Vega v. Travelers Indem. Co.

• Decision Date: 09 February 1988
• Docket Number: No. 86-3173,86-3173
• Parties: 13 Fla. L. Weekly 375 Lourdes VEGA and Cecilio Vega, Appellants, v. TRAVELERS INDEMNITY COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 73

520 So.2d 73

13 Fla. L. Weekly 375

Lourdes VEGA and Cecilio Vega, Appellants, v. TRAVELERS INDEMNITY COMPANY, a foreign corporation, Appellee.

No. 86-3173.

District Court of Appeal of Florida,

Third District.

Feb. 9, 1988.

Rehearing Denied March 11, 1988.

Magill & Lewis, P.A., and R. Fred Lewis, Miami, for appellants.

James O. Nelson, David L. Willing, and Steven Adamsky, Miami, for appellee.

Before HENDRY, NESBITT and JORGENSON, JJ.

JORGENSON, Judge.

Lourdes and Cecilio Vega brought an action to recover medical expenses, lost wages, and loss of earning capacity benefits from their insurance carrier, Travelers Indemnity Company, pursuant to no-fault coverage provided by their automobile insurance policy. ¹ The jury found for Travelers and awarded no damages to the Vegas. The trial court entered final judgment upon the jury's verdict. The Vegas contend, and we agree, that the judgment was against the manifest weight of the evidence.

At trial, Travelers admitted that its policy was in full force and effect on May 28, 1983, the date Lourdes Vega was injured in a car crash. Travelers also admitted that she was an insured under the policy terms and that the policy included personal injury protection [PIP] coverage. ² Uncontradicted evidence established that Travelers refused to reimburse her for two bills for services rendered at the hospital immediately following her accident. There was unrebutted testimony that Travelers refused to pay the required 80% of the charges submitted by the treating orthopedic surgeon as well as the charges for a second medical opinion from another orthopedic surgeon. ³ Uncontradicted evidence showed that Mrs. Vega missed two weeks of work following the accident and that Travelers refused to reimburse her for her lost wages. It was undisputed that, as a result of the accident, Mrs. Vega suffered a permanent partial disability. Her disability rating ranged from a low of 2.5%, according to Travelers' physician, to a high of Travelers presented no testimony, expert or otherwise, in rebuttal. Instead, it advanced the proposition that, because Mrs. Vega had found a job working as a laundress at a higher wage than she had earned bagging groceries before the accident, Travelers was thereby absolved from liability under section 627.736, Florida Statutes (1985). Travelers offered no reasonable explanation for its refusal to pay 80% of Mrs. Vega's hospital and physician's bills. Even if Travelers was correct in its benighted belief that Mrs. Vega's increased wages justified its failure to pay her claim for loss of future earning capacity, it was absolutely bound to pay for concededly lost past wages. Travelers' adamant refusal to settle the outstanding medical bills and weeks of lost wages is at odds with its candid admission to the trial court that the issue in the case was whether, as a result of the accident, Mrs. Vega's earning capacity had been impaired. ⁴

15%, according to Mrs. Vega's chiropractor. A vocational rehabilitation expert who testified for Mrs. Vega established that the present value of her loss of earning capacity over her remaining working life would be $37,513.

When construing provisions of the No-Fault Act, Florida courts incline to a liberal construction in favor of the insured. Palma v. State Farm Fire & Casualty Co., 489 So.2d 147 (Fla. 4th DCA), rev. denied, 496 So.2d 143 (Fla.1986); Charter Oak Fire Ins. Co. v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976). While the credibility of an expert witness and the weight of his testimony are for the jury to determine, Fay v. Mincey, 454 So.2d 587 (Fla. 2d DCA 1984), the fact finder must be guided by the greater weight of the evidence. Although a jury may award a lower amount of damages than that suggested by expert testimony, it may not totally ignore the only evidence presented on that issue. County of Sarasota v. Burdette, 479 So.2d 763 (Fla. 2d DCA 1985), rev. denied, 488 So.2d 830 (Fla.1986); Slacter v. City of St. Petersburg, 449 So.2d 1006 (Fla. 2d DCA), rev. denied, 458 So.2d 271 (Fla.1984). A zero verdict in Florida will be upheld only in the face of conflicting evidence regarding whether the plaintiff was in fact injured. Westbrook v. All Points, Inc., 384 So.2d 973 (Fla. 3d DCA 1980). See also Doyle v. Faford, 517 So.2d 778 (Fla. 5th DCA 1988). Although her disability rating varied from physician to physician, the fact of Mrs. Vega's permanent partial disability was uncontroverted. The jury could not reasonably have returned a zero verdict. See Short v. Ehrler, 510 So.2d 1110 (Fla. 4th DCA 1987) (uncontroverted expert testimony warranted award of some damages); Valdez v. State Farm Mut. Auto. Ins. Co., 381 So.2d 743 (Fla. 3d DCA 1980); Banyas v. American Mut. Fire Ins. Co., 359 So. 2d 506 (Fla. 1st DCA 1978). Based on both the evidence adduced at trial and the statutory provisions, Travelers must reimburse Mrs. Vega for the remaining hospital and physician charges and the two weeks of lost wages. Mrs. Vega is also due some compensation for loss of future earning capacity.

Because the jury verdict of zero damages was against the manifest weight of the evidence, we reverse the final judgment and remand for a new trial on damages.

Reversed and remanded with directions.

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1 The Vegas' policy provides in pertinent part:

SECTION I

PERSONAL INJURY PROTECTION

The Company will pay, in accordance with the Florida Automobile Reparations Reform Act, as amended, to or for the benefit of the injured person:

(a) 80% of medical expenses, and

(b) 60% of work loss [.]

Definitions

When used in reference to this Section:

* * *

"medical expenses " means reasonable expenses for necessary medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, for prosthetic devices and for necessary remedial...