GARY ODOM, APPELLANT,
v.
THOMAS F. CARNEY, APPELLEE

Fla. 4th DCA | 1993-07-28
No. 91-3215
ANSTEAD, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
625 So. 2d 850 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 10 cases

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Synopsis

In this automobile collision case, the trial court granted defendant's post-trial motion for a setoff of $10,000 in Personal Injury Protection (PIP) benefits against a jury verdict of $20,000 for combined medical expenses and lost earnings. The appellate court reversed, holding that because the jury's verdict lumped medical expenses and lost earnings together without differentiation, it was impossible to determine how much of the award represented medical expenses eligible for setoff, and the two-issue rule barred defendant from attacking the undifferentiated verdict.


Holding

The court reversed and held that defendant cannot assert a PIP setoff where the jury verdict does not differentiate between medical expenses and lost earnings, because: (1) under the two-issue rule, when multiple issues are submitted in a general verdict form and one issue is without error, the court must presume all issues were decided in favor of the prevailing party; and (2) under Florida law, there must first be an award by the jury of damages for which collateral sources are available before any collateral source setoff may be made.


Headnotes

[1] A setoff for personal injury protection (PIP) benefits is impermissible when the jury has not awarded damages specifically for medical expenses.

[2] Under the two-issue rule, if a general verdict is returned on multiple issues and one issue is free from error, the judgment must be affirmed.

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Key Quotes

“the verdict fails to tell us how much of the $20,000 is for medicals and how much is for earnings”

Establishes the core problem preventing the setoff: the undifferentiated nature of the jury verdict makes it impossible to determine the medical expense component

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Facts & Procedural History

Plaintiff Gary Odom was injured in an automobile collision and sued defendant Thomas Carney. At trial, plaintiff presented medical bills totaling $38,…

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Opinion of the Court
FARMER, Judge.

[*851] FARMER, Judge.

We affirm on all issues except for the setoff issue. In this vigorously contested case arising from an automobile collision, the jury found no permanent injury and that plaintiffs reasonable and necessary medical expenses and lost earnings together totalled $20,000. Defendant filed a post trial motion for a setoff for personal injury protection [PIP] benefits of $10,000. Plaintiff argued that the jury did not have all of his medical expenses, that there was no way of telling how much of the $20,000 represented medical expenses as opposed to lost earnings, and that therefore a setoff for the $10,000 PIP benefits would be error. The trial court granted the motion.

The problem with the motion is both procedural and necessarily substantive. The parties consented to a verdict form that called for the jury to lump medical expenses and lost earnings together in a single factual finding. Plaintiff introduced medical bills totalling $38,259, and he also claimed lost earnings as shown by his tax returns of $19,305.1 Hence the jury’s undifferentiated finding of $20,000 could have included all of the claimed lost earnings and medicals of $695. In any event, the verdict fails to tell us how much of the $20,000 is for medicals and how much is for earnings.

It seems to us that the two issue rule should bar defendant from asserting the PIP setoff. Under the two issue rule, when multiple issues are submitted for resolution to the jury in a general verdict form, and one of the issues is without error, then the court must presume that all issues were decided in favor of the prevailing party, thereby requiring that the final judgment be affirmed. Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla.1977); Florida East Coast Railway v. Gonsiorowski, 418 So. 2d 382 (Fla. 4th DCA 1982), rev. denied, 427 So. 2d 736 (Fla. 1983).2 The very reasons which make this undifferentiated award of different kinds of economic damages impervious to post trial attack by way of remittitur strongly suggest that it could not be reduced by the motion for a setoff.

Our inability to discern precisely what the damage award represents matters because, contrary to defendant’s argument, we do not read applicable Florida statutory law3 to authorize a PIP set off where the jury has not compensated plaintiff for medical expenses. We thus quite agree with the holding of the federal court in Shessel v. Murphy, 920 F. 2d 784 (11th Cir.1991), and Ganley v. United States, 878 F. 2d 1351 (11th Cir.1989), that there must first be an award by the jury of damages for which collateral sources are available before any collateral source setoff may be made.

REVERSED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. . Plaintiff argues that in light of this evidence the jury’s verdict finding no permanent injury, on the one hand, and $20,000 in medical expenses and lost earnings, on the other, is inconsistent. We agree that he has waived the argument by his failure to object before the jury was discharged. See Moorman v. American Safety Equipment, 594 So. 2d 795, 799-800 (Fla. 4th DCA), rev. denied, 606 So. 2d 1164 (Fla. 1992).

. In Barhoush v. Louis, 452 So. 2d 1075 (Fla. 4th DCA 1984), we applied the rule in an analogous context. There the verdict did not distinguish between economic and noneconomic damages. Defendant challenged the evidence supporting economic damages but raised no claim of error as to the noneconomic damages. We affirmed, specifically applying the two issue rule. Bar-housh represented, as we candidly stated, an extension of the rule. The reasons that justified the extension operate with full force here.

.Defendant cited section 627.736(3), Florida Statutes (1991), for the proposition "an injured party has no right to recover any damages for which [PIP] benefits are paid or payable." That is certainly what the statute says, but here defendant consented to a verdict form that asked the jury to ascertain these very damages. If, as the statute visibly says, the court gave a corresponding instruction not to include any medical damages that represented PIP benefits, then surely no setoff would have been proper even if the entire $20,000 represented medical expenses. If no such instruction was given, then as we have just held the two issue rule stands in the way of the setoff.


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Citator

Cited By

  • Sheffield v. Superior Ins. Co., 741 So. 2d 533 (Fla. 1st DCA 1999)
    …eld, as a result of the December 10, 1994 collision, suffer a permanent injury within a reasonable degree of medical probability? Ms. Sheffield does not argue on appeal that the verdict is internally inconsistent, nor could she. See Odom v. Carney, 625 So. 2d 850, 851 n. 1 (Fla. 4th DCA 1993) (finding argument that verdict was inconsistent in not finding permanent injury waived by "failure to object before jury was discharged”). See generally Perry v. Allen, 720 So. 2d 614 (Fla. 1st DCA 1998). See also Hami…
  • M.K. Foreman v. Russo, 624 So. 2d 333 (Fla. 4th DCA 1993)
    …termined how much of this verdict consisted of non-economie damages, we cannot fault the trial court for failing to apply a statute which only reduces non-economic damages. Appellants have not met their burden of demonstrating error. Odom v. Carney, 625 So. 2d 850 (Fla. 4th DCA 1993); Barhoush v. Louis, 452 So. 2d 1075 (Fla. 4th DCA 1984). Affirmed. GUNTHER and POLEN, JJ., concur.…
  • Treal Grp., Inc. v. Custom Video Servs., Inc., 682 So. 2d 1230 (Fla. 4th DCA 1996)
    …ding for Custom without specifying the basis for so finding. Custom argued, and the case was submitted to the jury on two grounds: (1) the lease was invalid; and (2) Custom was not liable because of nonperformance of a condition. In Odom v. Carney, 625 So. 2d 850 (Fla. 4th DCA 1993), this court stated that “[u]n-der the two issue rule, when multiple issues are submitted for resolution to the jury in a general verdict form, and one of the issues is without error, then the court must presume that all issues we…

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