Supreme Court of Florida ____________
No. SC21-43 ____________
ELAINE DIAL, Petitioner,
vs.
CALUSA PALMS MASTER ASSOCIATION, INC., Respondent.
April 28, 2022
PER CURIAM.
We review the Second District Court of Appeal’s decision in
Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690 (Fla. 2d DCA
2020), in which the Second District certified the following question
of great public importance:
DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES? Id. at 692.1 For the reasons explained below, we answer the
certified question in the negative and approve the Second District’s
decision in Dial.
I. BACKGROUND
This case arises out of a negligence action, in which Elaine
Dial sought to recover past medical expenses due to injuries she
sustained when she tripped and fell on property owned by Calusa
Palms Master Association, Inc. Before trial, the trial court granted
a motion in limine that precluded Dial from introducing as evidence
the gross amount of her past medical expenses and limited her to
introducing only the discounted amounts paid by Medicare. After
the jury awarded Dial $34,641.69 in past medical expenses, Dial
appealed arguing that Joerg allowed her to admit the full amount of
her past medical expenses as evidence.
The Second District affirmed the trial court’s ruling based
upon its prior decision in Cooperative Leasing, Inc. v. Johnson, 872
So. 2d 956, 960 (Fla. 2d DCA 2004), which held “that the
appropriate measure of compensatory damages for past medical
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
-2- expenses when a plaintiff has received Medicare benefits does not
include the difference between the amount that the Medicare
providers agreed to accept and the total amount of the plaintiff’s
medical bills.” Dial, 308 So. 3d at 691 (quoting Cooperative
Leasing, 872 So. 2d at 960). The Second District explained:
While we recognize that Cooperative Leasing cited to the Florida Supreme Court’s decision in Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984), a decision that was subsequently receded from in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), we do not believe the Joerg decision “implicitly abrogated” our evidentiary ruling in Cooperative Leasing . . . .
Dial, 308 So. 3d at 691. The Second District further explained that
“whatever its analytical underpinnings, the Joerg court very clearly
set the scope of its holding to evidence concerning future Medicare
benefits, which is not in dispute here.” Dial, 308 So. 3d at 691.
II. ANALYSIS
The certified question asks whether this Court’s holding in
Joerg applies to past medical expenses. 2 In Joerg, this Court
2. The certified question presents a question of law, which we review de novo. Arch Ins. Co. v. Kubicki Draper, LLP, 318 So. 3d 1249, 1253 n.4 (Fla. 2021).
-3- addressed “[w]hether the exception to the collateral source rule
created in Stanley applies to future benefits provided by social
legislation such as Medicare.” Joerg, 176 So. 3d at 1253. 3 This
Court “conclude[d] that future Medicare benefits are both uncertain
and a liability under Stanley, due to the right of reimbursement
that Medicare retains.” Joerg, 176 So. 3d at 1253. We explained
that “it is absolutely speculative to attempt to calculate damage
awards based on benefits that a plaintiff has not yet received and
may never receive, should either the plaintiff’s eligibility or the
benefits themselves become insufficient or cease to continue.” Id. at
1255. Ultimately, we “conclude[d] that the trial court properly
excluded evidence of [the plaintiff]’s eligibility for future benefits
from Medicare, Medicaid, and other social legislation as collateral
sources.” Id. at 1257 (emphasis added).
This Court’s holding in Joerg, precluding the admission of
evidence of a plaintiff’s eligibility for future Medicare benefits, dealt
only with future medical expenses. As explained by the Second
3. In Stanley, this Court held that “evidence of free or low cost services from governmental or charitable agencies available to anyone with specific disabilities is admissible on the issue of future damages.” 452 So. 2d at 515.
-4- District below, “the Joerg court very clearly set the scope of its
holding to evidence concerning future Medicare benefits, which is
not in dispute here.” Dial, 308 So. 3d at 691. Accordingly, Joerg
has no application to the past medical expenses issue in the
present case.
III. CONCLUSION
For the above reasons, we answer the certified question in the
negative and approve the Second District’s decision in Dial.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. POLSTON, J., concurs with an opinion, in which COURIEL, J., concurs. LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
POLSTON, J., concurring.
