Hassan v. U.S. Postal Service

• Decision Date: 11 April 1988
• Docket Number: No. 87-3084,87-3084
• Citation: 842 F.2d 260
• Parties: Joan HASSAN, Dinesh Hassan, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 260

842 F.2d 260

Joan HASSAN, Dinesh Hassan, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 87-3084.

United States Court of Appeals, Eleventh Circuit.

April 11, 1988.

Alan D. Watson, Yeakle & Watson, P.A., St. Petersburg, Fla., for plaintiffs-appellants.

Dennis I. Moore, Asst. U.S. Atty., Tampa, Fla., U.S. Dept. of Justice, Civil Div., Appellate Staff, Robert S. Greenspan, Scott R. McIntosh, Civil Div., Appellate Staff, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and ATKINS ^*, Senior District Judge.

FAY, Circuit Judge:

In this Federal Torts Claims Act ¹ case, the federal district court found that the driver of a government vehicle negligently hit a vehicle driven by appellant Joan Hassan. Neither party challenges this verdict. Hassan, however, argues that she should have received more money in damages. She alleges that the court erred when it (1) considered evidence of collateral source payments that the United States failed to plead as an affirmative defense and then deducted the payments from her award; (2) disallowed damages based on the loss of Hassan's services to her household and to her son; (3) limited her future damages to five years; and (4) computed her damages. We agree that the district court should have allowed Hassan's claim for loss of services, and we reverse on that ground. We affirm the remainder of the district court's order.

Facts

On December 12, 1983, a United States Postal Service jeep negligently collided with Hassan's vehicle. Immediately following the accident, Hassan, complaining of pain in her back, went to the hospital. The emergency room doctors prescribed pain and muscle relaxant medication to Hassan and then discharged her.

Hassan's pain, however, did not subside. She continued to experience debilitating agony in her back, neck, and other parts of her body. She consulted a number of physicians over the next three years, in an effort to find a way to successfully treat her problem.

Prior to the car accident, Hassan had a full-time job and led an active life. Following the accident, however, she experienced pain which left her unable to work or engage in any but the least strenuous activities. Hassan became depressed and frustrated due to this forced change in her lifestyle, and sought psychiatric help.

Hassan's doctors found that two of the discs in her lower back had been damaged in the car accident. Most of them recommended conservative forms of treatment. However, in April of 1985, Dr. Thomas Whitecloud, III, the chief of orthopedic surgery at Tulane University Medical School, informed Hassan that through surgery, he could remove the injured discs and fuse the surrounding vertebrae together. In May Dr. Whitecloud successfully performed the operation, which substantially reduced the pain in Hassan's back.

At trial, the district court heard evidence about Hassan's physical and emotional problems, about her operation, and about the likelihood of continued pain and suffering in the future. The court listened to expert testimony about the proper way to assess Hassan's economic damages. In addition, it allowed testimony showing that Hassan received social security and other collateral payments as a result of the accident. Based on all the evidence, the court assessed damages, deducted a portion of those damages due to the collateral payments Hassan had received, and determined that the United States owed Hassan $109,262. ²

Issues

1. Collateral Sources

Hassan argues that the trial court improperly considered evidence that she received collateral source payments. According to Hassan, the government's attempt to reduce its liability in this manner constituted an affirmative defense and, consequently, should have been raised in the pleadings. See Fed.R.Civ.P. 8(c). By failing to set forth the affirmative defenses, Hassan states, the government waived its right to raise the issue at trial. ³

We initially find that the government's argument regarding collateral source payments was an affirmative defense. An affirmative defense has been described as "[a]ny matter that does not tend to controvert the opposing party's prima facie case as determined by the applicable substantive law." 2A J. Moore, Moore's Federal Practice p 8.27 (2d ed. 1985). In determining whether a particular argument is an affirmative defense, courts consider "the logical relationship between the defense and the cause of action," and the likelihood that the plaintiff will be unfairly surprised if the defense does not appear in the pleadings. Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir.1987). In the instant case, the government argued that its liability should be reduced by the amount of social security and insurance payments Hassan received. This introduced an issue not directly related to its liability in the automobile accident--the real subject of the litigation. Evidence about the collateral source payments is distinct from evidence about the accident and evidence about the physical and emotional damage borne by Hassan. Therefore, we conclude that the collateral source payments argument falls within the scope of Rule 8(c), and that the government erred in not including this issue in the pleadings as an affirmative defense.

