for the Gyongyosis' cost to repair the system. However, the more troublesome question involves the allowance of a set-off for the money that Southeastern paid to the Gyongyosis. Owen contends that the set-off was appropriate under Section 768.041(2), Florida Statutes (1979)....

...le with Vedder. Consequently, the Stoevers filed an action for damages against Vedder. Prior to trial, the Stoevers moved for an order in limine excluding evidence of their settlement with the extermination company. Citing sections 46.015(3) [1] and 768.041(3), [2] Florida Statutes (1995), the motion in limine asserted that it would be improper to allow Vedder to inform the jury of the settlement....

...DAUKSCH and PETERSON, JJ., concur. NOTES [1] Section 46.015(3) provides: The fact that a written release of covenant not to sue exists or the fact that any person has been dismissed because of such release or covenant not to sue shall not be made known to the jury. [2] Section 768.041(3) provides: The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

...The trial court erred in admitting evidence of Dr. Kirsner's prior status as a defendant in the lawsuit and dismissal of the claim against him. "The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury." § 768.041, Florida Statutes (1987). Section 768.041 prohibits informing the jury that a witness was a prior defendant, whether the party was dismissed by release or settlement or by court order....

...Pasarin’s testimony. The deposition of Dr. Pasarin was taken while Dr. Pasarin was in an adversarial relationship with the Saunders. However, prior to trial, Dr. Pasarin entered into a settlement agreement with the Saunders and, as required by section 768.041(3), Florida Statutes (2003), the jury was not informed of the settlement....

...This language, however, served only to illustrate that even if the plaintiff had obtained judgment against Florida Gas, the settlement amounts with other defendants should not have been considered because they arose from different claims. See generally § 768.041(2), Fla....

...tortfeasors were liable only to the extent they aggravated- the injury. See Francois, 76 So.3d at 365 n. 5; Caccavella, 814 So.2d at 1148 ; Rucks, 541 So.2d at 674 . As the initial and subsequent tortfeasor doctrine is not applicable to this case, 6 section 768.041, Florida Statutes (2012), precludes summary judgment on the release....

...The jury found in favor of Beacon on the issue of negligence. Appellant contends the trial court should have granted a mistrial after defense counsel disclosed the prior settlement between appellant and Enick. We agree. Appellees' disclosure to the jury of the settlement with Enick violated Section 768.041(3), Florida Statutes (1981), which states: The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury....

..., "weighing the legal arguments and policy considerations on each side of the issue." We have a different question to decide in the present case, a question of statutory construction. Wells held that Florida's setoff statutes, sections 46.015(2) and 768.041(2), Florida Statutes (1997), not common law, controlled setoff questions pertaining to economic damages recovered in negligence suits....

...to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment. (Emphasis supplied.) Similarly, section 768.041(2), Florida Statutes (1997), provides: At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in p...

...Whether the settlement was "too high" or "too low," he would be awarded the full amount of the economic damages the jury determined he had sustained less only a setoff for economic damages already paid him. For this reason, we have no qualms about giving effect to the legislative intent expressed in sections 46.015(2) and 768.041(2), Florida Statutes (1997), as Wells contemplates....

...the proper administration of justice in tort cases...." Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249, 255 (Fla.1995)(Wells, J., concurring specially). I conclude that the majority opinion's interpretation of sections 46.015(2) and 768.041(2), Florida Statutes (1997), to require a set-off of settlement proceeds where the jury finds the settling defendant without liability is contrary to the construction of those statutes in Wells. Accordingly, I must respectfully dissent to the holding of the majority opinion on the set-off issue. I concur with the majority's holding on the judicial estoppel issue. *425 In Wells, the supreme court interpreted sections 46.015(2) and 768.041(2), Florida Statutes, holding that those set-off statutes do not apply to noneconomic damages, but do apply to economic damages for which parties continue to be subject to joint and several liability....

...The trial court noted that the fee contract in this case provided for a fee of "fifty percent of any recovery... ." The court reasoned that there was no "recovery" here because the plaintiff was faced with a set off against his judgment due to the larger settlement with the codefendants. See § 768.041(2), Fla....

...at 1084, and the prevention of prejudice—the "practical impossibility to eradicate from the jury's minds the considerations that where there has been a payment there must have been liability," id. at 1085 (quoting City of Coral Gables v. Jordan, 186 So.2d 60, 63 (Fla. 3d DCA 1966)). These objectives are embodied in sections 768.041 and 90.408, Florida Statutes (2010). Section 768.041(3) ordinarily prohibits the disclosure to the jury of "a release or covenant not to sue, or that any defendant has been dismissed by order of the court," and section 90.408 provides that "[e]vidence of an offer to compromise a claim w...

...in the court’s order approving the settlement. See id. at 103 . The court reasoned that the trial court’s approval of the settlement agreement was required for the settlement of the minor’s claim. See id. at 104 . Therefore, in accordance with section 768.041(2), Florida Statutes (1997), and Devlin v....

...The trial court granted Berry's Motion for Additur for future pain and suffering, awarding an additional $125,000.00 to the $25,000 jury award. Berry also moved for attorney's fees, which the trial court denied. Terry Plumbing filed a Motion for Set-Off, arguing that it was entitled to a set-off pursuant to section 768.041(2), Florida Statutes, because Mr....

These reports are specifically dealt with in Section 768.41(4), *947 Florida Statutes (1981). We deny certiorari

...Lauderdale, for appellees. Before BARKDULL, NESBITT and COPE, JJ. COPE, Judge. Nicholas and Angela Baudo appeal an adverse summary final judgment entered on the basis of a release given to other tortfeasors. We conclude that the trial court ruling is contrary to sections 768.041 and 768.31, Florida Statutes (1991), and reverse....

...The Hospital and Nursing Home moved for summary judgment on their defenses of release and payment. The trial court entered summary judgment in defendants' favor, and plaintiffs have appealed. The summary judgment was improvidently entered and is reversed. Section 768.041, Florida Statutes (1991), provides in part: 768.041 Release or covenant not to sue.— (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...It involved an offer of judgment and nowhere mentions the statutes governing releases. Defendants rely on Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA), review denied, 549 So.2d 1014 (Fla.1989). The Rucks case is also inapposite because it does not mention, much less analyze, sections 768.31 and 768.041, Florida Statutes....

