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August 11, 2017 by admin

Torts — Automobile accident — Damages — Evidence was insufficient to support award of damages for loss of earning capacity — Trial court abused discretion in denying defendant’s motion for remittitur or new trial — Set-off — Collateral source — Trial court erred in denying set-off for amount for which plaintiff’s healthcare provider released its lien and waived any right to subrogation or reimbursement

42
Fla. L. Weekly D1711a
Top of Form

Torts
— Automobile accident — Damages — Evidence was insufficient to support award
of damages for loss of earning capacity — Trial court abused discretion in
denying defendant’s motion for remittitur or new trial — Set-off — Collateral
source — Trial court erred in denying set-off for amount for which plaintiff’s
healthcare provider released its lien and waived any right to subrogation or
reimbursement

JORDON J. RASINSKI, Appellant, v.
MICHAEL P. McCOY, Appellee. 5th District. Case No. 5D15-4423. Opinion filed
August 4, 2017. Appeal from the Circuit Court for Seminole County, Michael
Rudisill, Judge. Counsel: David C. Knapp and James A. Coleman, of James A.
Coleman, P.A., Orlando, for Appellant. Jeffrey M. Byrd, of Jeffrey M. Byrd,
P.A., Orlando, for Appellee.

(WALLIS, J.) Jordon J. Rasinski
appeals the final judgment finding him 100% liable for an automobile accident
that caused permanent injury to Michael P. McCoy, for which the jury awarded
McCoy $2,130,000 in damages. Rasinski argues the trial court erred by: (1)
denying his motion for new trial due to opposing counsel’s improper closing
argument; (2) denying his motions for directed verdict, new trial, and
remittitur on three grounds; and (3) denying his motion to determine set-off.

We affirm the trial court’s denial
of Rasinski’s motion for new trial based on the alleged improper closing
arguments to which he did not object.1 We also affirm the trial court’s
denial of Rasinski’s requested relief from the jury’s award for pain and
suffering and future medical expenses. We reverse the trial court’s denials of
Rasinski’s motions for remittitur relating to lost earning capacity and to set
off $25,037.56 from the final judgment, an amount for which McCoy’s healthcare
provider waived any right to subrogation or reimbursement.

FACTS

In January 2010, McCoy filed a
complaint for negligence against Rasinski following an automobile accident in
Seminole County. At trial in December 2013, McCoy testified that he worked in
public utilities for twenty years prior to the subject accident. McCoy also
previously owned a bait and tackle shop. He eventually left both of those jobs
and began working as a plumber. In his first ten years as a plumber, McCoy
performed “mostly commercial work,” which he described as “physically
demanding” and “hands-on.”

McCoy testified that his hourly wage
as a plumber fluctuated between $18 and $19.50. He further explained that, for
the eighteen months preceding trial, he switched to “more of a quality control”
position, performing only minor plumbing duties without any corresponding
reduction in his pay. McCoy expressed a desire to work until the age of
sixty-five, but cautioned, “If I get laid off or move to another job I don’t
believe I’ll be able to work in [the plumbing] field anymore.” McCoy elaborated
as follows:

I have a
fear that I work for this present company that’s been pretty good to me. Lots
of times the way the construction has been in this economy, there’s pretty
close that I’ll be laid off within another month or two because we really don’t
have much work and I don’t believe I can go back to doing what I’m doing. . . .
I don’t believe I can go back to doing manual labor.

On cross-examination, McCoy
explained that he began working for his current employer in December 2012 —
nearly three years after the accident. McCoy conceded that, in his employment
application, he represented that he was physically capable of performing all
plumbing duties. Following the accident, McCoy continued to work full time
despite undergoing frequent chiropractic care.

The jury returned a verdict finding
Rasinski 100% liable for the accident and awarding McCoy $2,130,000 in damages:
$160,000 for past medical expenses; $10,000 for past lost earnings; $500,000
for future medical expenses; $260,000 for lost earning capacity; $200,000 for
past pain and suffering; and $1,000,000 for future pain and suffering. Rasinski
unsuccessfully challenged the award for lost earning capacity in motions for
both new trial and remittitur, reasoning that McCoy offered no evidence from
which the jury could calculate his damages with reasonable certainty. Rasinski
also filed a motion to determine set-off, urging the trial court to reduce the
judgment by several collateral source payments. The trial court denied
Rasinski’s motions pertaining to the award for lost earning capacity, reserving
ruling on his request for set-offs.

