Auto-Owners Ins. Co. v. Tompkins

• Decision Date: 02 February 1995
• Docket Number: No. 82991,AUTO-OWNERS,82991
• Citation: 651 So.2d 89
• Parties: 20 Fla. L. Weekly S49 INSURANCE COMPANY, Petitioner, v. Michael TOMPKINS, Respondent.
• Court: Florida Supreme Court

Page 89

651 So.2d 89

20 Fla. L. Weekly S49

AUTO-OWNERS INSURANCE COMPANY, Petitioner, v. Michael TOMPKINS, Respondent.

No. 82991.

Supreme Court of Florida.

Feb. 2, 1995.

Curtright C. Truitt of Tew & Truitt, P.A., Fort Myers, for petitioner.

Terry S. Nelson and Jay Cooper of Goldberg, Goldstein & Buckley, P.A., Fort Myers, for respondent.

OVERTON, Justice.

We have for review Tompkins v. Auto-Owners Insurance Co., 627 So.2d 1236 (Fla. 2d DCA 1993), in which the Second District Court held that the trial court erroneously instructed the jury that the respondent Tompkins must have suffered a "permanent injury" to recover future economic damages. We have jurisdiction based on direct conflict with Josephson v. Bowers, 595 So.2d 1045 (Fla. 4th DCA 1992). Art. V, Sec. 3(b)(3), Fla. Const. For the reasons expressed, we approve the decision of the district court. We find that, in order to recover future economic damages, a claimant must establish only that the future economic damages are reasonably certain to occur. While proving a permanent injury can be an important factor in establishing that such damages are reasonably certain to occur, it is not an absolute prerequisite.

The record reveals the following facts. Michael Tompkins was injured in a motor vehicle accident involving an underinsured motorist. After settling with the tortfeasor for his liability limits of $25,000, Tompkins filed suit for underinsured motorist benefits against his own insurance carrier, Auto-Owners Insurance Company, for his excess damages stemming from the accident. Liability was admitted and the case proceeded to trial on the issues of causation and damages. The parties presented evidence concerning the permanence of Tompkins' injuries and the amount of his past and future economic damages. After closing remarks, Tompkins requested that the jury be given a verdict form that allowed for an award of future economic damages even if the jury failed to find that he had suffered a permanent injury. The trial court denied Tompkins' request and, over objection, gave a jury instruction that required that the jury find a permanent injury within a reasonable degree of medical probability in order to award future economic damages. The jury found that Tompkins had not suffered a permanent injury and awarded only past economic damages.

Tompkins appealed to the Second District Court of Appeal. That court agreed with Tompkins that "the trial court erred in instructing the jury that future economic damages were recoverable only if he had sustained a permanent injury." Tompkins, 627 So.2d at 1236. The district court reversed and ordered a new trial on the issue of future economic damages.

We find clear conflict with Josephson v. Bowers, 595 So.2d 1045 (Fla. 4th DCA 1992). In Josephson, the Fourth District Court of Appeal held that there must be a "permanent injury before a defendant may be held liable for future loss of income and other future damages in a personal injury claim." Id. at 1046.

The issue in this case requires us to determine the proper evidentiary test that must be satisfied when future economic damages are sought in a personal injury claim. The district courts that have addressed this issue are split over the proper answer. Both the second and fifth districts have held that a claimant may be awarded future economic damages without proof of a permanent injury. See Ketchen v. Dunn, 619 So.2d 1010 (Fla. 2d DCA 1993); Smey v. Williams, 608 So.2d 886 (Fla. 5th DCA 1992). Conversely, the third and fourth districts have clearly held that a claimant must prove a permanent injury as a threshold to obtaining future economic damages. Thieneman v. Cameron, 126 So.2d 170, 171 (Fla. 3d DCA 1961); Fazzolari v. City of West Palm Beach, 608 So.2d 927 (Fla. 4th DCA 1992), review denied, 620 So.2d 760 (Fla.1993); Josephson.

Our research of the law in other jurisdictions reveals that many other states allow a claimant to recover prospective economic damages where the future effects of the injury are reasonably certain. See, e.g., Griffen v. Stevenson, 1 Ariz.App. 311, 402 P.2d 432 (1965) (future damages are recoverable where the evidence reflects that surgery is reasonably certain to be performed...