...ated for the bedsore in Lawsuit I. Again, the statutes are dispositive. Defendants in Lawsuit II "are entitled to a credit for any amounts paid to the claimant in settlement for the injury." Price v. Beker, 629 So.2d at 912 (citation omitted); see §§ 768.041(2), 768.31(5), Fla....

...Iowa National Mutual Insurance Agency, 317 So.2d 832, 835 (Fla. 2d *253 DCA 1975), cert. denied, 328 So.2d 842 (1976). In Hertz Corp. v. Hellens, 140 So.2d 73 (Fla. 2d DCA 1962), this court squarely rejected the argument now advanced by Fernandez and the BOR: "We hold that the act [i.e., section 768.041(1), Florida Statutes] applies to all tortfeasors, whether joint or several, including vicarious tortfeasors." The plain language of the statute compels this result: A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death. § 768.041(1)....

...The issue before this court is whether the trial court erred by granting final summary judgment in favor of Defendants and finding that Plaintiff's general release of the Rocking Horse Ranch additionally released Defendants, as subsequent tortfeasors. We find that the trial acted properly. Section 768.041(1) Florida Statutes (1999), provides: A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death. (Emphasis added.) Plaintiff contends that section 768.041(1) applies to her claims against Defendants. She reasons that even though she signed a general release in favor of the Rocking Horse Ranch, the statute prevents the barring of her claims, since Defendants are liable for the same tort. Defendants counter that section 768.041(1) applies to joint tortfeasors and not sequential or subsequent tortfeasors....

...Accordingly, Defendants assert that Plaintiff's general release in favor of the Rocking Horse Ranch bars her claim against them. Whether Plaintiff's general release to the Rocking Horse Ranch bars *1207 her claims against Defendants is dependent upon this court's application of section 768.041(1)....

...llins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000). We note that the legislature elected to use the phrase, "same tort." It did not use the phrases "same injury" or "same damages." Based upon the plain meaning of the words used by the Legislature in section 768.041(1), in order for Plaintiff to prevail in this appeal, she must demonstrate that the tort, which she claimed and settled with the Rocking Horse Ranch (negligence), is the "same tort" which she now alleges against Defendants (medical malpractice and vicarious liability)....

...(Emphasis added.) Plaintiff's reliance upon this statute is misplaced. Her argument ignores that the plain language of the statute, which by its terms, is limited to joint tortfeasors. The language of the statute does not extend to subsequent and sequential tortfeasors. Plaintiff also contends that sections 768.041 and 768.31 apply to subsequent and sequential tortfeasors as well as joint and several tortfeasors....

...ich included a claim for a serious bedsore that the victim developed in the hospital and/or nursing home while recovering. The third district reversed a trial court decision barring subsequent claims against the hospital and nursing home, relying on 768.041(1) to find that "as a matter of law,......

...o is or may be jointly and severally liable with other persons for a claim shall not release or discharge any other person who may be liable for the balance of such claim. With regard to all tortfeasors, including those who are independently liable, section 768.041(1) provides: A release or covenant not to sue as to one (1) tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...The Eleventh Circuit noted that the same principle has been espoused by Florida courts for the last fifty years, citing a case on which defendants rely. Id. at 1117 (citing Feinstone v. Allison Hospital, 106 Fla. 302, 143 So. 251 (1932)). [3] Admittedly, the court in Mathis v. Virgin referred to the predecessor of § 768.041(1) in ruling that a joint tortfeasor is only pro tanto released by the release of another joint tortfeasor....

...or future non-economic damages. Appellee subsequently requested that the trial court grant the previously made motion for mistrial, and order a new trial. The trial court ultimately granted the motion for mistrial, citing as support for its decision section 768.041(3), Florida Statutes, Muhammad v....

...2d DCA 2005); Heckford v. Fla. Dep't of Corr., 699 So.2d 247, 250 (Fla. 1st DCA 1997). Here, it is apparent from the trial court's order that the decision to grant the motion for a mistrial was based exclusively on the trial court's interpretation of section 768.041(3), Florida Statutes (2005)....

...This is because the only legal authority cited in support of the decision consisted of that statute, and two cases— Muhammad v. Toys "R" Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996), and Ricks v. Loyola, 822 So.2d 502 (Fla. 2002)—and both of those cases relied for the decision reached on section 768.041(3)....

...Muhammad, 668 So.2d at 256; Ricks, 822 So.2d at 507-08. Because interpretation of a statute is a pure question of law, we review the trial court's interpretation de novo. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998). Section 768.041 reads: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...nt accordingly. (3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury. By its relatively clear language, it is apparent that the legislature intended section 768.041 to apply only to cases involving joint tortfeasors....

..." (Emphasis added.) Subsection (3), which was the basis for the trial court's ruling, states in pertinent part that "[t]he fact of such a release or covenant not to sue . . . shall not be made known to the jury." (Emphasis added.) Read in context (as it must be), it is apparent that the releases or covenants not to sue which section 768.041(3) proscribes from being made known to a jury are those referred to in subsection (1)—i.e., those reached with "any other tortfeasor who may be liable for the same tort or death." In other words, section 768.041(3) only proscribes informing a jury about settlements involving joint tortfeasors....

...4th DCA) (reasoning that, had the legislature intended the statute to apply to settlements involving subsequent tortfeasors as well as joint tortfeasors, it would have referred in subsection (1) to "same injury" or "same damages" rather than "same tort"), review denied, 907 So.2d 1170 (Fla.2005). We conclude that section 768.041(3) has no bearing on the situation that occasioned appellee's motion for a mistrial....

...The court therefore left this question to be resolved at retrial, noting that the 2005 version of the statute applied. Id. We disagree with the trial court’s determination that Saleeby precluded AHAC from presenting the settlement amounts to offset the judgment. Saleeby held that section 768.041, Florida Statutes, which bars disclosure to the jury of settlement or dismissal of a joint tortfeasor, and section 90.408, which bars the disclosure of evidence of an offer to compromise to prove liability, are clear and unambiguous....

