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VIA Email to the DOS E-service list

February 2, 2016

Ken Detzner, Secretary of State


Florida Department of State (DOS)
R.A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399-0250
http://dos.myflorida.com/
Public record request F.S. 119.07(1)(c) All public records requests shall be acknowledged
promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.
Dear Secretary Detzner:
Enclosed is the response of the Office of the General Counsel February 2, 2016 to my revised
record request of January 21, 2016. Adam S. Tanenbaum is General Counsel for the DOS.
We are in receipt of you revised public records request on January 21, 2016. Because your
request remains unlimited in terms of date and subject matter we anticipate that a revised cost
estimate still will be in the thousands of dollars. Unless we hear from you otherwise, we will
proceed to finalize an estimate and provide it to you for advance payment. If you instead decide
that you would like to reduce the scope of your request further, please advise so that our estimate
can accommodate your decision.
Meanwhile, your request that the Department, Please identify the source of federal grant funds
so that I may make a separate FOIA to the respective federal agencies, is not a public records
request under Chapter 119, Florida Statutes.

In response to the foregoing, provide records for the last 3 years mandated under Florida
Statutes, section 20.051 Review of programs. A PDF of section 20.051 (2015) is attached.
Provide records showing the source of the federal grant funds under F.S. section 20.051.

The Older Americans Act (OAA), 42 U.S.C. 3001 et seq., is federally funded, and administered
by the Department of Elder Affairs (DOEA) under F.S. 430.101 Administration of federal
aging programs. The DOEA was created by F.S. 20.41 Department of Elderly Affairs.
On March 3, 2015, Frank Collelo, a 67-year-old non-lawyer, appearing pro se, died after
collapsing in a Hillsborough courtroom during a foreclosure hearing on his home. Records
provided by DOEA counsel Sarah Halsell show Mr. Collelo may have been entitled to legal
counsel under the OAA to represent him during the foreclosure hearing March 3, 2015.
If the DOS has not complied with F.S. 20.051 Review of programs, I believe a complaint to the
General Accounting Office (GAO) is appropriate. For wrongful death in Florida see,
Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222 (Fla. Dist. Ct. App., 3d Dist.
1978). In connection with the requirement in wrongful death actions of an underlying tort
or breach of duty, proof of the defendants violation of a statute or regulatory provision

Ken Detzner, Secretary of State


Florida Department of State
Public Records Request

February 2, 2016
Page - 2

that either is designed to protect a particular class of persons from their inability to
protect themselves or establishes a duty to take precautions to guard a certain class of
persons from a specific type of injury, establishes negligence per se.
While the information in this letter deals with legal issues, it does not constitute legal advice. If
you have specific questions related to the information presented here, you are encouraged to
consult an attorney who can investigate the particular circumstances of your situation.
Thank you for the courtesy of a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net
Enclosures
F.S. 20.051 Review of programs
F.S. 20.41 Department of Elderly Affairs
F.S. 430.101 Administration of federal aging programs
U.S. CODE-2010-title42-chap35, Older Americans Act, et al.
DOS Response to REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016
Email of Sarah Halsell Esq. DOEA Jan-26-2016 re Older Americans Act
Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, Fla. 3rdDCA

I bear witness to the state of Floridas


disregard for human life

Page 1 of 1

Neil Gillespie
From:
To:
Sent:
Subject:

"General Counsel" <DOS.GeneralCounsel@DOS.MyFlorida.com>


"Neil Gillespie" <neilgillespie@mfi.net>
Tuesday, February 02, 2016 9:43 AM
RE: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an unreasonable
charge for public records

Good Morning,

We are in receipt of you revised public records request on January 21, 2016. Because your request

remains unlimited in terms of date and subject matter we anticipate that a revised cost estimate still
will be in the thousands of dollars. Unless we hear from you otherwise, we will proceed to finalize an

estimate and provide it to you for advance payment. If you instead decide that you would like to reduce

the scope of your request further, please advise so that our estimate can accommodate your decision.

