When proving damages following a Miami car accident, mere speculation will not be accepted by the courts. One needs to prove in concrete terms:
- How much plaintiff earned before the crash;
- How much plaintiff earned after the crash;
- Whether crash-related injuries and treatment resulted in time away from work;
- Whether crash-related injuries and treatment will result in future time away from work or an inability complete certain tasks.
Of course, lost wages is just one element of overall damages, but it is often a significant one in a claim, and injury lawyers need to spend a fair amount of time ensuring it is fully explored and aptly presented.
In the recent case of Safeco Ins. Co. v. Fridman, Florida’s Fifth District Court of Appeal was reviewing the case for the second time, in this instance on remand from the Florida Supreme Court. The state high court had held that in this uninsured/ underinsured motorist action, plaintiff insured is entitled to a jury determination of liability and the full extent of damages — which might be in excess of the policy limits — prior to litigating a first-party bad faith cause of action. That meant a prior ruling from the 5th DCA was quashed. The case was remanded to the appellate court to determine whether trial court erred in denying the insurer’s motion for a mistrial and a new trial and secondly, whether trial court erred in denial of the insurer’s motion for remittitur (reduction of damages).
As to the first issue, the insurer had argued certain statements made by plaintiff’s attorney were improper and warranted a new trial. The court disagreed with this. However, the appellate panel did rule the lower court was wrong to deny a motion for remittitur on the $1 million damage award when plaintiff’s only proof of lost wages was speculation on how, had he not been injured, he might have succeeded in the short-lived wholesale tile and marble business he started shortly after the crash.
The car accident in question happened in January 2007. He was struck by an uninsured motorist. At the time, plaintiff was 41-years-old and unemployed. Prior tot he incident, he worked as an electronics salesman for several years, earning somewhere between $800-a-week and $1,000-a-week. He also for a time operated a retail tile and marble store, but could not indicate his exact earnings, saying that it was a growing business, but “I don’t remember making a paycheck even.”
Then, soon after the crash, plaintiff opened up a wholesale tile and marble company, which was open just 20 days. The business lost money. Plaintiff insisted he had to close the company because he couldn’t lift the materials as a result of the injury. He then went to work for an electronics store, at which he earned between $400 and $600 weekly. Then he went to a photo company, earning between $500 and $600 weekly. After that, he found a new job at a cash-for-gold firm, at which he earned about $1,200 every week. He still worked there at the time of the trial.
Plaintiff presented evidence to show he couldn’t work for about two weeks after the crash when he needed to have surgery related to the crash. He also provided evidence he would probably need a spinal fusion in the future because of the crash, and that surgery could have him out-of-work for up to four months.
At trial, plaintiff testified he believed he could have in a good year with the wholesale marble and tile company have made up to $200,000. He based this on the assertion that tiles are purchased for 25 cents-a-square-foot and resold for $2-a-square-foot. No other evidence was presented to support this $200,000 annual figure.
Jurors awarded him $1 million, which included $45,000 for previous lost wages and $225,000 for lost future earning capacity. Insurer sought a remittitur, arguing there was not enough evidence to support that level of wage losses.
The appeals court agreed. The court noted that when, as in this case, a plaintiff is earning more after the car accident injury than before, it is not impossible to recover damages for loss of income or future lost earning capacity — but it’s tougher to prove an actual economic loss.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Safeco Ins. Co. v. Fridman, Aug. 12, 2016, Florida’s Fifth District Court of Appeal
More Blog Entries:
State Farm Mut. Auto. Ins. Co. v. Jakubowicz – Auto Insurance Policy Ambiguous, Aug. 2, 2016, Miami Car Accident Lawyer Blog