In the Supreme Court of Florida In the matter of use by the trial courts

In the Supreme Court of Florida

In the matter of use by the

trial courts of the

Case No. SC01-1205

Standard Jury Instructions

(Civil Cases)

____________________________/

Supplemental Report (No. 01-2) of the Committee on

Standard Jury Instructions (Civil) Re:

6.1e Unmarried dependent’s claim under Fla. Stat. §768.0415;

6.2 Personal Injury and Property Damages: Elements

To the Chief Justice and Justices of

the Supreme Court of Florida:

This supplemental report regarding proposed amendments to the Florida

Standard Jury Instructions in Civil Cases is filed pursuant to Article V, section 2(a),

Florida Constitution, and Florida Rules of Civil Procedure 1.985. It is filed under

Case No. SC01-1205 because it supersedes part of the committee’s

recommendations in Supplemental Report (No. 01-1), the initial filing under Case

No. SC01-1205.

On August 27, 2000, the court approved changes to instruction 6.2f of the

Florida Standard Jury Instructions in Civil Cases. Standard Jury Instructions-Civil

Cases (No. 99-2), 777 So. 2d 378 (Fla. 2000). Among the changes was an

instruction for a consortium claim based on United States v. Dempsey, 635 So. 2d

961 (Fla.1994). The Dempsey instruction in 6.2f does not include language that

limits recovery to the time that the child is a minor.

On June 15, 2001, your committee filed Supplemental Report (No. 01-1) in

which it recommends another change to 6.2f. The change would add a new

paragraph for recovery of economic damages in a common law claim for parental

loss of filial consortium. Damages under the new paragraph are limited to the time

the child is a minor. No change to the Dempsey instruction is suggested in that

report.

On November 1, 2001, the court issued its opinion in Cruz v. Broward

County School Board, 26 Fla. L. Weekly S721 (Nov. 1, 2001). The court held that

“under Dempsey the parents' claim is limited to the child's minority.” In response to

that opinion the committee has decided that this limitation needs to be added to the

Dempsey instruction in 6.2f.

In addition to the committee’s work on 6.2f, an amendment to the current

6.2b has been under consideration in light of Gross v. Lyons, 763 So. 2d 276 (Fla.

2000). Based on discussions at meetings from July 2000 through November 2001,

the committee proposes a substantial revision of the current 6.2b. The changes

include moving 6.2b to 6.2g. Because of that renumbering, the committee also

recommends a reorganization of 6.2 by moving the current 6.2c through 6.2f to

6.2b through 6.2e, respectively; by moving the current 6.2h to 6.2f; and by moving

the current 6.2g to 6.2h.

While considering the above changes, the committee recognized that one part

of the current 6.2c provides for recovery of expenses for care and treatment of

claimant’s wife. Based on Connor v. Southwest Florida Regional Medical Center,

668 So. 2d 175 (Fla. 1995) and other opinions, the committee decided that those

expenses should be excised from the instruction.

Also during discussions, the committee concluded that the current 6.2h

(proposed 6.2f) needs a note cross-referencing instruction 6.1e and that a

corresponding note should be added to 6.1e. Those changes are included in this

report.

The committee has decided that its full revision of 6.2 should be substituted

for the amendment to 6.2f as submitted in Supplemental Report (No. 01-1). All

proposed revisions to 6.2 are provided in Appendix A of this report. Those

revisions, except for the changes to 6.2f (proposed 6.2e), were published in The

Florida Bar News on October 1, 2001, a copy being attached at Appendix B, page

1. One response to the publication was received, a copy being attached at

Appendix C, page 1, and that response supports the committee’s proposed Gross

v. Lyons instruction. The original changes to 6.2f (proposed 6.2e) were published

in the November 15, 2000, issue of The Florida Bar News. See Appendix B, page

2. One comment was received in response. See Appendix C, pages 2 through 5.

That comment basically supported the proposed instruction but suggested that the

parents’ economic damages should not be limited to the minority of the child when

the child suffered a total and permanent disability. The committee initially left that

issue open in its original Dempsey instruction and in its recommended instruction in

Report No. 01-1. The court’s holding in Cruz, however, clearly limits those

damages to the child’s minority, and the committee has now added that limitation to

the Dempsey instruction.

The Dempsey instruction amendment in 6.2f (proposed 6.2e) is required by

the holding in Cruz. The wording added to the instruction (“until the child

reaches the age of (legal age)]”) is identical to the wording in other paragraphs of

6.2f (proposed 6.2e), including the new paragraph initially proposed in Report (No.

01-1). The committee therefore requests consideration of the Dempsey instruction

amendment without the formality of publishing it in the Bar News.

Materials considered by the committee are attached at Appendix D. Relevant

excerpts from the committee's minutes are attached at Appendix E.

