Jeffrey James WHITE, Appellant,
v.
George WESTLUND and Delores Westlund, His Wife, Appellees.
District Court of Appeal of Florida, Fourth District.
*1149 Michael B. Davis of Paxton, Crow, Bragg, Smith & Keyser P.A., West Palm Beach, for appellant.
Dewey H. Varner and Allen R. Seaman of Varner Stafford Cole & Seaman, Lake Worth, for appellees.
*1150 PER CURIAM.
Jеffrey James White, the defendant in the trial court, appeals a final judgment entered on a jury verdict in favor of George and Delores Westlund arising out of an automobile accident. We affirm.
EVIDENCE OF FUTURE MEDICAL CARE
White contends the trial court erroneously allowed expert testimony regarding the need for the following future operative procedures that may be required by George Westlund: (1) ankle fusion; (2) knee replacement; and (3) leg amputation. White maintains such testimony should have been stricken because it was not expressed in terms of a reasonable certainty.
Specifically, White takes the position that, unless an expert can testify that the need for a future operative procedure is reasonably certain, that testimony is inadmissible. In support, White cites a line of decisions holding that expert testimony which is couched in terms of a "possibility" that the plaintiff will need future surgery shоuld not have been admitted at trial because such testimony is speculative and therefore not probative of future damages. See Gup v. Cook,
Long ago, our supreme court established that only those future mediсal expenses "reasonably certain" to be incurred are recoverable as damages in a personal injury action. Loftin v. Wilson,
As noted above, several decisions out of the first district lean toward the view that testimony from an expert that future surgery is "possible" or "might" be required is inadmissible because it is merely speculation and thus not probative of future damages. Gup; 3-M Corp.; Crosby. However, a close examination of those cases indicates that the court's primary concern was that there was no other evidence from which a jury could infer that the need for such procedure was reasonably certain.
Other Florida courts, including the supreme court and this cоurt, have held generally that, where there is sufficient evidence from which a jury could infer a need for future medical treatment with reasonable certainty, an award of future medical expenses *1151 is proper. See Sullivan v. Price,
In Vitt v. Ryder Truck Rentals, Inc.,
Implicit in the authorities recited above is the view that whatever qualification is placed on thе opinion by the expert (i.e., surgery is possible or likely) goes to the weight of the opinion, and not its admissibility. Therefore, we agree that a medical expert may testify that future medical procedures are "possible" or "likely," and need not phrase an opinion in terms of such surgery or treatment being "reasonably necessary." See Vitt v. Ryder Truck Rentals, Inc., Consistent with instructions 6.1(a) and 6.2(c), whether the plaintiff has satisfied his burden of proving that such future operative procedures are reasonably necessary is an issue for the jury to decide so long as there is competent evidence upon which the issue may be submitted to the jury. Therefore, wе find no error here in the admission of the evidence in question.
EVIDENCE ON LIABILITY ISSUE
Next, White seeks reversal on the grounds that the trial court erred in admitting evidence regarding the circumstances surrounding the accident that caused Mr. Westlund's injuries; in particular, he cites evidence that he was driving in reverse, at a high rate of speed, in a residential neighborhood, when he struck Westlund. He claims that, because he admitted liability, this evidence was logically irrelevant and highly prejudicial.[2]
Whether evidence is logically relevant is controlled by section 90.401, Florida Statutes (1991), which states, "Relevant evidence is evidence tending to prove or disprove a material fact." All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, or unless otherwise excluded by law. §§ 90.402, 90.403. Moreover, trial courts exercise broad discretion in matters relating to the admissibility of relevant evidence, and where a court has weighed probative value against prejudicial impact before *1152 reaching its decision to admit or exclude evidence, that ruling will not be overturned absent a clear abuse of discretion. Trees v. K-Mart Corp.,
In most instances, evidence describing the details of an accident is logically relevant and admissible, even where liability has been admitted, to place the extent of injuries suffered by the plaintiff, as well as the degree of pain endured, in the proper context. But because trial judges are bound to apply the rules of admissibility set forth abоve, the extent of information that may be received in evidence will vary depending upon the circumstances of each case. Here, Westlund testified he has nightmares about the accident once a week, in which he "could see the car coming at [him]," and he testified he is now terrified of driving or even riding as a passenger in a car. Since Westlund's claim for damages for mental anguish rests at least in part on his recurring nightmares about the accident, the bizarre nature of how that accident occurred being struck by an automobile driven in reverse at a high rate of speed wаs relevant to prove, and probative of, the degree of his suffering and damages. The trial court carefully weighed these considerations, and we conclude no abuse of discretion has been shown in admitting this testimony.
