The amount a plaintiff receives for their lost wage claims after a devastating injury is meant to compensate the plaintiff for their loss of earning capacity. However, a plaintiff may recover only when such damages are established with reasonable certainty.
At times, a jury’s award of damages can be greater than what is reasonably supported by the evidence at trial. A plaintiff must introduce (1) reasonably certain evidence that their capacity to labor has been diminished, and (2) evidence that establishes a monetary standard against which the jury can measure any future loss.
In this article, we look at three cases involving back and spinal injuries that demonstrate how courts have found that a jury’s award for loss of earning capacity are unsupported by the evidence presented.
Evidence Insufficient to Support Award for Loss of Earning Capacity When Plaintiff Suffered Injuries to Back and Neck but Continued to Work Same Job After Accident and For Same Pay
Rasinski v. McCoy, 227 So. 3d 201 (Fla. 5th DCA 2017)
The plaintiff brought a negligence action arising from an automobile accident. A judgment was entered of over $2 million and the defendant motorist appealed, stating that evidence was insufficient to support an award of $260,000 for loss of earning capacity.
Before the accident, the plaintiff was working as a plumber performing mostly commercial work, which he described as physically demanding and hands-on. The plaintiff testified that his hourly rate was between $18 and $19.20 an hour. However, prior to the accident plaintiff had switched to a quality-control role, performing only minor plumbing duties without a reduction in pay.
The court found that the plaintiff had offered insufficient evidence to support the jury’s award of $260,000 for loss of earning capacity. Plaintiff continued to work after the accident, in the same role, and for the same pay as before the accident. Ultimately, the plaintiff failed to show that he was completely disabled from further employment or unable to work to the same age that he would have otherwise. While the evidence did establish permanent injuries to the neck and back, he failed to introduce a monetary standard against which the jury could measure any future loss.
The court reversed the portion of the final judgment that awarded damages for loss of earning capacity and remanded for the trial court to either grant a remittitur (lowering the amount of the damage award) or grant a new trial on the issue of damages for loss of earning capacity.
Appeals Court Held That Remittitur Was Warranted Because Evidence Was Insufficient to Show Loss of Earning Capacity in Truck Accident Resulting in Neck and Back Injuries
Truelove v. Blount, 954 So. 2d 1284 (Fla. 2d DCA 2007)
The appellee, Mr. Blount, was driving a truck towing a front-end loader when he was involved in an accident with a truck belonging to Truelove Farms, the appellant. As a result of the accident, the appellee suffered a physical injury to his neck and upper back, seeking treatment from a chiropractor, orthopedic surgeon, and neurologist. The appellee filed a personal injury action seeking damages for physical and property damage. At trial, the jury found the appellant 100% negligent and awarded damages to the appellee. Damages totaled $407,873, which included $220,000 of future damages for medical expenses and lost earning ability in future years.
The appellants filed a motion for remittitur, which was denied by the trial court. On appeal, the appeals court came to a different finding. Reviewing under the abuse of discretion standard, the court analyzed whether the jury awarded a greater number of damages than what was reasonably supported by the evidence. The court ultimately found that there was some evidence that the appellee would have a lost earning capacity, but there was not a reasonable certainty that it would occur.
The evidence showed that the appellee spent $7995 on hired labor after the accident. This is work that the appellee could have completed himself if there had been no accident. However, there is no evidence that the accident was the sole reason that the appellee hired these employees, nor was there evidence that it was reasonably certain that he would continue to spend this amount on hired labor every year. Even if there was evidence that he would continue to spend this amount, the total would be $151,905, which was less than the amount the jury awarded.
The court held that while the appellee might suffer a loss of earning capacity based on the injury, there was no basis for the jury to access or calculate damages that are reasonably certain to occur. Finding that the jury arrived at the amount of lost earning capacity by speculation or conjecture, the court reversed the order on appeal and remanded the case for further proceedings on future damages.
No Evidence Presented to Calculate Amount of Lost Earning Capacity With Reasonable Certainty, Necessitates a Reversal of Final Judgement Award for Future Loss of Earnings in Automobile Accident That Resulted in Neck and Back Injuries
Pruitt v. Perez-Gervert, 41 So. 3d 286 (Fla. 2d DCA 2010)
Mr. Perez-Gervert was involved in an automobile accident, and the appellants were found liable for his damages. The accident caused the plaintiff to receive injuries to his neck and back. Appellants filed a motion for remittitur challenging the jury’s award for loss of future earning capacity.
Mr. Perez-Gervert was a drywall installer before the accident and he indicated that he earned $16 per hour and averaged 40 hours per week. However, the plaintiff admitted that he did not always work full-time and did not always have work. His former employer testified that prior to the accident Mr. Perez-Gervert worked part-time for four weeks and full time for two weeks.
Mr. Perez-Gervert testified that post-accident he could no longer hand up drywall due to his neck and back injuries, which his physician confirmed. However, the plaintiff was not fully disabled from employment. The jury awarded Mr. Perez-Gervert $580,000 for future loss of earning capacity.
The court stated that a plaintiff must present evidence that will allow a jury to reasonably calculate lost earning capacity. Although Mr. Perez-Gervert presented evidence of past employment as a drywall installer, he did not present any evidence of his earning capacities post-accident or any evidence that he was completely disabled.
As no evidence was presented that would allow the jury to calculate an amount of loss with reasonable certainty, the appeals court reversed the final judgment representing the award for future loss of earning capacity.
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