I agree with the Court’s reasoning and holding that this
Court’s decision in Joerg v. State Farm Mutual Automobile Insurance
Co., 176 So. 3d 1247 (Fla. 2015), does not apply to the past medical
expenses issue in this case. I also agree with the Second District
Court of Appeal’s decision in Dial v. Calusa Palms Master Ass’n, 308
-5- So. 3d 690 (Fla. 2d DCA 2020), which held “that the appropriate
measure of compensatory damages for past medical expenses when
a plaintiff has received Medicare benefits does not include the
difference between the amount that the Medicare providers agreed
to accept and the total amount of the plaintiff’s medical bills.” Id. at
691 (quoting Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956,
960 (Fla. 2d DCA 2004)). However, I write separately to explain why
I would adopt the reasoning of Justice Bell’s specially concurring
opinion in Goble v. Frohman, 901 So. 2d 830 (Fla. 2005), and limit
the admissible evidence of past medical expenses to the amounts
medical providers were willing or required to accept in full
satisfaction for services rendered to a plaintiff, regardless of
whether those amounts are derived from government insurance,
private insurance, or other third-party arrangement.
“It has long been established as a fundamental principle of
Florida law that the measure of compensatory damages in a tort
case is limited to the actual damages sustained by the aggrieved
party.” Goble, 901 So. 2d at 834 (Bell, J., specially concurring).
“The objective of compensatory damages is to make the injured
party whole to the extent that it is possible to measure his [or her]
-6- injury in terms of money.” Mercury Motors Express, Inc. v. Smith,
393 So. 2d 545, 547 (Fla. 1981). “A plaintiff, however, is not
entitled to recover compensatory damages in excess of the amount
which represents the loss actually inflicted by the action of the
defendant.” MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995
So. 2d 221, 223 (Fla. 2008).
In Goble, the majority concluded that “[t]he contractual
discounts negotiated by Goble’s HMO fall under the statutory
definition of ‘collateral sources’ that are to be set off against an
award of compensatory damages under [section 768.76, Florida
Statutes (1999)].” 901 So. 2d at 833 (Bell, J., specially concurring).
In his specially concurring opinion, Justice Bell explained an
alternative reason, outside of the collateral source context, why
Goble was not entitled to recover the full amount of his medical
bills: “Goble has not paid, nor is he obligated to pay, the
prediscount amount of his medical bills. And, absent any evidence
that the discount was intended as a gift, Goble can recover no more
than the amount he paid or is obligated to pay.” Id. As Justice Bell
further explained,
-7- Under common-law principles of compensatory damages, Goble can recover only the discounted portion of his medical bills—the only portion that he actually was obligated to pay. The amount of the full (prediscount) bill that was written off pursuant to the contractual agreement between Goble’s HMO and Goble’s medical- services provider was an amount that Goble never was obligated to pay. This amount, therefore, does not represent Goble’s actual damages. To allow for the recovery of this full amount, under the guise of “compensatory damages,” would allow for the recovery of what the district court aptly described as “phantom damages.”
Id. at 833-34 (quoting Goble v. Frohman, 848 So. 2d 406, 410 (Fla.
2d DCA 2003)).
In this case, Dial sought to introduce the gross amount of her
past medical expenses—an amount that she will never be
responsible for paying. Dial’s medical providers billed $106,087.08
after she became eligible for Medicare, but Medicare paid a
discounted amount of $19,973.89 (and Blue Cross Blue Shield paid
other costs not covered by Medicare) in full satisfaction of the
medical bills. Medicare has a subrogation right of reimbursement
for the $19,973.89, the amount Medicare paid medical providers on
Dial’s behalf. However, the roughly $85,000 that was written off or
discounted is not recoverable either by Dial’s medical providers or
Medicare, and Dial is not liable to pay that amount. See
-8- Cooperative Leasing, Inc., 872 So. 2d at 960 (“Under federal law the
government’s right to reimbursement does not extend to amounts
never actually paid to medical providers.”); 42 U.S.C.
§ 1395cc(a)(1)(A) (providing that medical providers that accept
payment from Medicare agree “not to charge . . . any individual or
any other person for items or services for which such individual is
entitled to have payment made under” Medicare); cf. Goble, 901
So. 2d at 831-32 (“Under the medical providers’ contracts with
Aetna, the providers have no right to seek reimbursement from
Goble or from any third party for the contractual ‘discount’ of over
$400,000, the difference between the amounts billed and the
amounts paid.”).
It therefore follows that admissible evidence of past medical
expenses must be limited to the amounts medical providers were
willing or required to accept in full satisfaction for services rendered
to a plaintiff. The inflated gross amount Dial sought to admit is
irrelevant to the proper measure of compensatory damages and
should be inadmissible at trial. See Charles W. Ehrhardt, Florida
Evidence § 402.1, at 222 (2021 ed.) (“To be admissible, evidence
must be relevant; that is, it must tend to prove or disprove a
-9- material fact.”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d
547, 551 (Fla. 4th DCA 2003) (concluding that the medical
provider’s “original charge becomes irrelevant” when it accepts a
lesser sum from Medicare “because it does not tend to prove that
the claimant has suffered any loss by reason of the charge”).
