IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC13-1768 L.T. NO's: 2Dll-6229, 2D12-1246 (Consolidated)

JOHN JOERG, JR., individually and as natural father and guardian of LUKE AUGUSTINE JOERG,

Petitioner,

vs.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Respondent.

AMICI CURIAE BRIEF OF PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA AND NATIONAL ASSOCIATION

OF MUTUAL INSURANCE COMPANIES IN SUPPORT OF RESPONDENT STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMP ANY

COLODNY, FASS, TALENFELD, KARLINSKY, ABATE &WEBB, P.A. MARIA ELENA ABATE, ESQ. Florida Bar No. 770418 mabate@cftlaw.com CHARLYNE M. PATTERSON, ESQ. Florida Bar No. 23221 cpatterson@cftlaw.com Attorneys for Amici Curiae One Financial Plaza, 23 rct Floor 100 Southeast Third A venue Fort Lauderdale, Florida 33394 Telephone: 954 492-4010

Filing # 19055732 Electronically Filed 10/06/2014 04:04:14 PM

RECEIVED, 10/6/2014 16:13:49, John A. Tomasino, Clerk, Supreme Court

TABLE OF CONTENTS

TABLE OF CITATIONS .......................................................................................... ii

INTRODUCTION ..................................................................................................... 1

INTEREST OF AMICI CURIAE ............................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 2

ARGUMENT ............................................................................................................ 3

I. THE SECOND DCA'S APPLICATION OF STANLEY TO THIS CASE UPHOLDS FLORIDA'S PUBLIC POLICY TO REDUCE INSURANCE COSTS ......................................................... 3

II. PREVENTING CONSIDERATION OF MEDICARE BENEFITS BY THE JURY WILL ARTIFICIALLY AND UNNECESSARILY INFLATE COMPENSATORY DAMAGE AWARDS ............................................................................................. 6

III. THE COLLATERAL SOURCE RULE HAS NO APPLICABILITY IN THIS CASE .................................................... 11

CONCLUSION ....................................................................................................... 15

CERTIFICATE OF SERVICE ................................................................................ 16

CERTIFICATE OF COMPLIANCE ...................................................................... 18

TABLE OF CITATIONS

CASES PAGE

Allstate Insurance Co v. Rudnick, 761 So. 2d 289 (Fla. 2000) ............................................................................ 11

Bates v. Hogg, 921 P. 2d 249 (Kan. 1996) ............................................................................ 12

Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004) ......................................................... 4,5,6

Corenbaum v. Lampkin, (2013) 215 Cal. App. 4th 1308 ............................................................. 12,13,14

Florida Physicians Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984) ..................................................................... passim

Goble v. Frohman, 901 So. 2d 830 (Fla. 2005) ............................................................................ 14

Gormley v. GTE Products, 587 So. 2d 455 (Fla. 1991) ......................................................................... 3,11

Hanif v. Housing Authority, (1988) 200 Cal. App. 3d 635 ......................................................................... 12

Howell v. Hamilton Meats & Provisions, Inc., (2011) 52 Cal. 4th 541. .............................................................................. 13,14

Kastickv. U-Haul Co. ofW Mich., 740 N.Y. S. 2d 167 (N.Y. Sup. Ct. App. Div. 2002) .................................... 12

Lofton v. Wilson, 67 So. 2d 185 (Fla. 1953) ................................................................................ 6

State Farm Mutual Auto Ins. Co. v. Joerg, 2013 WL 3107207 (Fla. 2d DCA June 21, 2013) ........................................... 5

11

Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003) ......................................................... 4,5,6

STATUTES AND RULES

§ 768.76, Florida Statutes (2014) ...................................................................... 3,5,11

Ch. 86-160, § 2 Laws of Fla ...................................................................................... 6

OTHER AUTHORITIES

Florida Standard Jury Instructions (Civil) 6. l(a) and 6.2(b ) ..................................... 7

Hospital Billing Varies Wildly, Government Data Shows, NY Times, May 8, 2013 .............................................................................................................. 8

