Supreme Court of Florida

____________

No. SC15-1555

____________

HOLMES REGIONAL MEDICAL CENTER, INC., et al.,

Petitioners,

vs.

ALLSTATE INSURANCE COMPANY, et al.,

Respondents.

[July 13, 2017]

QUINCE, J.

This case is before the Court for review of the decision of the Fifth District 

Court of Appeal in Allstate Insurance Co. v. Theodotou, 171 So. 3d 163 (Fla. 5th 

DCA 2015). In its decision, the district court ruled upon the following question 

which the court certified to be of great public importance:

IS A PARTY THAT HAS HAD JUDGMENT ENTERED AGAINST 

IT ENTITLED TO SEEK EQUITABLE SUBROGATION FROM A 

SUBSEQUENT TORTFEASOR WHEN THE JUDGMENT HAS 

NOT BEEN FULLY SATISFIED?

Id. at 168. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons 

that follow, we answer the certified question in the negative and quash the decision 

of the Fifth District. 
- 2 -

FACTS AND PROCEDURAL HISTORY

Benjamin Edward Hintz sustained head injuries when his scooter collided 

with an automobile driven by Respondent Emily Boozer. Theodotou, 171 So. 3d 

at 164. The car belonged to Boozer’s father, Otto, who was insured by Respondent 

Allstate. Id. Hintz received medical treatment at Holmes Regional Medical Center 

(medical provider defendants) where, according to Respondents, his injuries were 

“exacerbated by medical negligence.” Id. 

Petitioner Douglas Stalley, guardian of Hintz’s property, filed suit against 

Emily and Otto Boozer for damages. Id. Stalley successfully argued that Stuart v. 

Hertz Corp., 351 So. 2d 703 (Fla. 1977), “precluded the Boozers from presenting 

evidence that medical negligence was a contributing cause of Hintz’s injuries.” Id. 

The jury found the Boozers liable for Hintz’s injuries and awarded Stalley 

$14,905,585.29, which was reduced by twenty-five percent to $11,179,188.98 due 

to Hintz’s comparative negligence. Id. In August 2012, judgment was entered and 

Allstate paid $1.1 million, its policy limit. Id. The Boozers have not paid the 

remainder of the judgment. Id.

Following the personal injury verdict, Stalley filed a separate medical 

malpractice lawsuit against the medical provider defendants, who are also 
- 3 -

Petitioners in this proceeding. Id. at 165. Stalley “sought recovery for the same 

injuries involved in the initial lawsuit against the Boozers.”1 Id.

Respondents Allstate and Emily Boozer were granted leave to intervene in 

the lawsuit, and both parties filed complaints claiming they were entitled to 

equitable subrogation from the medical provider defendants. Id. In response, the 

medical provider defendants sought dismissal of the complaints because neither 

Allstate nor Boozer had paid Hintz’s damages in full. Id. The trial court agreed 

with the medical provider defendants and dismissed Respondents’ complaints with 

prejudice. Id.

On appeal, the Fifth District considered whether 

[A]n initial tortfeasor or her insurer may assert an equitable 

subrogation claim against a subsequent tortfeasor when: (1) the initial 

tortfeasor was precluded from bringing the subsequent tortfeasor into 

the original personal injury action under Stuart v. Hertz, 351 So. 2d 

703 (Fla. 1977); (2) judgment was entered against the initial tortfeasor 

for the full amount of the injured person’s damages, regardless of the 

initial tortfeasor’s portion of fault; and (3) that judgment has not been 

completely paid by the initial tortfeasor or her insurer.

Id. at 164. In reversing the trial court’s order, the district court found that “the 

right to equitable subrogation arises when payment has been made or judgment has 

 

1. Stalley also filed a bad faith action against Allstate. The case was tried in 

June 2016 and a jury found that Allstate did not act in bad faith. See Stalley v. 

Allstate Ins. Co., No. 6:14-cv-1074-Orl-28DAB, 2016 WL 3282371 (M.D. Fla. 

June 10, 2016). Stalley appealed, and the Eleventh Circuit affirmed. See Stalley v. 

Allstate Ins. Co., No. 16-14816, 2017 WL 1033670 (11th Cir. Mar. 17, 2017). 
- 4 -

been entered, so long as the judgment represents the victim’s entire damages.” Id.

at 167. The court reasoned that “equity favors justice and fairness over formalistic 

legal rules,” and that the need for liability to be correctly apportioned must be 

considered along with the victim’s need to be made whole. Id. at 167-68. 

Recognizing that Florida courts have allowed subrogation claims to proceed on a 

contingent basis, the district court saw “no reason why Appellants’ subrogation 

claim in this case should not be allowed to proceed in a similar manner.” Id. at 

167. 

Petitioners Holmes Regional Medical Center and Douglas Stalley now argue 

that under this Court’s long-standing precedent, an initial tortfeasor only has a 

subrogation claim against a subsequent tortfeasor after fully compensating the 

injured party. In response, Allstate and Emily Boozer contend that equitable 

subrogation is a flexible doctrine and equity requires that liability be properly 

apportioned among all negligent parties. Because the certified question presents a 

pure issue of law, the standard of review is de novo. Special v. West Boca Med. 

Ctr., 160 So. 3d 1251, 1255 (Fla. 2014). 

ANALYSIS

In Stuart, this Court addressed “whether or not an active tortfeasor in an 

automobile accident may bring a third party action for indemnity against a 

physician for damages directly attributable to malpractice which aggravated the 
- 5 -

plaintiff’s injuries.” 351 So. 2d at 704. The respondent in that case, Hertz, owned 

the automobile that collided with an automobile belonging to Mrs. Johnson. Id. 

Mrs. Johnson suffered orthopedic injuries from the crash and underwent surgery 

performed by the petitioner, Dr. Stuart. Id. During the surgery, Dr. Stuart 

accidentally severed Mrs. Johnson’s carotid artery, which caused a neurological 

disability. Id. When Mrs. Johnson filed suit against Hertz, Hertz sought indemnity 

for any damages recovered because of the neurological injuries. Id. Dr. Stuart 

moved to dismiss the third party complaint, which the trial court denied. Id.

In reversing the trial court’s order, we held that an initial tortfeasor is 

prohibited from presenting evidence of subsequent medical malpractice or filing a 

third-party complaint for alleged aggravation of injuries by medical providers. Id.

at 706. We stated:

An active tortfeasor should not be permitted to confuse and obfuscate 

the issue of his liability by forcing the plaintiff to concurrently litigate 

a complex malpractice suit in order to proceed with a simple personal 

injury suit. To hold otherwise would in effect permit a defendant to 

determine the time and manner, indeed the appropriateness, of a 

plaintiff’s action for malpractice. This decision eliminates the 

traditional policy of allowing the plaintiff to choose the time, forum 

and manner in which to press his claim. (citation omitted). 

The choice of when and whether to sue his treating physician for 

medical malpractice is a personal one, which rightfully belongs to the 

patient. A complete outsider, and a tortfeasor at that, must not be 

allowed to undermine the patient-physician relationship, nor make the 

plaintiff’s case against the original tortfeasor longer and more 

complex through the use of a third-party practice rule which was 

adopted for the purpose of expediting and simplifying litigation.
- 6 -

Id. We also expressed concern about “confusion and nonuniformity of application 

by the lower courts,” complication of the issues, and prolonging the litigation. Id. 

Justice Boyd concurred in part and dissented in part. Id. at 707. He 

explained:

I dissent to the view that any active tortfeasor sued should be unable 

to shift an equitable portion of the judgment obligation to others 

causing or increasing the injuries and damages.

Although respondent Hertz Corporation must not be permitted to join 

petitioner as a third party defendant, it should be permitted to allege 

and prove any malpractice and have the judgment amount reduced to 

the extent the malpractice contributed to the total amount of damages. 

It is fundamentally unfair and unjust to require Hertz to pay for the 

negligence of petitioner, if any. If the injured person, Mrs. Johnson, 

does not wish to join her doctor in the suit that should be her 

privilege, but she should not recover from Hertz the full damages 

unless Hertz is the only tortfeasor. 

