Preview
Filing# 172771418 E-Filed 05/09/2023 03:17:13 PM
Propst v. Neily
Court of Appeal of Florida, Fourth District
March 27,1985
No. 84-908
Reporter
467 So. 2d 398 *; 1985 Fla. App. LEXIS 13124 **; 10 Fla. L. Weekly 808
claim for damages by reason of injury, death, or
MATTHIAS J. PROPST, Appellant, v. JOHN A. NEILY,
monetary on account of allegedmalpracticeby any
loss
D.O., et al.,Appellees
medical or osteopathic physician, podiatrist,hospital,or
health maintenance organization;
Subsequent History: [**1] Rehearing Denied May 9, 1985.
The trial court's order granting the defendants' motion is the
Prior History: Non-final appeal from the Circuit Court for subjectof this appeal.
Broward County; Paul M. Marko, III,Judge.
The zero verdict is not on appeal and the final judgment is
silent as to the cause of action for loss of consortium. Neither
Counsel: Guy B. Bailey,Jr.,and Mercedes C. Busto of
of these factors is determinative of the issue on appeal
Bailey & Dawes, Miami, for Appellant.
although under different circumstances either or both might
Bruce F. Simberg of Conroy & Simberg, P.A., Hollywood, bear on the result.
for Appellee-John A. Neily.
In order to analyze the position taken by Propst it is necessary
Harry M. Hausman of David L. Kahn, P.A., Fort Lauderdale, to brieflyreview the nature of his cause of action.
for Appellees-SunriseMedical Group, P.A., John F. Thesing,
D.O., Stanley H. Frankowitz, D.O., James Yezbick, D.O., and Consortium has been defined as the "conjugal fellowship of
David Miller, D.O. husband and wife, and the rightof each to the company, co-
operation, affection, and aid of the other in every conjugal
Judges: Hersey, J. Glickstein, J.,concurs. Barkett, J., relation." Black's Law Dictionary 382 (4th ed. 1951).
dissents with opinion.
At common law only the husband could recover for
Opinion by: HERSEY loss [**3] of consortium. Extending a similar right to the
wife, the court in Gates v. Foley, 247 So.2d 40 (Fla. 1971),
Opinion explained the ramifications of this cause of action:
Consortium means much more than mere sexual relation
and consists, also, of that affection, solace, comfort,
an appeal from an order determining that the companionship, conjugal life, fellowship,society and
[*398] This is
assistance so necessary to a successful marriage.
defendants in a medical malpractice action were entitled to
(Citationomitted.)
attorney'sfees from one of the two plaintiffs.
Myrtle E. Propst sued the defendants for injuriesalleged to
have resulted from medical malpractice. Matthias J. Propst,
her husband, joined in the complaint, alleging,inter alia, loss
Id at 43.
of consortium. The jury returned a special interrogatory
The court further held that the rightis a derivative one "and
verdict awarding money damages to Mrs. Propst and "zero
she may recover only if her husband has a cause of action
damages" to Mr. Propst. The defendants moved for an award
against the same defendant." Id at 45.
of attorney'sfees against Mr. Propst under section 768.56,
Florida [**2] Statutes (1983). The relevant portion of that
relyingon Davis
I?rol?st, v. Asbell, 328 So.2d 204 (Fla. lst
statute provides: DCA 1976), takes the position that since the cause of action is
derivative, if the injured spouse prevails on the issue of
(1) Except as otherwise provided by law, the court shall
liabilityagainst a tortfeasor the other spouse prevails as a
award a reasonable [*399] attorney's fee to the
matter of law on the claim for loss of consortium. The Davis
prevailingparty in any civil action which involves a
case appears to be correctly cited for this proposition.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/09/2023 03:17:12 PM.****
Page 2 of 2
467 So. 2d 398, *399; 1985 Fla. App. LEXIS 13124, **3
However, subsequent case law, with which we agree, holds to I
respectfullydissent. Although I would agree with the
the contrary. H/hite Const. Co. v. DuPon4 430 So.2d 915 majority if there had been a separate trial solely on the
(Fla. 1st DCA 1983); Albritton v. State Farm Mut. Auto. Ins. derivative claim, I would not apply section 768.56,
Co., 382 So.2d 1267 (Fla. 2d DCA 1980). [**4] In the Florida [**6] Statutes (1983), to the fact situation before us.
Albritton case the court acknowledges the rule that a In this case, the claim of a wife bringing an action in
derivative claim is barred by an adverse judgment on the negligence was consolidated with her husband's claim for loss
direct or primary claim but pointsout that "the converse is not of consortium. Both husband and wife were representedby
necessarilythe case." Id at 1268. The holding is that, given the same lawyer at the same trial. Only a miniscule portionof
the predicate of injury to one spouse, it does not necessarily the trial was devoted to the husband's derivative claim. Mrs.
follow as a matter of law that the other spouse has a claim for Propst, allegingdirect injury,received a damage award but
loss of consortium. In addition to the
underlying injury,the Mr. Propst, alleging loss of consortium, did not. This
spouse claiming loss of consortium "must present competent situation seems analogous to a situation in which a party filing
testimony concerning the impact which the accident had on a multicount complaint prevails on only one count of that
the marital relationshipand, more specifically,evidence complaint. In such a situation,the party filingthe complaint
concerning [the] loss of consortium." Id Under this holding, is, for purposes of awarding costs under section 57.041(1),
which we approve, Propst does not automatically prevail on Florida Statutes (1979), the "party recovering judgment."
simply because his spouse prevailedon
the issue of liability Hendg Tractor Company v. Fernandez, 432 So.2d 1315 (Fla.
her claims and he does not contend that he presented the 1983). This same logic,in my opinion, should be applied to
requisite evidence. this case. Lastly, I do not see that this result furthers the
purpose of section 768.56, Florida Statutes, which is to
Propst also argues that one who prevails on the issue of from bringing non-meritorious claims. I
discourageplaintiffs
liabilityis the prevailing party regardless of the amount of would reverse the award of attorney's fees against Mr.
damages assessed. He relies on two cases for this proposition.
I?ropst[**7] linder these circumstances.
We distinguishboth. In Blue v. Williams, 200 So.2d 626,627
(Fla. 3d DCA 1967), the jury found "for the Plaintiff...
and [**5] assess[ed] his damages in the sum of zero . . . End of Document
Dollars." The Propst jury made no such findingof liability.