Nonetheless, we do not find that the district court improperly considered the evidence on collateral source payments. Admittedly, the general rule is that, when a party fails to raise an affirmative defense in the pleadings, that party waives its right to raise the issue at trial. See American National Bank v. Federal Deposit Insurance Corp., 710 F.2d 1528, 1537 (11th Cir.1983). However, the liberal pleading rules established by the Federal Rules of Civil Procedure apply to the pleading of affirmative defenses. We must avoid hypertechnicality in pleading requirements and focus, instead, on enforcing the actual purpose of the rule.

The purpose of Rule 8(c) is simply to guarantee that the opposing party has notice of any additional issue that may be raised at trial so that he or she is prepared to properly litigate it. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971). When a plaintiff has notice that an affirmative defense will be raised at trial, the defendant's failure to comply with Rule 8(c) does not cause the plaintiff any prejudice. And, when the failure to raise an affirmative defense does not prejudice the plaintiff, it is not error for the trial court to hear evidence on the issue. See Bull's Corner Restaurant v. Director of the Federal Emergency Management Agency, 759 F.2d 500, 502 (5th Cir.1985); see also Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B 1981) ⁴ ("Failure to affirmatively plead the defense is simply noncompliance with a technicality and does not constitute a waiver where there is no claim of surprise.") (dicta) (citation omitted).

In the case before us, it is clear that there was no prejudice to Hassan. Long before the trial, the government deposed Hassan and questioned her extensively about the collateral source payments she received. In addition, the government asked about collateral source payments in an earlier interrogatory. Thus, Hassan had notice that the government planned to raise the issue at trial. Consequently, we cannot say that the government's argument unfairly surprised or prejudiced the plaintiff.

2. Loss of Services

Due to her injuries, Hassan has been unable to perform housework or care for her son. After her injury, her husband and sister-in-law began gratuitously performing these services. Although Hassan has suffered no economic loss, she argued that the services have value and that, therefore, she should receive damages.

The district court determined that Hassan was attempting to bring an action that properly belonged to her husband--as a claim for loss of consortium. ⁵ The court found that since Hassan has incurred no costs and owes no money to her husband or her sister-in-law, she has not suffered any compensable damages based on loss of services. We reverse, and hold that plaintiffs in Hassan's position have a claim for services received whether those services are provided gratuitously or for a price.

We find it instructive to evaluate this issue in light of the policy underlying Florida's treatment of claims for loss of consortium. ⁶ Florida has consistently recognized the value of services gratuitously performed by family members of the injured party. See, e.g., White Construction Co., Inc. v. Dupont, 430 So.2d 915, 917-19 (Fla. 1st DCA 1983), reversed on other grounds, 455 So.2d 1026 (Fla.1984); Rumsey v. Manning, 335 So.2d 25, 26 (Fla. 2d DCA 1976). When Florida courts have denied or limited damages for loss of services, it has been because of their concern with avoiding double recovery. When there is no danger of double recovery, the state awards damages for loss of services. See White, 430 So.2d at 917-18; Rumsey, 335 So.2d at 27. We therefore find that it is more consistent with Florida policy to allow Hassan to bring this claim.

We also believe that, in this instance, an award for loss of services is more consistent with the economic analysis that the district court has utilized. See discussion infra Sec. 4. Hassan worked only seven months of the previous year and part time in other years. This was at least partly due to her responsibilities in caring for her child and performing housekeeping chores. ⁷ Hassan's earning capacity, as assessed by the district court, is lower than it would have been had she had no child care or housekeeping responsibilities. In not allowing Hassan's claim for loss of services, the district court ignored the economic value of those services.

In addition, the district court ignored the fact that, in many...