Respectfully submitted,

______________________

Sylvia H. Walbolt

Chair, Supreme Court Committee on

Standard Jury Instructions (Civil)

One Progress Plaza

200 Central Ave Ste 2300

Saint Petersburg, FL

(727)821-7000

Florida Bar No. 33604

APPENDIX A

PROPOSED REVISIONS

Appendix A, Page 1

6.1

PERSONAL INJURY AND PROPERTY DAMAGES:

INTRODUCTION

. . . .

e. Unmarried dependent's claim under Fla. Stat. §768.0415:

If you find for the (defendant)(s), you will not consider the claim of

(unmarried dependent). However, if you find for (claimant parent), you shall next

consider the claim of (unmarried dependent). The issue for your determination on

this claim is whether the injury sustained by (claimant parent) was a significant

permanent injury resulting in a permanent total disability.

If the greater weight of the evidence does not support the claim of

(unmarried dependent), then your verdict should be for (defendant)(s) on that

claim. However, if the greater weight of the evidence does support the claim of

(unmarried dependent), then you should award to (unmarried dependent) an amount

of money which the greater weight of the evidence shows will fairly and adequately

compensate (unmarried dependent) for damages caused to [him] [her] by the

incident in question. You shall consider the following elements of damage:

NOTE ON USE ON 6.1e

This instruction is intended for use with instruction 6.2f.

If issues arise as to the child's marital status, parentage or dependency, this

instruction should be modified.

Comments on 6.1e

1. Fla. Stat. § 768.0415 does not define "significant permanent injury,"

"dependent" or "permanent total disability." Therefore, the instructions do not

attempt to define the terms.

2. Fla. Stat. § 768.0415 refers only to "negligence." The committee takes

no position as to whether the statute is limited to negligence cases or the definition

of "negligence" in this statutory context. For example, see Fla. Stat. § 768.81(4)(a),

defining "negligence cases."

Appendix A, Page 2

6.2

PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS

Injury, pain, disability, disfigurement, loss of capacity for enjoyment of life:

Any bodily injury sustained by (name) and any resulting pain and

suffering [, disability or physical impairment] [, disfigurement] [, mental

anguish] [, inconvenience] [loss of capacity for the enjoyment of life]

experienced in the past [or to be experienced in the future]. There is no

exact standard for measuring such damage. The amount should be fair and

just in the light of the evidence.

b. Aggravation or activation of disease or defect:

Any aggravation of an existing disease or physical defect [or activation

of any such latent condition], resulting from such injury. If you find that

there was such an aggravation, you should determine, if you can, what

portion of (claimant's) condition resulted from the aggravation and make

allowance in your verdict only for the aggravation. However, if you cannot

make the determination or if it cannot be said that the condition would have

existed apart from the injury, you should consider and make allowance in

your verdict for the entire condition.

Comment on 6.2b

Adapted from C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694

(1937).

c.b.

Medical expenses:

care and treatment of claimant [or claimant’s wife]: (Formerly 6.2c)

The reasonable [value] [or] [expense] of [hospitalization and] medical

[and nursing] care and treatment necessarily or reasonably obtained

by (claimant) [for his wife] in the past [or to be so obtained in the

future].

Appendix A, Page 3

care and treatment of minor claimant after reaching majority:

The reasonable [value] [or] [expense] of [hospitalization and] medical

[and nursing] care and treatment necessarily or reasonably to be

obtained by (minor claimant) after he reaches the age of (legal age).

d.c. Lost earnings, lost time, lost earning capacity:

when lost earnings or lost working time shown: (Formerly 6.2d)

[Any earnings] [Any working time] lost in the past [and any loss of

ability to earn money in the future].

when earnings or lost working time not shown:

Any loss of ability to earn money sustained in the past [and any such

loss in the future].

e.d. Spouse’s loss of consortium and services: (Formerly 6.2e)

On the claim brought by (spouse), you should award (spouse) an

amount of money which the greater weight of the evidence shows will fairly

and adequately compensate (spouse) for damages caused by the incident in

question. You shall consider the following elements of damage:

Any loss by reason of [his wife's] [her husband's] injury, of [his] [her]

services, comfort, society and attentions in the past [and in the future].

f.e. Parental loss of filial consortium; care and treatment of claimant’s minor

child; child’s services, earning and earning capacity; loss of filial consortium as

a result of significant injury resulting in child’s permanent disability: (Formerly

6.2f)

On the claim[s] of (parent(s)), you should award (parent(s)) an amount

of money which the greater weight of the evidence shows will fairly and

adequately compensate (parent(s)) for damages caused by the incident in

question. You shall consider the following element[s] of damage:

The reasonable [value] [or] [expense] of [hospitalization and] medical

[and nursing] care and treatment necessarily or reasonably obtained by

Appendix A, Page 4

(parent(s)) for [his] [her] [their] child, (name), in the past [or to be so obtained

in the future until (name) reaches the age of (legal age)].

