DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PHILIP MORRIS USA INC., and

R.J. REYNOLDS TOBACCO COMPANY,

Appellants,

v.

BEATRICE SKOLNICK, as personal representative of the

ESTATE OF LEO SKOLNICK, deceased,

Appellee.

No. 4D13-4696

[July 15, 2015]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; David F. Crow, Judge; L.T. Case No. 

502009CA004045-AG.

Amir C. Tayrani of Gibson, Dunn & Crutcher, LLP, Washington, D.C., 

Joseph H. Lang, Jr. of Carlton Fields Jorden Burt, P.A., Tampa, and Peter 

M. Henk of Shook Hardy & Bacon, L.L.P., Houston, Texas, for appellant, 

Philip Morris USA, Inc.

Gregory G. Katsas of Jones Day, Washington, D.C., for appellant, R.J. 

Reynolds Tobacco Company.

David J. Sales of David J. Sales, P.A., Jupiter, John S. Mills of The Mills 

Firm, P.A., Tallahassee, and Jonathan R. Gdanski of Schlessinger Law 

Offices, P.A., Fort Lauderdale, for appellee.

GROSS, J.

In this Engle1 progeny case, plaintiff Beatrice Skolnick recovered 

compensatory damages from two tobacco companies—Philip Morris USA 

Inc. and R.J. Reynolds Tobacco Company. The jury found for the 

defendants on claims of fraudulent concealment and conspiracy to commit 

fraudulent concealment.

1Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
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We confront a novel issue in an Engle case. In 2004, as a plaintiff in a 

New York class action, Beatrice executed a settlement agreement, 

containing a release and covenant not to sue concurrent tortfeasors, where 

the injury at issue was her husband’s lung cancer. We hold that this 

settlement agreement applies to bar the strict liability and negligence 

causes of action in this case. However, under New York law, the release 

and covenant not to sue do not bar the intentional tort claims of fraudulent 

concealment and conspiracy to commit fraudulent concealment.

Beatrice cross-appealed from the defense verdict on the intentional tort 

counts. As to those counts, the trial court applied our decision in Philip 

Morris USA, Inc. v. Hess, 95 So. 3d 254 (Fla. 4th DCA 2012). The Florida 

Supreme Court quashed this decision in April 2015. See Hess v. Philip 

Morris USA, Inc., 40 Fla. L. Weekly S188 (Fla. Apr. 2, 2015).

We reverse the judgment for the plaintiff on the strict liability and 

negligence counts and remand to the circuit court for the entry of a 

judgment for the defendants. On the cross-appeal, we reverse the 

judgment for the defendants on the fraudulent concealment and 

conspiracy counts and remand for a new trial.

The Release in the New York Action

In 2002, Beatrice joined hundreds of plaintiffs in a New York class 

action lawsuit against Verizon Communications Inc. and other defendants 

responsible for the operation of the Sylvania Plant (“the Hicksville Action”), 

which was located just 500 meters from Beatrice and Leo Skolnick’s 

Westbury home. The complaint alleged the “facility emitted toxins into the 

surrounding environment located in Hicksville, New York,” which 

“contaminated the air, soil, surface water and ground water in the 

surrounding communities.” As it concerned Leo Skolnick, the complaint 

set forth the following:

Beatrice Skolnick, individually, and as Administratrix of the 

Estate of Leo Skolnick (“decedent”), . . . brings an action for 

both conscious pain and suffering and wrongful death on 

behalf of the decedent. From the time period beginning in July 

of 1959 and ending in September of 1984, decedent resided 

[in] Westbury, New York, within close proximity of the 

Sylvania facility sites. As a result of Defendants’ repeated 

releases of toxic, hazardous and/or radioactive 

substances into the area surrounding their operations on 

or near the Sylvania facility, decedent developed colon 

and lung cancer. While prior to the development of his 

disease, decedent had been a healthy and active person, the 

onset of the cancers had a debilitating effect on his life, 
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causing him severe physical injury, pain and suffering, and 

mental and emotional damage, as well as causing him to incur 

extensive medical and related expenses and lost income. This 

same disease ultimately lead to his death in 1993. 

