Cohen v. Freeman
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
BLOSSOM COHEN, ABRAHAM COHEN and
MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA,
Appellants,
v.
MARK FREEMAN, and MARK FREEMAN, M.D. P.A.,
Appellees.
No. 4D04-2208
[September 21, 2005]
FARMER, J.
The parties to a settlement agreement in a medical malpractice action
appeal the trial court’s refusal to enforce their settlement.1 Because of
procedural irregularities in their motion to enforce the settlement, we
find no error in the trial court’s initial decision declining to enter a
judgment of enforcement.
But we emphasize our decision is without prejudice to appellants for
filing a clear motion directed to that subject only, giving proper notice of
the hearing on that motion, and presenting evidence or a written
stipulation to the trial court establishing the settlement and the terms
thereof.
Upon compliance with these procedural requirements,
appellants will be entitled to immediate enforcement of their settlement
by appropriate judgment.
We note that s
ince the settlement was reached by appellants, t
he
defendant doctor has objected to the settlement, attempting to cancel the
policy of liability insurance as a result. He has also filed a bad faith
claim against the insurer for entering into the settlement without his
consent. We note that he does not claim that the settlement prejudice d
any counterclaim he had previously asserted in the malpractice action;
nor does he claim that the settlement subjects him to a judgment above
1 The parties to the settlement agreement are the claimants in the medical
malpractice action and the insurance carrier for the defendant doctor.
policy limits.
His arguments are insufficient as a matter of law to prevent the
claimant and the carrier from settling the medical malpractice action.
See Shuster v. South Broward Hosp. Dist. Phys. Prof . Liab. Ins. Co., 591
So.2d 174 (Fla. 1992) (holding that in the absence of unusual
circumstances, where an insurance policy authorizes the insurer in good
faith to settle any claim or suit, a cause of action for breach of the duty
of good faith will not lie for failing to defend the claim when the insurer
has settled for an amount within policy limits; the insurer has the right
to settle a claim in good faith within the policy limits without considering
the impact of higher premiums or damage to the insured’s reputation);
see also § 627.4147(1)(b)(1), Fla. Stat. (2005) (providing that every
medical malpractice liability insurance policy is required to authorize the
insurer to settle in good faith any medical malpractice claim within policy
limits without the permission of the insured; it is against public policy
for any insurance policy to contain a clause giving the insured the
exclusive right to veto any settlement offer when such offer is within the
policy limits). The pending bad faith claims by the doctor may not be
used to delay or impair the entitlement of the settling parties to
immediate enforcement of their settlement.
Remanded for Consistent Proceedings.
KLEIN, J., concurs.
MAY, J., concurs in part and dissents in part with opinion.
MAY J. concurring in part and dissenting in part.
I concur in the majority’s decision to affirm the trial court’s refusal to
enforce the settlement because of the procedural irregularities that
occurred. I would not remand the case with directions to immediately
enforce the settlement upon compliance with the procedural
requirements. These missing procedural requirements may reveal issues
that have not yet been properly considered by either the trial court or
this court. I would simply affirm without prejudice and allow the parties
to properly bring the issues to the trial court for consideration.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
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Beach County; Karen M. Miller, Judge; L.T. Case No. CL 99-1249 AA.
Arthur J. Morburger, Miami, Alvin N. Weinstein, Miami, and Brian R.
Hersh, Miami, for Abraham and Blossom Cohen.
Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford,
P.A., West Palm Beach; David Van Dyke and Brian Schroeder of
Cassiday, Schade & Gloor, Chicago, Illinois, for Medical Protective
Company of Fort Wayne, Indiana.
Richard H. Willits of Richard H. Willits, P.A., Lake Worth, for
appellees.
Not final until disposition of timely filed motion for rehearing.
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