[Any loss by (parent(s)) by reason of [his] [her] [their] child's injury, of

the [services] [earnings] [or] [earning ability] of [his] [her] [their] child in the

past [and in the future until the child reaches the age of (legal age)].]

[Any economic loss sustained by (parent(s)) [including] [any earnings

lost in the past][and] [any loss of ability to earn money in the future]

reasonably resulting from the need to care or provide for the child because

of the child's injury [until (name) reaches the age of (legal age)].]

Use the following paragraphs when there is a claim for loss of filial consortium

as a result of significant injury resulting in the child's permanent total disability.

See United States v. Dempsey, 635 So. 2d 961 (Fla. 1994):

In addition, if you find by the greater weight of the evidence that (claimant

child) sustained a significant injury resulting in (claimant child's) permanent total

disability, you shall consider the following element of damage:

Any loss by (parent(s)), by reason of that injury, of the child's

companionship, society, love, affection, and solace in the past [and in the future

until the child reaches the age of (legal age)].

If the greater weight of the evidence does not support the claim of

(parent(s)) that the child sustained a significant injury resulting in permanent

total disability, your verdict should be for (defendant(s)) on this element of

damage.

COMMENTS ON 6.2fe

1. The Committee believes that United States v. Dempsey, 635 So. 2d 961 (Fla.

1994), which recognizes a parental right of recovery for loss of filial consortium, does

not eliminate the common law right to recover for loss of the child's services or

earnings. The common law also allows recovery for a parent's loss of earnings or

other economic loss reasonably resulting from the need to care for an injured child.

Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926).

2. This instruction does not address the issue of a child with extraordinary

income-producing abilities prior to the injury. See United States v. Dempsey, 635 So.

2d at 965.

Appendix A, Page 5

3. Pending further developments in the law, the committee takes no position on

whether the recovery for loss of filial consortium extends beyond the child's age of

majority.

4. A loss of filial consortium claim may require separate interrogatories on the

verdict form on the issues of whether the child sustained a significant injury resulting

in permanent total disability, and the amount of damages on such a claim.

h.f. Unmarried dependent’s damages under Fla. Stat. § 768.0415: (Formerly

6.2h)

Any loss by reason of (claimant parent's) injury of (claimant parent's)

services, comfort, companionship and society in the past and in the future.

Comment on 6.2hf

1. Pending further development of the law, the committee takes no position

as to whether there may be elements of damage not specifically enumerated in the

statute.

2. The duration of future damages for which the child may recover is

unclear. Pending further development of the law, the committee takes no position as

to whether the statute limits recovery of future damages to the life of the parent or the

duration of the claimant's dependency.

NOTE ON USE ON 6.2f

This instruction is intended for use with instruction 6.1e.

g. Other contributing causes of damage:

(1) Aggravation or activation of disease or defect.

If you find that the defendant[s] caused a bodily injury, and that the injury

resulted in [an aggravation of an existing disease or physical

defect][or][activation of a latent disease or physical defect], you should attempt

Appendix A, Page 6

to determine what portion of (claimant’s) condition resulted from the

[aggravation] [or][activation]. If you can make that determination, then you

should award only those damages resulting from the [aggravation][or]

[activation]. However, if you cannot make that determination, or if it cannot

be said that the condition would have existed apart from the injury, then you

should award damages for the entire condition suffered by (claimant).

NOTE ON USE ON 6.2g(1)

6.2g(1) is intended for use in situations in which a preexisting physical

condition is aggravated by the injury, or the injury activates a latent condition. See

C. F. Hamblen, Inc. v. Owens, 127 Fla. 91, 172 So. 694 (1937).

(2) Subsequent Injuries / Multiple Events

If you find that (claimant) suffered bodily injury caused by the

defendant[s], and that thereafter as the result of a subsequent event

(claimant) suffered further bodily injury, you should attempt to determine

what portion of [her][his] damages resulted from each event. If you can

make that determination, then you should award only those damages caused

by the defendant[s]. However if you cannot make that determination, then

you should award all such damages that cannot be apportioned.

NOTE ON USE FOR 6.2g(2)

6.2g(2) is intended to address the situation occurring in Gross v. Lyons, 763

So. 2d 276 (Fla. 2000). It is not intended to address other situations. For example,

see Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977), and Eli Witt Cigar &

Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla. 1951). The committee recognizes

that the instruction may be inadequate in situations other than the situation in Gross

v. Lyons.

Comment on 6.2g(2)

The committee takes no position on whether the subsequent event is limited

to a tortious event, or may be a non-tortious event.

Appendix A, Page 7

g.h.

