Allstate Ins. Co. v. Manasse

• Decision Date: 25 September 1996
• Docket Number: No. 94-2318,94-2318
• Citation: 681 So.2d 779
• Parties: 21 Fla. L. Weekly D2102 ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Myrda MANASSE, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 779

681 So.2d 779

21 Fla. L. Weekly D2102

ALLSTATE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Myrda MANASSE, Appellee/Cross-Appellant.

No. 94-2318.

District Court of Appeal of Florida Fourth District.

Sept. 25, 1996.

Clarification Denied Nov. 6, 1996.

Michele I. Nelson of Paxton, Crow, Bragg, Smith & Keyser, P.A., West Palm Beach, for appellant/cross-appellee.

James P. Cooksey of Cooksey & Cooksey, P.A., West Palm Beach, for appellee/cross-appellant.

PARIENTE, Judge.

Appellee/cross-appellant, Myrda Manasse (plaintiff), appeals a verdict in which a jury found that she had sustained a permanent injury, awarded her past noneconomic damages and future medical expenses, but did not award any future noneconomic damages. We reverse because we find the jury verdict to be inadequate as a matter of law. ¹

Plaintiff was injured in an automobile accident with an underinsured tortfeasor and sued Allstate Insurance Company (Allstate), plaintiff's uninsured/underinsured motorist carrier, to recover her damages. While Allstate did not contest liability, the issues of plaintiff's comparative negligence, permanent injury and damages were contested. In response to special interrogatories, the jury found that plaintiff was not comparatively negligent and that she had sustained a permanent injury within a reasonable degree of medical probability as a result of the automobile accident. See § 627.737(2)(b), Fla. Stat. (1993).

Plaintiff was eighteen at the time of this accident. According to plaintiff's experts--a board certified radiologist, a neurosurgeon, and a chiropractor--the automobile accident caused a large protruded or herniated disc. Plaintiff's experts testified that as the result of her injuries, she could no longer perform her previous activities, and if she did, her condition would only worsen. Her treating chiropractor was the only witness to testify for plaintiff as to the necessity of future medical care. He testified that he had recommended continuing conservative therapy that would be "palliative and supportive." The therapy would not cure her problems; it would only "provide temporary relief."

Allstate defended this case by asserting that plaintiff did not sustain a permanent injury and that any problems plaintiff might have been experiencing were the result of other factors, including plaintiff's excessive weight and a subsequent automobile accident. Allstate offered the testimony of two experts, one of whom specifically disputed that plaintiff had sustained a permanent injury or would need future chiropractic care.

The jury awarded plaintiff $10,000 as the present value of future medical expenses over a forty-year period. According to the trial court, this was the precise amount requested in closing argument for future "palliative ² care." The jury also awarded plaintiff $2,000 for past pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect, and/or loss of capacity for the enjoyment of life (collectively, noneconomic damages). However, the jury did not award any future noneconomic damages.

In Mason v. District Board of Trustees, 644 So.2d 160 (Fla. 4th DCA 1994), a jury awarded the plaintiff all of his medical expenses, but awarded zero damages for past pain and suffering. In reversing this aspect of the award as inadequate as a matter of law, we stated that:

Although the jury in the instant case was free to disbelieve appellant's claim of pain and suffering and the testimony of his treating physician and chiropractor, it could not have done so and at the same time found all of appellant's medical bills were reasonable and necessary for the treatment of such pain.

Id. at 161. Our court concluded that "the jury could not have logically awarded damages for treatment and at the same time not have awarded damages for the pain requiring the treatments." Id.

In Mason, we focused on the issue of past pain and suffering because the jury in that case had not made a finding of permanency. A case more factually similar to this case is Butte v. Hughes, 521 So.2d 280 (Fla. 2d DCA 1988). In Butte, the jury found that the plaintiff had sustained a permanent injury as a result of an accident and returned a $9,000 verdict for future medical expenses. However, the jury returned a zero verdict on plaintiff's pain and suffering and loss of consortium claims. In reversing and remanding for a new trial, the second district found that "[t]he jury's zero verdict for general damages was grossly inadequate and totally inconsistent with its finding of permanent injury and with its award of future medical expenses." Id. at 281; see also Kirkland v. Allstate Ins. Co., 655 So.2d 106 (Fla. 1st DCA 1995). But see Simpson v. Stone, 662 So.2d 959 (Fla. 5th DCA 1995).