...has delivered a release or covenant not to sue to any ... corporation in partial satisfaction of the damages sued for, the court shall 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." § 768.041(2), Fla....

...pairing the sewer system. In a split decision on the cross-appeal, the court further held that the judgment should not have been subject to the $50,000 setoff of the money paid by Southeastern to the Gyongyosis. After dismissing the applicability of section 768.041(2), Florida Statutes (1979), because Owen and Southeastern were not joint tortfeasors, the court stated: Absent the foregoing statute as authority for the set-off, the question presents itself whether a wrongdoer, such as Owen in this...

plaintiff before trial. Defendants maintain that Section 768.041(3), Florida Statutes (1983) prohibits such

...resulted from a fire. The trial court’s finding that this claim for damages was liquidated and subject to prejudgment interest from the date of the loss is affirmed. Argonaut Insurance Company v. May Plumbing Co., et al., 474 So.2d 212 (Fla.1985). Section 768.041(2), Fla.Stat....

...In that case, the injured plaintiff's express release of the driver of the car that hit him, the owner of that car, and the owner's insurer was held to release also the driver of the car in which the plaintiff was riding at the time of the accident. Id. The court recognized that, at that time, section 768.041, Florida Statutes (1975), provided that "a release as to one tort-feasor shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort." Id....

...sly existing statutory provisions still require a setoff or reduction in the amount of the total damages assessed by the jury, in the amount of $300,000 paid in settlement by Dr. Alford and Anesthesiology Associates. More specifically, TMRMC argues, section 768.041(2) provides that when a release has been given "in partial satisfaction of the damages sued for," the court "shall setoff this amount from the amount of any judgment to which the plaintiff would be otherwise entitled ...," and the court must enter judgment accordingly....

...educes the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; ... ." It is important to note that under both statutes, sections 768.041(2) and 768.31(5)(a), in order for a setoff to be made the payments made in settlement must be in satisfaction of the claim at issue in the lawsuit, not a separate claim....

...Therefore, we certify as one of great public importance the following questions: (A) IS A NON-SETTLING DEFENDANT IN A CASE TRIED UNDER SECTION 768.81(3) ENTITLED TO SETOFF OR REDUCTION OF HIS APPORTIONED SHARE OF THE DAMAGES, AS ASSESSED BY THE JURY, UNDER THE PROVISIONS OF SECTIONS 768.041(2), 46.015(2) OR 768.31(5)(a), BASED UPON SUMS PAID BY *660 SETTLING DEFENDANTS IN EXCESS OF THEIR APPORTIONED LIABILITY AS DETERMINED BY THE JURY? (B) DOES THE RULE AS TO SETOFF APPLY EQUALLY TO BOTH ECONOMIC AND NON-ECONOMIC DAMAGES? REVERS...

...n release or covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment. Section 768.041(2), Florida Statutes (1991), reads: (2) 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...

...It is not per se impermissible to point to an empty chair, i.e., argue that a non-party is responsible for the plaintiff’s injuries. Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982); Clement v. Rousselle Corp., 372 So.2d 1156 (Fla. 1st DCA 1979). However, section 768.041(3), Florida Statutes, which provides that releases or covenants not to sue or the fact that some defendant has been dismissed from the case, shall not be made known to the jury, prohibits informing the jury that a settlement has been...

...that a written release or covenant not to sue exists or the fact that any person has been dismissed because of such release or covenant not to sue shall not be made known to the jury.” § 46.015(3), Fla. Stat. (2012) (emphasis added); see also id. § 768.041(3) (applying the same prohibition to tort claims)....

...As in this case, the remaining defendant in the case cited Dosdourian and argued that the settlement agreement should be admitted to impeach the witness and demonstrate bias. But the Supreme Court disagreed, stating: [T]he plain language of sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from the suit....

...ion for new trial. The issue is whether the trial court erred in permitting the Defendants to introduce evidence and argue to the jury that one of the trial witnesses had been sued and was originally named as a defendant in the case, in violation of section 768.041(3), Florida Statutes (2012)....

...evidence and argument that Perez had originally been sued and named as a defendant in the case, leading the jury to the logical conclusion that Perez and Bern reached a settlement before trial and that Perez was dismissed from the lawsuit. We agree. Section 768.041(3), Florida Statutes (2012) provides that “[t]he fact of ......

...settle claims on their own terms without jeopardizing claims remaining against others.” (quoting Price v. Beker, 629 So.2d 911, 912 (Fla. 4th DCA 1993))). In Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982), this court considered the application of section 768.041(3) in determining whether a new trial was warranted where defendants repeatedly brought to the jury’s attention the fact that other parties had been dropped as defendants....

...3d DCA 1983), this court again reversed and remanded for a new trial where “less flagrant” violations were at issue, holding it was improper for the defendant to bring to the jury’s attention “the fact that certain persons no longer present in the lawsuit had previously been defendants, in violation of section 768.041(3), even though neither the fact of settlement nor the terms of the agreement were mentioned.” The holding in Green was approved by the Florida Supreme Court upon subsequent review: We agree ......

..., despite the fact that counsel did not actually use the word ‘settlement.’ ” Id. at 508 . Here, as in Webb, Green and Loyola , the Defendants did not expressly use the words “settlement”, “release” or “dismissed by the court.” See § 768.041(3), Fla....

...The trial court agreed with this argument, and denied this portion of Bern’s motion in limine. This ruling was erroneous under Florida law. In Saleeby, 3 So.3d at 1080 , the Florida Supreme Court considered whether, despite the plain language of sections 768.041(3) and 90.408 5 , “evidence of settlement may nevertheless be admitted to impeach a witness’s testimony.” The Court answered this question, unequivocally, in the negative: “the unambiguous language of these statutes admits no exceptions and ... violation of the prohibition is reversible error.” Id. at 1080 . Further, the court noted, section 768.041(3) “plainly and unambiguously prohibits disclosure to the jury of any evidence of settlement or that a former defendant was dismissed from the suit.” Id....

...may be allowed where opposing counsel opened the door to the line of questioning.) Thus, because we hold that, as in Webb, Green and Loyola , the repeated references to' Perez’s status as a former defendant in this case constituted a violation of section 768.041(3), Saleeby prohibits these references even if made for the avowedly limited purpose of impeaching, or establishing the bias of, the former defendant’s testimony....

