Elaine Dial v. Calusa Palms Master Association, Inc.

Supreme Court of Florida
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No. SC21-43
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ELAINE DIAL,
Petitioner,

vs.

CALUSA PALMS MASTER ASSOCIATION, INC.,
Respondent.

April 28, 2022

PER CURIAM.

We review the Second District Court of Appeal’s decision in

Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690 (Fla. 2d DCA

2020), in which the Second District certified the following question

of great public importance:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL
AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA.
2015), PROHIBITING THE INTRODUCTION OF
EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL
INJURY CASE FOR PURPOSES OF A JURY’S
CONSIDERATION OF FUTURE MEDICAL EXPENSES
ALSO APPLY TO PAST MEDICAL EXPENSES?
Id. at 692.1 For the reasons explained below, we answer the

certified question in the negative and approve the Second District’s

decision in Dial.

I. BACKGROUND

This case arises out of a negligence action, in which Elaine

Dial sought to recover past medical expenses due to injuries she

sustained when she tripped and fell on property owned by Calusa

Palms Master Association, Inc. Before trial, the trial court granted

a motion in limine that precluded Dial from introducing as evidence

the gross amount of her past medical expenses and limited her to

introducing only the discounted amounts paid by Medicare. After

the jury awarded Dial $34,641.69 in past medical expenses, Dial

appealed arguing that Joerg allowed her to admit the full amount of

her past medical expenses as evidence.

The Second District affirmed the trial court’s ruling based

upon its prior decision in Cooperative Leasing, Inc. v. Johnson, 872

So. 2d 956, 960 (Fla. 2d DCA 2004), which held “that the

appropriate measure of compensatory damages for past medical

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

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expenses when a plaintiff has received Medicare benefits does not

include the difference between the amount that the Medicare

providers agreed to accept and the total amount of the plaintiff’s

medical bills.” Dial, 308 So. 3d at 691 (quoting Cooperative

Leasing, 872 So. 2d at 960). The Second District explained:

While we recognize that Cooperative Leasing cited to the
Florida Supreme Court’s decision in Florida Physician’s
Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla.
1984), a decision that was subsequently receded from in
Joerg v. State Farm Mutual Automobile Insurance Co., 176
So. 3d 1247 (Fla. 2015), we do not believe the Joerg
decision “implicitly abrogated” our evidentiary ruling in
Cooperative Leasing . . . .

Dial, 308 So. 3d at 691. The Second District further explained that

“whatever its analytical underpinnings, the Joerg court very clearly

set the scope of its holding to evidence concerning future Medicare

benefits, which is not in dispute here.” Dial, 308 So. 3d at 691.

II. ANALYSIS

The certified question asks whether this Court’s holding in

Joerg applies to past medical expenses. 2 In Joerg, this Court

2. The certified question presents a question of law, which we
review de novo. Arch Ins. Co. v. Kubicki Draper, LLP, 318 So. 3d
1249, 1253 n.4 (Fla. 2021).

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addressed “[w]hether the exception to the collateral source rule

created in Stanley applies to future benefits provided by social

legislation such as Medicare.” Joerg, 176 So. 3d at 1253. 3 This

Court “conclude[d] that future Medicare benefits are both uncertain

and a liability under Stanley, due to the right of reimbursement

that Medicare retains.” Joerg, 176 So. 3d at 1253. We explained

that “it is absolutely speculative to attempt to calculate damage

awards based on benefits that a plaintiff has not yet received and

may never receive, should either the plaintiff’s eligibility or the

benefits themselves become insufficient or cease to continue.” Id. at

1255. Ultimately, we “conclude[d] that the trial court properly

excluded evidence of [the plaintiff]’s eligibility for future benefits

from Medicare, Medicaid, and other social legislation as collateral

sources.” Id. at 1257 (emphasis added).

This Court’s holding in Joerg, precluding the admission of

evidence of a plaintiff’s eligibility for future Medicare benefits, dealt

only with future medical expenses. As explained by the Second

3. In Stanley, this Court held that “evidence of free or low cost
services from governmental or charitable agencies available to
anyone with specific disabilities is admissible on the issue of future
damages.” 452 So. 2d at 515.

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District below, “the Joerg court very clearly set the scope of its

holding to evidence concerning future Medicare benefits, which is

not in dispute here.” Dial, 308 So. 3d at 691. Accordingly, Joerg

has no application to the past medical expenses issue in the

present case.

III. CONCLUSION

For the above reasons, we answer the certified question in the

negative and approve the Second District’s decision in Dial.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
POLSTON, J., concurs with an opinion, in which COURIEL, J.,
concurs.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

POLSTON, J., concurring.

