A party moving for summary judgment must rely on admissible evidence in the record. Arlen Realty, Inc. v. Penn Mut. Life Ins. Co., 386 So.2d 886 (Fla. 1^st DCA 1980).

Parties oftentimes submit an affidavit in support of a motion for summary judgment in order to get certain testimony or documentary evidence into the record. When a party submits an affidavit to get a document into the record, the party still needs to authenticate the document and lay its foundation in the affidavit. See Alavi v. Garcia, 140 So.3d 1141 (Fla. 5^th DCA 2014) (party required to lay foundation for promissory note in summary judgment affidavit); Bryson v. Branch Banking and Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (unauthenticated default letters were insufficient for summary judgment consideration); Southern Developers & Earthmoving, Inc. v. Caterpillar Financial Services Corp., 56 So.3d 56 (Fla. 2d DCA 2011) (trial court properly disallowed letter on summary judgment that was not authenticated); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So.3d 1269 (Fla. 1^st DCA 2009) (affidavit with schedule of payments to support damages was insufficient for consideration on summary judgment as the schedule of payments was hearsay and the business records exception to the hearsay rule was not established); Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5^th DCA 1984) (party relying on blood tests should have submitted affidavit (i) of record custodian of blood tests to support business records exception to the hearsay rule or (ii) of the technician that performed the blood tests).

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Set-off is a popular topic or defense raised in civil disputes.

In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004).

What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and gave the defendants releases. The remaining defendant proceeds to trial but a) thinks its liability is no more than $100,000 and b) wants to reap the benefit of the $100,000 already obtained by the plaintiff from the other two defendants. In tort actions, set-off is not an affirmative defense to be determined by the trier of fact “but is a determination regarding damages to be made by the court after the [jury] verdict is rendered [in a jury trial].” Felgenhauer, 891 So.2d at 1045.

On this point, Florida Statutes s. 46.015 and 768.041 similarly state:

s. 46.015

(1) A written 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 the liability of any other person who may be liable for the balance of such claim.

(2) At trial, if any person shows the court that the plaintiff, or his or her legal representative, has delivered a written 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.

(3) The fact 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.

 

s. 768.041

(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.

(2) 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.

(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.

Typically, these set-off statutes apply when the plaintiff received money from a defendant / tortfeasor who was vicariously liable for the other defendant’s acts. Felgenhauer, 891 So.2d at 1045-46.   (The vicariously liable party is responsible to the plaintiff to the same extent as the primary [defendant] actor; both are jointly liable for all of the harm that the primary actor has caused. See Grobman v. Posey, 863 So.2d 1230 (Fla. 4^th DCA 2003)). Stated differently, “[s]ettlement proceeds must be set off against the jury verdict where defendants [the settling defendant and non-settling defendant] are liable for the same injury.” Yellow Cab Co. of St. Petersburg, Inc. v. Betsey, 696 So.2d 769, 772 (Fla. 2d DCA 1996).

The objective is to prevent the plaintiff from obtaining a windfall by obtaining overlapping compensation for the same damages. Cornerstone SMR, Inc. v. Bank of America, N.A., 163 So.3d 565, 569 (Fla. 4^th DCA 2015). But, where there are separate and distinct claims involving different elements of damages, set-off is inappropriate. Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So.2d 643, 645 (Fla. 4^th DCA 1995). For this reason, when settling with one defendant in a dispute under different theories of liability /claims involving different elements of damages, it is important to allocate the settlement amount in the release agreement between the claims. “Where a settlement is undifferentiated and general [and not allocated amongst the claims], the aggregate of the amount of the settlement should be set off against the judgment [to prevent the appearance of double recovery for the same damages].” Cornerstone SMR, 163 So.2d at 569.

Let’s break this down as applied to the above hypothetical. First, releasing the two defendants prior to trial does not operate as a release of the remaining defendant. Second, the court shall set-off any amount the plaintiff received from the other two defendants in the judgment the plaintiff receives since it involves the same damage, meaning the set-off would reduce the jury verdict and would be embodied in the final judgment. And, third, the fact that the other two defendants were released and then dismissed from the action in consideration of $100,000 prior to trial shall not be disclosed to the jury because this does not need to be proven at trial by the remaining defendant or impact any rulings at trial.  

On the other hand, if there was an argument that there were separate theories of liability / claims against the other two defendants and potentially different elements of damages, the plaintiff would want to allocate the settlement consideration in the release agreement to these separate theories of liability / claims to create the argument that set-off is not appropriate. (See also this article for an example regarding the application of set-off in a multiparty construction dispute.) 

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More on the business records exception to the hearsay rule and the importance of laying the proper foundation to introduce business records under this exception. This is a must-know hearsay exception to any business-related dispute; and, it is imperative to understand the required testimony of the witness utilized to lay the foundation for the business records exception.

In Sanchez v. Suntrust Bank, 4D14-2457 (Fla. 4^th DCA 2015) – yes, a mortgage foreclosure case—the lender introduced a screenshot of its record keeping system, the payment history with the borrower, default letters, and a payoff calculation. The lender introduced this documentation through the testimony of a loan servicer.

In introducing this documentation, however, the proper foundation for these business records was not laid.

To introduce documents under the business records exception, the introducing party must show through a witness:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Sanchez, supra (citation omitted).

In this case, the witness was never asked whether the documents were made at or near the time of the event. And, as it related to the screenshot of the record keeping system, the witness did not know how the screenshot was created.

When it comes to the witness laying the foundation for the business records exception, the Fourth District explained:

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony. To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Sanchez, supra (internal quotations and citations omitted).

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Speculative and inadmissible testimony should not be considered on a summary judgment.

This point is illustrated in the wrongful death case of Panzera v. O’Neal, 40 Fla. L. Weekly D2661a (Fla. 2d DCA 2015).  In this case, the undisputed evidence was that the decedent, wearing a dark colored shirt, was killed trying to cross an interstate at 3am.   He was killed by a semi tractor-trailer driving under the speed limit that tried to avoid the accident. The Florida Highway Patrol responded to the accident and reported that the decedent caused the accident and the driver of the semi could have done nothing to cause or avoid the accident.

The estate of the decedent filed a wrongful death action (founded in negligence). The defendants moved for summary judgment based on the undisputed evidence. The plaintiff-estate responded based on inadmissible and speculative evidence of the decedent’s folks.   The trial court granted summary judgment and the appellate court affirmed. In affirming, the appellate court gave a great discussion of summary judgments, particularly summary judgments involving negligence actions:

In a negligence action, summary judgment is improper [u]nless a defendant can establish unequivocally the absence of negligence[ ] or that the plaintiff’s negligence was the sole proximate cause of the injury. The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail. Once the moving party has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. Many litigants labor under the misconception that they need only argue or proffer any fact that they believe to be in conflict to survive a motion for summary judgment. However, to prevail it must be admissible evidence that creates a colorable issue of material fact.

***

The estate relied solely on the deposition testimony of Panzera’s [decedent’s] parents, wherein they surmised that O’Neal [semi-tractor’s driver] could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see Panzera before the collision occurred. Their conclusions were based only on their personal review of the scene after the accident. The Panzeras admitted that they do not have experience in accident reconstruction and were not present at the time of the accident. Therefore, their bare allegations of negligence are purely speculative lay opinion testimony, which was not admissible evidence and cannot be relied on to create a material issue of fact.

Panzera, supra (internal quotations and citations omitted).

 

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