Progressive Select Ins. Co., Inc. v. Lorenzo

• Decision Date: 01 September 2010
• Docket Number: No. 4D09-127.,4D09-127.
• Citation: 49 So.3d 272
• Parties: PROGRESSIVE SELECT INSURANCE COMPANY, INC., Appellant, v. Michele Mason LORENZO, Appellee.
• Court: Florida District Court of Appeals

49 So.3d 272

PROGRESSIVE SELECT INSURANCE COMPANY, INC., Appellant,

v.Michele Mason LORENZO, Appellee.

No. 4D09-127.

District Court of Appeal of Florida, Fourth District.

Sept. 1, 2010.

Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellant.

Theodore J. Leopold, Jodi C. Page and Diana L. Martin of Leopold-Kuvin, P.A., Palm Beach Gardens, for appellee.

MAY, J.

An insurer appeals a jury verdict in an uninsured motorist case. It argues the trial court erred in denying its motions for new trial and remittitur. We agree and reverse.

An uninsured motorist rear-ended the plaintiff's vehicle. When the plaintiff's insurer did not tender its uninsured motorist coverage upon demand, the plaintiff filed a complaint against the insurer. The insurer admitted the existence of coverage, but claimed the plaintiff's injuries were pre-existing and not caused by the accident.

The plaintiff presented testimony from multiple doctors, who testified that the accident aggravated the insured's preexisting herniated discs, making them symptomatic for the first time. The plaintiff and her husband also testified.

The plaintiff admitted that she did not strike anything inside of her vehicle during the accident. She sustained no cuts or bruises; she told the other driver she was okay. She did not seek medical treatment immediately following the accident, but she began experiencing pain and muscle stiffness in her neck later that night. She went to an urgent care facility a few days later.

Eight months later, the plaintiff was seen by a chiropractor. She did not provide the chiropractor with any medical records; he was unaware of her prior medical condition.

Two years later, a pain doctor performed two epidural steroid injections, which revealed evidence of disc disease and arthritis. He reported the plaintiff was suffering from nerve entrapment in the back going down to the right leg and bilateral lumbar facet arthritis, a degenerative condition in the form of bony spurs in the spine, with drying out of spinal discs. He testified that multiple level disc herniations and bulges are more likely caused by aging than trauma.

A physiatrist, specializing in physical medicine and rehabilitation, reviewed x-ray and MRI films taken before and after the accident. He testified:

This is at this point a non-surgical patient, number one; number two, with a history of a neck and back problem secondaryto injuries; and number three, she's got some preexisting conditions.

....

This accident does not cause herniated discs. These herniated discs were there before the accident.

But what this accident did, it caused this pre-existing condition that was relatively asymptomatic to be symptomatic. In other words, the frequency, the duration and the intensity of her pain changed.

He testified that the plaintiff had a permanent increase in the frequency, duration, and intensity of her neck and back pain as a result of the accident, and sustained a thirteen-percent impairment. He opined that the plaintiff would have a five-year reduction in work life expectancy.

The plaintiff's forensic economist offered two models for future medical care costs. The economist testified that his opinions were based on the physiatrist's opinions concerning the plaintiff's condition and need for medical care. In his more conservative approach, he estimated future medical expenses of $514,750. In his more expensive model, including surgical intervention, he estimated the cost to be $745,107.

If the plaintiff was required to stop working five years early due to her injuries, she would lose approximately $135,300 in salary, plus an estimated ten to twenty-five percent reduction in vocational capacity, i.e., the lack of opportunity to get new jobs, for which he added another $115,667. When these two additional amounts were added to the more expensive cost of medical care, the total lifetime future losses totaled $958,229. Adding past medical expenses of $53,391, the economist testified to total damages of $1,017,657.

The defense expert, an orthopedic surgeon, testified that he examined the plaintiff and found nothing abnormal. At most, the plaintiff might have suffered a temporary exacerbation of preexisting conditions from the accident, but not a permanent aggravation or new injury, and certainly not an aggravation to the degeneration in her lumbar spine.

It is my opinion based on the review of the medical records; the chronology of medical records; the MRI studies; her prior history; the findings a year before-the MRI findings the year before and afterwards and subsequently that Ms. Lorenzo did not sustain any permanent injury, aggravation or new injury or impairment from the accident of March 11, 2006.

