JAAR v. UNIVERSITY OF MIAMI

BASKIN, Judge.

The estate and children of Salim Jaar [Jaar] appeal judgments entered in favor of the University of Miami [University], a doctor on its medical school faculty, and three residents at Jackson Memorial Hospital, absolving them of liability for negligent medical care administered to Jaar at the hospital. In addition, appellants contest the application of sovereign immunity, limiting the amount recoverable from the Public Health Trust of Dade County d/b/a Jackson Memorial Hospital [the Trust] and totally relieving the doctors of liability. Upon review of the record, we hold that the University is liable for the negligent medical care administered by the residents under the supervision of the doctor, a University employee working at the hospital pursuant to a contract between the University and the Trust. We find no error in the application of the sovereign immunity statutes.

Jaar was admitted to the hospital's burn unit as a private, paying patient for treatment of burns on his hands and toes. Dr. C. Gillon Ward was the attending physician in charge of Jaar's care. Jaar suffered the burns as a result of a fire at his home in Haiti. One of Jaar's children died in the fire, and Jaar's wife died while undergoing treatment for injuries sustained during the fire. Because Jaar's surviving children were receiving treatment for severe burns at the hospital, and Jaar wished to be with them, he was admitted to the hospital for treatment of his relatively minor burns. On a Sunday morning, three medical residents decided to remove the dead skin from Jaar's hands; neither Dr. Ward nor an anesthesiologist was present. Unfortunately, the residents administered an excess amount of anesthetic and, after lingering in a coma, Jaar died.

The personal representatives of Jaar's estate and his children filed an action to recover for Jaar's wrongful death. They sued the Trust, Dr. Ward, the three residents who administered the anesthetic, and the University. They included the University in the action because Dr. Ward was a member of its medical school faculty and worked at the hospital pursuant to a contract between the University and the Trust. Pursuant to the contract, Dr. Ward treated patients, served as head of the hospital burn unit, and supervised residents. In response to the complaint, the Trust admitted that Dr. Ward and the three residents he supervised were its employees or agents and were acting within the scope of their employment or agency at the time of the incident. The hospital, Dr. Ward, and the residents admitted that Jaar received negligent care.

At the conclusion of plaintiffs' case, the trial court directed a verdict in favor of the three residents on the ground that as employees or agents of the Trust, they were afforded immunity under section 768.28(9)(a), Florida Statutes (Supp. 1980). The trial court submitted for jury determination interrogatories questioning whether Dr. Ward and the residents were also acting as employees or agents of the University. The jury found that Dr. Ward and the three residents were not employees or agents of the University when they treated Jaar, and pursuant to the verdict, the trial court entered judgments in favor of Dr. Ward and the University. The jury also returned a verdict of $2,000,000 against the Trust. The trial court limited appellants' recovery from the Trust to the $100,000 maximum permitted under the applicable sovereign immunity statute, section 768.28(5), Florida Statutes (1979).1 Having determined that Dr. Ward and the residents were not employees or agents of the University, the jury, in accordance with the court's instructions, did not reach the question whether the University was an agent of the Trust and thus entitled to sovereign immunity protections.

Appellants contend that the trial court erred in submitting to the jury questions pertaining to the agency or employment relationships of the doctors, the University, and the hospital. They claim that they are entitled to a directed verdict against the University, arguing that, as a matter of law, the doctors were acting within the scope of their employment with the University at the time of the incident. In addition, they challenge the sovereign immunity protections afforded Dr. Ward and the residents. We address these issues in turn.

As to the first point, we find merit in appellants' argument that the trial court erred in submitting to the jury the issue of Dr. Ward's relationship to the University at the time of the incident. Our review of the record and applicable case law reveals, as a matter of law, that Dr. Ward was an employee or agent of the University, working within the scope of that employment or agency relationship at the time of the incident.

