By: Kimberly Nuñez, Esq.
In its recent opinion in Auto Club v. Kenneth Babin, 41 Fla. L. Weekly D2603b (Fla. 5th DCA 2016), the Fifth District Court of Appeal reiterated that only future damages which are reasonably certain to occur in the future are recoverable. Plaintiff can recover the reasonable value or expense of future medical care or treatment only if it is reasonably certain to be incurred in the future. The Fifth District Court of Appeal went on to say that just as with future medical expenses, damages for the loss of plaintiff’s future earning capacity must also be established with reasonable certainty.
In order to recover future medical expenses, not only must plaintiff establish, through direct evidence, that such expenses are reasonably certain to be incurred in the future, but plaintiff must also provide an evidentiary basis upon which the jury can, with reasonable certainty, determine the amount of those expenses. The mere possibility of incurring medical expenses in the future is too speculative to support future medical expenses, and does not meet the reasonably certain to be incurred standard.
In order to recover loss of future earning capacity, plaintiff must show complete disability from further gainful employment, and present sufficient evidence that the amount of future income is reasonably certain to occur in the future. This is measured by plaintiff’s diminished ability to earn income in the future rather than an actual loss. (emphasis added). The jury’s decision must be based on all relevant factors, such as, age, health, habits, occupation, surroundings, and earnings before and after the injury.
The issue presented in Auto Club, was whether plaintiff presented sufficient evidence to establish that future medical expenses, past lost wages, and loss of future earning capacity was reasonably certain to occur in the future. Kenneth Babin (“Babin”) was injured in a multicar rear-end collision, and sustained injuries to his low back. Babin sued his underinsured motorist carrier, Auto Club Insurance (“Auto Club”), claiming damages for future medical expenses related to the possibility of needing a future low-back surgery, past lost wages, and loss of future earning capacity as a result of the accident. The case went to trial and Auto Club moved for a directed verdict on the issue of future medical expenses, loss of future earning capacity, and past lost wages, but the trial court denied Auto Club’s motion. In support of his future medical expenses claim, Babin’s medical expert testified that Babin “might need surgery at some point”. In support of his future earning capacity claim, Babin testified that at the time of this accident, he intended to start a scuba-diving business, which he could no longer do, and expected to make $28,000 a year. The jury awarded Babin $160,000 in future medical expenses, $72,000 in lost earning ability for future years, and $70,000 in past lost earnings. The trial court entered final judgment in favor of Babin, which Auto Club appealed arguing that the trial court erred in denying Auto Club’s motion for directed verdict on the issues of future medical expenses, past lost wages, and loss of earning capacity in the future. The Fifth District Court of Appeal agreed and reversed the jury’s award on Babin’s claims for future medical expenses, past lost wages, and future earning capacity, and remanded the case for a new trial solely on the issue of future medical expenses directing the trial court to exclude any evidence regarding the future low back surgery.
The Fifth District Court of Appeal held that the evidence presented failed to establish that Babin’s future low back surgery was reasonably certain to occur, failed to present sufficient evidence that he was completely disabled from further gainful employment, and failed to establish his future income was reasonably certain to occur.
The Court reasoned that mere possibility and speculation regarding future damages is not enough to meet the reasonably certain standard to recover future damages. It is also plaintiff’s burden to present sufficient evidence for a jury to determine, with reasonable certainty, the amount of future damages. As such, citing this ruling could prevent a plaintiff’s future damages claims from ever reaching the jury.