Hospital Pricing and the Uninsured: Do the Uninsured Pay Higher Prices? 27 Health Affairs 116 (2008) .................................................................................. 10

Medicare Patients' Access to Physicians: A Synthesis of Evidence, December 2013 .......................................................................................................... 8

Medicare Physician Fee Schedule, Payment System Fact Series, May 2014 ................................................................................................................... 9

National Nurses United and Institute for Health and Socio-Economic Policy, New Data -Some Hospitals Set Charges at 10 Times their Costs, Jan. 6, 2014 .... 10

Overcharging the Uninsured In Hospitals: Shifting a Greater Share of Uncompensated Medical Care Costs to the Federal Government, 26 Quinnipiac L. Rev. 173 (2007) ............................................................................. 9

Paying a Visit to the Doctor: Current Financial Protections for Medicare Patients When Receiving Physician Services, April 2014 ........................ 8

Restatement (Second) of Torts§ 911 cmt. h (1979) ............................................... 12

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INTRODUCTION

Amici Curiae, the Property Casualty Insurers Association of America

("PCI"), and the National Association of Mutual Insurance Companies

("NAMIC") submit this amici brief in support of Respondent, State Farm Mutual

Insurance Company's ("State Farm") Answer Brief on the Merits.

INTEREST OF AMICI CURIAE

Amici curiae are trade associations representing the interests of property and

casualty companies. Amici have an interest in fostering and promoting a healthy,

competitive insurance market in the State of Florida, creating and maintaining a

stable and competitive marketplace for both insurers and consumers alike, and

ensuring that the various elements contributing to the overall efficiency and

effectiveness of Florida's property and casualty insurance industry are maintained

and protected.

As such, amici have an interest in issues pertaining to the interpretation of

the laws, statutes, or provisions affecting property insurance carriers and insureds

in Florida. The present case is significant to amici in that it seeks to undermine

Florida's public policy by allowing awards for phantom medical charges that a

plaintiff will never be obligated to pay. Such awards will likely lead to an

unnecessary increase in the cost of insurance to all Florida consumers while

allowing a windfall award to the plaintiff.

SUMMARY OF ARGUMENT

At issue in this case is whether a trier of fact should be allowed to consider

Plaintiffs eligibility under the Medicare program in determining an appropriate

award of future medical damages. This question was squarely answered in the

affirmative by this Honorable Court's decision in the case of Florida Physicians

Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984). The circumstances

and public policy concerns in Stanley are in no way materially different from the

facts and issues before the court in the instant case.

If parties are precluded from presenting evidence of the availability of low

or no-cost governmental benefits accessible by persons similarly situated to Mr.

Joerg, and the jury is not able to take into consideration the availability of those

benefits in determining the reasonable amount of damages to award, compensatory

damages will substantially overstate the actual costs of future medical care.

Damages calculated and paid in this manner will lead to increased loss costs which

would unnecessarily increase the costs of insurance which are ultimately borne by

policyholders. This would serve to subvert public policy and reverse the strides

created by the enactment of the Tort Reform Act of 1986, which was specifically

enacted to address the lack of affordable liability insurance in Florida.

The application of a "collateral source rule" to preclude evidence of

Medicare access in considering future damages, will increase the likelihood of

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unsupported payouts by insurance earners across the board. Accordingly, this

Court should affirm.

ARGUMENT

I. The Second DCA's Application of Stanley to this Case Upholds Florida's Public Policy to Reduce Insurance Costs.

In Florida Physician's Insurance Reciprocal v. Stanley, 452 So.2d 514

(Fla.1984), this Honorable Court determined that "the common-law collateral

source rule is limited to those benefits earned in some way by the plaintiff." The

common law collateral source rule had, prior to this Court's decision in Stanley,

(and prior to legislative promulgation of Florida Statute Section 768.76) permitted

plaintiffs to recover medical expenses, irrespective of whether the plaintiff had

already received compensation through insurance or other sources. The

justification for such "double recovery" in insurance cases was "because the

plaintiff may have paid substantial premiums over a long span of time without ever

having received benefits. The costs of premiums may, in fact, far exceed the

benefits received." Gormley v. GTE Products, 587 So.2d 455, 457 (Fla. 1991).