The existence and scope of an agency relationship are generally questions of fact to be resolved by the factfinder, Dade County Police Benevolent Association v. City of Homestead, 444 So.2d 465, 471 (Fla. 3d DCA 1984), unless the evidence is susceptible of only one interpretation. Amerven, Inc. v. Abbadie, 238 So.2d 321 (Fla. 3d DCA 1970). See Eberhardy v. General Motors Corp., 404 F.Supp. 826 (M.D.Fla. 1975). However, the evaluation of employment contracts and employment status is a question of law to be resolved by the trial court. Sosa v. Knight-Ridder Newspapers, 435 So.2d 821 (Fla. 1983) (news carrier who had employment contract with newspaper and was killed in accident while soliciting subscriptions as part of subscription contest was, as matter of law, employee of paper working within scope of employment at time of accident); Phillips v. Unicare Amelia Island, 458 So.2d 50 (Fla. 1st DCA 1984) (plaintiff injured on employer's premises when she returned, several days after resigning, to pick up paycheck was, as matter of law, employee on date of accident).

Furthermore, the construction of a written document, such as the contract before us, presents a question of law, Peacock Construction Co. v. Modern Air Conditioning, 353 So.2d 840, 842 (Fla. 1977); Quayside Associates v. Harbour Club Villas Condominium Association, 419 So.2d 678 (Fla. 3d DCA 1982), if its language is clear and unambiguous. Friedman v. Virginia Metal Products Corp., 56 So.2d 515, 516 (Fla. 1952); Reliance Insurance Co. v. Brickenkamp, 147 So.2d 200, 202 (Fla. 2d DCA 1962). The existence of a clear and unambiguous contract is the best evidence of the intent of the parties, and its meaning and legal effect are questions of law for determination by the court. Innkeepers International v. McCoy Motels, 324 So.2d 676, 678 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 106 (Fla. 1976).

The contracts between Dr. Ward and the University and between the University and the Trust set forth the duties and obligations of the parties and define their legal relationships. Dr. Ward is employed by the University as a full-time medical faculty member.2 The University assigned Dr. Ward to head the hospital's burn unit pursuant to the terms of contracts between the University and the Trust.3 The contracts require the University to provide medical care to hospital patients and to supervise residents in their treatment of patients.4

The University assumes additional responsibility in the treatment and care of fee paying patients.5 The indemnification clause contained in the contract provides Trust indemnification of the University for claims arising out of the treatment of nonpaying patients.6 Conversely, the indemnification clause establishes the parties' intent to delegate sole responsibility to the University for the care of paying patients, such as Jaar.

Based upon our review of the clear and unambiguous language contained in the contract and its apparent objectives, we conclude, as a matter of law, that Dr. Ward served as an employee and agent of the University.7 See J & S Coin Operated Machines v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978). There is no question that at the time the tragic incident occurred, Dr. Ward was acting in accordance with the duties he assumed under the express and intertwining terms of his contracts with the University and the University's contracts with the Trust. Dr. Ward's care of Jaar and his supervision of the residents constituted the type of conduct both he and the University were obligated to perform. Thus, the University is liable for the negligent acts of its agent, Dr. Ward, see Weiss v. Jacobson, 62 So.2d 904 (Fla. 1953); Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (Fla. 1922); Weiss v. Culpepper, 281 So.2d 372 (Fla.3d DCA 1973), cert. denied, 290 So.2d 62 (Fla. 1974), and appellants are entitled to a directed verdict against the University as a matter of law.

There is additional support for our holding that the University is liable for Dr. Ward's negligence. An employer may not escape liability by delegating performance of its contractual duties to its employees or to an independent contractor. Irving v. Doctors Hospital of Lake Worth, 415 So.2d 55 (Fla. 4th DCA), review denied, 422 So.2d 842 (Fla. 1982) (where emergency room physician negligently treated patient, failure to instruct jury that hospital may not escape contractual liability to provide emergency room care by use of independent contractor-doctor is error); Mills v. Krauss, 114 So.2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.2d 293 (Fla. 1960). The University, having contracted with the Trust to provide medical care to hospital patients, remains liable for negligent acts performed by its employee in executing its contract obligations. For these reasons, we hold that the trial court erred in submitting the question of Dr. Ward's relationship with the University to the jury rather than deciding the issue as a matter of law.