Id. at 707-08. 

Justice Overton also dissented and wrote:

A plaintiff should not be allowed to recover for the same wrong from 

both tortfeasors, which may be possible under the majority opinion as 

I understand it. Clearly one tortfeasor should not be responsible for 

all the injuries without the right of indemnification for the identifiable 

consequences of another’s wrong. 

Id. at 708.

We later addressed the concerns raised by Justice Boyd and Justice Overton 

in Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So. 2d 702 (Fla. 1980). 

In Lloyds, the City of Lauderdale Lakes settled with a victim for all injuries 
- 7 -

flowing from an automobile accident and for the treatment thereof. Id. at 703. 

Following settlement, the City sought indemnification from the doctor. Id. Due to 

this Court’s decision in Stuart, the City attempted to amend its complaint and sue 

the doctor under a theory of subrogation. Id. “The trial court denied the city’s 

motion to amend and granted summary judgment for the defendant insurance 

company.” Id. The Fourth District reversed the trial court and certified the 

following question as one of great public interest:

DOES THE DECISION IN STUART V. HERTZ BAR A 

SEPARATE LAWSUIT BY THE INITIAL TORTFEASOR 

AGAINST A SUCCESSOR TORTFEASOR WHO AGGRAVATES 

THE ORIGINAL INJURIES?

Id. 

In answering the certified question in the negative, we considered whether 

“it is fair and equitable for such a tortfeasor to have to pay a sum greater than 

should have flowed from an accident without thereafter giving him some recourse 

against the agency exacerbating his liability?” Id. at 704. In order to “preclude a 

negligent doctor from escaping the responsibilities for his actions,” we provided 

the remedy of equitable subrogation. Id. We explained that subrogation is an 

equitable doctrine that allows the initial tortfeasor to be placed in “the shoes of” 

the plaintiff. Id. (citing 30 Fla. Jur. Subrogation § 11). It is a legal device 

“founded on the proposition of doing justice without regard to form, and was 

designed to afford relief where one is required to pay a legal obligation which 
- 8 -

ought to have been met, either wholly or partially, by another.” Id. (citations 

omitted). Additionally, “a subrogation suit is a separate, independent action 

against a subsequent tortfeasor by the initial tortfeasor. The injured party, having 

received full compensation for all injuries, is not a party to the litigation and is 

spared the trauma of an extensive malpractice trial.” Id. In so holding, we

“aligned Florida with jurisdictions relying upon subrogation as a remedy of 

affording an initial tortfeasor equitable apportionment of liability when a victim’s 

injuries have been negligently aggravated by an attending doctor.” Id. (citations 

omitted). 

We later expounded on what was required for an initial tortfeasor to assert 

an equitable subrogation claim in Dade County School Board v. Radio Station 

WQBA, 731 So. 2d 638 (Fla. 1999), where we held that equitable subrogation is 

“generally appropriate” when five factors are satisfied:

(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.

Id. at 646. In that case, we resolved a conflict between the Third District in Dade 

County School Board v. Radio Station WQBA, 699 So. 2d 701 (Fla. 3d DCA 

1997) and the Fifth District in West American Insurance Co. v. Yellow Cab Co. of 

Orlando, Inc., 495 So. 2d 204 (Fla. 5th DCA 1986). In WQBA, the Third District 
- 9 -

had concluded that partial payment was enough to allow a remedy of equitable 

subrogation. 699 So. 2d at 703. The Fifth District in West American, however, 

stated that the party claiming subrogation had to pay the debt in full. 495 So. 2d at 

207. Because we “disagree[d] with the [Third District’s] liberal application of the 

equitable subrogation doctrine,” we approved the decision of the Fifth District. 

WQBA, 731 So. 2d at 646. 

We pointed out that, in West American, “central to the court’s application of 

equitable subrogation was the fact that West American secured a release which 

included Yellow Cab and that West American paid one hundred percent of the 

debt.” WQBA, 731 So. 2d at 647. We reasoned that, because equitable 

subrogation puts “the person discharging the debt . . . in the shoes of the person 

whose claim has been discharged, [it] would only be proper if it can be established 

that [WQBA] paid the entire debt owed to a particular plaintiff and that in doing 

so, [WQBA] obtained a release for DCSB [Dade County School Board] from the 

plaintiff.” Id.

Our decision in WQBA was consistent with long-established law that 

“[u]ntil the obligation is fully discharged, the obligee is himself entitled to enforce 

the balance of his claim, and the person whose property has been used in 

discharging only a part of the claim is not entitled to occupy his position.” 

Restatement (First) of Restitution §162 com. c. (Am. Law Inst. 1937). Other 
- 10 -

district courts have held similarly. See U.S. Fid. & Guar. Co. v. Essex Ins. Co., 

188 So. 3d 906, 907 (Fla. 1st DCA 2016) (no equitable subrogation where excess 

insurer “did not pay the entire settlement in the underlying tort litigation”); 

Goldberg v. State Farm Auto. Mut. Ins. Co., 922 So. 2d 983 (Fla. 4th DCA 2005) 

(insurer that paid insured’s passenger not entitled to subrogation against second 

driver where it did not show that it paid all of the passenger’s damages and 

obtained release of second driver); Collins v. Wilcott, 578 So. 2d 742, 744 (Fla. 5th 

DCA 1991) (“[T]he right of subrogation does not exist until one tort-feasor has 

completely discharged the obligation of all tort-feasors.”); Fla. Farm Bureau Ins. 

Co. v. Martin, 377 So. 2d 827 (Fla. 1st DCA 1979) (no subrogation for fire insurer 

where insured recovered less from tortfeasor than insured’s total damages). 

In the instant case, the Fifth District distinguished cases cited by Petitioners 

for the proposition that equitable subrogation requires full payment by stating that 

the cases either (1) involved settlements “where the party seeking equitable 

subrogation settled with the victim for only the portion of the injury directly 

attributable to it,” or (2) did “not involve a Stuart initial tortfeasor/subsequent 

tortfeasor situation” where the victim’s injuries were made worse by a doctor’s 

negligence. Theodotou, 171 So. 3d at 166. In doing so, the Fifth District ignored 

the underlying principle of those cases: that the victim had been fully compensated 

by the initial tortfeasor before the initial tortfeasor could assert an equitable 
- 11 -

subrogation claim. While there was no settlement offer in this case, in order for 

the Respondents to “step in[to] the shoes” of the plaintiff, they must first fully 

discharge the debt. Although Respondents argue that some district courts have 

held that an equitable subrogation claim arises once judgment has been entered, 

that language, as acknowledged by the Fifth District, is dicta. See, e.g., Caccavella 

v. Silverman, 814 So. 2d 1145, 1147 (Fla. 4th DCA 2002) (“When an initial 

tortfeasor is held liable for the entirety of the plaintiff’s damages, his remedy is an 

action for equitable subrogation against the subsequent tortfeasor.”); Nat’l Union 

Fire Ins. Co. v. Se. Bank, N.A., 476 So. 2d 766, 767 (Fla. 3d DCA 1985) (“A right 

to subrogation does not arise until judgment is entered or payment has been 

made.”).

Because a claim of equitable subrogation requires payment of the entire 

debt, Respondent Boozer’s argument that she may be substituted for Hintz in the 

malpractice action is meritless, as she has paid no part of the $11 million judgment 

against her. Additionally, Respondent Allstate’s argument that it has a claim by 

virtue of its $1.1 million dollar payment fails, as partial payment does not 

discharge the entire debt to the injured party and therefore does not give rise to an 

equitable subrogation claim. See Cleary Bros. Constr. Co. v. Upper Keys Marine 

Constr., Inc., 526 So. 2d 116, 117 (Fla. 3d DCA 1988) (“No rights of subrogation 

arise from a partial satisfaction of an obligation.”); see also Rubio v. Rubio, 452 
- 12 -

So. 2d 130, 132 (Fla. 2d DCA 1984) (“[T]he insurer has no right as against the 

insured where the compensation received by the insured is less than his loss.”

quoting Couch on Insurance, 2d § 61.64 (rev. ed. 1983)). This is because “the 

creditor cannot equitably be compelled to split his or her securities and give up 

control of any part until he or she is fully paid.” 16 Couch on Ins. 3d § 223:22 

(Rev. ed. 2016). 