Meanwhile, your request that the Department, Please identify the source of federal grant funds so that

I may make a separate FOIA to the respective federal agencies, is not a public records request under
Chapter 119, Florida Statutes.

Sincerely,

Office of the General Counsel

Note: This response is provided for reference only and does not constitute a formal legal opinion or representation
from the sender or the Department of State. Parties should refer to the Florida Statutes and applicable case law,
and/or consult an attorney to represent their interests before relying upon the information provided.
In addition, Florida has a very broad public records law. Written communications to or from state officials
regarding state business constitute public records. Public records are available to the public and media upon
request, unless the information is subject to a specific statutory exemption. Therefore, any information that you
send to this address, including your contact information, may be subject to public disclosure.
The Department of State is committed to excellence.
Please take our Customer Satisfaction Survey.

From: Neil Gillespie [mailto:neilgillespie@mfi.net]


Sent: Thursday, January 21, 2016 10:09 AM

To: Strom, Lydia J.; Jones, Jordan; Office of the Inspector General; General Counsel; Fugett, David A.;
Rey, Carlos A.; Tanenbaum, Adam S.; Detzner, Kenneth W.
Cc: Neil Gillespie

Subject: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an


unreasonable charge for public records

2/2/2016

Page 1 of 1

Neil Gillespie
From:
To:
Sent:
Subject:

"General Counsel" <DOS.GeneralCounsel@DOS.MyFlorida.com>


"Neil Gillespie" <neilgillespie@mfi.net>
Monday, January 25, 2016 9:13 AM
RE: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is an
unreasonable charge for public records

Good Morning,

We have received your public records request. Your request will be processed in accordance
with the Florida Public Records Law. You will be advised as soon as possible regarding

estimated costs. Payment will be due in advance by cash, check, or money order made payable
to the Florida Department of State.

Sincerely,

Brandy Hedges
Executive Assistant I

Office of the General Counsel


Florida Department of State
850-245-6513

Note: This response is provided for reference only and does not constitute a formal legal opinion or
representation from the sender or the Department of State. Parties should refer to the Florida Statutes and
applicable case law, and/or consult an attorney to represent their interests before relying upon the
information provided.
In addition, Florida has a very broad public records law. Written communications to or from state officials
regarding state business constitute public records. Public records are available to the public and media
upon request, unless the information is subject to a specific statutory exemption. Therefore, any
information that you send to this address, including your contact information, may be subject to public
disclosure.
The Department of State is committed to excellence.
Please take our Customer Satisfaction Survey.

From: Neil Gillespie [mailto:neilgillespie@mfi.net]


Sent: Thursday, January 21, 2016 10:09 AM

To: Strom, Lydia J.; Jones, Jordan; Office of the Inspector General; General Counsel; Fugett,
David A.; Rey, Carlos A.; Tanenbaum, Adam S.; Detzner, Kenneth W.
Cc: Neil Gillespie

Subject: REVISED RECORD REQUEST to DOS Secretary Ken Detzner-Jan-21-2016; $6,946.40 is


an unreasonable charge for public records

1/25/2016

VIA Email to the DOS E-service list


Ken Detzner, Secretary of State
Florida Department of State (DOS)
R.A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399-0250
http://dos.myflorida.com/

January 21, 2016


Revised record request

Revised record request F.S. 119.07(1)(c) All public records requests shall be acknowledged
promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.
Dear Secretary Detzner:
This is a Revised record request. Please advise if there is a cost for the records.

Provide public records for the Federal Grants Trust Fund, section 20.105, Florida Statutes.
Provide public records for the Clearing Funds Trust Fund, section 20.104, Florida Statutes.

If this record has been complied by the DOS and/or the Florida Department of Financial
Services, or other entity, and is online, kindly provide a link to the record in lieu of duplication.