Property damage (Formerly 6.2g)

Any damage to his (reference automobile or other personal property). The

measure of such damage is:

[the difference between the value of the (reference property)

immediately before the (reference incident complained of) and its value

immediately afterward.]

[the reasonable cost of repair, if it was practicable to repair the

(reference property), with due allowance for any difference between its

value immediately before the (reference incident complained of) and its

value after repair.]

You shall also take into consideration any loss (claimant) sustained [for

towing or storage charges and] by being deprived of the use of his (reference

property) during the period reasonably required for its [replacement]

[repair].

Comment on 6.2gh

Amended 1980 to recognize plaintiff's entitlement to cost of repair in lieu of

diminution in value. E.g., Alonso v. Fernandez, 379 So. 2d 685 (Fla. 3d DCA

1980). Concerning damages for loss of use, see Meakin v. Dreier, 209 So. 2d 252

(Fla. 2d DCA 1968). Concerning prejudgment interest, contrast Jacksonville, T. &

K. W. Ry. Co. v. Peninsular Land, etc., Co., 27 Fla. 1, 9 So. 661 (1891) and

McCoy v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979).

APPENDIX B

The Florida Bar News PUBLICATIONS

APPENDIX C

RESPONSES TO NOTICE IN BAR NEWS

APPENDIX D

MATERIALS CONSIDERED BY

THE COMMITTEE

APPENDIX E

MINUTES EXCERPTS

Appendix E, Page 1

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS (CIVIL)

Omni Jacksonville Hotel

245 Water Street

Jacksonville, Florida

February 18 & 19, 2000

1:00 p.m. to 5:00 p.m. (Friday)

8:30 a.m. to Noon (Saturday)

3.LOSS OF CONSORTIUM—INDIRECT ECONOMIC LOSS (Tab 15).

Altenbernd reported on the subcommittee’s June 22, 2000 memorandum.

That memorandum addressed open questions regarding the scope of an award for

loss of filial consortium. After describing the issue raised by Emmett Abdoney in a

comment to this committee’s published amendment to instruction 6.2(f),

Altenbernd relayed that the subcommittee recommends a further amendment to

address the Abdoney comment. Specifically, the subcommittee recommends a

further modification to 6.2(f) that would add the following bracketed paragraph:

[Any economic loss by (parent(s)),[including any earnings lost

in the past][and any loss of ability to earn money in the future]

reasonably resulting from the need to care or provide for the

child’s injury in the past [and until the child (name) reaches the

age of (legal age)].

A discussion of Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (Fla. 1926),

ensued. Altenbernd moved to amend the committee’s submission to the Florida

Supreme Court. The current submission to the Florida Supreme Court can be

found on page 9-102. The proposed paragraph, cited above, would constitute the

third paragraph of that instruction. Stewart was in favor of the amendment, but

suggested adding a note on use explaining the “legal age” clause. Wagner

responded and pointed to Comment 3 on page 9-103 and suggested that comment

Appendix E, Page 2

accomplished what Stewart suggested. Altenbernd commented that a parental claim

for services and medical care does end at majority.

Further, Altenbernd questioned whether there is a need for both parts of the

clause “the need to care or provide”. It might be redundant. The issue was

unresolved.

Cobb asserted that all claims must be actually caused by the injury at issue.

In response to that comment, Wagner suggested adding the clause “because of the

child’s injury” after the word “child” to clarify the situation.

Stewart posed the question as to whether it would make sense to reverse the

order of the first two clauses, in order to put the clause concerning loss of earnings

before the clause concerning economic loss. In response, Wagner suggested

putting both clauses in brackets to allow the trial judge the opportunity to select

those factors that are appropriate to the facts of a given case. Stroker suggested

that by enumerating such factors, the committee may actually eliminate. This

comment received consensus approval around the committee table.

Walbolt suggested removing the second clause reading “in the past” and

Webster agreed. Eaton raised a hypothetical about the housewife who had never

worked. He stated that such a person can recover for her personal injury.

Altenbernd responded that he was leaning towards omitting “the ability to earn

money in the future” clause altogether. Instead, the phrasing “the opportunity to

earn money in the future” was suggested as an alternative. Griffin expressed her

concern that inclusion of a “loss of opportunity” clause would come back to haunt

the committee.

In the face of a suggestion that the disputed clause should read “loss of

earnings in the future,” Wagner and Beckham stated that the concept of “loss of

earnings in the future” made no sense. They thought it was a foreign concept. Cobb

and Wagner proceeded to discuss the distinction between the word “ability” and

the word “opportunity” in the clause at issue. Wagner suggested using “loss of a

reasonable opportunity” in the disputed clause. Webster offered his opinion that

this instruction will seldom, if ever, be used. Further, he asked whether the

committee could compromise by just adding a comment instead of a new

instruction or, in the alternative, by using the word “ability” instead of

“opportunity”.

