CATHERINE S. CADLE, Plaintiff-Appellant, v. GEICO GENERAL INSURANCE COMPANY, Defendant-Appellee.
No. 15-11283
United States Court of Appeals, Eleventh Circuit.
September 30, 2016
835 F.3d 1356
Billy Richard Young, Megan Alexander, Megan Marie Hall, Courtney F. Smith, Jordan M. Thompson, Young Bill Roumbos & Boles, PA, Pensacola, FL, for Defendant-Appellee.
Mark Andrew Boyle, Sr., Molly Ann Chafe Brockmeyer, Boyle & Leonard, PA, Fort Myers, FL, for United Policy Holders, Amicus Curiae.
Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO,* District Judge.
FAY, Circuit Judge:
Catherine S. Cadle appeals judgment as a matter of law granted to GEICO General Insurance Company (“GEICO“) in her bad-faith diversity action, controlled by Florida law. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts
On July 27, 2007, Cadle was injured in an automobile accident on I-95, when she was rear-ended by Derek S. Friend. Cadle was insured by GEICO under a stacked uninsured motorist (“UM“)1 policy with a $75,000 limit. Friend was insured by Allstate under a policy with a $25,000 limit.
Following the accident, Cadle consulted her primary-care physician, who prescribed three weeks of physical therapy, which did not alleviate Cadle‘s pain. In August 2007, she was referred for an MRI of her cervical spine and a neurosurgical consultation. This resulted in pain management, including epidural injections. Between August 2007 and June 2008, Cadle had ten facet or nerve blocks, which required anesthesia. None effectively managed her pain. Cadle had a preexisting neck injury that had required surgery in France in 1989,2 but she had been doing well prior to the July 27, 2007, automobile accident.
After evaluating Cadle‘s medical records, GEICO offered $500 to settle her UM claim on June 3, 2008. Cadle‘s attorney responded by demanding the $75,000 UM limit on June 11, 2008, and including all her medical records. On July 11, 2008, GEICO offered $1,000 to settle Cadle‘s claim and noted “[t]here was no final evaluation provided in your demand giving any permanency to your client, which leaves a question regarding threshold breach [of
On September 17, 2008, Cadle filed her first Civil Remedy Notice (“CRN“) under
During the sixty-day, safe-harbor or cure period, all GEICO requested were Cadle‘s medical records from her 1989 surgery in France. It did not increase its settlement offer. In a letter dated November 17, 2008, the GEICO adjuster again noted “there was no final evaluation report submitted in the [June 11, 2008, $75,000] demand giving any permanency for Ms. Cadle, which leaves a questionable threshold breach [of
In March 2009, Cadle sued GEICO and filed a second CRN on April 2, 2009. This CRN noted continuing treatment and possible surgical intervention. Pl.‘s Tr. Ex. 11A. Because this CRN was approaching expiration, the GEICO adjuster faxed Cadle‘s attorney a May 29, 2009, letter stating inability to reach him. The attorney left a voicemail for the adjuster that day and claims he had not received any GEICO attempts to communicate with him. The adjuster returned the attorney‘s call, during which the attorney explained Cadle was going to have surgery in the 2009 holiday season, because conservative measures had failed. The adjuster denies this call occurred.
On December 15, 2009, Cadle had surgery, because of the pain she had continued to experience. The surgery consisted of opening the front of her neck, removing the twenty-year-old facet from her prior surgery, and replacing it with a larger facet to stabilize her neck. Cadle returned to work on January 4, 2010, with a neck collar and bone stimulator.
GEICO contended Cadle did not treat for approximately ten months before her surgery. During that period, Cadle‘s primary-care physician prescribed Oxycodone, and she did rehabilitation exercises at home. She used the time to save money and vacation days so she could have the surgery and recover during the 2009 holidays, while providing care for her three daughters and two stepsons.
On January 6, 2010, Cadle‘s attorney sent her operation report to the GEICO staff counsel assigned to her UM case. On January 13, 2010, the staff counsel requested additional information regarding Cadle‘s treatment and medical bills. Her attorney responded “the total medical bills . . . are now $123,132.49, which is the amount that will be given to a jury for consideration. . . . There are still $51,155.35 of the previous amount that remains unpaid.” Def.‘s Tr. Ex. 22A. Instead of tendering its policy limits, GEICO served Cadle with a proposal for settlement in February 2010.
