Appellants Timothy and Lori Williams, husband and wife, appeal a dismissal of their complaint in a products liability action against appellees Arai Hirotake, Ltd. and Arai Helmet (U.S.A.), Ltd. ("Arai"). The district court granted Arai's motion for summary judgment, finding that the Williamses' release of certain defendants from negligence liability in a prior state court action also discharged Arai, a third-party defendant to that action. We reverse and remand.

In November, 1987, Timothy Williams was injured when a vehicle collided with the motorcycle he was operating. Upon collision, Williams' helmet flew from his head so that he struck his bare head on a curb, resulting in severe brain trauma. Timothy Williams and his wife filed a negligence action in Florida state court against the driver and the owner of the vehicle ("state court defendants") to recover damages for Timothy Williams' bodily injury and for his wife's loss of consortium. The Williamses did not name Arai, the manufacturer of Williams' helmet, as a defendant in that action. However, the state court defendants sought contribution from Arai as a third-party defendant.

Pursuant to a settlement agreement between the Williamses and the state court defendants, the Florida state court entered a judgment against the defendants in the amount of $1.5 million. Williams v. Lopez, No. 88-1638 CA 05 (November 10, 1988). Neither the defendants' offer of judgment, the Williamses' acceptance, nor the judgment order contained any language indicating the injuries for which the Williamses were compensated or the claims that were satisfied. After satisfaction of judgment, the state court defendants voluntarily dismissed Arai as third-party defendant with prejudice.

Thereafter, the Williamses filed this action in state court against Arai, again seeking damages for Timothy Williams' bodily injuries. Arai removed this action to district court on the basis of diversity of citizenship. The district court granted summary judgment in favor of Arai, holding that under Florida law, the Williamses' release of the state court defendants released Arai as well. See Williams v. Arai, 731 F. Supp. 1557 (1990).

In making that determination, the district court declined to apply two Florida statutes relating to the release of tortfeasors. The first statute, Fla.Stat. Sec. 46.015(1), effective June 23, 1980, governs the release of defendants facing joint and several liability:

A written covenant not to sue or release of a person who is or may be jointly and severally liable with other persons for a claim shall not release or discharge any other person who may be liable for the balance of such claim.

The second statute, Fla.Stat. Sec. 768.041(1) (1965), governs the release of negligent tortfeasors:

A release or covenant not to sue as to one (1) tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.

The district court held that these statutes do not apply to the instant case because "Florida law has evolved independently of the statutory provisions." Williams v. Arai, 731 F. Supp. at 1561. Furthermore, the district court did not apply the comparative fault provisions of Fla.Stat. Sec. 768.81 (1986), regarding apportionment of damages among joint tortfeasors.

The Williamses seek a reversal of summary judgment for Arai, contending that the district court erred in refusing to apply Fla.Stat. Secs. 768.81, 768.041, and 46.015 in determining whether their offer of judgment to the state court defendants included a release of Arai. We agree.1

Prior to the state court defendants' submission of an offer of judgment, the state court had held that Sec. 768.81 may apply to this case.2 Section 768.81, enacted pursuant to the Florida Tort Reform Act of 1986, provides in relevant part:

(3) Apportionment of damages.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

(4) Applicability.--

(a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.

In other words, where a tortfeasor's fault is greater than or equal to that of the plaintiff's, such tortfeasor is jointly and severally liable for economic damages. However, where the tortfeasor's fault is less than that of the plaintiff's, such tortfeasor is only liable in economic damages for his percentage of fault.

No jury finding of the tortfeasors' relative percentages of negligence under Sec. 768.81 occurred prior to the $1.5 million judgment. Thus, at the time of the parties' pre-judgment negotiations, it was unclear whether the state court defendants were jointly and severally liable, and therefore potentially liable for the whole of Williams' bodily injury, or independently liable, and therefore liable only for a percentage of the injury.

Nevertheless, the parties negotiated a release of the state court defendants with the understanding that apportionment potentially applied under Sec. 768.81, i.e. that the defendants were potentially liable only for the percentage of the injury based on their own fault. Furthermore, the state court defendants released Arai from third party joint tortfeasor liability after satisfaction of judgment, suggesting that the state court defendants did not believe they were entitled to contribution from Arai because they were not paying Arai's portion of the Williamses' injuries. In light of these two considerations, coupled with the plain meaning of Fla.Stat. Secs. 46.015(1), 768.041(1), and 768.31(5),3 prohibiting the release of non-party tortfeasors, we reverse the grant of summary judgment in favor of Arai.

