741 So. 2d 533 | Fla. Dist. Ct. App. | 1999
Lead Opinion
Mary Ann Sheffield sustained soft tissue injuries as a passenger in an automobile hit from the rear while waiting for a traffic light to change. After settling with the driver of the other car for policy limits, she sued her own uninsured motorist insurance carrier, Superior Insurance Company (Superior). Dissatisfied with the size of the verdict against Superior, she now seeks a new trial on damages. We reject the contention that she was entitled to a directed verdict deeming her injuries permanent. While the trial court did err in denying her motion to exclude evidence of collateral sources, her own introduction of such evidence precludes reversal for a new trial on that ground. We therefore affirm.
I.
Maintaining that the jury must have been misled on the point by videotapes depicting her in apparent good health, Ms. Sheffield argues that the medical evidence left the trial judge no choice but to direct a verdict finding that she had suffered permanent injury. Granting a motion for directed verdict would, however, have been “proper only if there was no evidence upon which a jury could find,” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995), that her injuries were not permanent. A motion for directed verdict concedes “the facts in evidence and in addition admits every reasonable and proper conclusion based thereon which is favorable to the adverse party.” Hartnett v. Fowler, 94 So.2d 724, 725 (Fla.1957) (citing Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903 (1943)).
Although several physicians testified that Ms. Sheffield suffered permanent injury, they did not all agree that any one injury was permanent. Dr. Ivan Lopez testified that Ms. Sheffield had permanent injuries, both cervical and lumbar. But Dr. Bruce Richards, who examined Ms. Sheffield approximately six months after
It was for the jury to resolve conflicting evidence on the issue of permanency. See Easkold v. Rhodes, 614 So.2d 495, 497 (Fla.1993); Hicks v. Yellow Freight Sys., Inc., 694 So.2d 869, 870 (Fla. 1st DCA 1997); cf. Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873-74 (Fla. 1st DCA 1993). But see Allstate Insurance Co. v. Thomas, 637 So.2d 1008 (Fla. 4th DCA 1994). As the finder of fact, the jury was free to “accept such [expert] opinion testimony, reject it, or give it the weight [the jury thought] it deservefd], considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all other evidence in the case.” Fla. Std. Jury. Instr. (Civ.) 2.2(b); see Easkold, 614 So.2d at 497-98; Shaw v. Puleo, 159 So.2d 641, 643-44 (Fla.1964), overruled in part on other grounds, Griffis v. Hill, 230 So.2d 143 (Fla.1969); Florida Dep’t of Highway Safety and Motor Vehicles v. Schnurer, 627 So.2d 611, 612 (Fla. 1st DCA 1993); Wynn v. Muffs, 617 So.2d 794 (Fla. 1st DCA 1993); cf. Congleton v. Sansom, 664 So.2d 276, 283 (Fla. 1st DCA 1995), review denied, 675 So.2d 119 (Fla.1996). The trial court did not err in denying the motion for directed verdict.
The dissent takes us to task for “affirming on issues not presented to the trial judge, or briefed by the parties,” going so far as to suggest a “practical denial of due process.” But the burden is on Mrs. Sheffield to show that the trial court erred in denying the motion for directed verdict, not on appellees to show that the ruling was correct. See Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979); Canto v. J.B. Ivey and Co., 595 So.2d 1025, 1028 (Fla. 1st DCA 1992). Persuaded, as we are, that the trial court’s decision was
“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Apple-gate, 377 So.2d at 1152. An appellee’s failure to file an answer brief altogether does not alter the rule that an appellate court should affirm, where the evidence supports the trial court’s decision. See Florida Auto. Dealers Indus. Benefit Trust v. Small, 592 So.2d 1179, 1180 (Fla. 1st DCA 1992). “Where a trial court reaches the correct decision even if for the wrong reason, the decision will be affirmed.” Cardelle v. Cardelle, 645 So.2d 22, 23 (Fla. 3d DCA 1994). See Firestone v. Firestone, 263 So.2d 223 (Fla.1972); In re Estate of Yohn, 238 So.2d 290 (Fla.1970); Walton v. Walton, 290 So.2d 110 (Fla. 3d DCA 1974); Goodman v. Goodman, 204 So.2d 21, 21 (Fla. 4th DCA 1967). Here parts of the physicians’ testimony support the jury’s implicit finding that the cervical injuries were not permanent and other parts support their implicit finding that the lumbar injuries were not permanent.
II.