I agree with the Court’s reasoning and holding that this

Court’s decision in Joerg v. State Farm Mutual Automobile Insurance

Co., 176 So. 3d 1247 (Fla. 2015), does not apply to the past medical

expenses issue in this case. I also agree with the Second District

Court of Appeal’s decision in Dial v. Calusa Palms Master Ass’n, 308

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So. 3d 690 (Fla. 2d DCA 2020), which held “that the appropriate

measure of compensatory damages for past medical expenses when

a plaintiff has received Medicare benefits does not include the

difference between the amount that the Medicare providers agreed

to accept and the total amount of the plaintiff’s medical bills.” Id. at

691 (quoting Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956,

960 (Fla. 2d DCA 2004)). However, I write separately to explain why

I would adopt the reasoning of Justice Bell’s specially concurring

opinion in Goble v. Frohman, 901 So. 2d 830 (Fla. 2005), and limit

the admissible evidence of past medical expenses to the amounts

medical providers were willing or required to accept in full

satisfaction for services rendered to a plaintiff, regardless of

whether those amounts are derived from government insurance,

private insurance, or other third-party arrangement.

“It has long been established as a fundamental principle of

Florida law that the measure of compensatory damages in a tort

case is limited to the actual damages sustained by the aggrieved

party.” Goble, 901 So. 2d at 834 (Bell, J., specially concurring).

“The objective of compensatory damages is to make the injured

party whole to the extent that it is possible to measure his [or her]

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injury in terms of money.” Mercury Motors Express, Inc. v. Smith,

393 So. 2d 545, 547 (Fla. 1981). “A plaintiff, however, is not

entitled to recover compensatory damages in excess of the amount

which represents the loss actually inflicted by the action of the

defendant.” MCI Worldcom Network Servs., Inc. v. Mastec, Inc., 995

So. 2d 221, 223 (Fla. 2008).

In Goble, the majority concluded that “[t]he contractual

discounts negotiated by Goble’s HMO fall under the statutory

definition of ‘collateral sources’ that are to be set off against an

award of compensatory damages under [section 768.76, Florida

Statutes (1999)].” 901 So. 2d at 833 (Bell, J., specially concurring).

In his specially concurring opinion, Justice Bell explained an

alternative reason, outside of the collateral source context, why

Goble was not entitled to recover the full amount of his medical

bills: “Goble has not paid, nor is he obligated to pay, the

prediscount amount of his medical bills. And, absent any evidence

that the discount was intended as a gift, Goble can recover no more

than the amount he paid or is obligated to pay.” Id. As Justice Bell

further explained,

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 Under common-law principles of compensatory
damages, Goble can recover only the discounted portion
of his medical bills—the only portion that he actually was
obligated to pay. The amount of the full (prediscount) bill
that was written off pursuant to the contractual
agreement between Goble’s HMO and Goble’s medical-
services provider was an amount that Goble never was
obligated to pay. This amount, therefore, does not
represent Goble’s actual damages. To allow for the
recovery of this full amount, under the guise of
“compensatory damages,” would allow for the recovery of
what the district court aptly described as “phantom
damages.”

Id. at 833-34 (quoting Goble v. Frohman, 848 So. 2d 406, 410 (Fla.

2d DCA 2003)).

In this case, Dial sought to introduce the gross amount of her

past medical expenses—an amount that she will never be

responsible for paying. Dial’s medical providers billed $106,087.08

after she became eligible for Medicare, but Medicare paid a

discounted amount of $19,973.89 (and Blue Cross Blue Shield paid

other costs not covered by Medicare) in full satisfaction of the

medical bills. Medicare has a subrogation right of reimbursement

for the $19,973.89, the amount Medicare paid medical providers on

Dial’s behalf. However, the roughly $85,000 that was written off or

discounted is not recoverable either by Dial’s medical providers or

Medicare, and Dial is not liable to pay that amount. See

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Cooperative Leasing, Inc., 872 So. 2d at 960 (“Under federal law the

government’s right to reimbursement does not extend to amounts

never actually paid to medical providers.”); 42 U.S.C.

§ 1395cc(a)(1)(A) (providing that medical providers that accept

payment from Medicare agree “not to charge . . . any individual or

any other person for items or services for which such individual is

entitled to have payment made under” Medicare); cf. Goble, 901

So. 2d at 831-32 (“Under the medical providers’ contracts with

Aetna, the providers have no right to seek reimbursement from

Goble or from any third party for the contractual ‘discount’ of over

$400,000, the difference between the amounts billed and the

amounts paid.”).

It therefore follows that admissible evidence of past medical

expenses must be limited to the amounts medical providers were

willing or required to accept in full satisfaction for services rendered

to a plaintiff. The inflated gross amount Dial sought to admit is

irrelevant to the proper measure of compensatory damages and

should be inadmissible at trial. See Charles W. Ehrhardt, Florida

Evidence § 402.1, at 222 (2021 ed.) (“To be admissible, evidence

must be relevant; that is, it must tend to prove or disprove a

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material fact.”); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d

547, 551 (Fla. 4th DCA 2003) (concluding that the medical

provider’s “original charge becomes irrelevant” when it accepts a

lesser sum from Medicare “because it does not tend to prove that

the claimant has suffered any loss by reason of the charge”).

