891 F.

2d 878

Benjamin A. REED, a minor, By and Through Lavern A.

REED and
Linda L. Reed, his parents and natural guardians,
Lavern A. Reed, Linda L. Reed,
individually,
PlaintiffsAppellees,
Cross-Appellants,
v.
UNITED STATES of America, Defendant-Appellant, CrossAppellee.
No. 88-5956.

United States Court of Appeals,

Eleventh Circuit.
Jan. 11, 1990.

Jeanne M. Mullenhoff, Asst. U.S. Atty., Miami, Fla., Jeremy Paul, and
John F. Cordes, Appellate Section, Civ. Div. Dept. of Justice, Washington,
D.C., for defendant-appellant, cross-appellee.
Bambi G. Blum, Daniels & Hicks, P.A., Mark Hicks, Miami, Fla., for
plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, and VANCE * , Circuit Judge, and
PITTMAN**, Senior District Judge.
VANCE, Circuit Judge:
This appeal arises from a wrongful death action brought by Benjamin
Reed, by and through his parents Linda and Lavern Reed, and his parents
in their individual capacities against the United States under the Federal
Tort Claims Act ("FTCA"), 28 U.S.C. 2671-2680. Appellees alleged

that the United States committed medical malpractice in connection with

the birth of Benjamin Reed and that, as a result, Benjamin was born with
static cerebral injuries secondary to neonatal asphyxia, psychomotor
retardation, cerebral palsy, and other severe and disabling injuries.
I. BACKGROUND
After this case was set for trial the parties began settlement negotiations
aimed at resolving Benjamin's individual claim, his parents' claims, and
providing for Benjamin's medical expenses and plaintiffs' attorney's fees.
Plaintiffs' attorney offered a detailed settlement proposal by letter dated
November 3, 1986. The United States responded with an alternate
structured settlement proposal by letter dated November 5. After several
discussions regarding the final settlement, plaintiffs' attorney orally
accepted the government's offer on November 12, 1986. 1 On November
20, Linda and Lavern Reed executed an affidavit agreeing to the terms of
the settlement and requesting the court to approve it.
At a status conference before the district court on November 18, 1986,
counsel for the United States informed the court that a settlement had
been reached but that final approval had to be obtained at two additional
levels of review and authorization within the Justice Department. Final
approval was obtained on November 26, 1986, when Arnold J. Burns,
Deputy Attorney General, authorized the settlement agreement.

The attorney for the United States informed plaintiffs' attorney by telephone on
the morning of November 28, 1986, that the settlement had received final
approval. Plaintiffs' attorney immediately dispatched a speed memo to the
government's attorney confirming approval. The government's attorney
prepared a "Stipulation for Compromise Settlement" and sent it to plaintiffs'
attorney for signature by letter dated December 1, 1986. The accompanying
cover letter confirmed that final approval had been obtained.

Benjamin Reed died during the evening of November 28, 1986. Over the
government's opposition, plaintiffs sought to enforce the settlement reached
between the parties before Benjamin's death. The government contended that
the district court lacked subject matter jurisdiction to enforce the settlement.
The government first argued that under Florida law the personal injury action
abated on Benjamin's death. Second, the government contended that the dispute
now involved a claim against the government grounded in contract and that
consequently under the Tucker Act the United States Claims Court had
exclusive jurisdiction over the claim. See 28 U.S.C. 1346(a)(2) and 1491.

The district court rejected both of these contentions. The court found that the
parties had reached a final settlement before Benjamin's death and granted
plaintiffs' motion to approve and enforce the settlement agreement. 717 F.Supp.
1511. The government appealed and we now affirm.II. DISCUSSION
3

The government contends that the district court lacked subject matter
jurisdiction to enforce the settlement. In the government's view, the motion to
enforce the settlement agreement after Benjamin's death converted the action
into a breach of contract claim. The government correctly states that federal
district courts do not have jurisdiction to entertain breach of contract claims in
which the government is a party and the claims exceed $10,000. The Tucker
Act vests exclusive jurisdiction over these claims in the United States Claims
Court. 28 U.S.C. 1491. In this case, however, the district court properly
assumed jurisdiction under the FTCA. We hold that under these circumstances
the jurisdiction of the district court includes the power to enforce a settlement
resulting from the claim that provided the basis for jurisdiction.

