Rasinski v. McCoy

227 So. 3d 201, 2017 WL 3318712, 2017 Fla. App. LEXIS 11273
CourtDistrict Court of Appeal of Florida
DecidedAugust 4, 2017
DocketCase 5D15-4423
StatusPublished
Cited by6 cases

This text of 227 So. 3d 201 (Rasinski v. McCoy) 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
Rasinski v. McCoy, 227 So. 3d 201, 2017 WL 3318712, 2017 Fla. App. LEXIS 11273 (Fla. Ct. App. 2017).

Opinion

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 remitti-tur on three grounds; and (3) denying his motion to determine set-off.

We affirm the trial court’s denial of Ra-sinski’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 frotn 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 fürther 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 *203 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 pei’forming all plumbing duties. Following the accident, McCoy continued to work full time despite undergoing frequent chiropractic care.

The jury returned a verdict finding Ra-sinski 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. Rasin-ski 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) (remit-titur). 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 addi-tur' does not agree, the court shall order a new trial in the cause on the issue of damages only.

*204 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 plaintiffs 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 I960)).

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.

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227 So. 3d 201, 2017 WL 3318712, 2017 Fla. App. LEXIS 11273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rasinski-v-mccoy-fladistctapp-2017.