These principles should apply regardless of whether the

discounted amounts are derived from government insurance,

private insurance, or other third-party arrangement. In deciding

the issue of the appropriate measure of compensatory damages for

past medical expenses, Florida district courts of appeal have

erroneously created a distinction based on whether a private or

public source paid the past medical expenses. Compare

Thyssenkrupp Elevator Corp., 868 So. 2d at 550 (holding that a

plaintiff is limited to admitting into evidence the amount of past

medical bills paid by Medicare rather than the gross amount), with

Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084, 1087 (Fla.

1st DCA 2010) (“[A]ppellee was entitled to introduce into evidence

(and to request from the jury) the gross amount of her medical bills,

rather than the lesser amount paid by appellee’s private health

insurer in full settlement of the medical bills.”). The present case

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further illustrates this distinction. Dial had private insurance at

the time she was injured, but she later became eligible for Medicare.

Before trial, the parties agreed that Dial could admit the gross

amount of her medical bills until she became eligible for Medicare.

And the trial court’s ruling limiting Dial to admitting the discounted

amount paid by Medicare, any Medicare supplemental insurance,

and Dial herself, only applied from the time she became eligible for

Medicare.

The parties and amici argue that Medicare and private

insurance should be treated equally, and I agree that there is no

principled reason to distinguish between them. In the context of

post-trial setoffs, section 768.76 creates a distinction by excluding

Medicare as a collateral source. See § 768.76(2)(b), Fla. Stat. (2021)

(“[B]enefits received under Medicare . . . shall not be considered a

collateral source.”). However, from an evidentiary position, both

should be treated the same. The determination of the appropriate

measure of compensatory damages for past medical expenses is the

same regardless of the source of a plaintiff’s insurance. When the

proper amount is admitted into evidence, there is no need for a

post-trial setoff and no resulting disparate treatment.

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 Accordingly, I would limit the admissible evidence of past

medical expenses to the amounts medical providers were willing or

required to accept in full satisfaction for services rendered to a

plaintiff, regardless of whether those amounts are derived from

government insurance, private insurance, or other third-party

arrangement.

COURIEL, J., concurs.

LABARGA, J., dissenting.

Because I conclude that the holding in Joerg v. State Farm

Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), also

applies to a jury’s consideration of past medical expenses, I dissent

to the majority’s answer to the certified question.

In Joerg, Luke Joerg pursued a negligence action for injuries

he sustained when he was struck by a car while riding his bicycle.

Id. at 1252. Due to a disability, Joerg was entitled to

reimbursement from Medicare for his medical bills. Id. Before trial,

“Joerg filed a motion in limine to exclude evidence of any collateral

source benefits to which [he] was entitled, including discounted

benefits under Medicare and Medicaid.” Id. Ultimately, the trial

court ruled that State Farm could not introduce evidence of Joerg’s

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future Medicare or Medicaid benefits. 4 Id. The jury found in favor

of Joerg and awarded damages; State Farm appealed to the Second

District Court of Appeal. Id.

The Second District affirmed the trial court’s rulings, except

for the trial court’s decision that evidence of Joerg’s future Medicare

benefits were inadmissible. Id. Based on this Court’s decision in

Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514

(Fla. 1984), the district court concluded that Joerg’s future

Medicare benefits should not have been excluded because they were

free and unearned. Joerg, 176 So. 3d at 1253.

However, this Court quashed the Second District’s ruling and

concluded that the trial court properly excluded evidence of Joerg’s

eligibility for future benefits from Medicare, Medicaid, and other

social legislation as collateral sources. Id. at 1257. In doing so,

4. Notably, “[t]he trial court initially granted Joerg’s motion,
but only with respect to past medical bills. After Joerg moved for
reconsideration, the trial court vacated its prior ruling and allowed
State Farm to introduce evidence of ‘future medical bills for specific
treatment or services that are available . . . to all citizens regardless
of their wealth or status.’ However, it precluded State Farm from
introducing evidence of [Joerg]’s future Medicare or Medicaid
benefits.” Joerg, 176 So. 3d at 1252.

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this Court receded from Stanley to the extent that it supported the

admission of social legislation benefits as an exception to the

evidentiary collateral source rule, noting that “it was never intended

to apply to benefits from Medicare or Medicaid, or to collateral

sources where a right of reimbursement or subrogation exists.” Id.

at 1256.

With this background in mind, in the present case, the Second

District Court of Appeal certified the following as a question of great

public importance:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL
AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA.
2015), PROHIBITING THE INTRODUCTION OF
EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL
INJURY CASE FOR PURPOSES OF A JURY’S
CONSIDERATION OF FUTURE MEDICAL EXPENSES
ALSO APPLY TO PAST MEDICAL EXPENSES?

Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690, 692 (Fla. 2d

DCA 2020).

The correct answer to the certified question is a resounding

yes; Joerg prohibits the introduction of evidence of Medicare

benefits for the jury’s consideration of past medical expenses.

However, largely based on its conclusion that Joerg “dealt only with

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future medical expenses,” the majority answered the certified

question in the negative. Majority op. at 4-5. I disagree.

Joerg did not distinguish between past and future medical

expenses; it merely addressed future Medicare benefits. In fact,

this Court did not consider the factual distinction between past

benefits and future benefits as relevant. See Joerg, 176 So. 3d at

1256 n.7 (“Like Peterson, the Illinois Supreme Court in Wills also

considered the admissibility of past Medicare benefits, not the

future benefits at issue here. Wills, 323 Ill. Dec. 26, 892 N.E.2d at

1020. Given our agreement with the policy pronouncement in Wills,

we do not consider this factual distinction relevant.”) (emphasis

added).

As noted by the special concurrence in Dial, “[a]lthough arising

in the context of future benefits, Joerg did not create any exception

for future benefits; rather, it negated the exception for future

benefits, created by Stanley, to the rule ‘that the admission of

evidence of social legislation benefits such as those received from

Medicare, Medicaid, or Social Security, is considered highly

prejudicial and constitutes reversible error.’ ” Dial, 308 So. 3d at

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693 (Rothstein-Youakim, J., specially concurring) (quoting Joerg,

176 So. 3d at 1250).

Most significantly, the majority ignores the primary purpose

for excluding evidence of eligibility for past and future benefits from

Medicare, Medicaid, and other social legislation as collateral

sources: its explosive prejudicial effect.

In Joerg, this Court emphasized that “[a]s an evidentiary rule,

payments from collateral source benefits are not admissible

because such evidence may confuse the jury with respect to both

liability and damages.” Joerg, 176 So. 3d at 1249. The Court

elaborated:

[I]ntroduction of collateral source evidence misleads the
jury on the issue of liability and, thus, subverts the jury
process. Because a jury’s fair assessment of liability is
fundamental to justice, its verdict on liability must be
free from doubt, based on conviction, and not a function
of compromise. Evidence of collateral source benefits
may lead the jury to believe that the plaintiff is trying to
obtain a double or triple payment for one injury . . . or to
believe that compensation already received is sufficient
recompense.

Id. at 1249-50 (quoting Gormley v. GTE Prods. Corp., 587 So. 2d

455, 458 (Fla. 1991)).

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 The Court further emphasized: “It is also well established in

Florida that the admission of evidence of social legislation benefits

such as those received from Medicare, Medicaid, or Social Security,

is considered highly prejudicial and constitutes reversible error.”

Id. at 1250.

Although the analysis in Joerg involved future medical

expenses, the concerns emphatically expressed in Joerg—about the

prejudicial effect of admitting evidence of social legislation

benefits—are also, unequivocally, applicable to cases involving past

medical expenses. The fact that this Court did not include past

medical expenses in its analysis in Joerg does not render those

concerns inapplicable to cases, like Dial’s, that involve past

expenses.

Accordingly, addressing only the question posed by the Second

District Court of Appeal, I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance

Second District – Case No. 2D18-4339

(Lee County)

Mark A. Boyle, Alexander Brockmeyer, and Molly Chafe Brockmeyer
of Boyle Leonard & Anderson, P.A., Fort Myers, Florida; and

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Scot Goldberg, Logan Goldberg, Michael Noone, and Sheba
Abraham of Goldberg Noone Abraham, LLC, Fort Myers, Florida,

for Petitioner

Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A.,
Orlando, Florida,

for Respondent

Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen
LLP, Tallahassee, Florida, and Elise Engle of Shutts & Bowen
LLP, Tampa, Florida,

for Amici Curiae Associated Industries of Florida and
Florida Retail Federation

Mark Hicks, Dinah Stein, and Aneta Kozub McCleary of Hicks,
Porter, Ebenfeld & Stein, P.A., Miami, Florida,

for Amicus Curiae The Doctors Company

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, Florida; and
Derek J. Angell of Bell & Roper, P.A., Orlando, Florida,

for Amicus Curiae Florida Defense Lawyers Association

Edward G. Guedes of Weiss Serota Helfman Cole & Bierman,
P.L., Coral Gables, Florida,

for Amici Curiae Florida Trucking Association, Florida
Chamber of Commerce, American Property Casualty
Insurance Association, and Florida Justice Reform Institute

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida;
and Nichole J. Segal of Burlington & Rockenbach, P.A., West
Palm Beach, Florida,

for Amicus Curiae Florida Justice Association

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