These principles should apply regardless of whether the
discounted amounts are derived from government insurance,
private insurance, or other third-party arrangement. In deciding
the issue of the appropriate measure of compensatory damages for
past medical expenses, Florida district courts of appeal have
erroneously created a distinction based on whether a private or
public source paid the past medical expenses. Compare
Thyssenkrupp Elevator Corp., 868 So. 2d at 550 (holding that a
plaintiff is limited to admitting into evidence the amount of past
medical bills paid by Medicare rather than the gross amount), with
Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1087 (Fla.
1st DCA 2010) (“[A]ppellee was entitled to introduce into evidence
(and to request from the jury) the gross amount of her medical bills,
rather than the lesser amount paid by appellee’s private health
insurer in full settlement of the medical bills.”). The present case
- 10 - further illustrates this distinction. Dial had private insurance at
the time she was injured, but she later became eligible for Medicare.
Before trial, the parties agreed that Dial could admit the gross
amount of her medical bills until she became eligible for Medicare.
And the trial court’s ruling limiting Dial to admitting the discounted
amount paid by Medicare, any Medicare supplemental insurance,
and Dial herself, only applied from the time she became eligible for
Medicare.
The parties and amici argue that Medicare and private
insurance should be treated equally, and I agree that there is no
principled reason to distinguish between them. In the context of
post-trial setoffs, section 768.76 creates a distinction by excluding
Medicare as a collateral source. See § 768.76(2)(b), Fla. Stat. (2021)
(“[B]enefits received under Medicare . . . shall not be considered a
collateral source.”). However, from an evidentiary position, both
should be treated the same. The determination of the appropriate
measure of compensatory damages for past medical expenses is the
same regardless of the source of a plaintiff’s insurance. When the
proper amount is admitted into evidence, there is no need for a
post-trial setoff and no resulting disparate treatment.
- 11 - Accordingly, I would limit the admissible evidence of past
medical expenses to the amounts medical providers were willing or
required to accept in full satisfaction for services rendered to a
plaintiff, regardless of whether those amounts are derived from
government insurance, private insurance, or other third-party
arrangement.
COURIEL, J., concurs.
LABARGA, J., dissenting.
Because I conclude that the holding in Joerg v. State Farm
Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), also
applies to a jury’s consideration of past medical expenses, I dissent
to the majority’s answer to the certified question.
In Joerg, Luke Joerg pursued a negligence action for injuries
he sustained when he was struck by a car while riding his bicycle.
Id. at 1252. Due to a disability, Joerg was entitled to
reimbursement from Medicare for his medical bills. Id. Before trial,
“Joerg filed a motion in limine to exclude evidence of any collateral
source benefits to which [he] was entitled, including discounted
benefits under Medicare and Medicaid.” Id. Ultimately, the trial
court ruled that State Farm could not introduce evidence of Joerg’s
- 12 - future Medicare or Medicaid benefits. 4 Id. The jury found in favor
of Joerg and awarded damages; State Farm appealed to the Second
District Court of Appeal. Id.
The Second District affirmed the trial court’s rulings, except
for the trial court’s decision that evidence of Joerg’s future Medicare
benefits were inadmissible. Id. Based on this Court’s decision in
Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514
(Fla. 1984), the district court concluded that Joerg’s future
Medicare benefits should not have been excluded because they were
free and unearned. Joerg, 176 So. 3d at 1253.
However, this Court quashed the Second District’s ruling and
concluded that the trial court properly excluded evidence of Joerg’s
eligibility for future benefits from Medicare, Medicaid, and other
social legislation as collateral sources. Id. at 1257. In doing so,
4. Notably, “[t]he trial court initially granted Joerg’s motion, but only with respect to past medical bills. After Joerg moved for reconsideration, the trial court vacated its prior ruling and allowed State Farm to introduce evidence of ‘future medical bills for specific treatment or services that are available . . . to all citizens regardless of their wealth or status.’ However, it precluded State Farm from introducing evidence of [Joerg]’s future Medicare or Medicaid benefits.” Joerg, 176 So. 3d at 1252.
- 13 - this Court receded from Stanley to the extent that it supported the
admission of social legislation benefits as an exception to the
evidentiary collateral source rule, noting that “it was never intended
to apply to benefits from Medicare or Medicaid, or to collateral
sources where a right of reimbursement or subrogation exists.” Id.
at 1256.