B. State UM Trial
In March 2013, Cadle‘s UM claim was tried to a jury in the Circuit Court of Brevard County. At that time, none of Cadle‘s doctors had assigned her a permanency rating, although she had not reached maximum medical improvement. On March 8, 2013, the jury found Cadle had sustained a permanent injury within a reasonable degree of medical probability as a result of the July 27, 2007, accident and awarded her a verdict of $900,000. In his Partial Final Judgment, the state trial judge reduced the verdict amount to $816,636.31, after applying “set-offs for collateral sources and the prior bodily injury settlement.” Partial Final Judgment Or-
GEICO GENERAL INSURANCE COMPANY elects to reduce the amount of the gross verdict to the underinsured motorist (UM) policy limits. However, this limitation shall not prejudice or limit in any manner whatsoever, the Plaintiff‘s ability to seek and recover additional damages, remedies, and causes of action, including, but not limited to an insurance company bad faith cause of action. Partial Final Judgment is therefore entered against Defendant, GEICO GENERAL INSURANCE COMPANY, and in favor of the Plaintiff, CATHERINE S. CADLE, in the sum of SEVENTY-FIVE THOUSAND ($75,000.00) DOLLARS [UM policy limit], together with interest thereon. . . .
Id. GEICO did not appeal this state judgment.
C. Federal Bad-Faith Trial
On October 15, 2013, Cadle filed this first-party, bad-faith diversity case in the Middle District of Florida against GEICO for failure to settle her claim, when it could and should have done so.3 GEICO moved for partial summary judgment and sought a determination the jury $900,000 verdict in the underlying state UM case was not binding as a measure of the damages in the federal bad-faith case. Cadle disagreed and maintained, if she had proved bad faith, then her damages were fixed at $900,000, less appropriate set-offs, from the state UM trial. In denying the GEICO motion for partial summary judgment, the district judge commented: “Florida law provides a statutory remedy for first party bad faith, but unfortunately does not establish a procedure for determining damages; and the law in this regard is in a state of flux.” Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2014 WL 4983791, at *1 (M.D. Fla. Oct. 6, 2014).
The three-day trial was conducted December 1-3, 2014. On cross examination of Cadle‘s bad-faith expert, Paul Dolbow, GEICO‘s attorney questioned him concerning whether GEICO would have had any indication that Cadle had sustained a permanent injury in the subject accident:
Q. In this case, when GEICO received the demand package dated June 11, 2008, there was not a single medical record stating that Mrs. Cadle had suffered a permanent injury from the accident, was there?
A. Not that I saw.
Trial Tr. vol. II at 236 (Dec. 2, 2014) (emphasis added). On redirect, Cadle‘s attorney‘s attempt to rehabilitate his expert‘s testimony was unavailing:
Q. Prior to the surgery, were there any medical records in Mrs. Cadle‘s file from which you could infer a permanent injury?
A. No.
Id. at 241 (emphasis added).
At the close of Cadle‘s case, GEICO moved for a directed verdict:
Your Honor, the defense moves for a directed verdict on the basis that the plaintiff has failed in their burden of proof. Specifically, the claim is that GEICO acted in bad faith because GEICO did not accept a demand for $75,000 in underinsured motorist benefits.
And to make my motion brief, I will simply assert that the plaintiffs just presented an expert witness who testified that at no time prior to the surgery was there any record indicating a permanent injury to Ms. Cadle nor was there
any evidence presented to GEICO from which permanent injury could be inferred. Under those circumstances, she would be entitled to recover only her out-of-pocket expenses; and there has been no evidence put on in this trial as to what, if any, out-of-pocket expenses she sustained. So we move for a directed verdict.
Id. at 245 (emphasis added).
Cadle‘s counsel then addressed the lack of additional medical records:
On the one hand, GEICO argues [Cadle] didn‘t treat for almost a year. On the other hand, during that period of time they say, “You didn‘t give us any more medical records.”
Well, you can‘t have it both ways. You can‘t have her not have more medical records and then complain she didn‘t give you more medical records.
JUDGE: She didn‘t have any more medical records.
CADLE‘S COUNSEL: Right, and she explained why, because she knew she had to have surgery.
There isn‘t—we know what the records are. There isn‘t a note that says—
JUDGE: There is nothing in that record that says GEICO was on notice that she had to have surgery. It‘s just not there.
Id. at 249 (emphasis added).
Following the argument by Cadle‘s counsel that there was a reasonable inference from her medical records she needed surgery, the judge specifically noted the testimony of Cadle‘s expert witness:
That‘s your own expert. I‘m sorry, but when you call an expert, you‘re kind of stuck with what that expert says; and he pretty much pulled the rug out from under your claim. . . . [The expert] also said there was no evidence of a threshold breach at the time. So, you know, I mean, that‘s what he said.
