Opinion
No. 62596.
March 24, 1983.
Original Proceeding — Florida Rules of Civil Procedure.
Marjorie Gadarian Graham of Jones Foster, West Palm Beach, for The Florida Defense Lawyers Assn.
John E. Thrasher, Legal Counsel, Jacksonville, for Florida Physicians' Ins. Reciprocal.
Stephen Rossman of Rossman Baumberger, Miami, and Sammy Cacciatore of Nance, Cacciatore Sisserson, Melbourne, Stephen M. Masterson, Tallahassee, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow Olin, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
This cause is before the Court as an original proceeding pursuant to our rulemaking authority under article V, section 2(a), Florida Constitution. The issue is the continued appropriateness of Florida Rule of Civil Procedure 1.450(e) or, alternatively, the formulation of a similar rule for other types of actions. Rule 1.450(e) states:
(e) Reference to Insurance in Medical Malpractice Actions. In any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, to insurance coverage, or to the joinder of an insurer as co-defendant in the suit.
The invitation to further consider this rule emanated from our decision reviewing the 1980 civil rules coupled with our decision in Aldana v. Holub, 381 So.2d 231 (Fla. 1980). At this time we decline to abolish the rule or to adopt a similar rule for other types of actions.
The Florida Bar. In Re Rules of Civil Procedure, 391 So.2d 165 (Fla. 1980).
Rule 1.450(e) followed the 1975 legislative enactment of section 768.133(10) in chapter 75-9, Laws of Florida, section 5 (transferred to section 768.134 by the Statutory Revision Division and currently located in section 768.47). The 1975 legislative enactment stated: "Furthermore, in any civil medical malpractice action, the trial on the merits shall be conducted without any reference to insurance, insurance coverage or joinder in the suit of the insurer as a co-defendant." In Carter v. Sparkman, 335 So.2d 802 (Fla. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977), overruled, Aldana v. Holub, 381 So.2d 231 (Fla. 1980), as stated in McCarthy v. Mensch, 412 So.2d 343 (Fla. 1982), we held that in enacting that provision the legislature had trespassed upon the Court's rule-making authority, but stated:
In view of the apparent wisdom of continuing the policy expressed in the questionable portion of this statute, we adopt the substance of the portion of Section 768.134(1), Florida Statutes (1975), as a rule of procedure for all medical malpractice trials conducted or in process under the statute.
335 So.2d at 806. Rule 1.450(e) was then enunciated.
Section 768.133, Florida Statutes (1975), held constitutional in Carter, referred to the mediation procedure required as a condition precedent of bringing a malpractice action. It was subsequently renumbered as section 768.44. Section 768.134 dealt with the prohibition of reference to insurance in a jury trial; it was renumbered as section 768.47. In Aldana we dealt with section 768.44, the mediation procedure section. We held that experience indicated that the mediation requirement could not be constitutionally applied and ruled that section 768.44 violated the due process clause of the United States and Florida Constitutions. We did not mention, modify, or explain in any manner section 768.47. We rightly did not do so because sections 768.44 and 768.47 are severable. Aldana does not affect in any manner the public policy reasons which led to the creation of civil rule 1.450(e), governing the trial of a medical malpractice action. Our assault was on the pre-trial required mediation procedure. The public policy reasons, valid before, survive Aldana and remain intact.
The enactment of rule 1.450(e), however, was contrary to other rulings of this Court concerning the joinder of insurance companies. This Court, in Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), established the principle that a plaintiff, as a third-party beneficiary of a motor vehicle liability policy, had a direct cause of action against the insurer and could join the insurer as a party defendant along with the insured. Shingleton also stated that it is better to have "all the cards . . . on the table," Id. at 720, because
We make no intimation in this proceeding of the constitutionality of ch. 82-243, § 542, Laws of Fla., codified as § 627.7262 Fla. Stat. (Supp. 1982), providing for nonjoinder of insurers in liability insurance actions.
the stage has now been reached where juries are more mature. Accordingly, a candid admission at trial of the existence of insurance coverage, the policy limits of same, and an otherwise aboveboard revelation of the interest of an insurer in the outcome of the recovery action against insured should be . . . beneficial. . . .Id. at 718.