On December 10, 2015 I requested of Mr. Carlos Rey, "Please identify the source of the
federal grant funds so that I may make a separate FOIA to the respective federal agencies."

When can I expect a response to the forgoing? (Federal FOIA allows for a fee waiver.)

Kindly provide the records requested by email in PDF to me at Email: neilgillespie@mfi.net


Thank you in advance for the courtesy of a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Tel. 352-854-7807
Email: neilgillespie@mfi.net

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Select Year:

The 2015 Florida Statutes


Title IV
EXECUTIVE BRANCH

Chapter 20
ORGANIZATIONAL STRUCTURE

View Entire Chapter

20.051
Review of programs.
(1) To achieve maximum efficiency and effectiveness of government as intended by s. 6, Art. IV of the
State Constitution, and to promote quality management and accountability as required in s. 19, Art. III of the
State Constitution, all programs, functions, and entities must be reviewed by the executive and the legislative
branches. The review must identify and examine the purpose of each program, function, or entity to ensure
that each program, function, or entity is administered in the most effective and efficient manner possible, and
to assess the public benefit derived from the program, function, or entity. Reviews must determine whether
the function, program, or entity:
(a) Serves an identifiable purpose that benefits the public and accomplishes the purpose for which it was
created;
(b) Operates efficiently and effectively within its statutory framework, and whether there are any
statutory changes that would likely increase the effectiveness and efficiency of the function, program, or
entity;
(c) Is necessary to the public health, safety, or welfare, and what would be the effect of its abolition;
(d) Serves a beneficial purpose to state agencies in improving the effectiveness and efficiency of the
operations of the state;
(e) Directly or indirectly increases or decreases the costs of any goods or services, and whether any
identified increase in cost is more harmful to the state than any of the harm that could occur absent the
function, program, or entity;
(f) Is situated within an organizational structure that promotes its efficient and effective administration
and does not duplicate activities conducted in other agencies of the state; and
(g) Could be assigned to another state agency or to private enterprise, and if so, the most efficient way of
doing so.
(2) Unless other criteria are specifically provided by law, any review of a function, program, or entity
scheduled for repeal by law must be conducted in accordance with the criteria specified in subsection (1). In
conducting a review of a function, program, or entity scheduled for repeal, the presumption is in favor of the
repeal. The need for or benefits derived from a program, function, or entity subject to repeal and prior review
must be compelling as measured by these criteria for the function, program, or entity to be continued.
History.s. 5, ch. 94-235.

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Select Year:

