Ketchen v. Dunn
| Decision Date | 14 May 1993 |
| Docket Number | No. 92-02807,92-02807 |
| Citation | 619 So.2d 1010 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Week. D1250 Lynn KETCHEN, Appellant, v. Richard DUNN and Jeffrey Mason Dunn, Appellees. |
Scott A. Hunter and Frank J. Currie, Law Offices of Bernard Walsh, Sarasota, for appellant.
M. Castillo, David J. Lonigro, and David P. Rhodes, Haas, Austin, Ley, Roe & Patsko, P.A., Tampa, for appellees.
The appellant, Lynn Ketchen, challenges a final judgment entered in her favor and against the appellees, Richard Dunn and Jeffrey Mason Dunn. We find that the trial court erred by not permitting the jury to award future medical expenses to the appellant but affirm in all other respects.
The appellant filed this action in the circuit court after she was involved in an automobile accident. The appellant was injured when the car she was driving was struck in the rear by an automobile which had first been struck in the back by the appellees' motor vehicle.
The trial court, prior to trial, granted the appellant's motion for summary judgment on the issue of liability, and the case proceeded to trial on the issue of damages. The appellant claimed that she had sustained a permanent injury within a reasonable degree of medical probability and was, therefore, in addition to other damages, entitled to recover for the pain, suffering, mental anguish, and inconvenience she suffered as a result of the accident. See Sec. 627.737(2), Fla.Stat. (1989).
During the course of the trial, conflicting medical evidence was presented to the jury concerning both the cause of the appellant's post accident physical condition and the permanency of any injuries she received in the accident. In addition to the medical evidence, the appellant testified to ongoing subjective complaints of pain in her neck and jaw.
Prior to the case being submitted to the jury, the appellant requested that the jury be instructed that the words "permanent injury" include permanent subjective complaints of pain resulting from an initial organic injury. The appellant's requested instruction was refused. The trial court also refused the appellant's request that the verdict form permit the jury to award an amount for future medical expenses even if they found that the appellant had not sustained any permanent injuries as a result of the accident.
At the conclusion of the trial, the jury returned a verdict finding that the appellant had not sustained a permanent injury as a result of the accident. The appellant was awarded $37,836.72 for past medical expenses. The appellant filed a timely notice of appeal from the judgment that was entered as a result of the jury's verdict.
Although the appellant raises four points on appeal, we find that only two merit discussion. First, the appellant contends that the trial court erred when it refused the appellant's request that the jury be instructed that the words "permanent injury" include permanent subjective complaints of pain resulting from an initial organic injury. Next, the appellant contends that the court erred when it refused to permit the verdict form to allow for a determination of special damages for future medical expenses absent a finding of permanent injury. We find that the trial court properly refused the requested jury instruction concerning permanent injury but, as already mentioned, agree with the appellant's contention that the jury should have been allowed to award future medical expenses even though it found that the appellant did not sustain a permanent injury.
Throughout these proceedings, the appellant has taken the position that she met the threshold requirements of section 627.737(2) because she established that she had sustained a permanent injury as a result of the automobile accident. Because of the conflicting evidence presented to the jury, they had to resolve the conflicts and could have done so either way. In addition to medical testimony that the appellant had sustained a permanent injury, the appellant testified to ongoing subjective complaints of pain in her neck and jaw. In Johnson v. Phillips, 345 So.2d 1116 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 131 (Fla.1978), we affirmed a finding of permanency based upon somewhat similar evidence. In Johnson, we held that an organic injury can result in permanent injury that manifests itself through subjective complaints of pain. We, therefore, held that the words "permanent injury" included permanent subjective complaints of pain resulting from an initial organic injury. In this case, the appellant, in addition to testifying to subjective complaints of pain, presented medical evidence which, if believed, would have supported a finding of permanency. See Howard v. Newman, 363 So.2d 65 (Fla. 1st DCA 1978). If the jury had accepted this testimony, we would have upheld that finding. See Howard; Johnson. The appellees, however, presented evidence which, if believed, supported the verdict reached in this case, i.e. that the appellant did not sustain a permanent injury as a result of the accident in question. The jury evidently believed this testimony and found that the appellant did not sustain a permanent injury. We must also uphold this finding.
The appellant does not take the position that the question of permanency was not a jury question but contends that the jury should have been properly instructed on the law so that it could make this determination. As previously mentioned, the appellant contends that the court should have instructed the jury that the words "permanent injury" include permanent subjective complaints of pain resulting from an initial organic injury and that the failure to do so requires us to reverse for a new trial on the issue. We disagree.
We agree that a party has the right to have the jury instructed on the law applicable to the evidence under the issues presented. Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So.2d 153 (Fla. 2d DCA), cert. denied, 316 So.2d 286 (Fla.1975). Prior to the supreme court's decision in Mansfield v. Rivero, 620 So.2d 987 (Fla.1993), we would have agreed with the appellant's contention that her requested instruction was proper. We would then have had to decide whether it was reversible error not to give the instruction. Giordano v. Ramirez, 503 So.2d 947 (Fla. 3d DCA 1987); Ruiz.
In Rivero v. Mansfield, 584 So.2d 1012 (Fla. 3d DCA 1991), one of our sister courts, sitting en banc, held that an instruction that permanent injury includes permanent subjective complaints of pain incorrectly informs the jury that under the statute permanent pain is always permanent injury. The court said that, in effect, such an instruction...
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