JACKIE WILLIAMS, APPELLANT,
v.
BANKERS MULTIPLE LINE INSURANCE COMPANY, APPELLEE

Fla. 4th DCA | 1990-10-10
No. 89-1371
DOWNEY and WARNER, JJ„ concur., HERSEY, C.J., dissents without opinion.
567 So. 2d 559 Florida District Court of Appeal, Fourth District (1990) Caution
Cited by 8 cases

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Synopsis

Jackie Williams appealed a judgment awarding her $12,565 for personal injuries from an automobile accident, challenging the trial court's rejection of a collateral source instruction and the jury's finding of comparative negligence. The appellate court reversed and remanded for a new trial on all issues, finding the trial court erred by refusing the collateral source instruction and because the comparative negligence verdict was contrary to the manifest weight of the evidence.


Holding

The trial court committed reversible error by refusing the collateral source instruction where such evidence was presented, requiring reversal on all damage issues. The court also reversed on the liability issue because the comparative negligence verdict was contrary to the manifest weight of the evidence. The trial court properly refused the concurring cause instruction because no evidence showed the defendant's negligence acted upon or combined with the preexisting condition to cause the TMJ syndrome.


Headnotes

[1] Refusal to give a collateral source instruction is reversible error when evidence of collateral source benefits is submitted at trial, potentially misleading the jury.

[2] A new trial on all damage issues is warranted when the jury may have been misled by the failure to give a collateral source instruction.

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Key Quotes

“We hold that it was reversible error for the trial court to refuse to give the collateral source instruction (S.J.I. 6.13) where evidence of collateral source benefits was submitted at trial by way of notation of insurance payments on appellant's medical bills.”

Establishes the primary reversible error requiring new trial on damages

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Facts & Procedural History

Williams was injured in an automobile accident and sued for personal injuries. At trial, she was awarded $12,565 but found 35% comparatively negligent…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We withdraw the opinion of May 23, 1990 and substitute the following opinion.

This is an appeal from a final judgment in favor of appellant for personal injuries arising out of an automobile accident. Appellant was awarded $12,565 for her injuries but was found 35% comparatively negligent. She was also assessed a reduction of damages by 55% for failure to use her seat belt. Appellant claims that errors in the trial require a new trial on both liability and damage awards. We agree.

We hold that it was reversible error for the trial court to refuse to give the collateral source instruction (S.J.I. 6.13) where evidence of collateral source benefits was submitted at trial by way of notation of insurance payments on appellant’s medical bills. Calloway v. Dania Jai Alai Palace, Inc., 560 So. 2d 808 (Fla. 4th DCA 1990), is directly on point, and requires reversal.

Considering the fact that when the insurance referenced bills or payments are excluded from the total amount of appellant’s medical bills presented, the amount approximates the amount actually awarded, we must conclude that the jury might reasonably have been misled by the failure to give the collateral source instruction. See Snedegar v. Arnone, 532 So. 2d 717 (Fla. 4th DCA 1988), rev. denied, Arnone v. Snedegar, 544 So. 2d 199 (Fla.1989). Therefore, the trial court should have granted a new trial as to all damage issues.

We also reverse the order denying appellant a new trial on the liability issue because the verdict holding appellant to be comparatively negligent was contrary to the manifest weight of the evidence. Contrary to appellee’s suggestion, this issue was properly preserved for appeal. Scarfone v. Magaldi, 522 So. 2d 902 (Fla. 3d DCA 1988).

In the instant case, no evidence was introduced which indicated negligence on behalf of appellant. The tortfeasor was charged in the accident and pled guilty to the charge. Appellant testified that she took evasive action to avoid the collision, and there was no evidence that she was speeding. The accident reconstruction experts who testified for both appellant and appellee offered no testimony which would support a finding of negligence on behalf of appellant. While appellant failed to move for a directed verdict, which precludes us from reversing for entry of a judgment in appellant’s favor on the comparative negligence claim, we can and do reverse for a new trial on liability because the jury’s determination on the comparative negligence claim is contrary to the manifest weight of the evidence. See Scarfone.

We address one additional point raised with respect to jury instructions which will guide the parties on retrial.

Appellant claims it was error for the trial court to fail to give the concurring cause instruction 5.1(b).

The injury she claimed at trial was a temporomandibular joint disorder (TMJ).

She requested the instruction after evidence came out of prior injuries to her mouth (loss of two molars) which also could have caused a TMJ disorder. She relies on Miller v. Court, 510 So. 2d 926 (Fla. 4th DCA 1987), rev. denied, 523 So. 2d 576 (Fla.1988), wherein this court stated, “The standard jury instruction 5.1(b) on concurrent causes is applicable when the plaintiff's injury is caused by the doctor’s [tortfeasor’s] negligence, acting upon and combined with the plaintiff’s preexisting physical condition.” Id. at 927 [citation omitted]. In Miller the patient’s prior diabetic condition combined with the doctor’s negligence in failing to administer a diabetic medication to cause the patient to go into a coma. In the instant case, however, we have searched through the testimony and can find no witness who testified that the defendant’s negligence acted upon or combined with her preexisting condition to cause the TMJ syndrome. The only testimony of the dentist was that the prior loss of teeth and other events in appellant’s life may have themselves caused the TMJ disorder.

Therefore, the trial court did not err in refusing to give the concurring cause instruction.

Reversed and remanded for a new trial on all issues.

DOWNEY and WARNER, JJ„ concur. HERSEY, C.J., dissents without opinion.


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Cited By

  • J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So. 2d 367 (Fla. 3d DCA 2002)
    …idence to support the jury’s verdict. See Scarfone v. Magaldi, 522 So. 2d 902, 903 (Fla. 3d DCA 1988); Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So. 2d 1283, 1285 (Fla. 1st DCA 1993); see also Williams v. Bankers Multiple Line Ins. Co., 567 So. 2d 559, 560 (Fla. 4th DCA 1990); Winnemore v. Morton, 214 So. 2d 509 (Fla. 4th DCA 1968). Since J.T.A. moved for a new trial in the trial court and asserted in the motion that the jury’s verdict was contrary to the manifest weight of the evidence, J.T.A.’s…
  • Nat'l Healthcorp Ltd. P'ship v. Cascio, 725 So. 2d 1190 (Fla. 2d DCA 1998)
    …akes, Inc. v. Cudlipp Constr. & Dev. Co., 658 So. 2d 116 (Fla. 2d DCA 1995); Salman v. Cooper, 633 So. 2d 570 (Fla. 4th DCA 1994); McCloud v. Sherman Mobile Concrete Co., 579 So. 2d 773 (Fla. 2d DCA 1991); Williams v. Bankers Multiple Line Ins. Co., 567 So. 2d 559 (Fla. 4th DCA 1990). Thus, we have first-hand experience with the process of granting or denying new trials on the issue of manifest weight of the evidence as successor judges.4 We hold that Judge Bray erred when he declined to consider the motion…
  • Cruz v. Gustavo Plasencia, M.D., 778 So. 2d 458 (Fla. 3d DCA 2001)
    …nt”, no one “ever asserted that the preexisting [condition] caused any part of [plaintiffs] injury”, or testified how the preexisting condition “operated in relation to [defendant’s] alleged negligence.”); Williams v. Bankers Multiple Line Ins. Co., 567 So. 2d 559 (Fla. 4th DCA 1990) (denying concurrent cause instruction where no witness testified that the defendant’s negligence acted in combination with a preexisting condition.) Dr. Plasen-cia argues that Personal Representative presented no evidence that Dr…

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