In holding to the contrary, the district court relied upon case law developed in the Florida district courts of appeal. See Rucks v. Pushman, 541 So. 2d 673 (Fla.Dist.Ct.App.1989), review denied, 549 So. 2d 1014 (Fla.1989); McCutcheon v. Hertz Corp., 463 So. 2d 1226 (Fla.Dist.Ct.App.1985), review denied, 476 So. 2d 674 (Fla.1985). As noticed by the district court, those cases apparently ignored the above-mentioned Florida statutes. For several reasons, we conclude that reliance upon those cases is misplaced.

First, the McCutcheon case is distinguishable from the instant case. In that case, the Fifth District Court of Appeal found that it was undisputed that the settlement with the defendant tortfeasors compensated plaintiff for all damages caused both by the settling tortfeasors and the third-party defendant tortfeasor. See also Raben Builders, Inc. v. First American Bank and Trust Co., 561 So. 2d 1229 (Fla.Dist.Ct.App.1990), review denied, 576 So. 2d 290 (Fla.1990) (involving ascertainable money damages paid entirely by one tortfeasor).4

Second, we conclude that the district court's rationale was inconsistent with Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla.1980), and its progeny. In Hurt, the victim settled his personal injury suit and gave a release on a printed form with a designated blank space for the names of those specifically discharged. The release specifically named and discharged the parties to that suit, i.e., the other car's driver, owner, and the owner's insurance company. Those names were written out in the blank space. Following the blank space, the printed form of the release continued, "and any other person, corporation, association or partnership, which might be charged with responsibilities for injury to the persons or property...." Id. at 433. The Supreme Court of Florida noted that Fla.Stat. Secs. 768.041(1) and 768.31(5) had abrogated the common law rule that a release of one tortfeasor discharges all other tortfeasors who may be liable for that tort. The Court held that the legislature intended such releases to be construed on the basis of the intent of the parties:

The common law rule was abolished in part to avoid imposing the harsh consequences of a general release upon often unsuspecting plaintiffs.... Florida has not gone to the other extreme of allowing discharge of only those specifically named.... Instead, our legislature has sought a middle ground based on the intent of the parties.

Id. at 434 (citations omitted). The Court held that a latent ambiguity was created by, on the one hand, the presence of the printed general language, and, on the other hand, the language written out in the blank space specifically discharging named parties. Accordingly, summary judgment was reversed, and the case was remanded to determine the factual issue of the intent of the parties. Id.

This court construed the opinion of the Supreme Court of Florida in Hurt as follows:

The Florida Supreme Court has interpreted [Fla.Stat. Sec. 768.041] to permit the release of all joint tortfeasors, but only if the terms of the agreement clearly express the releasing party's intent to do so, Hurt v. Leatherby Insurance Co., 380 So. 2d 432, 433 (Fla.1980), and extrinsic evidence does not prove otherwise. Indeed, if the agreement contains "all-inclusive language discharging all joint tortfeasors" which appears within a "general printed release," the non-settling joint tortfeasors cannot rely solely on the terms of the release as a defense. Jowanowitch v. Florida Power & Light Co., 381 So. 2d 750, 752 (Fla.Dist.Ct.App.1980) (citing Hurt v. Leatherby Insurance Co., supra, 380 So.2d at 433). Extrinsic evidence of the contracting parties' intent must also support the defense....

Menendez v. Perishable Distributors, Inc., 763 F.2d 1374, 1378 (11th Cir.1985). Thus, if the terms of the agreement do not clearly express an intent to release all joint tortfeasors or if extrinsic evidence proves an intent to limit the release, Florida case law holds under Fla.Stat. Sec. 768.041 that the discharge of one tortfeasor does not discharge all tortfeasors.

In Jowanowitch v. Florida Power and Light Co., 381 So. 2d 750 (Fla.Dist.Ct.App.1980), the Fifth District Court of Appeal reversed summary judgment for a non-settling tortfeasor who was not named in either of two releases. The court held that the first release, containing a general release clause, created a latent ambiguity under Hurt. Id. at 752. Regarding the second release, from which "[t]here is conspicuously absent ... any general language releasing others not specifically named," the court stated:

Mrs. Jowanowitch solely released the Halikmans and their insurer from liability for any damages which her daughter may have sustained. Assuming the Halikmans and their insurer to be so released, Florida Power and Light Company is not included by name or by the use of general language. Thus, this release had no effect on its liability, if any, for the daughter's damages.

Id. The court found that the language in both releases was insufficient to sustain a summary judgment in favor of the non-settling tortfeasor. Id.

The release at issue in the instant case is similar to the latter release in Jowanowitch : it did not mention Arai, the non-settling alleged tortfeasor, either directly or indirectly by a general release clause. In addition, this release is at least as ambiguous as the first release at issue in Jowanowitch and the one in Hurt, both of which included general release provisions.

In light of the foregoing cases and the Florida release statutes, we reverse the district court's grant of summary judgment in favor of Arai and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.