In
Ra#W Magarian, 165 So.2d 249 (Fla. 3d DCA 1964), a
v.
summary judgment for plaintiffon the issue of liabilitywas
followed by a jury verdict of zero damages. Plaintiff was
entitled to costs by virtue of the judgment on liability.
Again
there is no parallelin the present case. Neither the court nor
the jury made a findingon the issue of liability.
Thus, even if
the Blue and Ra#W cases were applicable here the result
would simply be to render the zero verdict a non-factor in
making a determination as to who is the prevailing party. This
is so because Propst has not supported the initial premise
[*400] of his argument, that is: that he prevailed on the issue
of liability.
Appellant, Propst, having failed to carry his burden of
showing error, the order is affirmed.
GLICKSTEIN, J.,concurs.
BARKETT, J., dissents with opinion.
Dissent by: BARKETT
Dissent
BARKETT, J.,dissenting.
Testa v. Southern Escrow & Title,LLC
Court of Appeal of Florida, First District
April 13, 2010, Opinion Filed
CASE NO. 1D09-4521
Reporter
36 So. 3d 713 *; 2010 Fla. App. LEXIS 4858 **; 35 Fla. L. Weekly D 824
causes of action for negligence, fraud, breach of fiduciary
JOSEPH P. TESTA and his wife, ANGELA TESTA,
duty, equitable and promissory [**2] estoppel, intentional
SOUTHERN ESCROW AND TITLE, LLC,
Appellants, v.
infliction of emotional distress, violations of the Florida
COMMONWEALTH LAND TITLE INSURANCE CO., and
Deceptive and Unfair Trade Practices Act and the federal
LANDAMERICA FINANCIAL GROUP, INC., Appellees.
Racketeer and Corrupt Organizations Act, and a claim for
[*714] loss of consortium by appellantAngela Testa. See
Subsequent History: Released for Publication June 9, 2010.
Gordon v. Green, 602 F.2d 743, 747 n. 13 (5th Cir. 1979)
Rehearing denied by Testa v. Southern Escrow & Title, LLC, (where, chastising a plaintiffs attorneys for their utter
2010 Fla. App. LEXIS 8957 (Fla.Dist. Ct. App. 1 st Dist.,
disregardfor the Federal Rules of Civil Procedure in drafting
May 24, 2010) a complaint, the court said that "[c]ounsel as scrivener would
have been fair game for the discipline meted out by" an
Prior History: [**1] An appeal from the Circuit Court for English Chancellor in 1596--ordering a hole cut through the
Okaloosa County. John T. Brown, Judge. center of a particularlyprolix document, and then ordering
that the drafter's head be stuffed through the hole and the
Counsel: Richard W. Reno, Crawfordville, for Appellants. drafter led around to be exhibited to all attending court at
Mark A. Brown, Joseph Hagedom Lang, Jr.,and Marty J. Westminster). During a hearing on the defendants' motions to
Solomon of Carlton Fields, P.A., Tampa, for Appellee dismiss, the trial court said that it appeared that all appellants
Commonwealth Land Title Insurance Co. had was a breach of contract claim againstappellee and a
breach of fiduciaryduty claim againstthe defendant escrow
WEBSTER, J. LEWIS and ROBERTS,
Judges: JJ., agent. The court said that, therefore, it intended to dismiss the
CONCUR. remaining counts with prejudice,as barred by the economic
loss doctrine, and entered an order to that effect.
Opinion by: WEBSTER [**3] Subsequently, apparently so that they might appeal that
non-final order, appellants filed a notice voluntarily
of contract claim against appellee.
their breach
Opinion dismissing
The trial court then entered a final judgment dismissingall of
the counts against appellee with prejudice.As to the breach of
contract claim which appellantshad voluntarilydismissed, the
[*713] WEBSTER, J.
trial court noted that, because thatwas their second voluntary
dismissal as to appellee, the dismissal would constitute an
Appellants seek review of a judgment dismissing with
final
adjudication on the merits. See Fla. R. Civ. P. 1.420(a)(1)
prejudicetheir multi-count complaint filed in an action arising
out of a dispute regarding coverage pursuant to a policy of (statingthat a notice of voluntary dismissal "operates as an
title insurance issued by appellee. Because we conclude that adjudication on the merits when served by a plaintiffwho has
once dismissed in any court an action based on or including
appellantscould conceivably amend three of the counts to
state causes of we reverse the dismissal of those three the same claim").This appeal follows. Our standard of review
action,
remand with is, of course, de novo, and we are required to accept all
counts, and directions that the trial court permit
an amended complaint as to those counts
material factual allegations as true and draw all reasonable
appellantsto file
within a reasonable time, should appellants elect to do so. We
inferences in favor of the pleader. See, e.g., Hernandez v.
affirm the dismissal with prejudice of the remaining counts. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 841 (Fla. 1st
DCA 2005).
Not content merely to allege a breach of the insurance
a 34-count 77-page
As an initial matter, we note that, in their brief, appellants
contract, appellants filed complaint
have made substantive arguments directed only to counts 11,
against appellee and two related entities attempting to assert
Page 2 of 2
36 So. 3d 713, *714; 2010 Fla. App. LEXIS 4858, **3
12,14,18, 19,20,27,28,33 and 34. [**4] Accordingly,they without approval or disapproval,that some courts in Florida
have abandoned or waived any challenge to dismissal of the had refused to apply the economic loss rule to bar recovery on
remaining counts. See White H/hite, 627 So. 2d 1237, 1239
v. a claim for breach of fiduciary duty, "even if there was an
(Fla. 1st DCA 1993) (quoting from Polyglycoat Corp. v. underlying oral or written contract").Count 14 is a claim
Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA seeking to hold appellee responsible for breach of an oral
1983)). As counts appellants have addressed
to the contract between appellant Joseph Testa and appellee'sagent
substantively,we conclude that the trial court correctly to procure specificcoverage. While that count fails to plead
dismissed with prejudicecounts 11, 19, 20, 27, 28, and 33 as ultimate facts sufficient to identifythe terms of the alleged
barred by the economic loss doctrine. See, e.g., AFM Corp. v. oral contract, appellants may be able to amend to do so.
