       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 4, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-3005
                          Lower Tribunal No. 11-117-K
                              ________________


                  GEICO General Insurance Company,
                                     Appellant,

                                         vs.

                               Thomas A. Dixon,
                                     Appellee.



      An Appeal from the Circuit Court for Monroe County, Tegan Slaton, Judge.

      Carlton Fields Jorden Burt, P.A., and Paul L. Nettleton, for appellant.

      Kimberly L. Boldt, Jeffrey D. Mueller and Mario R. Giommoni (Boca
Raton); Hoffman, Larin & Agnetti, P.A., and John B. Agnetti and David Perkins,
for appellee.


Before SUAREZ, C.J., and SCALES, J., and SHEPHERD, Senior Judge.

      SHEPHERD, Senior Judge.
      This is an appeal by GEICO General Insurance Company from a trial court

order denying GEICO’s motion for new trial on compensatory damages in an

automobile accident case involving an uninsured motorist in which the jury first

considered and awarded compensatory damages against both GEICO and the co-

defendant uninsured motorist driver arising out of the accident, and then

reconvened to consider an award of punitive damages against the uninsured

motorist driver alone.      Before trial, GEICO and the co-defendant uninsured

motorist driver admitted liability for the accident, and the court ordered that the

plaintiff, GEICO’s insured, was entitled to recover an award of punitive damages

against the uninsured motorist driver in an amount to be determined in the second

phase of the proceeding.1

      GEICO’s principal assignment of error is the admission of evidence showing

that the uninsured motorist driver was intoxicated beyond the legal limit at the time

of the crash in the compensatory phase of the trial. We agree and reverse and

remand the case for a new trial on compensatory damages. We find the evidence

of the uninsured motorist driver’s alcohol use was irrelevant to the issue of the

amount of compensatory damages, which was the subject of the first phase of the

proceedings, and that any arguable probative value the evidence might have had –


1The trial resulting in the judgment on appeal is actually the third time this case
was tried. Two prior attempts to try this case resulted in mistrials for reasons
unrelated to this appeal.

                                         2
say, to the credibility of the testimony of the uninsured defendant driver – was

substantially outweighed by the danger of unfair prejudice.

      Because we are remanding this case for a new trial on compensatory

damages, we also address two issues raised by GEICO concerning the sufficiency

of the evidence to support the future economic damage award to the plaintiff

because they are likely to recur in the new trial. A brief summary of the factual

and procedural background of this case is necessary to explain our decision.

              FACTUAL AND PROCEDURAL BACKGROUND

      This action arises out an automobile accident which took place on May 17,

2009, in Monroe County, in which GEICO insured, Thomas Dixon, was struck

head-on by a vehicle driven by Gerardo Alcebo. Alcebo was driving under the

influence of alcohol at the time of the accident and ultimately was adjudicated

guilty of driving under the influence causing “bodily injury.” See § 316.193(3)(a),

(b) and (c)(2), Fla. Stat. (2015).      Alcebo did not have a policy of liability

insurance.   Dixon’s policy, issued by GEICO, included uninsured motorist

coverage of up to $20,000 per person.

      In 2011, Dixon sued GEICO for breach of contract for failure to pay the

amount of the uninsured motorist coverage and joined Alcebo as a co-defendant

seeking both compensatory and punitive damages against him for negligently and

recklessly operating a motor vehicle while intoxicated causing serious bodily



                                          3
injury. Prior to trial, Alcebo and GEICO admitted liability for the accident, and the

trial court ruled, as a matter of law, that Alcebo was punitively liable for driving

under the influence of alcohol at the time. Thus, the only issues remaining to be

tried were the amounts of compensatory and punitive damages which should be

awarded to Dixon. 2 Before trial, GEICO moved to bifurcate the two issues and to

exclude any reference to Alcebo’s intoxication during the first compensatory

damages trial. The trial court granted bifurcation, but nullified GEICO’s reason

for bifurcation by permitting Dixon to offer evidence and argument on Alcebo’s

intoxication during the compensatory phase.

