SALLY CLAYTON JENKINS, JOINED BY HER HUSBAND, TAYLOR JENKINS, APPELLANTS,
v.
CHARLES RAY WEST, FRANCES ELAINE WEST, AND ATLANTA CASUALTY COMPANY, APPELLEES
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In this automobile accident case, the Florida Court of Appeal reversed a jury verdict because the trial court erroneously instructed the jury to deduct the plaintiff's pre-existing social security and state retirement disability benefits from the damages award. The court held that benefits received prior to the accident that compensate for pre-existing disabilities are not collateral sources subject to deduction.
Social security benefits and state retirement disability benefits to which a plaintiff is entitled prior to an injury, which compensate the plaintiff for damages not sustained or claimed in the instant injury, are not collateral sources and cannot be deducted from the damages award. Additionally, where liability is conceded and a spouse offers substantial undisputed evidence of loss of consortium, the spouse is entitled to at least nominal damages and a zero verdict cannot stand.
[1] Collateral source payments received by a plaintiff prior to an accident, which compensate for damages not sustained or claimed in the accident, are not collateral to an a…
[2] A jury instruction allowing deduction of social security and state retirement disability payments that preexisted an accident, from an award of damages for that accident,…
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Join FLexlaw to unlock all legal intelligence“We do not construe that statute to allow deduction for social security benefits and disability payments which preexisted the instant accident.”
Establishes the court's interpretation that pre-existing benefits are not subject to collateral source deduction
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 2, 1982, Sally Jenkins was injured in an automobile accident in which the defendant conceded liability. Prior to the accident, Jenkins ha…
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PER CURIAM.
On September 2,1982, plaintiff Sally Jenkins was injured in an automobile accident for which defendant conceded liability. The issue of damages was tried to a jury. Loss of income, past or future, was not claimed.
Prior to this accident, plaintiff was under the care of an orthopedic surgeon for a previous disability. Her left kneecap was removed, and, pursuant to her doctor’s advice, she retired from her employment. Plaintiff was totally disabled prior to the September 2, 1982 accident. Plaintiff began drawing social security in 1981 and applied for disability under the State retire ment program prior to the accident, but received her first payment in April of 1983, subsequent to the accident.
At trial, the court instructed the jury that any social security payments and State retirement program disability payments re-ceivéd by the plaintiff were collateral source payments which should be deducted from their overall verdict. The instruction was based on Section 627.7372, Florida Statutes (1981). We do not construe that statute to allow deduction for social security benefits and disability payments which preexisted the instant accident. Indeed, an interpretation which would allow such a deduction could render the statute subject to challenge on constitutional grounds.1
We hold that social security benefits and state retirement disability benefits to which plaintiff is entitled prior to the instant injury which compensate plaintiff for damages not sustained or claimed in the instant injury, are not collateral to an award of damages for the instant injury. See Transit Homes, Inc. v. Bellamy, 671 S.W. 2d 153 (Arkansas 1984).2 The jury instruction was error; therefore, the award is reversed.
As to the second point on appeal, we agree that the plaintiff Taylor Jenkins offered substantial, undisputed evidence of loss of consortium. Hagens v. Hilston, 388 So. 2d 1379 (Fla. 2d DCA 1980); Albritton v. State Farm Mutual Insurance Company, 382 So. 2d 1267 (Fla. 2d DCA 1980); Webber v. Jordan, 366 So. 2d 51 (Fla. 2d DCA 1978); Shaw v. Peterson, 376 So. 2d 433 (Fla. 1st DCA 1979). Therefore, since liability was conceded, he is entitled to at least nominal damages. A zero verdict cannot stand.
For the foregoing reasons, the case is reversed and cause remanded for a new trial on all damages consistent with this opinion.
BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur. . Constitutional vulnerability on this or any other ground is not at issue in this appeal.
. In Transit Homes, Inc. v. Bellamy, 671 S.W. 2d 153 at 160 (Ark.1984), the Arkansas Supreme Court explained:
We do not think the court erred in allowing appellants credit for the $1,257 which the Veterans Administration was paying Bellamy in aid and attendance expenses. This sum was being paid prior to the occurrence here under consideration. It is not collateral income being received on account of the injuries received in the accident here in question.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Christopher v. Clement Bernard Bonifay, 577 So. 2d 617 (Fla. 1st DCA 1991)…ervices of the wife during her one week’s stay in the hospital and that time immediately after her discharge while she was convalescing. Certainly this is undisputed evidence from which nominal damages should have been returned. See Jenkins v. West, 463 So. 2d 581 (Fla. 1st DCA 1985) (the plaintiff/husband presented substantial, undisputed evidence of loss of consortium and, because liability was conceded, he was entitled to at least nominal damages). See also DeLong v. Wickes Co., 545 So. 2d 362 (Fla. 2d DCA…1 / 2
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Jack E. Kirkland and wife Ramona Kirkland v. Allstate Ins. Co., 655 So. 2d 106 (Fla. 1st DCA 1995)…activity may exacerbate his symptoms. Under the law, Mr. Kirkland was at least entitled to an award of nominal damages in light of Allstate’s concession that Mr. Kirkland suffered a permanent injury as a result of the accident. See Jenkins v. West, 463 So. 2d 581 (Fla. 1st DCA 1985) (judgment based on zero verdict reversed and cause remanded for new trial on damages, including loss of consortium, where the plaintiff offered competent, substantial undisputed evidence of loss of consortium and the defendant co…
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Waldron v. Dorsey, 585 So. 2d 403 (Fla. 1st DCA 1991)…rd may serve to diminish certain portions of the consortium claims, sufficient undisputed evidence was presented to require an award of at least nominal damages. Compare Christopher v. Bonifay, 577 So. 2d 617 (Fla. 1st DCA 1991) and Jenkins v. West, 463 So. 2d 581 (Fla. 1st DCA 1985). REVERSED and REMANDED for a new trial on the consortium claims. WOLF, J., and WENTWORTH, Senior Judge, concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Albritton v. State Farm Mut. Auto. Ins. Co. & Cheryl Lee Dannels, 382 So. 2d 1267 (Fla. 2d DCA 1980)
- Hagens v. Hilston, 388 So. 2d 1379 (Fla. 2d DCA 1980)
- Leander J. Shaw, Jr. v. Peterson, 376 So. 2d 433 (Fla. 1st DCA 1979)
- Webber v. Jordan, 366 So. 2d 51 (Fla. 2d DCA 1978)
- State v. ERP, 366 So. 2d 51 (Fla. 4th DCA 1978)