With this background in mind, in the present case, the Second
District Court of Appeal certified the following as a question of great
public importance:
DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?
Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690, 692 (Fla. 2d
DCA 2020).
The correct answer to the certified question is a resounding
yes; Joerg prohibits the introduction of evidence of Medicare
benefits for the jury’s consideration of past medical expenses.
However, largely based on its conclusion that Joerg “dealt only with
- 14 - future medical expenses,” the majority answered the certified
question in the negative. Majority op. at 4-5. I disagree.
Joerg did not distinguish between past and future medical
expenses; it merely addressed future Medicare benefits. In fact,
this Court did not consider the factual distinction between past
benefits and future benefits as relevant. See Joerg, 176 So. 3d at
1256 n.7 (“Like Peterson, the Illinois Supreme Court in Wills also
considered the admissibility of past Medicare benefits, not the
future benefits at issue here. Wills, 323 Ill. Dec. 26, 892 N.E.2d at
1020. Given our agreement with the policy pronouncement in Wills,
we do not consider this factual distinction relevant.”) (emphasis
added).
As noted by the special concurrence in Dial, “[a]lthough arising
in the context of future benefits, Joerg did not create any exception
for future benefits; rather, it negated the exception for future
benefits, created by Stanley, to the rule ‘that the admission of
evidence of social legislation benefits such as those received from
Medicare, Medicaid, or Social Security, is considered highly
prejudicial and constitutes reversible error.’ ” Dial, 308 So. 3d at
- 15 - 693 (Rothstein-Youakim, J., specially concurring) (quoting Joerg,
176 So. 3d at 1250).
Most significantly, the majority ignores the primary purpose
for excluding evidence of eligibility for past and future benefits from
Medicare, Medicaid, and other social legislation as collateral
sources: its explosive prejudicial effect.
In Joerg, this Court emphasized that “[a]s an evidentiary rule,
payments from collateral source benefits are not admissible
because such evidence may confuse the jury with respect to both
liability and damages.” Joerg, 176 So. 3d at 1249. The Court
elaborated:
[I]ntroduction of collateral source evidence misleads the jury on the issue of liability and, thus, subverts the jury process. Because a jury’s fair assessment of liability is fundamental to justice, its verdict on liability must be free from doubt, based on conviction, and not a function of compromise. Evidence of collateral source benefits may lead the jury to believe that the plaintiff is trying to obtain a double or triple payment for one injury . . . or to believe that compensation already received is sufficient recompense.
Id. at 1249-50 (quoting Gormley v. GTE Prods. Corp., 587 So. 2d
455, 458 (Fla. 1991)).
- 16 - The Court further emphasized: “It is also well established in
Florida that the admission of evidence of social legislation benefits
such as those received from Medicare, Medicaid, or Social Security,
is considered highly prejudicial and constitutes reversible error.”
Id. at 1250.
Although the analysis in Joerg involved future medical
expenses, the concerns emphatically expressed in Joerg—about the
prejudicial effect of admitting evidence of social legislation
benefits—are also, unequivocally, applicable to cases involving past
medical expenses. The fact that this Court did not include past
medical expenses in its analysis in Joerg does not render those
concerns inapplicable to cases, like Dial’s, that involve past
expenses.
Accordingly, addressing only the question posed by the Second
District Court of Appeal, I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal Certified Great Public Importance
Second District – Case No. 2D18-4339
(Lee County)
Mark A. Boyle, Alexander Brockmeyer, and Molly Chafe Brockmeyer of Boyle Leonard & Anderson, P.A., Fort Myers, Florida; and
- 17 - Scot Goldberg, Logan Goldberg, Michael Noone, and Sheba Abraham of Goldberg Noone Abraham, LLC, Fort Myers, Florida,
for Petitioner
Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, Florida,
for Respondent
Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen LLP, Tallahassee, Florida, and Elise Engle of Shutts & Bowen LLP, Tampa, Florida,
for Amici Curiae Associated Industries of Florida and Florida Retail Federation
Mark Hicks, Dinah Stein, and Aneta Kozub McCleary of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida,
for Amicus Curiae The Doctors Company
Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, Florida; and Derek J. Angell of Bell & Roper, P.A., Orlando, Florida,
for Amicus Curiae Florida Defense Lawyers Association
Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida,
for Amici Curiae Florida Trucking Association, Florida Chamber of Commerce, American Property Casualty Insurance Association, and Florida Justice Reform Institute
Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, Florida,
for Amicus Curiae Florida Justice Association
- 18 -