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February 8, 2018 by admin

Torts — Automobile accident — Damages — Setoff — Collateral sources — Trial court erred in declining to set off Social Security disability payments received by plaintiff from jury verdict — Section 768.76, Florida Statutes, does not require a party to present evidence matching the period covered by the disability benefits with the period covered by the jury’s award of past lost wages

43
Fla. L. Weekly D277b

Torts
— Automobile accident — Damages — Setoff — Collateral sources — Trial
court erred in declining to set off Social Security disability payments
received by plaintiff from jury verdict — Section 768.76, Florida Statutes,
does not require a party to present evidence matching the period covered by the
disability benefits with the period covered by the jury’s award of past lost
wages

OSWALD WOUDHUIZEN AND POWER DESIGN,
INC. AND DISCOVER PROPERTY AND CASUALTY INSURANCE COMPANY, Appellants, v. MARY
L. SMITH, Appellee. 5th District. Case No. 5D17-575. Opinion filed February 2,
2018. Appeal from the Circuit Court for Seminole County, Jessica J.
Recksiedler, Judge. Counsel: Kimberly J. Fernandes, of Kelley Kronenberg, P.A.,
Tallahassee, and Sarah E. Wade, Christopher E. Brown, and Daniel S. Liebowitz,
of Resnick & Louis, P.C., Orlando, for Appellants. Edward S. Rue, of Rue
& Ziffra, P.A., Port Orange, for Appellee.

(EISNAUGLE, J.) Oswald Woudhuizen,
et al., Defendants below, timely appeal a final judgment, following a jury
verdict in Plaintiff Mary L. Smith’s favor in the aggregate amount of $125,000.
Defendants argue that the trial court erred by failing to apply collateral
source setoffs to the judgment. We reverse on this issue, and otherwise affirm
without further discussion.
Smith filed suit for injuries after
a motor vehicle accident where she was rear-ended by Defendant Woudhuizen. As a
result of the accident, Smith claimed neck, shoulder, low back and knee pain,
as well as depression resulting from her injuries. In addition to her medical
bills, Smith claimed that she was unable to work due to her injuries and had
substantial lost wages and loss of future earning capacity. Defendants admitted
negligence but contested causation and damages. A jury returned a verdict in
favor of Smith as follows:
Past
medical expenses $50,000
Future
medical expenses $25,000
Past lost
earnings $50,000
Future
lost earnings $0
After trial, Defendants filed a
motion for final judgment asking the trial court to set off certain collateral
source payments pursuant to section 768.76, Florida Statutes (2010), and to
reduce the jury award of $125,000 to a $25,000 net verdict. The trial court set
off PIP payments received by Smith, but declined to set off $93,569.40 in
Social Security disability payments. In so doing, the trial court found
Defendants could not show that the collateral source payments duplicated the
damages awarded by the jury. The trial court opined that it was likely that the
jury awarded $50,000 for the first year after the crash, and concluded that any
claim that the verdict actually duplicated the Social Security disability
payments, which were paid later, was too speculative. This appeal followed.
Defendants contend the trial court
erred in failing to apply a collateral source setoff to the judgment for the
Social Security disability benefits received by Smith in the five years between
the accident date and the trial. Specifically, they argue that section 768.76
does not require a party to present evidence matching the “period covered by
the disability benefits” with the “period covered by the jury’s award of past
lost wages.” We agree.
Section 768.76, Florida Statutes
(2010), provides:
(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.
(2) For
purposes of this section:
(a)
“Collateral sources” means any payments made to the claimant, or made on the
claimant’s behalf, by or pursuant to:
1. The
United States Social Security Act,1 except Title XVIII and Title XIX;2 any federal, state, or local income
disability act; or any other public programs providing medical expenses,
disability payments, or other similar benefits, except those prohibited by
federal law and those expressly excluded by law as collateral sources.3

According to the plain language of
the statute, section 768.76 only requires evidence of a plaintiff’s receipt of
benefits from a collateral source for losses sustained. It does not require a
claimant to further prove that each dollar of a collateral source was actually
awarded by the jury. To hold otherwise would not only conflict with the plain
meaning of the statute, but would also require a party to request an itemized
verdict form in every case, potentially as detailed as each individual item of
care or benefit received.
Notwithstanding, Smith argues that
there should be no setoff because the legislative purpose behind section 768.76
is to avoid a “duplication of benefits.” It is the statutory language that
controls, however, not a purported legislative purpose. Here, the Legislature
chose to accomplish its purpose by requiring a trial court to “reduce the
amount of such award by the total of all amounts which have been paid
for the benefit of the claimant.” § 768.76(1), Fla. Stat. (2010) (emphasis
added). We have no authority to require a line by line itemization in every
verdict before giving effect to section 768.76(1) where the Legislature has
declined to do so.
AFFIRMED in part; REVERSED in part;
and REMANDED. (BERGER and EDWARDS, JJ., concur.)
__________________
142 U.S.C.A. § 301 et seq.
242
U.S.C.A. § 1395 et seq. and 42 U.S.C.A. § 1396 et seq.
3Smith has
not asserted any exceptions, such as Title XVIII and Title XIX of the United
States Social Security Act, or any other exception as “prohibited by federal
law” or otherwise “expressly excluded by law as collateral sources.” §
768.76(2)(a)1., Fla. Stat. (2010).
* * *

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