Furthermore, allowing Petitioner Stalley, on behalf of Hintz, to pursue a 

medical malpractice claim against the medical provider defendants without 

Respondents’ intervention would neither violate the doctrine of election of 

remedies nor permit Hintz to obtain a double recovery. Although the Fifth District 

did not expressly use the term “election of remedies,” it was at the foundation of 

the court’s reasoning in the instant case:

Stuart makes clear that an injured party can choose to sue only the 

initial tortfeasor and seek recovery for all the injuries resulting from 

both torts . . . Or the injured party can first recover from the initial 

tortfeasor for the injuries caused solely by the original tort and then 

seek recovery from the subsequent tortfeasors for the injuries caused, 

or aggravated by, their negligence. 

Theodotou, 171 So. 3d at 165 (emphasis added). 

Under Stuart, Stalley made a decision to recover from only the initial 

tortfeasor.

Id. (emphasis added) (citations omitted).

Here, the plaintiff chose the manner of the litigation. He elected to 

sue only the Boozers, presumably knowing that they could not afford 
- 13 -

to pay a multi-million dollar judgment. He then chose to sue the 

Medical provider defendants, leading to, ironically, his involvement in 

what could become an “extensive” medical-malpractice trial. The 

intervention of the initial tortfeasor into that lawsuit is a consequence 

of these choices.

Id. at 168 n.3 (emphasis added). The Fifth District here inaccurately described 

Hintz’s decision to sue Boozer first as “a decision to recover from only the initial 

tortfeasor.” Id. at 166. However, a plaintiff is not precluded from suing an initial 

tortfeasor before suing a negligent medical provider. See, e.g., Barnes v. Meece, 

530 So. 2d 958, 959 (Fla. 4th DCA 1988) (holding plaintiff entitled to bring 

separate, simultaneous suits against initial tortfeasor and negligent treatment 

providers without having to litigate the malpractice issue in the tort suit); Am. 

Process Co. v. Florida White Pressed Brick Co., 47 So. 942, 944 (Fla. 1908)

(“Where the law affords several distinct, but not inconsistent, remedies for the 

enforcement of a right, the mere election or choice to pursue one of such remedies 

does not operate as a waiver of the right to pursue the other remedies.”). Contrary 

to the Fifth District’s reasoning, Hintz did not decide to recover only from the 

initial tortfeasor. Instead, he decided to sue the initial tortfeasor first. That was not 

an election of remedies. Hintz’s remedy against Boozer is not inconsistent with 

the remedy he seeks now against the medical provider defendants, and the 

judgement remains unsatisfied.
- 14 -

The election of remedies doctrine is intended “to prevent double recoveries

for a single wrong.” Liddle v. A.F. Dozer, Inc., 777 So. 2d 421, 422 (Fla. 4th DCA

2000) (quoting Goldstein v. Serio, 566 So. 2d 1338, 1339 (Fla. 4th DCA 1990)). It 

applies in two circumstances, neither of which are present in this case. First, it can 

apply when the plaintiff has obtained a judgment on one of two inconsistent 

theories. The facts underlying the claims must be “opposite and irreconcilable.” 

See Barbe v. Villenueve, 505 So. 2d 1331, 1333 (Fla. 1987). Remedies are only 

inconsistent if they cannot logically exist on the same facts. Heller v. Held, 817 

So. 2d 1023, 1026 (Fla. 4th DCA 2002). Where, as here, the claims rely on the 

same facts and the plaintiff seeks further relief consistent with the relief already 

given, the remedies are not inconsistent. See Klondike, Inc. v. Blair, 211 So. 2d 

41, 42-43 (Fla. 4th DCA 1968) (holding that unsatisfied judgment on note was not 

inconsistent with claim for foreclosure of mortgage securing it and was not an 

election).

Second, if the remedies are consistent, only “full satisfaction” of the claim 

will constitute an election of remedies. Thus, a party may get more than one 

judgment, so long as there is only one recovery. In Rodriguez ex rel Rodriguez v. 

Yount, 623 So. 2d 618, 619 (Fla. 4th DCA 1993), the court quashed the abatement 

of a medical malpractice action pending resolution of a bad faith action against the 

insurer of an initial tortfeasor, holding that, “even if the damages were identical,
- 15 -

there is no bar to proceed against a concurrent or subsequent [tortfeasor] where the 

prior judgment remains uncollected.” Id. at 619. See also Heller, 817 So. 2d at 

1027 (holding no election where “record suggests that the judgment cannot be 

collected”). Satisfaction of the judgment is required because the doctrine “can 

serve as an instrument of injustice when an election of a remedy turns out to be 

unavailable.” Sec. & Inv. Corp. of the Palm Beaches v. Droege, 529 So. 2d 799, 

802 (Fla. 4th DCA 1988). Thus, we held in Junction Bit & Tool Co. v. Village 

Apartments, Inc., 262 So. 2d 659, 660 (Fla. 1972), that “the issue of an election of 

remedies was . . . of no consequence when no real remedy resulted.” As applied to 

the instant case, Hintz has received only an unsatisfied judgment and a payment 

from Allstate of less than one tenth of his total damages. There has been no “full 

satisfaction.” 

Moreover, the “one-action rule” on which Allstate relies does not support its 

argument for intervention into Hintz’s medical malpractice action. The rule 

against splitting a cause of action applies only to a “single wrongful act.” Tyson v. 

Viacom, Inc., 890 So. 2d 1205, 1210-11 (Fla. 4th DCA 2005) (quoting Froman v. 

Kirkland, 753 So. 2d 1116 (Fla. 4th DCA 1999)). Here, Boozer’s negligence and 

the medical provider defendants’ malpractice are separate wrongful acts. Hintz 

was injured by both. As previously stated, Hintz is allowed to sue the initial 
- 16 -

tortfeasor and the medical provider defendants separately. See Barnes, 530 So. 2d 

at 9; see also Rodriguez, 623 So. 2d at 618.

Similarly, Respondent Allstate’s reliance on developments in the law, such 

as the law surrounding D’Amario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001), 

and the comparative fault statute do not entitle it or Boozer to equitable 

subrogation without first paying the judgment in full. First, D’Amario is an 

automobile crashworthiness case. There, we held that apportionment of fault 

generally will not apply in such situations, as the manufacturer “may not be held 

liable for the injuries caused by the initial accident.” 806 So. 2d at 426. The 

Legislature thereafter amended the comparative fault statute to require the jury, “in 

a products liability action,” to “consider the fault of all persons who contributed to 

the accident when apportioning fault.” Ch. 2011-215 § 1, Laws of Florida 

(codified at § 768.81(3)(b), Fla. Stat. (2011)). 

Second, the comparative fault statute has nothing to do with the certified 

question before this Court. Respondents did not base their appeal to the Fifth 

District on an argument that this Court should recede from Stuart in light of the 

comparative fault statute or for reasons of fairness. Nor did the Fifth District, in its 

certified question to this Court, ask whether Stuart should be receded from in light 

of the comparative fault statute. However, Florida appellate courts that have had 

the opportunity to address the issue directly have concluded that the comparative 
- 17 -

fault statute did not legislatively overrule Stuart. See, e.g., Caccavella, 814 So. 2d 

at 1149 (holding § 768.81, Fla. Stat. was not broad enough to overrule Stuart, 

because Stuart context does not involve joint and several liability). The Fourth 

District then certified this question in Caccavella, and again in Letzter v. Cephas, 

792 So. 2d 481, 488 (Fla. 4th DCA 2001) (posing question but not passing upon 

it). We dismissed review of Cephasv. Letzter, 843 So. 2d 871 (Fla. 2003), and 

Caccavella was voluntarily dismissed, Caccavella v. Silverman, 860 So. 2d 976

(Fla. 2003). 

