         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

JORDON J. RASINSKI,

             Appellant,

 v.                                                       Case No. 5D15-4423

MICHAEL P. McCOY,

             Appellee.

________________________________/

Opinion filed August 4, 2017

Appeal from the Circuit Court
for Seminole County,
Michael Rudisill, Judge.

David C. Knapp and James A. Coleman,
of James A. Coleman, P.A., Orlando, for
Appellant.

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

WALLIS, J.

      Jordon J. Rasinski appeals the final judgment finding him 100% liable for an

automobile accident that caused permanent injury to Michael P. McCoy, for which the jury

awarded McCoy $2,130,000 in damages. Rasinski argues the trial court erred by: (1)

denying his motion for new trial due to opposing counsel's improper closing argument; (2)

denying his motions for directed verdict, new trial, and remittitur on three grounds; and

(3) denying his motion to determine set-off.
       We affirm the trial court's denial of Rasinski's motion for new trial based on the

alleged improper closing arguments to which he did not object.1 We also affirm the trial

court's denial of Rasinski's requested relief from the jury's award for pain and suffering

and future medical expenses. We reverse the trial court's denials of Rasinski's motions

for remittitur relating to lost earning capacity and to set off $25,037.56 from the final

judgment, an amount for which McCoy's healthcare provider waived any right to

subrogation or reimbursement.

                                          FACTS

       In January 2010, McCoy filed a complaint for negligence against Rasinski following

an automobile accident in Seminole County. At trial in December 2013, McCoy testified

that he worked in public utilities for twenty years prior to the subject accident. McCoy also

previously owned a bait and tackle shop. He eventually left both of those jobs and began

working as a plumber. In his first ten years as a plumber, McCoy performed "mostly

commercial work," which he described as "physically demanding" and "hands-on."

       McCoy testified that his hourly wage as a plumber fluctuated between $18 and

$19.50. He further explained that, for the eighteen months preceding trial, he switched to

"more of a quality control" position, performing only minor plumbing duties without any

corresponding reduction in his pay. McCoy expressed a desire to work until the age of




       1 We emphasize that our affirmance on this issue should not be interpreted as
condoning plaintiff's counsel's conduct in his closing argument. Rather, we find that the
several unobjected-to comments do not rise to the level of egregiousness warranting a
new trial as outlined by the Florida Supreme Court in Murphy v. International Robotic
Systems, Inc., 766 So. 2d 1010, 1031 (Fla. 2000).



                                             2
arguing the trial court failed to reduce the judgment by "the amount of all collateral source

payments for which there is no obligation for reimbursement." The trial court denied

Rasinski's motion regarding these additional set-offs.

                              LOSS OF EARNING CAPACITY

       We review a trial court's ruling on a motion for remittitur or new trial for an abuse

of discretion. Castillo v. Bush, 902 So. 2d 317, 319 (Fla. 5th DCA 2005) (new trial); S &

S Toyota, Inc. v. Kirby, 649 So. 2d 916, 921 (Fla. 5th DCA 1995) (remittitur). The

applicable law on remittitur is found in section 768.043(1), Florida Statutes (2013), which

provides:

               In any action for the recovery of damages based on personal
               injury . . . arising out of the operation of a motor vehicle, . . .
               wherein the trier of fact determines that liability exists on the
               part of the defendant and a verdict is rendered which awards
               money damages to the plaintiff, it shall be the responsibility of
               the court, upon proper motion, to review the amount of such
               award to determine if such amount is clearly excessive or
               inadequate in light of the facts and circumstances which were
               presented to the trier of fact. If the court finds that the amount
               awarded is clearly excessive or inadequate, it shall order a
               remittitur or additur, as the case may be. If the party adversely
               affected by such remittitur or additur does not agree, the court
               shall order a new trial in the cause on the issue of damages
               only.

Pursuant to section 768.043(1), "only when the parties agree with the trial court's amount

of remittitur or additur will the remittitur or additur be enforced in lieu of a new trial." Waste

Mgmt., Inc. v. Mora, 940 So. 2d 1105, 1109 (Fla. 2006).

       The Florida Supreme Court has cautioned that a plaintiff may recover damages for

loss of earning capacity only "when such damages are established with reasonable

certainty." Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89, 91 (Fla. 1995). Tompkins

clarified that the plaintiff need not necessarily demonstrate a permanent injury, but "it is a



                                                4
     AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.


PALMER and LAMBERT, JJ., concur.




                                     8
significant factor in establishing the reasonable certainty of future damages." Id. To

establish a claim for loss of future earning capacity, the plaintiff must introduce

"reasonably certain evidence that the capacity to labor has been diminished and that there

is a monetary standard against which the jury can measure any future loss." Hubbs v.

