RICHARD W. GILL, APPELLANT,
v.
TERRENCE M. MCGUIRE, APPELLEE
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In a negligence action arising from an automobile accident, the trial court instructed the jury that it could award damages for past disability and loss of capacity for the enjoyment of life even if it found no permanent injury. The appellate court reversed, holding that such non-economic damages cannot be awarded absent a finding of permanent injury, and remanded for entry of judgment limited to economic damages.
A jury may not award non-economic damages for past disability and loss of capacity for the enjoyment of life absent a finding of permanent injury. The court struck the $15,000 non-economic damages award and reversed the attorney's fees award.
[1] A jury may not award damages for past disability and loss of capacity for the enjoyment of life if the jury finds that the plaintiff did not sustain a permanent injury.
[2] A jury instruction that permits an award of damages for past disability and loss of capacity for the enjoyment of life despite a finding of no permanent injury is erroneo…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Recently, in Welch v. Fega, 800 So.2d 327 (Fla. 4th DCA 2001), we addressed this exact issue and reversed non-economic damages awarded for past disability and loss of capacity for the enjoyment of life because the jury found that the plaintiff had not sustained a permanent injury.”
Establishes that controlling precedent directly supports reversal of the non-economic damages award.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTerrence McGuire was injured in an automobile accident with Richard Gill. McGuire sued Gill for negligence. The jury found that McGuire did not sustai…
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WARNER, J.
This appeal arises from appellee Terrence McGuire’s negligence action for injuries he sustained in an automobile accident with appellant Richard Gill. Over Gill’s objection, the trial court instructed the jury, inter alia, that even if it found that McGuire did not sustain a permanent injury, it could still award damages for past disability and loss of capacity for the enjoyment of life. The jury ultimately found that appellee did not sustain a permanent injury and awarded him two measures of damages: (1) $3,357.31 in economic damages; and (2) $15,000.00 for past disability and loss of capacity for the enjoyment of life. Pursuant to the verdict, the court entered a judgment in McGuire’s favor for $17,076.31. Because Gill had not accepted McGuire’s pre-trial $10,000 offer of judgment, the court entered an agreed order awarding McGuire attorney’s fees and costs. On appeal, Gill challenges the above mentioned jury instruction and the resultant verdict, judgment, and fees award.
Recently, in Welch v. Fega, 800 So. 2d 327 (Fla. 4th DCA 2001), we addressed this exact issue and reversed non-economic damages awarded for past disability and loss of capacity for the enjoyment of life because the jury found that the plaintiff had not sustained a permanent injury. In so holding, we agreed with the second district’s decision in Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001). In that opinion, Smiley expressly rejected the arguments McGuire used in this case to convince the trial court to give the erroneous instruction.
Since McGuire recovered damages for past disability and loss of capacity for the enjoyment of life even though the jury found that he did not sustain a permanent injury, we strike that portion of the damages award. We remand for the trial court to enter an appropriate judgment awarding McGuire only his economic damages. Moreover, because his recovery will now be significantly less than his $10,000 offer of judgment, we reverse the attorney’s fees award as no longer justified under the offer of judgment statute. See generally § 768.79(1), Fla. Stat. (2000).
Reversed and remanded.
FARMER and GROSS, JJ., concur.
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Giles v. Luckie, 816 So. 2d 248 (Fla. 1st DCA 2002)…amages available at common law and not listed in the statute are recoverable without a threshold injury. The second and fourth districts have addressed and rejected this argument. Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001); Gill v. McGuire, 806 So. 2d 629 (Fla. 4th DCA 2002); Welch v. Fega, 800 So. 2d 327 (Fla. 4th DCA 2001). In Smiley, the second district reasoned that the tort exemption in section 627.737(1) extends to all damages, economic and noneconomic, and the fourth district adopted the seco…
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Sweitzer v. Thomas, 834 So. 2d 283 (Fla. 5th DCA 2002)…the time of the trial in May, 2001, the trial court did not have the guidance of subsequently published decisions of other district courts addressing this issue, including, e.g., Loving v. Winters, 802 So. 2d 335 (Fla. 2d DCA 2001), Gill v. McGuire, 806 So. 2d 629 (Fla. 4th DCA 2002), and Giles v. Luckie, 816 So. 2d 248 (Fla. 1st DCA 2002). Those decisions hold that an injured plaintiff must satisfy the threshold requirements of • section 627.737(2) in order to be entitled to recover any noneconomic damages a…
Authorities Cited
- Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001)
- Welch v. Fega, 800 So. 2d 327 (Fla. 4th DCA 2001)