...ern alleged in her complaint that Perez, as a former defendant, was negligent and caused the accident. This evidence and argument represented significantly more than a “fleeting mention,” Griffin, 30 So.3d at 718 , and constituted a violation of section 768.041(3)....

...We have considered Defendants’ argument that this court, in Grunow', held it was acceptable to ask a plaintiff on the witness stand, in front of the jury, whether she sued another party in related litigation. See Grunow, 71 So.3d at 189 (noting that sections 768.041 and 90.408 do not "prohibit questions of the kind asked by [defense] counsel — did you sue X corporation or Y? Expressed another way, the fact of the assertion of another claim is not of itself evidence of a settlement, compromise, release...

...ere was no apportionment on the face of the settlement agreement in this case, the trial court was required to apply the entire settlement with Dadeland Dodge against the total verdict obtained by plaintiffs against Dulce Lopez. We agree with Adaly. Section 768.041 provides: At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or 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 court shall 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. § 768.041(2), Fla. Stat. (1997). In Devlin v. McMannis, 231 So.2d 194 (Fla.1970), the Florida Supreme Court stated with respect to section 768.041(2): The setoff 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 jury's verdict included a separate determination of her claim and each element of damage comprising it. Three years before the trial in this case, the trial court decided that $130,000 of the Dadeland Dodge settlement proceeds would be allocated to Adaly's claim. Thus, applying section 768.041(2) in accordance with Devlin, the defendant should only be entitled to a setoff of $130,000....

...nt agreement, it would not have been binding. Therefore, the approval and allocation by the trial court in Adaly's recovery from the settlement proceeds is an integral part of that settlement and a proper basis on which to determine the setoff under section 768.041(2)....

...Hughes, Jr., as personal representative of the estates of William W. Hughes, Sr., and Martha Hughes, (“appellant”) challenges the trial court’s deduction of the amount of uninsured motorist (“UM”) benefits received by appellant from the jury’s award of compensatory damages. We reverse. Section 768.041(2), Florida Statutes (2000), provides that if the plaintiff has provided a release or covenant not to sue in partial satisfaction of the damages sued for, the trial court may set-off that amount from the final judgment....

...However, the supreme court has held that a defendant cannot set-off against a judgment any amounts paid to a plaintiff as UM benefits. Int’l Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569, 571 (Fla.1972); see also Van Winkle v. Johnston, 813 So.2d 1065, 1066 (Fla. 1st DCA 2002) (stating that section 768.041(2) does not authorize a set-off for UM benefits); Respess v....

...3d DCA 1986), Van Winkle argues that the appellees stipulated that they incurred damages of $50,500, and because they have received that amount from insurance proceeds, there should be a setoff to prevent a double recovery. However, in Kay, the defendant was entitled to a setoff on the basis of section 768.041(2), Florida Statutes, and the case did not involve uninsured motorist coverage benefits. Because section 768.041(2) does not authorize a setoff based on uninsured motorist coverage, Kay is not applicable....

...covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment." (emphasis added)); § 768.041(2), Fla....

...covenant not to sue to any person in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment." (emphasis added)); § 768.041(2), Fla....

inadmissible in evidence, as urged below, under Section 768.41(4), Florida Statutes (1981), which provides:

...nt the plaintiff had received pursuant to a class action suit. The class action defendant and the instant defendants were not joint tortfeasors, and the damages (injuries) claimed in the two cases were not the same; thus, in our view, a setoff under section 768.041(2), Florida Statutes, was not appropriate....

...k any damages against Dade County. A jury trial was held and a verdict for Five Hundred Fifty-four Dollars was returned against Serrano and LaRosa. The defendant, LaRosa, on December 19, 1968, moved for a set-off, pursuant to Fla.Stat. § 54.28, now § 768.041, F.S.A....

...final and costs] in the public records. The plaintiffs timely moved to set aside this order and after rehearing, the trial *321 court set aside the order of satisfaction dated January 31, 1969. The defendant, LaRosa, appeals from that order. F.S.A. § 768.041(2) provides: “(2) At any trial, if any defendant shall make it appear to the Court that the Plaintiff, or any person lawfully on this behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial sa...

...s Court, plaintiff urges that this Court’s decisions in Arenson v. Ford Motor Co., 254 So.2d 812 (1 Fla.App.1971), and Escambia Chemical Corp. v. Industrial Marine Supply Co., 238 So.2d 684 (1 Fla.App.1970), are in conflict with the intent of F.S. § 768.041, F.S.A., and that this Court should recede from these decisions....

reminding the jury of this fact, violated section 768.041(3), Florida Statutes (1991), which provides:

...personal injury damages award must be reduced by a payment the plaintiff received to settle a bad faith claim against his uninsured motorist insurance carrier. 1 Ellison v. Willoughby, 326 So. 3d 214 (Fla. 2d DCA 2021). Two of Florida’s setoff laws are at issue, sections 768.041(2) and 768.76(1), Florida Statutes (2012)....

...Appeal affirmed the denial of the setoff request. It also certified this two-part question as one of great public importance: Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to setoff under section 768.041(2) or a collateral source within the meaning of section 768.76? Ellison, 326 So. 3d at 224. The court answered no to both parts of the question, holding that neither statute authorized a setoff in this case. The Second District explained that, writing on a blank slate, it would have found Ellison entitled to a setoff under section 768.041(2), but it decided that this Court’s case law precluded that result. Id. at 219. Based on the parties’ arguments and our own review of the record, we have determined that Ellison did not ask the trial court for a setoff under section 768.041(2)....

...That issue was therefore unavailable for appellate review; the Second District should not have ruled on it, and neither should we. So, without answering the -3- first part of the certified question, we quash the part of the district court’s decision addressing section 768.041(2). Next, we rephrase the second part of the certified question to state more precisely the issue presented to the trial court and passed on by the district court: Is a settlement payment made by an uninsured motorist...

...768.76(2)(a)2.? We agree with the Second District that the answer to the rephrased certified question is no. 4 I. As he did before the Second District, Willoughby argues that Ellison did not preserve the section 768.041(2) setoff issue for appellate review....

