21 Fla. L. Weekly Supp. 879d
Online Reference: FLWSUPP 2109HJOHInsurance — Personal injury protection — Coverage — Medical expenses — Deductible — Amendment to PIP statute that altered manner in which deductible is calculated and decreased maximum deductible allowable is substantive change that cannot be applied retroactively to calculation of deductible under policy that was executed prior to amendment — Where it is impossible to determine whether jury, having heard evidence of deductible, did or did not apply deductible to expenses before rendering verdict, new trial is required — Trial court erred in concluding that jury’s verdict was not supported by evidence where jury did not find all medical bills necessary and reasonable
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. MEDICAL CARE OF FORT LAUDERDALE, A/A/O HENRIETTA JOHNSON, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-042707 CACE. L.T. Case No. 07-010358 (54) COCE. March 31, 2014. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Lisa G. Trachman, Judge. Counsel: Michael Neimand, UAIC, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.
(Before BOWMAN, HAURY AND POWELL, JJ.)
(BOWMAN, Judge.)OPINION
THIS CAUSE came before the court sitting in its appellate capacity, upon the Appellant’s, United Automobile Insurance Company’s (“UAIC”), timely filed notice of appeal. After having considered the briefs of the parties, the record on appeal, applicable case law, and being otherwise fully advised in the premises, this Court finds as follows:
Henrietta Johnson (“Insured”) had an automobile policy with UAIC that contained a $2,000.00 deductible. On May 6, 2003, the Insured was in an automobile accident and subsequently sought medical treatment from Medical Care of Fort Lauderdale (“Clinic”) and assigned all of her rights to PIP benefits under the policy to the Clinic. Thereafter, the Clinic filed suit against UAIC asserting that UAIC denied coverage of its medical bills claiming that said medical bills were not compensable.
On March 18, 2010, after trial, the jury entered its verdict in favor of the Clinic in the amount of $2,064.07. The amount of the jury award was confusing to all parties; it was uncertain how the amount was calculated. The Clinic moved for the entry of final judgment and a hearing on the motion was held on June 16, 2010. The court entered an order on September 20, 2010, determining that the jury had taken the deductible into consideration in its award. In the court’s ruling, it said:
Neither party requested a jury instruction in this case, nor was any instruction necessary. Instead, the Court instructed the jury to render a verdict based upon the evidence before it, which [is] what the jury did — it heard evidence of the deductible and applied that evidence to reduce the amount of the damages claimed.
The court then reduced the verdict by 80% and arrived at the total of $1,651.25. On September 29, 2010, UAIC moved for a rehearing which was denied by the trial court, after which UAIC filed the instant appeal.
UAIC’s first argument is whether the calculations used to determine the award should have been calculated in accordance with Florida Statute § 627.739 as it was written prior to October 2003, or calculated using the post-October 2003 amendment to the statute retroactively. Where the issue before the appellate court involves the interpretation of a statute it is subject to de novo review. See Tasker v. State, 48 So. 3d 798, 804 (Fla. 2010) [35 Fla. L. Weekly S658b].
The Clinic claims the post-October 2003 statute should be applied retroactively to this case because the amendment to the statute is strictly procedural and not substantive. However, the changes to the law not only alter the manner in which the deductible is calculated, but it also decreases the maximum amount allowable for a deductible to $1,000.00.
Alternatively, the Clinic suggests that the calculation of the jury award should be the award minus 80% to total $51.25.
This Court will not apply the statute retroactively because not only does it find that the amendment is substantive, but it also finds that the insurance policy in effect was executed prior to October 2003. “[T]he statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]. Therefore, this Court finds that the calculations proscribed by the pre-October 2003 statute are applicable, which would be: the award, minus 80%, minus the deductible.
UAIC’s second argument is whether the trial court was correct in finding that the jury verdict included an application of the $2,000.00 deductible. In support of its argument UAIC sites to the Florida Supreme Court ruling in Carter, which said; in pertinent part, that, “if the jury was not instructed to apply the deductible, it is axiomatic that it must be presumed that they did not do so.” Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000) [25 Fla. L. Weekly S1072a] (Absent a finding to the contrary, juries are presumed to follow the instructions given them. See Sutton v. State, 718 So. 2d 215, 216 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D1791b]). (IB at 19, RB at 1).
