IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
AUTO CLUB INSURANCE COMPANY
OF FLORIDA,
Appellant,
v. Case No. 5D15-1337
KENNETH BABIN,
Appellee.
________________________________/
Opinion filed November 18, 2016
Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.
Douglas M. Fraley, of Molhem & Fraley,
P.A., Tampa, for Appellant.
Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A.,
Orlando, for Appellee.
BERGER, J.,
Auto Club Insurance Company of Florida (Auto Club) appeals a final judgment
entered in favor of Kenneth Babin for underinsured motorist coverage based on injuries
he suffered in an automobile accident. Auto Club argues the trial court erred when it
denied Auto Club's motion for directed verdict on the issues of future medical expenses
for low back surgery, past lost wages, and loss of earning capacity in the future. We
agree and reverse.
Babin, age 63, was injured in a multicar rear-end collision. The accident occurred
on June 14, 2010, when a car driven by Melvin Scott rear-ended the car located behind
Babin, which, in turn, rear-ended Babin’s vehicle. Babin sued Scott and Auto Club, his
underinsured motorist carrier. Auto Club did not deny that Scott was negligent but
disputed the amount of damages. Babin asked to be compensated for future surgery to
his lower back, for past lost wages, and for the loss of his ability to make future earnings
from a scuba-diving business he had planned to start with a friend prior to his accident.
Following a jury trial, Babin was awarded $120,000 in past medical expenses,
$70,000 in past lost earnings, $160,000 in future medical expenses, $72,000 in lost
earning ability for future years, $15,000 for past pain and suffering, and $15,000 for future
pain and suffering. Only the damages awarded for future medical expenses, past lost
earnings, and future earning capacity are in dispute. As to those claims, Auto Club argues
the trial court erred in failing to grant its motion for directed verdict.
We begin our analysis with Babin’s claim for future medical expenses related to
future low-back surgery.1 "Florida law permits the recovery of '[t]he reasonable [value]
[or] [expense] of [hospitalization and] medical [and nursing] care and treatment
necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the
future].'" Volusia Cty. v. Joynt, 179 So. 3d 448, 452 (Fla. 5th DCA 2015) (alterations in
1 Auto Club does not dispute Babin’s claim for damages related to chiropractic
care.
2
original) (quoting Fla. Std. Jury Instr. (Civ.) 501.2(b)). In support of this claim, Babin
presented the deposition testimony of Dr. Robert L. Masson.
Dr. Masson testified that on March 2, 2011, he discussed with Babin that if
conservative therapy failed, then his lower back would be treated with a two-level
reconstruction. Dr. Masson further testified that Babin clearly had a low-back condition
and that "[i]t was of a caliber that might need surgery at some point." Specifically
regarding the need for surgery, Dr. Masson testified that Babin "has not clinically
progressed to that level of dysfunction where I thought surgery was indicated currently."
Again, he reiterated that Babin’s back had not "met the surgical indices for intervention
yet," and that "at this point he’s doing well enough with conservative care that he does
not need it right now." Dr. Masson indicated "obviously . . . his imaging represents a
mess. In layman’s terms, it’s -- both cervical and low back, he’s got a lot going on. Uh,
but despite the mess, not everybody needs surgery." In the end, Dr. Masson stated that
he did not have an opinion within a reasonable degree of medical probability as to whether
Babin needed surgery in the future.
Auto Club insists that Babin’s need for future low-back surgery was too
speculative. Therefore, it was error for the trial court to allow this claim to go to the jury.
We agree.
As this Court recently reiterated:
Florida law restricts recovery of future medical expenses to
those expenses "reasonably certain" to be incurred. Loftin v.
Wilson, 67 So. 2d 185, 188 (Fla. 1953). Therefore, "it follows
that a recovery of future medical expenses cannot be
grounded on the mere 'possibility' that certain treatment
'might' be obtained in the future." White v. Westlund, 624 So.
2d 1148, 1150 (Fla. 4th DCA 1993) (citing 2 Damages in Tort
Actions § 9.55(1), at 9-45 (1986)). Further, there must also
3
Accordingly, we reverse the jury’s award on Babin’s claims for future medical
expenses, past lost wages, and future earning capacity and remand for new trial solely
on the issue of future medical expenses. In all other respects, the final judgment is
affirmed.
AFFIRMED, in part; REVERSED, in part; and REMANDED.
PALMER and EVANDER, JJ., concur.
8
could have a flare-up every other month and each "flare-up would require six visits" was
too speculative to support future medical expenses). Such is the case here.
The evidence presented in this case failed to establish that future surgery on
Babin’s low back was reasonably certain to occur. Dr. Masson clearly testified that he
had no opinion as to whether Babin would need surgery in the future. Accordingly, it was
error to allow this claim to go to the jury. Furthermore, because Babin objected to, and
the trial court denied, Auto Club’s request for a special verdict form separating future
chiropractic care from the expenses a jury might award for future low-back surgery, we
are unable to ascertain what the jury actually awarded. See Dep’t of Transp. v. Ness
Trailer Park, Inc., 489 So. 2d 1172, 1180 (Fla. 4th DCA 1986) (noting that "[h]ad the
special verdict forms requested by DOT been granted, we could tell what damages, if
any, were granted under existing law and which were not"). Accordingly, we are
compelled to remand for a new trial on future medical expenses, excluding any evidence
regarding future surgery on Babin's low back.