...judge” of the issue to be decided. Id. Appellate courts’ faithful enforcement of this preservation rule promotes accuracy, efficiency, and fairness in adjudication. The record below shows that, in the trial court, Ellison did not seek a setoff under section 768.041(2); instead, she relied entirely on section 768.76....

...motion invoked only section 768.76. And, at the posttrial hearing on the setoff motion, Ellison told the court that the insurance settlement “fits within the collateral source statute [i.e., section 768.76]”— again making no argument about section 768.041(2). Finally, the trial court’s order denying the setoff motion does not show that the -5- court understood itself to be ruling on a section 768.041(2)-based claim. Whether a setoff is available under section 768.041(2) presents an issue distinct from the issue whether a setoff is available under section 768.76. Although both statutes govern the reduction of damage awards, comparing the text of each provision leaves no doubt that they are substantively different. Section 768.041(2) appears within a statutory section titled “Release or covenant not to sue.” It says: At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a...

...y independent of the wrongdoer will not operate to lessen the damages recoverable from the person causing the injury”) (quoting 15 Am. Jur. Damages § 198 (1938)). The Second District acknowledged that Ellison “never specifically cited section 768.041(2)” in the trial court, but it found the issue preserved for appellate review anyway....

...The district court waved off Willoughby’s preservation- based argument: “this issue was thoroughly litigated in the trial court, and both the parties and the trial court relied on case law analyzing setoff of [uninsured motorist] settlements under both sections 768.041(2) and 768.76(1).” Id. Ellison now echoes this position and adds that, in the trial court, she made clear her view that Florida law does not allow Willoughby to be compensated twice for the same damages. We cannot agree that Ellison preserved the section 768.041(2) setoff issue for appellate review. A trial court called upon to apply sections 768.041(2) and 768.76 would quickly see that each statute presents distinct issues of interpretation....

...obligation to present both issues to the trial court. Ellison did not do that—she relied entirely on section 768.76. And the Second District cited no authority, and we are aware of none, for the notion that the trial court’s mere awareness of case law discussing section 768.041(2), without any accompanying argument, put that statute in play for preservation purposes. Because the Second District should not have ruled on Ellison’s section 768.041(2) claim, we quash the portion of the district court’s decision addressing that statute. We do so without passing on the correctness of the district court’s statement that the meaning of section 768.041(2) is “plain and unambiguous”—a conclusion that the court supported only by discussing section 768.041(2) in isolation from the rest of chapter 57-395. See id. at 219. Nor do we express a view on the district court’s analysis of this Court’s case law addressing section 768.041(2)....

...But the goal of giving effect to a law’s purpose cannot justify a reading that stretches the language of a statute beyond its breaking point. III. To sum up: We decline to answer the first part of the certified question, because the defendant did not preserve the section 768.041(2) issue for appellate review....

...opinion, is no: a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim is not a - 14 - collateral source under section 768.76(2)(a)2. We quash the portion of the Second District’s decision addressing section 768.041(2). And we approve the rest of the district court’s decision to the extent it is consistent with our decision here. It is so ordered. CANADY, LABARGA, COURIEL, GROSSHANS, and FRANCIS, JJ., concur. SASSO, J., did not partici...

...In fact, John Franta had not even been served with process at the time the release was executed and the judgment rendered. Although appellee has not favored us with a brief we can tell from his motions in the trial court that he is of the opinion that the release of one tortfeasor is the release of all. That is not so and section 768.041(1), Florida Statutes (1979), is applicable....

...s against them and were dismissed with prejudice from the suit. We reverse and remand with directions for the trial court to setoff from the final judgment the pre-trial settlement involving these co-defendants. See § 46.015, Fla. Stat. (2023); § 768.041, Fla....

COPE, Judge. Nicholas and Angela Baudo appeal an adverse summary final judgment entered on the basis of a release given to other tortfea-sors. We conclude that the trial court ruling is contrary to sections 768.041 and 768.31, Florida Statutes (1991), and reverse....

...The Hospital and Nursing Home moved for summary judgment on their defenses of release and payment. The trial court entered summary judgment in defendants’ favor, and plaintiffs have appealed. The summary judgment was improvidently entered and is reversed. Section 768.041, Florida Statutes (1991), provides in part: 768.041 Release or covenant not to sue.— (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfea-sor who may be liable for the same tort or death....

...It involved an offer of judgment and nowhere mentions the statutes governing releases. Defendants rely on Rucks v. Pushman, 541 So.2d 673 (Fla. 5th DCA), review denied, 549 So.2d 1014 (Fla.1989). The Rucks case is also inapposite because it does not mention, much less analyze, sections 768.31 and 768.041, Florida Statutes....

...for the bedsore in Lawsuit I. Again, the statutes are dispositive. Defendants in Lawsuit II “are entitled to a credit for any amounts paid to the claimant in settlement for the injury.” Price v. Beker, 629 So.2d at 912 (citation omitted); see §§ 768.041(2), 768.31(5), Fla....

...Under both Florida and Delaware law, the release of one party does not operate as a discharge of all. Doc. No. 24 at 8. Sun First Nat'l Bank v. Batchelor, 321 So.2d 73 (Fla. 1975); Blackshear v. Clark, 391 A.2d 747 (Del. 1978); ING Bank, FSB v. Am. Reporting Co., LLC, 859 F.Supp.2d 700, 704-05 (D. Del. 2012). Pursuant to section 768.041(1), Fla....

...Stat., a "release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death." Fla. Stat. § 768.041 (1)....

this was a violation of the provisions of Section 768.041, Florida Statutes (1989). This section provides

the adjacent apartment building. Pursuant to Section 768.041(2), Florida Statutes (1977), which provides

...McMannis, as surviving parents of John H. McMannis, deceased, in the amount of $5,000. Prior to the trial of the cause a settlement was perfected with one of the joint tortfeasors, who was not a party to this action and is not a party in this appeal. Section 768.041, F.S.A....

...McMannis, to be set off against the verdict to James D. McMannis, individually and on behalf of Marion R. Mc-Mannis. In so doing there would have been left a balance of $8,000 due plaintiff, James D. McMannis, as administrator of the estate of John H. McMannis, deceased minor. Section 768.041(2), F.S.A....