That decision was followed the next year by Beta Eta House Corp. v. Gregory, 237 So.2d 163 (Fla. 1970), overruled, Godshall v. Unigard Insurance Co., 281 So.2d 499 (Fla. 1973), as stated in Price v. School Board, 342 So.2d 1039 (Fla. 4th DCA 1977), rev'd, 362 So.2d 1337 (Fla. 1978). Beta Eta House both expanded and restricted Shingleton. Concerning the expansion, we held that the principles announced in Shingleton were applicable not solely to automobile liability insurance but also to other forms of liability insurance as well. As far as restricting Shingleton, we stated that "[t]he existence or amount of insurance coverage has no bearing on the issues of liability and damages, and such evidence should not be considered by the jury." 237 So.2d at 165.
The following year in Stecher v. Pomeroy, 253 So.2d 421 (Fla. 1971), we said that policy limits should not be disclosed to the jury, but "absent a justiciable issue relating to insurance, such as a question of coverage or of the applicability or interpretation of the insurance policy or other such valid dispute on the matter of insurance coverage, there is no valid reason for a severance and it should NOT be granted." Id. at 424 (emphasis in original). Moreover, in 1973 this Court in Godshall v. Unigard Insurance Co., 281 So.2d 499, 502 (Fla. 1973), noted that "[t]he interest which plaintiff has in presenting to the jury the truest possible picture of the existence of financial responsibility is much too important to allow the loss of that interest, through the granting of severance for any reason except those enumerated in Stecher" and held the severance there to be reversible error.
Markert v. Johnston, 367 So.2d 1003 (Fla. 1978), was decided in 1978 and should be mentioned. In that case we again considered a statute, section 627.7262, Florida Statutes (1977), designed to bar the joinder of the liability insurer as a defendant in a lawsuit against his insured, limited this time to motor vehicles. The Court, as it did in Sparkman, held the statute an invasion of our rulemaking authority in violation of article II, section 3 of the Florida Constitution, and therefore invalid. Despite the importunities expressed in the concurring opinion of Justice Alderman that the Court adopt the substance of section 627.7262 as a rule of procedure, similar to what it did in Sparkman, the Court declined to do so. In Cozine v. Tullo, 394 So.2d 115 (Fla. 1981), in discussing the constitutionality of section 768.045, Florida Statutes (1977), which prohibited the joinder of a liability insurer in an action to determine the insured's liability, we followed Markert and declared the statute unconstitutional because it trespassed upon this Court's exclusive rulemaking authority. Three members of the Court dissented in Cozine.
Once this Court has charted a course we should not alter it simply because the crew has changed and the new members disagree with the selected course. If, however, our actions create repetitive disagreements with the legislature, we should consider their views and review ours to assure that the course taken is the proper one. In the Shingleton line of cases we allowed the joinder and mention of insurance in tort claims. The legislature has, subsequent to those cases, enacted legislation seeking to prevent the joinder of or making reference to insurance companies. We have consistently ruled such statutes unconstitutional because they impinge on this Court's rule-making power. We have recognized the acts of the legislature as being pronouncements of public policy in medical claims and have followed them with the rule under consideration, but have not done so in other type claims.
We recognize that there is disparate treatment, but we are unable to resolve our dilemma. A majority of our members is unwilling to repeal the rule with the attendant result of allowing reference to insurance in medical claims. A majority is likewise unwilling to extend the prohibition to all claims.
There are some additional contributing factors to our indecision. Normally, rule changes are made but every four years. We will soon be presented with proposed revisions to our rules. We can, and most likely will, revisit this issue when we consider those proposed changes. The legislature in the 1982 session again enacted a "nonjoinder" statute. § 627.7262, Fla. Stat. (Supp. 1982). The constitutionality of that statute will undoubtedly be presented to this Court. Our response to that suit could resolve the issue of whether there should be a court rule allowing or disallowing the joinder or mention of insurance.
We therefore decline to abolish or modify civil rule 1.450(e) at this time.
It is so ordered.
ALDERMAN, C.J., and OVERTON, McDONALD and SHAW, JJ., concur.
ALDERMAN, C.J., and SHAW, J., concur specially with opinions.