S. BeU Tel. & Tel Co., 515 So. 2d 180, 181-82 (Fla. 1987) Finally,count 18 attempts to allege a claim for promissory
(holding that, "without some conduct resultingin personal estoppel. While, again, ultimate facts [**7]are lacking,
injury or property damage, there can be no independent tort appellants may be able to supply them by amendment. See
flowing from a contractual breach which would justifya tort AIU Ins. Co. v. Block Marina Inv., Inc., 544 So. 2d 998, 1000
claim solelyfor economic losses");Indem. Ins. Co. ofN. Am. n.1 (Fla. 1989) (where the court noted that,in Crown L* Ins.
v. Am. Aviation, Inc., 891 2d 532, 542 (Fla. 2004)
So. Co. McBride, 517 So. 2d 660 (Fla.1987), it had "held that
v.
that
("reiterat[ing] when the partieshave negotiated remedies the doctrine of promissory estoppel may be utilized to create
fornonperformance pursuant to a contract, one party may not insurance coverage where to refuse to do so would sanction
seek to obtain a better bargain than it made by turning a fraud or other injustice").
breach of contract into a tort for economic loss"). While
Appellants asked the trial court for leave to file an amended
al?pellantsdid allege personal injuries,any such claim would
complaint. Tile trial court denied that request because it was
clearlybe barred by the impact doctrine. See, e.g, R.J. v.
Humana of Fla., Inc., 652 So. 2d 360, 362 (Fla. 1995) of the opinion that amendment would be futile as to all
claims. Because we conclude that amendment might not be
[**5] ("[i]Ilessence, the impact rule requires that 'before a
can recover damages for emotional distress caused by futile as to the claims sought to be asserted in counts 12, 14
plaintiff
the negligence of another, the emotional distress suffered and 18, and because appellantshave not previously amended
must flow from physical injuries the plaintiffsustained in an their cornl?laint,see Bill Williams Air Conditioning &
impmmquotingfmm Reynoldsv.State Farm Mut.Auto. Ins. Heating.Mc.v. Mmarket Coop.Bank,592 So.2d 302,305
Co., 611 So. 2d 1294, 1296 (Fla. 4th DCA 1992)). Here, the (Fla. 1st DCA 1991), we reverse the dismissal with prejudice
of counts 12, 14 and 18, and remand with directions that the
[*715] personal bjuries claimed were all alleged to have
been the trial court permit appellantsto file an amended complaint as
result of "emotional distress" resulting from
actions--there were no "physical injuries... to those counts within a reasonable time, should appellants
al?pellee's
sustained in an impact." Because appellant Joseph Testa's elect to do so. We affirm the dismissal with prejudice of all
counts against [**8] appellee.
reillaining
personal injuryclaims fail to state causes of action, appellant
Angela Testa's derivative loss of consortium claim (count 34)
AFFIRMED IN PART; REVERSED IN PART; and
also fails to state a cause of action. See, Foley,
e.g., Gates v.
247 So. 2d 40, 45 (Fla. 1971) (statingthat a wife's right of
REMANDED, with directions.
action for loss of consortium "is a derivative right and she
LEWIS and ROBERTS, JJ.,CONCUR.
may recover only if her husband has a cause of action against
the same defendant").
End of Document
We conclude further, however, that, although they have not
yet stated a cause of action because they have failed to plead
"ultimate facts" showing entitlement to relief, see Fla. R. Civ.
P. 1.110(b),appellants might [**6] conceivably be able to
stateone with regard to counts 12, 14 and 18. Count 12
appears to be a claim for vicarious liability because of a
breach of fiduciaryduty by appellee'sagent. While we think it
unlikely that appellants will be able to plead ultimate facts
sufficient to demonstrate the existence of a fiduciaryduty
toward them on the part of appellee's agent, it is not
inconceivable that they might. If they can, they may have a
viable cause of action. See Indem. Ins. Co. of N. Am. v. Am.
Aviation, Inc., 891 So. 2d 532, 542 (Fla. 2004) (noting,
Gold v. Cheker Oil Co.
Court of Appeal of Florida, Fourth District
October 12,1983
No. 82-1697
Reporter
**
438 So. 2d 1009 *; 1983 Fla. App. LEXIS 22457
husband injured as a proximate result of the negligence
SARAH GOLD, Appellant, v. CHEKER OIL COMPANY
of another shall have a rightof action againstthat same
and/or THE IMPERIAL FLORIDA OIL COMPANY,
person for her loss of consortium. We further hold that
Appellees
her right of action a derivative right and she may
is
recover only if her husband has a cause of action against
Prior History: [**1] Appeal from the Circuit Court for
the same defendant.
Broward County; Joseph E. Price, Jr.,Judge.
Counsel: Kathleen Phillipsof Law Offices of Neil Chonin,
P.A., Coral Gables, for Appellant.
Id. at 45.
Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan,
O'Hara, McCoy, Graham & Lane, Miami, for Appellees. The Workers' Compensation Statute provides an exclusive
remedy for an employee injured at work. The statute restricts
Judges: Dell, J. Anstead, C.J., and Beranek, J.,concur. the employee's recovery except as provided within Chapter
440 and precludes of the
further liability employer to a
Opinion by: DELL spouse. Chapter 440.11, Florida Statutes (1981) provides:
(1) The liabilityof an employer prescribedin s. 440.10
Opinion shall be exclusive and in place of all other liability
of
such employer to any third-party tortfeasor and to the
employee, the legal[**3] representative thereof,
[*1010] Sarah Gold appeals from a final summary judgment husband or wife, parents, dependents, next of kin, and
holding the Workers' Compensation Statute, Chapter 440, anyone otherwise entitled to recover damages from such
Florida Statutes (1981) barred her claim for loss of
employer at law or in admiralty on account of such
consortium as a result of her husband's injuries.
injuryor death,...