The Clinic follows the trial court’s reasoning that, “[t]he jury was presented with evidence of the deductible and there is no basison which either the trial court or this Court can conclude that the jury did not take that evidence into consideration.” (AB at 18). Further, the Clinic stated that, “[t]he trial court was correct in assuming that the jury consider[ed] and weighed] the evidence,’ as it was instructed to do… and the evidence include evidence of the deductible. (TT at 652-653).” (AB at 18). Therefore, according to the Clinic, “There is no longer a deductible to be subtracted, because the jury considered it. They had to have. They had the evidence. Therefore, there is no deductible anymore.” (Hrg T 664).
The trial court instructed the jury “[i]n reaching your verdict, you should consider and weigh the evidence, decide the disputed issues of fact, and apply the law in which I shall instruct you to the facts, as you find them, from the evidence.” (TT 652-653). The trial court did not instruct the jury to apply the deductible. The Clinic argues that, “[i]t is of no import that the jury was never instructed to apply or deduct the deductible in its calculations, as United argues. The fact remains that the jury had evidence of the deductible before it and there is no reason to believe that the jury did not consider that evidence in the same manner that it considered all of the other evidence.” (AB at 17).
The Clinic, after acknowledging that a ruling from another circuit’s county court case has no binding on this Court, sites to a Miami-Dade case similar to the instant case, Fornes v. UAIC, Case No. 08-3449 CC 26 (04) (Cnty. Ct. Miami-Dade Cnty., July 20, 2012). The July 20, 2012, order granting a new trial in Fornes, stated:
[T]he Court determines that it is impossible to determine whether [the] jury did or did not apply the deductible and render its verdict in accordance therewith.
Clearly, if the jury applied the deductible, having heard evidence of the deductible, to apply the deductible again would be manifestly unfair and erroneous.
Therefore, given that it is impossible to determine whether the jury, having heard evidence of the deductible, did or did not apply it before rendering its verdict . . . the Court determines that a new trial must be granted.
This Court finds that it is impossible to determine whether the jury, having heard evidence of the deductible, did or did not apply it before rendering its verdict, and therefore will remand the cause for a new trial.
UAIC’s last argument to this Court is whether the trial court was correct in finding that the jury’s verdict was not supported by evidence when it found the charges were reasonable. The trial court found that “[t]he jury heard no evidence that would support a verdict in the amount of $2,064.07. Thus, the only conclusion that can be drawn from the verdict is that the jury took the deductible into consideration.” Appellate courts look for “competent substantial evidence” or a “rational basis” to support the verdict in jury trials. Helman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187 (Fla. 1977) (“if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the District Court’s opinion as to its appropriateness.” From this standard follows the corollary that an appellate court will not reevaluate the evidence and substitute its judgment for that of the fact finder.)
The jury form showed that the jury did not find all of the medical bills necessary and reasonable and did not award the total amount asked for by the Clinic. UAIC presented testimony of Dr. Mathesie that only $100 was reasonable. The jury was free to make its own determination as to its verdict.
A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony.
Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011) [36 Fla. L. Weekly S211b].
The jury could rely upon the evidence submitted by the Clinic or the opinion of Dr. Mathesie that only $100 was reasonable because the remaining bills were not supported by the medical records, or they could do their own review of the evidence and find that none of the bills are reasonable. Here, the jury clearly determined that some of the bills were not reasonable since they did not award the full amount sought by the Clinic.
Accordingly, for the above-stated reasons and after due consideration, it is
ORDERED AND ADJUDGED that the trial court’s “Order Granting Plaintiff’s Motion for Entry of Final Judgment,” dated September 20, 2010, and the “Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs,” dated April 6, 2011, are VACATED and this cause of action is REVERSED and REMANDED for proceedings consistent with this opinion. (HAURY AND POWELL, JJ., concur.)
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