Florida/Georgia Personal Injury & Workers Compensation

...incurred in the future. A further requirement existed for future damages to be itemized both before and after reduction to present value and for a determination of the period of years over which future damages are intended to provide compensation. F.S. 768.78, adopted at the same time, provided for alternative methods of payment of damage awards when "the trier of fact" makes an award to compensate for future economic damages in excess of $250,000....

...768.77(1), damages for all non-medical negligence cases only have to be segregated into economic losses, noneconomic losses, and punitive damages. F.S. 768.77(2), however, requires further itemization for medical negligence cases. At the same time, F.S. 768.78 was amended to substitute the words "the Court determines" in place of the words "trier of fact," but additional questions on the verdict form may be required to provide the court with the findings of fact necessary for the statute to be utilized....

...upon the authority of the Florida Supreme Court, the legislature requested a rule change under the provisions of Art. V, § 2, of the Florida Constitution consistent with the statutes. No court opinion has expressly determined whether F.S. 768.77 or 768.78 is constitutional under the provisions of Art....

...The committee drafted Model Verdict Forms 2(a) and 2(b) to comply with the minimum requirements of the 1999 amendments to F.S. 768.77(1). In some cases additional questions may be required to preserve issues for appeal or for other reasons. The committee takes no position on how a court would, if requested, comply with F.S. 768.78 in cases where a jury determines that the future economic damages exceed $250,000....

...Depending on the evidence presented, certain elements of damages may be considered economic, noneconomic, or a mixture of both, thus requiring appropriate modification of the verdict form. For verdict requirements in medical negligence claims, see F.S. 768.77(2) and 768.78(2)(a)....

...Florida courts allow insurance companies to intervene in a lawsuit to protect their subrogation rights. [7] A collateral source provider who intervenes is in a position to require a special verdict to protect its interests. In such a case, proration would follow under section 768.78, based on the special verdict determination or a settlement designating that the insured recovered some funds for medical costs and expenses....

...tter and violated the single subject requirement. We interpret this act as applying only to claims for personal injury and property damage, both in tort and contract." 507 So.2d at 1087. The foregoing holding does not represent a conclusion that, if section 768.78 also applied to actions other than negligence, it would necessarily violate the single subject requirement....

...of the statute and repealing rule 1.442. Id. at 2. Nordyne, Inc. v. Florida Mobile Home Supply, 625 So.2d 1283 (Fla. 1st DCA), rev. dismissed, 630 So.2d 1100 (Fla.1993), also addressed the inconsistency existing between section 44.102(5)(b), [5] and section 768.78, Florida Statutes (1991)....

...OF 1986, § 768.77 F.S. 1987) The committee reports that its recommendation is the product of efforts by the committee, for more than a year, to devise a basic form of damage verdict that is both responsive to the requirements of sections 768.77 and 768.78, Florida Statutes (1987) (chapter 86-160, sections 56, 57, Laws of Florida), and conservative of the values, simplicity chief among these, that the bench and bar have long associated with general verdicts....

...l argument on its request. Some legitimate concern has been expressed in demanding of a jury a calculation of reducing awards for future damages to present-day values. It has been suggested that we should ignore the provisions of sections 768.77 and 768.78 in structuring verdict forms because of a perceived legislative invasion of a judicial function....

...The Committee's rationale is discussed at greater length in The Florida Bar News, Vol. 15, No. 15 (August 1, 1988). 3. Although § 768.77 may well be read as requiring specification of the number of years of future noneconomic damages, the complexity added to the verdict is to no end: that information serves no purpose in § 768.78, Alternative methods of payment of [economic] damage awards....

...ring itemization in medical malpractice verdicts. § 768.48 F.S. (1976 Supp.), amended by Ch. 85-175, Sec. 11. Former § 768.51, however, authorized extended payout of future noneconomic as *92 well as economic damages, a purpose absent from present § 768.78....

