IN THE SUPREME COURT OF FLORIDA. CASE NO. SC L.T. No. 1D

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1 GAIL GILES, et al., vs. Petitioners CURTIS LUCKIE, Respondent. / IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. No. 1D AMICUS BRIEF OF THE ACADEMY OF FLORIDA TRIAL LAWYERS BARBARA GREEN, P.A South Dixie Highway Suite Gables One Tower Coral Gables, FL Telephone: (305)

2 Facsimile: (305) Florida Bar No

3 TABLE OF CONTENTS STATEMENT OF INTEREST OF AMICUS... 1 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 SECTION (2), FLORIDA STATUTES, PROHIBITS RECOVERY, IN THE ABSENCE OF PERMANENT INJURY, ONLY OF THOSE ELEMENTS OF NON-ECONOMIC DAMAGES SPECIFICALLY ENUMERATED IN THE STATUTE...3 THE LANGUAGE OF THE STATUTE... 3 DISTINCT ELEMENTS OF NON-ECONOMIC DAMAGES... 5 ESTABLISHED PRINCIPLES OF STATUTORY CONSTRUCTION REQUIRE STRICT CONSTRUCTION OF NARROW CONSTRUCTION OF THE IMMUNITY PROVISION OF THE NO FAULT STATUTE IS CONSTITUTIONALLY REQUIRED... 9 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE ii

4 TABLE OF AUTHORITIES Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107 (Fla. 3d DCA 2000) Auto Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla. 1995)... 4 Capers v. State, 678 So. 2d 330 (Fla. 1996)... 7 Capone v. Winn Dixie, 233 So. 2d 175 (Fla. 2d DCA 1970)... 6 Deen v. Quantum Resources, Inc., 750 So. 2d 616 (Fla. 1999) Dearing v. General Motors Accept. Corp., 758 So. 2d 1236 (Fla. 5 th DCA 2000) Giles v. Luckie, 816 So. 2d 248 (Fla. 1 st DCA 2002)... 2 Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982) Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852 (Fla. 2d DCA 1995), approved sub nom Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974 (Fla. 1996) Industrial Fire & Casualty Insurance Co. v. Kwechin, 447 So. 2d 1337 (Fla. 1983)... 9 Ketchen v. Dunn, 619 So. 2d 1010 (Fla. 2d DCA 1993)... 4 iii

5 Kluger v. White, 281 So. 2d 1 (Fla. 1973) Nales v. State Farm Auto. Ins. Co., 398 So. 2d 455 (Fla. 2d DCA 1981)... 10,12 Morowitz v. Vistaview Apartments, Ltd., 613 So. 2d 493 (Fla. 3d DCA 1993)... 7 Powell v. Hegney, 239 So. 2d 599 (Fla. 4 th DCA 1970)... 7 Smey v. Williams, 608 So. 2d 886 (Fla. 5 th DCA 1992)... 4 Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001)... 1 St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071 (Fla. 1982)...7,8 State v. Jett, 626 So. 2d 691 (Fla. 1993)... 8 Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12 (Fla. 1st DCA 1996), aff'd, Merrill Crossing Associates v. McDonald, 705 So. 2d 560 (Fla.1997) Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993)... 9 Welch v. Fega, 800 So. 2d 327 (Fla. 4 th DCA 2001)... 1 Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80 (Fla. 2000)... 9 iv

6 OTHER AUTHORITIES: Article I, 21, Florida Constitution... 3, , Florida Statutes (2), Florida Statutes...passim (5), Florida Statutes (7), Florida Statutes (7)(b), Florida Statutes (2), Florida Statutes (3), Florida Statutes... 6 Florida Standard Jury Instruction 6.2(a)...5,6 v