Our conclusion is supported by this court's decision in Kent v. Baker, 815 F.2d
1395 (11th Cir.1987). In that case the parties to a suit involving an age
discrimination claim informed the court on the third day of trial that they had
agreed to settle the case and would later seek dismissal of the suit. Before the
case was dismissed one party refused to abide by the settlement agreement and
the other party requested the court to enforce the settlement agreement or, in
the alternative, to resume trial. The district court dismissed the suit for lack of
jurisdiction on the ground that the settlement agreement mooted the age
discrimination action. We reversed, holding that a district court has jurisdiction
to enforce a settlement agreement prior to dismissal of the action. The rule the
government urges that we adopt would create a result inconsistent with Kent.
Under the government's proposed rule a district court would never retain
jurisdiction to enforce an agreement settling a claim of over $10,000 involving
the government because, once the action providing the initial basis of
jurisdiction was settled, any attempt to enforce the settlement would be deemed
a breach of contract claim required to be brought under the Tucker Act.

Appellant seeks to distinguish Kent by contending that after Benjamin died his
tort action was no longer pending and therefore the court no longer had subject
matter jurisdiction to enforce the settlement agreement. The government
contends that under Florida law appellees' personal injury action abated on the
death of Benjamin and that, because the original basis of jurisdiction was
destroyed, appellees' only viable cause of action would be a suit for wrongful
death. The government relies on Florida Stat. 768.20, which provides in part
as follows:

6
When
a personal injury to the decedent results in his death, no action for the
personal injury shall survive, and any such action pending at the time of death shall
abate.
7

We conclude that this statute does not apply under the circumstances of this
case. The district court found that the parties intended to be bound and that a
final settlement had been reached between the parties on November 26, 1986,
two days before Benjamin's death. We have reviewed the record in this case
and conclude that these findings are not clearly erroneous. 2 A settlement is as
conclusive of the rights between the parties as a judgment. See Cia Anon
Venezolana De Navegacion v. Harris, 374 F.2d 33, 35 (5th Cir.1967); Crisp
County v. S.J. Groves & Sons Co., 73 F.2d 327, 329 (5th Cir.1934); Gunn
Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971); Wallace v. Townsell,
471 So.2d 662, 664 (Fla.Dist.Ct.App.1985) ("The parties to a civil action have
the right to settle the controversy between them by agreement at any time and
an agreement settling all issues in the case is binding not only upon the parties
but also upon the court."). Because the action had been settled, no personal
injury action existed at the time of Benjamin's death that could have abated.
The court's jurisdiction to enforce the settlement thus was unaffected by
Benjamin's death.

Even if the Florida doctrine of abatement did apply, we would conclude that
there was no abatement in this case. While no Florida court yet has been
confronted with this precise issue, we are persuaded by the case of Variety
Children's Hosp. Inc. v. Perkins, 382 So.2d 331 (Fla.Dist.Ct.App.1980), that a
Florida Court would find no abatement under the circumstances of this case. In
Variety, final judgment had been entered on plaintiff's personal injury claims
but the appeal had not yet been ruled upon when the plaintiff died. On appeal
the defendant moved to remand the case with directions to the trial judge to
abate the action under section 768.20. Defendant argued that the case was
subject to abatement because it was pending when the plaintiff died. The court
held that section 768.20 does not apply in this situation. In declining to adopt
defendant's strict interpretation of an action "pending" at the time of the
plaintiff's death, the court stated the following:

9
With
specific relation to the facts before us, the rule that death does not effect an
extinguishment of a judgment applies when the party dies while an appeal is
pending, while post-trial motions remain undisposed of; and even during the period
between the return of a verdict and the entry of a judgment.
10

Id. at 336 (citations omitted) (emphasis added). In this case the settlement
agreement conclusively resolved the dispute. At the time of Benjamin's death

all that remained for final judgment to obtain was for the court to approve the
settlement and enter judgment.3 This is similar to the period between the return
of a verdict and the entry of judgment. As the Variety court noted, the death of
the plaintiff during such a period will not abate the action. We thus are
convinced that a Florida court would conclude that the appellees' cause of
action did not abate because the action already had been settled when Benjamin
died.
11

The final issue is appellees' cross-appeal from the district court's denial of
attorney's fees under the Equal Access to Justice Act, 28 U.S.C. 2412, for
appellees' efforts to enforce the settlement agreement. The Act provides that "a
court shall award to a prevailing party other than the United State fees and
other expenses ... unless the court finds that the position of the United States
was substantially justified or that special circumstances make an award unjust."
Id. 2412(d)(1)(A). The district court did not abuse its discretion in finding that
the government's position was substantially justified, especially in light of the
difficult issues of law involved in this case. Accordingly, the judgment of the
district court is AFFIRMED.

