IN THE SUPREME COURT OF FLORIDA

CASE NO. SCl2-1714

NATIONWIDE MUTUAL FIRE INSURANCECOMPANY, a foreign corporation,

Petitioner,vs.

MARK W. DARRAGH,

Respondent.

JURISDICTIONAL ANSWER BRIEF OF RESPONDENT

ON PETITION FROM THE FIFTH DISTRICT COURT OF APPEAL

JEFFREY M. BYRD, ESQ.Fla. Bar. No.: 0959596JEFFREY M. BYRD, P.A.2620 E. Robinson StreetOrlando, FL 32803Telephone: (407) 423-1313Fax: (407) 422-5297attorneybyrd@aggressiveattorneys.comAttorney for Respondent

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TABLE OF CONTENTS

Table of Contents.........................................................................................................ii

Table of Citations........................................................................................................iii

Statement of the Case and of the Facts ....................................................................... 1

Summaryofthe Argument...........................................................................................2

Argument......................................................................................................................3

Conclusion.................................................................................................................10

CertificateofService.................................................................................................11

C .f fC l' 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF CITATIONSCases

Bradshaw v. State Farm Auto. Ins. Co.,714 So. 2d 620, 623 (Fla. 5th DCA 1998)........................... 10

Cooperative Leasing v. Johnson,872 so. 2d 547 (Fla. 4th DCA 2003)...................................................... 4, 6-7

Goble v. Frohman,848 So.2d 406 (Fla. 2d DCA 2003)................................................................6

Goble vs. Frohman,901 So. 2d 830 (Fla. 2005) ................................................................ 1-3, 7, 9

Gormley v. GTE Prods. Corp.,587 So.2d 455 (Fla. 1991)..............................................................................7

Hillsborough County Hosp. Auth. v. Fernandez,664 So.2d 1071 (Fla. 2d DCA 1995)..............................................................7

Milton v. Reyes,

22 So. 3d 624 (Fla 3d DCA 1999).................................................................9

Nationwide Mutual Fire Insurance Company v. Harrell,53 So. 3d 1084 (Fla. 1" DCA 2010)....................................................... 2, 8-9

Sanchez v. Hernandez,971 So. 2d 944, 946 (Fla. 3d DCA 2007).....................................................10

Seaboard Coast Line R.R. Co. v. Burdi,427 So. 2d 1048, 1050 (Fla. 3d DCA 1983)...............................................10

Thyssenkrupp Elevator Corp. v. Lasky,868 So.2d 547 (4th DCA 2003)................................................................... 4-7

Williams v. Pincombe,111

309 So.2d 10 (Fla. 4'" DCA 1975)..................................................................7

Miscellaneous

Florida Statute § 768.76 (1).................................................................................. 1-4Florida Standard Jury Instruction 6.10 ..................................................................10

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STATEMENT OF THE CASE AND OF THE FACTS

For purposes of this Jurisdictional Answer brief, Respondent will not restate

all the matters asserted by the Petitioner, but rather re-incorporates those matters

herein except where Petitioner has omitted certain material matters from the brief.

Prior to trial, the parties filed competing Motions in Limine relating to

important aspects of the damages issues. On July 14, 2009, the Trial Court heard

argument on the issue of whether to introduce the full amount of medical bills at

trial, with supporting memorandum of law. The trial Court reviewed the Florida

Supreme Court case of Goble vs. Frohman, 901 So. 2d 830 (Fla. 2005), and Florida

Statute 768.76 (1), and based upon the Florida Supreme Court decision in Goble and

based upon the clear language found in Florida Statute 768.76, the Court allowed

DARRAGH to publish to the jury the full billed medical charges over Defendant's

objection, and the Court preserved the Defendant's right a post-trial reduction of

such damages. The Court also ruled that the matter of health insurance was not to

be presented to the jury; as such evidence would violate the collateral source rule.

Closing arguments began on the morning of July 24, 2009. DARRAGH

sought damages, based upon the evidence presented during trial, totaling in excess

of $7,000,000. NATIONWIDE argued the total damages of the Plaintiff caused by

the crash were $584,000. The jury awarded DARRAGH a total amount close to the

middle of what each party proposed, $3,994,461.63.

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After a year of delays, a hearing was held on September 14, 2010, which

resulted in a Judgment being entered for the policy limits of $200,000 but the

Judgment also expressly stated that the parties agreed that, but for the limitations

imposed by the subject insurance policy, the Plaintiff would have been able to

recover a judgment in the amount of $3,922,047.20 (which is the verdict minus

various set-offs due to health insurance write-offs plus credits for premiums paid).