EHRLICH, J., dissents with an opinion, with which ADKINS and BOYD, JJ., concur.
I agree that we should not abolish Florida Rule of Civil Procedure 1.450(e). But I believe that we should resolve this issue finally now and not leave the question open for revisitation when we consider rule changes in the normal four-year cycle. The valid public policy reasons which prompted our promulgation of this rule in Carter v. Sparkman, 335 So.2d 802 (Fla. 1976), still exist. Indisputably, recovery against a health care provider should be founded on an objective finding of actionable negligence. Reference to insurance coverage most definitely has the improper effect of increasing the likelihood of jury verdicts, not only in medical malpractice cases but also in other civil litigation, particularly automobile accident cases. Insurance coverage should never be permitted to affect the outcome of a case.
I also disagree with the majority's decision not to adopt at this time a rule similar to rule 1.450(e) for other types of actions. This rule not only should apply in malpractice cases but also should be extended to apply in other actions. In my concurring specially opinion in Markert v. Johnston, 367 So.2d 1003 (Fla. 1978), I made my view on this matter clear. Although I agreed that section 627.7262, Florida Statutes (1977), proscribing the joinder of motor vehicle liability insurers as defendants in suits brought against their insureds, was unconstitutional in that it impermissibly encroached on the judiciary's procedural rule-making prerogative, I stated that I would adopt the substance of section 627.7262 as a rule of procedure because of the wisdom of the legislation and because it is a legislative expression of the public policy of this state.
The legislature has clearly expressed the public policy of this state: Liability insurance coverage should in no way affect the judicial determination of liability and damages in a lawsuit. The reason for this policy is obvious: There is a real danger that jurors may be influenced if they know whether the defendant in the case they are deciding has liability insurance coverage.
Other members of this Court in the past have said that we should recognize this public policy. Justice McDonald, in a recent dissenting opinion with which Justice Overton and I concurred, stated:
The presence or absence of an insurance company in a suit should not affect either liability or damages, but few people truly feel that it does not. Sometimes an injured party loses or is awarded less than he is entitled to, unless the insurance company is a party, because the jury is apprehensive of a verdict's impact on the defendant; sometimes a higher verdict is returned simply because an insurance company is named.Cozine v. Tullo, 394 So.2d 115, 116 (Fla. 1981) (McDonald, J., dissenting) (emphasis supplied).
I can think of no valid reason why there should be any reference to liability insurance coverage in any case. I therefore, without further delay, would adopt a rule similar to rule 1.450(e) for other types of actions.
I agree with the majority opinion insofar as it declines to abolish or modify the Florida Rule of Civil Procedure 1.450(e). Although the opinion seems to imply that the rule under consideration prohibits the joinder of an insurer as co-defendant in a civil medical malpractice trial, this is not the case. Rule 1.450(e) merely deals with "references" to insurers and not to joinder. This was made clear in our decision in Sparkman which is cited with approval in the majority opinion. In Sparkman this Court recognized that the legislative enactment of section 768.133(10) of chapter 75-9, Laws of Florida, was never an intent to bar the joinder of insurers as co-defendants. The legislative purpose was to bar reference to the joinder of insurers rather than actual joinder. In adopting rule 1.450(e) the Court recognized the wisdom of the expressed legislative policy. It follows that the attendant constraints expressed in that policy were embraced in our adoption of rule 1.450(e) as a rule of procedure. With this clarification, I concur in the majority opinion.
I dissent from the judgment of the Court and the opinion of the majority.
In 1976, this Court decided Carter v. Sparkman. At issue was the constitutionality of chapter 75-9, Laws of Florida, the Medical Malpractice Reform Act. Of cardinal significance was the fact that the legislature perceived a crisis in health care delivery since "there was an imminent danger that a drastic curtailment in the availability of health care services would occur in this state." 335 So.2d at 805. In an attempt to resolve the crisis which it found to exist, the legislature exercised its police power and enacted a comprehensive remedial package revolving around medical mediation panels. This Court upheld the constitutionality of that legislative program with but one exception. Section 768.133(10) of chapter 75-9, Laws of Florida, provided that in a civil medical malpractice action, the trial on the merits would be conducted without any reference to insurance, insurance coverage, or joinder of an insurer as a co-defendant. We specifically noted that "[t]he Legislature intended to bar only `any reference' to the joinder of insurers rather than the joinder itself." 335 So.2d at 806. We held that section unconstitutional, however, because such references during the course of a trial are purely procedural; for the legislature to attempt to control "references" in this regard was beyond its powers.