The 2015 Florida Statutes


Title IV
EXECUTIVE BRANCH

Chapter 20
ORGANIZATIONAL STRUCTURE

View Entire Chapter

20.41
Department of Elderly Affairs. There is created a Department of Elderly Affairs.
(1) The head of the department is the Secretary of Elderly Affairs. The secretary must be appointed by the
Governor, subject to confirmation by the Senate. The secretary serves at the pleasure of the Governor. The
secretary shall administer the affairs of the department and may employ assistants, professional staff, and
other employees as necessary to discharge the powers and duties of the department.
(2) The department shall plan and administer its programs and services through planning and service areas
as designated by the department.
(3) The department shall maintain its headquarters in Tallahassee.
(4) The department shall administer the State Long-Term Care Ombudsman Program, created by s.
400.0063, and shall, as required by s. 712 of the federal Older Americans Act of 1965, ensure that the State
Long-Term Care Ombudsman Program operates in compliance with the Older Americans Act.
(5) The department shall be the state unit on aging as defined in the federal Older Americans Act of 1965,
as amended, and shall exercise all responsibilities pursuant to that act.
(6) In accordance with the federal Older Americans Act of 1965, as amended, the department shall
designate and contract with area agencies on aging in each of the departments planning and service areas.
Area agencies on aging, as nongovernmental, independent, not-for-profit corporations under s. 501(c)(3) of the
Internal Revenue Code, shall ensure a coordinated and integrated provision of long-term care services to the
elderly and shall ensure the provision of prevention and early intervention services. The department shall
have overall responsibility for information system planning. The department shall ensure, through the
development of equipment, software, data, and connectivity standards, the ability to share and integrate
information collected and reported by the area agencies in support of their contracted obligations to the
state. The department shall contract with area agencies on aging to fulfill programmatic and funding
requirements.
(7) The area agency on aging shall, in consultation with the secretary, appoint a chief executive officer,
hereafter referred to as the executive director, who shall be accountable for the agencys performance.
(8) Area agencies on aging are subject to chapter 119, relating to public records, and, when considering
any contracts requiring the expenditure of funds, are subject to ss. 286.011-286.012, relating to public
meetings.
History.s. 1, ch. 91-115; s. 17, ch. 93-177; s. 13, ch. 94-235; s. 45, ch. 95-418; s. 30, ch. 97-286; s. 5, ch. 99-377; s. 15, ch.
99-393; s. 203, ch. 99-397; s. 119, ch. 2000-349; s. 39, ch. 2000-367; s. 9, ch. 2002-1; s. 19, ch. 2002-223; s. 1, ch. 2009-46; s. 19,
ch. 2015-31.

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Title XXX
SOCIAL WELFARE

Chapter 430
ELDER AFFAIRS

View Entire Chapter

430.101
Administration of federal aging programs. The Department of Elderly Affairs is designated
the state unit on aging under the federal Older Americans Act of 1965, as amended, and shall exercise all
responsibilities under that act. The department is the state agency designated to handle all programs of the
Federal Government relating to the aging, by virtue of funds appropriated through the Older Americans Act of
1965 and subsequent amendments, requiring actions within the state which are not the specific responsibility
of another state agency under the provisions of federal or state law. Authority is hereby conferred on the
department to accept and use any funds in accordance with established state budgetary procedures which
might become available pursuant to the purposes set out herein.
History.s. 1, ch. 70-255; s. 115, ch. 71-355; s. 286, ch. 77-147; s. 18, ch. 78-433; s. 70, ch. 95-418.
Note.Former s. 409.360; s. 410.011.

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https://scholar.google.com/scholar_case?q=Florida+Freight+Terminals,+Inc.+v.+Cabanas&hl=en&as_sdt=40006&as_vis=1&case=111793927305983...

354 So.2d 1222 (1978)

FLORIDA FREIGHT TERMINALS, INC., Appellant,


v.
Joe CABANAS, As the Administrator of the Estates of Vincente Iglesias, Teresa
Iglesias, Maria Iglesias, and Manuel Iglesias, Deceased, Appellee.
Nos. 76-2210 to 76-2213.
District Court of Appeal of Florida, Third District.
January 24, 1978.
Rehearing Denied February 27, 1978.
1223 *1223 Sam Daniels, Miami, for appellant.

Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appellee.
Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
NATHAN, Judge.
This is an appeal by Florida Freight Terminals, Inc. (Florida Freight), a defendant below, from final money
judgments entered pursuant to jury verdicts in four consolidated wrongful death actions.
On December 15, 1973, an airplane loaded with a cargo of Christmas trees took off from Miami International
Airport, bound for Caracas, Venezuela. Minutes later, it crashed into the home of the Iglesias family of Miami.
Two children, Vincente, Jr. and Jose, though injured, survived. Their parents and grandparents died as a
result of the crash.
1224 In 1974, four wrongful death actions were brought by Joe Cabanas, the administrator *1224 of the decedents'