The matter was appealed to the Fifth District Court of Appeal by

NATIONWIDE. In an opinion dated June 8, 2012, the Fifth District held:

"We find no error in the trial court's decision to allow testimony of the full amountof Darragh's past medical bills pursuant to section 768.76, Florida Statutes (2009)and Goble v. Frohman, 901 So. 2d 830 (Fla. 2005). The trial court properly treatedthe lesser amount negotiated for payment by Darragh's private health insurer as acollateral source set-off to be made by the judge after trial. See Nationwide Mut.Fire Ins. Co. v. Harrell, 53 So. 3d 1084 (Fla. 1st DCA 2010)." See NationwideMut. Fire Ins. Co. v. Darragh, 95 So. 3d 897 (Fla. 5'" DCA 2012),

Thereafter, NATIONWIDE filed a Motion for Rehearing and/or a Motion for

Certification. This motion was denied by the Fifth District on July 10, 2012. This

petition for discretionary review (on the basis of an alleged conflict) follows.

SUMMARY OF THE ARGUMENT

The trial Court correctly followed the law permitting the entire

incurred medical expenses to be submitted to the jury based upon the Florida

Supreme Court decision in Gobel, and Florida Statute 768.76(1). Accordingly,

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there is no express and direct conflict upon which this Court should grant this

Discretionary Appeal pursuant to Rule 9.120 and Rule 9.030(a)(2)(iv).

ARGUMENT

The Trial Court did not commit eiror, nor abuse its discretion in any

respects throughout the lengthy trial of this case. Accordingly, there is no express

and direct conflict on the issue of how trial courts are to handle post-trial collateral

source set-offs involving health insurance matters; therefore, this Court should not

accept jurisdiction of this matter. Respondent will respond to the alleged errors in

the order presented by the Petitioner in its initial brief.

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION INALLOWING THE FULL MEDICAL BILLS INTO EVIDENCE ASTHAT IS THE REQUIREMENT UNDER THE LAW;THEREFORE, THERE IS NO CONFLICT AS ALLEGED BYNATIOWIDE

The trial Court correctly ruled that the full medical bills go into evidence,

and are thereafter reduced at a post trial hearing by the amount of collateral

sources paid or written off. That is exactly what the Court did in this case at the

post-trial hearing held a year after the trial. Post-trial set-off is the recognized

procedure set forth by the Supreme Court in Goble v. Frohman, 901 So2d 830

(Fla. 2005), and the longstanding common law collateral source rule excluding

evidence of collateral sources during trial. The plain language of the Collateral

Source Statute, F.S. 768.76(1), which provides in part,

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"In any action to which this part applies in which liability is admitted or isdetermined by the trier of fact and in which damages are awarded tocompensate the claimant for losses sustained, the court shall reduce theamount of such award by the total of all amounts which have been paid forthe benefit of the claimant, or which are otherwise available to the claimant,from all collateral sources; however, there shall be no reduction forcollateral sources for which a subrogation or reimbursement right exists."(Emphasis Supplied)

Therefore, when F.S. 768.76(1) of the collateral source statute applies, the

proper procedure to be followed is to allow admission of the full amount of

medical bills into evidence with a post trial set-off by the Court for any

contractual collateral source adjustments.

DARRAGH has had years of medical treatment, including many medical

procedures and surgeries. Respondent's medical care was paid for, in part, by

Respondent's PIP auto insurance (the Petitioner herein), private health insurance,

and/or cash. Also, many of Respondent's bills are outstanding (not paid by any

insurer or collateral source). NATIONWIDE tried to limit the evidence could be

presented to the jury regarding the medical bills actually incurred.