In this case, the jury could have disbelieved that plaintiff sustained a permanent injury or disbelieved that she required future treatment of her medical condition. But having found that plaintiff suffered past pain and suffering, and having further found that plaintiff sustained a permanent injury from the accident requiring $10,000 in future medical expenses over a forty-year time span, it is not logical or reasonable for the jury to have concluded that there would be zero future intangible damages associated with the permanent injury and future medical care. See Daigneault v. Gache, 624 So.2d 818 (Fla. 4th DCA 1993), review denied, 634 So.2d 623 (Fla.1994).

Even if the jury disbelieved plaintiff's complaints of continuing pain, there would be some amount of future noneconomic damages flowing as a result of plaintiff's permanent injury and future medical care. Noneconomic damages encompass not only pain and suffering but a host of other intangibles, such as mental anguish, inconvenience, disability and physical impairment.

Although a permanent injury may take many shapes and forms, the significance of a jury's finding of permanent injury means that the jury believed, based on the greater weight of medical and other evidence, that the individual will suffer some effect from the injury--whether it be pain and suffering or mental anguish--for the rest of his or her life. By comparison, an anatomical change from an accident without the prospect of continuing problems would not constitute a permanent injury. Once a jury makes the legally significant determination that an injured person sustained a permanent injury within reasonable medical probability, the jury should award some amount of money for intangible damages--even if only a relatively nominal amount. See Kirkland.

Prior to Auto-Owners Insurance Co. v. Tompkins, 651 So.2d 89 (Fla.1995), an award of both future economic and future noneconomic damages required a threshold finding of permanent injury. In Tompkins, our supreme court held that a plaintiff must only establish that the future economic damages are "reasonably certain to occur." Id. at 90. While proving a permanent injury is a "significant factor in establishing the reasonable certainty" of future economic damages, it is not a prerequisite. Id. at 91.

In the aftermath of Tompkins, a finding of permanent injury is the threshold finding only for an award of noneconomic damages. What has never been explicitly addressed by any court is whether, once the jury finds that the plaintiff has suffered a permanent injury within reasonable medical probability, the jury has discretion to refuse to award any money for noneconomic damages?

Judge Klein asserts that a finding of permanent injury combined with an award of future medical expenses does not mandate an award of future noneconomic damages. Simpson from the fifth district supports Judge Klein's position; Butte from the second district reaches an opposite conclusion.

Is the jury free to find that a permanent injury exists but disbelieve that the plaintiff will suffer any permanent effects from that injury? Does the jury have discretion--when damages are hotly disputed--to find both that a plaintiff has suffered a permanent injury and will require future medical expenses over a forty-year period, but refuse to award any amount of damages for future noneconomic damages? Our disagreement with the dissent may in part result from our different interpretations of the legal significance of a finding of a permanent injury.

As it stands now, the jury is not instructed on a definition of permanent injury nor instructed that a finding of permanent injury requires some award of money for noneconomic damages. ³ Unlike the alternative thresholds to an award of noneconomic damages--significant and permanent loss of an important bodily function or significant and permanent scarring or disfigurement--permanent injury is a broader concept with no specific medical definition. There is no statutory definition for permanent injury.

As Judge Zehmer stated in Morey v. Harper, 541 So.2d 1285, 1288 (Fla. 1st DCA), review denied, 551 So.2d 461 (Fla.1989), disapproved on other grounds, Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So.2d 1092 (Fla.1994):

The statute does not, however, define what is meant by "permanent injury" and the jury was not instructed on any standard or criteria for determining whether a particular injury is or is not permanent. Therefore, even though the phrase "permanent injury" is not a word of art in the medical profession, nevertheless the determination of what constitutes a permanent injury must, as a practical matter, be left to physicians trained in that profession.

In any given case, because of the absence of a statutory definition or jury instruction, a permanent injury is essentially what the medical experts and lawyers tell the jury it is. ("We know it when we see it."). Comment 3 to Florida Standard Jury Instruction (Civil) 6.1 states: "Section 627.737(2), Florida Statutes (1991), does not define 'permanent injury within a reasonable degree of medical probability'.... Therefore, the...