(Emphasis added).

The class action settled for $10,400,000, with Beatrice receiving a 

$60,000 share. In a 38-page settlement agreement, which states that it is 

to be governed by New York law, the Hicksville parties settled “the claims 

described herein against” the listed defendants and the plaintiffs agreed to

a release. The settlement agreement indicated that the “Hicksville Actions 

concern[ed] the operations of and alleged emissions and discharges from 

a facility that manufactured nuclear fuel elements from approximately 

1952 until 1966.” Consistent with this description, the agreement defined 

“Released Claims” as including any and all actions “which ar[o]se out of or 

relate[d] to”:

(1) any claim asserted, or that could have been asserted, in 

the Hicksville Actions . . . or (2) (a) the operation or conduct of 

the Hicksville Facility and/or the Hicksville Sites, and/or (b) 

any condition of the premises, the exterior or interior 

environment at the Hicksville Facility and/or the Hicksville 

Sites, and/or (c) any condition, result, effect or impact 

allegedly created, endured or caused by the business, 

manufacturing, waste removal or activities performed or 

taking place at the Hicksville Facility and/or the Hicksville 

Sites. 

The persons to be “released” were defined to include a number of 

corporations and entities filling two-and-a-half pages. 

Beginning on page 24, the settlement agreement sets the contours of 

the plaintiffs’ release, stating initially that upon an identified “effective 

date” the releasers—i.e., the class plaintiffs—“shall be deemed to have, and 

by operation of th[e] Agreement shall have[] . . . fully, finally, and forever 

released, relinquished and discharged the Released Persons from any and 

all of the Released Claims.” The agreement further stated that the 

agreement and release “may be pled as a full and complete defense to any 

Released Claims that may be instituted, prosecuted or attempted in breach 

of th[e] agreement.”

Paragraph 26 then expanded from the release into the plaintiffs’ 

covenant not to sue “any other tortfeasors, whether joint or concurrent 

and whether now known or unknown,” stating:
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26. Releasors covenant not to sue any other tortfeasors, 

whether joint or concurrent and whether now known or 

unknown, for losses or injuries alleged in the Hicksville 

Actions or at issue in the Released Claims. This covenant 

does not apply to future claims based on the aggravation of 

the losses or injuries alleged in the Hicksville Actions. 

Releasors may sue future tortfeasors if such tortfeasors 

aggravate and/or increase the severity of a loss or injury 

alleged in the Hicksville Actions.

(Emphasis added).

As required by the settlement agreement, in 2004 Beatrice executed a 

“Verified Declaration for Allocation of Settlement Proceeds” for her 

“Wrongful Death Claim.” In the declaration, Beatrice asserted that the 

“illness[] or injur[y] . . . that caused the decedent’s death” was “lung 

cancer.” Beatrice further attested that the lung cancer “diagnosis was 

ultimately confirmed at [Leo’s] death” as dictated in his death certificate. 

Motion for Summary Judgment

Prior to trial, the defendants moved for summary judgment on their 

affirmative defense that Beatrice’s tobacco claims were barred by 

Paragraph 26’s covenant not to sue since Beatrice was suing “other 

tortfeasors” for the same “loss[] or injur[y] alleged in the Hicksville 

Actions”—i.e., that Leo died from lung cancer. The defendants argued that 

because the settlement agreement was defined to include Beatrice’s “claim 

for [Leo’s] lung cancer and death,” the covenant not to sue “bar[red her] 

from suing ‘any other tortfeasors’ for [Leo’s] lung cancer, even if those 

tortfeasors were ‘unknown’ to her at the time she entered into the

Settlement Agreement.” Beatrice responded with numerous 

counterarguments, one of which was that the defendants’ interpretation 

of the release was unreasonable since the release and settlement 

agreement sought to resolve an entirely separate action and the “only 

losses or injuries alleged in the Hicksville Actions or at issue in the 

Released Claims were those caused by releases of contaminants from the 

New York defendants[].” “Had the New York defendants intended the 

[covenant not to sue] to achieve the extraordinary result that the tobacco 

defendants now claim for it,” Beatrice argued, their “sophisticated counsel 

certainly would have expressed that intent more clearly.” 

