Florida Farm Bureau General Ins. v. Jordan

• Decision Date: 05 December 2008
• Docket Number: No. 5D07-3543.,5D07-3543.
• Citation: 995 So.2d 1135
• Parties: FLORIDA FARM BUREAU GENERAL INSURANCE, etc., Appellant, v. Johnny JORDAN, Appellee.
• Court: Florida District Court of Appeals

995 So.2d 1135

FLORIDA FARM BUREAU GENERAL INSURANCE, etc., Appellant, v. Johnny JORDAN, Appellee.

No. 5D07-3543.

District Court of Appeal of Florida, Fifth District.

December 5, 2008.

Lester A. Lewis, of Lewis & Leiser, Daytona Beach, for Appellant.

Jay F. Floyd, St. Augustine, for Appellee.

GRIFFIN, J.

Appellant, Florida Farm Bureau General Insurance Company ["Farm Bureau"], appeals an order of the lower court granting Appellee, Johnny Jordan ["Jordan"], a new trial.

Johnny Jordan was involved in a motor vehicle accident on August 29, 2003. At the time of the accident, Jordan was working and was driving a truck owned by his employer. Jordan received the liability limits of the tortfeasor's policy, underinsured motorist benefits from his employer's insurer, worker's compensation and the $15,000 limit under Jordan's personal auto policy issued by Farm Bureau for PIP and MedPay coverage.

Jordan filed suit below against Farm Bureau for underinsured motorist benefits for claimed excess damages. Liability was admitted, and the case proceeded to trial on the issues of damages. The evidence at trial showed that Jordan incurred medical bills exceeding $62,000. Jordan's average weekly income prior to the accident had been $603.31.¹ Jordan was deemed to have an IQ of about sixty-five, with poor basic reading and math skills.

At trial, Jordan claimed that he had not worked since the date of the accident, three and one-half years earlier, due to his injuries, and was unemployable. Farm Bureau contended and offered evidence that Jordan was not permanently impaired or injured, was not restricted in his ability to work and needed no continuing medical care for any injury or physical condition caused by the accident. Witnesses, including some of Jordan's treating physicians, testified that Jordan's subjective complaints were out of proportion to their objective clinical findings.

Following closing arguments, the jury was instructed and the verdict form was explained. A key question was whether Jordan had sustained a permanent injury within a reasonable degree of medical certainty as a result of the accident. Given the structure of the verdict form, the jury was not required to determine future economic damages and future non-economic damages unless they determined that Jordan had sustained a permanent impairment.

The jury awarded Jordan damages for his past medical bills in the amount of $6,628.76, but subtracted the $5,000 Farm Bureau had paid Jordan as MedPay coverage under his policy.² They also awarded $12,000 for past lost income, but subtracted $10,000, which Farm Bureau paid out as PIP benefits under Jordan's policy.³ No objection was raised to the verdict when it was rendered and the jury was discharged.

After the verdict, Jordan filed a motion for new trial, relying on the error in the structure of the verdict form. After a hearing on the motion, the trial court granted the motion for new trial, citing Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89 (Fla.1995).

Both parties agree that Tompkins permits the award of future economic damages even where, as here, the jury did not find any permanent injury. Farm Bureau contends, however, that Jordan presented his case in such a way that Jordan was requesting future economic damages based only on a permanent injury. In Tompkins, the plaintiff 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 the request and 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 awarded only past economic damages. The plaintiff appealed to the Second District, which agreed that the lower court erred in instructing the jury that future...