In June 2014, the trial court
entered a final judgment in accordance with the verdict. The trial court
determined that, after applying some undisputed set-offs, McCoy was entitled to
recover $2,030,000. Rasinski then moved to alter or amend the final judgment,
arguing the trial court failed to reduce the judgment by “the amount of all
collateral source payments for which there is no obligation for reimbursement.”
The trial court denied Rasinski’s motion regarding these additional set-offs.

LOSS
OF EARNING CAPACITY

We review a trial court’s ruling on
a motion for remittitur or new trial for an abuse of discretion. Castillo v.
Bush,
902 So. 2d 317, 319 (Fla. 5th DCA 2005) (new trial); S & S
Toyota, Inc. v. Kirby,
649 So. 2d 916, 921 (Fla. 5th DCA 1995)
(remittitur). The applicable law on remittitur is found in section 768.043(1),
Florida Statutes (2013), which provides:

In any
action for the recovery of damages based on personal injury . . . arising out
of the operation of a motor vehicle, . . . wherein the trier of fact determines
that liability exists on the part of the defendant and a verdict is rendered
which awards money damages to the plaintiff, it shall be the responsibility of
the court, upon proper motion, to review the amount of such award to determine
if such amount is clearly excessive or inadequate in light of the facts and
circumstances which were presented to the trier of fact. If the court finds
that the amount awarded is clearly excessive or inadequate, it shall order a
remittitur or additur, as the case may be. If the party adversely affected by
such remittitur or additur does not agree, the court shall order a new trial in
the cause on the issue of damages only.

Pursuant to section 768.043(1),
“only when the parties agree with the trial court’s amount of remittitur or
additur will the remittitur or additur be enforced in lieu of a new trial.” Waste
Mgmt., Inc. v. Mora,
940 So. 2d 1105, 1109 (Fla. 2006).

The Florida Supreme Court has
cautioned that a plaintiff may recover damages for loss of earning capacity
only “when such damages are established with reasonable certainty.” Auto-Owners
Ins. Co. v. Tompkins,
651 So. 2d 89, 91 (Fla. 1995). Tompkins
clarified that the plaintiff need not necessarily demonstrate a permanent
injury, but “it is a significant factor in establishing the reasonable
certainty of future damages.” Id. To establish a claim for loss of
future earning capacity, the plaintiff must introduce “reasonably certain
evidence that the capacity to labor has been diminished and that there is a
monetary standard against which the jury can measure any future loss.” Hubbs
v. McDonald,
517 So. 2d 68, 69 (Fla. 1st DCA 1987) (quoting Long v.
Publix Super Mkts., Inc.,
458 So. 2d 393, 394 (Fla. 1st DCA 1984)). After
the plaintiff introduces evidence sufficient to warrant an award for lost
earning capacity, the jury should consider “all relevant factors including the
plaintiff’s age, health, habits, occupation, surroundings, and earnings before
and after the injury.” W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d
1301, 1302 (Fla. 3d DCA 1995) (citing Atl. Coast Line R.R. v. Ganey, 125
So. 2d 576 (Fla. 3d DCA 1960)).

In this case, McCoy offered evidence
insufficient to support the jury’s award for loss of earning capacity. McCoy’s
own trial testimony proved that he continued to work after the accident,
earning between $18 and $19.50 per hour as a plumber — the same hourly wage he
earned before the accident. In fact, McCoy did not even begin working for his
employer at the time of trial until after the accident. McCoy’s testimony
questioning his future job security amounted to pure speculation and does not
serve as a proper basis for the award of lost earning capacity. See Pyke,
661 So. 2d at 1303 (“The testimony that there was a possibility that
[plaintiff] would lose his job was irrelevant, purely speculative and
inappropriate.”). In other words, McCoy failed to demonstrate that he “was
completely disabled from further gainful employment” or that he “was unable to
work to the same age [he] would have otherwise.” Volusia Cty. v. Joynt,
179 So. 3d 448, 451-52 (Fla. 5th DCA 2015). Although the evidence established
that McCoy suffered permanent injuries to his neck and back from the accident,
he nonetheless failed to introduce “a monetary standard against which the jury
[could] measure any future loss.” Hubbs, 517 So. 2d at 69.