Appendix E, Page 3

The committee agreed on the word “ability” in the disputed clause.

The committee also accepted the charge as now written.

The discussion turned to the comment. Webster proposed turning the

drafting of the comment over to Altenbernd. Altenbernd suggested that this is a

tricky comment, particularly on the age of majority issue.

Altenbernd agreed to draft the comment. The proposed instruction

and the proposed comment will be circulated with the minutes for comments

from the committee.

6.2

PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS

. . . .

f. Parental loss of filial consortium; care and treatment of claimant's minor

child; child's services, earnings, earning capacity; loss of filial consortium as a

result of significant injury resulting in child's permanent disability:

On the claim[s] of (parent[s]), you should award (parent[s]) an amount

of money which the greater weight of the evidence shows will fairly and adequately

compensate (parent[s]) for damages caused by the incident in question. You shall

consider the following element[s] of damage:

The reasonable [value] [or] [expense] of [hospitalization and] medical

[and nursing] care and treatment necessarily or reasonably obtained by (parent[s])

for [his] [her] [their] child, (name), in the past [or to be so obtained in the future

until (name) reaches the age of (legal age)].

[Any loss by (parent[s]) by reason of [his] [her] [their] child's injury,

of the [services] [earnings] [or] [earning ability] of [his] [her] [their] child in the past

[and in the future until the child reaches the age of (legal age)].]

[Any economic loss sustained by (parent(s)) [including] [any earnings

Appendix E, Page 4

lost in the past][and] [any loss of ability to earn money in the future] which

reasonably results from the need to care or provide for the child because of the

child's injury [until the child (name) reaches the age of (legal age)].]

Use the following paragraphs when there is a claim for loss of filial

consortium as a result of significant injury resulting in the child's permanent total

disability.

See United States v. Dempsey, 635 So. 2d 961 (Fla. 1994):

In addition, if you find by the greater weight of the evidence that

(claimant child) sustained a significant injury resulting in (claimant child's)

permanent total disability, you shall consider the following element of damage:

Any loss by (parent[s]), by reason of that injury, of the child's

companionship, society, love, affection, and solace in the past and in the future.

If the greater weight of the evidence does not support the claim of

(parent[s]) that the child sustained a significant injury resulting in permanent total

disability, your verdict should be for (defendant[s]) on this element of damage.

COMMENTS ON 6.2f

1. The Committee believes that United States v. Dempsey, 635 So. 2d

961 (Fla. 1994), which recognizes a parental right of recovery for loss of filial

consortium, does not eliminate the common law right to recover for loss of the

child's services or earnings. The common law also allows recovery for a parent's

loss of earnings or other economic loss reasonably resulting from the need to care

for an injured child. Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926). Pending

further development of the law, the committee has limited all common law elements

to end when the child reaches legal age.

2. This instruction does not address the issue of a child with

extraordinary income-producing abilities prior to the injury. See United States v.

Dempsey, 635 So. 2d at 965.

3. Pending further developments in the law, the Committee takes no

position on whether the recovery for loss of filial consortium extends beyond the

child's age of majority.

4. A loss of filial consortium claim may require separate interrogatories

Appendix E, Page 5

on the verdict form on the issues of whether the child sustained a significant injury

resulting in permanent total disability, and the amount of damages on such a claim.

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS (CIVIL)

The Breakers

One South County Road

Palm Beach, FL 33480

July 21 & 22, 2000

1:00 p.m. to 5:00 p.m. (Friday)

8:30 a.m. to Noon (Saturday)

. . . .

LOSS OF CONSORTIUM (Tab 1).

Altenbernd reported, referencing Attachment A to the July 2000 committee

minutes. He stated that when he drafted the additional language for comment 1 to

6.2(f), he anticipated that it would limit the language in comment 3. Both Altenbernd

and Webster believed that the new language in comment 1 now alleviates the need for

comment 3 altogether. It was agreed that comment 3 to 6.2(f) would be deleted

in view of the new proposed language added to comment 1. Comment 4 would

be renumbered as comment 3.

The committee then turned to the substance of the proposed addition to 6.2(f),

as found on page 1-115. Altenbernd highlighted that there was a stylistic problem

using both “the child” and “(name)” consecutively. Altenbernd suggested eliminating

the term “the child,” thus leaving only the option “(name)” to indicate that the child’s

name should be inserted at this point in the instruction. Webster pointed out that such

an edit would then make the new paragraph inconsistent with the preceding paragraph.

The committee decided to use only the term “(name)” in both paragraphs.