Appellant's husband sustained personal injuries at work, We find no argument that Section 440.11,
merit in appellant's
became disabled, and received Workers' Compensation Florida Statutes denies her access to the courts. The Supreme
benefits. againstappellee,her husband's
Appellant filed suit
Court created her right to claim damages for loss of
employer, seeking damages for loss of consortium. Appellee consortium but expresslylimited it to those cases where her
moved for summary judgment and asserted that because the husband had a cause of action against the same defendant.
wife's claim is purely derivative and the husband's exclusive common law
Since appellant'shusband has no right against
remedy is pursuant to Chapter 440, Florida Statutes, that she
appellee, his employer, his wife's derivative claim is also
could not recover as a matter of law. The trial court granted
precluded.
motion and this appeal followed.
appellee's
Therefore, we affirm the final summary judgment in favor of
Appellant contends this application of Chapter 440
appellee.
unconstitutionally denies her right of access [**2] to the
court for enforcement of her separate property rights. AFFIRMED.
The Supreme Court first recognized an equalrightof a wife to ANSTEAD, C.J., and BERANEK, J.,concur.
claim for the loss of consortium in Gates v. Foley, 247 So.2d
40 (Fla. 1971). However, the Court held the right to recover
for loss of consortium constituted a purely derivative claim. End of Document
The rule that we now recognize is that the wife of a
Chase v. Tenbroeck
Court of Appeal of Florida, Third District
May 26, 1981
No. 80-457
Reporter
**
399 So. 2d 57 *; 1981 Fla. App. LEXIS 20036
the construction of a warehouse, engaged Independent Steel
GEORGE C. CHASE, Appellant, v. CHRISTOPHER J.
Erectors, Inc. as subcontractor for erectingsteel. Independent
TENBROECK, CHRISTOPHER J.
individuallyand
Steel hired Chris Tenbroeck's Crane Rental to lift the steel.
TENBROECK d/b/a CHRIS TENBROECK'S CRANE
George Chase, an employee of Independent Steel, was injured
RENTAL and NORTHFIELD INSURANCE COMPANY,
when he fell between twenty and thirtyfeet after Christopher
Appellees
Tenbroeck, the sole proprietor[**2] of the crane rental
company, lowered metal decking onto joistswhich collapsed.
Subsequent History: [**1] Rehearing Denied June 17,
1981. Appellant collected workmen's compensation benefits from
Independent Steel Erectors. In a suit against Christopher
Tenbroeck and Chris Tenbroeck's Crane Rental and their
Prior History: On Appeal from the Circuit Court for Dade
insurer, appellant Chase sought damages prelieated upon
County, Rhea P. Grossman, Judge.
Christopher Tenbroeck's negligence. At the close of
Counsel: Jon W. Burke and Linda Dakis, Miami, for plaintiffscase, the trial court ruled that:
appellant.
Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami,
(T)he defendants are immune due to the
to liability
for appellees. Workmen's
exclusive remedy of under the
the plaintiff
Compensation Act.
HUBBART,
Judges: Before C. J.,and BASKIN and The trial court directed a verdict and entered summary
DANIEL S. PEARSON, JJ. judgment in favor of appellees.
Opinion by: BASKIN [**3] Chris Tenbroeck's Crane Rental was not an employee
of the steel erector; it was a subcontractor hired to perform
Opinion part of the work forwhich Independent Steel contracted. See
Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.ld 259
(Fla. 4th DCA 1980); C&S
Crane Service, Inc v. Negron,
287 So.2d 108 (Fla.3d DCA), cert. denied, 296 So.2d 49 (Fla.
[*58] The nature of immunity conferred on a subcontractor
1974). Central to our decision in this appeal is a determination
by the Workmen's Compensation Act, section 440, Florida
concerning whether Christopher Tenbroeck and Chris
Statutes (1975) in a negligence action brought by an injured
Tenbroeck's Crane Rental were statutory employees of a
construction worker is the subject of this appeal. We agree
"common employer", that is, subcontractors amenable to suit
with the trial court and hold that appellees were
subcontractors in a dependent vertical relationship with the
subcontractor that employed the injured worker and are
therefore immune from liability
under this statute.
improving it,or who takes over from a contractor as above defined
In 1976 SAC Construction Company, general contractor
1 '
for the entire remaining work under such contract.
...
(16) "Subcontractor" means a person other than a materialman or
1.
For definitions of the terms contractor, subcontractor, and
laborer who enters into a contract with a contractor for the
subsubcontractor, we turn to section 713.01, Florida Statutes (1975):
performance of any part of such contractor's contract.
...
(17) "Subsubcontractor" means a person other than a materialinan or
(2) "Contractor" means a person other than a materialman or laborer laborer who enters into a contract with a subcontractor for the
who enters into a contract with the owner of real property for performance of any part of such subcontractor's contract.
Page 2 of 3
399 So. 2d 57, *58; 1981 Fla. App. LEXIS 20036, **3
2
under sections 440.10 and 440.11, Florida Statutes (1975). [**6] In the case of first impression, McDonald v. Wilson
Welding Works, Inc., 370 So.2d 863 (Fla. 1st 1979), DCA
Formerly section 440.10(1) provided: Judge Ervin, specially concurring, discussed and interpreted
the amendment and its application. Although upon casual
In case a contractor sublets any part or parts of his observation the amendment appeared to change the exclusive
contract work to a subcontractor [**4] or status of the worker's compensation remedy by providing an
subcontractors, all of the employees of such contractor injured worker with an additional source for recovery of
and subcontractor or subcontractors engaged on such damages, Judge Ervin, in McDonald, analyzed pending
contract work shall be deemed to be employed in one litigationand reached a different conclusion. According to
and the same business or establishment, and the his reasoning, section 440.10 authorizes claims against
contractor shall be liable for and shall secure the subcontractors by employees of another subcontractor only if
payment of [*59] compensation to all such employees, the employers are independent (horizontal)subcontractors. If,
except to employees of a subcontractor who has secured however, one subcontractor is dependent on the other
such payment. subcontractor, immunity still exists. The degree of control
exercised by one subcontractor over the other is the
The legislatureamended section 440.10(1) in 1974 by adding: determinative factor.
