Rivero v. Mansfield

• Decision Date: 23 April 1991
• Docket Number: Nos. 89-1941,89-1851,s. 89-1941
• Citation: 584 So.2d 1012,16 Fla. L. Weekly 1100
• Parties: 16 Fla. L. Weekly 1100 Rosa RIVERO and Frederico Rivero, Appellants, v. Michael MANSFIELD and Mary Gross Mansfield, Appellees.
• Court: Florida District Court of Appeals

Page 1012

584 So.2d 1012

16 Fla. L. Weekly 1100

Rosa RIVERO and Frederico Rivero, Appellants, v. Michael MANSFIELD and Mary Gross Mansfield, Appellees.

Nos. 89-1941, 89-1851.

District Court of Appeal of Florida Third District.

April 23, 1991.

Rehearing Denied Sept. 27, 1991.

Gary E. Garbis, Miami, for appellants.

Goodhart, Rosner, Simon, Greenberg & Humbert, Jeanne Heyward, Miami, for appellees.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ.

ON CONSIDERATION EN BANC

BASKIN, Judge.

Rosa Rivero and Frederico Rivero, her husband, appeal a final judgment and amended final judgment. We affirm the final judgment and reverse the amended final judgment.

The Riveros sued Mary and Michael Mansfield for damages for injuries Rosa sustained in an automobile accident. The Riveros alleged that as a result of her injuries Rosa was in constant pain that left her unable to work and caused her to become deeply depressed. At trial, the Mansfields admitted liability. The trial proceeded on the issues of damages and whether the Riveros crossed the permanent injury threshold requirement of section 627.737(2), Florida Statutes (1983). According to the Riveros' medical experts' testimony, Rosa's permanent pain constituted a permanent injury; however, the Mansfields' medical experts testified that she did not sustain a permanent injury.

At the close of trial, the Riveros, relying on Johnson v. Phillips, 345 So.2d 1116 (Fla. 2d DCA 1977), requested the court to instruct the jury: "The words 'permanent injury,' as used in the Florida No-Fault Law, include permanent subjective complaints of pain resulting from an initial organic injury." The trial court rejected the Riveros' requested instruction. Instead, it instructed the jury: "In this case, the plaintiff does allege a permanent injury. Therefore, in order to recover in the case, the plaintiff must prove by the greater weight of the evidence that she has sustained a permanent injury within reasonable medical probability." The jury returned a verdict in the Riveros' favor, awarding them the uncontested amount of Rosa's unpaid medical bills, but finding that Rosa had not sustained a permanent injury. Consequently, the trial court entered a final judgment in accordance with the jury verdict. The Mansfields then requested the court to reduce the judgment by 80% pursuant to section 627.737, Florida Statutes (1983). The trial court granted the motion and entered an amended final judgment for the reduced amount. The Riveros filed this appeal.

The Riveros argue that the trial court erred in failing to give the requested instruction. We disagree, and in so doing, recede from our decision in Jones v. Smith, 547 So.2d 201 (Fla. 3d DCA 1989). ¹ Section 627.737 permits a plaintiff to recover damages for pain, suffering, mental anguish, and inconvenience "only in the event that the injury consists in whole or in part of: ... (2) Permanent injury within a reasonable degree of medical probability." Sec. 627.737(2), Fla.Stat. (1983). The statute does not define permanent injury, but requires that permanent injury be established within reasonable medical probability. Rosa testified that she suffers permanent pain. Although she introduced expert medical testimony that such pain constitutes permanent injury, defendants' medical experts testified that Rosa does not have a permanent injury. Consequently, the jury's obligation was to decide the weight to be given the evidence, a matter within the jury's province. 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. In effect, such an instruction directs the jury to disregard the testimony of defense medical experts and is tantamount to the court directing a verdict for plaintiffs on the issue of permanent injury. See Gencorp, Inc. v. Wolfe, 481 So.2d 109 (Fla. 1st DCA 1985). The court's instruction tracking the language of the statute was appropriate because it properly informed the jury that its obligation was to determine whether the plaintiff had sustained a permanent injury within a reasonable degree of medical probability, in light of all the testimony. We therefore affirm the final judgment.

For the following reasons, however, we reverse the amended final judgment in which the court reduced the jury's award. The Mansfields maintain that the court properly reduced the judgment because the Riveros have the option of suing their insurance carrier to require it to provide coverage. That argument is not persuasive. Nothing in the law "prevents injured persons from waiving their...