The trial court did err, however, in denying the motion in limine Ms. Sheffield filed in her effort to secure an order excluding any evidence regarding
1. The fact that some or all of [her] medical expenses are being paid by group or other insurance companies;
2. That the amount [she] is presently paying for doctor’s visits and prescriptions expenses is below the market rate due to [her] insurance coverages.
After Ms. Sheffield restated her motion ore tenus to exclude evidence regarding “either insurance or benefits
Denial of the motion cannot be squared with controlling precedent that bars introduction of evidence of collateral sources when timely objection is made. See, e.g., Gormley v. GTE Prods. Corp., 587 So.2d 455, 458-59 (Fla.1991). We explained in Rease v. Anheuser-Busch, Inc., 644 So.2d 1383, 1386-87 n. 3 (Fla. 1st DCA 1994):
As a rule of evidence, [the collateral source rule] “prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.” [Gormley, 587 So.2d] at 457. This is so because the introduction of collateral source evidence “misleads the jury on the issue of liability and, thus, subverts the jury process.” Id. at 458.
See also Parker v. Hoppock, 695 So.2d 424, 427 (Fla. 4th DCA 1997), review denied, 707 So.2d 1126 (Fla.1998); Williams v. Pincombe, 309 So.2d 10, 11 (Fla. 4th DCA 1975); Cook v. Eney, 277 So.2d 848, 849 (Fla. 3d DCA 1973). We are not concerned here with a situation like the one that obtained in State Farm Mutual Auto. Insurance Company v. Gordon, 712 So.2d 1138 (Fla. 3d DCA 1998). The trial court committed clear error in denying the motion in limine.
But it was Ms. Sheffield, during her case-in-chief, who first introduced evi
The jury heard nothing of the moneys Ms. Sheffield received from the settlement with the other driver or of the personal injury protection benefits Superior paid. But for her putting on evidence about free medical samples and her group insurance, Superior might well have decided to forgo asking questions on these subjects, as well, in order to avoid the risk of reversal for doing so. Superior put on no evidence concerning collateral sources other than sources Ms. Sheffield first testified to.
The trial court should have granted the motion in limine. But its failure to do so conferred no right on Ms. Sheffield to build error into the trial so as to guarantee two bites at the apple. See Perez v. State, 717 So.2d 605, 607 (Fla. 3d DCA 1998) (“We do not know and do not speculate as to ... what strategic considerations may have led him to introduce some of this evidence himself. We are convinced, however, that it would be contrary to Florida law and grossly unfair to grant him relief for errors which ... he, himself, invited.”).
Plainly, as the first to introduce evidence she now contends was prejudicial, Ms. Sheffield invited the error now invoked as a reason for a new trial. See Pope v. State, 441 So.2d 1073, 1076 (Fla.1983) (“A party may not invite error and then be heard to complain of that error on appeal.”); Lentz v. State, 679 So.2d 866 (Fla. 3d DCA 1996); Buggs v. State, 640 So.2d 90 (Fla. 1st DCA 1994). In denying the motion for hew trial, moreover, the trial judge expressly found that admission of evidence of collateral sources had proven harmless, even if error. On appeal, Ms.
Affirmed.
. Dr. Richards' opinion that Ms. Sheffield's injury was permanent was based primarily on the fact that symptoms persisted for more than six months. By the time of trial, however, Dr. Richards had not examined Ms. Sheffield for over two years.
. In finding that Ms. Sheffield had not suffered a permanent injury, the jury may have relied on testimony Dr. Rigoberto Puente-Guzman gave:
I cannot say with medical certainty there’s a limit on how far an injury will last. Usually when I see someone with an injury to soft tissue and I recommend treatment, the majority of the people in the first few months will get better. About twenty percent — eight percent of the people can have chronic symptoms for years after their initial injury and it can be indefinite. It can wax and wane. Some people get better in two years and say, look, I got better just doing activity and all that. Some people will have the symptoms on and off. How long will that be? I can’t tell you.
This testimony does not, of course, establish that Ms. Sheffield suffered a “[permanent injury within a reasonable degree of medical probability.” § 627.737(2)(b), Fla. Stat. (1995).
.The jury awarded damages for future (as well as past) medical care and loss of ability to perform household services over a prospective period of five years (rather than of more than 50 years as plaintiff advocated) but answered "No” to the question
Did Mary Ann Sheffield, as a result of the December 10, 1994 collision, suffer a permanent injury within a reasonable degree of medical probability?