Id. at 252 (emphasis added). The judge, however, decided to reserve ruling on GEICO‘s motion for judgment as a matter of law. GEICO rested without calling any witnesses, because its witnesses had testified in Cadle‘s case.
GEICO had requested a jury instruction on an insured‘s burden of proof to recover noneconomic damages in a UM claim under
GEICO based its renewed motion for judgment as a matter of law on Cadle‘s “fail[ure] to present any evidence that [she] had sustained a permanent injury which would have entitled [her] to noneconomic damages and thus no reasonable jury could conclude that GEICO acted in bad faith in its handling of [her] UM claim.” GEICO‘s Renewed Mot. for J. as a Matter of Law at 1. Specifically, GEICO argued Cadle‘s expert “testified that when GEICO received [Cadle‘s] demand for the $75,000 policy limits and the two Civil Remedy Notices, there were no medical records which indicated that [Cadle] had suffered a permanent injury.” Id. at 10. Even Cadle‘s attorney in the state UM case “testified that there was nothing in the documents that he provided to GEICO which indicated that [Cadle] suffered a permanent injury as a result of the [automobile] accident.” Id. at 11. Consequently, Cadle “was only entitled to economic dam-
In determining whether judgment as a matter of law was the correct resolution of Cadle‘s bad-faith action, the district judge noted Cadle had filed a CRN on September 17, 2008, which alleged “GEICO [had] acted in bad faith by failing to settle . . . Cadle‘s claim in violation of
Because Cadle may recover only economic damages (medical expenses and wages) if her injuries do not meet the threshold requirement of permanent injury under
The judge commented:
Reliance on the documents provided by and representations made by [Cadle‘s] lawyer cannot amount to bad faith, and [Cadle] has cited no authority to the contrary. Rather, the insurer is entitled to rely on the documents provided by [Cadle‘s] counsel, and the representations made by him concerning his client‘s claim.
Id. The judge additionally noted: “Moreover, there is no evidence that such additional investigations would have produced a different result.”5 Id. The judge granted GEICO‘s renewed motion for judgment as a matter of law. Judgment was entered on
II. ANALYSIS
On appeal, Cadle first argues there was sufficient evidence presented at trial for the jury to have concluded her injury was permanent at the time of her settlement demand. Second, Cadle contends her burden of proof under the totality-of-the-circumstances analysis does not require her to prove a permanent injury at the time of her settlement demand. For these reasons, Cadle requests our court “to reverse the district court‘s judgment and restore the jury‘s verdict, or alternatively, certify this question of first impression to the Florida Supreme Court.” Appellant‘s Initial Br. at 15.
A. Review Standards
In diversity cases, we apply the substantive law of the forum state. Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009). We review de novo a district judge‘s granting judgment as a matter of law under
In considering a Rule 50(b) motion after the jury verdict, “only the sufficiency of the evidence matters. The jury‘s findings are irrelevant.” Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d 1358, 1363 (11th Cir. 2014) (citation and internal quotation marks omitted). “‘[T]hat Rule 50(b) uses the word “renewed” makes clear that a Rule 50(b) motion should be decided in the same way it would have been decided prior to the jury‘s verdict, and that the jury‘s particular findings are not germane to the legal analysis.‘” Id. (quoting Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007)) (alteration in original). Judgment as a matter of law for a defendant is appropriate, “when there is insufficient evidence to prove an element of the claim, which means that no jury reasonably could have reached a verdict for the plaintiff on that claim.” Collado, 419 F.3d at 1149; see Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344-45 (11th Cir. 2000) (“A Rule 50(b) motion should only be granted where reasonable jurors could not arrive at a contrary verdict.” (citation, internal quotation marks, and alteration omitted)).
B. Interrelationship Between UM and Bad-Faith Trials: Binding Effect of Damages Determination in First-Party UM Trial
Since this case was argued in our court, the Florida Supreme Court has
“Because we have concluded that the insured is entitled to a determination of the full extent of damages in the UM action, it follows that such a determination is binding in the subsequent bad faith action against the same insurer.” Id. at 1225. “If the amount of the UM verdict is not binding as an element of damages in the bad faith litigation, it would allow the insurer—or the insured, if the verdict were less than anticipated—a second bite at the proverbial apple.” Id. That would result in “serious, unintended consequences,” including relitigating the damages again in a bad-faith trial, “inconsistent verdicts,” and “comity issues between state and federal courts,” which would be a “waste of judicial and litigant resources.” Id. (citation and internal quotation marks omitted). Consequently, “there must be an opportunity for both parties to obtain appellate review of any timely raised claims of error in the determination of damages obtained in the UM trial, the very reason that it becomes binding as an element of damages in the subsequent bad faith case.” Id. at 1226 (emphasis added).