7 STATEMENT OF INTEREST OF AMICUS The Academy of Florida Trial Lawyers is a large voluntary statewide association of trial lawyers specializing in litigation in all areas of the law. The lawyer members of the Academy are pledged to the preservation of the American legal system, the protection of individual rights and liberties, the evolution of the common law, and the right of access to courts. The Academy has been involved as amicus curiae in cases in all of the Florida appellate courts involving all aspects of the tort and insurance systems, as well as numerous cases involving the right of access to courts. The Academy was granted leave to appear as amicus in Smiley v. Nelson, 805 So. 2d 870 (Fla. 2d DCA 2001) and Welch v. Fega, 800 So. 2d 327 (Fla. 4 th DCA 2001), which involved the same issue as this case. Many Academy members represent claimants in motor vehicle accident cases. This case presents an important question about the damages available under the nofault statute when the jury finds the plaintiff did not suffer a permanent injury: whether the plaintiff is precluded from recovering all noneconomic damages, or only those non-economic damages enumerated in the no-fault statute. The Academy is aware of trial - level cases in almost every circuit in the state in which the question has arisen. Until the decisions of the district courts of appeal, the trial courts were split. 2

8 The Academy believes its input may assist the Court in resolving the issues raised in this case, and that this Court s decision will have a tremendous impact on its members and their clients. The Academy submits this brief in support of the position of Mr. and Mrs. Giles, the Petitioners in this matter. STATEMENT OF FACTS The Academy relies on the facts set out in the decision below. Giles v. Luckie, 816 So. 2d 248 (Fla. 1 st DCA 2002). SUMMARY OF THE ARGUMENT The no-fault statute prohibits recovery of damages in tort for pain, suffering, mental anguish and inconvenience, by persons injured in motor vehicle accidents, unless their injuries meet certain threshold requirements (2), Florida Statutes. The plain language of the statute, established principles of statutory construction, and the Florida constitutional right of access to courts all require narrow construction of this provision, to prohibit recovery only of those elements of noneconomic damages that are specifically enumerated in the statute. The law recognizes many different kinds of non-economic damages. The Legislature chose to list only a few of them in the statute. Unambiguous language is not subject to judicial construction, even if the court is convinced that the Legislature really meant something else. The Court is not empowered to depart from the plain 3

9 meaning of the unambiguous language of the statute. The Legislature s express inclusion of particular items indicates its intent to exclude items it did not specifically mention. Narrow construction of the statute is constitutionally required. Article I, 21, guarantees the right of access to the courts for redress of grievances. Any statute restricting access to court must be construed in a manner that favors access. Where the legislature takes away a common law right to sue in tort and replaces it with a nofault system, the statute must be strictly construed to conform as nearly as possible to the common law. The common law right of recovery should not be abridged unless specifically waived by the statute. Here, the statute specifically eliminates the right to recover in tort only for certain elements of non-economic damages. The statute should be construed to prevent recovery of only those elements. ARGUMENT SECTION (2), FLORIDA STATUTES, PROHIBITS RECOVERY, IN THE ABSENCE OF PERMANENT INJURY, ONLY OF THOSE ELEMENTS OF NON-ECONOMIC DAMAGES SPECIFICALLY ENUMERATED IN THE STATUTE. THE LANGUAGE OF THE STATUTE Under Florida s motor vehicle no fault law, if a tortfeasor has basic insurance coverage as provided by , a plaintiff may recover damages in 4

10 tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle only if the plaintiff s injuries meet certain threshold requirements, such as permanent injury or death (2), Florida Statutes (emphasis added). This language must be strictly construed. Therefore, where a plaintiff fails to meet the no-fault threshold, although the plaintiff may not recover from the tortfeasor those elements of non-economic damages specifically enumerated in the statute, the plaintiff may recover other kinds of non-economic damages that are not specifically mentioned in the statute. The legislature s decision to provide immunity from tort liability for certain elements of damages does not prevent the recovery of other elements of damages for which the legislature has not provided immunity from tort liability. See generally, e.g., Auto Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla. 1995)(no-fault statute did not preclude recovery of future medical expenses even if jury found no permanent injury),(approving Ketchen v. Dunn, 619 So. 2d 1010 (Fla. 2d DCA 1993); Smey v. Williams, 608 So. 2d 886 (Fla. 5 th DCA 1992) (no-fault statute did not preclude recovery for future medical expenses and loss of earnings where jury found no permanent injury). The plain language of the statute prohibits recovery of damages for pain, suffering, mental anguish and inconvenience. It does not prohibit recovery of 5