Ms. Sheffield does not argue on appeal that the verdict is internally inconsistent, nor could she. See Odom v. Carney, 625 So.2d 850, 851 n. 1 (Fla. 4th DCA 1993) (finding argument that verdict was inconsistent in not finding permanent injury waived by "failure to object before jury was discharged”). See generally Perry v. Allen, 720 So.2d 614 (Fla. 1st DCA 1998).
See also Hamilton v. Melbourne Sand Transp., 687 So.2d 27 (Fla. 5th DCA 1997) (holding that an award of damages for a 43-year period was not inconsistent with a finding that the injury was not permanent).
. The trial court ruled that the motion in limine only covered evidence of collateral benefits available under automobile insurance policies and the group insurance policy Ms. Sheffield obtained through her employment. We need not decide whether Ms. Sheffield ever adequately stated an objection to evidence regarding free samples of medicine she received by virtue of her employment in a physician's office. Apart from the motion in limine, she did not object to admission of evidence regarding pharmaceutical samples she received from her employer.
. Ms. Sheffield also testified that her employer did not charge her for the portion of physical therapy her health insurance did not cover. The jury awarded Ms. Sheffield her past medical bills in full. She was not seeking additional physical therapy as part of her future medical expenses.
. Superior stipulated that Ms. Sheffield had a standing objection to evidence of collateral sources. On the record but after the fact, Superior also agreed that Ms. Sheffield had not waived her objection by raising the matter during voir dire and her opening statement. Superior is bound by this agreement and we do not hold otherwise.
Perhaps it made tactical sense for Ms. Sheffield to take the calculated risk of acclimating the jury in this way, given the trial court's erroneous ruling. See Porter v. Vista Bldg. Maintenance Servs., 630 So.2d 205, 206 (Fla. 3d DCA 1993) (holding opening statement did not waive objection); United States v. Garcia, 988 F.2d 965, 967-68 (9th Cir.1993). But statements of counsel are not evidence.
Dissenting Opinion
dissenting.
I respectfully dissent.
I.
There was substantial and uncontrovert-ed evidence presented in this case that the appellant, Mary Ann Sheffield (Sheffield), sustained a permanent injury as a result of the accident. Three (3) physicians, Dr. Lopez, Dr. Rigoberto Puente-Guzman,
The law in Florida is well recognized that after a party supports its assertions of permanency with expert testimony, the opponent of permanency, to avoid a directed verdict on the issue and have the jury decide the issue, must:
(1) present countervailing expert testimony;
(2) severely impeach the proponent’s expert; or
(3)present other evidence which creates a direct conflict with the proponent’s evidence.
Holmes v. State Farm, 624 So.2d 824 (Fla. 2d DCA 1993). Unless the opponent of permanency satisfies its burden, the opponent’s motion for directed verdict must be granted. Superior failed to do so in the instant appeal, and to the contrary, through its independent medical examiner, Dr. Bruce Richards, actually supported Sheffield’s position. Accordingly, the trial judge should have directed a verdict as requested by Sheffield on this issue.
The majority finds that the trial judge should be affirmed because of the experts’ disagreement as to which of Sheffield’s bodily functions was permanently injured. I do not find this to be compelling or persuasive, and apparently neither does Superior. At page 5 of Superior’s answer brief the sole basis advanced for affir-mance of the trial judge on this point is the following:
Furthermore, the trial court properly denied Appellant’s motion for directed verdict on the issue of permanency, as there was sufficient lay evidence in the form of a surveillance videotape for the jury to reject the expert testimony as to permanency.
(Emphasis added). Moreover, when arguing in the trial court in opposition to Sheffield’s motion for a directed verdict on this issue, Superior advanced as its sole argument the basis stated above. In view of Superior’s position, the majority, by affirming on issues not presented to the trial judge, or briefed by the parties, does violence to the traditional concept of our
The surveillance videotape of Sheffield does not support the trial judge’s denial of her motion for directed verdict on permanency as advanced by Superior. Such evidence does not provide a basis for submitting the issue of permanency to a jury. Jarrell v. Churm, 611 So.2d 69 (Fla. 4th DCA 1992). Moreover, the facts in the instant case are more compelling than those in Jarrell. Dr. Richards, Superior’s independent medical examiner, after testifying that Sheffield had suffered a permanent injury from the accident, testified that nothing on the videotape contradicted what he found on his examination of Sheffield. Thus, the only basis argued by Superior on this issue is not supported by competent substantial evidence and is directly contradicted by its retained independent medical examiner. The trial judge erred by failing to grant a directed verdict on this point.