Finally, while the Fifth District held that “the right to equitable subrogation 

arises when payment has been made or judgment has been entered,” it did not state 

that Boozer could substitute Hintz, or that Boozer and Allstate alone could pursue 

the medical provider defendants. Theodotou, 171 So. 3d at 167. Instead, the Fifth 

District found that Respondents’ subrogation claims could proceed on a contingent 

basis. Id. In so holding, the district court relied on the Fourth District’s decision in 

Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So. 2d 484 

(Fla. 4th DCA 2000). In Gortz, the district court allowed a defendant law firm that 

was sued for legal malpractice to bring a third party claim against another law firm 

alleging equitable subrogation without having paid the entire claim. Id. at 485. 

However, in Gortz, the party claiming subrogation was already a defendant in the 

case, and was bringing the claim as a third party claim under Florida Rule of Civil 
- 18 -

Procedure 1.180, which allows a defendant to sue a third party “who may be 

liable” for all or part of the plaintiff’s claim. 

Gortz does not apply here, in part because no third party complaint is 

involved and because this Court ruled in Stuart that Rule 1.180 does not allow an

initial tortfeasor to file a third party complaint against subsequent medical provider 

defendants for equitable subrogation. Stuart, 351 So. 2d at 706. That issue was 

not present in Gortz. Even though not applicable, the court took pains to point out 

that the trial court had discretion to sever the claims if the defendants “overly 

complicate the litigation,” or if they “unfairly prejudice plaintiffs in the orderly 

presentation of their claims.” Gortz, 769 So. 2d at 488 (quoting Attorneys’ Title 

Ins. Fund Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250, 1252-53 (Fla. 2d DCA 

1989)). In the case before us, allowing the Respondents to bring contingent 

subrogation claims would, Petitioners argue, overly complicate the litigation and 

unfairly prejudice Hintz. We agree. 

CONCLUSION

The Fifth District erred in holding that Respondents could assert claims for 

contingent equitable subrogation without first paying the judgment in full. As 

such, we answer the certified question in the negative, reverse the district court’s 

decision, and remand the case to reinstate the dismissal of the equitable 

subrogation claims. 
- 19 -

It is so ordered. 

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.

PARIENTE, J., concurs with an opinion, in which LEWIS, J., concurs.

POLSTON, J., dissents with an opinion.

LAWSON, J., dissents with an opinion, in which CANADY, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

PARIENTE, J., concurring.

I concur fully in the majority opinion. I write separately to address the 

argument advanced by Justice Lawson in his dissent concerning fairness and 

efficiency as a reason to allow “contingent equitable subrogation.” Dissenting op. 

at 25 (Lawson, J.). In this case, a seriously injured plaintiff obtained a judgment 

against the initial tortfeasor, Emily Boozer, of over $11 million. However, to date, 

the only portion of the judgment that has been paid came from the initial 

tortfeasor’s insurer, Allstate, which paid its policy limit of $1.1 million, leaving an 

unsatisfied judgment of over $10 million. The vast majority of the damages were 

economic, with the jury allocating $9 million to future care and treatment. 

 Justice Lawson mainly contends that the majority opinion is unfair to the 

initial tortfeasor. His arguments, however, all flow from an incorrect 

assumption—that the initial tortfeasor has been “legally ‘placed “in the shoes” of 

the plaintiff.’ ” Dissenting op. at 38 (Lawson, J.) (quoting Underwriters at Lloyds 

v. City of Lauderdale Lakes, 382 So. 2d 702, 704 (Fla. 1980)). That assumption is 
- 20 -

belied by the critical fact upon which the majority’s reasoning is based—the initial 

tortfeasor has yet to satisfy the judgment. Yet, Boozer and Allstate took the 

position before the trial court that they, and not the injured plaintiff, were entitled 

to be substituted as the sole plaintiffs in the injured plaintiff’s medical malpractice 

action. 

With a substantial unsatisfied judgment against the initial tortfeasor, the 

seriously injured plaintiff with millions of dollars in future medical care has not yet 

begun to be made whole. Boozer, the initial tortfeasor, has paid nothing and will 

likely never be able to fully satisfy the judgment against her. According to a 

deposition in this case, Boozer is a young mother of two, a student, and has no 

current income of her own. As Boozer stated in her initial brief before the Fifth 

District Court of Appeal she, “[l]ike most Floridians, . . . does not have the 

financial means to pay such an enormous judgment.” 

Boozer has not earned the right to stand in the plaintiff’s shoes. The injured 

plaintiff still occupies his own shoes. As the injured plaintiff argues, “it is Mr. 

Hintz who is walking in those painful shoes, suffering the continuing effects—

economic and emotional—of Ms. Boozer’s negligence, and who has not been 

compensated.” Initial Br. of Pet’r Douglas Stalley, at 38-39.

The plaintiff has never opposed intervention, just the assertion that the 

tortfeasors should be substituted for the plaintiff or allowed to litigate alongside of 
- 21 -

the plaintiff. While the plaintiff objects to the initial tortfeasor and her insurer 

being permitted to litigate alongside him, the plaintiff in his brief concedes that 

Boozer and Allstate have an interest in the litigation:

Nor does Mr. Hintz have any interest in depriving the 

Respondents of an opportunity to be heard. From the outset, Mr. 

Hintz has agreed that Respondents should be allowed to intervene. 

They should be entitled to notice of any settlement. If there is an 

actual recovery of money against the medical providers, Allstate may 

assert a lien or setoff, the details of which can be litigated post trial,

taking into account how much of the damages were actually caused by 

the medical providers, how much Mr. Hintz is actually able to 

recover, the cost of procuring the recovery, and the extent to which 

the Respondents assisted or interfered with Mr. Hintz’s recovery 

efforts, and any other equitable considerations that might apply. Once 

Mr. Hintz’s damages have been paid in full, Ms. Boozer may also 

have a remedy under Fla. R. Civ. P. 1.540(b)(5), which provides for 

relief from a judgment if it has been satisfied, or if it “is no longer 

equitable that the judgment or decree should have prospective 

application.”

Initial Br. of Pet’r Douglas Stalley, at 49. 

On the other hand, allowing the initial tortfeasor to intervene in the medical 

malpractice case before the jury, without the plaintiff’s agreement, carries the real 

potential of complicating the issues and confusing the jury in this new, separate 

case. There is no doubt that the jury would speculate as to why the initial 

tortfeasor is not also being sued, or whether there had been a previous lawsuit 

against the initial tortfeasor. Would the presence of the initial tortfeasor be 

explained to the jury? Would the initial tortfeasor be able to relitigate the issue of 

damages? While Justice Lawson makes the assumption that the initial tortfeasor 
- 22 -

would assist the injured party in his lawsuit against the Medical Provider 

defendants, it remains unclear what the rights of the initial tortfeasor would be in 

the subsequent litigation—would she be entitled to her own set of experts; or could 

she ride on the plaintiff’s coattails bearing none of the economic burden of the cost 

of the litigation; would she have a right to examine and cross-examine the 

witnesses; would the plaintiff be required to partner with her throughout the 

litigation such that the plaintiff would lose the ability to control the litigation? 

Justice Lawson’s proposed solution of crafting a limiting instruction to alleviate 

this confusion is unsatisfactory in light of the myriad problems that could arise. 

See dissenting op. at 41 (Lawson, J.).

Apparently, Justice Lawson’s primary concern is the possibility of a 

settlement with the Medical Provider defendants, such that the plaintiff would 

receive a windfall and the initial tortfeasor would not receive the benefit of a 

reduction in the outstanding judgment. But of course, any amount paid by the 

Medical Provider defendants, either through judgment or settlement, would result 

in a reduction in the overall amount owed by the initial tortfeasor. As the plaintiff 

points out, nothing will prevent the initial tortfeasor or Allstate from participating 

in and arguing for a proportionate reduction in the judgment against the initial 

tortfeasor, if there is a settlement with or judgment against the Medical Provider 

defendants. Further, because there is a guardianship over the plaintiff’s property, 
- 23 -

any settlement must be approved by the probate court at which point the initial 

tortfeasor and Allstate could intervene. 