11 damages for other non-economic losses such as disability, physical impairment, disfigurement or loss of capacity for enjoyment of life. DISTINCT ELEMENTS OF NON-ECONOMIC DAMAGES The list of non-economic damages in the no-fault statute is not an exhaustive list of non-economic damages available under the common law. The law recognizes many other types of non-economic damages besides pain, suffering, mental anguish and inconvenience. Florida Standard Jury Instruction 6.2(a) lists pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience and loss of capacity for the enjoyment of life as recoverable non-economic damages in personal injury cases. (brackets omitted). The legislature knows about the different types of non-economic damages, and has selected different ones to include in different statutes when it deemed it appropriate. For example, in one part of the medical malpractice statute, the term noneconomic damages is defined as nonfinancial losses... including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life and other nonfinancial losses (7), Florida Statutes (emphasis added). However, under the arbitration provision of the medical malpractice statutes, (7)(b), noneconomic damages are calculated on a percentage basis with respect to capacity to enjoy life. (emphasis added). 6

12 The Legislature made different kinds of non-economic damages available under the wrongful death act. A surviving spouse may recover damages for loss of the decedent s companionship and protection and for mental pain and suffering from the date of the injury (2), Florida Statutes (emphasis added). Minor children may recover for lost parental companionship, instruction, and guidance and for mental pain and suffering (3) (emphasis added). And, in the Florida Civil Rights Act, the Legislature specifically listed yet another kind of non-economic damages, loss of dignity. There, the Legislature provided that one who is a victim of unlawful discrimination may recovery damages for mental anguish, loss of dignity, and any other intangible injuries (5), Florida Statutes (emphasis added). The Legislature apparently recognized that discrimination inflicts a special kind of harm, and wanted to make sure to provide a remedy for it. The courts recognize that the different kinds of non-economic damages really are different. In Capone v. Winn Dixie, 233 So. 2d 175 (Fla. 2d DCA 1970), the court attempted to give Florida Standard Jury Instruction 6.2(a) but omitted the elements of disability, mental anguish and inability to lead a normal life. The instruction given included only pain and suffering as non-economic damages. The Second District reversed because the instruction omitted essential elements of non-economic damages: Disability, mental anguish, and loss of capacity for the enjoyment of life are important 7

13 elements of damages, and in the absence of instruction thereon, we cannot assume that the jury considered them 233 So. 2d at 177. The court held that the instruction listing only pain and suffering did not encompass these other elements. Accord, Powell v. Hegney, 239 So. 2d 599 (Fla. 4 th DCA 1970) (reversible error to omit elements of disability, mental anguish and inability to lead a normal life from standard instruction on non-economic damages). See generally Morowitz v. Vistaview Apartments, Ltd., 613 So. 2d 493, 495 (Fla. 3d DCA 1993)(recognizing distinction between mental anguish resulting from physical injuries and aggravation of psychiatric condition). Because the different elements of non-economic damages are recognized as distinct throughout Florida law, the legislature must be presumed to know what they are and to have chosen to provide an exemption from tort liability for only a few particular elements of damages in (2). ESTABLISHED PRINCIPLES OF STATUTORY CONSTRUCTION REQUIRE STRICT CONSTRUCTION OF Basic principles of statutory construction require a strict construction of , limiting its immunity protection to only those elements of non-economic damages specifically enumerated in the statute. The plain meaning of statutory language is the first consideration of statutory construction. Capers v. State, 678 So. 2d 330, 332 (Fla. 1996); St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1072 (Fla. 1982). A court should not 8