At a hearing on the motion, the trial court questioned the merits of the 

defendants’ motion because Beatrice’s tobacco claims and Hicksville 

claims were “totally different, essentially different torts altogether.” Three 

days later, the trial court entered a written order denying the summary 

judgment motion, citing New York’s General Obligations Law § 15-108 and 
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two cases—Long Island Pipe Fabrication & Supply Corp. v. S & S Fire 

Suppression Sys., Inc., 641 N.Y.S.2d 477 (N.Y. App. Div. 1966), and Wells 

v. Shearson Lehman/Am. Express, Inc., 526 N.E.2d 8 (N.Y. 1988). 

The release and covenant not to sue in the Hicksville Action barred 

the negligence and strict liability causes of action, but not the 

intentional torts of fraudulent concealment or conspiracy to 

commit fraudulent concealment

The crucial issue in this case concerns whether these provisions of the 

settlement agreement for the Hicksville class action—in particular, 

Paragraph 26—bar Beatrice from bringing her tobacco suit, since both are 

predicated on the Leo’s death from lung cancer. The covenant not to sue 

covers “joint or concurrent” tortfeasors, “whether now known or 

unknown.” The tobacco companies here are concurrent tortfeasors with 

the Hicksville defendants, so they stand under the umbrella of the 

covenant not to sue. 

Standard of Review

Because this issue arises from a summary judgment and the 

construction of an unambiguous contract, our review is de novo. See

Dennis v. Kline, 120 So. 3d 11, 20 (Fla. 4th DCA 2013) (orders on summary 

judgment motions are reviewed de novo); Berman v. Parco, 986 F. Supp.

195, 208-09 (S.D.N.Y. 1997). Furthermore, since the Hicksville settlement 

agreement so dictates, we apply New York law in interpreting its language. 

See Blechman v. Estate of Blechman, 160 So. 3d 152, 157-58 (Fla. 4th DCA 

2015).

Analysis

Releases and covenants not to sue are a species of contract construed 

under the principles of contract law. See Bank of Am. Nat’l Trust and Sav. 

Ass'n v. Gillaizeau, 766 F.2d 709, 715 (2d Cir. 1985). The threshold 

inquiry in interpreting a release or covenant not to sue is whether its terms 

are unambiguous, see Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 

(2d Cir. 2000), i.e., whether “there is no reasonable basis for a difference 

of opinion.” Greenfield v. Phillies Records, 780 N.Y.S.2d 562, 569-70 (N.Y. 

2002) (internal quotation omitted). If the release or covenant not to sue is 

clear on its face, its construction is “a matter of law, appropriate for 

summary judgment resolution.” Berman, 986 F. Supp. at 208-09 

(applying New York law). 

In construing an unambiguous release or covenant not to sue, “effect 

must be given to the intent of the parties as indicated by the language 

employed.” Shklovskiy v. Khan, 709 N.Y.S.2d 208, 209 (N.Y. App. Div. 

2000). In gleaning intent, “[t]he meaning and coverage of a release 
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necessarily depends upon the controversy being settled and upon the 

purpose for which the release was given,” Apfel v. Prestia, 838 N.Y.S.2d 

605, 606 (N.Y. App. Div. 2007); see also Nucci v. Nucci, 987 N.Y.S.2d 176, 

177 (N.Y. App. Div. 2014). “Obviously, ‘a release may not be read to cover 

matters which the parties did not desire or intend to dispose of.’” Peterson 

v. Regina, 935 F. Supp. 2d 628, 636 (S.D.N.Y. 2013) (quoting Cahill v. 