COLLATERAL SOURCE SETOFF
Finally, appellant challenges the trial court's refusal to award a setoff for future disability (collateral source) benefits against the jury's verdict. He claims he was entitled to such a setoff pursuant to section 768.76, Florida Statutes (1987). Appellees respond in the alternative that: (1) section 627.7372, Florida Statutes, not section 768.76, governs the admissibility of collateral sources in аutomobile accident cases; and (2) even if section 768.76 is the proper section, that section does not provide for a setoff for future collateral source benefits.
Section 768.76(1) provides:
In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the сourt shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to him, from all collateral sources; however, there shall be no reduction for collateral sources for which а subrogation right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of his injury. [e.s.]
And section 627.7372(1) reads:
In any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benеfits received by the claimant from any collateral source. [e.s.]
Section 768.76 is contained in Part III of Chapter 768, which governs damages in negligence actions. Section 768.71, states that, "[e]xcept as otherwise specifically provided, this part applies to any action for damages, whether in tort or in contract." (emphasis added). Section 768.76, titled "Collateral sourсes of indemnity," provides that it applies to any action "to which this part applies."
Section 627.7372, on the other hand, is also entitled "Collateral sources of indemnity," and it specifies that, "[i]n any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle,... ." (emphasis supplied). Because section 627.7372 is "specifically" directed at tort actions involving motor vehicles, the "except as otherwise specifically provided" language of section 768.71 is triggered, rendering section 627.7372 the more appropriate in automobile accident cases.
This conclusion is supported by Florida Standard Jury Instructions (Civil) 6.13 and *1153 the committee notes contained therein. Under 6.13, separate jury instructions are established for tort actions generally (6.13), and for actions involving motor vehicles in particular (6.13b), both of which are modeled after sections 768.76 and 627.7372, respectively. The committee notes that follow explain that "6.13b not 6.13a should be given in all cases involving actions for personal injury or wrongful death arising out of the ownership, operation, use or maintenance of a motor vehicle.... In all other cases, reductiоn for collateral source payments should be made ... pursuant to § 768.76, ... and 6.13a." (emphasis added). Thus, if the jury is to be given instruction 6.13b in automobile accident cases, which is patterned after section 627.7372 (not section 768.76), it follows that the former section, not the latter, applies here.
The plain lаnguage of section 627.7372 speaks in terms of collateral source benefits already obtained: "the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant." (emphasis added). Thus, it necessarily follows that this section was not intended to permit a setoff for future collateral sources. In fact, this court has held as much. See Jeep Corp. v. Walker,
Even assuming section 768.76 applied, as noted, that section provides that "the court shall reduce the amount of any award by the total of all amounts which have been paid for the benefit оf the claimant, or which are otherwise available to him, from all collateral sources." (emphasis added). Appellant interprets the language of the underscored portion to mean that this section applies to "those benefits not yet paid but payable in the future."
However, the portion of section 768.76 quoted abоve indicates that, in order to have collateral source benefits set off against an award, those benefits must either be already paid ("amounts which have been paid") or presently earned and currently due and owing ("otherwise available to him"). In fact, the term "available" means "Accessible for use: at hand,"[3] connоting a present, rather than a future, application. And, furthermore, the term "collateral source" is defined in subsection (2) as those payments "made" to the claimant; nowhere does that definition include payments that may be made in the future. Hence, it follows that appellant's interpretation of this section as applying to both past and future benefits is strained.
Finally, and perhaps most importantly, Florida courts interpreting this section, as well as its predecessor [section 768.50], have implicitly, if not expressly, held that future earned disability benefits cannot be set off from an award as a collateral sourсe under section 768.76. See Florida Physician's Ins. Reciprocal v. Stanley,
Based on the foregoing analysis, we affirm.
DELL, C.J., and ANSTEAD and HERSEY, JJ., concur.
NOTES
Notes
[1] 6.1(a) and 6.2(c) provide:
You should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate him for such [loss] [injury] [or] [damage], including any such damage as (claimant) is reasonably certain [e.s.] to [incur] [experience] in the future. You shall consider the following elements:
* * * * * *
Medical expenses: The reasonable [value] [or] [expеnse] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) [for his wife] in the past [or to be so obtained in the future].
[2] Notably, the trial court excluded some evidence of liability on this basis, namely, that White threw a beer can out the window.
[3] Webster's II New Riverside University Dictionary 141 (1984).