In addition, Justice Lawson fails to consider that the injured plaintiff has a 

real incentive to obtain the maximum amount against the Medical Provider 

defendants, which would inure to the benefit of the tortfeasor by reducing the total 

amount of the judgment against her. Conversely, as pointed out by Holmes 

Medical Center, one of the Medical Provider defendants, a holding allowing 

contingent equitable subrogation would be a disincentive to the initial tortfeasor 

and her insurer to first pay the entire judgment and discharge the debt if they could, 

instead, intervene in the medical malpractice case by filing a contingent equitable 

subrogation claim.2

When all of the equitable considerations are taken into account, the balance 

of the equities fall to the injured plaintiff. Arguing this case both before the Fifth 

District Court of Appeal and before this Court, Boozer and Allstate quoted case 

law stating that the purpose of equitable subrogation is to “do perfect justice.” 

“What [Boozer and Allstate] seek here is not perfect and it is not justice.” Initial 

Br. of Pet’r Douglas Stalley, at 46. I fully concur in the majority opinion.

LEWIS, J., concurs.

 

2. Both the severely injured plaintiff, Benjamin Edward Hintz, who appears 

through his guardian, Douglas Stalley, as well as the Medical Provider defendants, 

and the Florida Hospital Association as amicus, oppose the intervention of Emily 

Boozer and Allstate in the malpractice action.
- 24 -

POLSTON, J., dissenting.

As explained by the Fifth District,

Here, the Boozers did not settle with Stalley, nor were they held 

liable, for only their portion of liability. Rather, they were held liable 

for all of Hintz’s injuries resulting from the accident. Judgment was 

entered against them for over $11 million. That judgment is fully 

enforceable by Stalley and has various severe consequences for 

Boozer. If Boozer was not solely liable, then, in fairness, she ought to 

be able to seek subrogation from the subsequent tortfeasors. Allstate 

should also have the opportunity to seek equitable subrogation 

because it has potentially paid more than its fair share. Put simply, we 

agree with Appellants that the right to equitable subrogation arises 

when payment has been made or judgment has been entered, so long 

as the judgment represents the victim’s entire damages.

Allstate Ins. Co. v. Theodotou, 171 So. 3d 163, 167 (Fla. 5th DCA 2015); see, e.g., 

Caccavella v. Silverman, 814 So. 2d 1145, 1147 (Fla. 4th DCA 2002) (“When an 

initial tortfeasor is held liable for the entirety of the plaintiff’s damages, his remedy 

is an action for equitable subrogation against the subsequent tortfeasor.”); Nat’l 

Union Fire Ins. Co. of Pittsburgh, PA v. Se. Bank, N.A., 476 So. 2d 766, 767 (Fla. 

3d DCA 1985) (“A right to subrogation does not arise until judgment is entered or 

payment has been made.”).

I agree with the Fifth District’s above explanation and would answer the 

certified question in the affirmative. 

LAWSON, J., dissenting.
- 25 -

I dissent because the Court answers the wrong question and because the 

answer, which effectively leaves the initial tortfeasor without a remedy, is contrary 

to the basic tenets underlying common law tort theory. I would rephrase the 

question to match the facts of this case, to read as follows:

WHEN AN INJURED PARTY SECURES A JUDGMENT 

AGAINST AN INITIAL TORTFEASOR AND THEN SUES A 

SUBSEQUENT TORTFEASOR TO RECOVER THE SAME 

DAMAGES, MAY THE INITIAL TORTFEASOR JOIN THE 

ACTION AND FILE A CONTINGENT EQUITABLE 

SUBROGATION CLAIM?

I would answer this rephrased question affirmatively. To explain why, I will first 

define two relevant terms; then, explore the “first principles” of Florida tort law 

and related policy decisions that lay the framework within which we must decide 

this case; and, finally, address how, only by disregarding these principles and the 

policy choices that they informed, does the majority deny the initial tortfeasor 

access to a contingent equitable subrogation claim.

I. RELEVANT TERMS

“Joinder” is “[t]he uniting of parties or claims in a single lawsuit.” Black’s 

Law Dictionary 965 (10th ed. 2014).

“Subrogation” is “[t]he substitution of one party for another whose debt the 

party pays . . . .” Id. at 1654. “Conventional subrogation” is “[s]ubrogation that 

arises by contract.” Id. at 1655. “Equitable subrogation” is “[s]ubrogation that 

arises by operation of law or by implication in equity to prevent fraud or injustice.” 
- 26 -

Id. Similar to other equitable remedies, equitable subrogation is “founded on the 

proposition of doing justice without regard to form.” Underwriters at Lloyds v. 

City of Lauderdale Lakes, 382 So. 2d 702, 704 (Fla. 1980). The theory is that 

because the initial tortfeasor has become legally liable for damages that should 

rightly be owed by the subsequent tortfeasor to the plaintiff, the initial tortfeasor 

“is placed ‘in the shoes’ of the plaintiff” and can bring what would have been the 

plaintiff’s cause of action against the subsequent tortfeasor. Id. (quoting 30 Fla. 

Jur. Subrogation § 11).

II. RELEVANT LAW

A. First Principles of Tort Law

The “first principles”3 undergirding our modern tort system are clear: “Tort 

law represents the way in which we draw lines around acceptable and unacceptable 

non-criminal behavior in our society. Torts are designed to encourage socially 

beneficial conduct and deter wrongful conduct.” Jews for Jesus, Inc. v. Rapp, 997 

So. 2d 1098, 1105 (Fla. 2008) (quoting Denver Publ’g Co. v. Bueno, 54 P.3d 893, 

897-98 (Colo. 2002)). “ ‘[T]he primary purpose of tort law is “that wronged 

 

3. See generally David G. Owen, The Moral Foundations of Products 

Liability Law: Toward First Principles, 68 Notre Dame L. Rev. 427, 501 n.324 

(1993) (quoting Aristotle for the point that “first principles” (i.e., the reasons for a 

legal theory) have “a vital influence upon all that follows from them . . . and [are] a 

means at arriving at a clear conception of many points which are under 

investigation”) (citation omitted).
- 27 -

persons should be compensated for their injuries and that those responsible for the 

wrong should bear the cost of their tortious conduct.” ’ ” Clay Elec. Coop., Inc. v. 

Johnson, 873 So. 2d 1182, 1190 (Fla. 2003) (quoting Weinberg v. Dinger, 524 

A.2d 366, 375 (N.J. 1987)). Most basically, when someone is harmed by the 

wrongful acts of others, we try to adjudicate the dispute as fairly as possible to all 

parties and as efficiently as possible for society. Id.

I will focus first on the goal of fairness to all parties. That basic goal breaks 

down into two principles that are often at odds. The first is that an injured party 

should be “made whole” or fully and fairly compensated for the harm caused by 

others. See 25 C.J.S. Damages § 118 (June 2017 Update) (“The level of 

compensatory damages is determined with reference to the plaintiff’s loss, and 

damages should compensate for an individual’s loss and no more. The law will not 

put the injured party in a better position than he or she would be in had the wrong 

not been done. Thus, an injured party is to be made as nearly whole as possible . . . 

.”) (footnotes omitted). The second is that a tortfeasor should not be required to 

pay for harm that he or she did not cause. See Restatement (Third) of Torts: 

Apportionment of Liab. § 26 cmt. a (2000) (“No party should be liable for harm it 

did not cause . . . .”). These appear to be the most basic “first principles” of 

fairness to the parties in modern tort law. In section III of this opinion, I will refer 
- 28 -

to these principles using the labels “fair recovery” and “fair apportionment,” 

respectively.

There also seems to be a somewhat unrelated basic principle that an injured 

party should not be forced to bring a claim against a party that the injured party 

does not want to sue. I will refer to this as the “plaintiff’s choice” principle. See

Stuart v. Hertz Corp., 351 So. 2d 703, 706 (Fla. 1977) (“The choice of when and 

whether to sue his treating physician for medical malpractice is a personal one 

which rightfully belongs to the patient.”).