Regan, 184 N.Y.S.2d 348, 157 N.E.2d 505, 510 (N.Y. 1959)). “Moreover, 

because the ‘law looks with disfavor upon agreements intended to absolve 

[a party] from the consequences of his [wrongdoing],’ a release which 

purports to excuse a party from responsibility for misconduct is subject to 

the ‘closest of judicial scrutiny.’” Golden Pac. Bancorp v. F.D.I.C., 273 F.3d 

509, 515 (2d Cir. 2001) (quoting Abramowitz v. N.Y. Univ. Dental Ctr., Coll. 

of Dentistry, 494 N.Y.S.2d 721, 723 (N.Y. App. Div. 1985)). 

The intent of the parties is not the only consideration when evaluating 

a release or covenant not to sue. Under New York’s General Obligations 

Law § 15-108(a), a release or covenant not to sue given to one tortfeasor 

will not discharge other tortfeasors liable for the same injury—whether 

under theories of joint, successive, or vicarious liability—unless the terms 

of the release “expressly so provide.” Tufail v. Hionas, 549 N.Y.S.2d 436, 

437 (N.Y. App. Div. 1989). Section 15-108(a)’s purpose is to abrogate the 

harsh common law principle that the “release of one joint tort-feasor 

automatically released all.”2 Wells v. Shearson Lehman/Am. Exp., Inc., 526 

N.E.2d 8, 12 (N.Y. 1988). By enacting Section 15-108(a), the New York 

Legislature sought “to prevent the automatic release of unnamed parties 

by limiting the effect of a release to that of the language it contains.” Id.

at 14. “What it achieved was a requirement that a release not discharge 

‘everyone’ or ‘anyone’ without saying so.” Id. The sentiment is that “a 

2As the 1972 Law Revision Commission explained in a report supporting the bill’s 

passage in the New York Legislature:

The [common-law] rule sets a trap for the average man, who quite 

reasonably assumes that settling his claim with one person does 

not have any effect on his rights against others with whom he did 

not deal. At present it is necessary for the claimant to make an 

express disclaimer in his release of any intent to release persons 

other than those named in it. It is more in accord with common 

understanding to provide that the release means just what it says; 

if it does not purport to release a party by its express terms, it 

should not affect his liability.

Wells, 526 N.E.2d at 14 (quoting 1972 Report of N.Y. Law Rev. Commn., 1972 

N.Y. Legis Doc. No. 65[K], 1972 McKinney’s Session Laws of N.Y., at 3237, 3239).
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plaintiff should never be deprived of a cause of action against any 

wrongdoer when the plaintiff has neither intentionally surrendered the 

cause of action nor received substantially full compensation.” Keeton, et 

al., Prosser and Keeton, Law of Torts, § 49, at 335 (5th ed. 1984). 

When the language of a release or covenant not to sue, as here, is 

general, without identifying specific defendants, there are three 

approaches to interpreting the “expressly so provide[s]” statutory 

language: (1) the “flat bar” rule, (2) the “specific intent” rule, and (3) the 

“intent” rule. New York subscribes to the “flat bar” rule, which, in the 

context of releases, says “that a general release discharging all other 

parties who might be liable for damages in addition to a named tortfeasor 

is sufficient to release a joint tortfeasor not named or specifically identified 

in the release.” Moore v. Missouri Pac. R.R., 773 S.W.2d 78, 80 (Ark. 1989); 

Luther v. Danner, 995 P.2d 865, 868 (Kan. 2000); Dobson v. Citizens Gas 

& Coke Utility, 634 N.E.2d 1343, 1344-45 (Ind. App. 1994). “Most ‘flat bar’ 

courts hold that, because a release purporting to discharge . . . other 

parties from liability is unambiguous, it must be construed with reference 

only to the language used and not to any extrinsic evidence of the parties’ 

