FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 32

CASES FROM THE WEEK OF AUGUST 11, 2017

EVIDENCE INSUFFICIENT TO SUPPORT AWARD OF LOSS OF EARNING CAPACITY--TRIAL COURT ABUSED DISCRETION IN DENYING DEFENDANT’S MOTION FOR REMITTITUR OR NEW TRIAL, AND ALSO ERRED IN DENYING SETOFF FOR AMOUNT FOR WHICH PLAINTIFF’S HEALTHCARE PROVIDER RELEASED ITS LIEN AND WAIVED ANY RIGHT TO SUBROGATION OR REIMBURSEMENT.

Rasinski v. McCoy, 42 Fla. L. Weekly D1711 (Fla. 5th DCA August 4, 2017):

The defendant appealed a final judgment which found him 100% responsible for an automobile accident that caused permanent injury to the plaintiff, and where the jury awarded $2,130,000 in damages.

The plaintiff testified that he worked in public utilities for 20 years before the subject accident. Prior to that, he had owned a bait & tackle shop. He eventually left both of those jobs and began working as a plumber. In his first ten years, the plaintiff performed mostly commercial work which he described as physically demanding and hands-on.

The plaintiff testified that his hourly wage as a plumber fluctuated between $18 and $19.50. He further explained that for the 18 months before trial, he had switched to more of a quality control position, performing only minor plumbing duties without any corresponding reduction in his pay. The plaintiff expressed a desire to work until the age of 65 but cautioned if he got laid off or moved to another job, he did not believe he would be able to work in the plumbing field anymore.

On cross, the plaintiff explained that he began working merely three years after the accident. He conceded that in his application he represented he was physically capable of performing all plumbing duties. Following the accident, he continued to work full time despite undergoing frequent chiropractic care.

The jury awarded the plaintiff $260,000 for lost earning capacity. The defendant challenged the award, reasoning that plaintiff offered no evidence from which the jury could calculate the damages with reasonable certainty.

Defendant also filed a motion to determine setoff, urging the trial court to reduce the judgment by several collateral source payments. The trial court denied both motions.

The Florida Supreme Court has cautioned that a plaintiff may recover damages for loss of earning capacity only when such damages are established with reasonable certainty. The court clarified that the plaintiff need not necessarily demonstrate a permanent injury, but it is a significant factor in establishing the reasonable certainty of future damages. After the plaintiff introduces evidence sufficient to warrant an award for lost earning capacity, the jury should consider all relevant factors including the plaintiff’s age, health, habits, occupation, surroundings and earnings before and after the injury.

In this case, the plaintiff offered evidence insufficient to support the jury’s award. His own testimony proved that he continued to work after the accident, earning between $18 and $19.50 per hour as a plumber; the same hourly wage he earned before the accident. In fact, the plaintiff did not even begin working for his employer at the time of trial until after the accident.

The plaintiff’s testimony questioning his future job security amounted to pure speculation and did not serve as a basis for an award for lost earning capacity. 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 that he would have otherwise. Although the evidence established that the plaintiff suffered permanent injuries to his neck and back from the accident, he failed to introduce a monetary standard against which the jury could measure any future loss.

The defendant also requested that the trial court setoff $25,000 in payments furnished by plaintiff’s healthcare provider for which it released its lien and waived subrogation. The trial court denied the plaintiff’s motion on the basis that he could not argue for additional setoffs after presenting expert testimony to challenge the reasonableness of the plaintiff’s bills. However, the defendant did not request that the jury further reduce the award by the amount at issue here.

Because the lien amount did not have a right for subrogation, the payment was a collateral source and there would be a reduction from the final judgment because there was no subrogation of reimbursement right.

SUBSTITUTED SERVICE ON SECRETARY OF STATE FOUND DEFECTIVE, WHEN PLAINTIFF FAILED TO ALLEGE IN COMPLAINT THAT DEFENDANT WAS EITHER A NON-RESIDENT OF FLORIDA OR A RESIDENT WHICH HAD CONCEALED ITS WHEREABOUTS.

Green Emerald Homes v. Federal National Mortgage Ass’n, 42 Fla. L. Weekly D1691 (Fla. 2nd DCA August 2, 2017):

Fannie Mae filed a verified complaint to foreclose on a mortgage against Green Emerald. After trying to serve Green Emerald’s registered agent multiple times without success, Fannie Mae served Green Emerald through substituted service.

However, Green Emerald asserted that the substitute service of process on the secretary of state was defective because Fannie Mae did not plead the requisite jurisdictional allegations in the complaint. Specifically, Green Emerald argued that under section 48.181, the substituted service of process was not valid because Fannie Mae failed to allege in its complaint that Green Emerald was either a non-resident of Florida or a resident which had concealed its whereabouts.

In order to support substituted service of process through the secretary of state, a complaint must allege jurisdictional requirements as prescribed by statute. If it fails to do so, then a motion to quash should be granted. The burden of pleading facts that support as a matter of law the applicability of substitute service falls on the party seeking to invoke the provisions of section 48.181.

That section permits the secretary of state to accept service for any non-resident defendant or Florida resident who either (1) conceals his whereabouts or (2) previously conducted business in Florida but subsequently becomes a non-resident. In order to perfect substituted service a plaintiff must plead one of those two grounds.

Finally, the court was not persuaded by Fannie Mae’s argument that it was unnecessary to make jurisdictional allegations because section 605.0117 created an independent method of service of process for limited liability companies.

The bottom line is the jurisdictional allegations must be contained in the complaint, and the failure to do so requires that service be quashed.