We next turn to Babin’s claims for past lost wages and loss of future earning
capacity. The amount of an award for loss of future earning capacity should be measured
by the plaintiff's diminished ability to earn income in the future, rather than the plaintiff's
actual loss of future earnings. Subaqueous Servs., 25 So. 3d at 1267 (citing Auto-Owners
Ins. Co. v. Tompkins, 651 So. 2d 89, 91 (Fla. 1995)). Just as with future medical
expenses, damages for the loss of future earning capacity must be established with a
reasonable certainty. Id. Specifically, the plaintiff "must demonstrate a reasonable
certainty of injury and 'present evidence which will allow a jury to reasonably calculate
lost earning capacity.'" Eagle Atl. Corp. v. Maglio, 704 So. 2d 1104, 1105 (Fla. 4th DCA
5
1997) (quoting W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301, 1302 (Fla. 3d DCA
1995)). "Once sufficient evidence is presented, the measure of damages is the loss of
capacity to earn by virtue of any impairment found by the jury and the jury must base its
decision on all relevant factors including the plaintiff's age, health, habits, occupation,
surroundings, and earnings before and after the injury." Miami-Dade Cty. v. Cardoso,
963 So. 2d 825, 828 (Fla. 3d DCA 2007) (quoting Pyke, 661 So. 2d at 1302). Auto Club
convincingly argues Babin failed to meet his burden. While he put on sufficient evidence
to establish reasonable injury, he failed to present sufficient evidence to establish a
diminished earning capacity in the future.
Babin has a Bachelor’s degree and a Master’s degree in secondary education.
Before moving to Florida, he served as a law enforcement officer and worked as a
teacher. He had back surgery in 1995. After two years of rehabilitation, he returned to
law enforcement as a gang officer. He retired from law enforcement in 1999 and moved
to Florida where he worked as a teacher for six years. At the time of the accident,
however, Babin was voluntarily unemployed. The record reflects he worked regularly until
he met his girlfriend in 2006, at which time he left his job in central Florida to live with his
girlfriend in Bonaire for six to eight months out of the year.
Babin testified that in the spring of 2010, he completed the bookwork to become a
certified divemaster, and he intended to complete the physical portion of the exam in the
fall of 2010. Around that same time, he and his girlfriend discussed selling the house in
Bonaire and moving to Belize to start a scuba-diving business.
Babin claimed the Belize business was not mere idle conversation and that his
responsibility was to complete the legal certification for liability purposes. Babin testified
6
that he expected to make $28,000 from the dive business "if we were a good, solid, safe
operation."2 He indicated he planned to do the dive business for the remainder of his life.
Unfortunately, he was unable to dive after the accident.
Notably, Babin’s inability to work as a dive master does not mean Babin was
unable to work. Indeed, Babin testified that he was physically capable of training service
dogs and had, in fact, contemplated such a business.3
In order to recover damages for lost earning capacity, Babin was required to prove,
with reasonable certainty, a loss of earning capacity as a result of his injury. See
Tompkins, 651 So. 2d at 90-91. This he failed to do. Like the plaintiff in Joynt, there was
no evidence presented to indicate Babin was completely disabled from further gainful
employment as a result of his injury. To the contrary, the record reveals he had the
capacity to earn an income as a dog trainer. While Babin’s testimony focused on his
inability to work as a divemaster after the accident, there is simply no guarantee he ever
would have worked in that field. And, even if there was testimony to support that claim,
the evidence introduced to support the amount he could earn as a divemaster was purely
speculative. As such, there was no reasonable evidence upon which the jury could
predicate a verdict in favor of Babin on this claim.
2 In an effort to substantiate the earning potential from the dive business, Babin
called his friend, Kevin Smith, as a witness. Smith testified that he and his wife purchased
land in Belize for vacation and retirement purposes and thought it would be a nice place
to start a business. He obtained quotes to build a boat for the proposed business venture
with Babin, but by the time of trial had taken no further steps to have the boat constructed.
While Smith estimated that the dive business could generate $1000 to $3000 income
gross per week, he admitted these figures were only a guess and that he came up with
them with the help of his wife, who majored in marketing while in college.
3
Babin testified he could train up to twenty-four service dogs per year at a rate of
$800 per dog.
7
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
AUTO CLUB INSURANCE COMPANY
OF FLORIDA,
Appellant,
v. Case No. 5D15-1337
KENNETH BABIN,
Appellee.
________________________________/
Opinion filed November 18, 2016
Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.
Douglas M. Fraley, of Molhem & Fraley,
P.A., Tampa, for Appellant.
Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A.,
Orlando, for Appellee.
BERGER, J.,
Auto Club Insurance Company of Florida (Auto Club) appeals a final judgment
entered in favor of Kenneth Babin for underinsured motorist coverage based on injuries
he suffered in an automobile accident. Auto Club argues the trial court erred when it
denied Auto Club's motion for directed verdict on the issues of future medical expenses