GEORGE A. REFIOR, APPELLANT,
v.
JOHN J. MATUSZCAK AND TRAVELERS INSURANCE COMPANY, APPELLEES
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In this No-Fault Act case, the court affirmed summary judgment for the defendant insurer, holding that the plaintiff failed to establish a genuine issue of material fact regarding whether he sustained a "permanent injury within reasonable medical probability" as required by Florida law to maintain a tort suit.
The court held that plaintiff failed to establish a genuine issue of material fact because although he may have continued pain, he presented no medical evidence of permanency. The statute specifically requires permanent injury "within reasonable medical probability," and plaintiff's uncorroborated personal belief that his injuries were permanent does not satisfy this standard.
[1] Under the Florida No-Fault Act, a plaintiff must demonstrate a "permanent injury within reasonable medical probability" to maintain a tort action if medical expenses do n…
[2] A plaintiff's self-serving affidavit stating belief in the permanency of injuries, without medical corroboration, is insufficient to create a jury issue on permanency und…
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“the plaintiff could only maintain his action if he had sustained medical expenses in excess of $1,000 or sustained a "permanent injury within reasonable medical probability."”
Establishes the two-part statutory requirement under the No-Fault Act that plaintiff must satisfy to maintain a tort action.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff Refior was injured in an automobile accident in 1972. His medical expenses did not exceed $1,000. Defendant Matuszcak submitted an affidavit…
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PER CURIAM.
This appeal is from a final summary judgment holding that the defendant below was entitled to immunity from a tort suit under the Florida Automobile Reparations Reform Act because the plaintiff, as a matter of law, did not sustain a claim of a “permanent injury within reasonable medical probability.”
Under the Florida No-Fault Act in effect at the time of the accident (1972), the plaintiff could only maintain his action if he had sustained medical expenses in excess of $1,000 or sustained a “permanent injury within reasonable medical probability.” Fla.Stat. 627.737. It is acknowledged that the medical did not exceed $1,000.
In support of his motion the defendant submitted the affidavit of Dr. Glen Mussel-man which stated that the plaintiff did not sustain any permanent injury. The plaintiff then submitted his own counter-affidavit stating:
“That I believe that I have suffered injuries from the accident . . . which continue to cause me pain and which I believe are permanent in nature.”
While plaintiff’s complaint alleges that his injuries “are either permanent or continuing in nature,” it does not allege his injuries are permanent within a reasonable medical probability. In his sworn answers to interrogatories plaintiff stated he knew of no physicians or other medical experts who can testify that his injuries are permanent or who have any opinion whatever concerning any fact in the case. Plaintiff has not seen a doctor on account of injuries incurred in the accident since February 9, 1973. On deposition, plaintiff stated he does not remember asking any of the doctors who treated him whether his injuries were permanent and that no physician has ever told him his injuries are permanent. There is no issue that there is no medical evidence of permanent injury. Thus, assuming plaintiff continues to have pain, but has no medical evidence of permanency, no jury issue exists under the requirements of Fla.Stat. 627.737.
This court is aware that Gallub v. Del Vecchio, 301 So. 2d 785 (Fla.3d DCA 1974) and Salvador v. Munoz, 193 So. 2d 442 (Fla.3d DCA 1966), are authority for the fact that a plaintiff’s medically uncorroborated testimony on the issue of permanency of an injury is sufficient to charge the jury on that issue. However, those cases did not involve the “no-fault act” and this act specifically requires that there be a “permanent injury within reasonable medical probability.” The plaintiff’s affidavit certainly cannot be deemed to speak in terms of “reasonable medical probability.” Therefore, the trial court properly ruled that there was no genuine issue of material fact.
AFFIRMED.
CROSS and ANSTEAD, JJ., and CRAWFORD, GRADY L., (Retired), Associate Judge, concur.
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Ilya Iosilevich and David Iosilevich v. Testa, 573 So. 2d 422 (Fla. 3d DCA 1991)…al evidence showing that Testa sustained a permanent injury as a result of the accident with Iosilevich, the judgment cannot stand. Greene v. Flewelling, 366 So. 2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So. 2d 99 (Fla.1979); Refior v. Matuszcak, 358 So. 2d 95 (Fla. 4th DCA), cert. denied, 362 So. 2d 1055 (Fla. 1978); Avis Rent-A-Car Sys., Inc. v. Stuart, 301 So. 2d 29 (Fla. 2d DCA 1974). Reversed and remanded with instructions to enter a judgment for the defendants in accordance with their motion for a…
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Bell v. Deloach, 49 Fla. Supp. 197 (Duval Cty. Cir. Ct. 1979)…that the plaintiff did not sustain a permanent injury. 5. The unsupported allegations of the plaintiff are insufficient to create a genuine issue of material fact as to the extent and permanency of plaintiff’s alleged injuries. Refior v. Matuszcak, 358 So. 2d 95 (Fla. 4th D.C.A. 1978). 6. The depositions and exhibits on file show that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. 7. A new statutory procedure is set forth in §627.737 (3),…
Authorities Cited
- Gallub v. del Vecchio, 301 So. 2d 785 (Fla. 3d DCA 1974)
- Salvador v. Munoz, 193 So. 2d 442 (Fla. 3d DCA 1966)