NATIONWIDE claims Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d

547 (4th DCA 2003) and Cooperative Leasing v. Johnson, 872 so. 2d 547 (Fla. 4th

DCA 2003) expressly conflict with the District Court's holding in this case. They

clearly do not. Neither Thyssenkrup nor Cooperative Leasing were relied upon by

the trial court to preclude admission into evidence of the full bills considered,

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adjusted and paid by Medicare (which frankly does not apply under the facts of

this case). Simply put, those decisions solely stand for the position that there shall

be no double recovery by the Plaintiff for damages that have been written off or

adjusted by Medicare. In this case, which is not a Medicare case, Respondent did

NOT REQUEST a windfall or double recovery but rather wanted to present

evidence of the actual past medical bills for 5 distinct purposes:

1. To prevent the jury from hearing any evidence of a collateral source

covering some or part of the bills;

2. To present evidence of the extent and seriousness of Respondent's injuries;

3. To present to the jury evidence of what future medical bills may look like;

4. To present to the jury evidence of non-economic damages; and

5. To avoid jury confusion.

The Fourth district in Thyssenkrup also expressly acknowledged that the

sole issue in front of the Court was to prevent the jury from awarding Plaintiff a

windfall. The Court made no mention of other reasons why a jury may hear

evidence of the actual medical bills incurred thus the trial Court did not read into

Thyssenkrup more than what the opinion expressly stated, which is that the

Plaintiff shall not get a windfall for adjustments or reductions of medical bills. In

this case, the Respondent was not asking for such a windfall but rather sought to

present to the jury evidence of the actual medical bills incurred for other very

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specific purposes as discussed above. Both Thyssenkrup and Cooperative Leasing

are limited to medicare cases. This is not a Medicare case. Neither was Harrell.

In Goble v. Frohman, 848 So.2d 406 (Fla. 2d DCA 2003) (hereinafter

"Goble I"), the trial court denied defendant's Motion in Limine which sought to

limit evidence of past medical bills to only those amounts actually paid by the

HMO provider. Instead, the court followed the collateral source statute, admitted

the full amount of the bills and reduced or set-off the verdict post trial by the

amount of the contractual reductions. The plaintiff appealed the reduction arguing

a contractual reduction or adjustment was not a "benefit paid or available" subject

to a set-off. The defendant filed a cross appeal arguing the court erred by

excluding evidence of the contractual discounts, which is the functional equivalent

of only allowing the amounts of the reduced bills into evidence. The second

district disagreed with both positions holding that contractual discounts or

reductions should be set-off and affirmed the trial court's decision to exclude

evidence at trial regarding collateral source benefits.

In affirming the court's decision, the Goble I court analyzed the purpose and

function of the collateral source rule. It recognized that the collateral source rule

"functions as both a rule of damages and a rule of evidence." I_d at 410. "The

evidentiary rule prohibits the admission of evidence regarding collateral sources in

the liability trial because it misleads the jury on the issue of liability. I_d. (quoting

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Gormley v. GTE Prods. Corp., 587 So.2d 455 (Fla. 1991). "There generally will

be other evidence having more probative value and involving less likelihood of

prejudice than the victim's receipt of insurance type benefits." Id. (quoting

Williams v. Pincombe, 309 So.2d 10 (Fla. 4'" DCA 1975)). Most importantly

"evidence of contractual discounts received by managed care providers is

insufficient, standing alone, to prove that non-discounted medical bills were

unreasonable." Id. (quoting Hillsborough County Hosp. Auth. v. Fernandez, 664

So.2d 1071 (Fla. 2d DCA 1995).

Under this reasoning, it was clear to the trial court that limiting a plaintiff to

admitting into evidence only the amounts of contractually adjusted or reduced

medical bills, which was the functional equivalent of admitting evidence of

collateral sources, violated the purpose and intent of the common law and

statutory collateral source rules. Instead, the trial Court decided to follow the clear

procedure outlined in Goble I and affirmed by this Supreme Court in Goble v.

Frohman, 901 So.2d 830 (Fla. 2005) (hereinafter "Goble II"), which approved the

trial Court's procedure of admitting the full amount of Plaintiffs' medical bills,

and set-off post trial any contractual adjustments or reductions made by the

collateral source provider. If this Court, in Goble II, thought the procedure in

Goble was wrong and inconsistent with Thyssenkrup and Cooperative Leasing, it

surely knew how to address that in Goble II, yet did not. To follow any other

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procedure would have been clear error in light of the express language of the

collateral source statute.