intent.” Sims v. Honda Motor Co., 623 A.2d 995, 999 (Conn. 1993). Thus, 

it is not “relevant, under the flat bar rule, that the unnamed tortfeasor 

(who seeks to assert the release as an affirmative defense) failed to pay 

consideration.” Noonan v. Williams, 686 A.2d 237, 242 (D.C. 1996).3

New York’s adoption—and application—of the “flat bar” rule arose in 

Wells v. Shearson Lehman/American Express, Inc., 526 N.E.2d 8, a case 

cited by the trial court in its summary judgment order. In Wells, the 

plaintiff and other members of a class action lawsuit entered into a 

settlement agreement with Metromedia, its directors, and a separate 

company to resolve a dispute over a buyout. Id. at 15-16. The settlement 

agreement contained a release, which provided that:

all claims . . . that have been or could have been asserted by 

plaintiffs herein or any members of the Class against any 

3In comparison, the “specific identity” rule “plac[es] a requirement that for a 

release given to one tortfeasor to discharge other potential tortfeasors from 

liability[,] the release must name or otherwise specifically identify such other 

tortfeasors.” Moss v. City of Oklahoma City, 897 P.2d 280, 286 (Okla. 1995); 

Young v. State, 455 P.2d 889m 893 (Alaska 1969); Moore, 773 S.W.2d at 80-81. 

The “intent” rule represents the middle road approach; “[r]ather than presume 

that the parties’ intent was fully expressed within the four corners of the release 

or that, despite the broad language of the release, the parties did not intend it to 

discharge all joint tortfeasors from liability, these courts consider extrinsic 

evidence of the parties’ intent to determine the scope of the release.” Sims, 623 

A.2d at 1001.
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defendant, or against any of the officers, directors, agents, 

attorneys, representatives, affiliates and general and limited 

partners of any defendant, or against anyone else in 

connection with or that arise now or hereafter out of the 

Action, the Settlement (except for compliance with the 

Settlement), or any matters, transactions or occurrences 

referred to in the complaint or in the Stipulation, including 

the recitals herein (the ‘Settled Claims’) shall be compromised, 

settled, released and dismissed with prejudice.

Id. at 16. Twice, the release expressed the parties’ “intention to put 

plaintiffs’ claims regarding the buyout finally to rest.” Id.

After entering into the settlement agreement, the plaintiff instituted an 

action against Metromedia’s financial advisors for damages related to the 

buyout. Id. at 11. The New York Court of Appeals affirmed the lawsuit’s 

dismissal on the grounds the latter action fell within the scope of the 

release, which “expressly provided” for “the release of persons other than 

the named defendants in the class action”—namely, “anyone else in 

connection with the buyout.” Id. at 14. Considering the release’s 

expansive language, the court held the plaintiff “had to have known, from 

the face of th[e] release, that she was discharging . . . ‘anyone else’ for 

claims connected to or arising out of the buyout.” Id. Such intent was 

further bolstered by the release’s language indicating that it sought to 

resolve the buyout situation in its entirety. Id. at 15.

Beatrice argues Wells militates in her favor since it “emphasize[s] the 

need to take stock of the purpose of a given release”—which in this case 

was to resolve the radiation action. This argument views the Hicksville 

settlement agreement with tunnel vision. No one disputes the Hicksville 

defendants sought to wipe their hands clean of further litigation with that 

action. What Beatrice misses, however, is that the language contained 

within the covenant not to sue—which is prospective—does not simply bar 

the plaintiffs from bringing suit against those involved with the radiation 

exposure. Nor does the covenant not to sue constrain itself to the 

underlying cause of action. It speaks to shielding “other tortfeasors, 

whether joint or concurrent” from suits for “losses or injuries alleged in 

the Hicksville Actions or at issue in the Released Claims.” In other words, 

the plaintiffs were barred from suing anyone who would be a joint or 

concurrent tortfeasor should the allegations of the Hicksville actions have 

been proven. As will be discussed, the Hicksville defendants chose those 

words for a reason—to put an end to related litigation by protecting

themselves from future contribution and apportionment claims.
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Joint and Concurrent Tortfeasors under the Hicksville