Finally, there appears to be a general preference that related claims be 

adjudicated in one proceeding when possible. See 35A C.J.S. Federal Civil 

Procedure § 134 (June 2017 Update) (explaining that courts generally have a 

strong policy favoring the inclusion of “all persons materially interested, either 

legally or beneficially, in the subject matter of a suit . . . so that there can be a 

complete decree which will bind them all and so that the court can do complete 

justice”) (footnote omitted); 5 Fla. Prac., Civil Practice §15:8 (2016-17 ed.) 

(“Florida courts have expressed a general preference for the resolution of multiple 

claims in a single trial.”). Although this preference appears primarily rooted in 

society’s concern for efficiency, it also strongly serves the interests of the parties 

by avoiding the risk of inconsistent verdicts and saving costs for them as well. Id. 

I will refer to this last principle in section III as the “joinder” principle.
- 29 -

B. The Swing Between Competing Principles & General Choice

of Comparative Negligence

To fully understand the rephrased question, it is extremely helpful to have at 

least some basic understanding of how the law has shifted over time as our courts 

and legislatures—guided by the “first principles” discussed above—have 

attempted to be as fair as possible to all parties and to the public. I start with the 

rule of “contributory negligence” that “arose in England in the early nineteenth 

century, soon spread to the United States, and flowered throughout the common 

law world with the growth of the industrial revolution.” David C. Sobelsohn, 

Comparing Fault, 60 Ind. L.J. 413, 413 (1985) (footnotes omitted). The 

“contributory-negligence doctrine” is a rule of law that “completely bars a 

plaintiff’s recovery if the damage suffered is partly the plaintiff’s own fault.” 

Black’s Law Dictionary 403 (10th ed. 2014). This rule protected tortfeasors from 

liability for harm that they did not cause and reduced costs for the civil justice 

system. But, these goals, achieved through “all-or-nothing” recovery, Sobelsohn, 

supra, at 413, were met at a complete cost of the other “first principle” of making 

the injured party whole for damages caused by others.

Between 1945 and the mid-1970s, England and most jurisdictions in the 

United States replaced the contributory negligence doctrine with a doctrine of 

“comparative negligence” by which a plaintiff’s recovery against a single 

tortfeasor would be reduced to the extent that his or her own actions caused the 
- 30 -

injury for which he or she sought to recover from the defendant. Id. at 414-15 & 

n.16; see also Black’s Law Dictionary 341-42 (10th ed. 2014) (defining the 

“comparative-negligence doctrine” as “[t]he principle that reduces a plaintiff’s 

recovery proportionally to the plaintiff’s degree of fault in causing the damage, 

rather than barring recovery completely” and noting that most states have 

statutorily adopted the doctrine). Florida abandoned contributory negligence for 

comparative negligence in 1973. See Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 

1973).

Cases involving two or more tortfeasors are more complicated and have 

spawned various rules in various jurisdictions at various times to address the “first 

principles.” Focusing on a desire to make the injured party whole, a doctrine of 

joint and several liability began to be widely applied in many contexts involving 

multiple tortfeasors. See generally, Gerald W. Boston, Apportionment of Harm in 

Tort Law: A Proposed Restatement, 21 U. Dayton L. Rev. 267 (1996). Under this 

doctrine, a tortfeasor is held fully liable for all damages caused by all tortfeasors. 

This doctrine promotes the principle of making an injured party whole but usually 

results in a tortfeasor compensating the plaintiff for harm that the tortfeasor did not 

cause. See Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 

So. 2d 1239, 1257 (Fla. 1996) (explaining that joint and several liability “allows a 
- 31 -

claimant to recover all damages from one of multiple defendants even though that 

defendant may be the least responsible defendant in the cause”).

While some jurisdictions applied joint and several liability, other 

jurisdictions applied comparative negligence principles to the multiple-tortfeasor 

problem. See Boston, supra, at 291. And, ultimately, almost all jurisdictions 

ended up selecting comparative negligence principles over joint and several 

liability as the fairest system overall, in most cases. See, e.g., 86 C.J.S. Torts § 96 

(June 2017 Update) (“Where the tortfeasors have not acted in concert and have 

caused separate and distinct harms or injuries, each tortfeasor is only severally 

liable for the damage caused by its own tortious conduct.”). Now, in most cases, 

“an injury caused by two or more persons should be apportioned according to their 

respective shares of comparative responsibility.” Restatement (Third) of Torts: 

Apportionment Liab. § 26 cmt. a. (2000). In Florida, these general principles were 

codified in statute when the Legislature adopted the “Uniform Contribution 

Among Tortfeasors Act” in 1975. See ch. 75-108, Laws of Fla. (creating § 768.31, 

Fla. Stat. (1975)).

4

 

4. I fully understand that I am blurring important concepts here and that 

there is a vast difference between apportioning damages based upon cause (the 

common law approach) and apportioning damages based upon fault (the statutory 

approach in Florida and most states). But, that is a complicated subject that would 

take us far afield of the question posed in this case.
- 32 -

The law in Florida also appears to have developed to address the competing 

efficiency and plaintiff’s choice concerns in a fair way. A plaintiff can join all 

tortfeasors in one action (assuming that the tortfeasor can be found and a Florida 

court has personal jurisdiction over the party). See Fla. R. Civ. P. 1.210. And, if a 

plaintiff has no desire to sue a tortfeasor, the other defendant tortfeasors can still 

have the absent tortfeasor included on the verdict form so that each defendant is 

held responsible only for the harm attributable to its conduct. See Fabre v. Marin, 

623 So. 2d 1182, 1185-87 (Fla. 1993), receded from on other grounds by Wells v. 

Tallahassee Mem’l Reg’l Med. Ctr., 659 So. 2d 249 (Fla. 1995).

If these rules applied in this case, there would be no question to answer. The 

plaintiff could have chosen if and when to sue his medical providers, but Boozer 

(the initial tortfeasor) would not have been held responsible for damages caused by 

the medical providers (the subsequent tortfeasors).5 However, these general rules 

do not apply because of a long-standing common law exception to the general 

common law rule that “each tortfeasor is only severally liable for the damage 

caused by its own tortious conduct,” 86 C.J.S. Torts § 96 (June 2017 Update)—an 

 

5. Although the Medical Provider defendants’ negligence has not been 

established, “[b]ecause this case is before the Court on a motion to dismiss, the 

factual allegations stated in the [plaintiff’s medical negligence] complaint[, as well 

as the facts alleged in the complaints filed by Boozer and her insurance company 

seeking equitable subrogation from the medial providers,] are accepted as true.” S. 

Baptist Hosp. of Fla., Inc. v. Welker, 908 So. 2d 317, 320 (Fla. 2005).
- 33 -

exception that applies where, as here, the medical provider whose care is 

necessitated by the initial tortfeasor’s negligence renders care negligently, further 

damaging the plaintiff.

C. Exception for Initial Tortfeasor & Subsequent Negligence

by Medical Provider

Even as jurisdictions rejected joint and several liability in most multipletortfeasor situations, they almost uniformly kept the rule that when a tortfeasor 

causes “another’s bodily injury” and “additional bodily harm result[s] from . . . 

efforts of third persons in rendering aid which the other’s injury reasonably 

requires, [the initial tortfeasor is held fully liable for the additional bodily harm,] 

irrespective of whether such acts are done in a proper or a negligent manner.” 

Restatement (Second) of Torts § 457 (Mar. 2017 Update). The Restatement 

(Second) of Torts explains the basis for this rule as it relates to medical treatment 

as follows:

It would be stretching the idea of probability too far to regard it 

as within the foresight of a negligent actor that his negligence might 

result in harm so severe as to require such services and therefore that 

he should foresee that such services might be improperly rendered. 

However, there is a risk involved in the human fallibility of 

physicians, surgeons, nurses, and hospital staffs which is inherent in 

the necessity of seeking their services. If the actor knows that his 

negligence may result in harm sufficiently severe to require such 

services, he should also recognize this as a risk involved in the other’s 

forced submission to such services, and having put the other in a 

position to require them, the actor is responsible for any additional 

injury resulting from the other’s exposure to this risk.
- 34 -

Id. at cmt. b.