But, where the case involves public benefits and not health insurance, and

the plaintiff has made no contributions for the benefits received, the justification

for such "double recovery" is eliminated. As was noted by this Court in Stanley:

Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining

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the reasonable cost of necessary future care. Keeping such evidence from the jury may provide an undeserved and unnecessary windfall to the plaintiff.

Stanley, 453 So.2d at 515.

In other cases dealing with public benefits, appellate courts have also

applied this Court's holding in Stanley. In Cooperative Leasing, Inc. v. Johnson,

872 So.2d 956, 957 (Fla. 2d DCA 2004), for example, the plaintiffs award for past

medical expenses was limited to the amounts paid by Medicare because the

plaintiff was never liable for the billed amounts that were written off by her

medical services providers pursuant to their Medicare agreements.

Similarly, in Thyssenkrupp Elevator Corp. v. Lasky, 868 So.2d 54 7, 549

(Fla. 4th DCA 2003), the Fourth District Court of Appeal reversed damages that

were awarded based on the full amount of medical bills charged, where the

plaintiff was covered by Medicare and the doctor accepted a lesser amount in full

satisfaction of the bills. Finding support in this Court's decision in Stanley, the

court acknowledged, where "the plaintiff has incurred no expense, obligation or

liability," the policy behind application of the collateral source rule is not

applicable. Id. at 550. The court reasoned that "a plaintiff has suffered no damage

from the higher charge by the provider when it later accepts Medicare payment in

full satisfaction of the charge," and additionally noted that when a provider accepts

a contractual fee in full satisfaction of a bill, "the original charge becomes

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irrelevant because it does not tend to prove that the claimant suffered any loss by

reason of the charge." Id. at 551.

The decisions in Stanley, Cooperative Leasing, and Thyssenkrupp, uphold

the very same principles that led to the Florida Legislature's statutory abrogation

of the common law collateral source rule when it passed the Tort Reform Act of

1986. In deciding to modify the common law, the Florida Legislature specifically

found that double recovery did not serve a truly compensatory purpose and

contributed to spiraling liability insurance costs. Thus, it enacted Florida Statute §

786.76, which requires Florida courts to "set-off' (deduct) funds received from

collateral sources from jury awards unless a right of subrogation or reimbursement

exists. See State Farm Mut. Auto Ins. Co. v. Joerg, 2013 WL 3107207 at *2 (Fla.

2d DCA June 21, 2013) (noting the Legislature's enactment of the Tort Reform

and Insurance Act of 1986 was in response to a crisis in accessing affordable

insurance and avoiding undue windfalls to plaintiffs); see also Coop. Leasing, 872

So.2d at 959 (noting legislative policy of preventing undue windfalls to a plaintiff

who might otherwise be compensated by the tortfeasor and the insurance

company); Thyssenkrupp, 868 So. 2d at 550 (noting public policy of reducing

health care costs).

Notably, the Legislature provided the following explanation of the Tort

Reform Act's underlying policy considerations:

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The Legislature finds and declares that a solution to the current crisis in liability insurance has created an overpowering public necessity for a comprehensive combination of reforms to both the tort system and the insurance regulatory system. This act is a remedial measure and is intended to cure the current crisis and to prevent the recurrence of such a crisis. It is the purpose of this act to ensure the widest possible availability of liability insurance at reasonable rates, to ensure a stable market for liability insurers, to ensure that injured persons recover reasonable damages and to encourage the settlement of civil actions prior to trial.

Ch. 86-160, § 2 Laws of Fla.

Accordingly, this Honorable Court should uphold its decision in Stanley,

which is in line with Florida's stated public policy of preventing double recovery

and avoiding rising health and insurance costs.