He opined the plaintiff "does not need any ongoing medical treatment in chiropractic, in physical therapy, base procedures, surgery or any other treatment as a result of this accident." He placed no activity or work-related restrictions on the plaintiff.

During cross-examination, plaintiff's counsel asked the defense expert a series of questions concerning the doctor's use of foreign help to transcribe his medical records. Specifically, the doctor was asked to explain why he sends his dictation to India to be transcribed. Plaintiff's counsel also asked a series of questions concerning the defense expert's insistence that plaintiff disrobe and wear a flimsy paper robe during the examination, insinuating that the doctor had some perverse sexual orientation. Defense counsel immediately objected to the second line of questioning as argumentative, inappropriate, and highly inflammatory.

The trial court held a sidebar conference, sustained the objection, but denied the request for a curative instruction. The court also denied the defense motion for mistrial. The court commented: "This is-I'll tell you truthfully, that made me uncomfortable. And I think it does prejudicethe jury." After further questioning, defense counsel renewed his motion for mistrial. Once again, the trial court denied the motion.

The defense then played the video deposition of a radiologist, who testified that the MRI images revealed abnormalities prior to the accident that were not related to trauma, but from degenerative disc disease. The MRIs done after the accident revealed a "drying out process" in the disc space that occurs over a long period of time, and was not caused by the accident.

The court denied the insurer's motion for directed verdict on past medical bills and on permanency. During deliberations, the jury had many questions, which were returned unanswered. It ultimately returned a verdict finding causation, but NO permanent injury. The jury awarded past medical expenses of $53,391 and future medical expenses of $514,750. It awarded nothing for future loss of earnings, past pain and suffering, or future pain and suffering.

When the jury returned with its verdict, the court noticed the jury had failed to total the verdict. The court returned the verdict form to the jury, instructing it that "the last line, it says 'TOTAL.' " When the jury returned to deliberate, the trial court inquired if there was any irregularity in the verdict. Plaintiff's counsel answered "no." Defense counsel responded: "From a form standpoint, Your Honor ... other than the total, no. From an evidentiary standpoint, yes. But that argument is for another day." At that point, plaintiff's counsel stated: "Neither party is waiving their right on other issues."

When the jury returned, it totaled the numbers and reached a verdict of $568,141. Defense counsel then asked the court to poll the jury to insure that the award was for future medical treatment. After some discussion, the court agreed to poll the jury, but not to ask a specific question about the damage amount.

The insurer filed a Motion for New Trial, Renewed Motion for Directed Verdict or, in the Alternative, Motion for Remittitur. The latter motion argued that the verdict was excessive because the jury awarded lifetime future medical expenses without a finding of permanency. The court denied the motions. With respect to the argument that the award of lifetime future medical expenses was excessive, the court stated:

On the argument by the Defendant of an inconsistent verdict, the Court in fact agrees with the Defendant that the jury in its verdict found no permanent injury and entered an inconsistent verdict by awarding $514,750.00 for medical expenses to be sustained in the future. The Court finds that the jury awarded medical expenses in the future as if the Plaintiff had sustained a permanent injury which the jury found that the Plaintiff had not. Though the case law permits an award of future economic damages without a finding of permanent injury, a permanent injury is a significant factor in establishing a reasonable certainty of the future damages. This underlying theory is set forth in Owen v. Morrisey, 793 So.2d 1018 (Fla. 4th DCA 2001),....

Although a finding of a permanent injury is not a prerequisite for an award of future economic losses, it also cannot be ignored.

This Court finds that the verdict was inconsistent and had the Defendant objected to the verdict and claimed that it was inconsistent at the time of trial, this Court would have considered its Motion at that time and would have resubmitted the issue to the jury affording the jury an opportunity to correct the inconsistency. See,Lucas v. Orchid Island Props., 982 So.2d 758 (Fla. 4th DCA 2008).

The court entered a final judgment for $100,000, the amount of coverage, and subsequently awarded costs of $21,195.57. From this judgment, the insurer now appeals.

The insurer argues the trial court erred in denying its motion for a mistrial based on the cross examination of the defense expert, which attempted to show the expert was: (1) "un-American" by outsourcing transcription jobs to India; and (2) a sexual predator or pervert because he made the examinees wear "a very thin piece of...