Third District Court of Appeal
State of Florida
Opinion filed January 4, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-3005
Lower Tribunal No. 11-117-K
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GEICO General Insurance Company,
Appellant,
vs.
Thomas A. Dixon,
Appellee.
An Appeal from the Circuit Court for Monroe County, Tegan Slaton, Judge.
Carlton Fields Jorden Burt, P.A., and Paul L. Nettleton, for appellant.
Kimberly L. Boldt, Jeffrey D. Mueller and Mario R. Giommoni (Boca
Raton); Hoffman, Larin & Agnetti, P.A., and John B. Agnetti and David Perkins,
for appellee.
Before SUAREZ, C.J., and SCALES, J., and SHEPHERD, Senior Judge.
SHEPHERD, Senior Judge.
This is an appeal by GEICO General Insurance Company from a trial court
order denying GEICO’s motion for new trial on compensatory damages in an
automobile accident case involving an uninsured motorist in which the jury first
considered and awarded compensatory damages against both GEICO and the co-
defendant uninsured motorist driver arising out of the accident, and then
reconvened to consider an award of punitive damages against the uninsured
motorist driver alone. Before trial, GEICO and the co-defendant uninsured
motorist driver admitted liability for the accident, and the court ordered that the
plaintiff, GEICO’s insured, was entitled to recover an award of punitive damages
against the uninsured motorist driver in an amount to be determined in the second
phase of the proceeding.1
GEICO’s principal assignment of error is the admission of evidence showing
that the uninsured motorist driver was intoxicated beyond the legal limit at the time
of the crash in the compensatory phase of the trial. We agree and reverse and
remand the case for a new trial on compensatory damages. We find the evidence
of the uninsured motorist driver’s alcohol use was irrelevant to the issue of the
amount of compensatory damages, which was the subject of the first phase of the
proceedings, and that any arguable probative value the evidence might have had –
1The trial resulting in the judgment on appeal is actually the third time this case
was tried. Two prior attempts to try this case resulted in mistrials for reasons
unrelated to this appeal.
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say, to the credibility of the testimony of the uninsured defendant driver – was
substantially outweighed by the danger of unfair prejudice.
Because we are remanding this case for a new trial on compensatory
damages, we also address two issues raised by GEICO concerning the sufficiency
of the evidence to support the future economic damage award to the plaintiff
because they are likely to recur in the new trial. A brief summary of the factual
and procedural background of this case is necessary to explain our decision.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out an automobile accident which took place on May 17,
2009, in Monroe County, in which GEICO insured, Thomas Dixon, was struck
head-on by a vehicle driven by Gerardo Alcebo. Alcebo was driving under the
influence of alcohol at the time of the accident and ultimately was adjudicated
guilty of driving under the influence causing “bodily injury.” See § 316.193(3)(a),
(b) and (c)(2), Fla. Stat. (2015). Alcebo did not have a policy of liability
insurance. Dixon’s policy, issued by GEICO, included uninsured motorist
coverage of up to $20,000 per person.
In 2011, Dixon sued GEICO for breach of contract for failure to pay the
amount of the uninsured motorist coverage and joined Alcebo as a co-defendant
seeking both compensatory and punitive damages against him for negligently and
recklessly operating a motor vehicle while intoxicated causing serious bodily
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injury. Prior to trial, Alcebo and GEICO admitted liability for the accident, and the
trial court ruled, as a matter of law, that Alcebo was punitively liable for driving
under the influence of alcohol at the time. Thus, the only issues remaining to be
tried were the amounts of compensatory and punitive damages which should be
awarded to Dixon. 2 Before trial, GEICO moved to bifurcate the two issues and to
exclude any reference to Alcebo’s intoxication during the first compensatory
damages trial. The trial court granted bifurcation, but nullified GEICO’s reason
for bifurcation by permitting Dixon to offer evidence and argument on Alcebo’s
intoxication during the compensatory phase.