II.
I also believe that the trial judge reversibly erred by overruling Sheffield’s motion in limine requesting exclusion of all evidence of collateral-source benefits received by her, and by failing to grant Sheffield’s motion for a new trial on the basis of harmless error.
In Gormley v. GTE Products Corp., 587 So.2d 455 (Fla.1991), the Florida Supreme Court unequivocally ruled that introduction of evidence of collateral-source benefits in a liability trial, over objection, is reversible error. The court recognized and pointed out that evidence of collateral-source benefits is inadmissible because such evidence could lead the jury to believe that a plaintiff is attempting to obtain a double or triple recovery, or that the plaintiff has already received sufficient compensation for the injury. Id. at 458. Accordingly, the court held that a trial court’s improper admission of collateral-source evidence, over objection, requires a new trial. Gormley has been followed by other districts, so that when evidence of collateral-source benefits has been admitted, over objection, error has been determined and reversal adjudged, without exception. Parker v. Hoppock, 695 So.2d 424 (Fla. 4th DCA 1997); Wackenhut Corp. v. Lippert, 591 So.2d 215 (Fla. 4th DCA 1991). Even before Gormley, many districts followed the rule promulgated by that opinion. Kreitz v. Thomas, 422 So.2d 1051 (Fla. 4th DCA 1982); Clark v. Tampa Elec. Co., 416 So.2d 475 (Fla. 2d DCA 1982), review denied, 426 So.2d 29 (Fla.1983); Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975).
In the instant case, Sheffield’s attorney properly and timely objected to the presentation of any evidence of collateral-source benefits. Notwithstanding that Gormley is a well-known precedent, decided some eight years ago, the trial judge was convinced, apparently by Superior, to admit collateral-source evidence incorrectly. This was error that impels reversal and a new trial for Sheffield.
The majority affirms on this issue because Sheffield is described as having “invited error” and, thus, failed to preserve this point properly for appeal. But this issue was not presented by Superior to the trial court when the motion for new trial was argued and, most significantly, is not argued to this court by Superior. Superi- or’s sole argument is that the trial judge should be affirmed on the basis of harmless error. Superior’s position is stated at page 5 of its answer brief as follows:
The jury awarded the full amount of past medical damages requested by Ap*540 pellant at trial, and any effect of collateral sources on future damages was minimized by Appellant herself. Therefore, because the jury’s verdict was not affected by the admission of evidence of collateral sources, any error in such admission is harmless.
(Emphasis added). The parties stipulated that this issue would not be waived after the trial judge incorrectly denied Sheffield’s motion in limine. If Superior had thought the issue unpreserved for appeal, surely some mention would have been made by it in its brief. The stipulation should be enforced as the parties understand it, and the impact of the error on the trial should be addressed by this court.
When faced with the trial judge’s incorrect ruling, Sheffield had every right to attempt to defuse the issue and initially present collateral-source evidence, as sanctioned by the parties’ stipulation, to the jury. The Third District recognized and explained this principle in Porter v. Vista Building Maintenance Services, Inc., 630 So.2d 205 (Fla. 3d DCA 1993). In Porter, the plaintiff in a slip-and-fall case filed a pre-trial motion in limine seeking to prohibit the defendant from making reference to, or introducing any evidence of, the plaintiffs previous abuse of alcohol. The trial court erroneously denied the motion, and the plaintiffs attorney mentioned his client’s previous alcoholism in his opening statement in an attempt to defuse anticipated prejudice before the evidence was introduced by the defendant. On appeal, the defendant argued that plaintiffs counsel had waived the objection, or else rendered any resulting error harmless by introducing the alcoholism himself. The court pointed out the rule in such circumstances:
[Pjlaintiff s counsel’s attempt to diminish the prejudicial impact of the damaging evidence did not, contrary to appellee’s contentions, waive the error, or render the error harmless. A party cannot be penalized for his good-faith reliance on a trial court’s incorrect ruling. See John Hancock Mut. Life Ins. Co. v. Zalay, 522 So.2d 944 (Fla. 2d DCA 1988) (where evidentiary ruling is subsequently found to be erroneous, litigant must be granted an opportunity to present his case under correct ruling).
Id. at 206.