This opinion was written by Honorable Robert S. Vance and concurred in by

panel members prior to his death on December 16, 1989

**

Honorable Virgil Pittman, Senior U.S. District Judge for the Southern District
of Alabama, sitting by designation

Under the terms of the structured settlement agreement accepted by plaintiffs,

Linda Reed would receive $160,000 in cash and a monthly annuity of $1,000
for life, guaranteed for a period of at least twenty years. Lavern Reed would
receive $125,000 in cash and a monthly annuity of $750 for life, guaranteed for
a period of at least twenty years. Benjamin would receive $500,000 in cash and
a monthly annuity of $1,000 for life, increasing by 3% compounded annually
and guaranteed for a period of at least ten years. Future cash payments would
be provided to Benjamin in the amount of $100,000 ten years from the date of
settlement and $500,000 twenty years from the date of settlement. These
payments were not dependant on Benjamin's survival. The agreement required
the government to establish a reversionary medical trust for Benjamin. The trust
initially would be funded with $450,000 in cash and later would be funded
through the purchase of an annuity that would provide $50,000 per year,
increasing at an annual rate of 5% compounded annually. This annuity would
be payable during Benjamin's life and guaranteed for a minimum period of five
years. Upon Benjamin's death the trust would revert to the government. The

first annuity payment to the trust would be made one year from the date of
settlement. Finally, the agreement provided for the payment of plaintiffs'
attorney's fees
2

The government offers two grounds for its contention that there was no
settlement. We find that both of these arguments are without merit. The
government first contends that the settlement agreement fails because it is
silent as to what would happen if Benjamin died before the terms of the
agreement were executed. We agree with the district court, however, that the
settlement agreement contemplated the death of Benjamin. Both parties were
aware that Benjamin was not expected to live long. Taking into account
Benjamin's short life expectancy, the government negotiated a settlement
agreement which provided that the medical trust would revert to the
government on Benjamin's death. See supra note 1. The settlement agreement
also was intended to be the entire agreement between the parties. Benjamin's
death was a contingency specifically contemplated by the parties; therefore,
because the government failed to negotiate a clause that would have allowed it
to escape its obligations if that contingency occurred, the government cannot
escape its obligations now. Under Florida law not every contingency has to be
provided for in order to have an enforceable agreement. See Blackhawk
Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d 404, 408
(Fla.1974)
Second, the government argues that the agreement fails for the omission of
essential terms because several details of the medical trust had yet to be
finalized at the time of Benjamin's death, including the identity of the trustee
and the purchase price of the annuities. We disagree. The material elements of
the trust were final when the settlement agreement became binding. As the
district court noted, the trust provided for monthly payments to Benjamin's
parents, payment of reasonable and necessary medical expenses, payment of
respite care, payment of transportation costs, the purchase of a van, alteration to
the Reeds' home, and the purchase of medical equipment. Moreover, section X
of the Stipulation for Compromise Settlement, prepared by the government as a
manifestation of the agreement between the parties, provided that the parties
were under the following duties with respect to the settlement agreement:
to cooperate fully and to execute any and all supplementary documents and to
take all additional actions that may be necessary or appropriate to give full
force and effect to the basic terms and intent of this Stipulation for Compromise
Settlement, and which are not inconsistent with its terms.
Given this clause, the terms of the trust that have not been finalized are not
essential terms whose omission defeats the entire agreement. See Robbie v.

City of Miami, 469 So.2d 1384 (Fla.1985).

3

Florida law requires court approval of all settlements involving a minor for the
settlement to be effective. Fla.Stat. 744.387(3)(a). At the time of Benjamin's
death his parents had executed an affidavit requesting court approval of the
settlement but the settlement had not yet been submitted for approval. The fact
that the court did not approve the settlement before Benjamin's death does not
make the agreement any less binding on the government. The statute requiring
court approval is designed for the protection of minors. See Nixon v. Bryson,
488 So.2d 607, 609 (Fla.Dist.Ct.App.), review denied, 494 So.2d 1152
(Fla.1986). Accordingly, only the failure of the agreement to protect the
interests of the minor constitutes a legitimate basis for refusal to approve the
settlement under this statute. See Bullard v. Sharp, 407 So.2d 1023, 1024
(Fla.Dist.Ct.App.1981). Nor could the government rescind the agreement
before it was submitted for court approval. Once an agreement to settle is
reached, one party may not unilaterally repudiate it. See Gunn Plumbing, Inc.,
252 So.2d at 4; see also Harris, 374 F.2d at 35; Green v. John H. Lewis & Co.,
436 F.2d 389, 390 (3d Cir.1970); Hannon v. Hannon, 426 F.2d 771, 772 (4th
Cir.1970)