Alcebo’s intoxication while driving quickly became the central theme of the
first phase of the trial. The trial judge himself began the barrage by instructing the
jury, before the first witness was called, that “punitive damages are warranted
against Mr. Alcebo as a punishment to him and as a deterrent to others because he
was driving under the influence of alcoholic beverages . . . to the extent that his
normal faculties were impaired while having a blood alcohol level of .08 or higher
and during the course of such driving . . . he caused . . . bodily injury to Mr.
Dixon.” Dixon’s first witness was the state trooper who investigated the DUI
2 Included in the calculation of the amount of compensatory damages was the sub-
issue of whether Dixon sustained a permanent injury as a result of the accident.
Absent permanent injury, a plaintiff is entitled to recover UM benefits only for
economic damages incurred as a result of injuries sustained in the accident and not
for economic damages, such as pain and suffering. See §§ 627.727, 627.737, Fla.
Stat. (2015).
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charges. Counsel for Dixon repeatedly referred to Alcebo’s drunk driving as “a
conscious decision to operate a vehicle while under the influence of alcohol” and
stressed that “GEICO stands in the shoes of Alcebo” for purposes of the
compensatory damage award. Although the focus of phase one should have been
on the issue of permanent injury and the amount of compensatory damages to be
awarded, counsel for Dixon made Alcebo’s, and in his stead GEICO’s, callousness
in causing Dixon’s injury the central feature of the trial.
As to damages, Dixon admitted he had suffered from back pain since the
early 1990’s. In 2004, Dixon underwent spinal surgery to relieve the pain. Dixon
testified he did not take any pain medication for back pain between the 2004
surgery and the date of the automobile accident. However, Dixon testified that
after the accident he was prescribed Oxycontin and gradually became addicted.
After a second back surgery in 2011, Dixon began to take Suboxene to detoxify
himself from the Oxycontin. Dixon testified:
DIXON: . . . [Dr. Nordt] gave me the scrip to take to [the detox clinic] to tell
him to detox me the proper way. So they put me back on the medication,
and he slowly took me down off of it until he slowly put me on a drug called
Suboxone. Suboxone is designed for opiate addiction, and it's called an
opioid. I can't really explain to you how it works, but it causes the brain to
do something to where and it does have a mild painkiller in it, too.
COUNSEL: Do you take it every day?
DIXON: Every day of my life.
COUNSEL: How many times a day do you take it?
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DIXON: I take eight -- I take four milligrams, three times a day.
COUNSEL: And can you advise the jury what that costs you?
DIXON: It costs me $560 a month, like $565, something like that.
During closing arguments and without any evidentiary basis, Dixon’s counsel
suggested the jury should award Dixon a five-year supply of Suboxone as future
medical damages.
Next, in support of his claim for future loss of earning capacity, Dixon
testified that on May 4, 2009, thirteen days before the accident, he retired from
Florida Keys Aqueduct Authority after working there for a little over thirty-five
years. He testified he was hired by the Authority soon after graduation from high
school. He was later promoted to supervisor of engineering and worked in that
capacity for the last fifteen to twenty years of his employment. At age fifty-three,
he accepted a retirement package. Dixon testified that he planned to take three to
six months off after retirement and then begin to supplement his retirement income
by working “in the diving industry for hydrostacking [sic] dive tanks and the repair
of fiber tanks.” He testified he had hands-on work experience in this area through
his association with a dive shop located at a Chevron gas station. He stated “the
boss from there flew me and another guy . . . up together to Chicago to get training
in order to have a certification to be able to do it.” Dixon obtained the certification
but was never hired at the Chevron due to its closure. Nonetheless, he testified that
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he expected to subsidize his retirement by making $2,000 to $2,500 a month in that
business after a brief vacation. However, because of the back injury he claimed
was related to the accident, he could no longer perform that type of work. During
closing arguments, Dixon’s counsel suggested an award for future loss of earning
capacity of $288,000, based on the scenario of Dixon working in the hydrostatic
testing business for twelve years, or until he reached the age of sixty-six, at $2,000
a month.