Settlement Agreement

Contribution permits a “tortfeasor who pays more than his appropriate 

share . . . to recover contribution from other tortfeasors, by separate suit 

or by asserting third party claims against them in the plaintiff’s suit.” Dan 

B. Dobbs, The Law of Torts § 386, at 1079 (2000); see also Bd. of Educ. of 

Hudson City Sch. Dist. v. Sargent, Webster, Crenshaw & Folley, 517 N.E.2d 

1360, 1363 (N.Y. 1987) (stating that the “adjudicated tort-feasor [can] seek 

contribution, or ‘partial indemnity’, from another tort-feasor whether or 

not the second tort-feasor had been made a party to the action”). In New 

York, “[t]he ‘critical requirement’ for apportionment by contribution . . . is 

that ‘the breach of duty by the contributing party must have had a part in 

causing or augmenting the injury for which contribution is sought.’” 

Raquet v. Braun, 681 N.E.2d 404, 407 (N.Y. 1997) (quoting Nassau Roofing 

& Sheet Metal Co., Inc. v. Facilities Dev. Corp., 523 N.E.2d 803, 805 (N.Y. 

1988)). “Thus, contribution is available whether or not the culpable 

parties are allegedly liable for the injury under the same or different 

theories and the remedy may be invoked against concurrent, successive, 

independent, alternative and even intentional tortfeasors.” Id. (internal 

citations and quotation marks omitted) (emphasis added).

In New York, the principle allowing apportionment among tortfeasors 

arose from Dole v. Dow Chemical Co., 282 N.E.2d 288 (N.Y. 1972), where 

the court “permit[ted] apportionment of damages among joint or 

concurrent tort-feasors regardless of the degree or nature of the 

concurring fault.” Kelly v. Long Island Lighting Co., 286 N.E.2d 241, 243 

(N.Y. 1972). As espoused by Dole, and later codified by statute, the 

principle would apply “where the negligence of an alleged joint and 

concurrent tort-feasor, albeit entirely passive, is alleged to have shared in 

the causation of the injuries and damage giving rise to the apportionmentseeker's liability.” O’Sullivan v. State, 371 N.Y.S.2d 766, 781 (N.Y. Ct. Cl. 

1975); see also Rogers v. Dorchester Assocs., 300 N.E.2d 403, 409 (N.Y. 

1973) (stating that apportionment would “appl[y] when two or more tortfeasors have shared, albeit in various degrees, in the responsibility by their 

conduct or omissions in causing an accident, in violation of the duties they 

respectively owed to the injured person”).

Why is this important? Under their worst case scenario, the Hicksville 

defendants and the tobacco Defendants would have been concurrent 

tortfeasors because their independent tortious acts combined to cause the 

same injury—Leo’s lung cancer and wrongful death. Tortfeasors work 

concurrently “when their independent acts concur to produce a single or 

indivisible injury.” Kirkpatrick v. Chrysler Corp., 920 P.2d 122, 126 (Okla. 

1996) (citation omitted); see also Dobbs, supra, § 174, at 423 n.5 (“Courts 
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now say that tortfeasors are concurrent tortfeasors if their independent 

acts lead to an indivisible injury.”). 

Smoking and other cancer-inducing agents—such as asbestos—can 

give rise to a concurrent tortfeasor scenerio where both contribute to the 

same disease or illness. See, e.g., Carter v. Wallace & Gale Asbestos 

Settlement Trust, 96 A.3d 147, 158 (Md. 2014) (“If a tobacco company could 

have been joined as a joint tortfeasor in this litigation, we could have had 

a concurrent tortfeasor scenario.”); see also Kan M. Nawaday, Apportioning 

Asbestos-Tobacco Liability in Falise v. American Tobacco, 88 Cornell L. Rev. 

1142, 1146-49 (2003) (discussing the attempts by asbestos defendants to 

seek apportionment and contribution from tobacco companies as joint or 

concurrent tortfeasors). The reason is that smoking and other harmful 

products can have a synergistic effect towards causing cancer. As 

commentators have explained in the context of asbestos:

asbestos and tobacco smoke are complex carcinogens that 

can affect multiple steps in the multistage process of cancer 

evolution, and that the combined effects will depend on the 

relative magnitude of each carcinogen at each stage. As 

reported in different studies, the interactive effect ranges from 

less than additive to supramultiplicative, but the model for 

insulation workers approximates a multiplicative effect. If the 

multistage model of carcinogenesis holds, and asbestos and 

smoking act at different stages, then a multiplicative 

relationship follows.