As in almost all states, this was the long-standing rule in Florida. See J. Ray 

Arnold Lumber Corp. v. Richardson, 141 So. 133, 135 (Fla. 1932). And, the 

Legislature did not change this rule when it adopted section 768.81, Florida 

Statutes. See Assoc. for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So. 2d 

520, 525 (Fla. 5th DCA 1999). As noted in several district court of appeal 

opinions,6this rule is contrary to Florida’s general comparative negligence policy 

choice that favors not holding a person legally responsible for injuries that he or 

she did not legally cause.7 However, I see no reason to question the Legislature’s 

decision to stick with the near-universal rule in this context that favors fairness to 

 

6. See, e.g., Caccavella v. Silverman, 814 So. 2d 1145, 1149 (Fla. 4th DCA 

2002), review dismissed, 860 So. 2d 976 (2003); Letzter v. Cephas, 792 So. 2d 

481, 488 (Fla. 4th DCA 2001).

7. Under basic tort “causation” principles, a person is not generally held 

liable for injury resulting from the independent negligent actions of a subsequent 

tortfeasor unless those actions are a reasonably foreseeable consequence of the 

initial tortfeasor’s negligence. See Rawls v. Ziegler, 107 So. 2d 601, 605-06 (Fla. 

1958) (“Where injury results from two separate and distinct acts of negligence by 

different persons operating and concurring simultaneously and concurrently, both 

are regarded as the proximate cause and recovery can be had against either or both. 

But where . . . an independent force or act intervenes to bring about a result that the 

defendant’s negligence would not otherwise have produced, it is generally held 

that the defendant is liable only where the intervening force or act was reasonably 

foreseeable.”) (citation omitted).
- 35 -

the plaintiff over the initial tortfeasor whose wrongful actions forced the plaintiff 

to seek medical care.

D. The Initial Tortfeasor’s Remedy

As a balance, however, the law also almost universally recognizes the need 

to provide a legal avenue for an initial tortfeasor, once liable for injuries 

attributable to subsequent medical negligence, to seek recourse from the medical 

provider(s) who legally caused the damages. See generally, M. Flaherty, Right of 

Tortfeasor Initially Causing Injury to Recover Indemnity or Contribution from 

Medical Attendant Aggravating Injury or Causing New Injury in Course of 

Treatment, 72 A.L.R. 4th 231 (1989). As indicated by the title of this article, most 

states rely upon an indemnity or contribution theory as the means through which 

the initial tortfeasor made liable for medical negligence can pursue a claim against 

the negligent medical provider(s).8 Id. at § 2[b]. Florida is virtually alone in its 

reliance upon equitable subrogation as the applicable legal theory. Id.; see also

Lloyds, 382 So. 2d at 704 (recognizing that “the doctrines of indemnity and 

contribution among subsequent tortfeasors are not cognizable under Florida law” 

 

8. Some of these jurisdictions allow the initial tortfeasor to join the medical 

provider in the original suit, while others require an independent action brought 

after judgment is rendered against the initial tortfeasor. Flaherty, supra, at § 2[b]. 

In some jurisdictions requiring a separate action, the second trial is permitted to 

proceed shortly after rendition of the initial verdict—using “the same jury that 

heard the initial action” or by the court (without a jury). Id.
- 36 -

and opting to “align[] Florida with [two] jurisdictions relying upon subrogation as 

a remedy of affording an initial tortfeasor equitable apportionment of liability 

when a victim’s injuries have been negligently aggravated by an attending 

doctor”).

III. ANSWERING THE REPHRASED QUESTION

With the proper framework in place, resolution of the question raised by the 

facts of this case easily flows from a reference back to the first principles of tort 

law and a simple step-by-step review of Florida’s policy choices that have placed 

us in a position of needing to address the question at all.

First, Florida chose fairness to the injured party when it rejected contributory 

negligence in favor of comparative negligence. See Hoffman, 280 So. 2d at 438. 

This is particularly significant here because common sense suggests that the most 

significant damages flow from the brain injury and also suggests a fair probability 

that the brain injury could have been avoided had Hintz chosen to wear a helmet.9

Second, Florida chose fairness to the injured party by choosing the fair 

recovery principle over the fair apportionment principle in this narrow category of 

multiple-tortfeasor cases and thereby allowed the plaintiff to recover a judgment 

 

9. Because Florida generally apportions damages based upon fault rather 

than cause, the jury was not asked to link the initial head injury to the respective 

breaches of duty by the plaintiff and the initial tortfeasor. See generally § 

768.81(2)-(3), Fla. Stat. (2015).
- 37 -

from the initial tortfeasor for damages attributable to the subsequent tortfeasor. 

See Stuart, 351 So. 2d at 706.

Third, Florida chose fairness to the plaintiff by choosing the plaintiff’s 

choice principle over the joinder principle and barring the initial tortfeasor from 

joining the medical provider in the initial suit. See id.

Fourth, Florida chose fairness to the plaintiff by choosing the plaintiff’s 

choice principle over the fair apportionment principle and barring the initial 

tortfeasor from bringing an action independent of the original plaintiff and against 

the subsequent tortfeasor, even after entry of the judgment against it for damages 

attributable to the subsequent tortfeasor, without first fully satisfying the judgment 

(which the initial tortfeasor in this case clearly cannot do). See Lloyds, 382 So. 2d 

at 703-704 (holding initial tortfeasor could state a claim for equitable subrogation 

against the allegedly negligent medical provider on facts where the initial 

tortfeasor had previously “settl[ed] with the victim for all injuries flowing from the 

accident and her treatment thereof”). 

But the facts of the case before us necessitate another policy choice. At this 

juncture, if the goal really is to be as fair as possible to all parties and as efficient 

as possible for society, it is time to consider fairness to the initial tortfeasor and 

society’s interest in efficiency. Barring the initial tortfeasor’s action now that the 

injured party has filed suit against his medical providers does nothing to satisfy any 
- 38 -

first principle. Allowing the action honors both the joinder principle and the fair 

apportionment principle. The answer is clear. Now that the injured party has sued 

his medical providers, the initial tortfeasor who has been legally “placed ‘in the 

shoes’ of the plaintiff” must be allowed to join the plaintiff’s action to protect its 

interests.10 Id. at 704 (quoting 30 Fla. Jur. Subrogation § 11).

The majority’s contrary result seems to be grounded in two concerns. First, 

the majority seems to imply that something in the nature of the equitable 

subrogation doctrine itself prevents this fair result. It does not. Despite the fact 

that subrogation is generally described as an equitable remedy for those who “pay” 

the debts of others, “[m]ost courts . . . appear to be permitting . . . contingent 

subrogation claims as a matter of right, in accordance with [federal and state 

procedural joinder rules].” Gregory R. Veal, Subrogation: The Duties and 

Obligations of the Insured and Rights of the Insurer Revisited, 28 Torts & Ins. L.J. 

69, 84 (1992). The same is true in Florida, at least in other contexts. See

Attorneys’ Title Ins. Fund, Inc. v. Punta Gorda Isles, Inc., 547 So. 2d 1250, 1251 

 

10. Justice Pariente correctly notes that Boozer and her insurer initially 

requested to substitute for the plaintiff. See concurring op. at 20 (Pariente, J.). 

However, the trial court denied that request, and Boozer does not challenge that 

decision. Boozer then filed an amended complaint seeking to join with plaintiff in 

claiming what is sought by the plaintiff's complaint (on the theory that since 

plaintiff made her legally liable for the same damages plaintiff now seeks from the 

medical providers, equity should allow her to join the action and protect her rights 

vis-à-vis the subsequent tortfeasors whose negligence caused the damages for 

which she is now liable). 
- 39 -

(Fla. 2d DCA 1989) (holding that Florida law permits the filing of contingent 

subrogation claims because it is more convenient than requiring a second suit and 

because Florida Rule of Civil Procedure 1.180 (Florida’s procedural joinder rule) 

permits it); see also Essex Builders Grp., Inc. v. Amerisure Ins. Co., 429 F. Supp. 