      Alcebo’s intoxication while driving quickly became the central theme of the

first phase of the trial. The trial judge himself began the barrage by instructing the

jury, before the first witness was called, that “punitive damages are warranted

against Mr. Alcebo as a punishment to him and as a deterrent to others because he

was driving under the influence of alcoholic beverages . . . to the extent that his

normal faculties were impaired while having a blood alcohol level of .08 or higher

and during the course of such driving . . . he caused . . . bodily injury to Mr.

Dixon.”     Dixon’s first witness was the state trooper who investigated the DUI

2 Included in the calculation of the amount of compensatory damages was the sub-
issue of whether Dixon sustained a permanent injury as a result of the accident.
Absent permanent injury, a plaintiff is entitled to recover UM benefits only for
economic damages incurred as a result of injuries sustained in the accident and not
for economic damages, such as pain and suffering. See §§ 627.727, 627.737, Fla.
Stat. (2015).

                                          4
charges.   Counsel for Dixon repeatedly referred to Alcebo’s drunk driving as “a

conscious decision to operate a vehicle while under the influence of alcohol” and

stressed that “GEICO stands in the shoes of Alcebo” for purposes of the

compensatory damage award. Although the focus of phase one should have been

on the issue of permanent injury and the amount of compensatory damages to be

awarded, counsel for Dixon made Alcebo’s, and in his stead GEICO’s, callousness

in causing Dixon’s injury the central feature of the trial.

      As to damages, Dixon admitted he had suffered from back pain since the

early 1990’s. In 2004, Dixon underwent spinal surgery to relieve the pain. Dixon

testified he did not take any pain medication for back pain between the 2004

surgery and the date of the automobile accident. However, Dixon testified that

after the accident he was prescribed Oxycontin and gradually became addicted.

After a second back surgery in 2011, Dixon began to take Suboxene to detoxify

himself from the Oxycontin. Dixon testified:

      DIXON: . . . [Dr. Nordt] gave me the scrip to take to [the detox clinic] to tell
      him to detox me the proper way. So they put me back on the medication,
      and he slowly took me down off of it until he slowly put me on a drug called
      Suboxone. Suboxone is designed for opiate addiction, and it's called an
      opioid. I can't really explain to you how it works, but it causes the brain to
      do something to where and it does have a mild painkiller in it, too.

      COUNSEL: Do you take it every day?

      DIXON: Every day of my life.

      COUNSEL: How many times a day do you take it?


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      DIXON: I take eight -- I take four milligrams, three times a day.

      COUNSEL: And can you advise the jury what that costs you?

      DIXON: It costs me $560 a month, like $565, something like that.

During closing arguments and without any evidentiary basis, Dixon’s counsel

suggested the jury should award Dixon a five-year supply of Suboxone as future

medical damages.

      Next, in support of his claim for future loss of earning capacity, Dixon

testified that on May 4, 2009, thirteen days before the accident, he retired from

Florida Keys Aqueduct Authority after working there for a little over thirty-five

years. He testified he was hired by the Authority soon after graduation from high

school. He was later promoted to supervisor of engineering and worked in that

capacity for the last fifteen to twenty years of his employment. At age fifty-three,

he accepted a retirement package. Dixon testified that he planned to take three to

six months off after retirement and then begin to supplement his retirement income

by working “in the diving industry for hydrostacking [sic] dive tanks and the repair

of fiber tanks.” He testified he had hands-on work experience in this area through

his association with a dive shop located at a Chevron gas station. He stated “the

boss from there flew me and another guy . . . up together to Chicago to get training

in order to have a certification to be able to do it.” Dixon obtained the certification

but was never hired at the Chevron due to its closure. Nonetheless, he testified that


                                          6
he expected to subsidize his retirement by making $2,000 to $2,500 a month in that

business after a brief vacation. However, because of the back injury he claimed

was related to the accident, he could no longer perform that type of work. During

closing arguments, Dixon’s counsel suggested an award for future loss of earning

capacity of $288,000, based on the scenario of Dixon working in the hydrostatic

testing business for twelve years, or until he reached the age of sixty-six, at $2,000

a month.