II. Preventing Consideration of Medicare Benefits By the Jury Will Artificially and Unnecessarily Inflate Compensatory Damage Awards.

It is well established that in Florida, an injured party is entitled to recover the

"reasonable value" of medical care resulting from the defendant's negligence.

Coop. Leasing, 872 So.2d at 956; Thyssenkrupp 868 So.2d 547 at 550, clarified on

motion for rehearing (Mar. 10, 2004 ). Further, in considering whether to award

damages for ongoing medical conditions, future medical expenses must not be

speculative and must be reasonably certain to occur in the future. Lofton v. Wilson,

67 So.2d 185, 188 (Fla. l 953)("In every case, plaintiff must afford a basis for a

reasonable estimate of the amount of his loss and only medical expenses which are

reasonably certain to be incurred in the future are recoverable.") Because of this,

Florida Standard Jury Instruction 6. l(a) provides, in part, as follows:

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You should award (claimant) an amount of money that the greater weight of the evidence shows will fairly and adequately compensate [him] [her] for such [loss] [injury] [or] [damage], including any such damage as (claimant) is reasonably certain to [incur] [experience] in the future.

Similarly, Florida Standard Jury Instruction 6.2(b ), contemplates an award for

only:

The reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future].

Florida Standard Jury Instructions (Civil) 6.1 (a) and 6.2(b) (emphasis supplied).

Consequently, defendants in a lawsuit must be entitled to present an accurate

assessment of a plaintiffs future medical needs based on the true value of available

services which a plaintiff is reasonably certain to incur. Part of that reasonable

value must be determined by properly conveying to the jury the availability of

lower cost or free governmental benefits. See, Stanley, 452 So.2d at 516. Failing

to do so creates potential windfalls for plaintiffs who have not paid into the system,

but will surely reap the benefit of the lower cost or free medical care that is readily

available.

Indeed, the Medicare system is replete with doctors who accept Medicare

patients and have already agreed to accept lower reimbursement for services

provided. In two recent Issue Briefs, the Henry Kaiser Family Foundation

determined that "the vast majority (96%) of Medicare beneficiaries report[ ed]

having a usual source of care, primarily a doctor's office or doctor's clinic." This

7

translated into 91 % of non-pediatric physicians accepting new patients-the same

percentage as private physicians. 1 Medicare Patients' Access to Physicians: A

Synthesis of Evidence, December 2013, available at http://kff.org/medicare/issue-

brief/medicare-patients-access-to-physicians-a-synthesis-of-the-evidence/. It 1s

relatively certain that most injured persons will receive care from a physician who

has already agreed to accept Medicare reimbursement levels. Accordingly,

admissibility of a plaintiffs access to Medicare provides a more accurate position

for determining damages for future medical expenses.

Furthermore, medical costs vary wildly. The data of over 3,300 hospitals

researched by the federal Centers for Medicare and Medicaid Services, shows that

there is wide variations in hospital charges. Hospital Billing Varies Wildly,

Government Data Shows, NY Times, May 8, 2013,

www.nytimes.com/2013/05/08/business/hospital-billing-varies-wildly-us-data-

shows.html. For example, the data established that a gallbladder removal (using

minimally invasive surgery) in a St. Augustine hospital was typically billed out at

$40,000, while the same procedure in Orange Park, Florida was billed out at

1 Those who officially opted not to accept Medicare reimbursements at all (less than 1 % of physicians overall) overwhelmingly practiced psychiatry ( 42% ). Paying a Visit to the Doctor: Current Financial Protections for Medicare Patients When Receiving Physician Services. April 2014, available at http://kff.org/medicare/issue-brief/paying-a-visit-to-the-doctor-current-financial­protections-for-medicare-patients-when-receiving-physician-services/