NATIONWIDE should be quite familiar with the law that is directly on

point to the issue of health insurance set-offs. Nationwide Mutual Fire Insurance

Company v. Harrell, 53 So. 3d 1084 (Fla. 18' DCA 2010), considered all of the

very same arguments advanced by NATIONWIDE in this petition, and ruled "the

trial court correctly applied the collateral source rule when it overruled

Defendant's objection and permitted Plaintiff to introduce into evidence the full

medical bills (and to request from the jury the full bills). Harrell went on to

further state:

Petitioner's first contention on appeal is that the trial courtabused its discretion when, notwithstanding a timely objection, itpermitted Respondent to introduce into evidence (and to request fromthe jury) the gross amount of her medical bills, rather than the lesseramount paid by Respondent's private health insurer in full settlementof the medical bills, because it misled the jury as to the true amount ofR.espondent's damages. In support of this position, Petitioner cites anumber of cases, all of which Petitioner contends hold that it isreversible error to permit evidence of the gross amount of medicalbills, rather than the amount actually paid in full settlement of thosebills. However, as Respondent correctly points out, all of those casesinvolved payments made on the injured plaintiffs behalf by Medicare,rather than by a private insurance provider. We conclude that, as aresult, all of those cases are distinguishable from this case because,here, the payments were made by Respondent's private health insurer.the gross amount of her medical bills."

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NATIONWIDE advances the same exact argument that was rejected in

Harrell, and then claims that Harrell conflicts with other case law. How is that

kind of advocacy even possible when it is the same exact party appealing the same

exact issue? For the same exact reasons expressed in the Harrell decision, the trial

Court did not commit error in deciding to follow the exact wording of both the

Supreme Court decision in Goble v. Frohman, 901 So2d 830 (Fla. 2005), and the

plain language of the Collateral Source Statute, F.S. 768.76(1), by conducting a

post-trial hearing. Therefore, there is no alleged conflict of decisions.

II. THE RULING IN DARRAGH DOES NOT REQUIRE RETRIAL OFALL ISSUES, AND CONFLICTS WITH NO REPORTEDDECISION; THEREFORE, THE DISTRICT COURT PROPERLYREMANDED THE CASE FOR TRIAL ON FUTURE ECONMICDAMAGES ONLY.

It is quite a stretch for NATIONWIDE to argue conflict jurisdiction on this

second point. There is only one that relates to the jury instruction issue that gaves

rise to the need for retrial of this case, and that case was followed by the Fifth

District in Darragh: Milton v. Reyes, 22 So. 3d 624 (Fla 3d DCA 1999). The

appeals Court in Milton reversed the case solely for the purpose of retrial of the

jury's award of damages for future medical expenses as a result of the failure to

give a jury instruction regarding reduction of damages to present value. That is

preciselv the same exact issue as in this case, and the Fifth handled it exactly the

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same way (remanding for a retrial on the issue of future damages only). The

Milton decision followed other law in support for this limited re-trial remedy:

"On the points of error asserted by International Club, we find merit only onthe single point, conceded by Reyes, that the trial court erred in failing to giveFlorida Standard Jury Instruction 6.10, which instructs the jury to reduce theaward of future economic damages to present money value. See Seaboard CoastLine R.R. Co. v. Burdi, 427 So.2d 1048, 1050 (Fla. 3d DCA 1983). Accordingly,we reverse this case solely for the purpose of retrial of the jury's award of damagesfor future medical expenses. See e.g., Sanchez v. Hernandez, 971 So.2d 944, 946(Fla. 3d DCA 2007) (ordering new trial only as to the issue of past and futureeconomic damages); Bradshaw v. State Farm Auto. Ins. Co., 714 So.2d 620, 623(Fla. 5th DCA 1998) (reversing and remanding for new trial solely on the elementof the wife's entitlement to loss of consortium damages). In all other respects, weaffirm the verdict reached in this case."

Accordingly, it is truly incomprehensible how NATIONWIDE petitions this

Court on the grounds that such action by the Fifth District in this case expressly

and directly conflicts with other District Courts when it is actually in direct accord

with other jurisdictions.

CONCLUSION

This Court should not accept jurisdiction of this Petition as NATIONWIDE

cannot show the decision appealed herein "expressly and directly conflicts with a

decision of another district court of appeal or of the supreme court on the same

question of law." Rule 9.030(a)(2)(A)(iv).

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was mailed this 21st dayof July, 2011, to: Richard Sherman, Esquire, 1777 South Andrews Ave., Suite 302,Fort Lauderdale, FL 33316, Rsherman@appealsherman.com.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the Answer Brief of Respondent complies with

the font requirements of Rule 9.210(a)(2), Florida Rules of Appe ate Procedure.

Jeffr . yr lEsquireFl ida a # 0959596Je rey M. Byrd, P.A.262 É. Robinson StreetOrlando, FL 32803(407)423-1313Attorneys for the Respondent

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