       At the close of the compensatory trial, the jury found Dixon suffered a

permanent injury to his back as a result of the accident and returned an itemized

verdict of $970,396.62 in compensatory damages. The award included $33,600.00

for future medical expenses and $288,000.00 for loss of future earning capacity.3


3 The jury also returned a verdict for $1,000.00 in punitive damages against
Alcebo. The paltry punitive damage verdict is explained by the fact that Dixon’s
real play in this case is to build up the compensatory damage award against Alcebo
as much as possible in order to seek an amount in excess of the uninsured motorist
limit of $20,000 from GEICO in a first party bad faith action Dixon has pending
against GEICO pursuant to section 624.155 of the Florida Statutes. At present,
Dixon is limited in the amount of compensatory damages he can recover from
GEICO to the amount of the uninsured motorist’s coverage, and the final judgment
so reflects. See Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214 (Fla. 2016);
Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239 (Fla. 2d DCA 2008). A
punitive damage award in any amount is not recoverable under section 624.155
without a claim of a general business practice which violates the statutes. §
624.155(5), Fla. Stat. (2015). Because Alcebo is impecunious (to the point he did
not even show up for the third trial), counsel for Dixon agreed to limit the amount
of punitive damages he would seek against Alcebo to $1.00 for the likely purpose
of encouraging Alcebo’s cooperation with Dixon in the litigation. The jury
awarded 1,000 times more than Dixon agreed to seek.

                                          7
GEICO’s motion for a new trial based on the evidence of Alcebo’s intoxication

elicited during the compensatory damages phase of the trial, and its motion for

directed verdict as to Dixon’s claim for future medical expenses and loss of

earning capacity were also denied.

      The trial court entered judgment against GEICO in the amount of

$20,000.00, the uninsured motorist policy limit, and against Alcebo for the

remaining amount of the compensatory damages according to the verdict. GEICO

timely appealed.

                                     ANALYSIS

      We review the denial of a motion for directed verdict de novo, Banco

Espirito Santo Intern., Ltd. v. BDO Int’l, B.V., 979 So. 2d 1030, 1032 (Fla. 3d

DCA 2008), and the admission of evidence and denial of a motion for new trial

under an abuse of discretion standard. Kalbac v. Waller, 980 So. 2d 593, 595 (Fla.

3d DCA 2008); H & H Elec., Inc. v. Lopez, 967 So. 2d 345, 347 (Fla. 3d DCA

2007).

      1. Irrelevant DUI Evidence and Argument.

      The trial court correctly exercised its discretion when it granted GEICO’s

motion to bifurcate the compensatory and punitive damage issues in the trial of this

case. See Fla. R. Civil P. 1.270(b); Roseman v. Town Square Ass’n, 810 So. 2d

516, 519-20 (Fla. 4th DCA 2001) (“[T]he trial court’s decision to bifurcate is



                                         8
subject to an abuse of discretion standard of review.”) However, the laudable

purpose of the motion was annulled when the trial judge admitted evidence and

permitted argument concerning drunk driving in the compensatory damage phase

of the bifurcated proceeding.

      In an automobile negligence case, when the defendant admits liability

regarding the cause of the accident, evidence of the defendant’s sobriety is

irrelevant and prejudicial. Swanson v. Robles, 128 So. 3d 915, 917-18 (Fla. 2d

DCA 2013); see also Jones v. Alayon, 162 So. 3d 360 (Fla. 4th DCA 2015);

Neering v. Johnson, 390 So. 2d 742, 742 (Fla. 4th DCA 1980) (concluding the trial

court erred in admitting testimony of defendant’s sobriety when “[p]rior to trial the

parties entered into a written stipulation by which appellant admitted liability and

the parties agreed the sole issue for trial was the damages incurred by appellees”).

