No award-no set off

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 36

CASES FROM THE WEEK OF SEPTEMBER 12, 2025

TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION TO SETOFF JURY’S AWARD WITH DISCOUNTS FROM OUT-OF-STATE PROVIDERS AND PIP BENEFITS FOR INJURIES THE JURY DID NOT COMPENSATE THE PLAINTIFF FOR

Buckman v. McDonald, 50 Fla. L. Weekly D1985 (Fla. 2nd DCA Sept. 5, 2025):

The plaintiff sued the defendant for negligence following an accident in Florida. The plaintiff contended that the negligence caused her to sustain permanent injury. She sought treatment from providers in Florida and then years later, in Massachusetts. The defendant argued in closing that the jury should not award the plaintiff any damages, or alternatively, that none of the Massachusetts expenses were related, because they were caused by a subsequent fall and arthritis. The jury awarded the plaintiff only a fraction of her claimed medical expenses, that did not include these treatments.

After the trial, the defendant moved to setoff the jury’s award with discounts that her insurer had negotiated for the Massachusetts expenses, along with the full $8,000 in PIP benefits that she had received for an MRI.

On appeal, the plaintiff argued that the trial court incorrectly applied Florida law in setting off the contractual adjustments for the Massachusetts expenses, which the jury had effectively found were unrelated. She also asserted that there should not have been a set off for the PIP benefits that paid for an MRI bill that the jury did not award.

Although section 768.76(1) requires that the damages awarded be reduced by all amounts from PIP or health insurers, it is axiomatic that all parts of a statute must be read together to achieve a consistent whole. Accordingly, the court concluded that the total of all amounts “paid for the benefit of the claimant,” must be read in the context of the damages that the jury awarded for losses sustained.

Here, the jury determined that the defendant’s negligence did not cause the plaintiff to incur expenses for either the Massachusetts treatment or for the MRI, and did not award the plaintiff and damages for those losses. As such, the trial court erred in entering a setoff for those amounts.

TRIAL COURT MADE IMPROPER CREDIBILITY DETERMINATIONS REGARDING TESTIMONY OF INSUREDS’ EXPERT WITNESS—RECORD EVIDENCE CREATED A FACTUAL DISPUTE PREVENTING SUMMARY JUDGMENT

Disiner v. Citizens Property Insurance Co., 50 Fla. L. Weekly D1976 (Fla. 3rd DCA Sept. 3, 2025):

Upon careful de novo review of the record, the court determined that the trial court made improper credibility determinations regarding the insured plaintiffs’ expert witness’s testimony. Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions and not those of a judge, at either the summary judgment or directed verdict stage.

Additionally, the record evidence presented a sufficient factual dispute to conclude that the insured plaintiffs met their burden of showing the existence of a triable issue as to the cause of loss, and at least as to some of their damages.

The court reversed the summary judgment, remanding for a trial by jury.

TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF’S RULE 1.540(B) MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING

Rojas v. Best Taxi Service Corp., 50 Fla. L. Weekly D1977 (Fla. 3rd DCA Sept. 3, 2025):

The plaintiff appealed an order denying his motion to vacate a dismissal based on excusable neglect. The trial court denied the relief without conducting an evidentiary hearing.

Where a motion under Rule 1.540(b) sets forth a colorable entitlement to relief, the trial court should conduct an evidentiary hearing to determine whether such relief should be granted. Based on the record before the court, it reversed and remanded for an evidentiary hearing.

TRIAL COURT ERRED IN DETERMINING THAT THE PLAINTIFF’S EXPERT POSSESSED THE SAME SUB-SPECIALTY AS THE DEFENDANT, AND THEN ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRE-SUIT REQUIREMENTS BASED ON THAT FINDING

Ghamra v. Williams, 50 Fla. L. Weekly D1989 (Fla. 2d DCA Sept. 5, 2025):

In this medical malpractice wrongful death lawsuit, the plaintiff’s served a notice of intent to initiate medical negligence litigation and attached an affidavit of a physician board certified in internal medicine, cardiovascular disease and interventional cardiology. The expert physician opined that the defendant doctor, as well as the other three physicians fell below the standard of care with respect to the cardiology and pulmonology consultations.

Twice before the expiration of the pre-suit period, as well as before the expiration of the statute of limitations, the physician and his medical group advised the plaintiff that her physician’s affidavit did not comply with section 766.102 because the expert did not share a specialty with the defendant.

The plaintiff opposed the motion to dismiss, arguing that specializing in the same specialty does not mean specializing in the same “sub-specialty.” The plaintiff asserted that the physician and the physician who provided the pre-suit affidavit, both specialized in internal medicine but practiced in critical care, pulmonology and cardiology respectively.

In support of the argument that internal medicine was the requisite specialty, the plaintiff cited the websites of the American Board of Internal Medicine, the American Board of Emergency Medicine, and a decision from the 6th DCA, Pradaxay v. Kendrick.

The trial court agreed with the plaintiff, denying the motion to dismiss after concluding that the two physicians did specialize in the same specialty: internal medicine.

The defendant argued that the pre-suit physician who specialized in cardiology, did not specialize in the same specialty because the defendant specialized in pulmonology or critical care pulmonology.

In the absence of a statutory definition for specialty or specialist, the court looked to sources bearing on its objective meaning as to what a reasonable reader would have understood it to mean. In the medical context, specialty is defined as that particular subject area or branch of medical science to which one devotes professional attention. A specialist is defined as one who has developed professional expertise in a particular specialty or subject area.

In this instance, the defendant was a pulmonologist who saw the decedent in response to a request for a pulmonology consultation based on the clear language of section 766.102(1)(5). The prevailing professional standard of care concerned pulmonology, requiring the plaintiff to provide an affidavit concerning the professional standard of care for pulmonology from an expert who specialized in the same specialty–pulmonology.

The court said its conclusion was buttressed by additional textual clues, namely that section 766.102(1)(5) differentiates between specialists and general practitioners, and provides criteria for each type of expert witness. Additionally, the court considered the legislature’s progressive narrowing of the medical expert qualifications for the purposes of chapter 766.

The court concluded it was constrained to reverse and remand for dismissal with prejudice because the plaintiff failed to provide an affidavit of an expert in the same specialty, rendering her pre-suit affidavit, legally insufficient.