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Bettcher peche 2 places down

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bettcher peche 2 places down

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The following year, the case before us was filed, claiming damages for personal injuries to Thomas and Brenda Bettcher. Wadsworth answered the complaint and asserted, among the affirmative defenses, release, res judicata, and improper splitting of causes of action. He moved for summary judgment based on the release and final judgment from the small claims case. The trial court entered a final summary judgment in favor of Mr.

Wadsworth as to the claims of both Mr. We conclude that any claim Thomas Bettcher had for his personal injuries was extinguished by the release signed by the Bettchers, and the trial court properly granted summary judgment on the claims of Thomas. The release did not, however, constitute a release of Brenda's personal injury claims. Wadsworth contends the small claims case pursued to finality by Brenda extinguished her claims by operation of res judicata or in the alternative improper splitting of her cause of action.

It is not clear upon which of these interrelated theories the trial court relied in granting the summary judgment against Brenda Bettcher, so our analysis must examine both. Res judicata properly bars relitigation of the same issues between the same parties. A corollary to this rule provides that issues that could have been raised in prior litigation should have been raised and, thus, are barred. This comes close to the rule against splitting a cause of action, which precludes successive claims arising from one wrongful act.

See McKibben v. Zamora, So. There is no question that Brenda Bettcher's claims in this case arose from the alleged negligence of Mr. Wadsworth in the accident of October 6, —the same accident that resulted in the small claims judgment for property damage. In response to Mr. Wadsworth's contention that this meets the criteria for the defenses of res judicata and improper splitting of a cause of action, Brenda Bettcher counters that the wording of the release that preserves her personal injury claims constitutes a waiver by Mr.

Wadsworth of both defenses. We conclude that the question of waiver of Mr. Wadsworth's defenses creates a disputed issue of fact that precludes summary judgment. The second contention concerning the Brenda Bettcher summary judgment merits discussion.

Most personal injury claims in Florida arising from automobile accidents, as in this case, require that a plaintiff incur a permanent injury as a threshold to filing suit. Most cases require some period of time after the accident before permanency can be evaluated and suit filed. At the same time, damages to the motor vehicle occur simultaneously with the accident and are immediately ripe for resolution. The rule against splitting causes of action, if applied without exception, prevents an injured party from pursuing a property claim until personal injuries are evaluated.

This could work an economic hardship on a significant number of citizens of this state suffering property damage and personal injury as the result of another driver's negligence. The rule rests on principles of fairness and equity. We are concerned that strict compliance with the rule in automobile accident litigation under today's law fails to accomplish these principles of fairness and equity.

Although the facts differ, we find considerable support for our reversal in Rosenthal v. Scott, So. Oft'times when an automobile accident results in property damage and personal injuries the ultimate extent of the personal injuries, as opposed to the amount of the property damages, may not be readily ascertainable.

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