...s requiring a judicial decision that additional itemization is or is not necessary. 5. Parent's damages for loss of child's services and earnings. The Committee expresses no opinion of whether such future damages are "economic" within the meaning of § 768.78(2) and require itemization of years and reduction to present value....

...A further requirement existed for future damages to be itemized both before and after reduction to present value and for a determination of the period of years over which future damages are intended to provide compensation. In 1986 the legislature also adopted section 768.78 providing for alternative methods of payment of damage awards when "the trier of fact" makes an award to compensate for future economic damages in excess of $250,000.00....

...In 1999, section 768.77, Florida Statutes, was amended to require itemization of only economic losses, noneconomic losses, and punitive damages. In 1999, the legislature also substituted the words "the Court determines" in place of the words "trier of fact" in section 768.78, Florida Statutes....

...uthority of the Florida Supreme Court, the legislature requested a rule change under the provisions of article V, section 2 of the Florida Constitution consistent with the statutes. No court opinion has expressly determined whether section 768.77 or section 768.78 is constitutional under the provisions of article II, section 3 of the Florida Constitution....

...The committee also submits Model Verdict Forms 8.1 e and 8.1 f as forms complying with section 768.77, as amended in 1999, not requiring separate determination of past and future damages. The committee takes no position on how the court might comply with section 768.78 in cases tried by a jury under circumstances in which future economic damages might, under the evidence, exceed $250,000.00, if a party requested application of the provisions of the statute....

...equiring itemization in medical malpractice verdicts. § 768.48 F.S. (1976 Supp.), repealed by Ch. 85-175, Sec. 1. Former § 768.51, however, authorized extended payout of future noneconomic as well as economic damages, a purpose absent from present § 768.78....

...s requiring a judicial decision that additional itemization is or is not necessary. 5. Parent's damages for loss of child's services and earnings. The Committee expresses no opinion of whether such future damages are "economic" within the meaning of § 768.78(2) and require itemization of years and reduction to present value....

...In those situations, courts must approximate the statutory remedy as closely as they can to achieve the ends required by the FTCA. Here, we review the district court’s efforts in improvising application of Florida’s medical-malpractice-damages statute, section 768.78(2) of the Florida Statutes, to Appellant-Cross-Appellee United States....

...federal health facility caused Plaintiffs-Appellees-Cross-Appellants’ son E.R.T., Jr. (“E.R.T.”), to suffer severe and life-altering injuries at the time of his birth. On appeal, the government challenges the district court’s application of section 768.78(2) to the method of payment the district court chose for the government to satisfy the judgment against it. Plaintiffs, meanwhile, cross-appeal the district court’s jerry-rigging of section 768.78(2)’s bond requirement as the court found it pertains to the United States....

...sent money value of $13,860,943.91. 4  Case: 17-13780 Date Filed: 08/17/2018 Page: 5 of 27 The district court then had to decide how any damages awarded should be paid. Section 768.78(2) of the Florida Statutes allows a defendant in a medical- malpractice case to make payment of future economic damages either by lump- sum payment for all damages, with future economic damages and expenses reduced to present value, or by periodic payments. Fla. Stat. § 768.78(2). If a party chooses to make periodic payments, the amount of the payments “shall equal the dollar amount of all future damages before any reduction to present value.” Fla. Stat. § 768.78(2)(b)(1). A party who wishes to make periodic payments must post a bond or other security to ensure full payment of the damages awarded. Id. at § 768.78(2)(b)(2). Invoking this statute, the United States requested that any future-economic- damages award to Plaintiff be paid in periodic payments, rather than a lump-sum payment....

...to Plaintiffs. But it denied the government’s plea for a reversionary interest in the monies the government deposited. Nevertheless, the district court agreed that the government’s deposit of the total award in the trust served the purpose of section 768.78’s bond requirement, so it did not require the United States to pay a bond. But the United States later suggested that its agreement to pay the full award was qualified, based on the availability of government funds for that...

