JEANNE HUBBS AND JOHN HUBBS, APPELLANTS,
v.
LAURA MCDONALD AND JOE MCDONALD, APPELLEES
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The Hubbs appealed a jury verdict in their favor for personal injuries from an automobile accident, claiming the trial court erred by refusing to instruct the jury on the plaintiff's loss of future earning capacity and by denying a new trial on the derivative claim. The court reversed in part and remanded for a new trial, holding that evidence of diminished capacity to labor and a monetary standard for measuring future loss warranted the jury instruction.
A jury instruction on diminished capacity to earn in the future is warranted when the record demonstrates reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure future loss. The trial court erred in denying the instruction because evidence showed Jeanne Hubbs' capacity to labor was diminished and her earnings provided a monetary standard for measurement. The court affirmed the verdict on the derivative claim.
[1] A jury instruction on diminished future earning capacity is warranted when the record demonstrates reasonably certain evidence that the capacity to labor has been diminis…
[2] Evidence of an injured party's earnings before or after an injury is not determinative of entitlement to an instruction on loss of future earning capacity; the key is whe…
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Join FLexlaw to unlock all legal intelligence“A jury instruction on diminished capacity to earn in the future is warranted when the record demonstrates the existence of "reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss."”
Establishes the legal standard for when a jury instruction on loss of future earning capacity is required.
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Join FLexlaw to unlock all legal intelligenceJeanne Hubbs was injured in an automobile accident. Medical evidence showed her injuries impaired her ability to lift, bend, and stoop repetitively. A…
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PER CURIAM.
Jeanne Hubbs and John Hubbs appeal an order denying their motion for new trial or additur, following a jury award to Jeanne Hubbs for personal injuries arising out of an automobile accident. Two issues are presented for our review: (1) the trial court’s refusal to instruct the jury on Jeanne Hubbs’ loss of future earning capacity, and (2) the trial court’s failure to grant a new trial on John Hubbs’ derivative claim. We affirm in part, and reverse in part.
A jury instruction on diminished capacity to earn in the future is warranted when the record demonstrates the existence of “reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.” Long v. Publix Super Markets, Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984). See also Allstate Insurance Company v. Shilling, 374 So. 2d 611 (Fla. 4th DCA 1979).
The record before this court includes evidence that, as a result of the injury received in the automobile accident which gave rise to this appeal, Jeanne Hubbs has sustained a diminished future earning capacity as contemplated by this court in Long v. Publix Super Markets, Inc. The medical evidence indicates that Jeanne Hubbs’ injuries impaired her ability to lift, bend, and stoop on a repetitive basis. In addition, this record contains evidence that at the time Jeanne Hubbs terminated her employment with Hardee’s she was earning $4.25 an hour, while her current earnings as a cashier are $3.50 an hour.
The record also reflects, as it did in Allstate, that as a result of her injuries Mrs. Hubbs was forced to modify her work habits. The manager of Hardee’s, where she was employed, testified that after the accident, he and the other employees performed many of the duties, such as lifting, that were difficult for Mrs. Hubbs. Although the evidence is disputed by appel-lees, the manager also testified that Mrs. Hubbs continued to have problems at work.
The trial court’s denial of the requested instruction on loss of future earnings cannot properly be based upon evidence that after the accident, Mrs. Hubbs requested a reduction in work hours, nor upon the conclusion that her voluntary termination of her employment at Hardee’s amounted to a voluntary reduction of income. The test for entitlement to an instruction on loss of future earnings is not dependent upon eamings either before or after the injury. Rather, the test is whether the injured party’s capacity to labor has been diminished by virtue of the injuries suffered.
The record in this case reflects that Mrs. Hubbs has a diminished capacity to labor as a result of the injury sustained in the accident, and the evidence of her earnings furnishes a monetary standard against which the jury can measure any future loss. Allstate, supra; Hatfield v. Wells Brothers, Inc., 378 So. 2d 33 (Fla.2d DCA 1979), cert. denied, 388 So. 2d 1119 (Fla.1980).
Accordingly, the order appealed is reversed in part and this cause is remanded for a new trial on the issue of Jeanne Hubbs’ entitlement to compensatory damages. At the conclusion of the trial on damages, the trial court is directed to instruct the jury to consider the effect of plaintiff’s permanent impairment on her future earning capacity. The record reflects sufficient evidence to support the jury’s verdict with respect to the derivative claim, and we affirm on this point.
Affirmed in part, reversed in part, and remanded for a new trial on the issue of compensatory damages.
SMITH, C.J., and WENTWORTH and JOANOS, JJ., concur.
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Fazzolari v. The City OF W. Palm Beach, 608 So. 2d 927 (Fla. 4th DCA 1992)…See Watson v. Builders Square, Inc., 563 So. 2d 721 (Fla. 4th DCA 1990). However, there must have been a determination that there was a permanent injury. Josephson v. Bowers, 595 So. 2d 1045 (Fla. 4th DCA 1992). Unlike the case of Hubbs v. McDonald, 517 So. 2d 68 (Fla. 1st DCA 1987), the trial court here did instruct the jury on awarding future damages if they found a permanent injury. Apparently, the jury did not find such an injury in this case. Where the plaintiff’s experts and witnesses were cross-exami…
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Selma R. Josephson v. Bowers, 595 So. 2d 1045 (Fla. 4th DCA 1992)…h appellant that the verdict is inconsistent with the legal requirement in Florida that there be permanent injury before a defendant may be held liable for future loss of income and other future damages in a personal injury claim. Hubbs v. McDonald, 517 So. 2d 68 (Fla. 1st DCA 1987). Our conclusion on this issue moots the other claims on appeal. Since there is no assertion of error in the jury’s finding of negligence, we reverse and remand for a new trial on the issues of the permanency of any injuries sus…
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Volusia Cnty. v. Joynt, 179 So. 3d 448 (Fla. 5th DCA 2015)…city.” W.R. Grace & Co.Conn., 661 So. 2d at 1302 (citing Auto-Owners Ins. Co., 651 So. 2d at 91); accord Pruitt v. Perez-Gervert, 41 So. 3d 286, 289 (Fla. 2d DCA 2010); Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007); Hubbs v. McDonald, 517 So. 2d 68, 69 (Fla. 1st DCA 1987) (“A jury instruction on diminished capacity to earn in the future is warranted when the record demonstrates the existence of ‘reasonably certain evidence that the capacity to labor has been diminished and that there is a mone…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martinez v. Tamayo, 374 So. 2d 611 (Fla. 3d DCA 1979)
- Allstate Ins. Co. v. Shilling, 374 So. 2d 611 (Fla. 4th DCA 1979)
- Long v. Publix Super Mkts., Inc., 458 So. 2d 393 (Fla. 1st DCA 1984)
- Hatfield v. Wells Bros., Inc., 378 So. 2d 33 (Fla. 2d DCA 1979)