Altenbernd then drew the committee’s attention to the phrase “reasonably

Appendix E, Page 6

results from” in the proposed paragraph. He asked whether a bracketed term such as

“reasonably result[s][ed] from” should be added. As an alternative, Gunn suggested

dropping the term “which” and then using the phrase “reasonably resulting from” in

the place of “reasonably results from.” The committee decided to publish the

proposed additional paragraph to instruction 6.2(f) with the term “reasonably

resulting from” and the other changes referenced above, along with the

proposed revisions to the comments.

. . . .

GROSS V. LYONS (Tab 11).

Gerald led the discussion, starting with the subcommittee’s report

located at page 11-46 of the materials. The subcommittee decided that instruction

6.2(b) was not impacted by the decision in Gross v. Lyons from the Florida

Supreme Court. Nonetheless, the subcommittee recommended that (i) the title of

the instruction be changed to make clear that it applies in the “aggravation” case

and not in the “two accident” case; (ii) the instruction be modified to make clear

that it is not describing an element of damage, but rather addresses only how

damages should be approached in an aggravation case; and (iii) the location of

instruction 6.2(b) should be changed—it should be inserted after instruction 6.2(d).

Webster questioned why the subcommittee was editing instruction 6.2(b); he

was unaware that anybody had a problem with the current instruction. Altenbernd

agreed that he did not think the Gross opinion changed the law relevant to

instruction 6.2(b). Gerald then questioned whether Webster believed the proposed

changes hurt anything. Webster responded that he did not believe the proposed

changes would alter the substance, yet he still saw no reason to tinker with the

current instruction.

Cobb believed that instruction 6.2(b) did constitute an element of damages.

He was uncomfortable with the proposed change to the contrary, and thought that

the committee should take the time to debate whether instruction 6.2(b) involved an

element of damages or not. Gerald thought that, in the light of these comments, the

subcommittee should be given the opportunity to reconsider its position and report

back at the February 2001 meeting. Webster noted that, regardless of the

subcommittee’s decision as to revising instruction 6.2(b), the subcommittee should

Appendix E, Page 7

drop a note on use that accounts for the new instruction 6.2(x).

There was no great sense on the committee that instruction 6.2(b)

needed to be changed substantively, but the subcommittee will reconsider

the issue and will report back at the February 2001 meeting.

Gerald turned the committee’s attention to proposed instruction 6.2(x). He

explained that this was the proposal intended to address the Gross v. Lyons case

from the Florida Supreme Court.

Webster commented that he thought the opening sentence (“If you find that

(claimant’s) condition resulted from more than one injury, you should determine . .

.”) was incorrect. He suggested that it should read: “If (claimant) has a condition

that is the result of injuries received in different accidents or occurrences . . .”

Webster stated that otherwise a defendant’s attorney would ask for this instruction

in the situation where the plaintiff has suffered multiple injuries at one time.

Beckham suggested that he believed the Stuart v. Hertz case was just a

“carve-out” to the general rule, so that medical malpractice cases wouldn’t be tried

together with the other case.

Webster suggested that the subcommittee should make clear that the injuries

must arise from “more than one discrete event.” Stroker suggested the phraseology

“more than one unrelated occurrence.”

Questions arose as to how this proposed instruction would impact the Fabré

doctrine. Eaton suggested that portions of Gross could be read to eviscerate the

Fabré doctrine. Thus, he suggested the committee may want to wait for the Florida

Supreme Court to issue an opinion in the D’Amario case, which may clarify this

area of law.

Walbolt asked whether the committee should flag the issue until it is

resolved. Webster suggested that such a flag could be a note on use to instruction

6.2(b).

The subcommittee will continue its work on these issues and will

report back at the February 2001 meeting.

Appendix E, Page 8

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS (CIVIL)

The Hilton Garden Inn

7300 Augusta National Drive

Orlando, Florida 32822

February 16 & 17, 2001

1:00 p.m. to 5:00 p.m. (Friday)

8:30 a.m. to Noon (Saturday)

. . . .

LOSS OF CONSORTIUM—INDIRECT ECONOMIC LOSS (Tab

9).

Altenbernd reported for the subcommittee. He directed everybody’s

attention to pages 9-115 through 9-118.

The proposed 6.2(f) was published for comments and the committee

received a comment dated December 14, 2000 from Richard Roselli.

At bottom, Altenbernd explained that the question at issue is whether the

committee should expressly limit the parents’ ability to recover in the future beyond

the child’s age of majority.

Altenbernd believes that beyond the child’s age of majority, the child could

recover for the parents’ losses. He stated that he believed the proposed instruction

is correct and should be submitted as-is to the Court.

Instruction 6.2(f) will be left as it is proposed and submitted to the

Court.

A discussion of Instruction 6.2(c) ensued. There is an incorrect heading in

the instruction as it is currently published. Whereas the current heading reflects that

the section is titled “Medical expenses of the claimant’s minor child,” the correct

Appendix E, Page 9

heading should have been “Medical expenses of the claimant’s wife.”