...purpose of discovery with the court retaining jurisdiction to determine severance after discovery. Prior to trial, Calderon settled with Franz and Penn for $3,000. Defendant Hialeah amended the answer and asserted the defense of set-off pursuant to § 768.041, Florida Statutes, (1979)....

...We also reverse and remand for further proceedings on the cross-appeal issue wherein the trial court improperly set off the settlement amounts received from the other defendants against the noneconomic damages awarded to the Estate pursuant to sections 46.015 and 768.041, Florida Statutes (2002)....

...Accordingly, we reverse that portion of the judgment and remand for the trial court to enter an amended final judgment in accordance herewith. . Lastly, the trial court erred in setting off the settlement amounts received from the other defendants against the non-economic damage award pursuant to sections 46.015 and 768.041....

...which the plaintiff would be otherwise entitled at the time of rendering judgment. 4 However, the supreme court in Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249, 253 (Fla.1995), specifically held that sections 46.015 and 768.041 do not apply to noneconomic damages....

...nstituted a theft or conversion. Estate of Villanueva v. Youngblood, 927 So.2d 955, 959-60 (Fla. 2d DCA 2006). . Ortiz issued after the notice of appeal was filed in this case, and it was not available to the trial court when it rendered judgment. . Section 768.041(2) contains slightly different terminology but is the same in substance.

Hammond, had been dropped as defendants. Section 768.041(3), Florida Statutes (1979) provides: The fact

...Because the injured plaintiff is so obviously seeking, albeit on a distinct theory, only a recovery for the injury itself, and because the contention is so obviously contrary to the law of both insurance and spoliation, which is that "only for purposes of section 768.041, the spoliation claim is the same tort for the same damages as the underlying products liability claim," Builder's Square, Inc....

...3d DCA 1971), cert. discharged, 262 So.2d 658 (Fla.1972), is instructive as to the liability of the remaining appellees. In that case a partial satisfaction of judgment was held to operate as a partial release only for the purpose *348 of applying section 768.041(2), Florida Statutes....

supra. And it is not saved by the terms of Section 768.041, F.S.1967, F.S.A.1. The clear wording of this

...At that point an objection was raised and, at sidebar, counsel withdrew the question. Ellis's counsel then read from the "second set of interrogatories" and proceeded to question Mr. Griffin. Griffin argues that through this the jury was informed that Cameron Ashley had been a party and had settled. We do not agree. Section 768.041(3), Florida Statutes (2007), prohibits anyone from presenting to the jury the fact that there has been a release or a covenant not to sue or a dismissal of a party to the action....

...rviving wife and $2,500,000 in non-economic damages for the surviving daughter. In his motion for new trial, Dr. Vedere contended that by including PBGMC in the caption, the jury was inadvertently advised of a settling defendant in violation of section 768.041(3), Florida Statutes (2020), and a new trial was required....

...Hartmarx Corp., 496 U.S. 384 (1990)). In the motion for rehearing and on appeal, Dr. Vedere contends that the trial court committed reversible error by giving the jury a verdict form with former defendant PBGMC in the case caption, in violation of section 768.041(3), Florida Statutes (2020). 2 Section 768.041(3) states that the fact of “a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.” Id. In Holmes v. Area Glass, Inc., 117 So. 3d 492 (Fla. 1st DCA 2013), relied on by Dr. Vedere, the court considered the inclusion of a settling defendant in the caption of the verdict form and whether it violated section 768.041(3)....

...The court denied the motion. On appeal, although the First District noted that no rule required the caption on the verdict form to be identical to the caption used on all pleadings, the court also concluded that including Area Glass, a settling defendant in the caption, violated section 768.041(3)....

...the verdict form. In fact, nothing in the record indicates whether or not the jury noticed PBGMC in the caption. Also, unlike in Holmes, the trial court here did not invite the jury to draw any inferences from the verdict form. “[A] violation of section 768.041(3) is subject to a harmless error analysis....

...Bon Secours Hosp./Villa Maria Nursing Ctr., 684 So.2d 211, 214 (Fla. 3d DCA 1996). Following remand, should Mitchell prevail on any of her claims against Dixon and Realty Source, the trial court may consider whether a set-off is appropriate pursuant to § 768.041(2), Florida Statutes, to preclude a second recovery of damages already received by Mitchell in her settlement with the condominium association....

...of the lower courts.’” Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So. 3d 565, 568 (Fla. 4th DCA 2015) (quoting D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)). Setoffs for collateral recoveries are available pursuant to sections 768.041(2) and 46.015(2) of the Florida Statutes, (2015). Both sections contain nearly identical language, however, section 46.015 is located in the civil practice and procedure title of the Florida Statutes and 8 section 768.041 is located in the torts title....

...otherwise entitled at the time of rendering judgment.” § 46.015(2), Fla. Stat. (2015). The purpose of the setoff statutes is to prevent a windfall to a plaintiff by way of double recovery. See Cornerstone, 163 So. 3d at 569 (“The set- off provision in section 768.041(2) ‘was designed to prevent duplicate or overlapping compensation for identical damages.’” (quoting Gordon v. Marvin M....

...2d 643, 644 (Fla. 4th DCA 1995)). Thus, any “settlement recovery sought to be set off must be ‘in partial satisfaction for the damages sued for.’” Escadote I Corp. v. Ocean Three Ltd. P’ship, 211 So. 3d 1059, 1062 (Fla. 3d DCA 2016) (quoting § 768.041(2), Fla....

HENDRY, Judge. This court consolidated two ,set of appeals concerning the right to a set-off under § 768.041, Fla.Stat., F.S.A....

...tatutory minimum to exactly the same extent that a policyholder would be legally entitled to recover damages from the third party tortfeasor. * * * )> Tuggle v. Government Employees Insurance Company, supra. GEICO argues that §§ 627.0851(4) and 768.041, Fla.Stat., F.S.A., allow an insurance carrier to be subrogated to a recovery by its insured against an insured motorist because the statutes are couched in broad language....

...The statutory provision and public policy favoring the right to minimum coverage prevails over the contractual limitations in the insurance policy. There is no argument that GEICO may proceed against the uninsured motorist. It argues that its subrogation rights may be wiped out by an application of § 768.041, Fla.Stat., F.S.A.; the Nearhoofs argue to the contrary relying on Woodley Lane, Inc....