...horize periodic payments in the absence of “a bond, security or adequate assurance of ‘full payment,’” Fla. Stat. § 8  Case: 17-13780 Date Filed: 08/17/2018 Page: 9 of 27 768.78, and where the government did not immediately make “full payment,” id., of economic damages in trust, following the entry of judgment. Essentially, Plaintiffs assert that the district court could adopt the periodic-payment method that section 768.78 authorizes only if it also imposed all of the rest of the section’s requirements—full payment or the payment of security guaranteeing full payment—on the government. To resolve this issue, we must consider whether the FTCA—the source of the district court’s authority to apply section 768.78— allowed the district court’s departure from the strict application of section 768.78. We begin by examining the FTCA....

...§ 2674. 9  Case: 17-13780 Date Filed: 08/17/2018 Page: 10 of 27 As we have noted, the government contended in the district court that the court could allow the government to make periodic payments by borrowing that remedy from section 768.78(2)(a)(2)....

...these losses shall be made by one of the following means: 2. The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum. Fla. Stat. § 768.78(2)(a)(2). Plaintiffs, however, retort that another aspect of section 768.78(2)—subsection (b)—precludes periodic payments in the absence of the posting of security for the full award....

...If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum. . . . Upon termination of periodic payments, the security, or so much as remains, shall be returned to the defendant. Fla. Stat. § 768.78(2)(b)(2). Upon review of these two portions of section 768.78(2), we agree with Plaintiffs that, as a general matter, this statute’s use of the mandatory “shall” requires the posting of security if periodic payments are authorized....

...pproximate” the results of state statutes, we must consider whether the district court’s resolution of the security issue effectively served the same purpose as the statute’s security requirement. We find that it did. The purpose of section 768.78(b)(2)’s security requirement is to guarantee payments to the plaintiff, in case a defendant making periodic payments experiences economic-insolvency problems down the road....

...(“The defendant shall be required to post a bond or security or otherwise to assure full payment of these damages awarded.”) (emphasis added). So as long as the district court ensured that all periodic payments would be made, it approximated the results of section 768.78(b)(2). Here, the district court accounted for section 768.78(b)(2)’s concern when it noted that the government would be making full payment into the trust for the later dispensing of periodic payments to Plaintiffs. That action in and of itself ensured full payment to Plaintiffs....

...uture economic damages remaining in the trust if E.R.T. dies prematurely. To resolve this issue, 12  Case: 17-13780 Date Filed: 08/17/2018 Page: 13 of 27 we begin with the language of section 768.78....

...If the statutory text is “clear and unambiguous and conveys a clear and definite meaning,” our task also ends with the language. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013) (citation and quotation marks omitted). We find the language of section 768.78(2) to clearly and unambiguously require payment of the full future-economic-damages award, regardless of whether the intended recipient dies before the end of the period for which damages are awarded....

...If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum. . . . Upon termination of periodic payments, the security, or so much as remains, shall be returned to the defendant. ... Fla. Stat. § 768.78(2) (emphasis added). First, as we have noted, section 768.78(2) applies when “the trier of fact makes an award to compensate the claimant for future economic losses.” Id. § 768.78(2)(a). That is a one-time occurrence at the end of the fact-finding process—before the trier of fact can possibly know whether the claimant will actually live the expected lifespan and incur all future economic losses anticipated. Section 768.78(2) then sets forth two alternative ways of making “payment of amounts intended to compensate the claimant for these losses.” Id....

...In actuality, the claimant may die before receiving the entire award or may outlive the award and incur losses for which the award does not account. But had the Florida legislature 14  Case: 17-13780 Date Filed: 08/17/2018 Page: 15 of 27 wished for section 768.78(2) to award only actual future economic damages, we expect it would have omitted the word “intended” and written the section to read, “payment of amounts to compensate the claimant for these losses.” Second, subsection (2)(a)(1) bolsters this conclusion. It states that “[t]he defendant may make a lump-sum payment for all damages so assessed . . . .” Fla. Stat. § 768.78(2)(a)(1) (emphasis added). “So assessed” refers to the “award to compensate the claimant for future economic losses” described in section 768.78(2)(a). See id. at § 768.78(2)(a)....