It was also noted that the substance of the paragraph is also inconsistent with

Florida law. Mitchell, Cacciatore, and Altenbernd agreed to review Florida law

Friday evening on this point and to report back on Saturday.

On Saturday, Mitchell reported that he had examined the issue. He reported

that the cases of Connor v. Southwest Florida Regional Medical Center, 668 So.

2d 175 (Fla. 1995), Carranna v. Eades, 466 So. 2d 259 (Fla. 2d DCA 1985), and

Rubio v. Rubio, 452 So. 2d 130 (Fla. 2d DCA 1984), are at odds with the

paragraph at issue. Specifically, the “necessaries” doctrine has been abrogated.

It was decided that the relevant portion of the instruction should be revised

as follows:

c. Medical expenses:

care and treatment of the claimant’s wife:

The reasonable [value] [or] [expense] of [hospitalization

and] medical [and nursing] care and treatment necessarily or

reasonably obtained y (claimant) [for his wife] in the past [or to

be so obtained in the future].

The title and substance of the instruction will be fixed as indicated.

The committee did not think there was a need to publish this suggested

change. The change will be circulated with these minutes. If no responses

from committee members are received within 10 days of the circulation of

these minutes, the instruction will be submitted to the Court with the revision

to 6.2(f). Also, Mitchell will draft a letter to Justice Lewis for Walbolt’s

signature explaining the typographical error and the change in the

instruction.

. . . .

12. GROSS V. LYONS (Tab 11).

Appendix E, Page 10

Wagner led the discussion. He started by emphasizing that the placement of

current Instruction 6.2b should be changed.

Mitchell questioned why 6.2(b) was being changed at all. Wagner explained

that the modification needed to make clear that the instruction is not describing an

“element” of damage, but rather is describing how damages are to be approached

in an “aggravation” situation.

Beckham observed that aggravation must be an element of bodily injury.

Altenbernd and Beckham both thought that Instruction 6.2(a) should be changed to

reflect that aggravation is an element of bodily injury.

As to proposed Instruction 6.2(x), Lumish and Beckham questioned whether

it is needed at all. After discussion, the committee seemed to believe that 6.2(x)

was indeed necessary. The placement of both instructions is still at issue.

Altenbernd asked whether the subcommittee could present a package with

recommendations as to the placement and substance of both instructions at the July

2001 meeting. Wagner was concerned that subcommittee would have difficulty

moving any further forward without better direction from the whole committee.

Altenbernd commented that the language of the proposed instructions may

be fairly close to being final, but that placement must still be resolved. He

volunteered to assist in this effort.

Altenbernd will work with Wagner on the substance and placement of the

two proposed instructions. They will report at the July 2001 meeting.

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS (CIVIL)

The Breakers

One South County Road

Palm Beach, Florida 33480

July 12-14, 2001

1:00 p.m. to 5:00 p.m. (Thursday)

9:00 a.m. to Noon (Friday)

8:30 a.m. to Noon (Saturday)

Appendix E, Page 11

GROSS V. LYONS (Tab 11).

Wagner led the discussion. The discussion largely followed a handout that

was distributed at the meeting. [Reporter’s Note: That handout, the revised version

of the proposed instruction submitted by Wagner after the meeting, and a

suggested alternative submitted by Farmer after the meeting are all attached to these

minutes].

Attention turned to the draft of Instruction 6.2(g). Initial consensus was

reached that the term “pre-existing” will be added into the title of this instruction.

This change raised the question as to whether the term “existing” that

appears throughout the instruction itself should be changed to read “pre-existing.”

Cobb was concerned about changing a term hastily and then finding that the change

has unintended consequences later.

Farmer stated that, while he was no supporter of reiteration, he believed that

jurors will understand the term “pre-existing” better than they will understand the

term “existing.”

Picking up on Cobb’s point, Beckham observed that if a change from

“existing” to “pre-existing” is made, the committee should drop a note indicating

that the change was only made in the interest of “plain English” and does not

indicate a substantive change in meaning.

Walbolt indicated that she was not sure such a note would be necessary.

Liles saw no reason to change the word “existing” throughout the instruction.

Stroker then asked if, absent a universal change to the word “pre-existing,”

the title should be changed to include the word “existing” rather than the word

“pre-existing.” Wagner explained that the committee’s three options on this point

included (i) leave the instruction the way it is; (ii) use the word “pre-existing”

throughout; or (iii) use the word “existing” throughout. No consensus emerged.

The discussion then turned to Instruction 6.2(h). It was remarked that this

standard instruction is intended only to apply to fact scenarios like that found in

Gross v. Lyons, 763 So. 2d 276 (Fla. 2000). Altenbernd observed that the term

“inadequate” in the Note on Use is a term of art that allows trial judges to depart

from the standard instruction depending upon the facts presented.

