Is a Setoff for Economic Damages Permitted Where a Settling Defendant Is 'Not Found Liable' ?

In Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001), the certified question answered by this Court was whether a setoff for economic damages is permitted where a settling defendant is "not found liable." Gouty, 795 So. 2d at 960. The court acknowledged that the Gouty opinion interchanges "not found liable" and "found not liable." However, the tortfeasor in Gouty was listed on the verdict form and was expressly found not to be liable. The opinion states: "In this case, Schnepel was found 100% liable for Gouty's injuries and the jury expressly rejected a finding that Glock was a joint tortfeasor." Id. at 966. The question, therefore, is whether Gouty stands for the proposition that "a failure to establish liability will obviate set-off or that there must be a finding of no liability to preclude recovery." D'Angelo, 832 So. 2d at 137. Glock appeared on the verdict form and was found 0% liable by the jury. Thus, the settling party was "found not liable." In D'Angelo v. Fitzmaurice, 832 So. 2d 135, (Fla. Dist. Ct. App. 2d Dist., 2002), Charlotte Regional did not appear on the verdict form and was not apportioned liability. Although Charlotte Regional was "not found liable," the hospital also was not "found not liable." The D'Angelo court held: "Because the language of the specific question certified and answered was 'not found liable,' we conclude this is the rule we should consider in deciding this case." D'Angelo, 832 So. 2d at 137. Interpreting Gouty in this manner requires a jury finding of liability on the part of the settling party before a setoff for economic damages may be obtained. This interpretation is not supported by the "is or may be jointly and severally liable" language in the setoff statutes and is contradictory to this Court's holding in Wells. Accordingly, the court limits the Gouty holding to cases where a settling defendant is expressly found not liable.