A subcontractor is not liable for the payment of The degree of control exercised by Steelcon over Wilson
compensation to the employees of another subcontractor
Welding's operations is, in my view, the determinative
on such contract work and is not protected by the
factor. As stated in Smith v. Poston Equipment Rentals,
provisions of §.440.11 from
exclusiveness of liability
105 So.2d 578, 579 (Fla.3d DCA 1958):
action at law or in admiralty on account of injury of such
3
employee of another subcontractor. The appellant urges that in order to apply section
Section 440.11 provides in part: 440.11, supra, and thereupon find that workman's
compensation [**7] was the exclusive remedy, the
(1) The liability
of an employer prescribed in §.440.10 trial judge was required to find that Poston, who
shall be exclusive and in place of all other liabilityof
lent the men and equipment, was a subcontractor
such employer to any third party tortfeasor and to the
under section 440.10(1), supra. We do not think
employee, [**5] the legal representative thereof, that such a finding is a necessary step to affirm the
husband or wife, parents, dependents, next of kin, and order of the who were
trial judge. If the men, lent
anyone otherwise entitled to recover damages from such
Preview
Filing# 172771418 E-Filed 05/09/2023 03:17:13 PM Propst v. Neily Court of Appeal of Florida, Fourth District March 27,1985 No. 84-908 Reporter 467 So. 2d 398 *; 1985 Fla. App. LEXIS 13124 **; 10 Fla. L. Weekly 808 claim for damages by reason of injury, death, or MATTHIAS J. PROPST, Appellant, v. JOHN A. NEILY, monetary on account of allegedmalpracticeby any loss D.O., et al.,Appellees medical or osteopathic physician, podiatrist,hospital,or health maintenance organization; Subsequent History: [**1] Rehearing Denied May 9, 1985. The trial court's order granting the defendants' motion is the Prior History: Non-final appeal from the Circuit Court for subjectof this appeal. Broward County; Paul M. Marko, III,Judge. The zero verdict is not on appeal and the final judgment is silent as to the cause of action for loss of consortium. Neither Counsel: Guy B. Bailey,Jr.,and Mercedes C. Busto of of these factors is determinative of the issue on appeal Bailey & Dawes, Miami, for Appellant. although under different circumstances either or both might Bruce F. Simberg of Conroy & Simberg, P.A., Hollywood, bear on the result. for Appellee-John A. Neily. In order to analyze the position taken by Propst it is necessary Harry M. Hausman of David L. Kahn, P.A., Fort Lauderdale, to brieflyreview the nature of his cause of action. for Appellees-SunriseMedical Group, P.A., John F. Thesing, D.O., Stanley H. Frankowitz, D.O., James Yezbick, D.O., and Consortium has been defined as the "conjugal fellowship of David Miller, D.O. husband and wife, and the rightof each to the company, co- operation, affection, and aid of the other in every conjugal Judges: Hersey, J. Glickstein, J.,concurs. Barkett, J., relation." Black's Law Dictionary 382 (4th ed. 1951). dissents with opinion. At common law only the husband could recover for Opinion by: HERSEY loss [**3] of consortium. Extending a similar right to the wife, the court in Gates v. Foley, 247 So.2d 40 (Fla. 1971), Opinion explained the ramifications of this cause of action: Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, an appeal from an order determining that the companionship, conjugal life, fellowship,society and [*398] This is assistance so necessary to a successful marriage. defendants in a medical malpractice action were entitled to (Citationomitted.) attorney'sfees from one of the two plaintiffs. Myrtle E. Propst sued the defendants for injuriesalleged to have resulted from medical malpractice. Matthias J. Propst, her husband, joined in the complaint, alleging,inter alia, loss Id at 43. of consortium. The jury returned a special interrogatory The court further held that the rightis a derivative one "and verdict awarding money damages to Mrs. Propst and "zero she may recover only if her husband has a cause of action damages" to Mr. Propst. The defendants moved for an award against the same defendant." Id at 45. of attorney'sfees against Mr. Propst under section 768.56, Florida [**2] Statutes (1983). The relevant portion of that relyingon Davis I?rol?st, v. Asbell, 328 So.2d 204 (Fla. lst statute provides: DCA 1976), takes the position that since the cause of action is derivative, if the injured spouse prevails on the issue of (1) Except as otherwise provided by law, the court shall liabilityagainst a tortfeasor the other spouse prevails as a award a reasonable [*399] attorney's fee to the matter of law on the claim for loss of consortium. The Davis prevailingparty in any civil action which involves a case appears to be correctly cited for this proposition. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/09/2023 03:17:12 PM.**** Page 2 of 2 467 So. 2d 398, *399; 1985 Fla. App. LEXIS 13124, **3 However, subsequent case law, with which we agree, holds to I respectfullydissent. Although I would agree with the the contrary. H/hite Const. Co. v. DuPon4 430 So.2d 915 majority if there had been a separate trial solely on the (Fla. 1st DCA 1983); Albritton v. State Farm Mut. Auto. Ins. derivative claim, I would not apply section 768.56, Co., 382 So.2d 1267 (Fla. 2d DCA 1980). [**4] In the Florida [**6] Statutes (1983), to the fact situation before us. Albritton case the court acknowledges the rule that a In this case, the claim of a wife bringing an action in derivative claim is barred by an adverse judgment on the negligence was consolidated with her husband's claim for loss direct or primary claim but pointsout that "the converse is not of consortium. Both husband and wife were representedby necessarilythe case." Id at 1268. The holding is that, given the same lawyer at the same trial. Only a miniscule portionof the predicate of injury to one spouse, it does not necessarily the trial was devoted to the husband's derivative claim. Mrs. follow as a matter of law that the other spouse has a claim for Propst, allegingdirect injury,received a damage award but loss of consortium. In addition to the underlying injury,the Mr. Propst, alleging loss of consortium, did not. This spouse claiming loss of consortium "must present competent situation seems analogous to a situation in which a party filing testimony concerning the impact which the accident had on a multicount complaint prevails on only one count of that the marital relationshipand, more specifically,evidence complaint. In such a situation,the party filingthe complaint concerning [the] loss of consortium." Id Under this holding, is, for purposes of awarding costs under section 57.041(1), which we approve, Propst does not automatically prevail on Florida Statutes (1979), the "party recovering judgment." simply because his spouse prevailedon the