"As Allstate's insured, Cusano's would normally participate directly in the terms of settlement of a covered claim, including the delivery of a release as a condition of payment," the ruling notes. "This is an extraordinary case in that sense."
Cusano's argued that although there was no release, it was clear both sides intended to settle the claims. But Otaola presented affidavits indicating otherwise, which created an issue of fact for a jury to decide, the Third DCA ruled.
Cusano's lawyer, Betsy Gallagher of Kubicki Draper in Tampa, and Otaola's lawyer, Kimberly Boldt of Hollywood, could not be reached for comment by deadline. Stuart Ratzan of Miami, who also represented Otaola, declined to comment.
Killed Under Truck
In a second wrongful death case ruling from Dec. 19, thecourt affirmed a summary final judgment in favor of the National Marine Manufacturers Association.
The recreational boat industry trade group, a participant in the 2008 Miami International Boat Show, parked several tractor trailers on a lot owned by the city of Miami Beach under a temporary license and use agreement signed with the city's housing authority.
On Feb. 7, 2008, David Collins entered the lot, climbed under a parked trailer and fell asleep. A truck driver for the association, who didn't know anyone was under the trailer, hitched it to his truck and pulled out, running over and fatally injuring Collins. The driver was not cited.
Collins' mother, Constance Ryan, sued the trade group and the truck driver, alleging he was negligent in failing to "check around and under the tractor-trailer so as to avoid striking a pedestrian in the vicinity."
A toxicology report determined Collins' blood alcohol level was 0.21, nearly three times the legal limit for drivers. That finding triggered a winning defense.
Under Florida law, anyone "owning or controlling an interest in real property" cannot be held liable for injuries to a trespasser who was legally under the influence of alcohol. The question was: Did the association have an owning or controlling interest?
Ryan contended it did not because the agreement with the city was nominally a license. The association asserted it did because the intent of the agreement made it effectively a lease.
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