estates, against numerous defendants, and were consolidated for trial. A fifth action brought by Ladislao
Ferrera, the children's guardian, for their injuries, was severed for separate trial, and remains pending.
Prior to the trial of the wrongful death actions, both appellee, acting on behalf of the four estates, and
Ferrera, acting on behalf of the children in their personal injury actions, reached settlements with other
original defendants for the sum of $745,000; $300,000 to go to the decedents' estates to settle the wrongful
death claims and $445,000 to go to the children in their guardianship action for personal injury and pain and
suffering. Releases were signed by both Cabanas and Ferrera.
The four consolidated wrongful death actions proceeded to trial against the two remaining defendants,
appellant, Florida Freight, the air freight handler which loaded the cargo of trees onto the aircraft, and
Paulssen and Guice, Ltd. (P&G), the freight forwarding firm which arranged for the loading and transportation
of the trees and hired the pilot in charge of the flight.
During the course of trial, appellant presented evidence that the pilot, in contravention of FAA rules, had
permitted the cargo to be loaded without being secured, and that the plane crash might have resulted from
engine failure. P&G presented evidence that it was customary in the business for freight forwarders to rely on

https://scholar.google.com/scholar_case?q=Florida+Freight+Terminals,+Inc.+v.+Cabanas&hl=en&as_sdt=40006&as_vis=1&case=111793927305983...

the expertise of freight handlers in the balancing and securing of cargo. Appellee offered extensive evidence
that Florida Freight had improperly loaded the plane in that it should have tied down the trees by means of
ropes, nets or other restraining devices, and that the crash was caused by the shifting of the cargo to the
rear of the plane upon takeoff, making the craft so tail heavy that getting off the ground was difficult and
remaining aloft was impossible. It was uncontested that Florida Freight did not secure the trees. Protracted
evidence was also presented pertaining to the damage aspects of the proceedings.
During the charge conference, Florida Freight requested that the trial court instruct the jury on the "Slavin
rule": that an independent contractor was not liable for its negligent acts once its work had been accepted by
an owner or employer. Appellant also requested that the jury be charged that violation of applicable FAA
regulations was negligence per se. The trial court denied both requests. Instead of giving the requested
instruction on the "Slavin rule" the court gave instructions on proximate cause, concurrent cause and
intervening cause. Instead of giving the requested instruction on negligence per se, the court instructed the
jury that violation of applicable FAA regulations was non-conclusive evidence of negligence.
The jury returned a verdict in favor of P&G, and its liability is not at issue in this appeal. Florida Freight was
found solely liable and damages totalling $2,034,500 were assessed. Appellee stipulated below that the
$300,000 settlement reached between decedents' estates and the other original defendants was to be set off
against the verdicts, but appellant's request for a hearing to determine how much of the $445,000 settlement
should be set off was denied. The trial court found, as a matter of law, that no part of the $445,000 settlement
between Ferrera, as guardian of the children, and the other original defendants was subject to being set off
against the amounts of the final judgments in the cases sub judice, although this sum might be set off in the
pending case between Ferrera and Florida Freight. Final judgment was entered against appellant in the sum
of $1,734,500; that is, the amount of the total damages assessed, less the amount stipulated as a set off by
appellee.
Florida Freight raises several points on appeal. Foremost among them, and one which mandates reversal, is
that the trial court erred in refusing to instruct the jury that violation of the applicable FAA regulations was
negligence per se.
The regulations unequivocally stated:
"No pilot in command may permit cargo to be carried in any airplane unless
.....
1225

*1225 it is properly secured by a ... tiedown having enough strength to eliminate the possibility of

shifting under all normally anticipated flight and ground conditions."