McDonald, 517 So. 2d 68, 69 (Fla. 1st DCA 1987) (quoting Long v. Publix Super Mkts.,

Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984)). After the plaintiff introduces evidence

sufficient to warrant an award for lost earning capacity, the jury should consider "all

relevant factors including the plaintiff's age, health, habits, occupation, surroundings, and

earnings before and after the injury." W.R. Grace & Co.-Conn. v. Pyke, 661 So. 2d 1301,

1302 (Fla. 3d DCA 1995) (citing Atl. Coast Line R.R. v. Ganey, 125 So. 2d 576 (Fla. 3d

DCA 1960)).

       In this case, McCoy offered evidence insufficient to support the jury's award for

loss of earning capacity. McCoy's own trial testimony proved that he continued to work

after the accident, earning between $18 and $19.50 per hour as a plumber—the same

hourly wage he earned before the accident. In fact, McCoy did not even begin working

for his employer at the time of trial until after the accident. McCoy's testimony questioning

his future job security amounted to pure speculation and does not serve as a proper basis

for the award of lost earning capacity. See Pyke, 661 So. 2d at 1303 ("The testimony that

there was a possibility that [plaintiff] would lose his job was irrelevant, purely speculative

and inappropriate."). In other words, McCoy failed to demonstrate that he "was completely

disabled from further gainful employment" or that he "was unable to work to the same age

[he] would have otherwise." Volusia Cty. v. Joynt, 179 So. 3d 448, 451–52 (Fla. 5th DCA

2015). Although the evidence established that McCoy suffered permanent injuries to his




                                              5
neck and back from the accident, he nonetheless failed to introduce "a monetary standard

against which the jury [could] measure any future loss." Hubbs, 517 So. 2d at 69.

       Based on the foregoing, we find that the trial court abused its discretion by denying

Rasinski's motions for remittitur and new trial as to loss of earning capacity. We reverse

the portion of the final judgment awarding damages for loss of earning capacity and

remand for the trial court to either enter a remittitur or grant a new trial solely on the issue

of damages for loss of earning capacity. See § 768.043(1), Fla. Stat.; Truelove v. Blount,

954 So. 2d 1284, 1289–90 (Fla. 2d DCA 2007).

                       COLLATERAL SOURCE SET-OFFS

       We review de novo a trial court's ruling on a motion to determine set-off.

Cornerstone SMR, Inc. v. Bank of Am., N.A., 163 So. 3d 565, 568 (Fla. 4th DCA 2015).

Section 768.76, Florida Statutes (2013), provides, in pertinent part:

              (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.

              ....

              (5) Any disputes between the claimant and the provider as to
              the actual amount of collateral sources recovered by the
              claimant from a tortfeasor shall be subject to determination by
              a court of competent jurisdiction. In determining the actual
              amount of collateral sources recovered, the court shall give



                                               6
               consideration to any offset in the amount of settlement or
               judgment for any comparative negligence of the claimant,
               limitations in the amount of liability insurance coverage
               available to the tortfeasor, or any other mitigating factors
               which the court deems equitable and appropriate under the
               circumstances.

This section abrogated the common law rule prohibiting reduction of damages from

collateral source payments in an effort to "reduce insurance costs and prevent plaintiffs

from receiving windfalls." Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247, 1249

(Fla. 2015). For evidentiary purposes, "payments from collateral source benefits are not

admissible because such evidence may confuse the jury with respect to both liability and

damages." Id. (citing Sheffield v. Superior Ins. Co., 800 So. 2d 197, 203 (Fla. 2001)).

       In this case, Rasinski requested that the trial court set-off, inter alia, $25,037.56

in payments furnished by McCoy's healthcare provider for which it released its lien and

waived subrogation. The trial court denied Rasinski's motion on the basis that he could

not argue for additional set-offs after presenting expert testimony to challenge the

reasonableness of McCoy's medical bills, which resulted in the jury awarding a reduced

award for past medical expenses. However, Rasinski did not request that the jury further

reduce the award by the $25,037.56 at issue here. We find that this payment constitutes

a collateral source under section 768.76(1) because McCoy does not dispute that the

healthcare provider released its lien and waived subrogation. See § 768.76(1), Fla. Stat.

("[T]here shall be no reduction for collateral sources for which a subrogation or

reimbursement right exists."). Accordingly, we reverse and remand for the trial court to

enter a set-off in the amount of $25,037.56.2



      2   We affirm the trial court's rulings on Rasinski's additional set-off requests.



                                               7
     AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.


PALMER and LAMBERT, JJ., concur.




                                     8