2d 1274, 1289 (M.D. Fla. 2005) (“Florida decisions hold that contingent claims of 

equitable subrogation and contribution can be asserted prior to making payment.”). 

More importantly, the very nature of this equitable doctrine is flexibility to 

promote fairness, as the Fifth District correctly recognized below. See Allstate Ins. 

Co. v. Theodotou, 171 So. 3d 163, 167-68 (Fla. 5th DCA 2015) (relying on 

equity’s favor of “justice and fairness over formalistic legal rules” and Lloyds’ 

policy goal of “ensur[ing] that liability is correctly apportioned and [the initial 

tortfeasor] is not held liable for more than her fair share” to authorize the 

contingent equitable subrogation claim against the Medical Provider defendants).

As explained by this Court more than eighty years ago,

[t]he doctrine of subrogation . . . has long been an established 

branch of equity jurisprudence. It does not owe its origin to 

statute or custom, but it is a creature of courts of equity, having 

for its basis the doing of complete and perfect justice between 

the parties without regard to form. It is a doctrine, therefore, 

which will be applied or not according to the dictates of equity 

and good conscience, and considerations of public policy, and 

will be allowed in all cases where the equities of the case 

demand it.
- 40 -

Dantzler Lumber & Exp. Co. v. Columbia Cas. Co., 156 So. 116, 119 (Fla. 1934) 

(quoting 25 R.C.L. 1313) (emphasis added). We followed this declaration of the 

limits and contours of the doctrine with another declaration: “Our court is 

committed to a liberal application of the rule of equitable subrogation.” Id. at 120. 

The majority’s narrow, formalistic holding stands in odd juxtaposition with the 

nature of the remedy that it purports to apply—a “remedy” that on the actual facts 

of this case provides no remedy at all. “[E]quity and good conscience” demand a 

different result—a result that is consistent with the first principles of Florida’s tort 

law and the policy choices they have informed, including this Court’s commitment 

to liberal application of the rule of equitable subrogation. Lloyds, 382 So. 2d at 

704.

The majority’s second concern seems to be fairness to the plaintiff, although 

this concern does not seem to be grounded in any recognized general policy 

principle. Rather, the majority observes that permitting joinder of the initial 

tortfeasor would “overly complicate the litigation and unfairly prejudice Hintz.” 

Majority op. at 18. I have three responses to this unexplained and unsupported 

claim.

First, joinder is universally favored in every jurisdiction in this nation, in 

most instances despite the fact that adding parties will always in some vague sense 
- 41 -

complicate the litigation and thereby “prejudice” the party who would rather 

exclude the to-be-joined party.

Second, I do not see the complication here where Boozer “stands in the 

shoes” of Hintz and has the same interest in having the Medical Provider 

defendants held fully responsible for the damages caused by their negligence. If 

the matter goes to trial, it should be easy to devise an instruction that explains 

Boozer’s presence in a way that prejudices no one. The only real complication for 

Hintz is that he will not be able to settle with the Medical Provider defendants 

without negotiating a release of some kind with Boozer (and her insurance 

company). But, is that unfair? It was Hintz himself who made Boozer a co-owner 

of his claim against the Medical Provider defendants by first securing a judgment 

against Boozer for damages attributable to them. If Hintz decides that he is willing 

to accept less than the full value of the damages claim against the Medical Provider 

defendants in full settlement of the claim, it seems intolerably unfair to suggest that 

Boozer should be left holding the bag and denied a seat at the table to assure that 

her liability for those same damages is fairly reduced as well.11 In short, it is only 

Boozer who stands to suffer any real (legal) prejudice from the majority’s rule. 

 

11. It is for this reason that I disagree with Justice Pariente’s argument that 

Boozer’s interests will be fully protected as a non-party simply because “the 

injured plaintiff has a real incentive to obtain the maximum amount against the 

Medical Provider defendants,” as Justice Pariente argues. See concurring op. at 23

(Pariente, J.). The vast majority of cases settle for less than the “maximum 
- 42 -

Third, the fairness or policy decision that we make at this juncture should 

not be made in isolation, but with reference to the policy decisions that proceeded 

this one and landed us here. As with all policy decisions, it should also be made by 

reference to the basic principles underlying this area of the law. As explained 

above, to this point we have chosen first principles that favor the plaintiff with 

every decision. Of course, each prior choice involved a balancing of competing 

principles, and I do not take issue with any of the prior choices. I do, however, 

take issue with the majority’s decision, as expounded by Justice Pariente’s 

concurrence, that Boozer’s inability to satisfy the judgment is the death knell of the 

contingent equitable subrogation claim. For all the “equitable considerations” the 

majority purports to weigh, see concurring op. at 23 (Pariente, J.), this inequitable 

holding underscores the majority’s failure to account for first principles that 

demand a different outcome in this case. With the fair apportionment and joinder

 

amount” or full value of a claim. That is the nature of compromise and settlement. 

The allegation in this case is that medical negligence occurred and is the legal 

cause of plaintiff’s permanent brain injury—which would account for most of the 

$10 million or so in unpaid damages for which Boozer is still responsible. If we 

(or the plaintiff) had chosen fair apportionment and joinder in the first place, a jury 

would have already made the determination as to who—between Boozer and the 

medical providers—is primarily responsible for most of plaintiff’s damages. 

Because we did not—and made Boozer liable for all damages—Boozer should be 

allowed to fully participate in the proceeding where that determination will now be 

made. If she is not, plaintiff and the Medical Provider defendants could 

compromise and settle for less than full value, as most parties do, dismissing the 

suit and leaving Boozer still liable for millions of dollars in damages attributable to 

the negligence of the Medical Provider defendants.
- 43 -

principles on Boozer’s side of the scale and no first principle on the other, there is 

only one way the scale can now tip, if it is calibrated evenly: allow the contingent 

equitable subrogation claim.

IV. CONCLUSION

I would answer the rephrased question in the affirmative and approve the 

result reached by the Fifth District Court of Appeal. Therefore, I respectfully 

dissent.

CANADY, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified 

Great Public Importance 

Fifth District - Case Nos. 5D14-1291, 5D14-1352, and 5D14-1436

(Brevard County)

Sylvia H. Walbolt and Steven M. Blickensderfer of Carlton Fields Jorden Burt, 

P.A., Tampa, Florida; and Henry W. Jewett, II, and Karissa L. Owens of Rissman, 

Barrett, Hurt, Donahue & McLain, P.A., Orlando, Florida,

for Petitioner Holmes Regional Medical Center

Angela E. Rodante and Dale M. Swope of Swope Rodante, P.A., Tampa, Florida; 

Hendrik Uiterwyk and John C. Hamilton of Abrahamson & Uiterwyk, Tampa, 

Florida; and Barbara Green of Barbara Green, P.A., Coral Gables, Florida,

for Petitioner Douglas Stalley, as Guardian of the Property of Benjamin 

Edward Hintz

Thomas E. Dukes, III, and Wilbert R. Vancol of McEwan, Martinez, Dukes & 

Hall, P.A., Orlando, Florida,

for Petitioners David Packey, M.D., and Neurology Clinic, P.A.
- 44 -

Stephen B. Sambol of Mateer & Harbert, P.A., Orlando, Florida,

for Petitioners Basil Theodotou, M.D., and Basil Theodotou, M.D., P.A.

Daniel A. Martinez, Weslee L. Ferron, Inguna Varslavane-Callahan, and Jennifer 

C. Worden of Martinez Denbo, L.L.C., Saint Petersburg, Florida,

for Respondents Allstate Insurance Company and Allstate Indemnity 

Company

Jane Anderson and Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, 

Florida,

for Respondent Emily Boozer

Andrew S. Bolin of Beytin, McLaughlin, McLaughlin, O’Hara, Bocchino & Bolin, 

Tampa, Florida,

for Amicus Curiae Florida Hospital Association

Roy D. Wasson of Wasson & Associates, Chartered, Miami, Florida,

for Amicus Curiae Florida Justice Association

Michael C. Clarke and Betsy E. Gallagher of Kubicki Draper, P.A., Tampa, 

Florida,

for Amici Curiae American Insurance Association and Florida Insurance 

Council