The “damages in first-party bad faith actions are to include the total amount of a claimant‘s damages, including any amount in excess of the claimant‘s policy limits without regard to whether the damages were caused by the insurance company“—damages that are, in substance, a penalty.” Id. at 1223 (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 60 (Fla. 1995)) (emphasis added). “Nothing in our precedent suggests that the eventual tendering of the policy limits renders the UM case moot.” Id. The Fridman court “conclude[d] that an insured is entitled to a determination of liability and the full extent of his or her damages in the UM case prior to filing a first-party bad faith action.” Id. at 1224. That court “reject[ed] the suggestion that errors in the computation of the UM verdict are necessarily harmless where the damages reflected in the UM verdict are significant relative to the UM policy limits because the damages will eventually become part of the subsequent bad faith case.” Id. at 1228 (emphasis added).7 Con-
C. Procedural Requirements for Bad-Faith Case Against an Insurer
1. Insurer‘s Good-Faith Duty to Insured
The Fridman court recognized “the Florida Legislature created a statutory first-party bad faith cause of action” by enacting
An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. . . . The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.
Berges v. Infinity Ins. Co., 896 So. 2d 665, 668-69 (Fla. 2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980)) (ellipsis in original) (emphasis added).
While the determination of whether an insurer acted in bad faith in handling an insured‘s claims generally is decided under the totality of the circumstances, each case is decided on its facts. Id. at 680. “Although the issue of bad faith is ordinarily a question for the jury, [the Florida Supreme Court] and the district courts [of appeal] have, in certain circumstances, concluded as a matter of law that
2. Civil Remedy Notice and Sixty-Day Cure Period
“As a condition precedent to filing a civil action [for bad faith] under section 624.155, ‘the Florida Department of Financial Services and the authorized insurer must have been given 60 days’ written notice of the violation.‘” Fridman, 185 So. 3d at 1220 (quoting
“The sixty-day window is designed to be a cure period that will encourage payment of the underlying claim, and avoid unnecessary bad faith litigation.” Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So. 2d 1278, 1282 (Fla. 2000) (citation and internal quotation marks omitted). This cure period “provides insurers with a final opportunity ‘to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate the contractual benefits are owed.‘” Fridman, 185 So. 3d at 1220 (quoting Talat Enters., 753 So. 2d at 1284). “[I]f an insurer fails to respond to a civil remedy notice within the sixty-day window, there is a presumption of bad faith sufficient to shift the burden to the insurer to show why it did not respond.” Id. (citation and internal quotation marks omitted). “Importantly, in both first- and third-party bad faith actions, an element of damages includes any amount in excess of the policy limits.” Id. at 1221 (citing
The Florida Supreme Court has held expressly “a claim for bad faith pursuant to section 624.155(1)(b)1 is founded upon the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay.” Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000). This obligation requires timely evaluation and payment of “benefits owed on the insurance policy.” Id. But the Florida Supreme Court noted
the denial of payment does not mean an insurer is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in good faith believes are not owed on a policy. Even when it is later determined by a court or arbitration that the insurer‘s denial was mistaken, there is no cause of action if the denial was in good faith.
Id. (emphasis added).
3. Permanent-Injury Requirement for Noneconomic Damages
The Fridman court recognized
Section 627.737(2)(b) provides that a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience (noneconomic damages) because of a bodily injury arising out of the use of a motor vehicle only in the event that the injury “consists in whole or in part of . . . [p]ermanent injury within a reasonable degree of medical probability.” Thus, as long as part of the bodily injury arising out of the motor vehicle accident involves a permanent injury “within a reasonable degree of medical probability,” the plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident. Additionally, pain is only one of the noneconomic damages provided in the statute. Suffering, mental anguish and inconvenience are also compensable noneconomic damages.
Wald v. Grainger, 64 So. 3d 1201, 1207 (Fla. 2011) (alteration and ellipsis in original) (emphasis added).10 Consequently, insureds seeking noneconomic benefits from their uninsured-motorist carrier, first must meet the permanent-injury requirement of
The Florida Supreme Court has explained the interrelationship of
[T]he statute[s] require[‘] that the plaintiff establish the existence of a physical injury and prove that this injury is permanent. Both elements must be proven “within a reasonable degree of medical probability.” We find that the statute[s] do[ ] not limit the evidence to objective findings to establish the existence or permanency of a physical injury. . . .