General Operating and Flight Rules, 14 C.F.R. 91.203(a) (1973). This regulation requires the conclusion
that it was designed to prevent plane crashes caused by shifting cargo and to protect that class of persons
who might be injured by such a crash. It is negligence per se to violate a statute designed to protect a
particular class of persons from their inability to protect themselves or to violate a statute which establishes a
duty to take precautions to protect a particular class of persons from a particular type of injury. deJesus v.
Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla. 1973); Sloan v. Coit International, Inc., 292
So.2d 15 (Fla. 1974). The regulation at issue in the instant case encompasses both of these situations.
While our research reveals no case in Florida which holds precisely that violation of an FAA safety regulation

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is negligence per se, we believe that deJesus and Sloan mandate this conclusion, and find additional support
for such a position in decisions of other jurisdictions. See e.g. Gatenby v. Altoona Aviation Corporation, 407
F.2d 443 (3rd Cir.1968); Rudelson v. United States, 431 F. Supp. 1101 (C.D.Cal. 1977); Todd v. United
States, 384 F. Supp. 1284 (M.D.Fla. 1975); in which the laws of Pennsylvania, California and Alabama,
respectively, were found to compel the conclusion that violation of an FAA safety regulation was negligence
per se.
The jury in the case sub judice was left free to find that the pilot was not negligent in carrying unsecured
cargo. It should not have been at liberty to decide that violation of the standard of care imposed by an FAA
safety regulation was not negligence. Failure to properly instruct the jury on this issue constituted prejudicial
error and requires reversal.
Appellant also asserts as error the trial court's failure to direct a verdict for Florida Freight on the basis of the
so-called "Slavin rule,"[1] which, in appropriate circumstances, has been held to sever the causal relationship
between the negligence of an independent contractor and the harm resulting therefrom. We believe an
accurate statement of the rule to be: An independent contractor is not liable for injuries to third parties after
the contractor has completed his work and turned the project over to the owner or employer and it has been
accepted by him unless the parties were dealing with inherently dangerous elements or the defect at issue
was latent and could not have been discovered by the owner or employer. (Emphasis supplied.)
It is neither appropriate[2] nor necessary for us to decide whether or not the vitality of the "Slavin rule"
remains undiminished in the light of more recent supreme court rulings which strive to equate liability with fault
in negligence actions, e.g. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); and Lincenberg v. Issen, 318
So.2d 386 (Fla. 1975), because we find no error in the trial court's refusal to direct a verdict in favor of
Florida Freight. This is so for several reasons.
In the first place, a careful examination of the cases in which the rule has been allowed to operate to insulate
an independent contractor from liability for his negligent acts or omissions reveals that the factual contexts of
the cases generally encompassed the builder/subcontractor relationship vis-a-vis construction defects in
buildings or delivery of material to a fixed job site. We decline to extend it at this late date into an area far
afield from that in which we believe it was intended to apply, and on facts materially different from those in
which the rule has been held applicable.
1226 *1226 Secondly, it is clear that the rule was not intended to insulate an independent contractor from liability in

circumstances in which inherently dangerous elements were involved. See Carter v. Livesay Window Co., 73
So.2d 411 (Fla. 1954), and Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941), both
cited in Slavin. The instant case presents just such a situation, for we deal with the dangers which arose from
the shifting of unsecured cargo on an airplane, which, when moving, is itself a dangerous instrumentality.
Orefice v. Albert, 237 So.2d 142 (Fla. 1970). The only significant difference between window frames which
are left on a job site unsecured (Carter) or electrical wires which are improperly connected in a stationary
piece of equipment (Breeding's) and a load of Christmas trees left unsecured when they should have been
fastened is that the element of danger is exacerbated in the instant case by its association with an inherently
dangerous object, the moving airplane. Thus the case before us presents, not a situation in which the rule
could apply, but one in which the exception is applicable.
In a circumstance involving inherently dangerous elements, where evidence of negligence has been
presented, questions of causation are properly for the jury to decide. Thus the trial court committed no error

https://scholar.google.com/scholar_case?q=Florida+Freight+Terminals,+Inc.+v.+Cabanas&hl=en&as_sdt=40006&as_vis=1&case=111793927305983...

in refusing to direct a verdict for Florida Freight.


