Vance Salter
Omar Otaola died after his bicycle was struck by a Cusano's Italian Bakery delivery truck on Bear Cut Bridge in Key Biscayne in 2006.
Since then, Miami-Dade County redesigned the popular bike lane on the shoulder of Crandon Boulevard, the site of multiple serious accidents. Marisela Otaola, the 34-year-old bicyclist's widow, accepted a $1 million payout from Allstate, Cusano's insurer, on behalf of her two young daughters, Joanna and Jessica Otaola. She filed a wrongful death action against Cusano's in February 2008.
Now the case is heading back to the trial court. On Dec. 19, the Third District Court of Appeal reversed Miami-Dade Circuit Judge Marc Schumacher, who dismissed the wrongful death lawsuit with prejudice.
The decisive pretrial insurance issue, called "unusual" in the Third District opinion, was whether the pre-suit settlement and payment of a $1 million policy limit by one of Cusano's insurers — without a release of Cusano's or AIG, its excess-coverage insurer — should be rescinded as an incomplete settlement or enforced as if the wrongful death lawsuit was completely settled.
Rescission would require Otaola to return the $1 million; enforcement would doom the lawsuit.
Schumacher agreed with Cusano's argument that the Allstate payout constituted a global settlement of Otaola's claims.
When Otaola did not comply with his order to either return the $1 million or release Cusano's from all liability claims, Schumacher issued an order that ended the lawsuit.
On appeal, the Third DCA decided there had been only a partial settlement of the family's claims. It found that the $1 million received through a probate action was for Otaola's daughters and did not satisfy her individual claim.
"Cusano's was not entitled to any such 'heads I win, tails you lose' relief," Judge Vance Salter wrote for the three-judge panel. He was joined by Judges Barbara Lagoa and Kevin Emas.
The opinion doesn't explain why no release was obtained from Otaola.
Subscribe to Daily Business Review