George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and 

Litigation, Vol. 13 of the Sourcebook on Asbestos Diseases: Medical, Legal, 

and Technical Aspects 149 (1996).

The Hicksville “radiation” defendants and the tobacco companies are 

concurrent tortfeasors. Leo died of lung cancer, whether caused by 

exposure to radiation, smoking, or a combination of both. If it were indeed 

the latter—if the radiation, like asbestos, functioned synergistically with 

tobacco carcinogens to cause Leo’s lung cancer—then Beatrice could have 

filed her wrongful death lawsuit against either the Hicksville defendants 

or the tobacco defendants, just as she did. Either defendant, as occurred 

in this case, could have asserted the other was the true cause of Leo 

contracting lung cancer. And the tobacco companies could have at least 

attempted to seek contribution from the Hicksville defendants. Cf. 

Nawaday, supra, at 1146-49. 

A prime goal of many class action defendants is to put an end to 

litigation. Had the Hicksville defendants not entered into the covenant not 

to sue, they may have left “themselves open to an action for contribution 
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to a judgment obtained by the Plaintiff against another tortfeasor.” 

Morison v. Gen. Motors Corp., 428 F.2d 952, 954 (5th Cir. 1970). As the 

Eighth Circuit has explained, “[t]he defendant who originally procures the 

release gains nothing if the plaintiff can sue other joint or concurrent 

tortfeasors. In such a case, the original defendant is left open to claims 

for contribution and/or indemnity and may wind up having to litigate the 

case anyway.” Douglas v. U.S. Tobacco Co., 670 F.2d 791, 794 (8th Cir. 

1982). 

New York resolved this issue in 1974 by passing General Obligation 

Law § 15-108(b), which states that “[a] release given in good faith by the 

injured person to one tortfeasor . . . relieves [the tortfeasor] from liability 

to any other person for contribution.” However, “[a] minority of states with 

a statutory right of contribution . . . allow nonsettling tortfeasors to obtain 

contribution from released joint tortfeasors to the extent and in the 

manner that contribution is allowable in the jurisdiction and provided that 

the liability has accrued.” Jean Macchiaroli Eggen, Understanding State 

Contribution Laws and Their Effect on the Settlement of Mass Tort Actions, 

73 Tex. L. Rev. 1701, 1707-08 (1995). 

Here, the Hicksville action was a mass tort involving hundreds of 

plaintiffs. The radiation exposure occurred decades before the settlement, 

meaning many of the plaintiffs—such as the Skolnicks—had moved from 

New York. Without question the Hicksville defendants wanted to avoid the 

headache of numerous contribution and indemnity claims. Beatrice’s 

covenant not to sue other concurrent tortfeasors thus served an important 

purpose in the settlement agreement.

We reject Beatrice’s argument that the covenant not to sue is 

prospective only and thus does not apply to her lawsuit, which she 

contends relates back in time to when the Engle class action was originally 

filed. First, the release was sufficiently broad to cover her tobacco lawsuit. 

Second, and more importantly, Beatrice overlooks the mechanics of joining 

the Engle class. The covenant not to sue was signed in 2004, years before 

the Supreme Court decertified the Engle class. While we agree that “Engle 

progeny plaintiffs are in the same position they would have been in had 

they filed a complaint identical to the Engle class-action complaint on the 

same date the original complaint was filed,” R.J. Reynolds Tobacco Co. v. 

Ciccone, 123 So. 3d 604, 616 (Fla. 4th DCA 2013), rev. granted, 147 So. 