Appendix E, Page 12

As to timing, the observation was made that if the committee publishes the

proposed changes now, comments will be received by and discussed at the

November meeting. Thus, it could be February before these proposed changes are

finalized.

Turning back to the substance of the instruction, Wagner explained that the

instruction was intended to explain the concept that some damages cannot be

apportioned. The committee was not comfortable with the current proposed

wording of the instruction and started to suggest changes. A consensus arose

that the final clause “which cannot be apportioned” should be deleted.

Singer suggested changing “make allowance for” to “award.” Walsh

observed that many damages instructions also use the word “award” currently.

Singer also suggested using the following wording to describe the relevant concept:

“the damages that cannot be apportioned should be awarded.”

Lumish expressed a concern that saying if “you cannot make that

apportionment” does not account for the situation where the jury might be able to

make some apportionment, but not total apportionment.

Wagner suggested substituting the word “determination” for

“apportionment.” Walbolt picked up on the use of the word “determination,” and

suggested that the relevant clause could be switched to read: “If you cannot make

that determination as to any portion of the damages . . . .”

Walbolt and Altenbernd jointly suggested using the following relevant

language: “You should also award those damages that cannot be apportioned.” It

was suggested that this might be changed to read better as follows: “You should

also award any damages that cannot be determined.”

After much discussion, most of the committee favored the following

sentence: “If, however, you cannot make that determination, then you

should also award any damages that cannot be apportioned.” This was

approved by a voice vote.

Wagner observed that if this type of change is made to Instruction 6.2(h), a

corresponding change should be made to Instruction 6.2(g). Griffin observed that

not everything had to be done at once. But Wagner stated that there would be

times where both instructions would be given at once. Cobb responded, however,

Appendix E, Page 13

that he was concerned with changing Instruction 6.2(g) without examining the case

law first.

Farmer stated that he would add the term of art “multiple accidents” to the

title of Instruction 6.2(h). Lumish agreed and stated that the text of the instruction

should also include the term of art “multiple accidents.” But Wagner observed that

Instruction 6.2(g) is also a multiple accidents situation. Wagner also commented

that the committee assiduously avoids the use of the term “accident” because that

term does not elucidate whether the act was tortious or not. A suggested title for

Instruction 6.2(h) was “subsequent injury/multiple accidents or events.”

Wagner asked if everybody agreed with the proposed Note on Use. Lumish

expressed a concern that by listing Stuart v. Hertz Corp., 351 So. 2d 703 (Fla.

1977), and Eli Witt Cigar & Tobacco Co. v. Matapics, 55 So. 2d 549 (Fla. 1951),

the committee risked excluding other relevant decisions. Cobb suggested adding

the words “for example” to address Lumish’s concern.

In the end, it was determined that Wagner would circulate to the

committee a revised version of the proposed instructions attached to these

minutes. That version would add the term of art “multiple accidents” to the

title of Instruction 6.2(h). The committee would have ten (10) days to

comment. The plan is to then publish for public comment.

After the meeting, Farmer circulated (on July 3, 2001) a plain English

proposal for current Instruction 6.2(h).

Appendix E, Page 14

SUPREME COURT COMMITTEE ON STANDARD JURY

INSTRUCTIONS (CIVIL)

Adams Mark Hotel

225 Coastline Drive

Jacksonville, Florida 32202

November 9-10, 2001

1:00 p.m. to 5:00 p.m. (Friday)

8:30 a.m. to Noon (Saturday)

CRUZ V. BROWARD COUNTY SCHOOL BOARD, CASE NO.

SC01-1550 (FLA. 2001).

Wagner and Altenbernd report. The effect of the recent Cruz case was

discussed.

Minor changes need to be made to the substance of Instruction 6.2(f) and

comment 3 to that instruction needs to be eliminated, after the Cruz decision is

final.

The committee decided that the minor changes and the elimination of

comment 3 will be made by Altenbernd and Wagner and the new instruction

will be submitted to the Court with the Gross v. Lyons materials.

GROSS V. LYONS (Tab 11).

Wagner led the discussion. The attachments to the minutes of the July 2001

meeting included the proposal that was published in the Florida Bar News. Since

publication, the subcommittee has received no adverse comments, one positive

comment, and a request that it consider one other topic (see page 11-61). As to the

request that the subcommittee consider another topic, the subcommittee is in

agreement that the other topic should not hold up sending the current proposed

instruction to the Florida Supreme Court. The subcommittee is unanimous that the

current proposed instruction be sent to the Court.

Appendix E, Page 15

The proposed instruction that was published (it was an attachment to

the July 2001 minutes and will be attached to these minutes as well) will be

submitted to the Court, along with the minor changes to 6.2 that are being

effectuated by Altenbernd in accordance with Section 3 of these minutes

above.