Appellate Court Disagrees with Jury’s Award for Loss of Earning Capacity and Reverses Trial Court’s Denial of Collateral Source Set-Off Request

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Holding: The 5th DCA held that the trial court abused its discretion in denying defendant’s motion for remittitur or new trial, and erred in denying a set-off amount for which the plaintiff’s healthcare provider released its lien and waived any right to subrogation or reimbursement.

Facts: The plaintiff was involved in an automobile accident. He testified that his hourly wage as a plumber after the accident fluctuated and that he feared he would not be able to find another manual labor job should he be laid off. The jury found the defendant 100% liable for the accident and awarded him $10,000 for past lost earnings and $260,000 for lost earning capacity.

Loss of Earning Capacity: The appellate court determined that the plaintiff offered insufficient evidence to support the jury’s award for loss of earning capacity. The plaintiff’s testimony proved he continued to work at the same hourly wage as before the accident. Moreover, his testimony regarding future job secured “amounted to pure speculation and does not serve as a proper basis for award of lost earning capacity.” Put another way, the plaintiff failed to demonstrate that he “was completely disabled from further gainful employment” or that he “was unable to work to the same age [he] would have otherwise.” Citation omitted. Despite showing he suffered permanent injuries, he failed to introduce “a monetary standard against which the jury [could] measure any future loss.” Citation omitted.

Therefore, the trial court abused its discretion by denying the defendant’s motion for remittitur and new trial as to loss of earning capacity.

Collateral Source Set-Offs: The defendant requested that the trial court set-off $25,000 in payments provided by the plaintiff’s healthcare provider for which it released its lien and waived subrogation. The trial court denied on the basis the defendant that could not argue for additional set-offs after presenting expert testimony to challenge the reasonableness of the plaintiff’s medical bills, which resulted in the jury awarding a reduced award for past medical expenses. However, the defendant did not ask for the jury for the $25,000 set-off reduction. Because this amount was considered a collateral source, and it was undisputed that the healthcare provided released its lien and waived subrogation, the appellate court reversed and remanded for the trial court to enter a set-off in the amount of $25,000.

Citation: Rasinski v. McCoy, 42 Fla. L. Weekly D1711a (5th DCA, Aug. 4, 2017)

(This post was prepared by Karina D. Rodrigues, Esq. For more information, please contact Karina at or 954-522-6601).