Next we turn to the questions involving the application of the sovereign immunity statutes. The jury returned a verdict against the Trust for $2,000,000. Because the Trust is a state agency, the trial court was correct in limiting its liability to $100,000 pursuant to section 768.28(5), Florida Statutes (1979).8

The Trust admitted that the doctors were its employees or agents and that their negligent treatment of Jaar was performed within the scope of their employment. As employees or agents of the Trust, Dr. Ward and the residents are entitled to immunity from liability. § 768.28(9)(a), Fla. Stat. (Supp. 1980).

This statute provides:

We find no merit in appellants' argument that due process and equal protection considerations preclude the application of sovereign immunity to shield the doctors from liability in this cause. Florida courts have ruled the immunity statute constitutional when applied to a physician who, within the scope of his governmental employment, negligently caused injury to another. Bryant v. Duval County Hospital Authority, 459 So.2d 1154 (Fla. 1st DCA 1984); White v. Hillsborough County Hospital Authority, 448 So.2d 2 (Fla. 2d DCA), cause dismissed, 443 So.2d 981 (Fla. 1983).

The next issue presented for determination is whether sovereign immunity applies to limit the University's liability for the negligent acts of Dr. Ward. An employer or principal is vicariously liable for negligent acts of its employee or agent committed within the course and scope of that employment or agency relationship, Weiss v. Jacobson; Stinson; Weiss v. Culpepper, and two or more persons acting as joint employers may both be held liable for injuries attributable to an employee. Hollis v. School Board of Leon County, 384 So.2d 661 (Fla. 1st DCA 1980).

Where, as here, the employer is a state agency, the immunity from liability which attaches to a principal extends to the acts of its agents which are within the scope of their employment. § 468.28(9)(a), Fla. Stat. Thus, the sovereign immunity which limits the liability of the Trust shields the doctors. On the other hand, the immunity which attaches to an agent does not revert to its principal. The University receives no sovereign immunity protection from the doctors' relationships to the Trust. See May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955) (although public policy precluded wife from suing husband for injuries caused by his negligent driving, husband's principal not derivatively immune from liability); Hamburger v. Henry Ford Hospital, 91 Mich.App. 580, 284 N.W.2d 155 (1979) (hospital not derivatively immune from liability for torts of its servant-doctor who was immune under Good Samaritan Statute); 55 A.L.R. 1197, 1198-99 (1928) cited in McWain v. Greyhound Lines, 357 So.2d 780 (Fla. 3d DCA 1978) (private employer who employs police officer to maintain order on premises not immune from liability because of employee's official status for injuries caused by negligent acts committed by officer within performance of duties owed to private employer); Restatement (Second) of Torts § 217(b)(ii) (1965).

The University would be immune only if it were an agent of the Trust. The relationship between the University and the Trust is created by the clear and unambiguous terms of their contracts which, as a matter of law, demonstrate the absence of an agency relationship between them. The University and the Trust are two independent entities joined for the purpose of providing health and medical services to the public.9 Section 1 of the BAA, entitled "Autonomous Nature of Public Health Trust," and ensuing sections specify that neither party acts as agent for the other.10 In addition, the contract provisions render each party liable for its proportionate share of the parties' joint expenses, and demonstrate the parties' intent to refrain from entering an agency relationship. See, e.g., § IV(A), BAA.

The legislative purpose in enacting sovereign immunity statutes is to protect the public from "profligate encroachments on the public treasury." Spangler v. Florida State Turnpike Authority, 106 So.2d 421, 424 (Fla. 1958); Berek v. Metropolitan Dade County, 396 So.2d 756, 758 (Fla. 3d DCA 1981). The University is a private non-profit educational institution. Any liability it incurs for the negligence of its employees has no effect on the public treasury. Thus, the University is not entitled to benefit from sovereign immunity protections. Cf. Sibley v. Board of Supervisors, 446 So.2d 760 (La. Ct. App. 1983), aff'd, 462 So.2d 149 (La. 1985) (liability limitation applied to action brought against state university for negligent treatment of patient by resident at university associated hospital).