14 consider anything extrinsic to the statute in construing the language employed by the legislature, unless the statute is of doubtful meaning. Unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. State v. Jett, 626 So. 2d 691, 693 (Fla. 1993). Even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart form the plain meaning of the language which is free from ambiguity. Hamm, 414 So. 2d at 1073 (citation omitted). Accord, State v. Jett, supra. In Jett, the Florida Supreme Court used these rules of statutory construction to strictly construe a statute waiving the psychotherapist-client privilege. A broader interpretation of the statute would have been less damaging to the privilege. Nevertheless, the Court was bound by the settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. Jett at 693. Although the Court found much to commend a broader reading of the statute, it found that the decision whether or not to engraft that view into the Florida Statutes is for the legislature. We trust if the legislature did not intend the result mandated by the statute s plain language, the legislature itself will amend the statute at the next opportunity. Id. Despite legitimate concerns about the abrogation of the privilege resulting from a strict reading of the statute, the Court followed the legislature s unambiguous language. 9

15 These longstanding principles require that the no-fault statute must be strictly construed, and the words used by the legislature must be given their plain meaning. Where the jury finds that the plaintiff is not permanently injured, the plaintiff should be prohibited from recovering only those elements of damages specifically set out in the statute: pain, suffering, mental anguish and inconvenience. The legislature chose to list only these elements of non-economic damages, and not to list other elements such as disability, disfigurement, and loss of the capacity for enjoyment of life. Under the venerable doctrine of inclusio unius est exclusio alterius, the legislature s express inclusion of particular items indicates its intent to exclude items it did not specifically mention. Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85 (Fla. 2000); Industrial Fire & Casualty Insurance Co. v. Kwechin, 447 So. 2d 1337, 1339 (Fla. 1983). Because the legislature in (2) included particular elements of non-economic damages, but not others, it should be presumed that the legislature intended not to provide immunity from tort liability for those elements it did not list. NARROW CONSTRUCTION OF THE IMMUNITY PROVISION OF THE NO FAULT STATUTE IS CONSTITUTIONALLY REQUIRED Narrow construction of statutory immunity in a system like Florida s automobile no fault system is required because the Florida Constitution requires that any statute restricting access to court must be construed in a manner that favors access, not in a 10

16 manner that favors the restriction. Weinstock v. Groth, 629 So. 2d 835, 838 (Fla. 1993) (narrow construction of medical malpractice presuit notice requirements constitutionally required). See also, e.g., Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 768 So. 2d 1107 (Fla. 3d DCA 2000) (because it is in derogation of the common law, section , requiring apportionment of fault, must be strictly construed in favor of the common law); citing Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 17 (Fla. 1st DCA 1996), aff'd, Merrill Crossing Associates v. McDonald, 705 So. 2d 560 (Fla.1997); Dearing v. General Motors Accept. Corp., 758 So. 2d 1236 (Fla. 5 th DCA 2000) (language of long term lease did not technically comply with language of statutory exception to liability under the dangerous instrumentality doctrine; lessor of vehicle liable because statute in derogation of common law must be strictly construed) In Nales v. State Farm Auto. Ins. Co., 398 So. 2d 455 (Fla. 2d DCA 1981), the court held that, even though the jury found that the plaintiff did not meet the no-fault threshold, the plaintiff still was entitled to claim punitive damages, because (2) did not expressly exclude them. The court properly construed the statute narrowly to preserve a right that existed at common law that the statute did not specifically abolish. The court stated: [T]he Florida no-fault law is a statutory limitation on an injured party's common law right of action in tort and, as such, it must be strictly construed 11