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$91,000. Id. Since Medicare does not actually pay the amount charged by the

hospital but instead bases its reimbursement on a formula that cuts through these

wide discrepancies in billing, excluding the Medicare cost from the jury's

consideration would not provide the jury with an accurate basis from which to

determine reasonable damages for future costs of medical care and would lead to

inaccurate, over-inflated verdicts.2

More importantly, the difference between the amount of medical expenses

billed by a health care provider, and the amount that the plaintiff, through

Medicare, actually pays for those services is staggering. It is common knowledge

that in recent years, healthcare providers have rapidly increased their billed rates,

while the practice of discounting these costs has become widespread. According to

one noted commentator, in the nation's health care payment system, "a hospital list

price is relatively meaningless." James McGrath, Overcharging the Uninsured In

Hospitals: Shifting a Greater Share of Uncompensated Medical Care Costs to the

Federal Government, 26 Quinnipiac L. Rev. 1 73, 185 (2007).

Florida hospital list prices are among the highest in the country. A recent

study by the Institute for Health and Socio-Economic Policy found that the charge-

to-cost ratio of Florida hospitals is 555.36%, compared to an average of 331 %

2 See Medicare Physician Fee Schedule, Payment System Fact Series, dated May 2014, available at www.cms.gov/outreach-and-education/medicare-leaming­network-mlnproducts/downloads/medcrephysFeeSchedfctsht.pdf.

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nationwide, while half of the top ten hospitals with the highest charge-to-cost ratio,

are located in Florida. The study additionally found that the billed rate at some

hospitals can be as high as ten times the actual cost. See, National Nurses United

and Institute for Health and Socio-Economic Policy, New Data - Some Hospitals

Set Charges at 10 Times their Costs, Jan. 6, 2014.

http://www.nationalnursesunited.org/press/entry/new-data-some-hospitals-set­

charges-at-10-times-their-costs.

With no applicable law to prohibit it, each Florida healthcare provider is free

to set its charges at any amount it pleases. On the other hand, few patients, if any,

actually pay the billed rates. Since the 1980' s, healthcare providers have received

payment not on their list prices, but on payment schedules set by Medicare or

negotiated rates with managed care plans. See, generally, Glenn A. Melnick &

Katya Fonkych, Hospital Pricing and the Uninsured: Do the Uninsured Pay

Higher Prices? 27 Health Affairs 116 (2008) at

http://content.healthaffairs.org/content/27 /2/wl 16.full.html#Tl.

If there is a great likelihood that the plaintiff will not be required to pay any

more than the Medicare rate, this fact must be disclosed to the jury. Otherwise, the

potential for distorted verdicts is too great. Once the injured person walks out of

the court room, check in hand, there is no way to ensure that the money judgment

accurately reflects the cost of care. In scenarios such as this, precluding the jury

10

from considering evidence of a lower cost alternative already being utilized by a

plaintiff, and that remains available to him in the future, leaves the jury with the

false impression that he may require substantially more in money damages than is

truly necessary to make him whole. There is little doubt that the misapprehension

of damages will be reflected in increased verdicts, which in turn will potentially

lead to increased insurance costs.

III. The Collateral Source Rule Has No Applicability in this Case.

The collateral source rule functions as both a rule regarding the calculation

of damages as well as a rule of evidence; both serving different purposes. Gormley

v. GTE Prods. Corp., 587 So.2d 455, 457 (Fla. 1991).3

The Second District Court of Appeals correctly determined that Florida's

statutory collateral source rule did not apply in the instant case because Medicare is

specifically excluded as a collateral source under Florida Statute § 768. 76.

Moreover, a plain reading of the statute shows that it applies only to benefits

already received, and would therefore not apply to the award of any future benefit.

Allstate Insurance Co. v. Rudnick, 761 So.2d 289 (Fla. 2000).

3The policy behind the evidentiary portion of the rule is to "prevent the introduction of evidence that may mislead the jury on the issue of liability and thus subvert the jury process." Gormley at 458. Yet, there is little chance of influencing the jury regarding liability, where the only issue in question is the actual cost of medical care.