The existence of the punitive damage claim in this case does not change the result

because the trial court also found before trial that Alcebo was liable for punitive

damages. Swanson, 128 So. 3d at 918 (concluding that when “liability for punitive

damages was no longer at issue . . . [t]here was no reason to admit evidence of

[defendant’s] drug use in a bifurcated first phase other than to inflame the jury and

increase the compensatory damages verdict”). For these reasons, we hold that the

trial court abused its discretion by allowing evidence and argument regarding

Alcebo’s drunk driving in phase one of the trial, and order a new trial on the issue



                                         9
of compensatory damages. Furthermore, because we are reversing and remanding

the case for a new trial and the issues may occur on retrial, we also address the

sufficiency of the evidence to support the award of future economic damages for

future medical expenses and future loss of earning capacity.

      2. Future Economic Damages Evidence.

      As a matter of law, future economic damages are only appropriate when

established with reasonable certainty. See Auto-Owners Ins. Co. v. Tompkins, 651

So. 2d 89, 91 (Fla. 1995); Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA

2010).      Thus, Dixon had the burden to establish his need for future medical

treatment, within a reasonable degree of certainty, and to provide evidence for the

jury to determine, with reasonable certainty, the amount needed to pay for the

treatment. See Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953); Fasani, 43 So. 3d

at 812; DeAlmeida v. Graham, 524 So. 2d 666, 668 (Fla. 4th DCA 1987). “A mere

possibility that certain treatment might be obtained in the future cannot form the

basis of an award of future medical expenses.” Fasani, 43 So. 3d at 812 (citing

Truelove v. Blount, 954 So. 2d 1284, 1288 (Fla. 2d DCA 2007)). Similarly,

Florida law does not permit a plaintiff to recover loss of future earnings unless

plaintiff proves with a reasonable degree of certainty his or her future earning

capacity.     Truelove, 954 So. 2d at 1288 (citing W.R. Grace & Co.-Conn. v.

Pyke, 661 So. 2d 1301, 1303-04 (Fla. 3d DCA 1995)). After a close review of the



                                        10
trial transcripts in this case, we find there is an insufficient evidentiary basis for the

jury to determine, with reasonable certainty, both future medical expenses and

future loss of earning capacity.

      The evidence Dixon presented to support his claim for future medical

expenses consisted solely of his testimony that at the time of trial he was taking the

prescription drug, Suboxone, to detoxify himself from an opiate addiction. The

evidence is unclear whether the opiate addiction had any relationship to the

accident. More significantly, there is a complete absence of any testimony, either

lay or expert, evidencing, with reasonable certainty, how long into the future Dixon

would need to take the drug. The jury simply accepted the suggestion by counsel

for Dixon in final argument that five years was a sufficient number of years to use

to calculate the award. The jury awarded precisely the amount suggested by

counsel. The trial court should have granted GEICO’s motion for directed verdict

on this award.

      In support of future loss of earning capacity, Dixon testified to his plans for

future employment, but did not present sufficient evidence from which the jury

could determine, with any degree of certainty, that Dixon was prevented by his

injury-related limitations from obtaining suitable work in the future, including

work hydrotesting and repairing dive tanks.          Dixon testified he had obtained

experience in this field through his association with a dive shop located at a gas



                                           11
station and received certification for the work. However, he presented no concrete

evidence demonstrating the availability of this type of job in the diving industry or

the pay being offered for such a position. Dixon speculated he could earn $2,000

to $2,500 a month in that business, and his counsel suggested Dixon could earn

this amount until he was sixty-six. Essentially, Dixon wanted the jury to follow his

unfounded supposition that, because he was trained for hydrostatic testing and

because his back injury prevented him from doing this work, he no longer has any

capacity to earn supplementary income during his retirement years.           Without

evidence of alternative employment for a man of Dixon’s age, skills, education,

etc., the jury was forced to engage in a future loss of earnings analysis which is not

recognized in Florida.

                                  CONCLUSION

      For the foregoing reasons, we find the trial court abused its discretion in

admitting irrelevant evidence of Alcebo’s intoxication during the compensatory

damages trial when, prior to trial, the defendant admitted causing the accident and

the court determined punitive damages liability as a matter of law. We also agree

that the court below erred in denying GEICO’s motions for directed verdict and

judgement notwithstanding the verdict regarding future economic losses.

Accordingly, we reverse and remand for a new trial.




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