Rasinski v. McCoy , 227 So. 3d 201 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JORDON J. RASINSKI,
Appellant,
v. Case No. 5D15-4423
MICHAEL P. McCOY,
Appellee.
________________________________/
Opinion filed August 4, 2017
Appeal from the Circuit Court
for Seminole County,
Michael Rudisill, Judge.
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
1 We 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).
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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
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AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.
PALMER and LAMBERT, JJ., concur.
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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
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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
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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
2 We affirm the trial court's rulings on Rasinski's additional set-off requests.
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AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.
PALMER and LAMBERT, JJ., concur.
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