Significantly, the error in Porter did not involve a principle and precedents as well-defined and recognized as in the instant case. In Porter, rules of elementary evidence were erroneously applied. Here, a landmark decision and numerous other appellate decisions of long standing were ignored, and now such error is affirmed based upon Sheffield’s failure to preserve. It is doubtful that any speaker at a legal seminar held in the past twenty years relating to the subject of an offset for collateral-source benefits under Florida law has failed to include copious references to Gormley and its progeny, or to earlier, similar appellate precedents. Thus, no excuse exists for trying a case on a misapplication of such a universally known and accepted principle of law.
If the admitted error of the trial judge is considered on its impact on the trial rather than on the basis of nonpreservation, the burden of proving that the error was “harmless” is borne by Superior, which induced the trial court to commit reversible error. Gormley, 587 So.2d at 455. Only if Superior demonstrates to this court that the improperly admitted collateral-source evidence clearly was not prejudicial has its burden been met. Beyond doubt, the Florida Supreme Court in Gormley came very close to saying that the admission of collateral-source evidence, over objection, is per se prejudicial. However, the Fourth District, in a ease decided after Gormley and in compliance with it, concluded that such error is “per se prejudicial.” Wackenhut Corp., 591 So.2d at 215.
Superior’s counsel knew, or should have known, of the principle prohibiting admission of evidence of collateral-source benefits. As a result, the cries of harmless error now made should be disallowed on
While the majority’s concern for not allowing Sheffield to manipulate the legal system to allow “two bites at the apple” is commendable as a general rule, in the context of the instant appeal the “mark is missed.” The majority’s decision will encourage litigants to seek clever misapplications of law to gain an advantage, and then after so doing, if confronted by appeal, admit to error and claim it to be harmless, or claim that the opponent waived the error while struggling within the confines of a patently unfair proceeding. In the instant case, if the error is harmless, why did Superior oppose Sheffield’s motion in limine? The answer is evident: because the admission of evidence of collateral-source benefits was expected to have a “dynamite” impact on the jury favorable to Superior. Such advocacy should not be sanctioned by this court and certainly should not be encouraged, which will be the inescapable effect of the majority’s decision.
Last, but not least, it is interesting to note that the majority cites as authority for its position the following three criminal cases that are not even remotely analogous to the instant case, and overlooks the well-reasoned opinion in Porter, 630 So.2d at 205. Pope v. State, 441 So.2d 1073, 1076 (Fla.1983); Lentz v. State, 679 So.2d 866 (Fla. 3d DCA 1996); Buggs v. State, 640 So.2d 90 (Fla. 1st DCA 1994). Not one of these criminal cases involves a factual situation, as here, where a correct ruling was sought but denied, and Sheffield attempted to deal with the incorrect ruling as best she could.
In summary, Sheffield was denied a fair trial because the principle enunciated by Gormley was not followed, for some unfathomable reason. Sheffield should not be punished for trying to make the best of a situation, not of her own making, that clearly prejudiced her case.
I would reverse and remand for a retrial on damages and instruct the trial judge to grant Sheffield’s motion for directed verdict on permanency.
. The majority publishes as footnote 2 of the opinion a portion of Dr. Rigoberto Puente-Guzman’s general testimony on permanency, but omitted, however, the specific testimony he gave on permanency relating to Sheffield's injuries as follows:
Q. In your opinion, based on reasonable medical certainty, has Ms. Sheffield suffered a permanent injury as a result of that automobile accident?
A. Yes.
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Q. Treatment regimen that you just described for us, since her injuries are permanent, will that treatment or similar treatment be on a permanent basis as well?
A. Yes.
This testimony does establish that Sheffield suffered a "[pjermanent injury within a reasonable degree of 'medical probability." § 627.737(2)(b), Fla. Stat. (1995).
Dissenting Opinion
dissenting.
I dissent to the majority’s failure to grant appellant’s motion for rehearing.
Appellant filed the instant case expecting to, and entitled to have, her case decided under existing law. Through no fault on her part, appellant was forced to have her legal rights adjudicated under an erroneous principle of law espoused as correct by appellee in the trial court. Then appellant appeals the error to this court and is
Also, I would certify this case to the Florida Supreme Court as being expressly and directly in conflict with Gormley v. GTE Products Corp., 587 So.2d 455 (Fla.1991); and Wackenhut Corp. v. Lippert, 591 So.2d 215 (Fla.4th DCA 1991).
I would grant appellant’s motion for rehearing for the reasons stated herein.
Rehearing
ON MOTION FOR REHEARING
Appellant’s Motion For Rehearing is denied.