In a move apparently grounded in a combination of the rarely used police power inherent in the judiciary, Petition of Florida State Bar Association, 40 So.2d 902 (Fla. 1949), as well as the Court's constitutional rulemaking authority, this Court then singularly adopted the substance of the then-unconstitutional section 768.133(10) as a rule of procedure. That rule was designated as rule 1.450(e), the rule at issue today. We adopted the rule "[i]n view of the apparent wisdom of continuing the policy expressed in the questionable portion of this statute." 335 So.2d at 806. Our referent was the public health crisis so vividly found by the legislature.
At the time of Sparkman this Court was not unmindful of its holdings in Shingleton and its progeny: the joinder of the liability insurer as a real party in interest so as to reflect financial responsibility, the free disclosure of the identity of the insurer during trial, and a proscription against severance of the insurer absent stated reasons relating to coverage. Nonetheless, Sparkman carried an exception to the Shingleton rule in adopting rule 1.450(e) in that it would apply only in civil medical malpractice actions, and to no other type of action. In adopting this rule, the Court did not recede from Shingleton or its progeny. Our adoption of rule 1.450(e) in Sparkman was unique and exceptional.
This Court obviously had some question about the effect of Aldana on rule 1.450(e) and solicited the views of the Civil Procedure Rules Committee of The Florida Bar as well as other interested parties concerning the continuing effectiveness of this rule as well as a similar rule for other types of action, and requested that proposals on this issue be submitted to the Court as soon as practicable. After a prolonged delay, in 1982 the Civil Procedure Rules Committee recommended by a unanimous vote that rule 1.450(e) be deleted, and by a vote of 15-6 that the rule not be extended to other types of action. Other parties also submitted briefs, letters and resolutions, both in favor of and against rule deletion and the adoption of a similar rule for other types of actions. The Court now says that "the public policy reasons" which prompted the adoption of the rule still exist. Presumably, the Court is referring to the enactment by the 1975 legislature of section 768.133. In my view, Aldana administered the coup de grace to any such public policy rationale which may have prompted the Court to adopt rule 1.450(e), when we view Shingleton and its progeny.
The Fla. Bar. In Re Rules of Civil Procedure, 391 So.2d 165 (Fla. 1980).
By its holdings in Markert and Cozine, handed down subsequent to Aldana, the Court reaffirmed the viability of Shingleton. In the instant case, however, the Court continues to carve out an exception in medical malpractice claims without any rational precedential justification except to say that the four-year cycle for reviewing proposed rule changes will soon be upon us and we can readdress the issue at that time, and that surely someone will challenge the constitutionality of section 627.7262, Florida Statutes (Supp. 1982), and that such action will give the Court the further opportunity to revisit the issue. I perceive the role of the Court to be to address and resolve issues as and when they are presented and not to temporize on the premise that the issue will soon be with us again. This Court itself invited and initiated the inquiry before us and should resolve it at this time without continuing to countenance the disparate treatment of litigants which the rule permits.
The rule should now be deleted because the underpinning of the rule has been abolished by Aldana. With our Aldana holding, the underlying medical mediation act was held to be unconstitutional. This has left rule 1.450(e) without its philosophical or practical foundation. With its raison d'etre gone, the rule has lost its justification for existence. A rule "depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed." Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-48, 44 S.Ct. 405, 406, 68 L.Ed. 841 (1924). See also Home Building Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). This is the situation as to the instant rule. The legislative program of which it was a part has been declared unconstitutional and has been stricken; the rule thus depends upon and supports a package of laws that is no longer valid. While valid under Sparkman, the rule has now, in essence, been impliedly invalidated because of our actions in Aldana. Since its foundation has been eliminated, rule 1.450(e)'s reason for existence has been eliminated also. Rule 1.450(e) should be deleted from the Florida Rules of Civil Procedure.
ADKINS and BOYD, JJ., concur.