Key Points

  • Section 768.0427, Florida Statutes, created by House Bill 837 (ch. 2023-15), applies only to causes of action filed after March 24, 2023.
  • Because section 30 of the act sets its temporal reach, courts need not decide whether the statute is procedural or substantive under Love v. State.
  • A plaintiff who introduced collateral source evidence after the trial court ruled it admissible did not waive or invite the error, under Sheffield v. Superior Insurance Co.
  • Admitting collateral source evidence and directing a verdict on future medical expenses in a 2020-filed case was not harmless error.
  • The trial court abused its discretion by limiting the new trial to medical expenses; causation, permanency and all damages must be retried.

A Florida appeals court ruled Friday that a 2023 tort-reform provision that reversed the evidentiary bar of Florida's collateral source rule does not apply to lawsuits filed before the law took effect, and it ordered a complete new trial for a driver hurt in a 2020 crash on Interstate 275 in Tampa.

A three-judge panel of the Second District Court of Appeal affirmed a Hillsborough County judge's order granting Christopher Unsworth a new trial against Brian Barsoumian, the driver who admitted causing the crash. The panel reversed her decision to limit that retrial to medical expenses. Judge Guard wrote for the court, joined by Judge Labrit, and Judge Khouzam concurred specially.

The decision means that in cases filed on or before March 24, 2023, the older evidentiary bar still governs. Under that bar, collateral source evidence was inadmissible. "We hold that section 768.0427 applies to causes of action filed after March 24, 2023," Judge Guard wrote. The court described its reading as consistent with the Fifth District's 2024 decision in Wolf v. Williams and with the Fourth District's reading of the same applicability clause this year.

The crash happened on April 18, 2020, when Barsoumian's vehicle struck Unsworth's twice, according to the opinion. Unsworth sued that September, and Barsoumian later admitted that his negligent driving caused the crash.

Before trial, Barsoumian asked the court to admit evidence of medical expenses under House Bill 837, the 2023 law that overhauled Florida's civil tort system. The law created section 768.0427, which the panel said "reversed the evidentiary prohibition of the collateral source rule." Unsworth objected that the bill applied only to cases filed after its effective date. Circuit Judge Anne-Leigh Gaylord Moe applied the statute anyway, reasoning that it was procedural.

At trial she went further, ruling that Unsworth bore the burden of proving whether he had health insurance and how much it would pay. Unsworth testified about his employer-provided coverage. His life care planner, Dr. Venezia, testified that he did not factor in insurance because future coverage was speculative. The judge then granted Barsoumian a directed verdict on future medical expenses, so the jury could award nothing for them.

The jury awarded Unsworth all the past medical expenses he sought but found that his injury was not permanent and awarded no noneconomic damages.

While Unsworth's new-trial motion was pending, the Fifth District decided Wolf. Judge Moe granted a new trial on November 30, 2024, based on Wolf, while criticizing that decision. Barsoumian conceded that Wolf bound the trial court but asked that the retrial cover only medical expenses, and on December 30, 2024, she amended her order to do so. Both sides appealed.

On appeal, Barsoumian argued that the court should first decide whether the statute was procedural or substantive under Love v. State, a 2019 Florida Supreme Court retroactivity decision. The panel declined. It held that courts need not reach that question when the Legislature has said when a law applies. Section 30 of the bill provides that "[e]xcept as otherwise expressly provided in this act, this act shall apply" to causes of action filed after its effective date.

"Barsoumian's approach alters the deference the Florida Supreme Court has traditionally granted to the legislature in determining when and how a legislative act applies," Judge Guard wrote. Love, the opinion said, "reflects what happens when the legislature only includes an effective date provision." The panel rejected Barsoumian's proposal to read the word "substantive" into section 30 and "procedural" into section 31. It noted that courts are not to "add words to a statute in the guise of interpreting it."

The panel also rejected Barsoumian's argument that Unsworth had waived the issue by presenting insurance evidence himself, relying on the Florida Supreme Court's 2001 decision in Sheffield v. Superior Insurance Co. Judge Guard wrote that the trial court had "inexplicably ruled that Unsworth bore the burden of proof of offering the evidence listed in that section."

Barsoumian bore the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. The panel acknowledged that he had offered evidence contradicting Unsworth's damages and the permanence of his injuries, but it wrote that "we cannot say that there is 'no reasonable possibility' that the admission of collateral source evidence contributed to the verdict."

The panel also held that Judge Moe abused her discretion in limiting the retrial. It pointed to her own remarks that, without the insurance evidence, "the jury might be more receptive to the idea that his injury was permanent." "We conclude that causation and permanency are inextricably intertwined with the extent and nature of damages," Judge Guard wrote.

Judge Khouzam wrote separately to say that "in my view, the statutory analysis here is straightforward." The Legislature, Khouzam wrote, "expressly did so when it said that section 768.0427 applies only to causes of action filed after its effective date," and "[b]ecause this lawsuit was filed before that date, the trial court clearly erred in applying it here."

Lawyers for Unsworth included John S. Mills of The Mills Firm, P.A.; Barsoumian was represented by Ezequiel Lugo of Banker Lopez Gassler P.A.

The case returns to the Hillsborough County circuit court, where a new jury will decide causation, permanency and all applicable categories of damages. The opinion is subject to revision before official publication.