NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JULY TERM, 2004
PACIFIC INSURANCE COMPANY,
GEORGE BOTELHO, D.O., CENTER
FOR ORTHOPEDIC SURGERY AND
RHEUMATIC DISEASE, a/k/a CENTER
FOR ORTHOPAEDIC SURGERY, P.A.,
LAWRENCE GOLDSCHLAGER, M.D.,
EMCARE OF FLORIDA, INC., and
MARATHON HMA, d/b/a FISHERMEN’S
CASE NO. 3D04-810
CASE NO. 2003-CA-192-M
Opinion filed December 22, 2004.
An Appeal from the Circuit Court for Monroe County, Mark H.
Wicker, Smith, O’Hara, McCoy, Graham & Ford and Shelley H.
Leinicke (Fort Lauderdale) for appellees George M. Botelho,
D.O., and Center for Orthopedic Surgery and Rheumatic Disease,
a/k/a Center for Orthopaedic Surgery, P.A.
McGrane, Nosich & Ganz and Ruben V. Chavez for appellee
Emcare of Florida, Inc.
Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis
and Beverly Eisenstadt for appellee Marathon HMA, d/b/a
Fishermen’s Hospital, Inc.
The plaintiff, Pacific Insurance Company, Ltd., as subrogee
of Hawk’s Cay Investors, Ltd., a Florida limited partnership,
d/b/a Hawk’s Cay Resort & Marina [Pacific], appeals from a final
subrogation against defendants, George Botelho, D.O.; Center for
Orthopaedic Surgery, P.A.; Lawrence Goldschlager, M.D.;1 Emcare
of Florida, Inc.; and Marathon HMA, d/b/a Fishermen’s Hospital,
Inc. [collectively referred to as medical providers].
treatment from the medical providers for injuries she sustained.
Dr. Goldschlager is an employee of Emcare, but he was never
Mr. and Mrs. Ziesenheim filed suit against Hawk’s Cay.
the time of the accident, Hawk’s Cay was insured by Pacific.
The Ziesenheims filed a proposal for settlement in the amount of
settlement agreement prepared on behalf of Hawk’s Cay because it
Because the parties could not agree as to whether the medical
malpractice claims were included in the proposal for settlement,
this issue was submitted to the trial court for determination.
The trial court found that the medical malpractice claims were
not included in the proposal for settlement, and thereafter, the
[Release] that included only the claim against Hawk’s Cay.
Pacific then filed its complaint for equitable subrogation
against the medical providers asserting that their negligence
was a direct or proximate cause of the injuries sustained by
Mrs. Ziesenheim and that “the amount paid by PACIFIC was far
greater than would have fairly and reasonably been paid in the
settlement of Martha Ziesenheim’s claim because the negligence
conditions, and infections which otherwise required unnecessary
increased permanent injury to Martha M. Ziesenheim.”
Moreover, Fishermen’s Hospital also filed a Motion to Strike the
Complaint as Sham [Motion to Strike] attaching a copy of the
Ziesenheims who averred that the Ziesenheims’ lawsuit was for a
against the medical providers, and that the malpractice claims
had been retained by the Ziesenheims.
The trial court heard the Motion to Strike and the
Motion to Dismiss at a single hearing.
At the hearing, Pacific
argued that it was inappropriate for the trial court to consider
the Release in ruling on the Motion to Dismiss.
Ziesenheims’ attorneys to testify.
The attorney testified that
proposal did not include any claims except for those against
The trial court reserved ruling on the motions.
Prior to the trial court ruling on the motions, Pacific
filed an amended complaint adding Paragraph 26 to the common
allegations, which provided in part that “the Ziesenheims and/or
expressly releasing the subsequent negligent medical providers.”
The trial court entered a single order which denied the
In granting the Motion to Dismiss, the trial court
relied on the Release itself and also on Paragraph 26 of the
This appeal follows.
Pacific contends that the trial court erred by relying on
the Release when ruling on the Motion to Dismiss.
The purpose of a motion to dismiss is to test the legal
sufficiency of the complaint.
Barbado v. Green & Murphy, P.A.,
758 So. 2d 1173, 1174 (Fla. 4th DCA 2000).
Unlike a motion for
summary judgment, when ruling on a motion to dismiss, “[a] court
considering the legal sufficiency of the allegations.”
758 So. 2d at 1174; see also Patriotcom, Inc. v. Vega, 821 So.
2d 1261 (Fla. 4th DCA 2002).
Further, a motion to dismiss cannot
be granted based on an affirmative defense unless the defense
appears upon the face of a pleading.
Ramos v. Mast, 789 So. 2d
1226 (Fla. 4th DCA 2001); Beach Roadhouse Town Corp. v. Skinner,
356 So. 2d 881 (Fla. 3d DCA 1978).
In the instant case, the Release signed by the Ziesenheims
was not attached to either the complaint or amended complaint.
As such, the trial court erred by relying on the copy of the
Release when ruling on the Motion to Dismiss.
In most instances,
reversal would be warranted where the trial court went beyond the
However, in this case, the trial court gave two reasons
for granting the motion to dismiss, the Release itself, which is
beyond the four corners of the complaint, and Paragraph 26 of the
Based on our finding that the trial court erred by
relying on the Release itself in granting the Motion to Dismiss,
warranted based solely on the averment contained in Paragraph 26
of the amended complaint.
The medical providers contend that even if the trial court
erroneously relied on the copy of the Release, reversal is not
Paragraph 26 of the amended complaint demonstrates that Pacific
To state a cause of action for equitable subrogation, the
allegations of the complaint must demonstrate that: “(1) the
subrogee made the payment to protect his or her own interest, (2)
the subrogee did not act as a volunteer, (3) the subrogee was not
primarily liable for the debt, (4) the subrogee paid off the
entire debt, and (5) subrogation would not work any injustice to
the rights of a third party.”
Dade County School Bd. v. Radio
Station WQBA, 731 So. 2d 638, 646 (Fla. 1999).
providers argue, and we agree, that based on Paragraph 26 of the
amended complaint, which we must accept as true, Pacific cannot
Ziesenheims and/or their attorneys would not agree to the release
providers (Defendants) in the underlying release.”
Ziesenheims retained their cause of action against the medical
providers, Pacific cannot state a cause of action for equitable
As such, we affirm the order dismissing the action
In light of our holding, it is not necessary for us to
address the remaining arguments raised by the parties.
NESBITT, Senior Judge, concurs.
Pacific Ins. Co., Ltd., etc. v. Botelho et al.
Case No. 3D04-810
COPE, J. (dissenting).
Since it appears reasonably clear that the dismissal order was
based on consideration of matters outside the four corners of the
complaint, I would reverse without prejudice to the appellees to
file a motion for summary judgment.
As an aside, the majority opinion accurately quotes a portion
of paragraph twenty-six of the complaint which states in part that
“the Ziesenheims and/or their attorneys would not agree to the
release language expressly releasing the subsequent negligent
medical providers . . . .”
Clearly there is an error in the
As explained earlier in the majority opinion, the
proposed release included an assignment of the Ziesenheims’ medical
malpractice claim to Hawk’s Cay.
Majority opinion at 3.
no intention on the part of any of the settling parties to release
the medical providers.
In light of the evidentiary record developed at the motion to
strike as sham, it seems unlikely that anything will change on
Nevertheless, the procedural objection relating to the
motion to dismiss is well taken, and I would reverse without
prejudice to the appellees to file a motion for summary judgment.