MSZL&M Successfully Limits Boardable Damages at Trial in Florida
Jul 8, 2021 - About the Firm by Kevin M. Davis
Recently, attorney Samantha S. Loveland successfully argued a Motion for Reconsideration in favor of Defendants on the issue of whether or not Plaintiff would be allowed to board at trial the total of all medical bills or only the amount paid by Medicare for the medical care received. In this case Plaintiff has over $500,000.00 in total medical bills, which will be reduce to the amount paid by Medicare – approximately $60,000.00. Plaintiff argued the Supreme Court in Joerg v. State Farm Mut. Auto Ins. Co., 176 So. 3d 1247 (Fla. 2015), intended to abrogate and indeed receded from the Second District Court decision in Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 957 (Fla. 2d DCA 2004), which held amounts in excess of what Medicare actually paid on behalf of the Plaintiff inadmissible at trial. However, the Second District Court in Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. Dist. Ct. App. 2020), review granted, No. SC21-43, 2021 WL 1604008 (Fla. Apr. 26, 2021), discussed in detail the decision in Cooperative Leasing and the intent of the Supreme Court to abrogate law set forth in the same. The Court in Dial reasoned: First – Joerg concerned only “future” benefits, which was neither an issue in Dial nor an issue here. Second – the Joerg opinion contained citations to Cooperative Leasing and if the Supreme Court holding was so adverse and hostile to Cooperative Leasing, it would not have cited this case for any purpose. Third – the Dial Court addressed the “footnote” argument made by Dial – and Plaintiff in the instant case – and determined:
…just because a court observes why a factual distinction in a holding it relies upon is “not relevant” to its analysis, it does not mean that the court intends its holding to encompass that very distinction. All the more so where the court explicitly and repeatedly confined the extent of its holding in the way the Joerg court did.
The Dial Court affirmed the lower Court ruling limiting medical bills to that which were “tendered and paid” by Medicare. The Court in this case agreed that Dial is controlling and reversed its ruling granting Defendants’ motion for reconsideration and limiting Plaintiff to board at trial only the amount paid by Medicare for the medical care received, not the total amount of medical bills.