In summary, we hold that the unambiguous terms of the contracts between the University and the Trust, and between Dr. Ward and the University, establish, as a matter of law, that Dr. Ward acted as an agent of both the University and the Trust at the time of the incident. Although sovereign immunity statutes limit the liability of the Trust to $100,000 and shield the doctors from all liability, they afford the University no protection.

For these reasons, we reverse the judgment in favor of the University and direct that a judgment be entered against the University. We affirm the remaining judgments.

Remanded with directions.

Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The court, having heard argument on rehearing en banc, adheres to the panel opinion issued February 12, 1985, and denies appellee University of Miami the relief sought.

SCHWARTZ, C.J., and HENDRY, HUBBART, BASKIN and FERGUSON, JJ., concur.

BARKDULL, Judge, dissenting.

I respectfully dissent. I would grant the rehearing en banc and affirm the judgment on the jury verdict in favor of the University of Miami. The question of agency is normally a jury question. Cirou v. Basler, 432 So.2d 628 (Fla. 3d DCA 1983); Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975); Financial Fire & Casualty Company v. Southmost Vegetable Cooperative Association, 212 So.2d 69 (Fla. 3d DCA 1968). It was properly submitted to the jury under the issues as framed in the pleadings. Parsons v. Reyes, 238 So.2d 561 (Fla. 1970); Bruce Construction Corp. v. The State Exchange Bank, 102 So.2d 288 (Fla. 1958); Gravette v. Turner, 77 Fla. 311, 81 So. 476 (1919); Levey v. Getelman, 444 So.2d 1027 (Fla. 3d DCA 1984); Ranger v. Avis Rent-A-Car System, Inc., 336 So.2d 467 (Fla. 3d DCA 1976). In Parsons v. Reyes, supra, at page 563 the Supreme Court said:

In Gravette v. Turner, supra, 81 So. at page 477 (which was quoted with approval in Bruce Construction Corp. v. The State Exchange Bank, supra) it was stated as follows:

In Levey v. Getelman, supra, the court stated:

Finally in the case of Ranger v. Avis Rent-A-Car, Inc., supra, this court said:

This and other appellate courts have many times held that if there is sufficient, competent evidence to support a jury verdict, an appellate court should not substitute its judgment for the jury's verdict.1 Bermil Corporation v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1978); Howe v. Estate of Howe, 349 So.2d 1200 (Fla. 1st DCA 1977); Fountainhead Motel, Inc. v. Massey, 336 So.2d 397 (Fla. 3d DCA 1976); Warfield v. Sparks, 203 So.2d 63 (Fla. 1st DCA 1967); White v. Acker, 155 So.2d 176 (Fla. 1st DCA 1963). In the case of Bermil Corporation v. Sawyer, supra, this court in dealing with the question stated:

In Howe v. Estate of Howe, supra, the court held:

This court in Fountainhead Motel, Inc. v. Massey, supra, stated:

The First District Court of Appeal in Warfield v. Sparks, supra, in recognition of this principle said that:

Finally in White v. Acker, supra, the court stated that:

The panel opinion holds, as a matter of law, that Dr. Ward was an employee of the University of Miami. This overlooks the fact that the contract between the University of Miami and the Trust is subject to the interpretation that Dr. Ward was an employee of the Trust,2 at best the contract may be ambiguous and therefore the contract could be subject to two different interpretations. In such event, the manner in which the parties interpreted the contract becomes of utmost importance. Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404 (Fla. 1974); Welsh v. Carroll, 378 So.2d 1255 (Fla. 3d DCA 1979); American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla. 3d DCA 1975). The parties by their actions over the years have treated persons, such as Dr. Ward, as being employed by the Trust and this was admitted in the pleadings. In this case the jury put their stamp of approval on the party's interpretation and with substantial competent evidence in the record this court should not interfere with the jury's decision. Therefore, I would affirm the final judgment in all respects.

NESBITT, DANIEL S. PEARSON and JORGENSON, JJ., concur.