However, the statute[s] do[ ] provide a check on the evidence with [their] requirement that the existence and permanency of the injury be established ”within a reasonable degree of medical probability.” By the terms of the statute[s], a mere recitation of the plaintiff‘s subjective complaints of pain is insufficient to prove a permanent injury—the plaintiff must also present expert medical testimony to establish the existence and permanency of the alleged injury.
City of Tampa v. Long, 638 So. 2d 35, 37-38 (Fla. 1994) (quoting
D. Application
On appeal, Cadle argues the district judge erred by granting GEICO‘s Rule 50(b) motion, which overruled the jury determination of bad faith and thereby precluded her obtaining the monetary remainder of her recovery found by the jury in the UM trial. She further contends there was sufficient evidence in the record to support the jury verdict that GEICO acted in bad faith in failing to pay her claim. Generally, judgment as a matter of law under
For Cadle to recover noneconomic damages, she had to show the existence and permanency of her injury from the July 27, 2007, accident within the sixty-day cure period after making her claim to GEICO. The testimony at her bad-faith trial by both her medical expert and UM attorney confirmed that at no time during the cure period did Cadle produce to GEICO medical evidence of the permanency of her injury. Noneconomic damages are available under an insurance policy only if the plaintiff incurs a “permanent injury,” which must be established “within a reasonable degree of medical probability” within the cure period.
[T]he trier of fact would not be at liberty to disregard arbitrarily the unequivocal, uncontradicted and unimpeached testimony of an expert witness, where, as here, the testimony bears on technical questions of medical causation beyond the competence of lay determination. Indeed, such opinion testimony may form the basis for a directed verdict.
Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970) (citations omitted) (emphasis added). In granting GEICO‘s renewed motion for judgment as a matter of law, the judge explained:
[D]espite numerous opportunities, [Cadle‘s attorney] never provided any evidence of a permanent injury and never even attempted to address the threshold issue [of permanent injury], except to note that his client was considering surgical intervention. This possibility of surgical intervention is not, however, notice of permanent injury.
Order at 6, Cadle v. GEICO Ins. Co., No. 6:13-cv-1591-Orl-31GJK (footnote omitted) (emphasis added).
In an analogous case, involving an automobile accident, a UM trial in state court, and a bad-faith trial in federal court, our court affirmed the district judge‘s granting an insurer‘s Rule 50(b) motion, because the plaintiff-appellant “did not provide expert medical evidence of permanency during the safe-harbor period.” Harris v. GEICO Gen. Ins. Co., 619 F. App‘x 896, 899 (11th Cir. 2015) (unpublished but recognized for persuasive authority). We noted Harris “fail[ed] to cite any evidence that expert medical testimony as to permanency was presented at the UM trial. Therefore, no reasonable juror could find GEICO denied Harris non-economic damages in bad faith.” Id. at 899-900.
III. CONCLUSION
“If an uninsured motorist is not liable to the insured for damages arising from an accident, then the insurer has not acted in bad faith in refusing to settle the claim.” Blanchard, 575 So. 2d at 1291. Under the clear language of Florida law regarding noneconomic damages in an insurance bad-faith case, the district judge was correct to conclude the jury had no evidence from which it reasonably could have found GEICO had acted in bad faith. There was no evidence of permanency during the cure period, which is required under Florida law. The district judge‘s granting GEICO‘s Rule 50(b) motion is AFFIRMED.
Notes
Fridman, 185 So. 3d at 1227 n.5.In both cases, on appeal, the Eleventh Circuit Court of Appeals declined to address the issue of whether the excess verdict in the underlying UM action was binding as to damages in the subsequent first-party bad faith action because it affirmed the decision that the insurer was found by the jury not to have acted in bad faith.
Fridman, 185 So. 3d at 1221 (quotingThe damages recoverable from an uninsured motorist carrier in an action brought under
s. 624.155 shall include the total amount of the claimant‘s damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney‘s fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant‘s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.
The legal liability of an uninsured motorist coverage insurer does not include damages in tort for pain, suffering, mental anguish, and inconvenience unless the injury or disease is described in one or more of paragraphs (a)-(d) of s. 627.737(2).
In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
Trial Tr. vol. III at 24-25 (Dec. 3, 2014) (quotingFlorida law provides in pertinent part that a claimant may recover damages in tort for, quote, “pain, suffering, mental anguish, and inconvenience because of bodily injury” arising out of an automobile accident “only in the event that the injury . . . consists in whole or in part of:
(a) significant and permanent loss of an important bodily function;
(b) permanent injury within a reasonable degree of medical probability;
(c) significant and permanent scarring or disfigurement; and,
(d) death.”