         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


AUTO CLUB INSURANCE COMPANY
OF FLORIDA,

              Appellant,

 v.                                                   Case No. 5D15-1337

KENNETH BABIN,

              Appellee.

________________________________/

Opinion filed November 18, 2016

Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.

Douglas M. Fraley, of Molhem & Fraley,
P.A., Tampa, for Appellant.

Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A.,
Orlando, for Appellee.


BERGER, J.,

      Auto Club Insurance Company of Florida (Auto Club) appeals a final judgment

entered in favor of Kenneth Babin for underinsured motorist coverage based on injuries

he suffered in an automobile accident. Auto Club argues the trial court erred when it

denied Auto Club's motion for directed verdict on the issues of future medical expenses
for low back surgery, past lost wages, and loss of earning capacity in the future. We

agree and reverse.

        Babin, age 63, was injured in a multicar rear-end collision. The accident occurred

on June 14, 2010, when a car driven by Melvin Scott rear-ended the car located behind

Babin, which, in turn, rear-ended Babin’s vehicle. Babin sued Scott and Auto Club, his

underinsured motorist carrier. Auto Club did not deny that Scott was negligent but

disputed the amount of damages. Babin asked to be compensated for future surgery to

his lower back, for past lost wages, and for the loss of his ability to make future earnings

from a scuba-diving business he had planned to start with a friend prior to his accident.

        Following a jury trial, Babin was awarded $120,000 in past medical expenses,

$70,000 in past lost earnings, $160,000 in future medical expenses, $72,000 in lost

earning ability for future years, $15,000 for past pain and suffering, and $15,000 for future

pain and suffering. Only the damages awarded for future medical expenses, past lost

earnings, and future earning capacity are in dispute. As to those claims, Auto Club argues

the trial court erred in failing to grant its motion for directed verdict.

        We begin our analysis with Babin’s claim for future medical expenses related to

future low-back surgery.1 "Florida law permits the recovery of '[t]he reasonable [value]

[or] [expense] of [hospitalization and] medical [and nursing] care and treatment

necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the

future].'" Volusia Cty. v. Joynt, 179 So. 3d 448, 452 (Fla. 5th DCA 2015) (alterations in




        1   Auto Club does not dispute Babin’s claim for damages related to chiropractic
care.


                                                2
original) (quoting Fla. Std. Jury Instr. (Civ.) 501.2(b)). In support of this claim, Babin

presented the deposition testimony of Dr. Robert L. Masson.

       Dr. Masson testified that on March 2, 2011, he discussed with Babin that if

conservative therapy failed, then his lower back would be treated with a two-level

reconstruction. Dr. Masson further testified that Babin clearly had a low-back condition

and that "[i]t was of a caliber that might need surgery at some point." Specifically

regarding the need for surgery, Dr. Masson testified that Babin "has not clinically

progressed to that level of dysfunction where I thought surgery was indicated currently."

Again, he reiterated that Babin’s back had not "met the surgical indices for intervention

yet," and that "at this point he’s doing well enough with conservative care that he does

not need it right now." Dr. Masson indicated "obviously . . . his imaging represents a

mess. In layman’s terms, it’s -- both cervical and low back, he’s got a lot going on. Uh,

but despite the mess, not everybody needs surgery." In the end, Dr. Masson stated that

he did not have an opinion within a reasonable degree of medical probability as to whether

Babin needed surgery in the future.

       Auto Club insists that Babin’s need for future low-back surgery was too

speculative. Therefore, it was error for the trial court to allow this claim to go to the jury.

We agree.

       As this Court recently reiterated:

              Florida law restricts recovery of future medical expenses to
              those expenses "reasonably certain" to be incurred. Loftin v.
              Wilson, 67 So. 2d 185, 188 (Fla. 1953). Therefore, "it follows
              that a recovery of future medical expenses cannot be
              grounded on the mere 'possibility' that certain treatment
              'might' be obtained in the future." White v. Westlund, 624 So.
              2d 1148, 1150 (Fla. 4th DCA 1993) (citing 2 Damages in Tort
              Actions § 9.55(1), at 9-45 (1986)). Further, there must also



                                              3
      Accordingly, we reverse the jury’s award on Babin’s claims for future medical

expenses, past lost wages, and future earning capacity and remand for new trial solely

on the issue of future medical expenses. In all other respects, the final judgment is

affirmed.

      AFFIRMED, in part; REVERSED, in part; and REMANDED.

PALMER and EVANDER, JJ., concur.




                                          8
could have a flare-up every other month and each "flare-up would require six visits" was

too speculative to support future medical expenses). Such is the case here.

       The evidence presented in this case failed to establish that future surgery on

Babin’s low back was reasonably certain to occur. Dr. Masson clearly testified that he

had no opinion as to whether Babin would need surgery in the future. Accordingly, it was

error to allow this claim to go to the jury. Furthermore, because Babin objected to, and

the trial court denied, Auto Club’s request for a special verdict form separating future

chiropractic care from the expenses a jury might award for future low-back surgery, we

are unable to ascertain what the jury actually awarded. See Dep’t of Transp. v. Ness

Trailer Park, Inc., 489 So. 2d 1172, 1180 (Fla. 4th DCA 1986) (noting that "[h]ad the

special verdict forms requested by DOT been granted, we could tell what damages, if

any, were granted under existing law and which were not").              Accordingly, we are

compelled to remand for a new trial on future medical expenses, excluding any evidence

regarding future surgery on Babin's low back.