11

In Stanley, which remains the law applicable to the current case, this Court

confirmed, "evidence of free or low cost services from governmental or charitable

agencies available to anyone with specific disabilities is admissible on the issue of

future damages." Stanley, 452 So.2d at 515. At least one other court has similarly

found that medical bills alone do not accurately represent the cost of future

damages. Corenbaum v. Lampkin, (2013) 215 Cal. App. 4th 1308, 1331 ("Because

the full amount billed for past medical services provided to plaintiffs is not relevant

to the value of those services, we believe that the full amount billed for those past

medical services can provide no reasonable basis for an expert opinion on the value

of future medical services.")

With regard to past damages modem authorities consider the amount billed

and paid as the reasonable amount. See, Hanif v. Housing Authority, (1988) 200

Cal. App. 3d 635 (plaintiff's past damages limited to the amount paid by

Medicaid); Bates v. Hogg, 921 P.2d 249 (Kan. 1996)(same); Kastick v. U-Haul Co.

of W. Mich., 740 N.Y. S. 2d 167, 169 (N.Y. Sup. Ct. App. Div. 2002) (plaintiff

may not recover for an amount "for which she never became obligated.")4

4 See also, the Restatement (Second) of Torts: "When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recovered is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him." Restatement (Second) of Torts § 911 cmt. h ( 1979) (emphasis supplied).

12

As noted supra, the question of what evidence can be presented to the jury

regarding the "reasonable value" of future medicals was recently addressed in

California. In reaching its outcome in the case of Corenbaum v. Lampkin, (2013)

215 Cal. App. 4th 1308, 1331, the Second District Court of Appeal in California

relied on the reasoning of the California Supreme Court's decision in Howell v.

Hamilton Meats & Provisions, Inc., (2011) 52 Cal. 4th 541, which reduced from

the jury verdict the negotiated value of past medicals. The Corenbaum court's

analysis of Howell echoes the policy considerations that this Honorable Court

should consider herein:

Howell also stated that the full amount billed by medical providers is not an accurate measure of the value of medical services. (Howell, supra, 52 Cal.4th at p. 562.) Howell addressed this issue in rejecting the argument that limiting the plaintiffs recovery to the amount paid or incurred for medical expenses would result in a windfall to the tortfeasor. (Id. at pp. 560-563.) Howell noted that there can be significant disparities between the amounts charged by medical providers and the cost of providing services, that prices for providing a particular service can -vary tremendously ... from hospital to hospital in California," and that there can be significant disparities between the amounts charged to insured and uninsured patients. (Id. at pp. 560-562.) Even uninsured patients often pay less than the published rates as a result of means-tested discounts. (Id. at p. 561.)

With so much variation, making any broad generalization about the relationship between the value or cost of medical services and the amounts providers bill for them- other than that the relationship is not always a close one-would be perilous. [ii] ... it is not possible to say generally that providers' full bills represent the real value of their services, nor that the discounted payments they accept from private insurers are mere arbitrary reductions." (Howell, supra, 52 Cal.4th at p. 562, italics added.) Howell stated that "a medical care provider's billed price for particular services is

13

not necessarily representative of either the cost of providing those services or their market value." (Id. at p. 564.)

Howell emphasized that the negotiated rate may be the best indication of the reasonable value of the services provided and that it is unclear how any other "market value" could be determined. Howell stated, "pricing of medical services is highly complex and depends, to a significant extent, on the identity of the payer. In effect, there appears to be not one market for medical services but several, with the price of services depending on the category of payer and sometimes on the particular government or business entity paying for the services. Given this state of medical economics, how a market value other than that produced by negotiation between the insurer and the provider could be identified is unclear."(Howell, supra, 52 Cal.4th at p. 562, italics added.)

Howell also held that the negotiated rate differential is not a collateral source payment and therefore is not subject to the collateral source rule. (Howell, supra, 52 Cal.4th at pp. 563-566.) The collateral source rule does not apply to losses or liabilities that the plaintiff never incurred and therefore is not entitled to recover. (Id. at pp. 563-564.) For this and other reasons, the collateral source rule is inapplicable to the negotiated rate differential and does not make that amount recoverable as tort damages. (Id. at pp. 564-565.)