...conomic damages, that award was “assessed,” or “charged.” It was not subject to revision. Third, subsection (2)(a)(2) authorizes the award of future economic damages “to be paid by periodic payments rather than lump sum.” Id. at § 768.78(2)(a)(2) (emphasis added)....

... Case: 17-13780 Date Filed: 08/17/2018 Page: 16 of 27 Fourth, subsection (2)(b)(1) requires the “total dollar amount of the periodic payments [to] equal the dollar amount of all [assessed] future damages before any reduction to present value.” Id. at § 768.78(2)(b)(2) (emphasis added)....

...economic damages, regardless of whether the defendant does so by lump sum or by periodic payment. Fifth, subsection (2)(b)(2) requires the posting of security when a defendant chooses to make periodic payments “to assure full payment of these damages awarded.” Id. at § 768.78(2)(b)(2) (emphasis added). So section 768.78(2)(b)(2) recognizes both that the total of all periodic payments is “awarded” at the time the factfinder makes the award of future economic damages and that “full payment” of the amount “awarded” is required....

...reduced to present value, shall be paid to the claimant in a lump sum.” Id. (emphasis added). Once again, the statute equates the total value of all periodic payments with the present value of a lump-sum payment. And notably, no aspect of section 768.78(2) provides for any kind of reduction to the factfinder’s award of future economic damages....

...In fact, other than reduction to 16  Case: 17-13780 Date Filed: 08/17/2018 Page: 17 of 27 present value, the statute does not allow for adjustments of any kind to the actual damages award. Therefore, we conclude that the text of section 768.78(2) clearly and unambiguously precludes the award of a reversionary interest should the claimant die before expected. Nor are we convinced of the contrary by the government’s comparison of subsections 768.78(1) and 768.78(2)....

...the two subsections. While subsection (2) applies in medical-malpractice cases only, subsection (1) sets forth a similar framework for the payment of future economic losses in all other cases where these losses exceed $250,000. Compare Fla. Stat. § 768.78(2) with id. at § 768.78(1). Subsection 768.78(1)(b) states, In entering a judgment ordering the payment of [awarded] future damages by periodic payments, the court shall make a specific finding of the dollar amount of periodic payments which will compensate the...

...remaining liability of the defendant, reduced to present value, shall be paid into the estate of the claimant in a lump sum. . . . 17  Case: 17-13780 Date Filed: 08/17/2018 Page: 18 of 27 Fla. Stat. § 768.78(1)(b) (emphasis added)....

...at 578. But “[n]o canon of interpretation is absolute.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 59 (2012). And in this case, the canon cannot apply. For if it did, it would require us to reject the plain and unambiguous meaning of section 768.78(2). Plus, construing subsection (2) to allow for what subsection (1) expressly precludes would also create significant administrative issues for which the statute offers no solutions....

... Case: 17-13780 Date Filed: 08/17/2018 Page: 19 of 27 award based on actual lifespan, subsection (1) also forbids an enlargement of the future-economic-losses award when the claimant outlives the expected lifespan. Fla. Stat. § 768.78(1)(b) (“The period of time over which the periodic payments shall be made ....

...t be subjected to continuing obligations under the FTCA. That means that the district court would 19  Case: 17-13780 Date Filed: 08/17/2018 Page: 20 of 27 have no way to approximate section 768.78(2)’s results....

...to present value. We agree. To explain why, we return once again to the FTCA’s requirement that any award against the government approximate the same results that private parties would have under the applicable state statute. Under section 768.78(2)(b), a private party making periodic payments makes the payments over the entire span of the period for which they compensate the claimant, not all at the beginning of 20  Case: 17-13780 Date Filed: 08/17/2018 Page: 21 of 27 that period. As a result, a private party is able to earn interest on any periodic payments not yet paid. And a private party paying a single lump sum enjoys the benefit of paying that amount reduced to present value. Fla. Stat. § 768.78(2)(A)(1). But the government must deposit up front all the monies to be used to make periodic payments, not reduced to present value....