At the close of the compensatory trial, the jury found Dixon suffered a
permanent injury to his back as a result of the accident and returned an itemized
verdict of $970,396.62 in compensatory damages. The award included $33,600.00
for future medical expenses and $288,000.00 for loss of future earning capacity.3
3 The jury also returned a verdict for $1,000.00 in punitive damages against
Alcebo. The paltry punitive damage verdict is explained by the fact that Dixon’s
real play in this case is to build up the compensatory damage award against Alcebo
as much as possible in order to seek an amount in excess of the uninsured motorist
limit of $20,000 from GEICO in a first party bad faith action Dixon has pending
against GEICO pursuant to section 624.155 of the Florida Statutes. At present,
Dixon is limited in the amount of compensatory damages he can recover from
GEICO to the amount of the uninsured motorist’s coverage, and the final judgment
so reflects. See Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214 (Fla. 2016);
Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239 (Fla. 2d DCA 2008). A
punitive damage award in any amount is not recoverable under section 624.155
without a claim of a general business practice which violates the statutes. §
624.155(5), Fla. Stat. (2015). Because Alcebo is impecunious (to the point he did
not even show up for the third trial), counsel for Dixon agreed to limit the amount
of punitive damages he would seek against Alcebo to $1.00 for the likely purpose
of encouraging Alcebo’s cooperation with Dixon in the litigation. The jury
awarded 1,000 times more than Dixon agreed to seek.
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GEICO’s motion for a new trial based on the evidence of Alcebo’s intoxication
elicited during the compensatory damages phase of the trial, and its motion for
directed verdict as to Dixon’s claim for future medical expenses and loss of
earning capacity were also denied.
The trial court entered judgment against GEICO in the amount of
$20,000.00, the uninsured motorist policy limit, and against Alcebo for the
remaining amount of the compensatory damages according to the verdict. GEICO
timely appealed.
ANALYSIS
We review the denial of a motion for directed verdict de novo, Banco
Espirito Santo Intern., Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d
DCA 2008), and the admission of evidence and denial of a motion for new trial
under an abuse of discretion standard. Kalbac v. Waller, 980 So. 2d 593, 595 (Fla.
3d DCA 2008); H & H Elec., Inc. v. Lopez, 967 So. 2d 345, 347 (Fla. 3d DCA
2007).
1. Irrelevant DUI Evidence and Argument.
The trial court correctly exercised its discretion when it granted GEICO’s
motion to bifurcate the compensatory and punitive damage issues in the trial of this
case. See Fla. R. Civil P. 1.270(b); Roseman v. Town Square Ass’n, 810 So. 2d
516, 519-20 (Fla. 4th DCA 2001) (“[T]he trial court’s decision to bifurcate is
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subject to an abuse of discretion standard of review.”) However, the laudable
purpose of the motion was annulled when the trial judge admitted evidence and
permitted argument concerning drunk driving in the compensatory damage phase
of the bifurcated proceeding.
In an automobile negligence case, when the defendant admits liability
regarding the cause of the accident, evidence of the defendant’s sobriety is
irrelevant and prejudicial. Swanson v. Robles, 128 So. 3d 915, 917-18 (Fla. 2d
DCA 2013); see also Jones v. Alayon, 162 So. 3d 360 (Fla. 4th DCA 2015);
Neering v. Johnson, 390 So. 2d 742, 742 (Fla. 4th DCA 1980) (concluding the trial
court erred in admitting testimony of defendant’s sobriety when “[p]rior to trial the
parties entered into a written stipulation by which appellant admitted liability and
the parties agreed the sole issue for trial was the damages incurred by appellees”).