Corenbaum, 215 Cal. App. 4th at 1326-27.

The policy considerations in the instant case are no different from those

analyzed by the California courts in Howell and Corenbaum. Application of the

common law collateral source rule in this instance, would conflict with the holding

in Stanley and creates a windfall for future benefits which is precisely what the

statutory changes to the common law rule meant to avoid. See Goble, 901 So.2d

at 836 (Lewis, J. concurring in result only).

14

CONCLUSION

The plaintiff in this case is currently eligible for Medicare benefits and will

remain eligible for the foreseeable future. The future cost of his medical coverage

will be significantly less than the billed cost due to his eligibility as a Medicare

beneficiary, where the doctors he is likely to see have already agreed to accept

reduced reimbursements. Keeping these facts from the jury will provide a false

and inaccurate picture of his future losses and set the stage for a windfall verdict.

There are serious implications in allowing falsely inflated damage amounts

to be presented to the jury. Receding from the rationale of Stanley and allowing for

"double recovery" in awards of future damages will adversely affect insurers and

consumers alike. Indeed, allowing awards that grossly exceed the actual amounts

necessary to make an injured party whole will likely unnecessarily raise insurance

costs, cause a widespread and negative effect on Florida's insurance market and

will be contrary to stated public policy.

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of Amici Curiae Brief

of Property Casualty Insurers Association of America and National Association of

Mutual Insurance Companies in Support of Respondent State Farm Mutual

Automobile Insurance Company was served via Florida's e-filing portal this 6TH

day of October 2014 to: Tracy Raffles Gunn, Esquire, Counsel for Joerg, at

tgunn@gunnappeals.com and tbishoff@gunnappeals.com; Damian B. Mallard,

Esquire, Co-Counsel for Joerg, at Damian@mallardlawfirm.com and

Hannah@mallardlawfirm.com; Lee D. Gunn, IV, Esquire, Co-Counsel for Joerg,

at lgunn@gunnlawgroup.com; Nichole J. Segal, Esquire, Counsel for Amicus

Curiae Florida Justice Association, at njs@FLAppellateLaw.com and

jew@FLAppellateLaw.com; Mark K. Delegal, Esquire, Matthew H. Mears,

Esquire, and William W. Large, Esquire, Counsel for Amicus Curiae Florida

Justice Reform Institute, at mark.delegal@hklaw.com,

matthew.mears@hklaw.com, and william@fliustice.org; James H. Burgess, Jr.,

Esquire, Co-Counsel for State Farm, at jburgess@burgessharrell.com and Mark

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D. Tinker and Charles W. Hall, Co-Counsel for State Farm, at

mtinker@bankerlopez.com and chall@bankerlopez.com.

COLODNY, FASS, TALENFELD, KARLINSKY, ABATE & WEBB, P.A. Counsel for Amici Curiae One Financial Plaza, 23rd Floor 100 Southeast 3rd A venue Fort Lauderdale, Florida 33394 Telephone: (954) 492-4010 Facsimile: (954) 492-1144

By: Isl Maria Elena Abate MARIA ELENA ABATE Fla. Bar No. 770418 mabate@cftlaw.com

17

CHARL YNE M. PATTERSON Fla. Bar No. 23221 cpatterson@cftlaw.com

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that this brief complies with the font standards in

Rule 9 .210, Florida Rules of Appellate Procedure. This Brief utilizes Times New

Roman 14 point font.

COLODNY, FASS, TALENFELD, KARLINSKY, ABATE & WEBB, P.A. Counsel for Amici Curiae One Financial Plaza, 23rd Floor 100 Southeast 3rd A venue Fort Lauderdale, Florida 3 3 3 94 Telephone: (954) 492-4010 Facsimile: (954) 492-1144

By: Isl Maria Elena Abate MARIA ELENA ABATE Fla. Bar No. 770418 mabate@cftlaw.com

18

CHARL YNE M. PATTERSON Fla. Bar No. 23221 cpatterson@cftlaw.com