The Verbal Threshold in Florida – Why Concede its Application?
Automobile practitioners see the verbal threshold defense raised regularly as an Affirmative Defense in personal injury crash cases. Paraphrased, this is usually expressed as: If the plaintiff does not have a permanent injury, loss of bodily function, significant scarring, or is not dead, than the plaintiff cannot collect for non-economic damages. But, the paraphrase is wrong because it is incomplete, and the error has made its way into the new jury instructions and suggested verdict forms.
The error that is seen regularly, is the assumption that all defendants get to argue the threshold defense. They do not. Fla. Stat. §627.737 controls this matter:
627.737. Tort exemption; limitation on right to damages; punitive damages
(1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730-627.7405 [the “Florida Motor Vehicle No-Fault Law”], and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in § 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by §§ 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of § 627.733, or by an owner personally liable under § 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).
(2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in 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 in the event that the injury or disease consists in whole or in part of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
The statute is an Affirmative Defense. i.e., Ferraro v. Marr, 467 So.2d 809, 810 (Fla. 2d DCA 1985). If not tried by consent, the defendant therefore has the burden to plead and prove it. i.e., Langford v. McCormick, 552 So.2d 964, 967 (Fla. 1st DCA 1989). Usually, we see this defense pled. Usually, the defense lawyer is more than ready to contest the existence of the threshold injury. However, rarely is the defense lawyer ready to prove the portion of the statute bolded above: that the defendant has PIP insurance. But, that is what the statute requires, unless you try it by consent.
In noting that even non-residents can avail themselves of this defense, if (but only if) they purchase insurance equivalent to Florida PIP insurance, our Supreme Court said:
The trial court ruled in favor of the nonresident defendants. The Fifth District Court of Appeal, sitting en banc, affirmed by an equally divided court, holding that the tort exemption applies to a nonresident who voluntarily obtains PIP coverage which complies with Florida’s no-fault law. 485 So.2d at 905.
Spence v. Hughes, 500 So.2d 538, 539-40 (Fla.1987).
In deciding whether the verbal threshold applies to uninsured coverage cases our Supreme Court noted:
The security referred to in section 627.737 is an insurance policy or other equivalent security which provides PIP benefits. While automobile owners are required to carry PIP coverage, this section rewards them for doing so by exempting them from liability for noneconomic damages except in cases involving permanency or death. The legislative theory is that if every automobile has PIP coverage, injured motorists will be reimbursed by their own carriers for most of their economic damages regardless of fault, and negligence actions against third parties will be limited to the more serious cases.
Dauksis v. State Farm Mutual Automobile Insurance Company, 623 So2d 455, 456 (Fla. 1993).
Then, the Supreme Court struggled with the fact that the tortfeasor uninsured motorist did not have PIP, so would not have a threshold defense, and concludes that the underinsured motorist carrier therefore, standing in the shoes of the tortfeasor, also does not have this defense:
Whether the verbal threshold must be satisfied depends on whether the tortfeasor motorist has provided the security required by the no-fault law. If a tortfeasor motorist has failed to provide the security required by the no-fault law, then the injured plaintiff may obtain pain and suffering damages without satisfying the verbal threshold.
Id. at 457-58.
The actual holding in Dauksis can be contrasted with the result when the tortfeasor has PIP insurance:
Since Tomeu [the underinsured tortfeasor] had PIP coverage, the plaintiff was required to satisfy the verbal threshold in order to obtain pain and suffering damages from Tomeu. Id. § 627.737.
Under the insurance policy, State Farm was entitled to the benefit of Tomeu’s defenses. It follows that the plaintiff was required to satisfy the verbal threshold in order to recover damages for pain and suffering from State Farm under his uninsured motorist coverage.
State Farm v. Gomez, 605 So.2d 968, 970 (Fla.3d DCA 1992); approved, Dauksis at 459.
Then, in Pollard v. Williams, 623 So2d 588 (Fla. 2d DCA 1993), the court held
that whether a plaintiff injured by an uninsured motorist may obtain pain and suffering damages without satisfying the threshold requirements of section 627.737(2) depends on whether the tort-feasor motorist has provided the security required by the no-fault law (PIP) and the language of the uninsured motorist policy. A motorist having PIP coverage is not responsible for pain and suffering damages until the threshold requirements are met. A tort-feasor motorist without PIP coverage is not so insulated and is responsible for pain and suffering damages without the threshold requirement being met.
Pollard at 589 (emphasis added).
Therefore, if the matter is not tried by consent, admitted in the pleadings, or resolved by summary judgment, the failure of the defendant to prove that the defendant had PIP insurance should result in a directed verdict on the verbal threshold defense.
We agree with the district court that the tort exemption applies not only to those individuals required by statute to provide PIP coverage but to every individual (resident or nonresident) who actually provides PIP coverage conforming to the no-fault law. . . . As the majority below pointed out, “the intent of the legislature … and the best interests of the residents of the State of Florida would appear to be to encourage non-residents to voluntarily obtain PIP coverage before traveling on the highways of this state.” . . . We approve the well-reasoned opinion of the court below and, therefore, adopt it in its entirety.
Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th Street
Vero Beach FL 32960-2464