LORI STEPHENSON-NOLAND AND GREG NOLAND, HER HUSBAND, ET AL., APPELLANTS,
v.
AGNES E. NADD, FIDESYS CORP., ETC., ET AL., APPELLEES
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A jury instruction erroneously required a finding of permanent injury to award future economic damages; such damages may be awarded if established with reasonable certainty.
Appellants, mother and daughter, were involved in consolidated automobile accident cases. The trial court gave a jury instruction that recovery of fut…
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PER CURIAM.
This is the appeal of a final judgment after a jury trial in consolidated automobile accident cases involving appellants, who are mother and daughter. We find no reversible error in any of the issues raised by appellant except for the lower court’s giving of a jury instruction to the effect that appellants could not recover future lost earnings or future medical expenses absent the jury’s predicate finding of permanent injury. This instruction was erroneous in light of Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla.1995), which held that future economic damages may be recovered without a finding of permanency when such damages are established with reasonable certainty:
We reject the mandatory permanent injury threshold test for future economic damages and find the appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty. Although a permanent injury is not a prerequisite to recovering future economic damages, it is a significant factor in estab lishing the reasonable certainty of the future damages.
Id. at 91. There was sufficient evidence offered by appellants on which the jury could have made some award of future economic damages. See Metrolimo, Inc. v. Lamm, 666 So. 2d 552 (Fla. 3d DCA 1995).
We doubt that the maximum medical improvement limitation of Ludwig v. Ladner, 637 So. 2d 308 (Fla. 2d DCA 1994), relied upon by appellee, has survived the supreme court’s opinion in Tompkins. Even if not permanently injured, it is possible that a person who has achieved “MMI” can be reasonably certain to incur economic damages beyond the date of trial.
Accordingly, we reverse on this issue only and remand for a trial on this element of damage only. In all other respects, the appealed judgment is affirmed.
AFFIRMED in part; REVERSED in part; and REMANDED.
GOSHORN, GRIFFIN and ANTOON, JJ., concur.
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Owen v. Morrisey, 793 So. 2d 1018 (Fla. 4th DCA 2001)…ury understood and followed the law in deciding whether his injury is permanent. Id. at 310-11 (footnote omitted). Although some may question whether Ludwig v. Ladner survived the supreme court’s opinion in Tompkins, see Stephenson-Noland v. Nadd, 670 So. 2d 1197 (Fla. 5th DCA 1996), we find nothing in Tompkins to detract from Judge Altenbernd’s reasoning. Although a finding of a permanent injury is not a prerequisite for an award of future economic losses, it also cannot be ignored. In the instant case, the…
Authorities Cited
- Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla. 1995)
- Ludwig v. Ladner, 637 So. 2d 308 (Fla. 2d DCA 1994)
- Metrolimo, Inc. v. Lamm, 666 So. 2d 552 (Fla. 3d DCA 1995)