..., insured joint tortfeasor. The order and final judgment appealed in Nos. 70-856 and 70-857 are affirmed; the two orders amending order and final judgment appealed in Nos. 70-841, 842, 1034 and 1035, are reversed and remanded. It is so ordered. I.“768.041 Release or covenant not to sue.— “(1) A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death....

exception. The supreme court held in 1975 that section 768.041(1) “abolished the common law rule that a release

...As Van Antwerp argued in the trial court and again urges here, the correct amount of the judgment to be entered against Florida Mining is $143,000, representing $270,000 less $27,000 (10% negligence of John Van Antwerp), less $100,000 (amount derived from settlement with remaining tortfeasors), pursuant to section 768.041(2), Florida Statutes (1989)....

1982, Publix moved for a setoff pursuant to section 768.041(2), Florida Statutes (1981). The trial court

Caraway v. Sain, N.D.Fla.1959, 23 F.R.D. 657; § 768.041, Fla.Stat.

PER CURIAM. Affirmed. Schaffer v. Pulido, 492 So.2d 1157 (Fla. 3d DCA 1986); § 768.041(2), Fla....

Section 54.28(1), Florida Statutes, now numbered Section 768.041, Florida Statutes, F.S.A. See Adler v. Segal

...We cannot determine that the error was harmless as pertains to the entry of the judgment. Therefore, the judgment is reversed and this cause remanded for further proceedings to afford appellants the opportunity to apply to the trial court for any setoff to which they may be entitled under the provisions of F.S. Section 768.041(2), F.S.A....

...orida legislature can say so. 9 See Fla. Stat. § 46.015 (governing setoff for a covenant not to sue); § 679.340 (governing setoff against a deposit account); § 766.118(7) (governing setoff for non-economic damages in medical malpractice actions); § 768.041 (governing setoff for a covenant not to sue in a tort action); cf....

...Generally, the law, both statutory and court-made, has been progressive in setting aside arbitrary rules that are out of step with current views of justice. For instance, the legislature long ago passed statutes abrogating the rule that the release of one joint tortfeasor operates to release all other tortfeasors. Section 768.041(1), Florida Statutes (1991), provides: A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death....

...2d DCA 1962), the second district held a passive tortfeasor (the owner of a vehicle) was not affected or released by a settlement and release of the active tortfeasor (the driver of the vehicle), although Hertz argued that as a vicarious tortfeasor it was not one of the other tortfeasors referred to in section 768.041(1). The court rejected that argument and held passive tortfeasors were, indeed, covered by the statute. [2] The Restatement (Second) of Judgments, section 51, treats consent judgments pretty much the same way that sections 768.041(1) and 768.31(5) treat settlements....

...We elect to treat the consent judgment here the same way for the policy reasons set out in the comments. By adopting the policy underlying the Restatement of Judgments as set out above, we believe we are following the lead of the legislature in enacting sections 768.041(1) and 768.31(5)....

...GLICKSTEIN, J., and BIRKEN, ARTHUR M., Associate Judge, concur. NOTES [1] In Eason v. Lau, 369 So.2d 600 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1365 (Fla. 1979), the court treated a dismissal with prejudice against a joint tortfeasor as if it were a release for purposes of applying sections 768.041(1) and 768.31(5)....

defendants from the cause prior to trial. By virtue of § 768.041 Fla.Stat., F.S.A., regardless of the name or term

...nds this exception applies, because the denial of discovery of the settlement amounts wholly eviscerates its affirmative defense of setoff. Under Florida law, setoff is statutorily circumscribed. See § 46.015(2), Fla. Stat. (2020); see also §768.041(2), Fla....

...Kenyon Constr. Co., Inc., 183 So. 3d 1192, 1197 (Fla. 1st DCA 2016) (quoting D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)). Against this background, we turn our attention to the procedural aspects of the relevant setoff statutes. Section 768.041(2), Florida Statutes, provides, in pertinent part: At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any p...

...2d DCA 2011) (finding that where liability had 7 been established settlement documents were discoverable); see also Dionese v. City of W. Palm Beach, 500 So. 2d 1347, 1348 (Fla. 1987) (“A post-trial hearing was held to determine the proper method of set-off as required by section 768.041(2), Florida Statutes.”); Addison Constr....

...sued for, the court shall 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.” §768.041(2), Fla....

...See JoJo’s Clubhouse, Inc. v. DBR Asset Mgmt., Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003). And, the plain text of the setoff statutes clearly dictates that the non-settling defendant establish the right to setoff at trial. See § 46.015(2), Fla. Stat. (2020); §768.041(2), Fla. Stat. (2020). While such settlement information is not admissible to the jury, see § 46.15(3), Fla. Stat. (2020); § 768.041(3), Fla. Stat....

...Citing its entitlement to a setoff of the amounts paid by the settling defendants, Wal-Mart sought to compel the plaintiffs to disclose the settlement amounts they had been paid by the settling defendants. Id. After 4 § 46.015(2), Fla. Stat. (2020); §768.041(2), Fla....

...onflict with any other provision of the Florida Statutes, such other provision shall apply.” Ergo, to the extent section 768.81(3) conflicts with the statutory provisions establishing the substantive right to a setoff (i.e., sections 46.015(2), 768.041(2), and 768.31(5)(a)), the right to such a setoff endures. Because I find Strachan’s suggestion that the Legislature abolished the right to setoff highly dubious, and because Allen cites Strachan as persuasive authority, any futur...

and her husband is a release as referred to in § 768.041, Fla.Stat., and the provisions of that section

settlement. The trial court denied the motion. Florida Statute 768.041 requires a set-off of any settlement against

...The trial court’s interpretation of the release as a waiver by Escadote of a right to prejudgment interest on the set-off amount is also reviewed de novo. Muniz v. Crystal Lake Project, LLC, 947 So.2d 464 (Fla. 3d DCA 2006). A. Set-off Set-offs for collateral recoveries are available pursuant to section 768.041(2), Florida Statutes (2010)....

...plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.” Section 46.015(2), Florida Statutes (2010), includes a nearly-identical provision that, for purposes of this case, operates in the same way as section 768.041(2)....

...When a settlement recovery is allocated between claims with different and distinctive damage elements, set-off should only be allowed to co-defendants jointly and severally liable for the same claims. Devlin v. McMannis, 231 So.2d 194, 196 (Fla. 1970) (section 768.041(2) “authorizes 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”). The obvious purpose of the statutory provisions is to prevent a windfall to a plaintiff—a double recovery on a particular claim for which the non-settling defendants are identically liable. “The set-off provision in section 768.041(2) “was designed to prevent duplicate or overlapping compensation for identical damages.’ ” Cornerstone SMR, 163 So.3d at 569 (quoting Gordon v....

PER CURIAM. Appellants argue the Volusia County Hospital, which settled with the ap-pellee in exchange for a release from liability, is a joint tortfeasor, so that Section 768.041(2), Florida Statutes (1975) is applicable and requires a set-off from the jury verdict rendered against appellants the amount of the release executed to the hospital....

...Seller and Quality Built, the trial court should have reviewed the settlement agreement’s terms before denying the Seller’s motion for setoff. We reverse on that issue and affirm on all other issues raised. “Setoffs are generally governed by sections 46.015 and 768.041, both of which require setoffs as to amounts received from a joint tortfeasor.” Philip Morris USA Inc....

...hich the plaintiff was entitled to at the time of rendering judgment if the plaintiff has received a partial satisfaction of the damages sued for.” Process Masters, Inc. v. Alpha III Ltd. P’ship, 477 So. 2d 69, 69 (Fla. 1st DCA 1985) (discussing section 768.041(2), Florida Statutes); see also Centex-Rooney Constr....

Mediation Act. An exemption to the Act, set forth in § 768.41 [sic] (10), provided that the requirement that

...1st DCA 2014) (holding that awards of attorney’s fees “fall outside the category of what might constitute fundamental error in a civil case”). Moreover, since we affirmed the trial court’s statutory interpretation determining that neither section 46.015, Fla. Stat. (2020), nor section 768.041, Fla....

...turn for plaintiffs’ agreement to hold it harmless from all monetary exposure incurred as a result of the litigation. The court properly held that the execution of this agreement did not constitute a splitting of the cause of action. See Fla.Stat. § 768.041, F.S.A.; Jacksonville Terminal Company v....

...The dismissal of Barley as a co-defendant in the lawsuit was predicated on the trial court’s finding that the agreement between Barley and appellants constituted a release, which effectively resolved all justi-ciable issues with regard to Barley. Section 768.041, Florida Statutes, provides in relevant part: (2) 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, ......

...it may unduly influence them as to the amount of damages.” 449 So.2d at 999 . In this case, we approve the trial court’s determination that appellants’ settlement with Barley for her policy limits of $10,000 was a release within the meaning of section 768.041, Florida Statutes. In keeping with the statutory provisions, appellees Morris and Heath would be entitled to a credit in the amount of $10,000 in the event a jury awarded a verdict for the plaintiffs. And, pursuant to section 768.041, the jury could not be apprised of the fact of the release....

...The court granted the motion and entered summary judgment against Smith for liability. We affirm the summary judgment on liability, Holl v. Talcott, 191 So.2d 40 (Fla.1966), as we are unpersuaded by Smith’s argument that the settlement agreement between Suero and State Farm operated to discharge Smith from the action. See § 768.041(1), Fla.Stat (1995); Sun First Nat’l Bank v....

...rogor. On remand, in considering the damages issue, we note that Smith is entitled “to a credit for any amounts paid to the claimant in settle-ment_” Baudo v. Bon Secours Hosp./Villa Maria Nursing Ctr., 684 So.2d 211, 214 (Fla. 3d DCA 1996); see § 768.041(2), Fla....

damages ultimately recovered from Mr. Kieffer. See § 768.041, Fla.Stat. (1991). Ms. Koebler and Kimberly Kieffer

...11, 2012), opinion withdrawn, 99 So. 3d 630 (Fla. 5th DCA 2012). When the trial court issued its Fees Order, Philip Morris moved to apply a setoff of the total fees award in the amount of the Reynolds’ settlement, arguing a setoff was required under sections 46.015 and 768.041, Florida Statutes (2020), to prevent Gore from receiving an unreasonable double recovery....

...768.79, Florida Statutes (2020). The trial court then entered a final judgment on attorney’s fees and costs, including prejudgment interest, in the total amount of $2,515,086.53. This appeal and cross-appeal followed. Application of sections 46.015 and 768.041 to motions to setoff attorney’s fees “Whether the trial court awarded a proper set-off is a pure question of law reviewed de novo, and ‘no deference is given to the judgment of the lower courts.’” Cornerstone SMR, Inc....

...The issue presented is whether a non-settling defendant in a civil action is entitled to reduce an attorney’s fees award pursuant to a PFS by the amount previously paid by a settling defendant toward their separate PFS. The trial court denied Phillip Morris such a reduction after analyzing sections 46.015 and 768.041. Setoffs are generally governed by sections 46.015 and 768.041, both of which require setoffs as to amounts received from a joint tortfeasor. Grobman v. Posey, 863 So. 2d 1230, 1237 (Fla. 4th DCA 2003). “The set- off provision in section 768.041(2) ‘was designed to prevent duplicate or overlapping compensation for identical damages.’” Cornerstone SMR, 163 So....

...the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment. § 46.015(1)–(2), Fla. Stat. (2020). Nearly identical in its terms, Section 768.041 provides: (1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of an...

...corporation in partial satisfaction of the damages sued for, the court shall 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. § 768.041(1)–(2), Fla. Stat. (2020). The trial court correctly found the language in neither section 46.015 nor section 768.041 applied to provide a setoff for the attorney’s fees paid by Reynolds....

...Amendment 4, The Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). 4  Sections 46.015(2) and 768.041(2) do not support Philip Morris’ motion for a setoff, because they apply only to the “satisfaction of the damages sued for.” The plain language of those statutes clearly specifies an intention to apply to damages and not attorney’s fees....

FARMER, Judge. We reverse the setoff granted under section 768.041(2), Florida Statutes....