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Florida Fifth DCA reverses trial court's denial of defense motion for new trial and for set-off of collateral source payment for which right to subrogation and reimbursement had been waived

On August 4, 2017, in Rasinski v. McCoy, No. 5D15-4423, the Florida Fifth DCA reversed a trial court’s denial of a defense motion for set-off of a collateral source payment related to injuries suffered in a motor vehicle accident, holding that the judgment should have been reduced by the amount of the payment because the collateral source provider had previously waived the right to subrogation and reimbursement. Quoting Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247, 1249 (Fla. 2015), the Fifth DCA noted that Section 768.76, Florida Statutes, abrogated the common law rule prohibiting reduction of damages from collateral source payments to "reduce insurance costs and prevent plaintiffs from receiving windfalls.” The Court noted that while the defendant had challenged the reasonableness of various medical bills a trial, he had not challenged the reasonableness of this specific bill. He also had not requested that the jury reduce the award for past medical expenses by the amount of the collateral source payment relating to the bill. Nor could he have done so, for as the Court observed, citing both Joerg and Sheffield v. Superior Ins. Co., 800 So. 2d 197, 203 (Fla. 2001)), payments from collateral source benefits are not admissible because such evidence may confuse the jury with respect to both liability and damages.

The Fifth DCA also ruled that the trial court abused its discretion by denying the defendant’s motion for remittitur and new trial as to loss of earning capacity. In motor vehicle negligence cases, Section 768.043, Florida Statutes, requires a court upon a proper motion to review the amount of any damage award to determine whether it is clearly excessive or inadequate based on the evidence at trial. Quoting from Hubbs v. McDonald, 517 So. 2d 68, 69 (Fla. 1st DCA 1987), the Court stated that to establish a claim for loss of future earning capacity, the plaintiff must introduce "reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss." The Court noted that the plaintiff’s own testimony had established that he continued to work after the accident for the same hourly wage he earned before the accident. The Court concluded that any concerns about the plaintiff’s future job security were “pure speculation.”