Florida Case Law Update

Author: Damian M. Fletcher

Guest Editor: Jeremy Freedman

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March 5, 2018 1:57pm


Florida’s Collateral Source rule, Sec. 768.76, does not require a party to present evidence that the period covered by disability payments is the same as the period covered by the jury’s award of past lost wages.

A Seminole County plaintiff filed suit for injuries sustained in a motor vehicle accident where she was rear-ended.  The plaintiff claimed neck, shoulder, low back and knee pain, as well as depression resulting from her injuries. In addition to her medical bills, the plaintiff claimed lost wages and loss of future earning capacity. Defendants stipulated to liability but contested causation and damages. A jury returned a verdict as follows: Past medical expenses $50,000; Future medical expenses $25,000; Past lost earnings $50,000; Future lost earnings $0.

After trial, defendants asked the trial court to set-off certain collateral source payments received by the plaintiff in the five years between the accident date and the trial. Defendants’ requested set-off  included PIP and social security disability payments pursuant to section 768.76, Florida Statutes (2010). Defendants therefore requested the Court reduce the jury award of $125,000 to a $25,000 net verdict.  The trial court set-off the PIP payments. The trial court, however, declined to set-off $93,569.40 in social security disability payments, speculating that the jury awarded $50,000 for the first year after the crash, rather than for all five years.

Florida’s collateral source rule codified in section 768.76, Florida Statutes (2010), provides:

(1) 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 court 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 the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement 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 the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

(2) For purposes of this section:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

  1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

On appeal, the Fifth District Court of Appeal agreed with the defendants. e Florida’s collateral source rule does not require a party to present evidence that the period covered by the disability benefits matches the period covered by the jury’s award of past lost wages.

The Fifth District therefore rejected plaintiff’s argument there should be no set-off because the legislative purpose behind the collateral source rule is to avoid a “duplication of benefits.” Instead, the court held section 768.76 only requires evidence of a plaintiff’s receipt of benefits from a collateral source for losses sustained. It does not, however, require a claimant to further prove each dollar of a collateral source was actually awarded by the jury.



Including a potential medical lien-holder on settlement draft does not convert acceptance of an offer to a counter-offer effectively invalidating the agreement in Florida.


Plaintiff Marin was injured in an automobile accident involving, Blanco, an insured of Infinity Auto Insurance Company (“Infinity”). Marin was treated at Jackson Medical Center (JMH) for his alleged injuries.  Thereafter, Infinity sent Marin’s attorney a letter tendering the $10,000 bodily injury policy limit to settle Marin’s bodily injury claim against Blanco. The letter included a standard release and a $10,000 check made payable to Marin, his attorney, and JMH. In the letter, Infinity also explained it included JMH on the check because JMH appeared to have a lien for medical services provided to Marin. Infinity, however, offered to reissue the check if the lien had been resolved. Marin’s attorney did not respond to Infinity’s letter, nor was the settlement check cashed..

Marin subsequently retained a new attorney who sent a letter to Infinity demanding Infinity tender its full policy limits by a specified date.  Before the deadline expired, Infinity sent a letter to Marin’s new attorney which specifically stated Infinity agreed to meet [Marin’s] settlement demand.  The letter also included a $10,000 check made payable to Marin, Marin’s attorney, and JMH. Included with the letter, Infinity provided a release with an open invitation to submit modifications to the settlement draft. The letter again explained JMH had been listed as a payee on the settlement check because JMH appeared to have a lien for the medical services. However, Infinity offered to reissue the check if the lien was resolved.  Marin’s attorney treated the payment as a counteroffer and rejected the settlement payment because it included JMH on the settlement draft.  After a series of discussions between Infinity and Marin’s attorney, Infinity twice reissued the check without including JMH as a co-payee.  Both payments were rejected by Marin.

Infinity subsequently filed a Motion to Enforce Settlement. The trial court granted Infinity’s motion and dismissed Marin’s bodily injury claim. The court explained Marin’s initial demand letter constituted an offer to settle his bodily injury claim. Marin appealed.

The sole issue for the Third District Court of Appeal in Miami was whether Infinity’s initial response to the demand for settlement constituted an acceptance or a counteroffer.  Under Florida law, settlement agreements are governed by contract law. See Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985).  To form a binding contract there must be an offer and acceptance.” Fonseca, 3 So. 3d at 417. An acceptance must contain an assent or agreement to the essential terms contained in the offer. Nichols v. Hartford Ins. Co. of the Midwest, 834 So. 2d 217, 219 (Fla. 1st DCA 2002). To determine whether a contract was formed, courts use an objective test, which focuses on what the parties said, not on what they meant. Robbie, 469 So. 2d at 1385.