issue of liability Hendg Tractor Company v. Fernandez, 432 So.2d 1315 (Fla. her claims and he does not contend that he presented the 1983). This same logic,in my opinion, should be applied to requisite evidence. this case. Lastly, I do not see that this result furthers the purpose of section 768.56, Florida Statutes, which is to Propst also argues that one who prevails on the issue of from bringing non-meritorious claims. I discourageplaintiffs liabilityis the prevailing party regardless of the amount of would reverse the award of attorney's fees against Mr. damages assessed. He relies on two cases for this proposition. I?ropst[**7] linder these circumstances. We distinguishboth. In Blue v. Williams, 200 So.2d 626,627 (Fla. 3d DCA 1967), the jury found "for the Plaintiff... and [**5] assess[ed] his damages in the sum of zero . . . End of Document Dollars." The Propst jury made no such findingof liability. In Ra#W Magarian, 165 So.2d 249 (Fla. 3d DCA 1964), a v. summary judgment for plaintiffon the issue of liabilitywas followed by a jury verdict of zero damages. Plaintiff was entitled to costs by virtue of the judgment on liability. Again there is no parallelin the present case. Neither the court nor the jury made a findingon the issue of liability. Thus, even if the Blue and Ra#W cases were applicable here the result would simply be to render the zero verdict a non-factor in making a determination as to who is the prevailing party. This is so because Propst has not supported the initial premise [*400] of his argument, that is: that he prevailed on the issue of liability. Appellant, Propst, having failed to carry his burden of showing error, the order is affirmed. GLICKSTEIN, J.,concurs. BARKETT, J., dissents with opinion. Dissent by: BARKETT Dissent BARKETT, J.,dissenting. Testa v. Southern Escrow & Title,LLC Court of Appeal of Florida, First District April 13, 2010, Opinion Filed CASE NO. 1D09-4521 Reporter 36 So. 3d 713 *; 2010 Fla. App. LEXIS 4858 **; 35 Fla. L. Weekly D 824 causes of action for negligence, fraud, breach of fiduciary JOSEPH P. TESTA and his wife, ANGELA TESTA, duty, equitable and promissory [**2] estoppel, intentional SOUTHERN ESCROW AND TITLE, LLC, Appellants, v. infliction of emotional distress, violations of the Florida COMMONWEALTH LAND TITLE INSURANCE CO., and Deceptive and Unfair Trade Practices Act and the federal LANDAMERICA FINANCIAL GROUP, INC., Appellees. Racketeer and Corrupt Organizations Act, and a claim for [*714] loss of consortium by appellantAngela Testa. See Subsequent History: Released for Publication June 9, 2010. Gordon v. Green, 602 F.2d 743, 747 n. 13 (5th Cir. 1979) Rehearing denied by Testa v. Southern Escrow & Title, LLC, (where, chastising a plaintiffs attorneys for their utter 2010 Fla. App. LEXIS 8957 (Fla.Dist. Ct. App. 1 st Dist., disregardfor the Federal Rules of Civil Procedure in drafting May 24, 2010) a complaint, the court said that "[c]ounsel as scrivener would have been fair game for the discipline meted out by" an Prior History: [**1] An appeal from the Circuit Court for English Chancellor in 1596--ordering a hole cut through the Okaloosa County. John T. Brown, Judge. center of a particularlyprolix document, and then ordering that the drafter's head be stuffed through the hole and the Counsel: Richard W. Reno, Crawfordville, for Appellants. drafter led around to be exhibited to all attending court at Mark A. Brown, Joseph Hagedom Lang, Jr.,and Marty J. Westminster). During a hearing on the defendants' motions to Solomon of Carlton Fields, P.A., Tampa, for Appellee dismiss, the trial court said that it appeared that all appellants Commonwealth Land Title Insurance Co. had was a breach of contract claim againstappellee and a breach of fiduciaryduty claim againstthe defendant escrow WEBSTER, J. LEWIS and ROBERTS, Judges: JJ., agent. The court said that, therefore, it intended to dismiss the CONCUR. remaining counts with prejudice,as barred by the economic loss doctrine, and entered an order to that effect. Opinion by: WEBSTER [**3] Subsequently, apparently so that they might appeal that non-final order, appellants filed a notice voluntarily of contract claim against appellee. their breach Opinion dismissing The trial court then entered a final judgment dismissingall of the counts against appellee with prejudice.As to the breach of contract claim which appellantshad voluntarilydismissed, the [*713] WEBSTER, J. trial court noted that, because thatwas their second voluntary dismissal as to appellee, the dismissal would constitute an Appellants seek review of a judgment dismissing with final adjudication on the merits. See Fla. R. Civ. P. 1.420(a)(1) prejudicetheir multi-count complaint filed in an action arising out of a dispute regarding coverage pursuant to a policy of (statingthat a notice of voluntary dismissal "operates as an title insurance issued by appellee. Because we conclude that adjudication on the merits when served by a plaintiffwho has once dismissed in any court an action based on or including appellantscould conceivably amend three of the counts to state causes of we reverse the dismissal of those three the same claim").This appeal follows. Our standard of review action, remand with is, of course, de novo, and we are required to accept all counts, and directions that the trial court permit an amended complaint as to those counts material factual allegations as true and draw all reasonable appellantsto file within a reasonable time, should appellants elect to do so. We inferences in favor of the pleader. See, e.g., Hernandez v. affirm the dismissal with prejudice of the remaining counts. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 841 (Fla. 1st DCA 2005). Not content merely to allege a breach of the insurance a 34-count 77-page As an initial matter, we note that, in their brief, appellants contract, appellants filed complaint have made substantive arguments directed only to counts 11, against appellee and two related entities attempting to assert Page 2 of 2 36 So. 3d 713, *714; 2010 Fla. App. LEXIS 4858, **3 12,14,18, 19,20,27,28,33 and 34. [**4] Accordingly,they without approval or disapproval,that some courts in Florida have abandoned or waived any challenge to dismissal of the had refused to apply the economic loss rule to bar recovery on remaining counts. See White H/hite, 627 So. 2d 1237, 1239 v. a claim for breach of fiduciary duty, "even if there was an (Fla. 1st DCA 1993) (quoting from Polyglycoat Corp. v. underlying oral or written contract").Count 14 is a claim Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA seeking to hold appellee responsible for breach of an oral 1983)). As counts appellants have addressed to the contract between appellant Joseph Testa and appellee'sagent substantively,we conclude that the trial court correctly to procure specificcoverage. While that count fails