...is when the district court determined he would have started working had he not been disabled at birth. 24  Case: 17-13780 Date Filed: 08/17/2018 Page: 25 of 27 We look once again to section 768.78(2) in determining the appropriate standard of review for this question, since the district court was charged with approximating its effects. As relevant to this issue, section 768.78(2)(b) defines “periodic payment” as “the spreading of future economic damage payments, in whole or in part, over a period of time,” as further specified in the statute. Fla. Stat. § 768.78(2)(b)....

...need not schedule all equal payments when it authorizes periodic payments. And other than the requirement that the “total dollar amount of the periodic payments . . . equal the dollar amount of all . . . future [economic] damages before any reduction to present value,” id. at § 768.78(2)(b)(1), the statute leaves the trial court free to exercise its discretion in fashioning the periodic-payment schedule. We therefore review for abuse of discretion the district court’s decision that E.R.T. shall be paid $1 million fo...

...0. Plaintiff did not object and the jury was discharged. Post-trial, the trial court entered an order denying Appellants’ motion for entry of a judgment permitting periodic payments of the $2,400,000 awarded in future economic damages, pursuant to section 768.78, Florida Statutes (1997)....

...The trial court also entered a final judgment awarding Plaintiff $82,269 in taxable costs. On appeal, Appellants claim that upon their request, it was mandatory that the trial court enter an order permitting them to pay the future economic damage award in periodic installments rather than in a lump sum, pursuant to section 768.78(2)(a), Florida Statutes (1997). Plaintiff responds that both subsection (l)(a) and (2)(a) of section 768.78 apply in this case and that the trial judge did not err in denying Appellants request where it found that manifest injustice would occur if it allowed periodic payments to be made....

...economic losses and expenses reduced to present value; or 2. The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum. § 768.78(l)(a) & (2)(a), Fla....

...cases as are not within the terms of the particular provision.” Fletcher v. Fletcher, 573 So.2d 941, 942 (Fla. 1st DCA 1991). Since this case involves a medical malpractice claim, it would fall under subsection (2)(a). Appellants’ argument that section 768.78(2)(a) requires a trial court to comply with a party’s request to pay in periodic installments is persuasive....

...trial in the cause on the issue of damages only.” (emphasis added). 15 which that value was calculated. Even the Legislature recognizes the entitlement of a claimant’s estate to the present value of such damages. Section 768.78, Florida Statutes, provides for an alternative method of paying large economic damage awards through periodic payments over time. But, if the claimant dies before the time period in which the payments are due is complete, “the remaining liability of the defendant, reduced to present value, shall be paid into the estate of the claimant in a lump sum.” See § 768.78(1)(b), Fla....

...efore it.”). Based upon the foregoing, we affirm the trial court’s final judgment finding a breach of contract. We also affirm the trial court’s award of attorney’s fees as the Pension Fund has conceded that the cap on attorney’s fees, see section 768.78, Florida Statutes, does not apply to contract actions....

...Subsection .(a) limits punitive damages to the greater of three times the compensatory damages and $500,000. Subsection (b) increases the limit to the greater of four times the compensatory damages and $2 million. Subsection (c) removes the limit altogether. Following the ascending structure of Section 768.78(1), the verdict form asks the jury, if “you have elected to assess punitive damages against Giant”: a....

...Long’s injury was unintentional). 6 *1251 Defendant’s Fifth, Eleventh, and Fifteenth Affirmative Defenses do not state affirmative defenses in contemplation of Florida law. The Fifth Affirmative Defense relates to a remedy Defendant may seek post trial, pursuant to Fla. Stat. § 768.78 ....