The Third District found the parties agreed  Marin’s demand letter only contained two essential terms: (1) Infinity must tender the $10,000 bodily injury liability limit in the form of a settlement draft; and (2) Infinity must do so by a certain date. Infinity timely responded to Marin’s letter, agreeing to meet all of Marin’s settlement demands. Infinity, therefore, legally accepted Marin’s offer to settle. See Erhardt v. Duff, 729 So. 2d 529, 530 (Fla. 4th DCA 1999) (holding that a letter agreeing to meet the demands in a settlement offer constitutes an acceptance).

The Third District also agreed with the trial court that Infinity’s inclusion of JMH on the settlement check did not add a new essential term to the agreement, converting Infinity’s acceptance into a counter-offer.  Infinity’s inclusion of JMH as a co-payee on the settlement check was also consistent with the information provided by Marin’s attorney.  Under Florida law, a hospital lien attaches at the moment an injured person is admitted as a patient. See State Farm Mut. Auto. Ins. Co v. Palm Springs Gen. Hosp. Inc. of Hialeah, 232 So. 2d 737, 738 (Fla. 1970). Although JMH had not perfected a lien against Marin at the time of the settlement request, “a tardy filing does not invalidate the hospital lien, but only results in the lienor or creditor being an unsecured creditor, at least until such time as the lien is filed.” See Public Health Trust of Dade Cty. v. Carroll, 509 So. 2d 1232, 1234 (Fla. 4th DCA 1987).


The Third District affirmed the trial court’s order finding the parties entered into a valid settlement agreement.  It held the inclusion of JMH as a co-payee on the settlement check did not convert Infinity’s unequivocal acceptance of the essential terms of the offer into a counteroffer. This was especially so where: 1) it was unclear whether there remained a balance for the services JMH rendered for Marin’s treatment; 2) JMH was entitled to file a lien for any unpaid balance; 3) Marin did not dispute JMH had a lien for any unpaid balance; 4) Marin did not notify Infinity JMH did not intend to pursue its lien rights; and 5) Infinity offered to remove JMH as a co-payee if JMH’s lien was resolved.



State Farm v. Harmon, 43 Fla. L. Weekly D238 (Fla. 5th DCA January 26, 2018):

Plaintiff sued her UM carrier, State Farm, for benefits following a collision with an uninsured driver. State Farm stipulated to liability regarding the negligence of the adverse driver, but contested injury causation and related damages. After a jury trial on damages,  plaintiff was awarded $685,800 which included $158,000 for past medical expenses and $100,000 for future medical expenses. State farm moved for a new trial or remittitur regarding the $100,000 future medical expense award. The trial court denied State Farms motion. State Farm appealed.

The Fifth District Court of Appeals found the trial court erred in denying State Farm’s motion for new trial or for remittitur regarding the jury’s award of $100,000 for future medical expenses. The Fifth District noted plaintiff’s physician testified she would need certain care in the future such as routine follow-up visits on a schedule similar to the one followed post-accident. Plaintiff’s doctor also agreed his prior billing could reflect the cost of those probable future visits.

Notably, however, plaintiff’s doctor testified plaintiff may need different modalities of treatment in the future that “might include” trigger point injunctions, and “might possibly” be a benefit along with other treatments that “might be indicated” in the future. In this regard, plaintiff’s doctor agreed plaintiff’s past medical bills totaling $35,947 could define the costs of the possible treatments in the future.

Florida law restricts recovery of future medical expenses to those that are “reasonably certain” to be incurred. As such, the Fifth District held there was no evidentiary basis for the potential future medical expenses claimed by plaintiff.

The Fifth District further held the trial court erred in allowing an award for future care other than routine follow-up visits. The Fifth District explainted this is because plaintiff’s doctor offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of potential additional future medical care. In Florida, the Fifth District has mad e it clear, there must be an evidentiary basis upon which the jury with reasonable certainty can determine the amount of future medical expenses.

While the Fifth District conceded there was evidence plaintiff would probably need future care, there was no competent evidence upon which a reasonable jury could rely to support an award of $100,000 for future medical expenses. Accordingly, the Fifth District reversed that portion of the final judgment and remanded the matter with instruction to either grant State Farm’s motion for remittitur, or conduct a new trial limited to a determination of plaintiff’s future medical expenses.

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