Auto Club Insurance Co. v. Babin

204 So. 3d 561, 2016 Fla. App. LEXIS 17367
CourtDistrict Court of Appeal of Florida
DecidedNovember 18, 2016
DocketNo. 5D15-1337
StatusPublished
Cited by2 cases

This text of 204 So. 3d 561 (Auto Club Insurance Co. v. Babin) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auto Club Insurance Co. v. Babin, 204 So. 3d 561, 2016 Fla. App. LEXIS 17367 (Fla. Ct. App. 2016).

Opinion

BERGER, J.

Auto Club Insurance Company of Florida (Auto Club) appeals a final judgment entered in favor of Kenneth Babin for underinsured motorist coverage based on injuries he suffered in an automobile accident. Auto Club argues the trial court erred when it denied Auto Club’s motion for directed verdict on the issues of future medical expenses for low back surgery, past lost wages, and loss of earning capacity. in the future. We agree and reverse.

Babin, age 63, was injured in a multicar rear-end collision. The accident occurred on June 14, 2010, when a car driven by Melvin Scott rear-ended the car located behind Babin, which, in ten, rear-ended Babin’s vehicle. Babin sued Scott and Auto Club, his underinsured motorist car-riel*. Auto Club did not deny that Scott was negligent but disputed the amount of damages. Babin asked to be compensated for future surgery to his lower back, for past lost wages, and for the loss of his ability to make future earnings from a scuba-diving business he had planned to start with a friend prior to his accident.

Following a jury trial, Babin was awarded $120,000 in past medical expenses, $70,000 in past lost earnings, $160,000 in future medical expenses, $72,000 in lost earning ability for future years, $16,000 for past pain and suffering, and $16,000 for future pain and suffering. Only the damages awarded for future medical expenses, past lost earnings, and future earning capacity are in dispute. As to those claims, Auto Club argues the trial court erred in failing to grant its motion, for directed verdict.

We begin our analysis with Babin’s claim for future medical expenses related to future low-back surgery.1 “Florida law permits the recovery of ‘[t]he reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future].’ ” Volusia Cty. v. Joynt, 179 So.3d 448, 462 (Fla. 6th DCA 2016) (alterations in original) (quoting Fla. Std. Jury Instr. (Civ.) 501.2(b)). In support of this claim, Babin presented the deposition testimony of Dr. Robert L. Masson.

Dr. Masson testified that on March 2, 2011, he discussed with Babin that if conservative therapy failed, then his lower back would be treated with a two-level reconstruction. Dr. Masson further testified that Babin clearly had a low-back condition and that “[i]t was of a caliber that might need surgery at some point.” Specifically regarding the need for surgery, Dr. Masson testified that Babin “has not clinically progressed to that level of dysfunction where I thought surgery was indicated currently.” Again, he reiterated that Babin’s back had not “met the surgi[563]*563cal indices for intervention yet,” and that “at this point he’s doing well enough with conservative care that he does not need it right now.” Dr. Masson indicated “obviously ... his imaging represents a mess. In layman’s terms, it’s—both cervical and low back, he’s got a lot going on. Uh, but despite .the mess, not everybody needs surgery.”. In the end, Dr. Masson, stated that he did not have an opinion within a reasonable degree of medical probability as to whether Babin needed surgery in the future.

Auto Club insists that Babin’s need for future low-back surgery was too speculative. Therefore, it was error for the trial court to allow this claim to go to the jury. We agree.

As this Court recently reiterated: Florida law restricts recovery of future medical expenses to. those expenses “reasonably certain” to be incurred. Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953). Therefore, “it follows that a recovery of future medical expenses cannot be grounded on the mere ‘possibility* that certain treatment ‘might’ be, obtained in the future.” White v. Westlund, 624 So.2d 1148, 1150 (Fla. 4th DCA 1993) (citing 2 Damages in Tort Actions § 9.55(1), at 9-45 (1986)). Further, there must also be an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. Loftin, 67 So.2d at 188 (“In every case, plaintiff must afford a basis for a reasonable estimate of the amount of his loss and only medical expenses which are reasonably certain to be incurred in the future are recoverable.”). Some direct evidence of anticipated future medical expense is essential to a recovery because the amount of past medical expenses incurred does not—at least by itself—provide a reasonable basis for a jury to compute future medical expenses. See DeAlmeida v. Graham, 524 So.2d 666, 668 (Fla. 4th DCA 1987). It is a plaintiffs burden to establish, through competent, substantial evidence, that future medical expenses will more probably than not be incurred. See Fasani v. Kowalski, 43 So.3d 805, 812 (Fla. 3d DCA 2010) (citing Klosber Cruise Ltd. v. Grubbs, 762 So.2d 552, 556 (Fla. 3d DCA 2000)).

Joynt, 179 So.3d at 452, In Joynt, this Court held that a doctor’s testimony that “it [was] ‘reasonably possible’ that Joynt will require additional surgery on her ear and that ‘it would not surprise [him]’ if he had to perform another surgery due to chronic drainage or hearing loss, [was] insufficient to show that these medical expenses [were] reasonably certain to be incurred in the future.’’ Id. at 453; accord GEICO Indem. Co. v. DeGrandchamp, 102 So.3d 685, 687 (Fla. 2d DCA 2012) (finding that doctor’s testimony that plaintiff would “possibly” need surgery was insufficient to support jury award of future medical expenses); Subaqueous Servs., Inc. v. Corbin, 25 So.3d 1260, 1268-69 (Fla. 1st DCA 2010) (finding evidence insufficient to support award of future medical expenses to cover cost of surgery where plaintiffs expert “merely surmised that epidural injections or IDD therapy could be appropriate at a later juncture in [plaintiffs] treatment” and that he would not recommend surgery unless plaintiff lost a substantial amount of weight); Truelove v. Blount, 954 So.2d 1284, 1287-88 (Fla. 2d DCA 2007) (finding testimony that plaintiff could have a flare-up every other month and each “flare-up would require six visits” was too speculative to support future medical expenses). Such is the case here.

The evidence presented in this case failed to establish that future surgery on Babin’s low back-was reasonably certain to occur. Dr, Masson clearly testified that he [564]*564had no opinion as to whether Babin would need surgery in the future. Accordingly, it was error to allow this claim to go to the jury. Furthermore, because Babin objected to, and the trial court denied, Auto Club’s request for a special verdict form separating future chiropractic care from the expenses a jury might award for future low-back surgery, we are unable to ascertain what the jury actually awarded. See Dep’t of Transp. v. Ness Trailer Park, Inc., 489 So.2d 1172, 1180 (Fla. 4th DCA 1986) (noting that “[h]ad the special verdict forms requested by DOT been granted, we could tell what damages, if any, were granted under existing law and which were not”). Accordingly, we are compelled to remand for a new trial on future medical expenses, excluding any evidence regarding future surgery on Babin’s low back.

We next turn to Babin’s claims for past lost wages and loss of future earning capacity. The amount of an award for loss of future earning capacity should be measured by the plaintiffs diminished ability to earn income in the future, rather than the plaintiffs actual loss of future earnings. Subaqueous Servs.,

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Bluebook (online)
204 So. 3d 561, 2016 Fla. App. LEXIS 17367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-club-insurance-co-v-babin-fladistctapp-2016.