MARY LEWIS JOHNSON AND PREFERRED RISK MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
MARY L. PHILLIPS, EDMUND PHILLIPS AND AUTO OWNERS INSURANCE COMPANY, APPELLEES
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This case addresses whether a plaintiff suffering from post-concussion syndrome with permanent subjective pain complaints meets the "permanent injury" threshold required under Florida Statute 627.737(2) to pursue a no-fault insurance claim. The court held that permanent subjective complaints of pain resulting from an initial organic injury constitute permanent injury under the statute.
The court held that "permanent injury" under Florida Statute 627.737(2) includes permanent subjective complaints of pain resulting from an initial organic injury, and therefore Mrs. Phillips crossed the threshold requirement to pursue her no-fault insurance claim.
[1] A "permanent injury" under Florida Statute 627.737(2) can include permanent subjective complaints of pain resulting from an initial organic injury.
[2] Proof of permanent subjective complaints of pain, even without objective medical findings of organic injury, may satisfy the "permanent injury" threshold requirement of F…
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Join FLexlaw to unlock all legal intelligence“We interpret the words "permanent injury" in Florida Statute 627.737(2) to include permanent subjective complaints of pain resulting from an initial organic injury.”
The court's definitive holding on the meaning of "permanent injury" under the no-fault insurance statute.
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Join FLexlaw to unlock all legal intelligenceMary Phillips was injured in an accident and developed post-concussion syndrome (post-traumatic syndrome) characterized by permanent headaches and diz…
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HOBSON, Acting Chief Judge.
The only point on this appeal and cross appeal which merits discussion is whether or not the appellee, Mary Phillips, crossed the threshold requirement provided for in Florida Statute 627.737(2).
Appellants contend that Mrs. Phillips did not prove within a reasonable medical probability that she suffered a permanent injury. In support of this contention appellants rely on Avis Rent-A-Car System, Inc. v. Stuart, 301 So. 2d 29 (Fla.2d DCA 1974). In that case this court held that the injured party did not have a permanent injury, although at the time of trial he was still experiencing pain in his lower back, tightness in his upper back, a certain amount of limitation of motion of his right arm, and could not lift objects which prior to the accident he was capable of lifting. This was held to be insufficient proof of permanent injury because the only medical testimony was that the injured party had no permanent injury. There was no medical testimony that the subjective complaint, i. e., pain, was permanent.
The medical testimony in the instant case shows that Mrs. Phillips was suffering from a post-concussion syndrome or post-traumatic syndrome. The symptoms of such syndromes are headaches and dizziness. Dr. Taxdal, a Neurosurgeon, was asked these questions and gave these answers:
“Q And at this time now that we have had two successive normal electroencephalogram tests, your position is that the injury is not permanent but the complaints may well be permanent, the subjective complaints.
A Yes, I am so stating that.
Q Doctor, just so that there is no question when you say you are so stating that, you are stating with an opinion based upon reasonable medical probability that this patient does not in fact have a permanent injury. Is that correct?
A I have stated that within reasonable medical certainty I feel the patient’s complaints are permanent. I have further stated for clarification I do not feel she has permanent injury of an organic nature that I can see.”
It is clear from Dr. Taxdal’s testimony that in his opinion to have a permanent injury it must be of an organic nature or what is sometimes called “objective findings.”
Mrs. Phillips’ initial injury was of an organic nature, to wit, a brain concussion. This organic injury resulted in “permanent injury” albeit it manifests itself through subjective complaints of pain, which complaints, according to the medical testimony, are permanent.
We interpret the words “permanent injury” in Florida Statute 627.737(2) to include permanent subjective complaints of pain resulting from an initial organic injury. Therefore, we hold that Mrs. Phillips crossed the threshold requirements of Florida Statute 627.737(2) and affirm the judgments appealed.
McNULTY and SCHEB, JJ., concur.
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Burkett v. Don L. Parker and wife, 410 So. 2d 947 (Fla. 1st DCA 1982)…1977). Under the foregoing principles, we conclude that a genuine issue existed of whether plaintiff’s injury comes within the “permanent injury” requirement of the statute, Section 627.737(2), precluding summary judgment. See Johnson v. Phillips, 345 So. 2d 1116 (Fla. 2nd DCA 1977). Although Section 627.737 has been held unconstitutional in Dillon v. Chapman, 404 So. 2d 354 (Fla. 5th DCA 1981), the constitutional issue was not raised in the trial court. Therefore, the statute is still applicable in this c…
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Philon v. Rohan R. Reid, 602 So. 2d 648 (Fla. 2d DCA 1992)…at the trial judge erred in giving a jury instruction that “[t]he term permanent injury includes the term subjective complaints resulting from an initial organic injury.” Appellee argues that we should recede from our holding in Johnson v. Phillips, 345 So. 2d 1116 (Fla. 2d DCA1977), cert. denied, 358 So. 2d 131 (Fla.1978) and instead concur with the Third District’s contrary holding in Rivero v. Mansfield, 584 So. 2d 1012 (Fla. 3d DCA 1991), jurisdiction accepted, 592 So. 2d 1091 (Fla.1992). We decline to do…
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Rivero v. Mansfield, 584 So. 2d 1012 (Fla. 3d DCA 1991)…s’ medical experts’ testimony, Rosa’s permanent pain constituted a permanent injury; however, the Mansfields’ medical experts testified that she did not sustain a permanent injury. At the close of trial, the Riveros, relying on Johnson v. Phillips, 345 So. 2d 1116 (Fla. 2d DCA 1977), requested the court to instruct the jury: “The words ‘permanent injury,’ as used in the Florida No-Fault Law, include permanent subjective complaints of pain resulting from an initial organic injury.” The trial court rejected the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- AVIS Rent-A-Car Sys., Inc. v. Stuart, 301 So. 2d 29 (Fla. 2d DCA 1974)