to plead dismissed with prejudicecounts 11, 19, 20, 27, 28, and 33 as ultimate facts sufficient to identifythe terms of the alleged barred by the economic loss doctrine. See, e.g., AFM Corp. v. oral contract, appellants may be able to amend to do so. S. BeU Tel. & Tel Co., 515 So. 2d 180, 181-82 (Fla. 1987) Finally,count 18 attempts to allege a claim for promissory (holding that, "without some conduct resultingin personal estoppel. While, again, ultimate facts [**7]are lacking, injury or property damage, there can be no independent tort appellants may be able to supply them by amendment. See flowing from a contractual breach which would justifya tort AIU Ins. Co. v. Block Marina Inv., Inc., 544 So. 2d 998, 1000 claim solelyfor economic losses");Indem. Ins. Co. ofN. Am. n.1 (Fla. 1989) (where the court noted that,in Crown L* Ins. v. Am. Aviation, Inc., 891 2d 532, 542 (Fla. 2004) So. Co. McBride, 517 So. 2d 660 (Fla.1987), it had "held that v. that ("reiterat[ing] when the partieshave negotiated remedies the doctrine of promissory estoppel may be utilized to create fornonperformance pursuant to a contract, one party may not insurance coverage where to refuse to do so would sanction seek to obtain a better bargain than it made by turning a fraud or other injustice"). breach of contract into a tort for economic loss"). While Appellants asked the trial court for leave to file an amended al?pellantsdid allege personal injuries,any such claim would complaint. Tile trial court denied that request because it was clearlybe barred by the impact doctrine. See, e.g, R.J. v. Humana of Fla., Inc., 652 So. 2d 360, 362 (Fla. 1995) of the opinion that amendment would be futile as to all claims. Because we conclude that amendment might not be [**5] ("[i]Ilessence, the impact rule requires that 'before a can recover damages for emotional distress caused by futile as to the claims sought to be asserted in counts 12, 14 plaintiff the negligence of another, the emotional distress suffered and 18, and because appellantshave not previously amended must flow from physical injuries the plaintiffsustained in an their cornl?laint,see Bill Williams Air Conditioning & impmmquotingfmm Reynoldsv.State Farm Mut.Auto. Ins. Heating.Mc.v. Mmarket Coop.Bank,592 So.2d 302,305 Co., 611 So. 2d 1294, 1296 (Fla. 4th DCA 1992)). Here, the (Fla. 1st DCA 1991), we reverse the dismissal with prejudice of counts 12, 14 and 18, and remand with directions that the [*715] personal bjuries claimed were all alleged to have been the trial court permit appellantsto file an amended complaint as result of "emotional distress" resulting from actions--there were no "physical injuries... to those counts within a reasonable time, should appellants al?pellee's sustained in an impact." Because appellant Joseph Testa's elect to do so. We affirm the dismissal with prejudice of all counts against [**8] appellee. reillaining personal injuryclaims fail to state causes of action, appellant Angela Testa's derivative loss of consortium claim (count 34) AFFIRMED IN PART; REVERSED IN PART; and also fails to state a cause of action. See, Foley, e.g., Gates v. 247 So. 2d 40, 45 (Fla. 1971) (statingthat a wife's right of REMANDED, with directions. action for loss of consortium "is a derivative right and she LEWIS and ROBERTS, JJ.,CONCUR. may recover only if her husband has a cause of action against the same defendant"). End of Document We conclude further, however, that, although they have not yet stated a cause of action because they have failed to plead "ultimate facts" showing entitlement to relief, see Fla. R. Civ. P. 1.110(b),appellants might [**6] conceivably be able to stateone with regard to counts 12, 14 and 18. Count 12 appears to be a claim for vicarious liability because of a breach of fiduciaryduty by appellee'sagent. While we think it unlikely that appellants will be able to plead ultimate facts sufficient to demonstrate the existence of a fiduciaryduty toward them on the part of appellee's agent, it is not inconceivable that they might. If they can, they may have a viable cause of action. See Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 542 (Fla. 2004) (noting, Gold v. Cheker Oil Co. Court of Appeal of Florida, Fourth District October 12,1983 No. 82-1697 Reporter ** 438 So. 2d 1009 *; 1983 Fla. App. LEXIS 22457 husband injured as a proximate result of the negligence SARAH GOLD, Appellant, v. CHEKER OIL COMPANY of another shall have a rightof action againstthat same and/or THE IMPERIAL FLORIDA OIL COMPANY, person for her loss of consortium. We further hold that Appellees her right of action a derivative right and she may is recover only if her husband has a cause of action against Prior History: [**1] Appeal from the Circuit Court for the same defendant. Broward County; Joseph E. Price, Jr.,Judge. Counsel: Kathleen Phillipsof Law Offices of Neil Chonin, P.A., Coral Gables, for Appellant. Id. at 45. Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Miami, for Appellees. The Workers' Compensation Statute provides an exclusive remedy for an employee injured at work. The statute restricts Judges: Dell, J. Anstead, C.J., and Beranek, J.,concur. the employee's recovery except as provided within Chapter 440 and precludes of the further liability employer to a Opinion by: DELL spouse. Chapter 440.11, Florida Statutes (1981) provides: (1) The liabilityof an employer prescribedin s. 440.10 Opinion shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal[**3] representative thereof, [*1010] Sarah Gold appeals from a final summary judgment husband or wife, parents, dependents, next of kin, and holding the Workers' Compensation Statute, Chapter 440, anyone otherwise entitled to recover damages from such Florida Statutes (1981) barred her claim for loss of employer at law or in admiralty on account of such consortium as a result of her husband's injuries. injuryor death,... Appellant's husband sustained personal injuries at work, We find no argument that Section 440.11, merit in appellant's became disabled, and received Workers' Compensation Florida Statutes denies her access to the courts. The Supreme benefits. againstappellee,her husband's Appellant filed suit Court created her right to claim damages for loss of employer, seeking damages for loss of consortium. Appellee consortium but expresslylimited it to those cases where her moved for summary judgment and asserted that because the husband had a cause of action against the same defendant. wife's claim is purely derivative and the husband's exclusive common law Since appellant'shusband has no right against remedy is pursuant to Chapter 440, Florida Statutes, that she appellee, his employer, his wife's derivative claim is also could not recover as a matter of law. The trial court granted precluded. motion and this appeal followed. appellee's Therefore, we affirm the final summary judgment