The above discussion necessarily is dispositive of appellant's next assertion: that the trial court erred in
failing to charge the jury that an independent contractor is not liable for injuries to third persons occurring
after the work is turned over to the owner. Since the "Slavin rule" is inapplicable on the facts of this case, the
requested charge was not in order.[3] The charges given adequately covered the applicable law.
The next point we reach is whether the trial court erred in ruling that no portion of the $445,000 settlement
was subject to being set off against the judgments in the instant actions. The release signed by Ferrera, as
guardian of the children, acknowledges receipt of $445,000, and releases the settling defendants from "any
and all actions, causes of action, claims, including claims for wrongful death ... arising from the crash. It
goes on to accept $222,500 on behalf of each of the children,
"for the purpose of making a full and final compromise, adjustment, and settlement of all claims of
the said minor, and of his heirs and legal representatives and beneficiaries, past, present and
future, including claims for wrongful death. ..."
Section 768.041(2), Florida Statutes, (Supp. 1977) provides:
At trial if any defendant shows the court that the plaintiff, or any person lawfully on his behalf,
has delivered a release or covenant not to sue to any person, firm or corporation in partial
satisfaction of the damages sued for, the court shall set off this amount from the amount of any
judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and
enter judgment accordingly. (Emphasis supplied.)
This provision was construed by the Florida Supreme Court as authorizing "to be set off from a judgment
against one joint tort-feasor only the amount constituting a settlement for the damages or damage elements
recoverable in the same cause of action against another joint tort-feasor." Devlin v. McMannis, 231 So.2d
194 (Fla. 1970), at 196.
The court went on to say:
The set off contemplated by the above-cited statutory provision must be interpreted so as to
preserve the identity of the separate causes of action and the distinctive character of the
1227

damage element accruing under each such cause. The statute is designed, within the degree of
specificity ascertainable under verdict *1227 and judgment procedures, to prevent duplicate or
overlapping compensation for identical damages. However, in effecting this purpose, F.S.
Section 768.041, F.S.A. does not require set offs where parties entitled to compensation for
particular damage elements recoverable under one cause of action may be the beneficial
recipients of compensation awardable for different elements of damage accruing under another
cause of action. Id.
It is clear that some portion of the $445,000 was paid for the children's wrongful death claims since their
personal injury claims do not involve such substantial damages. The language of the release specifically
includes as part of the settlement, claims for wrongful death, and while a set off of the total sum would be
incorrect in view of the pending personal injury action between the children and Florida Freight, we hold that
the trial court erred in finding, as a matter of law, that no portion of the $445,000 was subject to being set off
against the judgments in the cases sub judice. Clearly, some portion of the total sum is allocable to the

https://scholar.google.com/scholar_case?q=Florida+Freight+Terminals,+Inc.+v.+Cabanas&hl=en&as_sdt=40006&as_vis=1&case=111793927305983...

wrongful death recovery. In the event that the plaintiff should prevail in a new trial, the court should conduct
proceedings to determine the portion of the $445,000 which is applicable to the wrongful death claims in
order that such sum may be apportioned as a set off.
In conclusion, we find merit in appellant's contention that the trial court erred in admitting certain testimony
relating to appellee's damage claims. The economic loss theory advanced by appellee's expert witness to
determine the extent of the damages was not in conformity with the requirements of Section 768.21 of the
Florida Wrongful Death Act. In any future proceedings in this cause, adherence to the provisions of this
statute should be compelled.
In light of the above opinion, it is unnecessary to reach the question of whether the verdicts rendered were
excessive.
Affirmed in part, reversed in part, and remanded for a new trial.
[1] Slavin v. Kay, 108 So.2d 462 (Fla. 1959).
[2] Cf. Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977), in which our sister court evinced reluctant adherence to the rule, noting
that it is not the function of a District Court of Appeal to override the Supreme Court of Florida.
[3] We note, parenthetically, that even if some charge on the "Slavin rule" would have been appropriate, neither of Florida Freight's
requested instructions properly stated the rule since they omitted mention of the exceptions thereto which were applicable in this case.

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