3d 526 (Fla. 2014) (quoting Soffer v. R.J. Reynolds Tobacco Co., 106 So. 3d 

456, 460 (Fla. 1st DCA 2012)), Beatrice had to take the further step, 

following the Florida Supreme Court’s decertification in Engle, to file an 

individual action. See Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 

1261, 1264 (11th Cir. 2015); Philip Morris USA, Inc. v. Douglas, 110 So. 3d 
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419, 432 (Fla. 2013). Filing an individual action is precisely what she 

promised not to do in the Hicksville settlement. 

The Hicksville covenant not to sue does not apply to intentional torts

New York public policy precludes an exculpatory clause, such as a 

covenant not to sue, from applying to intentional torts. “[N]o matter how 

flat and unqualified its terms,” an “exculpatory agreement” “will not 

exonerate a party from liability under all circumstances. Under 

announced public policy, it will not apply to exemption of willful or grossly 

negligent acts.” Kalish-Jarcho, Inc. v. City of New York, 448 N.E.2d 413, 

416 (N.Y. 1983). As the New York Court of Appeals has written,

an exculpatory clause is unenforceable when, in 

contravention of acceptable notions of morality, the 

misconduct for which it would grant immunity smacks of 

intentional wrongdoing. This can be explicit, as when it is 

fraudulent, malicious or prompted by the sinister intention of 

one acting in bad faith.

Id. at 416-17 (footnotes omitted). An agreement which “purports to grant 

exemption from liability for willful” acts “will be viewed as wholly void.” 

Lago v. Krollage, 575 N.E.2d 107, 110 (N.Y. 1991).

The egregious nature of the fraudulent concealment and conspiracy to 

commit fraudulent concealment at issue in this case renders the release 

and covenant not to sue in the Hicksville settlement agreement

inapplicable to these intentional torts.

The trial court erred by relying upon this Court’s decision in Philip Morris 

USA, Inc. v. Hess, 95 So. 3d 254 (Fla. 4th DCA 2012), to provide an 

improper instruction on the statute of repose

On her cross-appeal, Beatrice contends the trial court reversibly erred 

by relying upon this Court’s decision in Philip Morris USA, Inc. v. Hess, 95 

So. 3d 254 (Fla. 4th DCA 2012), in providing an improper instruction on 

the statute of repose. Pursuant to the statute of repose, fraud claims 

“must be begun within 12 years after the date of the commission of the 

alleged fraud.” § 95.031(2)(a), Fla. Stat. (2012). In Hess, this Court held 

that the statute of repose barred a claim for damages based on fraudulent 

concealment, where the jury specifically found that the plaintiff relied only 

on conduct that occurred more than twelve years before the filing date for 

the Engle class action—May 5, 1994. Recently, the Florida Supreme Court 

reversed Hess, holding that “the defendant's last act or omission triggers 

Florida’s fraud statute of repose.” Hess v. Philip Morris USA, Inc., 40 Fla. 

L. Weekly S188 (Fla. Apr. 2, 2015). Therefore, the court reasoned that “for 

statute of repose purposes it is not necessary that the smoker relied during 
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the twelve-year repose period. Where there is evidence of the defendant's 

wrongful conduct within the repose period, the statute of repose will not 

bar a plaintiff's fraudulent concealment claim.” Id. Plaintiffs could 

therefore rely on statements made prior to May 5, 1982. 

In this case, the trial judge instructed the jury that in resolving the 

fraudulent concealment and conspiracy claims it could not consider any 

evidence of “alleged statements, concealment or other conduct that 

occurred before May 5th, 1982.” This was error because our precedent 

was in error. The error was hardly harmless. Beatrice provided extensive 

testimony of misleading and untruthful statements by the tobacco 

industry prior to 1982, while Leo was in the prime of his life. We cannot 

say beyond a reasonable doubt that the erroneous instruction did not 

contribute to the defense verdict on the intentional tort claims. See Special 

v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014).

We reverse the judgment on the intentional tort claims and remand for 

a new trial. We reverse the judgment on the negligence and product 

liability claims and remand for the entry of a judgment for the defendants.

CIKLIN, C.J., and STEVENSON, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.