       We next turn to Babin’s claims for past lost wages and loss of future earning

capacity. The amount of an award for loss of future earning capacity should be measured

by the plaintiff's diminished ability to earn income in the future, rather than the plaintiff's

actual loss of future earnings. Subaqueous Servs., 25 So. 3d at 1267 (citing Auto-Owners

Ins. Co. v. Tompkins, 651 So. 2d 89, 91 (Fla. 1995)).           Just as with future medical

expenses, damages for the loss of future earning capacity must be established with a

reasonable certainty.    Id. Specifically, the plaintiff "must demonstrate a reasonable

certainty of injury and 'present evidence which will allow a jury to reasonably calculate

lost earning capacity.'" Eagle Atl. Corp. v. Maglio, 704 So. 2d 1104, 1105 (Fla. 4th DCA




                                              5
1997) (quoting W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301, 1302 (Fla. 3d DCA

1995)). "Once sufficient evidence is presented, the measure of damages is the loss of

capacity to earn by virtue of any impairment found by the jury and the jury must base its

decision on all relevant factors including the plaintiff's age, health, habits, occupation,

surroundings, and earnings before and after the injury." Miami-Dade Cty. v. Cardoso,

963 So. 2d 825, 828 (Fla. 3d DCA 2007) (quoting Pyke, 661 So. 2d at 1302). Auto Club

convincingly argues Babin failed to meet his burden. While he put on sufficient evidence

to establish reasonable injury, he failed to present sufficient evidence to establish a

diminished earning capacity in the future.

       Babin has a Bachelor’s degree and a Master’s degree in secondary education.

Before moving to Florida, he served as a law enforcement officer and worked as a

teacher. He had back surgery in 1995. After two years of rehabilitation, he returned to

law enforcement as a gang officer. He retired from law enforcement in 1999 and moved

to Florida where he worked as a teacher for six years. At the time of the accident,

however, Babin was voluntarily unemployed. The record reflects he worked regularly until

he met his girlfriend in 2006, at which time he left his job in central Florida to live with his

girlfriend in Bonaire for six to eight months out of the year.

       Babin testified that in the spring of 2010, he completed the bookwork to become a

certified divemaster, and he intended to complete the physical portion of the exam in the

fall of 2010. Around that same time, he and his girlfriend discussed selling the house in

Bonaire and moving to Belize to start a scuba-diving business.

       Babin claimed the Belize business was not mere idle conversation and that his

responsibility was to complete the legal certification for liability purposes. Babin testified




                                               6
that he expected to make $28,000 from the dive business "if we were a good, solid, safe

operation."2 He indicated he planned to do the dive business for the remainder of his life.

Unfortunately, he was unable to dive after the accident.

       Notably, Babin’s inability to work as a dive master does not mean Babin was

unable to work. Indeed, Babin testified that he was physically capable of training service

dogs and had, in fact, contemplated such a business.3

       In order to recover damages for lost earning capacity, Babin was required to prove,

with reasonable certainty, a loss of earning capacity as a result of his injury.        See

Tompkins, 651 So. 2d at 90-91. This he failed to do. Like the plaintiff in Joynt, there was

no evidence presented to indicate Babin was completely disabled from further gainful

employment as a result of his injury. To the contrary, the record reveals he had the

capacity to earn an income as a dog trainer. While Babin’s testimony focused on his

inability to work as a divemaster after the accident, there is simply no guarantee he ever

would have worked in that field. And, even if there was testimony to support that claim,

the evidence introduced to support the amount he could earn as a divemaster was purely

speculative. As such, there was no reasonable evidence upon which the jury could

predicate a verdict in favor of Babin on this claim.



       2  In an effort to substantiate the earning potential from the dive business, Babin
called his friend, Kevin Smith, as a witness. Smith testified that he and his wife purchased
land in Belize for vacation and retirement purposes and thought it would be a nice place
to start a business. He obtained quotes to build a boat for the proposed business venture
with Babin, but by the time of trial had taken no further steps to have the boat constructed.
While Smith estimated that the dive business could generate $1000 to $3000 income
gross per week, he admitted these figures were only a guess and that he came up with
them with the help of his wife, who majored in marketing while in college.
       3
       Babin testified he could train up to twenty-four service dogs per year at a rate of
$800 per dog.


                                             7
         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


AUTO CLUB INSURANCE COMPANY
OF FLORIDA,

              Appellant,

 v.                                                   Case No. 5D15-1337

KENNETH BABIN,

              Appellee.

________________________________/

Opinion filed November 18, 2016

Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.

Douglas M. Fraley, of Molhem & Fraley,
P.A., Tampa, for Appellant.

Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A.,
Orlando, for Appellee.


BERGER, J.,

      Auto Club Insurance Company of Florida (Auto Club) appeals a final judgment

entered in favor of Kenneth Babin for underinsured motorist coverage based on injuries

he suffered in an automobile accident. Auto Club argues the trial court erred when it

denied Auto Club's motion for directed verdict on the issues of future medical expenses