17 to conform the statute as nearly as possible to the common law, and as so as not to displace the common law any further than is clearly necessary. 398 So. 2d at 456. The reason for this rule is Florida s constitutional provision protecting the right of access to courts. Article I, 21 of the Florida Constitution guarantees: The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. This provision means that, where a right of access to courts for redress of a particular injury is a part of the common law of the state, the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973)(statute abolishing cause of action for automobile property damages violated Article I, 21). In enacting the no-fault insurance law, the Legislature took away a common law right to sue in tort, in exchange for the right to recover benefits under a no-fault system. Florida s constitutional right of access to courts protects the right to sue for torts recognized 12

18 at common law. Consequently, the immunity provision in the statute must be narrowly construed to take away no more than absolutely necessary. The reasoning in Nales, allowing punitive damages despite the plaintiff s failure to meet the no fault threshold, is consistent with the Supreme Court s reasoning in other circumstances in which the legislature has taken away the right to sue in tort and replaced it with another system. The legislature took similar action in the field of injuries to workers, taking away the right to sue in tort for some injuries, and replacing it with a system providing compensation without regard to fault. In that arena, the Supreme Court has held that statutes providing immunity from suit must be strictly construed. Deen v. Quantum Resources, Inc., 750 So. 2d 616 (Fla. 1999). In Deen, the Supreme Court ruled that the statutory employer immunity provision of the worker s compensation statute must be strictly construed to provide immunity only when the precise requirements of the statute are met. The Deen Court stated: The common law right of recovery from third parties in tort should not be abridged unless specifically waived by the workmen s compensation statutes. 750 So. 2d at 621, quoting Gulfstream Land & Development Corp. v. Wilkerson, 420 So. 2d 587 (Fla. 1982) (emphasis added). The Court reached a similar conclusion with respect to the Florida Birth-Related Neurological Injury Compensation Plan (NICA), a no-fault substitute for the right to sue in tort for certain acts of medical malpractice: [B]ecause the Plan, like the 13

19 Worker s Compensation Act is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms. Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995), approved sub nom Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974 (Fla. 1996). The legislature has set up the no-fault insurance system to provide compensation for certain kinds of injuries without regard to fault. In exchange, it has limited, but not abolished, the right to sue in tort. For the same reasons that the Supreme Court narrowly construed the immunity language of the worker s compensation statute, this Court should narrowly construe the immunity provision of the no-fault statute, to provide immunity from tort liability only for those damages specified by the legislature. CONCLUSION The specific language of , long-established rules of statutory construction, and principles mandated by the Florida Constitution all require a narrow construction of the statute, limited to its express language. The Court should hold that the statute provides tort immunity only for those elements of damages specifically enumerated, and that plaintiffs who are not permanently injured must be allowed to recover all other elements of damages for which the legislature has not expressly provided an exemption. 14

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21 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail to: JAMES A. McGHEE, ESQUIRE, Attorney for Respondent, 3298 Summit Boulevard, Suite 29, Pensacola, FL 32503; ANGELA C. FLOWERS, ESQUIRE, Co-counsel for Respondent, 25 West Flagler Street, Penthouse, Miami, FL 33130; JAMES F. McKENZIE, ESQUIRE, Counsel for Petitioners; McKenzie & Taylor, P.A., 905 East Hatton Street, Pensacola, FL 32503; DONALD A. DOWDELL, ESQUIRE, Counsel for Amicus Curiae, Florida Department of Insurance, 200 E. Gaines Street, Tallahassee, FL this day of July, Respectfully submitted, BARBARA GREEN, P.A South Dixie Highway Suite Gables One Tower Coral Gables, FL Telephone: (305) Facsimile: (305) BY: BARBARA GREEN Florida Bar No

22 CERTIFICATE OF TYPEFACE COMPLIANCE In compliance with Florida Rule of Appellate Procedure 9.210(a)(2), counsel for Amicus, Academy of Florida Trial Lawyers certifies that the size and style of type used in this brief are 14 point type, New Times Roman. BARBARA GREEN Florida Bar No