The existence of the punitive damage claim in this case does not change the result
because the trial court also found before trial that Alcebo was liable for punitive
damages. Swanson, 128 So. 3d at 918 (concluding that when “liability for punitive
damages was no longer at issue . . . [t]here was no reason to admit evidence of
[defendant’s] drug use in a bifurcated first phase other than to inflame the jury and
increase the compensatory damages verdict”). For these reasons, we hold that the
trial court abused its discretion by allowing evidence and argument regarding
Alcebo’s drunk driving in phase one of the trial, and order a new trial on the issue
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of compensatory damages. Furthermore, because we are reversing and remanding
the case for a new trial and the issues may occur on retrial, we also address the
sufficiency of the evidence to support the award of future economic damages for
future medical expenses and future loss of earning capacity.
2. Future Economic Damages Evidence.
As a matter of law, future economic damages are only appropriate when
established with reasonable certainty. See Auto-Owners Ins. Co. v. Tompkins, 651
So. 2d 89, 91 (Fla. 1995); Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA
2010). Thus, Dixon had the burden to establish his need for future medical
treatment, within a reasonable degree of certainty, and to provide evidence for the
jury to determine, with reasonable certainty, the amount needed to pay for the
treatment. See Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953); Fasani, 43 So. 3d
at 812; DeAlmeida v. Graham, 524 So. 2d 666, 668 (Fla. 4th DCA 1987). “A mere
possibility that certain treatment might be obtained in the future cannot form the
basis of an award of future medical expenses.” Fasani, 43 So. 3d at 812 (citing
Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007)). Similarly,
Florida law does not permit a plaintiff to recover loss of future earnings unless
plaintiff proves with a reasonable degree of certainty his or her future earning
capacity. Truelove, 954 So. 2d at 1288 (citing W.R. Grace & Co.-Conn. v.
Pyke, 661 So. 2d 1301, 1303-04 (Fla. 3d DCA 1995)). After a close review of the
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trial transcripts in this case, we find there is an insufficient evidentiary basis for the
jury to determine, with reasonable certainty, both future medical expenses and
future loss of earning capacity.
The evidence Dixon presented to support his claim for future medical
expenses consisted solely of his testimony that at the time of trial he was taking the
prescription drug, Suboxone, to detoxify himself from an opiate addiction. The
evidence is unclear whether the opiate addiction had any relationship to the
accident. More significantly, there is a complete absence of any testimony, either
lay or expert, evidencing, with reasonable certainty, how long into the future Dixon
would need to take the drug. The jury simply accepted the suggestion by counsel
for Dixon in final argument that five years was a sufficient number of years to use
to calculate the award. The jury awarded precisely the amount suggested by
counsel. The trial court should have granted GEICO’s motion for directed verdict
on this award.
In support of future loss of earning capacity, Dixon testified to his plans for
future employment, but did not present sufficient evidence from which the jury
could determine, with any degree of certainty, that Dixon was prevented by his
injury-related limitations from obtaining suitable work in the future, including
work hydrotesting and repairing dive tanks. Dixon testified he had obtained
experience in this field through his association with a dive shop located at a gas
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station and received certification for the work. However, he presented no concrete
evidence demonstrating the availability of this type of job in the diving industry or
the pay being offered for such a position. Dixon speculated he could earn $2,000
to $2,500 a month in that business, and his counsel suggested Dixon could earn
this amount until he was sixty-six. Essentially, Dixon wanted the jury to follow his
unfounded supposition that, because he was trained for hydrostatic testing and
because his back injury prevented him from doing this work, he no longer has any
capacity to earn supplementary income during his retirement years. Without
evidence of alternative employment for a man of Dixon’s age, skills, education,
etc., the jury was forced to engage in a future loss of earnings analysis which is not
recognized in Florida.
CONCLUSION
For the foregoing reasons, we find the trial court abused its discretion in
admitting irrelevant evidence of Alcebo’s intoxication during the compensatory
damages trial when, prior to trial, the defendant admitted causing the accident and
the court determined punitive damages liability as a matter of law. We also agree
that the court below erred in denying GEICO’s motions for directed verdict and
judgement notwithstanding the verdict regarding future economic losses.
Accordingly, we reverse and remand for a new trial.
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