Based on the foregoing, we find that
the trial court abused its discretion by denying Rasinski’s motions for
remittitur and new trial as to loss of earning capacity. We reverse the portion
of the final judgment awarding damages for loss of earning capacity and remand
for the trial court to either enter a remittitur or grant a new trial solely on
the issue of damages for loss of earning capacity. See § 768.043(1),
Fla. Stat.; Truelove v. Blount, 954 So. 2d 1284, 1289-90 (Fla. 2d DCA
2007).

COLLATERAL
SOURCE SET-OFFS

We review de novo a trial court’s
ruling on a motion to determine set-off. Cornerstone SMR, Inc. v. Bank of
Am., N.A.,
163 So. 3d 565, 568 (Fla. 4th DCA 2015). Section 768.76, Florida
Statutes (2013), provides, in pertinent part:

(1) In any
action to which this part applies in which liability is admitted or is
determined by the trier of fact and in which damages are awarded to compensate
the claimant for losses sustained, the court shall reduce the amount of such
award by the total of all amounts which have been paid for the benefit of the
claimant, or which are otherwise available to the claimant, from all collateral
sources; however, there shall be no reduction for collateral sources for which
a subrogation or reimbursement right exists. Such reduction shall be offset to
the extent of any amount which has been paid, contributed, or forfeited by, or
on behalf of, the claimant or members of the claimant’s immediate family to
secure her or his right to any collateral source benefit which the claimant is
receiving as a result of her or his injury.

. . . .

(5) Any
disputes between the claimant and the provider as to the actual amount of
collateral sources recovered by the claimant from a tortfeasor shall be subject
to determination by a court of competent jurisdiction. In determining the
actual amount of collateral sources recovered, the court shall give
consideration to any offset in the amount of settlement or judgment for any
comparative negligence of the claimant, limitations in the amount of liability
insurance coverage available to the tortfeasor, or any other mitigating factors
which the court deems equitable and appropriate under the circumstances.

This section abrogated the common
law rule prohibiting reduction of damages from collateral source payments in an
effort to “reduce insurance costs and prevent plaintiffs from receiving
windfalls.” Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247,
1249 (Fla. 2015). For evidentiary purposes, “payments from collateral source
benefits are not admissible because such evidence may confuse the jury with
respect to both liability and damages.” Id. (citing Sheffield v.
Superior Ins. Co.,
800 So. 2d 197, 203 (Fla. 2001)).

In this case, Rasinski requested
that the trial court set-off, inter alia, $25,037.56 in payments
furnished by McCoy’s healthcare provider for which it released its lien and
waived subrogation. The trial court denied Rasinski’s motion on the basis that
he could not argue for additional set-offs after presenting expert testimony to
challenge the reasonableness of McCoy’s medical bills, which resulted in the
jury awarding a reduced award for past medical expenses. However, Rasinski did
not request that the jury further reduce the award by the $25,037.56 at issue
here. We find that this payment constitutes a collateral source under section
768.76(1) because McCoy does not dispute that the healthcare provider released
its lien and waived subrogation. See § 768.76(1), Fla. Stat. (“[T]here
shall be no reduction for collateral sources for which a subrogation or
reimbursement right exists.”). Accordingly, we reverse and remand for the trial
court to enter a set-off in the amount of $25,037.56.2

AFFIRMED in part; REVERSED in part;
REMANDED for further proceedings. (PALMER and LAMBERT, JJ., concur.)

__________________

1We
emphasize that our affirmance on this issue should not be interpreted as
condoning plaintiff’s counsel’s conduct in his closing argument. Rather, we
find that the several unobjected-to comments do not rise to the level of
egregiousness warranting a new trial as outlined by the Florida Supreme Court
in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1031
(Fla. 2000).

2We affirm
the trial court’s rulings on Rasinski’s additional set-off requests.

* * *

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