in favor of Appellant contends this application of Chapter 440 appellee. unconstitutionally denies her right of access [**2] to the court for enforcement of her separate property rights. AFFIRMED. The Supreme Court first recognized an equalrightof a wife to ANSTEAD, C.J., and BERANEK, J.,concur. claim for the loss of consortium in Gates v. Foley, 247 So.2d 40 (Fla. 1971). However, the Court held the right to recover for loss of consortium constituted a purely derivative claim. End of Document The rule that we now recognize is that the wife of a Chase v. Tenbroeck Court of Appeal of Florida, Third District May 26, 1981 No. 80-457 Reporter ** 399 So. 2d 57 *; 1981 Fla. App. LEXIS 20036 the construction of a warehouse, engaged Independent Steel GEORGE C. CHASE, Appellant, v. CHRISTOPHER J. Erectors, Inc. as subcontractor for erectingsteel. Independent TENBROECK, CHRISTOPHER J. individuallyand Steel hired Chris Tenbroeck's Crane Rental to lift the steel. TENBROECK d/b/a CHRIS TENBROECK'S CRANE George Chase, an employee of Independent Steel, was injured RENTAL and NORTHFIELD INSURANCE COMPANY, when he fell between twenty and thirtyfeet after Christopher Appellees Tenbroeck, the sole proprietor[**2] of the crane rental company, lowered metal decking onto joistswhich collapsed. Subsequent History: [**1] Rehearing Denied June 17, 1981. Appellant collected workmen's compensation benefits from Independent Steel Erectors. In a suit against Christopher Tenbroeck and Chris Tenbroeck's Crane Rental and their Prior History: On Appeal from the Circuit Court for Dade insurer, appellant Chase sought damages prelieated upon County, Rhea P. Grossman, Judge. Christopher Tenbroeck's negligence. At the close of Counsel: Jon W. Burke and Linda Dakis, Miami, for plaintiffscase, the trial court ruled that: appellant. Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, (T)he defendants are immune due to the to liability for appellees. Workmen's exclusive remedy of under the the plaintiff Compensation Act. HUBBART, Judges: Before C. J.,and BASKIN and The trial court directed a verdict and entered summary DANIEL S. PEARSON, JJ. judgment in favor of appellees. Opinion by: BASKIN [**3] Chris Tenbroeck's Crane Rental was not an employee of the steel erector; it was a subcontractor hired to perform Opinion part of the work forwhich Independent Steel contracted. See Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.ld 259 (Fla. 4th DCA 1980); C&S Crane Service, Inc v. Negron, 287 So.2d 108 (Fla.3d DCA), cert. denied, 296 So.2d 49 (Fla. [*58] The nature of immunity conferred on a subcontractor 1974). Central to our decision in this appeal is a determination by the Workmen's Compensation Act, section 440, Florida concerning whether Christopher Tenbroeck and Chris Statutes (1975) in a negligence action brought by an injured Tenbroeck's Crane Rental were statutory employees of a construction worker is the subject of this appeal. We agree "common employer", that is, subcontractors amenable to suit with the trial court and hold that appellees were subcontractors in a dependent vertical relationship with the subcontractor that employed the injured worker and are therefore immune from liability under this statute. improving it,or who takes over from a contractor as above defined In 1976 SAC Construction Company, general contractor 1 ' for the entire remaining work under such contract. ... (16) "Subcontractor" means a person other than a materialman or 1. For definitions of the terms contractor, subcontractor, and laborer who enters into a contract with a contractor for the subsubcontractor, we turn to section 713.01, Florida Statutes (1975): performance of any part of such contractor's contract. ... (17) "Subsubcontractor" means a person other than a materialinan or (2) "Contractor" means a person other than a materialman or laborer laborer who enters into a contract with a subcontractor for the who enters into a contract with the owner of real property for performance of any part of such subcontractor's contract. Page 2 of 3 399 So. 2d 57, *58; 1981 Fla. App. LEXIS 20036, **3 2 under sections 440.10 and 440.11, Florida Statutes (1975). [**6] In the case of first impression, McDonald v. Wilson Welding Works, Inc., 370 So.2d 863 (Fla. 1st 1979), DCA Formerly section 440.10(1) provided: Judge Ervin, specially concurring, discussed and interpreted the amendment and its application. Although upon casual In case a contractor sublets any part or parts of his observation the amendment appeared to change the exclusive contract work to a subcontractor [**4] or status of the worker's compensation remedy by providing an subcontractors, all of the employees of such contractor injured worker with an additional source for recovery of and subcontractor or subcontractors engaged on such damages, Judge Ervin, in McDonald, analyzed pending contract work shall be deemed to be employed in one litigationand reached a different conclusion. According to and the same business or establishment, and the his reasoning, section 440.10 authorizes claims against contractor shall be liable for and shall secure the subcontractors by employees of another subcontractor only if payment of [*59] compensation to all such employees, the employers are independent (horizontal)subcontractors. If, except to employees of a subcontractor who has secured however, one subcontractor is dependent on the other such payment. subcontractor, immunity still exists. The degree of control exercised by one subcontractor over the other is the The legislatureamended section 440.10(1) in 1974 by adding: determinative factor. A subcontractor is not liable for the payment of The degree of control exercised by Steelcon over Wilson compensation to the employees of another subcontractor Welding's operations is, in my view, the determinative on such contract work and is not protected by the factor. As stated in Smith v. Poston Equipment Rentals, provisions of §.440.11 from exclusiveness of liability 105 So.2d 578, 579 (Fla.3d DCA 1958): action at law or in admiralty on account of injury of such 3 employee of another subcontractor. The appellant urges that in order to apply section Section 440.11 provides in part: 440.11, supra, and thereupon find that workman's compensation [**7] was the exclusive remedy, the (1) The liability of an employer prescribed in §.440.10 trial judge was required to find that Poston, who shall be exclusive and in place of all other liabilityof lent the men and equipment, was a subcontractor such employer to any third party tortfeasor and to the under section 440.10(1), supra. We do not think employee, [**5] the legal representative thereof, that such a finding is a necessary step to affirm the husband or wife, parents, dependents, next of kin, and order of the who were trial judge. If the men, lent anyone otherwise entitled to recover damages from such